Filed 11/26/18 In re A.C. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Leanne L. LeMon, Commissioner.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Jessica C. was the legal guardian of minors A.C. and C.C. The Fresno County Department of Social Services (department) filed a Welfare and Institutions Code[1] section 387 petition seeking to terminate the guardianship and place the minors in foster care. After the filing of the section 387 petition, Jessica filed a section 388 petition seeking to terminate the guardianship. Jessica contends it was error for the juvenile court to issue findings and an order on the section 387 petition and contends the juvenile court should have proceeded solely on the section 388 petition. She asks the findings and order on the section 387 petition be reversed. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

On April 24, 2018,[2] the department filed a section 387 petition seeking to terminate Jessica’s guardianship over A.C. and C.C. and place the two girls in foster care. The petition alleged that Jessica’s minor son, who resided in the home, had been sexually abusing A.C. since 2015 and that Jessica had failed to protect A.C. The petition also alleged that C.C. was at risk of sexual abuse because of the sexual abuse perpetrated against A.C. In addition, the petition alleged that Jessica acknowledged knowing of the sexual abuse but failed to report the abuse to the police or the department.

A detention report was prepared and filed on April 25. The detention report noted that the children had been removed from parental custody in 2011. The girls were placed with their paternal aunt, Jessica, in 2013.

The detention report stated that a crisis referral was received by the department on April 20, alleging sexual abuse and general neglect. On April 21, a social worker arrived at the home to investigate the referral; the girls were home, but Jessica and her son were not. A.C. indicated to the social worker that she had been sexually abused by her male cousin, who still resided in the home. The social worker contacted the police department and asked for immediate assistance.

Officers arrived, and the social worker briefed the officers on the allegations. It was at this point that Jessica and her son arrived at the home. A.C. was interviewed by an officer and told the officer that her male cousin had been sexually abusing her for three years. A.C. stated he touched her breasts and vaginal area, had her touch his “private parts,” and asked her to take photos of her sister, C.C. A.C. stated she finally told Jessica what was occurring, but Jessica yelled at her and took her phone away. An officer interviewed C.C. C.C. told the officer her male cousin took pictures of her but had not touched her. C.C. said A.C. had told Jessica what the male cousin was doing, but Jessica “did not do anything” to the male cousin, and A.C. was “mad.”

An officer also interviewed the male cousin, who admitted that he had engaged in the conduct described by A.C. The male cousin admitted that “he started it all.” He stated he told A.C. “she had to allow him to touch her and she would touch him and ‘masturbate him’ with her hand.” He also acknowledged having videos of A.C. while she was engaged in sexual activity.

Jessica was advised of the substance of the interviews and asked why she did not report the incidents. Jessica stated she was looking to obtain counseling for the children and had made inquiries of another relative about taking the girls into the relative’s home. The social worker inquired why A.C. was the only one punished when she disclosed the sexual activity to Jessica. Jessica indicated she told them to “stay away from each other when they got home from school.” Jessica also indicated her son needed his cell phone, so she had a “way to get in touch.”

The social worker advised Jessica that a protective hold was being placed on the girls and they would be removed from the home. Jessica indicated she was “fine” with that determination. When the social worker told Jessica her son needed to take responsibility for his actions, Jessica did not respond.

After the girls were detained, a meeting was held with Jessica on April 24, at which time it was decided the department would file a petition on behalf of the girls.

At the April 25 detention hearing, the juvenile court ordered A.C. and C.C. detained in foster care.

Subsequently, on May 17, 2018, Jessica filed a section 388 petition. The section 388 petition alleged that A.C. had engaged in sexual activity in Jessica’s home; Jessica could not remain as guardian of A.C. and C.C.; and the girls could not remain in Jessica’s home. Jessica asked that the guardianship be terminated. The juvenile court apparently issued an order allowing the section 388 petition to be heard concurrently with the section 387 petition.

In a report prepared and filed in May, the department set forth in detail the results of the investigation of the allegations of sexual abuse; asked that A.C. and C.C. be adjudged dependents of the juvenile court; and requested they be placed in foster care. The department also recommended the juvenile court grant Jessica’s section 388 petition and schedule a section 366.26 permanent plan hearing for the girls.

On May 30, the juvenile court conducted a hearing on the sections 387 and 388 petitions. Counsel for the department and the minors requested that the juvenile court find the allegations of the section 387 petition true, as well as grant the section 388 petition.

Counsel for Jessica argued that Jessica’s being “somehow responsible for sexual abuse since 2015 is not accurate.” He maintained the juvenile court should act on Jessica’s section 388 petition first, instead of “moving forward with these negative facts” in the section 387 petition. After granting the section 388 petition, Jessica’s counsel opined that Jessica should be found a “non party” to the section 387 petition, and the juvenile court should proceed to assume jurisdiction over the girls and determine a “new disposition.”

After Jessica’s counsel stated his client’s position, the juvenile court responded:

“I’m going to state I read the fact[s] of this case very differently, [Jessica], than you and your attorney. This is a situation, in reading both the detention, the jurisdiction and disposition reports, that I believe your son was the one who was the predator. He manipulated [A.C.] and this appeared to have occurred for three years. You were aware of it. Did not report it to law enforcement. Did not report it to the Department of Social Services. According to [A.C.] she got in trouble, not your son. So do I think you were protective of these girls, no, I don’t. And do I think that your son was the predator in this situation? Yes, I do. He manipulated [A.C.]. He video taped her. He had her send inappropriate videos of herself, and I believe he was the predator. Them being the same age does not change my opinion of that. I do not think that you were protective of the girls. I think you were protective of your son, and I think that your fear was that your son was going to get in trouble.

“So I read the facts very differently. And I do have issues with the fact that this was not reported initially and that the motion to set aside the guardianship was after the Department got involved, not when this happened with this happening three years ago. So I look at these facts very differently than you and your attorney do. I don’t see you as a victim of the situation.”

Jessica asked for an opportunity to respond to the juvenile court’s comments, and she stated, “So when this came up, it wasn’t molestation from my eyes. It was two kids doing stupid dumb things that were not right at all, not morally, not anything, but it was both kids.… So I was shocked that they were—that this was happening.”

After hearing from all counsel and Jessica, the juvenile court issued its findings. The juvenile court read and considered the detention, jurisdiction and disposition reports. It found that the whereabouts of the girls’ biological parents were unknown. The juvenile court found that Jessica had not been protective of A.C. and found the allegations of the section 387 petition to be true and that placement with Jessica was no longer appropriate.

The juvenile court then turned to the section 388 petition. It granted the petition and set aside the legal guardianship of A.C. and C.C. The juvenile court also found that the girls were “not a proper subject for adoption” and no one presently was willing to assume legal guardianship, therefore, the juvenile court declined to set a section 366.26 hearing.

The girls were ordered removed from the custody of Jessica, the guardianship was terminated, and the girls were to remain in foster care with the goal of a permanent placement with relatives.

Jessica filed a timely notice of appeal.

DISCUSSION

Jessica argues there was “no need for the juvenile court to sustain the” section 387 petition or make findings of fact against her. She argues the proper course of action for the juvenile court was to grant her section 388 petition and dismiss the section 387 petition as “superfluous.” She is incorrect.

This court addressed this issue in In re Jessica C. (2007) 151 Cal.App.4th 474 (Jessica C.), holding that section 387 controls over section 388 when termination of the guardianship will lead to foster care. (Id. at p. 478.) Interestingly, appellate counsel fails to cite to or address this case in the opening brief. In the Jessica C. case, the grandparents had been legal guardians of the children. When circumstances changed, and the department sought to terminate the guardianship, it filed a section 388 petition. (Id. at p. 479.) The children argued on appeal that the department was required to proceed by way of a section 387 petition if removal from the home of their guardian would result in placement in foster care. (Id. at p. 480.) In holding that the proper course of action was a procedure under section 387, this court stated:

“Although section 388 generally governs an application to terminate a guardianship created by the juvenile court when modifying the previous permanent plan order (§ 360; In re Carrie W. (2003) 110 Cal.App.4th 746, 757), section 387 applies when the petition seeks to terminate a guardianship and place a child into foster care. Section 388 provides that a juvenile court may change an earlier order creating a legal guardianship ‘[i]f it appears that the best interests of the child may be promoted by the proposed change of order.…’ (§ 388, subd. (c).)

“In contrast to section 388, section 387 provides a more detailed procedure where the order sought will change or modify an earlier order by ‘removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private or county institution.…’ (§ 387, subd. (a).) Section 387, subdivision (b), provides that ‘[t]he supplemental petition shall be filed by the social worker in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3.’ The need to file a section 387 petition when termination of the guardianship will result in foster care placement was acknowledged by the court in In re Carlos E. (2005) 129 Cal.App.4th 1408, which said: ‘Section 366.3 provides that the juvenile court retains jurisdiction over a child as a ward of the court after the court imposes a legal guardianship. It would appear, therefore, that should it become necessary to alter the court’s order placing the child with a legal guardian, a section 387 petition would be the appropriate method for obtaining an order detaining the child and placing him or her in foster care.’ (In re Carlos E., supra, 129 Cal.App.4th at p. 1419, fn. 5.)” (Jessica C., supra, 151 Cal.App.4th at pp. 480-481.)

Here, the department followed the appropriate procedure by filing a section 387 petition on April 24. On May 17, less than two weeks before the scheduled hearing on the section 387 petition and 23 days after the filing of the section 387 petition, Jessica filed a section 388 petition. We find nothing in the Jessica C. case to support Jessica’s contention the juvenile court erred in acting on the section 387 petition and should have acted only on her section 388 petition. In fact, under the holding of Jessica C., the proper course of action was for the juvenile court to proceed on the section 387 petition. (Jessica C., supra, 151 Cal.App.4th at pp. 480-481.)

Furthermore, although Jessica addresses the substantial evidence standard in her appeal, she has not raised a challenge to the sufficiency of the evidence to support the juvenile court’s findings. Instead, she merely argues again that the findings were unnecessary because the juvenile court should have addressed the section 388 petition and presumably, dismiss the section 387 petition.

Additionally, Jessica claims true findings on the allegations of the section 387 petition could have “unintended consequences” for her, for example, impacting her future ability to be a foster or adoptive parent. Even if true, avoiding unintended consequences or negative implications for Jessica is not the focus of a section 387 petition and hearing. The focus of section 387 is on averting harm to the child. (In re T.W. (2013) 214 Cal.App.4th 1154, 1163.) Considering the juvenile court’s view of the facts and circumstances of the case, that Jessica failed to protect the girls and instead protected her son by failing to report the sexual abuse to the police or department, the juvenile court may well have felt it important to make findings on this point to prevent any future harm to other children.

In reviewing a ruling on a section 387 petition, we apply the substantial evidence test. (In re Basilio T. (1992) 4 Cal.App.4th 155, 170.) The detention report, jurisdiction and disposition reports supplied ample substantial evidence supporting the true findings on the allegations in the section 387 petition. (§ 355; Cal. Rules of Court, rule 5.684(c).)

Having concluded there is substantial evidence supporting the juvenile court’s true findings of the allegations in the section 387 petition, and finding no legal basis precluding the juvenile court from making a determination on the allegations of the section 387 petition, we conclude the juvenile court committed no error.

DISPOSTION

The juvenile court’s May 30, 2018, order finding true the allegations in the section 387 petition and granting that petition is affirmed.