In re Marie H.

Filed 3/22/07 In re Marie H. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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The minors, Marie H. and Madison S., appeal from orders of the juvenile court denying termination of the guardianship, reinstating the dependency and expanding visitation.^[1] (Welf. & Inst. Code,  366.3, 366.4, 395.)^[2] Appellants contend the juvenile court erred in reinstating the dependency while maintaining the guardianship and abused its discretion in ordering expanded visitation. Agreeing with the first contention, we reverse the orders denying the petition to terminate the guardianship and reinstating the dependency and affirm the visitation order.

FACTS

Appellants, then ages one and five years old, were removed from the mothers custody in May 2001, due to the mothers substance abuse problems and ongoing domestic violence despite an informal supervision plan. The mother was offered reunification services but failed to comply with the service plan and services were terminated. The maternal grandparents, who had been caring for the minors, were willing to act as guardians and the court established the guardianship in July 2002 and terminated the dependency.^[3] The court ordered that the mother was entitled to visitation as arranged and directed by the guardian subject to any terms and conditions deemed necessary by the guardian consistent with the best interests and well-being of the child, including supervision.^[4]

In August 2005, the mother filed a petition for termination of guardianship.^[5] The mother alleged she was now able to assume her parental role because she had been clean and sober for a period of time, completed anger management therapy, was employed, had stable housing and appellants wanted to live with her.

The social workers report of September 2005 stated that appellants were thriving in the guardians care. The guardian reportedly did not think the mother was ready to re-assume parental duties because the mother had only been clean and sober for a year after a 20-year history of substance abuse and the guardian was wary about the mothers stability. The guardian told the social worker the mother had not set up monitored visits until May 2005 and did not always follow the visitation rules. The social worker verified the mothers employment, current residence and completion of domestic violence counseling. A criminal background check revealed the mother was convicted of taking a vehicle in 2004, was currently on low-risk probation and attending Alcoholics Anonymous as a condition of probation. The report recommended denial of the petition to terminate guardianship.

The report also discussed the likelihood of reunification and what further efforts would be required by the mother to do so. The report noted that the mother would have to move to unsupervised visitation before reunification could be considered. However, the report did not recommend reinstatement of the dependency, partly due to funding issues.

An addendum filed in December 2005 again recommended denial of the petition to terminate the guardianship and that the dependency not be reinstated. However, if the court did reinstate the dependency, the addendum recommended confirming the current order for supervised visits. The addendum stated that the guardian agreed to get counseling for appellants to process their feelings about visits.

After a lengthy contested hearing, the court commented that this case was like a family law case and was basically a custody dispute. The court denied the petition to terminate the guardianship because of the history of the case, i.e., the guardianship was necessary at the time it was granted and the home has been a stable placement since. The court was concerned about the conflict between the mother and the guardian and suggested joint counseling to address the issue. The court did not feel it had adequate information to address the visitation issue and decided to reinstate the dependency to get more information on the issue. In the meantime, the court ordered visitation expanded to every other weekend, continuing to be supervised at the mothers expense, and set a review hearing on the question of visitation.

DISCUSSION

I

Appellants contend the court erred in denying the petition to terminate guardianship while also reinstating dependency jurisdiction.

In remarks prefacing its ruling, the juvenile court likened the dependency proceeding to a family law hearing and suggested the matter was basically a custody dispute. However, the two proceedings are distinct and governed by somewhat incompatible principles despite their outward similarities. (In re Chantal S. (1996) 13 Cal.4th 196, 201.) Family court provides parents a forum to resolve private issues which include custody and visitation. (Ibid.) However, [a] superior court convened as and exercising the special powers of a juvenile court is vested with jurisdiction to make only those limited determinations authorized by the legislative grant of those special powers. (In re Lisa R. (1975) 13 Cal.3d 636, 643.) It is this limitation which governs the result in this case.

When reunification fails, the court may, under appropriate circumstances, select guardianship as a permanent plan. ( 366.26, subds. (b)(3), (d).) The court retains jurisdiction over the child until the legal guardianship is established. ( 366.3, subd. (a).) Following establishment of a legal guardianship, the court may continue jurisdiction over the child as a dependent child of the juvenile court or may terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the legal guardianship, as authorized by Section 366.4. (Ibid.;  366.4, subd. (a); In re Heraclio A. (1996) 42 Cal.App.4th 569, 576.)

At the hearing on a petition to terminate guardianship, the juvenile courts options are limited to one of the following: (A) Deny the petition to terminate guardianship; [] (B) Deny the petition and request the county welfare department to provide services to the guardian and the ward for the purpose of maintaining the guardianship [under a program of voluntary supervision]; or [] (C) Grant the petition to terminate the guardianship. (Cal. Rules of Court, rule 5.740(c)(3); see  366.3, subd. (b).) If the court terminates the guardianship, it may reinstate the dependency and must then order a new plan to provide stability and permanency to the child. (Cal. Rules of Court, rule 5.740(c)(4).)

Here, the juvenile court initially selected guardianship as the permanent plan, issued letters of guardianship, ordered visitation and terminated dependency jurisdiction. At the hearing on the mothers petition to terminate the dependency, the court did not select one of the possible authorized alternatives, but instead chose to maintain the guardianship while also reinstating the dependency.

Prior to July 1994, the course chosen by the juvenile court in this case was permitted by the Rules of Court which were then applicable. (Former Cal. Rules of Court, rule 1465(d)(3).) However, the rule was amended to delete the provision which allowed the court to deny the petition and reinstate the dependency. Because the juvenile court is constrained to exercise its jurisdiction within the applicable statutes and rules, and this option is no longer authorized by statute or rule, the juvenile court acted in excess of its jurisdiction. It is unclear from the record which of the authorized actions the juvenile court would otherwise have taken. Consequently, we must reverse and remand to permit an appropriate ruling on the petition for termination of the guardianship.

II

Appellants contend the court abused its discretion in expanding visitation.

When appointing a dependency guardian, the juvenile court is required to make visitation orders. ( 366.26, subd. (c)(4)(C).) The juvenile court did so in this case. As part of the juvenile courts continuing jurisdiction over the ward of a legal guardianship, the court may modify or enforce the visitation order through a petition for modification. ( 388.)

In this case, the mothers petition for termination did not seek a modification of visitation. If the courts order expanding visitation is seen as stemming from its improper resumption of the dependency, the visitation order would be affected as well. However, at the hearing on the petition to terminate guardianship, the mothers counsel orally made a request for modification of visitation as an alternative to termination of guardianship and reinstatement of the dependency. Appellants counsel opposed the modification, noting that there was no showing the guardian had abused her discretion in arranging visits. While the court wanted additional information before proceeding to the full expansion of visitation sought by the mother, it did modify the prior order by setting the frequency of visits. This resulted in an increase from once a month to every two weeks.

A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances.^[6] The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a preponderance of the evidence. [Citation.] (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., supra, at p. 317.)

Here, the evidence showed the mothers circumstances had changed significantly. She had been clean and sober for a year, was employed and in a stable home. She had recently asked for, and received, visitation with appellants and the visits generally went well. There was evidence that appellants had some behavioral problems after visits and that the social worker believed expansion of visitation was premature. There was also evidence that appellants were eager to see the mother and appellants would not be harmed by an increase in visitation. While Madison testified she would like more visits, Marie was happy with the current frequency, although she did like the visits.

The evidence supported a finding of changed circumstances. The evidence of best interest of the minors was in conflict. The court resolved the conflict adversely to appellants and we may not reweigh the evidence. (In re Jason http://www.fearnotlaw.comL. (1990) 222 Cal.App.3d 1206, 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16; In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.) On this record, we cannot conclude that the juvenile courts order modifying visitation constituted a clear abuse of discretion.

DISPOSITION

The orders denying the petition to terminate the guardianship and reinstating the dependency are reversed and the case is remanded for the juvenile court to enter new orders in accordance with the limitations of dependency law. The order modifying visitation is affirmed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P.J.

MORRISON , J.

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^[1] The guardian also appealed but failed to file an opening brief and has been dismissed from the appeal.

^[2] Hereafter, undesignated statutory references are to the Welfare and Institutions Code.

^[3] Both the maternal grandmother and maternal grandfather were appointed guardians, however during the course of the proceedings on the petition for termination of guardianship, the maternal grandfather died.

^[4] A subsequent social workers report states that the court ordered such visitation be monitored at the mothers expense because she had absconded with appellants from a visit during the course of the dependency. The formal order does not include this provision.

^[5] The petition was on a form designed to terminate probate guardianships. However, no one objected in the trial court to use of that form rather than a petition for modification as is appropriate for dependency. (In re Carrie W. (2003) 110 Cal.App.4th 746, 757-758.) Accordingly, we consider any issue concerning irregularity in the procedure forfeited. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2. [forfeiture, not waiver, is proper term].)

^[6] Section 388 provides, in part: (a) Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . . [] . . . [] (c) If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, or termination of jurisdiction, the court shall order that a hearing be held . . . .