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In Re Xavier R., et al., Persons Coming Under the Juvenile Court Law. v. Linda M

December 16, 2011

IN RE XAVIER R., ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
LINDA M., DEFENDANT AND APPELLANT.



APPEAL from an order of the Superior Court of Tulare County. Charlotte A. Wittig, Commissioner. (Super. Ct. No. JJV065101)

The opinion of the court was delivered by: Gomes, J.

CERTIFIED FOR PUBLICATION

OPINION

Linda M. is the paternal grandmother and legal guardian of brothers Xavier R. and D.R. (collectively the boys). The boys, who have serious mental and emotional problems, were declared dependents of the juvenile court based on Linda's inability to set proper boundaries for them, as well as her failure to provide them with a stable home environment and appropriate care for their emotional problems. At disposition, Linda was given reunification services. Several months later, the Tulare County Health and Human Services Agency, Child Welfare Services (Agency) filed a motion to terminate Linda's Probate Code guardianship pursuant to Welfare and Institutions Code section 728,*fn1 as well as a section 388 petition seeking to vest the boys' medical, dental and mental health rights with the Agency and their educational rights with Court Appointed Special Advocates (CASA), and change Linda's visitation orders. The juvenile court granted both the motion to terminate the guardianship and the section 388 petition.

On appeal from those orders, Linda challenges only the order terminating her guardianship. She contends the juvenile court did not have the authority to terminate the guardianship once she was given reunification services unless it first granted a petition to terminate her reunification services under section 388, subdivision (c), and there was insufficient evidence that termination of the guardianship was in the boys' best interests. We reject Linda's claims and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Linda brought the boys to Visalia, California in late 2003, when Xavier was four and D. was three, after their mother called her from another state and threatened to give the boys away unless Linda came and got them. On April 12, 2005, Linda became the boys' legal guardian through superior court. Between September 2004 and November 2010, the Agency received 20 referrals on the family, but no petitions were filed with respect to these referrals.

On November 1, 2010, the Agency opened a voluntary family maintenance case after receiving numerous referrals from service providers expressing concern regarding Linda's ability to care for and supervise the boys. A staffing was held on November 23, 2010, between the Agency and the family's service providers, including Visalia Youth Services (VYS), and the principals of the boys' schools. According to VYS, the boys both had mental health issues and had been prescribed psychotropic medications; eleven-year-old Xavier had been diagnosed as bipolar with schizophrenia, while ten-year-old D. had been diagnosed with mood and conduct disorders. The service providers believed the boys were not receiving their medications regularly; they suspected Linda was taking the medications herself based on the boys' reports to their therapists and school staff. The boys' therapists believed the boys' mental health was deteriorating due to inconsistent medication treatment and an unstable home life.

D. was on informal probation for stealing and being physically assaultive. According to VYS and Family Services of Tulare County, Linda had expressed fear of D., as he had hit her in the past with an open fist, and had recently kicked her and broken her finger. D. also hit and bit Xavier, which behavior Linda was unable or unwilling to stop. The boys were disruptive and disobedient at school. They destroyed school property and hit students and staff. Xavier's school behavior included bullying and punching other students, cussing, tipping over desks, throwing papers and being disrespectful to staff and students.

Although Therapeutic Behavioral Services (TBS) had been tried, the services failed because Linda was resistant to help and would not follow the recommendations of support staff. According to D.'s therapist, the family had received two referrals to TBS, as well as referrals to community resources such as YMCA, anger management and parenting classes, family services, and parenting network. The family moved frequently; according to VYS, they had moved five times in the past three months, which exacerbated the boys' mental health symptoms.

Xavier's school principal reported that he had worked with the family for the past two years and during that time Xavier's behavior had escalated; he was becoming more physical and began defecating in his pants. Xavier told the principal D. would bite him and Linda cuss at him and take his medication. Xavier was suspended frequently from school. A parenting instructor reported that Linda was afraid to tell D. "no" and she did not restrict him from leaving the home or question him about his whereabouts. The instructor observed the boys to be disrespectful and to use profanity toward Linda and the instructor. It was apparent to the instructor that Linda was afraid to discipline the boys, she had little to no control over their actions, and due to her fear of retaliation, she was either unable or unwilling to tell them no.

On December 1, 2010, the Agency filed a dependency petition, which was amended on December 6. The amended petition alleged the boys came within the provision of section 300, subdivisions (b) (failure to protect), (c) (serious emotional damage) and (g) no provision for support. The allegations were based on Linda's inability to (1) set proper boundaries and limits that, due to the boys' inability to adequately protect themselves from harm and neglect, endangered their physical safety and emotional health and well-being, (2) provide the boys with the basic necessities of life or a stable home environment, which endangered their physical safety and emotional health and well-being, and (3) provide appropriate care for the boys' serious emotional problems, as Linda was inconsistent with providing the boys with their prescription psychotropic medications. The petition further alleged the boys' mother and father left them without provision for support as their whereabouts were unknown despite reasonable efforts to locate them.

The boys were detained and placed together in an intensive treatment foster care home. Linda told the social worker she had done everything she knew to get the boys the mental health services they needed, and she was willing to do whatever it took to get the boys returned to her care.

Xavier told a social worker, as well as a school psychologist and a teacher, that he did not want to return to Linda's custody or visit her because she choked him when he lived with her. Xavier believed Linda liked D. better than him and punished him more than D. Since being in foster care, Xavier had not asked the social worker about Linda or requested visits with her. Xavier liked his foster home because it is a real home. The social worker reported that Xavier struggles with his behavior at school and according to his individualized educational plan (IEP), his behavior impedes his learning as well as that of his classmates, he is often "defensive" with his peers, and he struggles to stay on task.

D. told the social worker that he is worried Linda would not have money or a place to live since he and his brother were removed from her care. D. wanted to live with Linda again someday, but not until she got a home. The social worker noted that D. frequently brought up the topic of money during visits with Linda, such as asking her if she has any money and how she will get money to survive, and believed D. felt responsible for Linda's welfare.

In a report prepared for a combined jurisdiction and dispositional hearing, the social worker noted that Linda, who was raising the boys on her own, was unemployed and housing was an issue, as the family had moved several times since being evicted from the paternal great-grandmother's home over the summer. Despite the boys' mental health issues and the family's housing struggles, the boys had attended school regularly and received mental health services. They had seen their therapists and been assessed regularly for psychotropic medication. Both of the boys were special education students with IEPs. Linda attended IEP meetings and mental health and medical appointments with the boys. The social worker noted Linda was resourceful and good at soliciting assistance from members of her church, community centers and other charitable organizations.

The social worker reported that while the boys continued to struggle with their behaviors, including profanity, anger and talking back, their foster parent was working toward improving their behaviors. The boys were scheduled to visit Linda twice a week for one hour, but were not forced to participate. Xavier did not want to visit. Linda was appropriate during visits with D., engaging him in conversation and play, and D. enjoyed the visits. The Agency recommended six months of reunification services for Linda, with a permanent plan of guardianship or permanent planned living arrangement should reunification services fail.

At the January 6, 2011*fn2 jurisdiction hearing, the juvenile court granted Linda's counsel's request for a continuance. The minute order of the hearing states that the court "suggest[ed]" that the Agency and the boys' counsel review section 728 to determine whether a motion would be made to terminate Linda's guardianship, and if either party intended to make such a motion, the court would hear it immediately following the jurisdiction hearing.

A combined jurisdiction and dispositional hearing was held on January 12. The juvenile court struck portions of the first amended petition at the request of the Agency's counsel. Linda submitted on the basis of the social worker's reports, which the juvenile court received into evidence. The juvenile court also took judicial notice of the entire case file. Based on the evidence presented, the juvenile court found the ...


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