Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK02172, Marilyn Mackel, Juvenile Court Referee.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
In this consolidation of the 14th and 15th proceeding before this court, Anne S. appeals from the order of the juvenile court that limited her visits with dependent children, Luis S. (age 12) and Kerrie S. (age 10), who have been in a legal guardianship with their paternal grandmother since May 2007. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. History of this case prior to the events that are the subject of this appeal
The following relevant factual background information is derived from previous opinions in this case (B198749; B205586; B189816; B210462; B213822). The juvenile court declared the children dependents under Welfare and Institutions Code section 300, subdivision (b), and removed them from Anne’s custody. This dependency arose because of the state of Anne’s mental health, which “affect[ed] her judgment and ability to properly care for and supervise her children.” As a result of these mental health issues, Anne made inappropriate decisions for the children and false allegations and accusations about people close to the children. Anne was agitated, confrontational, and uncooperative in front of the children. She was argumentative, violated the court’s visitation orders, undermined and demeaned the children’s relationships with their grandmother, and was unable to conform to the conditions of her visits. The juvenile court terminated reunification services because Anne made questionable progress in therapy and her visits ran the gamut from monitored to liberalized and back to supervised. The court concluded that the children would be at risk if returned to Anne’s care because of her inability to recognize the fact that her numerous false allegations about the children’s caretakers, her persistent need for therapy, her instability, distortion, and lack of impulse control, put the children at risk.
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
In May 2007, the court appointed the children’s paternal grandmother, H. D., as their legal guardian. Since then, Anne has filed a series of motions for modification pursuant to section 388 seeking return of the children to her or alternatively, additional visitation (B198749; B205586; B213822).
Most recently, in February 2009, the legal guardian filed a section 388 petition seeking to modify the juvenile court’s visitation order. The guardian also sought a restraining order against Anne because, she alleged, Anne made threatening remarks to the guardian who has become fearful for her safety. The section 388 petition requested termination of the juvenile court’s jurisdiction and asked that Anne’s visits with the children occur in a therapeutic setting. This change would be in the children’s best interest, the guardian explained, because it would “ameliorate Luis’s and Kerrie’s fear of their mother’s attempt[s] to remove them from the legal guardian by having the legal guardian arrested. The mother also yells at the children for no apparent reason and calls the legal guardian inappropriate names in front of the children.” Attached to the guardian’s petition was a statement that Anne had violated court orders by discussing the case with the children and making disparaging remarks to the children about their relatives. Despite the court’s November 2007 order that Anne call the house once a day, between 4:00 and 5:00 p.m., she “will call the home incessantly at anytime, day or night.” In December 2008, after Kerrie told Anne that she scraped her knee, Anne announced that she was going to have the guardian arrested and the children removed from the guardian’s care. Anne called the police and an ambulance to the house. When the children told their mother that they did not want to visit her for Christmas, she threatened to give away their presents. The guardian also asserted that Anne has made the children cry by denigrating the guardian and the children have stated that visits with Anne cause them “great anxiety due to their fear that they will be removed from the only stable home they know.” The court scheduled a hearing on this section 388 petition.
In a last minute information for the juvenile court, filed in February 2009, the social worker confirmed the allegations in the guardian’s petition and added that Anne (1) has caused commotions at the police station where visit exchanges take place; (2) called the Fire Department on the guardian falsely alleging Kerrie was bleeding; (3) called the police alleging that the children were in danger. The children were reluctant to say anything “bad about mother” fearing that Anne would become angry at them and turn that anger on the guardian.
At the March 6, 2009 contested hearing on the guardian’s section 388 petition, Kerrie confirmed the allegations in the petition and testified further that Anne’s derogatory comments have gotten worse. Anne pokes and yells at the guardian and her friends making Kerrie mad and scared that the guardian would be arrested. Kerrie loves Anne, but Anne’s conduct makes Kerrie cry. Kerrie would like the case closed because going to court causes her to miss a lot of school. Yet, she would like the court to make Anne stop calling the guardian names and threatening her. Kerrie would like a monitor to keep Anne from making disparaging remarks and so Kerrie could talk to someone when the visits distress her. Kerrie does not feel comfortable talking about these things around Anne.
Luis also confirmed the allegations in the petition and testified that sometimes he does not want to visit Anne and has told her so. Her comments make him uncomfortable and “very unhappy.” Given the choice, he would prefer that visits be monitored because he gets uncomfortable when Anne is agitated and he would be sad if he were precluded from seeing Anne. He loves Anne. The time Anne called the police and ambulance after Kerrie’s fall, Luis thought he was going to a foster home when the police officer appeared at the door. He is afraid to go to a foster home. Things have gotten worse over time. Luis would like someone from the court to monitor his visits with Anne.
After the hearing, the court found that Anne continues to have personality issues that she cannot control and continues to act in a very inappropriate manner that is harmful to the children. The court observed that the children should not have to tell their mother to stop yelling at a police officer. Children should not have to face such anxiety. The court noted that its high level of involvement in visitation was unusual for a guardianship, but it had assumed the responsibility in an effort to help mother to control her impulsivity. Finding that visits as arranged were detrimental to the children, and that these visitation problems have been ongoing for years and must stop, the court granted the section 388 petition. It ordered that Anne’s visits be appropriately monitored and occur on a weekend day only, with no overnight hours, every other weekend. The court ordered that the Department tell the monitor that Anne may not be left alone with the children under any circumstances, that Anne must control herself, and may not talk to the children about the paternal relatives. The court then warned Anne, “I want to make it perfectly clear to the mother that she is going to get herself under control or we are going to cease these visits.”
The visitation was clarified on April 1, 2009, by a stipulation that visits would occur on Saturdays from 9:00 a.m. to 5:00 p.m. and monitored by an approved monitor.
2. The ruling made at the section 366.3 hearing on May 27, 2009
On May 27, 2009, the social worker filed a last minute information reporting to the court that, after the most recent visit with Anne on May 15, 2009, the children called the social worker to report they did not want to visit mother on May 16, 2009. Kerrie stated, while she and her brother did not mind visiting mother, that they did not want to do so every weekend because they had other plans. Luis and Kerrie also reported that on the way back to the police station to return the children to their guardian, the visitation monitor, a friend of Anne’s, stated: “ ‘Your mom should be the one to take care of you’ and ‘your grandparents are too old to be taking care of you.’ ” The social worker planned to talk to the monitor and remind her not to make comments about relatives.
In its status review report of May 27, 2009, the Department indicated that the children continued to thrive in the guardian’s care where they were happy. The guardian was meeting all of their needs. Luis did not want to have overnight visits with mother, and only wanted to visit her on Sundays. Kerrie wanted to visit some days but not others. On May 2, 2009, Kerrie feigned illness in the middle of her eight-hour visit because she did not want to visit Anne at the park for eight hours. They had a make-up visit on May 9, 2009. In its assessment and evaluation of the case, the Department summarized that the children were doing well with their legal guardian. They did not want to deal with the juvenile court and no longer wanted the Department involved in their lives. In the Department’s view, the guardian was very cooperative. The children’s counselor opined that they were not at risk for abuse or neglect with the guardian. The counselor found the guardian to be nurturing. Hence, the Department held a Team Decision Making Meeting to discuss the possibility of closing the case. The guardian agreed. Accordingly, the Department recommended that the court terminate jurisdiction.
The issue at the section 366.3 review hearing on May 27, 2009, was initially the Department’s recommendation to terminate juvenile court jurisdiction with a Kingap in place. However, the guardian announced that she preferred the court maintain jurisdiction to supervise and insure the children’s safety. The court ruled that it would maintain supervision with the result the hearing became a review of the permanent plan. (§ 366.3.)
Kingap is the acronym for the Kinship Guardianship Assistance Payment Program.
Thereafter, the court stated, “[b]ased upon today’s information... that mother’s visits are one time a month on a Sunday monitored from 10:00 a.m. until 1:00 p.m. and the pick up and drop off is to remain in the police station in north Hollywood.” Anne’s attorney requested the court not change the visitation. The children’s attorney suggested that visits occur once a month, which is the Department’s policy in guardianships, because the children did not want to see Anne every weekend. The court responded that it had heard the children’s wishes and seen them expressed in the last minute information for the court. Given the length of this guardianship, the inability to assure that the children would not be subjected to communications that make them sad, and Anne’s persistence in making unfortunate comments despite repeated admonitions, the court ruled that “a gradual reduction rather than abrupt reduction” in visitation was required. The court ordered that the reduction in visits to once per month occur gradually.
The court continued the matter to November 4, 2009. Anne’s two most recent appeals followed. We consolidated the two appeals.
CONTENTIONS
Anne contends the juvenile court’s order reducing her visitation violated her due process rights and was an abuse of discretion.
The Department has notified this court that it takes no position on the issues raised in this appeal. The children’s counsel did not file a brief.
DISCUSSION
Citing In re Lance V. (2001) 90 Cal.App.4th 668, Anne contends that the juvenile court could not modify its previous visitation order without a section 388 petition before it. Where no such petition was before the court in May 2009 when the court ordered Anne’s visitation reduced, she argues the court violated her right to notice and an opportunity to be heard.
Throughout a dependency, interested parties may petition the juvenile court for modification of its prior orders pursuant to section 388. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; Cal. Rules of Court, rule 5.570.) A section 388 modification petition is an appropriate vehicle to “extend or limit the right to visitation or to terminate visitation altogether.” (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.)
In In re Lance V., supra, 90 Cal.App.4th 668, the juvenile court issued a disposition order awarding the noncustodial mother reasonable, supervised visits. (Id. at p. 671.) The mother requested mediation to resolve visit-related issues. Mediation failed. At the subsequent hearing, the court reduced the mother’s visitation, and when the mother’s attorney began to protest, the court stated: “ ‘I have made my decision. That’s it.’ ” (Id. at p. 673.) The appellate court reversed the visitation order on the ground that in changing the visitation order without having before it a petition for modification pursuant to section 388, the juvenile court deprived the mother of the procedural safeguards provided by section 388. (In re Lance V., supra, at pp. 676-677.) The court found “nothing in the code or in the legislative history that provides for a special hearing authorizing a change in orders following an unsuccessful mediation. Contrary to respondent’s argument, mother did not seek to alter the previous visitation orders; she sought a voluntary resolution of difficulties that were occurring with visitation as ordered.” (Id. at p. 675.)
Likewise, here, the May 2009 hearing appealed from was held under section 366.3. There is nothing in sections 366.3, or 366 concerning periodic status reviews in general, that would put Anne on notice that visitation was at issue on May 27, 2009. No one, least of all Anne, sought to alter the standing visitation orders in advance of the May 27, 2009 hearing. Neither the Department’s status review report for the hearing nor its Last Minute Information recommended any change to the frequency of visits. Anne’s only comment on the subject at the May 2009 hearing was her request that the visitation order remain unchanged. Thus, a change in visitation was not the subject of the hearing on May 27, 2009.
Not only did Anne have no notice that the visitation orders might be changed, but the court made its decision without allowing Anne an opportunity to be heard. In March 2009, the court warned Anne in no uncertain terms that it would put a stop to visits if Anne did not cease her inappropriate remarks about relatives and inhibit her disruptive behavior. Yet, no evidence was presented at the May 27, 2009 section 366.3 hearing that Anne had failed to control herself in front of the children since March 2009. Anne’s diatribe in court was not about relatives and was not aimed at the children. Although the court stated it had read the filings, there was nothing in the Department’s status review report or Last Minute Information filed after March 2009 reflecting that Anne had violated the court’s orders such as would trigger the reduction in visitation pursuant to the court’s earlier warning. The only inappropriate remark in those documents was made by the monitor. Otherwise, those filings only reflect the children’s comments that they did not want to visit with Anne every week. But, the standing order was for alternating Saturdays, not every week. Also, the children’s wishes alone are an insufficient basis for reducing visitation. (Cf. In re S.H. (2003) 111 Cal.App.4th 310, 319 [“In no event... may the child’s wishes be the sole factor in determining whether any visitation takes place, either as a formal matter or, as occurred in the case now before us, by effectively giving the children the power to veto all visits.”].) Therefore, Anne’s “due process rights to notice and an opportunity to be heard were clearly compromised when the court modified the existing order without holding a properly noticed hearing on the merits.” (In re Lance V., supra, 90 Cal.App.4th at p. 677.)
We conclude that it is prudent to reverse the visitation order and remand the issue of visitation to the juvenile court for further consideration. “We recognize, however, that more than a year has transpired since this visitation order was made and that circumstances may have changed in the interim. On remand, the juvenile court should consider... current circumstances in crafting any new visitation order.” (In re Shawna M. (1993) 19 Cal.App.4th 1686, 1691.)
DISPOSITION
The order is reversed and remanded to the juvenile court for further proceedings consistent with this opinion.
We concur: KLEIN, P. J., CROSKEY, J.