IN RE: NINA P.

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Court of Appeal, First District, Division 2, California.

IN RE: NINA P., a Person Coming Under the Juvenile Court Law. DEPARTMENT OF SOCIAL SERVICES OF DEL NORTE COUNTY, Plaintiff and Respondent, v. LAURA C., Defendant and Appellant.

No. A059449.

Decided: March 08, 1994

Frank Peterson, Crescent City, for plaintiff & respondent Del Norte County Dept. of Social Services. Mat Zwerling, San Francisco, Enid E. Baggett, San Rafael, for defendant & appellant Laura C.

Appellant Laura C. appeals a juvenile court order establishing a legal guardianship for her daughter Nina P.   She asserts (1) the court erred in changing the permanent plan from long-term foster care to guardianship without the filing of a petition for modification;  (2) there was no new evidence or changed circumstances warranting a change in the permanent plan;  and (3) the court erred in refusing to have the child testify to ascertain her wishes.   Rejecting these contentions, we shall affirm the order.

STATEMENT OF THE CASE AND FACTS

The minor, Nina P., was born on December 11, 1983, to appellant and Patrick W.   Nina lived with her mother;  when her mother married Matt C., he moved in with them.   On December 4, 1990, a petition was filed pursuant to Welfare and Institutions Code section 300, subdivision (a) 1 alleging Nina was in need of protection.   Specifically, the petition alleged that Nina's stepfather had picked her up to his eye level and then dropped her to the ground and kicked her in the leg.   Nina was placed in the home of her maternal grandmother, Connie P., where she remained.

A contested jurisdictional hearing was held on January 3, 1991.   The court found the allegations of the petition to be true, and ordered Nina to remain in foster care.   The court further ordered that Nina's stepfather have no contact with the child during her visits with appellant.

At the dispositional hearing, held January 18, 1991, appellant's attorney requested that appellant be permitted unsupervised visits with Nina.   Nina's counsel opposed this request and stated that supervised visits should continue as Nina was “very fearful.”   The court continued the supervised visitation pending appellant's completion of a parenting class.

On May 7, 1991, the social worker filed a six-month review of the family reunification efforts and recommended that Nina be continued in her foster care placement.   On May 10 appellant's attorney objected to the social worker's proposal and asked that a contested hearing be held.   At hearings held on June 6 and 7 the court heard testimony from appellant and her new husband, Mr. C., and ordered that Nina remain in her foster home placement.   The court also set a permanency plan hearing for November 8, 1991.   After that hearing the court determined Nina should be continued in a permanent plan of long term foster care.

On April 17 the court conducted a hearing concerning Mr. C.'s visitation rights at the request of Nina's attorney, Thomas Gerin.   After receiving evidence that Nina had been having nightmares around the time of her visits with her stepfather (two of which included suicidal thoughts) the court terminated all visitation between Nina and Mr. C. pending the May 1 permanency planning hearing.

On April 22, Ms. Buzzini filed a report that, for the first time, recommended that Connie P. seek guardianship of Nina.   The report stated that Nina was bonded with her grandmother and very devoted to her uncle, who lives with them.   In the four months prior to this report appellant had visited Nina only twice, at the office of respondent, Department of Social Services (DSS).   Ms. Buzzini reported that Nina and her mother did not appear bonded;  that Nina said she did not wish to return home and did not want to visit her stepfather;  that Nina found it difficult to make the decision to refuse reunification and would benefit from a final resolution of this matter.   At the May 1 hearing the court relied on this report in concluding Nina needed “a rest from her stepfather.”   The court ordered there be no contact between Nina and Mr. C. pending the next hearing when, the court stated, “Connie P. will seek guardianship of Nina.”

On August 28 the court heard testimony from appellant, Matt C. and Connie P.   Appellant testified she was concerned about Nina staying with her mother because Ms. P. has high blood pressure and the beginning of cataracts.   Matt C. denied he committed the acts that led to the initial declaration of the dependency and said he wanted Nina to come home.

Connie P. described Nina's nightmares and stomach problems, which she ascribed to the stress of this case.   She stated that she was aware of the duties of a guardian and believed she could be a good guardian for Nina.

Based on the evidence presented the court ordered that the permanent plan be changed from long-term foster care to a permanent plan of guardianship.   Appellant was allowed continued visitation, but Mr. C. was denied any contact with Nina.

A timely notice of appeal was filed on October 22, 1992.

DISCUSSION

I.

Appellant first contends the court erred in ordering a change from long-term foster care to guardianship without the filing of a petition for modification under section 388.   Section 388 provides, in pertinent part, that “Any parent or other person having an interest in a child who is a dependent child of the juvenile court ․ 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․”   According to this statute, the petition must be verified and must set forth “in concise language” the factors supporting a modification of the court's existing order.   In this case, no petition for modification was filed;  the request for a modification was made solely in the written reviews prepared by the social worker, Ms. Buzzini.

In support of her argument appellant relies primarily on In re Elaine E. (1990) 221 Cal.App.3d 809, 270 Cal.Rptr. 489.   In that case the father of a dependent child argued the court had improperly precluded him from offering evidence of changed circumstances to support his request for unsupervised visitation.  (Id., at p. 814, 270 Cal.Rptr. 489.)   The reviewing court concluded the trial court had acted properly because “[w]here, as here, the noncustodial parent seeks modification of an existing order, he must comply with the specific requirements of section 388․   Without the requisite proof of changed circumstances the trial court properly rejected [the father's] request to modify the existing visitation order.”  (Id., at p. 815, 270 Cal.Rptr. 489.)   Based on this conclusion, appellant argues an existing juvenile court order may not be altered unless the moving party has complied with the procedural requirements of section 388.

We do not think Elaine E. stands for the proposition that an existing order may never be changed unless a petition for modification is filed.  Elaine E. simply holds that a noncustodial parent seeking modification must comply with section 388;  it does not address the question of whether a social worker, who has continuing contact through periodic reviews, may use a social study report to request a modification.   As we shall explain, our examination of the applicable statutes convinces us the procedure used here was consistent with the statutory scheme and otherwise proper.

On January 9, the juvenile court held the so-called “permanency planning hearing” prescribed by section 366.26.   At that hearing, the juvenile court ordered “a permanent plan of long term foster care.”   The statutory authorization for this permanent plan is found in subdivision (b)(4) of section 366.26, which authorizes a court to “[o]rder that the minor be placed in long-term foster care, subject to the regular review of the juvenile court.”  (Emphasis added.)   This periodic review is, in turn, governed by two statutes (§§ 366.3, subd. (c), and 16503) and by a rule of court (rule 1465(b)).2  (§ 366, subd. (b).)

Like many other statutes relating to the dependency process, these provisions are less complex than they initially appear.   One commentator has accurately summarized the periodic review process as follows:  “[T]he status of the minor must be reviewed every six months.   The review may be conducted by the court or an appropriate local agency.   On the request of the minor's parents or guardian or of the minor, the court must conduct the review.

“No less frequently than once every 18 months, the court must conduct a review of the previously ordered permanent plan to consider whether the plan continues to be appropriate for the child.   The 18-month review may be combined with the six-month review.

“The reviewing body must inquire about the progress being made to provide a permanent home for the minor, and must determine the appropriateness of the placement, the continuing appropriateness and extent of compliance with the long-term plan, the extent of compliance with the case plan, and the adequacy of services provided to the minor․   If circumstances have changed since the last long-term plan hearing, the court may order a new plan under Welfare and Institutions Code Section 366.25 or 366.26 at any subsequent hearing, or any party may seek a new permanent plan by an application for modification.  [Citation.]

“Unless parental rights have been permanently terminated, the minor's parent or parents are entitled to receive notice of, and participate in, the review hearings.   The reviewing body must presume that continued care is in the interests of the minor, unless the parent or parents prove, by a preponderance of the evidence, that further reunification efforts are the minor's best alternative.   In those cases, the court may order that further reunification services be provided to the parent or parents for no more than six months.”  (5 Markey, Cal. Family Law Practice and Procedure (1993) Postdisposition Proceedings, § 87.32[1], pp. 87-66.2-87-66.3, fns. omitted.)

An analysis of these statutes makes several things clear.   First, social workers and the agencies that employ them are invested with considerable power;  in fact, if there is no objection they may conduct the necessary review hearings.   Only once every 18 months, or on the request of the minor's parents or guardian or of the minor, is the juvenile court required to conduct the review.  (§ 366.3, subd. (c).)  Second, section 366.3, subdivision (c), establishes a policy favoring modification of long-term foster care placements, requiring the court to review “the progress being made to provide a permanent home for the minor.”  (See In re Heather P. (1989) 209 Cal.App.3d 886, 890, 257 Cal.Rptr. 545 [“An important purpose of dependency proceedings is to provide children with stable, permanent homes.”];  § 366.26, subd. (c)(4) [presumption in favor of guardianship over long-term foster care].)  This policy is also reflected in section 396, which declares “[i]t is the policy of the Legislature that foster care should be a temporary method of care for the children of this state, that children have a right to a normal home life, [and] that reunification with the natural parent or parents or another alternative permanent living situation such as adoption or guardianship are more suitable to a child's well-being than is foster care․”  (Emphasis added.)   Indeed, the very reason Connie P. sought guardianship in this case was to “add long term stability to [Nina's] life.”   Third, section 366.3, subdivision (c), requires juvenile courts to review “the progress being made to provide a permanent home for the minor” and “the continuing appropriateness and extent of compliance with the permanent plan for the child.”  (See ante, fn. 2.)  Implicit in this review requirement is a requirement that courts change the permanent plan if circumstances warrant.  (See rule 1465(b), ante, fn. [“If circumstances have changed since the permanent plan was ordered, the court may order a new permanent plan under section 366.25 or 366.26 at any subsequent hearing․”].)  This is precisely what the juvenile court did in this case.   The court notified appellant “that Connie P[.] [would] seek guardianship of Nina” and proceeded to conduct a full evidentiary hearing on the proposed guardianship.   Only after this hearing did the court change the permanent plan from long-term foster care to guardianship.   In light of the express legislative policy favoring guardianships over long-term foster care, the change was warranted by nothing more than the fact Nina and Connie P. had bonded to a sufficient degree that guardianship had become appropriate.

We emphasize that section 366.3, subdivision (c) and rule 1465, subdivision (b) both require that the parent or parents of the minor receive timely notice of the hearings described therein.   We interpret this language to require that parents not only be given notice that a hearing will be held, but also that parents be adequately informed of the issues that will be considered, as well as the factual bases for any proposed changes.   In this case appellant received such notice:  she was informed that guardianship was being sought and provided the reasons for the proposed change.3  Under these circumstances appellant's rights were fully protected.

II. & III.**

DISPOSITION

The order appealed from is affirmed.

FOOTNOTES

1.   All further statutory references are to the Welfare and Institutions Code unless otherwise specified.   All further references to rules are to the California Rules of Court.

2.   Section 366.3, subdivision (c), provides, in pertinent part, as follows:  “If the minor is in a placement other than a preadoptive home or the home of a legal guardian and jurisdiction has not been dismissed, the status of the minor shall be reviewed every six months.   This review may be conducted by the court or an appropriate local agency;  the court shall conduct the review upon the request of the minor's parents or guardian or of the minor and shall conduct the review 18 months after the hearing held pursuant to Section 366.26 and every 18 months thereafter.   The reviewing body shall inquire about the progress being made to provide a permanent home for the minor and shall determine the appropriateness of the placement, the continuing appropriateness and extent of compliance with the permanent plan for the child, the extent of compliance with the case plan, and the adequacy of services provided to the child․  [¶] Unless their parental rights have been permanently terminated, the parent or parents of the minor are entitled to receive notice of, and participate in, those hearings.   It shall be presumed that continued care is in the interests of the minor, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the minor.   In those cases, the court may order that further reunification services be provided to the parent or parents for a period not to exceed six months.”Section 16503 describes the procedures to be used when the six-month periodic review is conducted by a local agency.Rule 1465(b) implements section 366.3, subdivision (c), and section 16503.   It provides, in pertinent part, as follows:  “Following the establishment of a plan for long-term foster care ․ review hearings shall be conducted every six months by the court or by a local review board.   At the review hearing, the court or review board shall consider the report of the petitioner and the report of any court-appointed child advocate.   No less frequently than once every 18 months, the court shall conduct a review of the previously ordered permanent plan to consider whether the plan continues to be appropriate for the child.   The 18-month review may be combined with the six-month review.   If circumstances have changed since the permanent plan was ordered, the court may order a new permanent plan under section 366.25 or 366.26 at any subsequent hearing, or any party may seek a new permanent plan by a motion filed under rule 1432.   Notice of the hearing shall be given as provided in rule 1460.   Parents are to be given notice of all hearings unless their parental rights have been terminated.   The court shall continue the child in foster care unless the parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child.   In those cases, the court may order reunification services for a period not to exceed six months.”

3.   One of the social worker's reports stated that appellant did not visit Nina much;  that Nina reported that Mr. C. had touched her breasts;  that Nina and appellant were not bonded;  and that Nina stated she does not wish to return home and does not want to visit her stepfather.   A subsequent report indicated that appellant had attempted to have Nina see Mr. C. during their visits, in violation of the court's order.   The social worker further observed that appellant did not interact with Nina “in a mother/daughter relationship;”  that Nina was emotionally upset by the continuing custody issues, which affected both her academic performance and her behavior;  and that the stress of the proceedings contributed to Nina developing an ulcer.

FOOTNOTE.   See footnote *, ante.

KLINE, Presiding Justice.

SMITH and BENSON, JJ., concur.