Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD05858
Bamattre-Manoukian, ACTING P.J.
Joseph T., the father in this dependency proceeding, appeals from orders entered following a post-permanency review hearing in the juvenile court. Appellant contends that the court erred by allowing guardianship to remain in place while simultaneously ordering a planned permanent living arrangement for the child. We find that the court’s order continuing guardianship for the child with temporary placement in a treatment facility was not error and was supported by the record. Accordingly, we will affirm the juvenile court’s orders.
BACKGROUND
The following facts and procedural history are taken from this court’s decision following appellant’s appeal from the orders entered following a post-permanency review hearing held on March 5, 2007. (In re M.T. (Jan. 15, 2008, H031388) [nonpub. opn.].)
On January 2, 2008, we granted father’s request to take judicial notice of this prior appeal. Appellant had also filed several prior appeals in this case, which we will not further discuss.
Appellant’s four children were made dependents of the court on October 14, 1994. At that time, M., the youngest of the four, was three years old. Petitions were sustained which alleged in part that the children had been subjected to unsanitary living conditions, the mother had a history of arrests and convictions for drug related offenses, and appellant had a history of alcohol abuse and related offenses. The children were placed with their maternal grandparents and reunification services were ordered. On February 1, 1995, the children were returned to appellant with services on a trial basis. Nine months later, on November 6, 1995, the children had to be taken into protective custody and were again placed with their maternal grandparents.
In August 1996, the children had to be removed from their grandparents, and they were placed in foster homes. Appellant was granted supervised visitation. On March 3, 1997, the juvenile court terminated services for both parents and ordered long-term foster care for the children. At the time, appellant was serving a one-year jail sentence in Amador County for drunk driving.
M. was removed from her foster home following reports of physical abuse by the foster mother and was placed with paternal relatives. A petition under Welfare and Institutions code section 387 was filed July 30, 1997, alleging that the paternal relatives were no longer willing to care for M. due to her behavior and special needs. M. was placed on an emergency basis at Eastfield Ming Quong (EMQ), and the Department sought to expand placement options for her. The hearing on the petition was held on September 15 and October 16, 1997. Appellant finished serving a jail term just prior to the completion of the hearing. The social worker testified that M. presented difficult challenges to the EMQ staff because of her violently aggressive behavior. Based on her conversations with appellant, the social worker recommended that visitation for appellant start out once per month, supervised, and that it be increased as circumstances warranted, in her discretion. The court adopted the social worker’s recommendations and expanded the placement order as requested to include community care facilities and out-of-county placements.
All further statutory references are to the Welfare and Institutions Code.
After a review hearing on April 8, 1998, the court ordered the Department to facilitate placement of M. in a community care facility, and ordered supervised visits with the parents once a month. On July 30, 1998, M., who was then seven years old, was discharged from EMQ and was placed in a foster home. After a review hearing on September 13, 1999, the court terminated visitation by appellant, finding that it was detrimental to M.’s physical and/or emotional well being, but continued other prior orders.
On August 16, 2000, M. was removed from her foster home and placed at EMQ at the request of the social worker, who reported that M.’s foster placement had failed due to M.’s behavior. M. returned to her foster home on June 18, 2002. On recommendation of M.’s therapist, following a hearing on August 16, 2002, the court ordered all visitation between M. and her birth family discontinued. On July 28, 2003, M.’s foster mother filled an application for de facto parent status, and the court granted the application after a hearing on September 3, 2003.
After a review hearing on October 3, 2003, the court set the matter for a section 366.26 hearing on January 27, 2004. The social worker’s report for the October 3, 2003 hearing had recommended that the permanent plan for M. be changed to a legal guardianship with M.’s foster mother. On January 27, 2004, the court continued the matter to March 29, 2004, as appellant was in custody in Amador County and was not transported for the hearing. Following the continued hearing, at which appellant testified, the juvenile court ordered a plan of legal guardianship for M., who was then almost 13 years old. The formal orders establishing legal guardianship were filed May 4, 2004, and included an order that there be no physical contact or communication of any kind by appellant. The court also set a review hearing pursuant to section 366.3 for September 29, 2004.
The social worker’s report for the September 29, 2004 review hearing recommended that M. continue to reside with her guardian with “wraparound” services. Appellant was not present for the September 29, 2004 hearing but was represented by counsel. Appellant was incarcerated at Soledad State Prison with a scheduled release date in the summer of 2005. His counsel requested that the no-contact order be amended to authorize letter contact. The court stated that it found nothing in the social worker’s report to support the request, and made the findings and orders recommended in the report.
A section 387 petition was filed June 15, 2005. M. was placed on a section 5150 hold on May 3, 2005, was released to respite care on May 13, 2005, and was placed into protective custody by the supervising social worker on June 13, 2005, at the request of her guardian due to M.’s behavior. Because of the failed placements, the Department was seeking to expand placement options for M. to include a higher level care facility “in order to adequately meet [M.’s] needs.” The social worker’s report for the hearing stated that M. was placed at Rebekah Children’s Services (RCS) on July 7, 2005, but ran away on July 14, 2005, for a short period of time, then ray away again on August 8, 2005, and was gone for four days. M.’s guardian maintained regular contact with M., the RCS staff, and the social worker, and showed her desire to have M. returned to her. Appellant had recently been released from prison and stated that he would like to have the opportunity for visitation with M. in the future. The social worker recommended that M. continue in her placement in the community care facility and that her guardian receive services.
The hearing on the petition was held on August 22, 2005, and the guardian submitted the matter on the petition and report. The court found that M. was “suffering severe emotional damage as indicated by extreme anxiety, depression, withdrawal or untoward aggressive behavior toward self or others, and there [were] no reasonable means by which [her] emotional health may be protected without removing [her] from the physical custody of . . . her . . . guardian.” Therefore, the court continued M. “under the care, custody and control of the Department” with placement in a community care facility, and with services to M.’s guardian. One of M.’s siblings was allowed supervised visits a minimum of once a month, but there was to be no communication of any kind between M. and appellant and M.’s other siblings. The next review hearing was set for February 21, 2006.
The social worker’s report for the February 21, 2006 hearing stated that M. was at RCS being provided mental health treatment and support. The guardian and M. “visit on a regular basis and [the guardian] is involved in [M.’s] treatment at RCS.” For several months, M. was spending every weekend with her guardian and she had extended visits over the Thanksgiving and Christmas holidays. All visits were suspended following the Christmas visit, but weekend visits were scheduled to resume as of February 4, 2006. The guardian had stated “her strong desire” to have M. returned to her care within six months. Appellant had requested written correspondence with M., and the guardian and M.’s therapist agreed that it “would be appropriate at this time.” The social worker recommended that M. continue in the community care facility with the hope that “she will be able to transition home to the care of her [guardian] within the next six months.”
On February 21, 2006, the court continued the matter at the request of counsel for M. At the continued hearing on March 6, 2006, the Department submitted the matter on the social worker’s report and recommendation to continue the guardianship, counsel for the guardian also submitted the matter, and appellant’s counsel stated, “I have no comments.” Counsel for M. stated that M. was enjoying spending almost every weekend with her guardian, that M. very much wanted to return to the guardian by the summer, and that M. was very motivated to do what needed to be done to accomplish that. The court continued all previous orders, with the exception of allowing written communication between appellant and M., and set the next review hearing for September 5, 2006.
The social worker’s report for the September 5, 2006 hearing stated that M. successfully completed the residential treatment program at RCS and was placed in a group home on August 18, 2006. Appellant began writing M. immediately after the previous hearing and M. has been writing back. M. and her guardian were having home visits every other weekend; the guardian has been consistently involved in M.’s treatment, including participating in family therapy with M.; and the guardian continues to express interest in having M. returned to her care. The social worker recommended continued legal guardianship with placement at the community care facility and with the hope that M. would be ready to return to the care of her guardian within the following six to 12 months.
Appellant was not present at the September 5, 2006 hearing, but M. and her guardian were present and all were represented by counsel. The Department asked that the prior contact order regarding appellant continue, and counsel for appellant stated “Submitted, Your Honor,” when the court asked, “any comments?” Counsel for M. reported M.’s progress and requests for continued services. After asking about visits and therapy with the guardian, the court stated: “Okay. [¶] I’m satisfied with the way things are right now, and I’m hoping that they’ll get better and [M.] will end up being able to go live with her mom/guardian. [¶] I’m adopting the recommendations. And we’ll set a review in six months.”
The social worker’s report for the scheduled March 5, 2007 hearing stated that M. was placed in a different group home on November 27, 2006, after being discharged from her prior placement due to her behavior. Although M. has run away for about one hour a few times from the group home, she has stated that she did not want to be removed from it. M. and appellant have continued their correspondence. Appellant expressed support of M.’s “relationship with her legal guardian and has consistently stated . . . that he wants [M.] to be able to return to her care.” M. and her guardian continued to have home visits every other weekend, and M. spent two weeks over the Christmas holiday with her guardia N.M. receives “wraparound” services through EMQ, which helps with the transition from her guardian’s home to her group home. The social worker recommended continued legal guardianship for M. with placement in a community care facility, and with the hope that M. would be ready to return to her guardian’s care within six months.
Neither appellant nor M. were present at the March 5, 2007 hearing, but both were represented by counsel. Counsel for the Department stated that, in the written recommendations, “both the guardianship box and the planned permanent living arrangement box are checked because there is a legal guardian although [M.] is currently residing in a long-term planned permanent living arrangement.” Counsel for appellant stated that appellant wished to have visits with M. Counsel for M. stated that M. enjoys her correspondence with appellant and that she would like to have a phone call with him on her 16th birthday. The court stated that it would let the social worker make that decision, it otherwise adopted the social worker’s recommendations, and it set another review hearing for September 5, 2007.
Appellant filed a timely notice of appeal from the court’s March 5, 2007 findings and orders. He contended on appeal that the juvenile court’s orders were invalid and had to be reversed because the court-ordered continuation of two permanent plans for the child lacked a statutory basis. He also contended that the court failed to consider M.’s relationship with her adult siblings. This court found that the juvenile court’s order continuing guardianship for M. with temporary placement in a treatment facility was not invalid and was supported by the record. We further found that appellant had no standing to raise an issue related to M.’s right to visit her adult siblings. Accordingly, we affirmed the juvenile court’s orders. (In re M.T., supra, H031388.)
On April 30, 2007, the juvenile court granted the social worker’s application for a protective custody warrant for M., as M. had run away from her group home on April 25, 2007, and was still on the run. (§ 340.) Although M. had run away from the group home on numerous prior occasions, she usually returned within hours or the next day.
The social worker’s report for the scheduled September 5, 2007 hearing stated that on May 4, 2007, one of M.’s sisters, who was also a dependent child of the court and who had denied having any contact with M., dropped M. off at the county children’s shelter. M. reported that she had spent time with that sister and with her mother at her mother’s home while she was on the run, and that she had also spoken to appellant and to another sister by phone. Appellant was living with this sister in Fallon, Nevada, and both appellant and this sister encouraged M. to return from the run.
The social worker further reported that, on May 8, 2007, M. was placed on a section 5150 hold due to aggressive, assaultive, and unsafe behaviors. She remained on a psychiatric hold for three weeks because she remained defiant and physically aggressive and she refused to take medication. She was placed in an out-of-county residential facility immediately upon discharge from the hospital on May 29, 2007, and remained verbally and physically abusive and assaultive toward staff and peers. Her guardian remained in close contact with M. and remained consistently involved in her treatment during this time.
On July 20, 2007, M., who was then 16 years old, participated in an Emancipation Conference. On July 26, 2007, M.’s therapist gave M. permission to call appellant during her weekly therapy session, and the conversation that occurred was very positive. Appellant was supportive of M.’s program and encouraged her to have better behavior. On August 1, 2007, M. called the social worker and stated that she planned to “ ‘start being good’ ” because she wanted to earn home visits with her guardian. Since that time, M. showed safe behavior in placement, in school, and in the community. M. was also participating in weekly Independent Living Plan Services.
Because written correspondence and telephone conversations between M. and appellant have always been positive and encouraging, the social worker recommended that appellant and M.’s sister who lives with appellant be granted monthly, supervised visitation with M. The social worker was working with the guardian and M.’s placement to increase their visitation opportunities, and was hopeful that M. and her guardian would be able to have visits most weekends. M.’s guardian continues to state her strong desire to have M. return to her care, and demonstrates her willingness to work with placement services in order to successfully transition M. home, but M.’s behavioral and emotional needs continue to warrant the need for a more structured environment. Therefore, the social worker recommended that the permanent plan of legal guardianship continue with placement in a community care facility and with the hope that M. would be ready to return to her guardian’s care within the next year.
Neither appellant nor M. were present at the September 5, 2007 hearing, but all parties were represented by counsel. The Department submitted the matter on the social worker’s report and asked the court to order visitation as recommended. Counsel for M. stated that M. wished to increase visits with her guardian, wished to have visits with appellant and the sister who lives with him, and wished to know the whereabouts of her brother. “And finally she would just like everyone to know that she really loves [her guardian]. And she wants to be with her more than anyone else.”
Counsel for appellant stated that appellant agreed with the social worker’s recommendations as to his visits. Counsel then stated: “[Appellant] would like to state an objection to the orders that are being put into place today and were put into place before which he has an objection to two permanent plans being put into place at the same time. That is how he’s viewing what is happening in court in terms of a planned permanent living arrangement with the legal guardianship staying intact.” The court asked counsel: “Now if he objects to two permanent plans at the same time, what does he believe the permanent plan should be?” Counsel responded: “I’m unsure about where he thinks – based on what has happened – where he thinks it should be. But he does not believe it’s proper to have two permanent plans at once.”
Counsel also stated that appellant was asking for a finding that he was M.’s presumed father, as no such finding had ever been made. As there was no objection to the request, the court granted it.
The court responded: “Okay. [¶] Well, this child was in a legal guardianship that was established by the dependency system. She was unable to remain living with the legal guardian and so she was removed from the home of the legal guardian. [¶] But it was no one’s intention or desire to terminate the legal guardianship. So the legal guardianship continued and [M.] was placed in residential treatment at that time in a community care facility. [¶] And so the permanent plan is for legal guardianship, planned permanent living arrangement in the home of the legal guardian[] with the child receiving the services that she needs in a community care facility in order to maintain that legal guardianship and with the hopes that she will at some point return to the home of the legal guardian. [¶] I believe that when this case came to disposition from the removal from the home of the legal guardian it was an unusual situation. Because usually when that happens we terminate the legal guardianship. [¶] But in this case there was no desire to do that. But there was a case that said that it is not proper to order reunification services for a legal guardian who is established through dependency that was simply a permanent plan that was established through dependency. So this seemed to be the way to handle the circumstance. [¶] So unless the father has some direction for me in terms of what ought to be the appropriate orders, simply objecting to two permanent plans without suggesting a solution is not helpful. [¶] So I’m going to make the findings and orders as recommended.” The court then set the next section 366.3 review hearing for February 26, 2008.
Appellant filed a timely notice of appeal from the juvenile court’s findings and orders.
DISCUSSION
The September 5, 2007 hearing was a post-permanency plan review hearing under section 366.3, which provides for a review of the child’s status every six months. (§ 366.3, subds. (a), (d) & (e).) At the review hearings the court is to determine the continuing necessity for and appropriateness of the child’s placement, the continuing appropriateness and extent of compliance with the permanent plan for the child, the extent of the agency’s compliance with the plan, the adequacy of services to the child, and, for a child who is 16 years of age or older, the services needed to assist the child to make the transition to independent living. (§ 366.3, subds. (e)(1), (3), (4), (6) & (10).)
A parent whose parental rights have not been terminated is entitled to receive notice of and to participate in the review hearings. (§ 366.3, subd. (e)(10).) Thus, a parent can challenge the agency’s proposals and proposed court modifications. (In re Kelly D. (2000) 82 Cal.App.4th 433, 438; see also, In re Josiah S. (2002) 102 Cal.App.4th 403, 416-417.) However, “[i]t shall be presumed that continued care is in the best interests of the child, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child.” (§ 366.3, subd. (e)(10); In re Marilyn H. (1993) 5 Cal.4th 295, 310.) This is because the post-permanency review procedure allows the child permanency and the agency the opportunity to provide the child with services, rather than constantly relitigating the necessity of continuing the child’s permanent plan. (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1145; In re Heather P. (1989) 209 Cal.App.3d 886, 890.)
The juvenile court’s orders following a review hearing are reviewed for abuse of discretion. “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; see also, In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) We may not disturb the juvenile court’s decision unless the court “ ‘ “has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].” ’ [Citations.]” (In re Stephanie M., supra, at p. 318.)
In the case before us, the juvenile court ordered that the permanent plan of guardianship continue, with placement of M. in a community care facility, and with the hope that M. would be ready to return to her guardian’s care within a year. Appellant contends that the court ordered that the guardianship continue and simultaneously ordered a planned permanent living arrangement for the child with placement in a community care facility. He argues, as he did in his appeal from the March 5, 2007 findings and orders, that “coexisting permanent plans are not authorized or sanctioned anywhere in the statutory scheme for dependent minors. Accordingly, the trial court acted in excess of its jurisdiction in making these orders and thus the orders are not valid and must be reversed.” We disagree with defendant’s contention.
Prior to terminating a legal guardianship ordered as a child’s permanent plan, the juvenile court must order the social worker to prepare a report which includes “an evaluation of whether the child could safely remain in, or be returned to, the legal guardian’s home, without terminating the legal guardianship, if services were provided to the child or legal guardian.” (§ 366.3, subd. (b).) The social worker’s report must also “identify recommended family maintenance or reunification services to maintain the legal guardianship and set forth a plan for providing those services.” (Ibid.) Rather than terminating a legal guardianship, the court may “request the county welfare department to provide services to the guardian and the ward for the purpose of maintaining the guardianship . . . .” (Cal. Rules of Court, rule 5.740(c)(3)(B).)
“[W]here a guardianship has been created by the juvenile court in a dependency hearing, the legal guardian is not entitled to reunification services and no finding that adequate services were provided need be made prior to termination. [Citation.] Even so, the Legislature intended that the juvenile court at least consider whether services are available to ameliorate the need for modification of the permanent plan. [Citation.] This is consistent with the overall intent of the dependency scheme, which is to protect children from abuse or neglect and provide permanent, stable homes if those children cannot be returned home within a set period of time. [Citation.] The statutory scheme identifies the legislative preference for providing permanent and stable homes—adoption, guardianship, and long-term foster care. Further, the statute establishes a presumption favoring guardianship over long-term foster care (§ 366.26, subd. (c)(4)) because guardianship is recognized as a more stable placement. [Citation.]” (In re Jessica C. (2007) 151 Cal.App.4th 474, 483 (Jessica C.); see also, In re Carlos E. (2005) 129 Cal.App.4th 1408, 1417-1419.)
“Unquestionably, the juvenile court is in the best position to decide the means most likely to lead to stability and permanency in [a child’s life]; however, it can do so only when it has sufficient information. The Legislature has recognized that if the juvenile court’s initial choice for a permanent plan of guardianship fails to serve a child’s best interests, before moving to a less stable placement, the court should consider whether there is a way to preserve the guardianship. Doing so includes providing services to the legal guardian if necessary. Section 366.3 requires that this information be given to and considered by the juvenile court and, by implication, authorizes that identified services be provided if they are likely to prevent termination of the guardianship. (See also § 301 [authority for providing all available child welfare services].)” (Jessica C., supra, 151 Cal.App.4th at p. 484.)
In the case before us, the social worker recommended that guardianship continue, but that M. be temporarily placed in a community care facility in order to meet her therapeutic needs. It was hoped that M. would be able to return to her guardian’s care within a year. Section 366.3 authorizes that services be provided M. and her guardian in order that the child may be returned to the guardian’s home, and in order that the guardianship not have to be terminated, and the juvenile court did not exceed its jurisdiction in making the orders it did. (Jessica C., supra, 151 Cal.App.4th at p. 484.)
Appellant cites In re Carrie W. (2003) 110 Cal.App.4th 746 (Carrie W.), in support of his position, arguing that Carrie W. is a case with facts almost identical to those in this case. In Carrie W., reunification services were terminated for the parents of four children and the juvenile court established legal guardianship as the permanent plan for the children. Their grandmother was appointed as their legal guardian, and the children remained dependent children of the court. (Id. at p. 749.) After a number of years, in August 2000, the oldest child was transferred to a higher level of care outside the grandmother’s home but guardianship continued as to all four children. In October 2000, following a hearing on a supplemental petition, the three youngest children were removed from the grandmother’s custody and placed in a foster home. The grandmother was granted services and visitation. In August 2001, following a review hearing, the next-to-the-youngest child was returned to the grandmother and reunification services were continued for the other three. (Id. at p. 750.) In November 2002, the court held three hearings seriatim: a family maintenance review for the next-to-the-youngest child; a section 366.26 hearing for the oldest two children; and a section 366.22 permanency review hearing for the youngest child. (Id. at pp. 752-753.) The court ordered continued family maintenance as to the next-to-the-youngest child, but set aside the guardianship and ordered a permanent plan of “ ‘planned permanent living arrangement’ ” (id. at p. 753) as to the youngest child and long-term foster care for the two oldest children. (Id. at p. 752.) The grandmother appealed from the order terminating her guardianship, and the appellate court found it had to “determine if the law prohibits the coexistence of a guardianship and long-term foster care.” (Id. at p. 757.) The court decided that the law did prohibit the coexistence of a guardianship and long-term foster care.
“The statutes are clear that you cannot have two long-term permanent plans. . . . Thus long-term plans of long-term foster care and legal guardianship established in dependency proceedings cannot coexist. The guardianship here is purely a creature of dependency and was created as part of a long-term plan. Dependency was never dismissed, so the guardianship did not have a life of its own outside of dependency. We find no statutes allowing the continuance of a guardianship existing only as part of a long-term plan concurrent with long-term foster care, and grandmother has not provided any convincing authority to show otherwise.” (Carrie W., supra, 110 Cal.App.4th at p. 760.)
In the case before use, the permanent plan for M. is, and continues to be, guardianship. Unlike the juvenile court’s orders at issue in Carrie W., the orders at issue here were made following a section 366.3 review hearing, and there was no attempt to adopt a new permanent plan for M. However, M. currently needs therapeutic services beyond what her guardian can provide. Thus, she has been temporarily removed from her guardian’s home and placed in a series of group homes. None of the group-home placements was intended to be long-term, or anything more than temporary, and the social worker and M.’s guardian continue to hope that M. can soon be returned to her guardian’s care. Carrie W. is distinguishable because none of the three children in that case who were not returned to the grandmother before the November 2002 hearing were ever expected to return to her care. And here, during M.’s temporary placements, M.’s guardian has continued to be her long-term caregiver. M.’s guardian remains in contact with M. and with all of M.’s service providers and participates in her therapy. There was an expectation that the guardian would have visits almost every weekend, and the guardian was working with the social worker and M.’s other service providers in order to help M. transition back into the guardian’s home. Thus, contrary to appellant’s contention, the juvenile court’s orders continuing M.’s guardianship with placement in a community care facility do not constitute orders for two simultaneous long-term placements such as the grandmother in Carrie W. was advocating.
Due to our determination that the trial court’s orders were valid and supported by the record, we do not need to address the Department’s contention that although appellant has standing to appeal, he is not aggrieved by the juvenile court’s orders.
DISPOSITION
The September 5, 2007 orders are affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.