Sonoma Cnty. Human Servs. Dep't v. J.H. (In re S.H.)

• Decision Date: 05 August 2011
• Docket Number: No. A129167.,A129167.
• Citation: 2011 Daily Journal D.A.R. 11838,129 Cal.Rptr.3d 796,197 Cal.App.4th 1542,11 Cal. Daily Op. Serv. 9905
• Parties: In re S.H., a Person Coming Under the Juvenile Court Law. Sonoma County Human Services Department, Plaintiff and Respondent, v. J.H., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

197 Cal.App.4th 1542

129 Cal.Rptr.3d 796

11 Cal. Daily Op. Serv. 9905

2011 Daily Journal D.A.R. 11,838

In re S.H., a Person Coming Under the Juvenile Court Law.Sonoma County Human Services Department, Plaintiff and Respondent,

v.J.H., Defendant and Appellant.

No. A129167.

Court of Appeal, First District, Division 3, California.

Aug. 5, 2011.

Matthew I. Thue, Diamond Bar, by appointment of the Court of Appeal under the First District Appellate Project's Independent Case System, for Appellant.

Tara Harvey, Chief Deputy County Counsel, County of Sonoma, Bruce D. Goldstein, County Counsel, County of Sonoma, for Respondent.

JENKINS, J.

This is an appeal by J.H. (mother) from certain findings and orders made by the juvenile court subsequent to hearings held pursuant to Welfare and Institutions Code section 366.26 and 366.3.¹ For reasons to be explained, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 10, 2008, a section 300 petition was filed by respondent Sonoma County Human Services Department (department), alleging that mother placed her infant daughter (minor), at substantial risk of suffering serious physical harm or neglect as a result of her inability to provide care or protection due to a history of substance abuse, lack of cooperation with hospital staff, and her previous failure to reunify with minor's siblings. (§ 300, subds.(b), (g), (j).) The section 300 petition was thrice amended, adding allegations under subdivisions (a) and (f) that two of minor's siblings were injured while in mother's care, and one of these sibling's injuries led to her death, which mother could not adequately explain.

On November 19, 2008, the juvenile court sustained the allegations in the second amended section 300 petition and, on March 3, 2009, declared minor a dependent of the court.²

On October 16, 2008, the juvenile court found the Indian Child Welfare Act applied based upon proof that mother is a member of the Manchester Point Arena Band of Pomo Indians (Tribe). The Tribe advised the juvenile court that, although minor is considered an adoptable child, it would only support legal guardianship as a permanent plan in order to protect her best interest in a continued tribal relationship.³

On March 3, 2009, the juvenile court issued a dispositional order that, among other things, bypassed reunification services for mother pursuant to section 361.5, subdivisions (b)(4), (b)(6), and (b)(10). Specifically, the juvenile court found clear and convincing evidence that mother caused the death of another child through abuse or neglect, that minor's half-sibling had suffered severe physical abuse by parents, that reunification services for mother with respect to minor's half-siblings had been terminated and that mother had not subsequently made a reasonable effort to treat the problems leading to the half-siblings' removal.⁴ The juvenile court also noted that mother was not amenable to services and had not been successful at rehabilitating herself despite extensive efforts on her behalf by the department and the Tribe.

The juvenile court's decision to bypass services was consistent with the department's recommendation in the disposition report, which noted, among other things, that, while mother entered a residential treatment program on December 9, 2008, she left the program on January 24, 2009, and, as of the end of February 2009, had failed to enter a different program despite telling the department she would do so.

Minor was thereafter placed in the home of prospective guardians and, on September 24, 2009, the juvenile court ordered guardianship as the permanent plan and dismissed the dependency proceedings. Among other exit orders, the juvenile court ordered visitation between mother and minor to occur at least once a month.

Unfortunately, the legal guardianship terminated on November 24, 2009, after minor's guardians gave notice they were no longer willing to provide for her care. Accordingly, the juvenile court vacated its earlier order of dismissal and reinstated the dependency.

At a December 10, 2009 hearing on the department's request to change a court order, the department informed the juvenile court that a new placement agreeable to the Tribe had been found, and that it anticipated presenting new letters of guardianship to the court at the next hearing. The juvenile court then advised the parties to return for a permanency planning review hearing on February 25, 2010, prompting mother's attorney to state for the record that she was entitled to be considered for reunification services before new letters of guardianship could be presented given the termination of minor's original guardianship.

The February 25, 2010 permanency planning review hearing was ultimately continued until May 20, 2010, based upon the department's request to allow more time for minor to become attached to her new placement. In the meantime, the juvenile court ordered that mother's monthly visits with minor would resume in April.⁵In anticipation of the May 20 hearing, the department filed a status review report noting, among other things, it “appears that [mother] is at odds with her Tribe. She has been informed numerous times by the Tribe, and the Department concurs, that she would need to complete the attached ten-point treatment goal plan in order for any consideration of reunification for any of her children to be considered. She has not participated in any planning for reunification, much less participated in any of the ten-point plan.” In addition, the report noted that “[mother] has been somewhat threatening to the current foster family, with threats made in the previous reporting period, and to the undersigned's knowledge, she continues to be unsupportive of this placement. It is sad to see [mother] staying stuck in her anger, and how this negatively impacts her involvement with her children and with her Tribe.”

At the May 20, 2010 hearing, the juvenile court admitted the department's report into evidence, acknowledged its recommendation that a new guardianship be established, and scheduled a settlement conference for June 16, 2010.

A contested hearing was then held on July 8, 2010, for which the parties submitted briefing on the issue of whether reunification services for mother should be considered, given that services for her had been bypassed. Following this hearing, the juvenile court denied mother's request to reconsider the issue of reunification services, affirmed guardianship as the permanent plan and appointed successor guardians. The juvenile court also ordered supervised visitation for mother twice annually (in June and December) for two hours. The juvenile court then again dismissed the dependency proceedings.

On July 23, 2010, mother filed a timely notice of appeal of the juvenile court's July 2010 findings and orders.

DISCUSSION

Mother raises two issues for our review. First, mother contends the juvenile court reversibly erred by refusing to revisit the issue of whether she should receive reunification services after minor's previously ordered legal guardianship was terminated and the dependency proceedings were reinstated for the purpose of establishing a new guardianship. Second, mother contends the juvenile court erred by limiting her visitation with minor to twice a year without first determining whether more frequent visitation would be detrimental to minor. We address each issue in turn below.

I. Did the juvenile court err by declining to revisit the reunification services issue when appointing new guardians?

As set forth above, this dependency was dismissed after a legal guardianship was established as minor's permanent plan. However, on December 10, 2009, the juvenile court vacated the dismissal and reinstated the proceedings after minor's guardians requested that the guardianship be terminated. At that time, mother's counsel advised the juvenile court that, because the guardianship was being terminated, mother was entitled to be considered for reunification services pursuant to section 366.3.

Several months later, after ordering briefing and hearing argument on the issue, the juvenile court declined mother's request to consider reunification services for her. The juvenile court reasoned that a contested hearing on reunification services was not required because minor's permanent plan of legal guardianship remainedunchanged by the termination of the original guardianship:

“When the guardianship was selected as the permanent plan back on September 24th, this Court retained jurisdiction over the guardianship and would have had jurisdiction over the guardianship until the child reached the age of majority, was emancipated or died.

“When the Court received notification as to the current position of the guardians, the Court would have, ... if a successor guardian was available, the Court could have without resuming jurisdiction appointed successor guardians because the Court continued to have jurisdiction over the guardianship dealing with issues of visitation and the like.

“So each time there's a request made in a dependency guardianship case, [it] doesn't mean the Court reinstates the dependency proceedings and it resets the clock each time; so the Court is allowed to manage the guardianship without triggering the reinstatement of dependency proceedings.

“In this particular case, there were no successor guardians readily available. So the Court had to resume jurisdiction because there were no successor guardians. The permanent plan has been and continues to be guardianship. That has never changed. Successor guardians have now been located, appear to be appropriate from all accounts; no one has said they're not; and the Court is once again affirming that guardianship is the permanent plan and does appoint the successor guardians and adopting the orders and findings as it's relevant to the Court's ruling.”

According to mother, the juvenile court's refusal to hold a contested hearing on whether to...