In re V.I. CA4/2 ( 2015 )


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  • Filed 4/13/15 In re V.I. CA4/2
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FOURTH APPELLATE DISTRICT
    DIVISION TWO
    In re V.I., a Person Coming Under the
    Juvenile Court Law.
    RIVERSIDE COUNTY DEPARTMENT
    OF PUBLIC SOCIAL SERVICES,                                               E061529
    Plaintiff and Respondent,                                       (Super.Ct.No. RIJ119024)
    v.                                                                       OPINION
    C.A.,
    Defendant and Appellant.
    APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,
    Judge. Affirmed.
    Jesse McGowan, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Gregory P. Priamos, County Counsel, and Anna M. Marchand, Deputy County
    Counsel, for Plaintiff and Respondent.
    1
    Appellant C.A. (mother) appeals from the juvenile court’s order of supervised
    visitation, regarding her daughter, V.I. We affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    On October 26, 2006, the Los Angeles County Department of Children and Family
    Services (CFS) filed a Welfare and Institutions Code1 section 300 petition on behalf of
    mother’s children, J.I. and V.I. At the time of the petition, V.I. (the child) was 3 years
    old.2 The petition alleged that the child came within section 300, subdivisions (b) (failure
    to protect) and (g) (no provision for support). The petition further alleged that mother
    had an unresolved history of substance abuse.
    In a detention report, the social worker reported that this family came to CFS’s
    attention on or about February 18, 2006, as a result of a general neglect allegation. It was
    reported that mother neglected the child when she left her with the maternal grandparents
    for over one year, without any provision for care. The social worker further reported that
    mother was on drugs and had been in and out of rehabilitation, and that she only saw the
    child sporadically. The social worker interviewed the maternal grandmother, who said
    that mother abandoned the child, and that the child had been living with her for over one
    year. The maternal grandmother said that mother was in a sober living home, and when
    she called the home, she was told mother was kicked out. Mother had minimal contact
    1 All further statutory references will be to the Welfare and Institutions Code,
    unless otherwise noted.
    2 Although both J.I. and the child were involved in the dependency proceedings,
    this appeal only concerns the child. Therefore, this opinion will only discuss the child,
    and not J.I.
    2
    with the maternal grandmother and the child since she had been out of rehabilitation.
    Mother’s current whereabouts were unknown. The court ordered the child detained on
    October 26, 2006.
    Jurisdiction/Disposition
    The social worker filed a jurisdiction/disposition report on December 12, 2006,
    recommending that the court declare the child a dependent of the court, that mother
    participate in reunification services, and that mother have monitored visitation, twice a
    week, with CFS having the discretion to liberalize them to unmonitored day visits,
    overnights, and weekends, when appropriate.
    On February 1, 2007, based on a mediated agreement, the court declared the child
    a dependent and ordered mother to participate in reunification services. The court
    ordered monitored visitation, with CFS having the discretion to liberalize them when
    appropriate.
    Six-month Status Review
    The social worker filed a six-month status review report on July 25, 2007. The
    social worker reported that the child was suitably placed with her maternal grandparents.
    The social worker further reported that mother was not in compliance with her case plan
    and that the social worker had no contact with her since April 13, 2007. As to visitation,
    mother’s visits were sporadic. They were monitored by the maternal great-grandmother
    or maternal grandfather. The maternal grandmother reported on June 22, 2007, that
    mother visited, on average, once a week, beginning that month. The social worker
    opined that mother was not capable of taking care of her children. She had been evicted
    3
    and terminated from and/or quit approximately six jobs since the dependency case
    opened. At the six-month review hearing, the court continued mother’s services.
    12-month Status Review
    The social worker filed a 12-month status review report on January 30, 2008, and
    reported that the maternal grandparents and the child relocated to Riverside County. The
    child was doing well. Mother had visited more regularly during the months of November
    and December 2007. The maternal grandparents reported that the visits were appropriate.
    The social worker reported that mother’s priority was not her children, though, since her
    husband had cancer. Mother was not making progress with her case plan. The social
    worker thus recommended that reunification serves be terminated.
    On March 6, 2008, the court found that mother was not in compliance with her
    case plan and terminated her reunification services. The court ordered all prior orders not
    in conflict to remain in full force and effect. The court then set a section 366.26 hearing.
    Section 366.26
    The social worker filed a section 366.26 report on July 22, 2008, recommending
    that the hearing be continued for at least 120 days in order to allow enough time to
    complete a reassessment of the maternal grandparents’ home; a maternal cousin had
    moved into the residence and needed to Live Scan. The maternal grandparents informed
    CFS that they no longer wanted to pursue adoption, but rather legal guardianship. The
    social worker reported that mother was having unmonitored day visits with the child, and
    that the visits were reportedly going well. Mother was also participating in a drug
    treatment program.
    4
    The matter was continued several times for various reasons.
    The maternal grandparents’ home was subsequently approved on January 15,
    2008. The social worker recommended that the court grant legal guardianship to the
    maternal grandparents.
    In an interim report filed on May 21, 2009, the social worker reported that mother
    was in agreement with the maternal grandparents becoming the legal guardians.
    At a section 366.26 hearing on May 28, 2009, the court ordered legal guardianship
    as the permanent plan. However, the court found that further CFS supervision was
    needed and retained jurisdiction. The order establishing guardianship simply provided
    for visitation, but did not indicate whether the visits were to be supervised or
    unsupervised.
    Transfer to Riverside County
    In early December 2009, the Los Angeles County Juvenile Court ordered the case
    transferred to Riverside County. On December 22, 2009, the Riverside County Juvenile
    Court accepted the transfer.
    Postpermanent Plan Review
    The social worker filed a status review report on June 8, 2010, recommending that
    the dependency be terminated. The social worker reported that mother had not
    maintained regular visitation with the child. The social worker attached a copy of the
    case plan, which stated that mother was to contact the Riverside County Department of
    Public Social Services (DPSS) to arrange visits. At a hearing on June 22, 2010, the court
    followed the recommendation and terminated the dependency.
    5
    Section 388
    On May 6, 2014, mother filed a section 388 petition, in propria persona, asking the
    court to rescind the legal guardianship, place the child back in her home, “lift [a]
    domestic violen[ce] restraining order,”3 and transfer the case back to Los Angeles
    County. As to changed circumstances, mother alleged that the maternal grandmother
    physically abused the child’s sister, that the maternal grandfather “failed to protect,” and
    that the maternal grandfather admitted to having contact with an alleged rapist. Mother
    feared the child was at risk of physical, sexual, and mental abuse. As to best interest of
    the child, mother alleged that the maternal grandparents failed to follow court orders
    regarding visitation between her and the child, and that the bond between them had been
    severely strained as a result. The court set a hearing for May 30, 2014.
    On May 30, 2014, the court held a hearing on the petition. Mother appeared, and
    the court appointed her counsel. The court continued the matter to June 30, 2014, for
    DPSS to complete an investigation/report. The court further ordered DPSS to establish a
    visitation schedule with mother, in compliance with the restraining order.
    The social worker filed an addendum report on June 25, 2014, and recommended
    that the court affirm the legal guardianship. The social worker also recommended that
    the visits between mother and the child occur at least one time a month, and that they be
    supervised by an independent adult agreed upon by all parties. The social worker
    reported that she interviewed mother and asked her to bring all of the paperwork that
    3  The maternal grandfather reported that, at some point, he filed a temporary
    restraining order against mother.
    6
    reflected the court order’s regarding either visitation or custody. Mother brought some
    letters from individuals stating that she was a good person and would make a good
    employee, and two certificates of completion for classes. She also brought three court
    orders, but they did not apply to the child. She presented a visitation order, but it applied
    to J.I. Mother insisted that even though the papers did not have the child’s name on
    them, they applied to her. Mother further stated her belief that the maternal grandmother
    abused the child by hitting her in the face, and the maternal grandparents did not want the
    child anymore.
    The social worker interviewed the maternal grandfather, who said that he was
    concerned for the child because mother was very difficult to get along with. He had tried
    to talk to her on the telephone, but every conversation ended up in an argument. He
    stated that he filed the temporary restraining order between himself and mother because
    mother could be hostile and threatening. The maternal grandfather said that if he was the
    court, he would reaffirm the current guardianship order and order two supervised visits a
    month.
    The social worker also interviewed the maternal grandmother, who stated that she
    was concerned for the child’s safety because she believed mother continued to use
    methamphetamine and marijuana. The maternal grandmother expressed concern with
    mother’s mental health, noting that she had been placed on a section 5150 hold at least
    one time. The maternal grandmother said she thought the court should maintain the
    guardianship order and order no visitation.
    7
    The social worker additionally interviewed the child, who said that she did not
    want to go to mother’s house because she did not feel safe there. She did not know all
    the people there and did not know mother’s current husband. She said they had a lot of
    dogs with fleas. The child said she wanted to stay with her grandparents because they
    kept her safe and met her needs. The child added that she never wants to live with her
    mother. She wanted to see her more often, but just in the local area. She said if they
    were going outside of the area, another adult needed to be with them, since she was afraid
    mother might not bring her back.
    The social worker further reported that mother had a history of methamphetamine
    and marijuana use. However, mother refused to complete a test, so it was unknown if she
    was currently clean and sober. She also had a history of mental health problems. The
    social worker noted that mother could not demonstrate that she had addressed these
    concerns.
    The court held the continued section 388 hearing on June 30, 2014. Mother was
    not present, but was represented by counsel. County counsel asked the court to deny the
    motion and order supervised visitation once a month, to be supervised by a third party
    agreed upon by the legal guardians. Counsel for the child stated that the child would like
    visits. She informed the court, as follows: “I think there was a meeting and it was agreed
    upon which would be the best resolution. I am asking that the Court follow the
    recommendations.” The court asked if the child was comfortable with the visits in a
    public setting, and counsel said yes. Mother’s counsel informed the court that mother
    called him two days prior, and that he emailed her the social worker’s report that was
    8
    prepared for the hearing. Mother said she would bring her counsel information that
    morning, but failed to appear at the hearing. Her counsel asked the court for a minimum
    of one visit a month, and added that perhaps “more time [could be arranged] between the
    parties as they go forward.” Mother’s counsel said the child wanted a relationship with
    her mother and then stated, “So we’d ask the Court to make the appropriate visitation
    order.” Counsel for the legal guardians (the maternal grandparents) submitted on the
    social worker’s recommendations, and stated, “my understanding is the Court denied the
    JV-180 except for regarding visitation, and we are only here regarding visitation at this
    time.” The court responded, “Right. I don’t think I had filled out the paperwork, which
    I’ll do today so it will have today’s date. But the 388 petition is going to be denied in its
    entirety. And then I’ll make the visitation orders.” The court proceeded to deny the
    section 388 petition, since it felt that it was not in the child’s best interest. The court then
    ordered visitation to be once a month for two hours, supervised by an adult approved by
    the legal guardians. The visits were ordered to be in a public location. Mother’s counsel
    asked if there could be more time, if the parties agreed. The court said it was not inclined
    to order more time unless the child asked for it, noting that the child was 11 years old and
    that the family had been through a lot. The court asked if there was anything else, and
    mother’s counsel said, “Nothing further.”
    ANALYSIS
    The Court Properly Ordered Supervised Visitation
    Mother argues that the court’s order permitting only supervised visitation should
    be reversed. Specifically, she contends that DPSS was required to file a section 388
    9
    petition to modify the visitation term of the legal guardianship pursuant to California
    Rules of Court, rule 5.740(c) (rule 5.740(c)). She further argues that the change in the
    visitation order, from unsupervised visits to supervised, was an abuse of discretion, since
    there had been no problems with visits and she had regained custody of her other
    daughter. We conclude that the court properly ordered supervised visitation.
    Mother first argues that the order modifying the legal guardianship order must be
    reversed because DPSS “failed to seek such a modification through the filing of a section
    388 petition, as due process and rule authority required.” However, the premise of
    mother’s argument is false, since she appears to be asserting that DPSS sought a
    modification in visitation. The record establishes that DPSS did not seek to modify
    visitation. Mother filed her section 388 petition, asking the court to rescind the legal
    guardianship. The court held the initial hearing on the petition on May 30, 2014, but
    continued the matter for investigation. At that same hearing, the court additionally
    ordered DPSS to establish a visitation schedule with mother, “in compliance with [the]
    restraining order” that the maternal grandfather had filed. We note that the previous
    visitation order, which was made when the court established the legal guardianship,
    merely provided for visitation, but did not indicate any schedule, or whether the visits
    were to be supervised or unsupervised. Thus, the court apparently wanted to make a
    more specific order, noting that the visitation schedule should consider the restraining
    10
    order that the maternal grandfather had filed against mother.4 In compliance with the
    court’s order to establish a visitation schedule, DPSS investigated the matter and
    recommended that visits occur at least one time a month for two hours, and that they be
    supervised by an independent adult agreed upon by all parties. Thus, the court raised the
    issue of visitation, apparently on its own. Since DPSS was not seeking to modify the
    visitation term of the legal guardianship, as mother claims, it was not required to file a
    section 388 petition.
    Moreover, the record indicates that mother was fully aware that the court was
    going to make a visitation order. By the time of the continued hearing on June 30, 2014,
    the court had already denied the section 388 petition and, as it indicated, just needed to
    “fill[] out the paperwork.” As the child’s counsel stated and the court confirmed, the
    only issue to be determined at that hearing was visitation. The child’s counsel indicated
    that there had previously been a meeting, and “it was agreed upon which would be the
    best resolution.” When the court addressed mother’s counsel, he asked the court for a
    minimum of one visit a month. He stated that the child wanted a relationship with
    mother and simply said, “So we’d ask the Court to make the appropriate visitation order.”
    Thus, mother’s counsel was aware that the court was going to make a visitation order at
    that hearing. We further note that mother’s counsel did not request unsupervised
    visitation. He also did not object when the court ordered supervised visitation. He only
    4  Although the record does not indicate when the restraining order was obtained,
    the first mention of it was in the social worker’s report dated June 30, 2014. Thus, it is
    reasonable to assume that the restraining order was obtained some time after the legal
    guardianship was established in 2009.
    11
    asked if there could be more time if the parties agreed. Therefore, even assuming
    arguendo that DPSS was seeking a modification in the visitation order, as mother claims,
    mother has waived her claims on appeal. She failed to raise any objections in the
    juvenile court, but rather acquiesced in the proceedings. (In re Dakota S. (2000) 
    85 Cal.App.4th 494
    , 501-502.)
    Mother’s reliance on In re Lance V. (2001) 
    90 Cal.App.4th 668
     (Lance V.) in
    support of her position is misplaced. Lance V. concerned a change in a visitation order
    following an unsuccessful mediation hearing. (Id. at pp. 673-675.) The court in that case
    extensively discussed the purpose of mediation. (Id. at pp. 674-676.) Furthermore, the
    court reversed the juvenile court’s order modifying visitation because the mother was
    deprived of due process, in that she was not provided notice that a change might occur,
    and she was not given an opportunity to be heard. (Id. at p. 676.)
    In contrast, in the instant case, mother had notice that the court was going to make
    another visitation order, as indicated by the record of the June 30, 2014, hearing. (See
    ante.) We further note that mother was present at the previous hearing, when the court
    ordered DPSS to establish a visitation schedule with mother, in compliance with the
    restraining order. She also had notice of the social worker’s recommendation for the
    court to order supervised visitation. Moreover, as discussed ante, the main issue at the
    June 30, 2014 hearing was visitation, and the court gave every party an opportunity to
    speak. Although mother claims that “it was not even clear whether [she] received the
    social worker’s report in advance of the hearing,” mother’s counsel had the report, and he
    verified that he had emailed it to her prior to the hearing. Although mother was not
    12
    personally present at the hearing, she was represented by counsel, and her counsel
    discussed the issue of the visitation order on her behalf. “The general rule is that
    personal appearance by a party at a civil proceeding is not essential; appearance by an
    attorney is sufficient and equally effective.” (In re Dolly D. (1995) 
    41 Cal.App.4th 440
    ,
    445.)
    Furthermore, the court had the jurisdiction to make such visitation order. “‘A
    juvenile court has a continuing responsibility to account for the welfare of a dependent
    child under its jurisdiction, wherever placed, unless and until a permanent and stable
    home is established.’ [Citation.] Where legal guardianship is chosen pursuant to section
    366.26, the juvenile court retains jurisdiction over the child until the legal guardianship is
    established. [Citation.] Where a relative is appointed the legal guardian, and the child
    has been placed with the relative for at least 12 months, ‘the court shall, except if the
    relative guardian objects, or upon a finding of exceptional circumstances, terminate its
    dependency jurisdiction and retain jurisdiction over the child as a ward of the
    guardianship, as authorized by [section 366.4].’” (In re Joshua S. (2003) 
    106 Cal.App.4th 1341
    , 1352-1353, fn. and italics omitted.) We note that rule 5.740, which
    mother cites, “does not divest the juvenile court of its authority to fashion orders in the
    best interest of the minor while maintaining its continuing jurisdiction over the legal
    guardianship.” (In re Z.C. (2009) 
    178 Cal.App.4th 1271
    , 1286; see § 366.4.)
    Finally, contrary to mother’s claim, the decision to order supervised visitation was
    well within the court’s discretion. The maternal grandfather told the social worker that
    mother could be hostile and threatening, which is why he obtained a restraining order
    13
    against her. He was concerned about the child because mother was difficult to get along
    with, and he felt the court should order supervised visitation. The maternal grandmother
    also expressed concern for the child’s safety since she believed mother was using
    controlled substances. The maternal grandmother was concerned about the people who
    lived with mother, including mother’s extremely ill husband and another male, who she
    believed had drug and assault convictions. The maternal grandmother was further
    worried about mother’s mental health, noting that she had previously been placed on a
    section 5150 hold. The maternal grandmother did not think the court should order any
    visitation between mother and the child. Moreover, the child said did not want to go to
    mother’s house because she did not feel safe there. The child told the social worker that
    she did want to visit mother, but if it was going to be outside the Banning/Beaumont area,
    she wanted another adult with them, for fear that mother might not bring her back. The
    social worker confirmed that mother had a history of methamphetamine and marijuana
    use, and that it was unknown if she was currently sober, since she refused to drug test.
    The social worker also confirmed that mother had a history of mental health problems. In
    light of this evidence, we cannot say that the court abused its discretion in ordering the
    visitation to be supervised.
    14
    DISPOSITION
    The order is affirmed.
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    HOLLENHORST
    Acting P. J.
    We concur:
    MILLER
    J.
    CODRINGTON
    J.
    15
    

Document Info

Docket Number: E061529

Filed Date: 4/13/2015

Precedential Status: Non-Precedential

Modified Date: 4/17/2021