In re Pamela M.

Filed 3/28/06 In re Pamela M. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis A. Marshall, County Counsel, and Howard K. Watkins, Deputy County Counsel, for Plaintiff and Respondent.

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Pete M. appeals from the juvenile court's order granting legal guardianship (Welf. & Inst. Code, § 366.26) as to his daughter, P.^[1] Specifically, he objects to the legal guardian selected for his daughter. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

The underlying dependency proceedings commenced in August 2003, following appellant's arrest for sexually abusing P.'s 12-year-old half-sister S.V. The juvenile court thereafter detained seven-year-old P. and sustained a dependency petition alleging there was a substantial risk that she would be sexually abused by appellant based on his abuse of S.V. over a one-year period of time. (§ 300, subd. (d).) The Fresno County Superior Court subsequently adjudged P. a dependent child, removed her from parental custody, and ordered reunification services for both parents.^[2]

After 12 months of reunification services, appellant still awaited trial on the criminal charges. With no prospect of reunification, respondent Fresno County Department of Children and Family Services (department) recommended the court terminate appellant's reunification services. In September 2004, the court agreed. The court also ordered relative placement for P. in the home of her adult half-sister Lena S. Appellant did not appeal from the court's orders and findings issued at its 12-month review.

In early 2005, the court terminated services for P.'s mother and set a section 366.26 hearing to select and implement a permanent plan for P. Thereafter, appellant petitioned for extraordinary writ relief. (Pete M. v. Superior Court, F047433.)

Relevant to this appeal, he claimed P. was unsafe in her relative placement. This court rejected this claim in a written opinion filed in May 2005. We reasoned appellant waived any complaint regarding the court's order placing P. in relative placement by his failure to challenge that earlier decision by direct appeal. We added, however, that he could petition the juvenile court to modify its placement order pursuant to section 388.

In August 2005, the court conducted a section 366.26 hearing to select and implement a permanent plan for P. By that time, the department had submitted a report recommending the court select legal guardianship as the child's permanent plan; it also proposed Lena S. as P.'s legal guardian. According to the department's evidence, P.'s mother had maintained regular visitation and contact with the child who would benefit from a continued parent/child relationship; and P. was living with her sister Lena S. who was unable to adopt due to exceptional circumstances but who was willing and capable of providing P. with a stable and permanent environment. Further, removal from Lena S.'s care would be detrimental to P.'s emotional well-being.

Since her placement in Lena S.'s home, P. had progressed in terms of her therapy and education. Behavioral problems she previously experienced had significantly decreased and the frequency of her therapy sessions had lessened. The child's therapist strongly supported the department's recommendation. She also expressed concern that regarding the effects of appellant's indirect contact with P. through his mother; appellant's mother apparently relayed letters from appellant to the child.

Appellant objected to the court naming Lena S. as P.'s legal guardian. He claimed it would be detrimental for P. to remain in Lena S.'s home because Lena S. had withheld information from the department earlier in 2005. Specifically, department social workers had questioned Lena S. regarding the identity of an infant boy who was in her home. While she claimed she was babysitting the child which was in fact true, she did not reveal until May 2005 that the baby was her nephew and the son of her teenage sister S.V. The baby's father was allegedly a fellow classmate of S.V.'s. Lena S. offered that she was trying to protect P. by not revealing to her and the department any details of the baby's parentage.

According to appellant, Lena S. lied and misled the department, thereby casting doubt on her character and her ability to care for P. Appellant also alleged, although without any factual basis, that: because S.V. also lived in the same home with P. and Lena S. that S.V., if not Lena S. as well, were essentially poor role models for P.; Lena S. improperly permitted P. to have contact with the father of Lena S.'s children; and that man was in fact the father of S.V.'s baby. Thus, appellant's attorney argued it would be detrimental to P.'s best interests to be placed with Lena S. as her guardian.

The court found otherwise, selecting legal guardianship as P.'s permanent plan and selecting Lena S. as the child's guardian. In passing, the court found Lena S.'s purported reason for not initially revealing the circumstances surrounding S.V. and her baby appeared to be in P.'s best interests. The court remarked that considering P. was only nine years old at the time, it was easy to understand why she should not be confronted with such adult issues. The court could find no evidence that remaining in Lena S.'s care would be detrimental to P.

DISCUSSION

Challenge to Lena S.'s Suitability as Legal Guardian

Appellant reiterates his argument in the trial court that, because of what he terms her lies to social workers, Lena S. was not an appropriate choice to serve as P.'s legal guardian. According to appellant, the court erred by not evaluating whether leaving P. in Lena S.'s care would constitute a substantial risk of detriment to P.'s emotional well-being. Appellant's argument fails for multiple reasons.

One, he overlooks the fact that the court made a credibility determination when it found Lena S.'s purported reason for not initially revealing the circumstances surrounding S.V. and her baby appeared to be in P.'s best interests. It is not this court's function as a reviewing court to second-guess the trial court's fact-finding or to reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) In this regard, issues of fact and credibility are matters for the trial court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.) We are therefore bound by the trial court's finding and find appellant's premise for error wanting.

In addition, appellant seeks to apply an incorrect legal standard to the selection process for a legal guardian. He contends the court should have evaluated whether leaving P. with Lena S. created a substantial risk of detriment. Nowhere in the statutory scheme regarding legal guardianship as a permanent plan is such a test stated. Instead, appellant cites statute (§ 361.5 [reunification services to a parent or legal guardian]) and case law (In re Cody W. (1994) 31 Cal.App.4th 221, 227) pertaining to dependencies which are initiated due to neglect or abuse inflicted on a child by a legal guardian. Here, P.'s dependency arose out of her father/appellant's sexually abusive conduct; she did not have a legal guardian at the time, much less did she suffer neglect or abuse on account of a legal guardian's act or omission.

Last, appellant overlooks the evidence that P. was flourishing in Lena S.'s care. Thus, the court could properly find, as it did, pursuant to section 366.26, subdivision (c)(1)(D), that to remove the child would be detrimental to her well-being.^[3]

DISPOSITION

The order granting legal guardianship (Welf. & Inst. Code, § 366.26) is affirmed.

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^* Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] At all times during these proceedings, appellant was incarcerated in the county jail, while awaiting, first, trial on the molestation charges and, second, transportation to state prison following his conviction and imposition of a 24-year prison sentence.

^[3] Section 366.26, subdivision (c)(1)(D) authorizes the selection of legal guardianship as a child's permanent plan if the court finds:

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