Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. CK49949, D. Zeke Zeidler, Judge.
Joseph T. Tavano, under appointment by the Court of Appeal, for Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Senior Deputy County Counsel, for Respondent.
MOSK, J.
Krystal I. (mother) appeals from an order of the juvenile court at a post-permanency review hearing that (1) terminated the juvenile court’s dependency jurisdiction over the child, Lola S. (child), pursuant to Welfare and Institutions Code § 366.3, subd. (a); (2) designated child’s father, Jason S. (father), to be the monitor for mother’s weekly visitation with child; and (3) denied mother’s request for weekly telephone contact with child in addition to her weekly visitation. We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
BACKGROUND
This case has been before this court twice before. In In re Myah F. (July 30, 2003, B163302) [2003 Cal.App. Unpub. LEXIS 7296], we affirmed orders of the juvenile court granting sole legal custody of child’s sister Myah to Myah’s father, and terminating juvenile court jurisdiction over Myah. In Krystal I. v. Superior Court (May 11, 2005, B181800) [2005 Cal.App. Unpub. LEXIS 4188], we denied mother’s petition for a writ of mandate and affirmed the juvenile court’s orders denying mother custody of child and setting a section 366.26 hearing with respect to child. The facts relating to child’s detention and the reunification period are set forth in our prior opinions. We set forth here only the facts relevant to the issues now before us.
These proceedings commenced in August 2002. Over the next three years, as set forth in our prior opinions, mother repeatedly failed to obtain stable housing or to demonstrate consistent and substantial compliance with her case plan. (See Krystal I. v. Superior Court, supra, 2005 Cal.App. Unpub. LEXIS 4188, *2-*20.) As of June 2005, child was nine years old, and had been living with her paternal grandmother for over a year. Father was incarcerated, with an anticipated release date in September 2005. On July 15, 2005, the juvenile court appointed paternal grandmother as child’s legal guardian (child’s guardian).
By January 2006, father had been released from prison and was living with child at paternal grandmother’s house. Mother had lost another apartment, and had failed to document that she was complying with her court-ordered counseling program. At hearings on January 31 and March 6, 2006, the juvenile court restricted mother to monitored visits with child.
Between March and August 2006, mother made no contact at all with child and failed to keep in contact with DCFS and paternal grandmother. DCFS recommended that the juvenile court terminate jurisdiction. The juvenile court requested a supplemental report from DCFS recommending a detailed visitation plan for mother if the juvenile court terminated jurisdiction.
In early August 2006, DCFS contacted paternal grandmother to discuss a visitation schedule for mother. Paternal grandmother told DCFS that mother had been leaving threatening messages on paternal grandmother’s answering machine, and that paternal grandmother feared for her safety. Paternal grandmother also told DCFS that mother’s behavior was erratic, like the behavior mother had exhibited when using PCP. Paternal grandmother was concerned that mother’s relatives would not be appropriate monitors for mother’s visitation with child because they left mother unsupervised, and mother told child to lie about being left alone with mother. DCFS scheduled a “team decision meeting” with the entire family to discuss these concerns. After assuring the social worker repeatedly that she would attend, mother failed to show up. Child was unfazed, stating that mother “always does this.” Mother also failed to appear for an on-demand drug test the next day.
The team decision meeting was rescheduled and mother attended. Mother and paternal grandmother agreed that mother would have twice monthly visits at the DCFS office to be monitored by a social worker. The parties also agreed that the case would stay open for an additional four months to allow mother the opportunity to demonstrate that she could “act appropriately” with child. After one visit, the parties agreed to change the visitation plan to permit father to monitor mother’s visits so that mother could visit weekly rather than twice per month. In September 2006, based on the agreement among the parties, the juvenile court ordered weekly visits for mother, to be monitored by father or another DCFS-approved monitor.
In March 2007, DCFS reported that, in October 2006, mother had been arrested on multiple gang-related violent felony charges, including rape with force or violence, sexual penetration with a foreign object and assault with a firearm. Mother was released on her own recognizance. Mother had attempted to visit child without permission at child’s daycare, and had refused to return child’s sister Myah to her father after a visit, taking Myah out of the state without permission and enrolling Myah in a new school without her father’s permission. Mother was uncooperative with DCFS when they attempted to investigate why Myah was staying with mother rather than Myah’s father, who had sole custody. DCFS concluded that mother “has not been a positive or consistent presence in [child’s] life,” and that mother continued to disappoint child by failing to make expected visits and telephone calls. DCFS recommended that the juvenile court terminate jurisdiction and maintain the existing visitation schedule.
It appears the case against mother was dismissed pursuant to Penal Code, section 1100.
On June 7, 2007, the juvenile court held a contested hearing regarding whether to terminate juvenile court jurisdiction and mother’s visitation. Mother opposed terminating jurisdiction, stating that she wanted eventually to regain custody of child. Mother testified that father sometimes did not return her phone calls to arrange visitation and sometimes did not show up for visits. Mother also testified that father once cut a visit short, and had refused mother’s efforts to arrange a set time and location for visits. Mother’s brother also testified that he wanted to visit child, but his calls to arrange visits with child had gone unreturned.
Father testified, and explained to the court that he objected to having a scheduled visit each week because mother was unreliable and had brought drugs in her car to the last visit. Father testified he would not object if, as suggested by the juvenile court, he could terminate the visit if mother appeared to be under the influence of drugs, and if mother forfeited a future visit each time she failed to show up for a scheduled visit. Father testified that he had no objection to maternal uncle and aunt visiting if paternal grandmother (child’s guardian) gave permission, though the maternal uncle and aunt had never before participated. Paternal grandmother stated that she objected to maternal uncle and aunt participating in visits because she felt they might, in effect, gang up with mother against father.
The juvenile court proposed to the parties that visitation be set at a specific time and location each week to obviate the need to schedule each visit. Mother’s attorney urged the juvenile court to retain jurisdiction to ensure that the visitation schedule worked. The juvenile court refused. The juvenile court ordered that mother would have monitored visits each Saturday, and specified both the time and location of the visit. Father—who was living with his mother, the child’s guardian—was to be monitor, or mother could hire and pay for a monitor. Mother was not to visit if under the influence of or in possession of drugs, and if she missed a visit, she would forfeit the next visit.
Mother’s attorney requested, in addition, scheduled weekly telephonic contact between child and mother. Mother explained that child’s sister (presumably Myah) visited mother, and mother wanted the children to have contact. Paternal grandmother stated she had “no problem with them calling.” When mother indicated that she was caring for Myah on weekends, the court observed that Myah could join mother for her scheduled Saturday visit with child each week. The juvenile court refused to order scheduled telephonic contact because it was unnecessary if the children would be visiting together. The court observed that “we’re not in reunification mode,” the guardian was “appropriately raising the child,” and mother had difficulty “getting contact . . . because of the problems that she has caused for herself.” The juvenile court terminated jurisdiction. Mother timely appealed.
DISCUSSION
Mother argues that the trial court erred by (1) terminating dependency jurisdiction, (2) permitting father to continue as the visitation monitor, and (3) denying mother’s request for weekly scheduled telephone contact with child. We review each of these decisions for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re K.D. (2004) 124 Cal.App.4th 1013, 1018; In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) We must affirm unless the juvenile court’s decision was arbitrary, capricious, or patently absurd. (In re K.D., supra, 124 Cal.App.4th at p. 1018; In re Michael D. (1996) 51 Cal.App.4th 1074, 1087.)
Before turning to mother’s specific contentions, we note that most of mother’s arguments on appeal are premised on her assertion that father had interfered with her visitation in the past and would likely continue to do so. The juvenile court made no such finding, however, and the record indicates that the juvenile court rejected or gave little weight to mother’s testimony on that point. We may not second guess the juvenile court’s credibility determinations. (In re Alvin R. (2003) 108 Cal.App.4th 962, 974.) The juvenile court remarked that mother’s difficulty “getting contact is because of problems that she has caused for herself”—a statement supported by mother’s history of missing visits, her threatening messages to paternal grandmother, her persistent failure to cooperate with DCFS, and her erratic compliance with the juvenile court’s orders. The juvenile court further suggested that mother hire a paid monitor so that, if a future dispute arose, “there is someone to confirm her side of the story . . . .” Father testified that mother was a “liar,” and that mother had brought drugs in her car to the last visit she had with child. Further, father testified in response to a direct question from the juvenile court that he would have no problem complying with the visitation order, and the juvenile court appointed father to monitor the visits based on that representation. The record thus implies that the juvenile court resolved mother’s factual contentions against her. As explained below, this is essentially fatal to most of mother’s arguments on appeal.
A. Termination of Dependency Jurisdiction
“Under California law, when a child has been adjudged to be a dependent of the juvenile court, ‘the court shall . . . terminate its dependency jurisdiction’ if ‘a relative of the child is appointed the [child’s] legal guardian . . . and the child has been placed with the relative for at least 12 months,’ unless ‘the relative guardian objects’ or ‘upon a finding of exceptional circumstances.’ (Welf. & Inst. Code, § 366.3, subd. (a).)” (In re Joshua S. (2007) 41 Cal.4th 261, 265.) In this case, child had been placed with her paternal grandmother for three years, and paternal grandmother had been child’s guardian for nearly two years. The juvenile court was thus required to terminate jurisdiction unless it found that “exceptional circumstances” warranted continuing jurisdiction. (§ 366.3, subd. (a).)
Section 366.3, subdivision (a) provides in relevant part, “If a juvenile court orders a permanent plan of . . . legal guardianship . . ., the court shall retain jurisdiction over the child until . . . the legal guardianship is established . . . . Following establishment of a legal guardianship, the court may continue jurisdiction over the child as a dependent child of the juvenile court or may terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the legal guardianship . . . . If, however, a relative of the child is appointed the legal guardian of the child and the child has been placed with the relative for at least 12 months, the court shall, except if the relative guardian objects, or upon a finding of exceptional circumstances, terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the guardianship . . . .” (Italics added.)
Mother argues that “it was error to terminate jurisdiction, for the father’s interference with visitation was exceptional circumstances [sic] showing that continuing jurisdiction to make sure [child] had visitation with her mother was in [child]’s best interest.” As explained, however, the juvenile court resolved that factual issue against mother. The argument thus fails on its premise.
Moreover, the juvenile court fashioned its visitation order so that, if father proved uncooperative in the future, mother’s visitation rights would not be dependent on father acting as monitor. The order expressly permits mother to use a paid monitor instead of father. Although mother stated that she did not have money to pay for a monitor, she also testified that she was employed and earned $15 per hour; based on mother’s testimony at prior hearings, it appears that mother had been steadily employed for at least three or four years. (See Krystal I. v. Superior Court, supra, 2005 Cal.App. Unpub. LEXIS 4188, *15, *18.) Given mother’s history of missing visits and other reported behavior, it was not arbitrary or capricious for the juvenile court to order mother to bear the financial burden of obtaining a paid monitor. (See In re Chantal S. (1996) 13 Cal.4th 196, 202 [father ordered to bear cost of monitoring by child’s therapist].) To the contrary, placing the burden on mother would give mother an incentive to cooperate with father, and to show up to scheduled visitations on time and sober.
Contrary to mother’s suggestion, she is not without recourse if, through no fault of mother, father improperly interferes with her visitation and she is unable to pay for a substitute monitor. Mother can petition the juvenile court to change the visitation order. (§ 388.) Although the juvenile court terminated dependency jurisdiction over child, it maintains jurisdiction over the guardianship, and retains subject matter jurisdiction to modify orders concerning the guardianship. (§ 366.4, subd. (a); Calif. Rules of Court, rule 5.740(c); In re Marilyn H. (1993) 5 Cal.4th 295, 300, fn. 4; In re D.R. (2007) 155 Cal.App.4th 480, 486-487; In re Heraclio A. (1996) 42 Cal.App.4th 569, 575.)
Mother also argues that that the juvenile court failed to consider child’s best interest in terminating jurisdiction because it did not expressly consider child’s desire to maintain contact with her mother. This argument lacks merit. The juvenile court provided for such contact by ordering continuing visitation between mother and child, and fashioning a reasonable order to ensure that visitation occurs, provided mother shows up at the appointed time and is sober. The juvenile court’s visitation order thus serves child’s interest in maintaining contact with her mother. The juvenile court did not abuse its discretion in terminating jurisdiction.
DCFS argues that the juvenile court was not required expressly to consider child’s best interests because, when a relative is appointed legal guardian, termination of jurisdiction is mandatory in the absence of “exceptional circumstances.” (§ 366.3, subd. (a).) In contrast, in cases involving non-relative guardianships, termination of jurisdiction is discretionary, so that the court may continue jurisdiction if doing so is in the best interest of the child. (Ibid.; Calif. Rules of Court, rule 5.740(a)(3).) One court, in a closely related context, has construed the phrase “exceptional circumstances” to mean, in essence, “the best interest of the dependent child.” (In re Fernando M. (2006) 138 Cal.App.4th 529, 535-536 [construing § 366.26, subd. (c)(1)(D)].) Because we conclude that the juvenile court considered child’s interest in maintaining contact with mother, we need not address DCFS’s argument.
B. Father as Monitor
Mother argues that father’s interference with mother’s visitation made him an inappropriate monitor, and resulted in an “improper delegation of the court’s duty to make an order for visitation.” As explained, the juvenile court rejected mother’s factual contention that father improperly had interfered with her visitation; father testified that he would comply with the visitation order. Further, the juvenile court did not improperly delegate either to father or paternal grandmother (child’s guardian) whether visitation would occur. “Only when the court delegates the discretion to determine whether any visitation will occur does the court improperly delegate its authority.” (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009.) The juvenile court ordered visitation to occur at a specific location and at a specific time each week, and gave no discretion to either father or paternal grandmother to decide whether visitation will occur. In re M.R. (2005) 132 Cal.App.4th 269, upon which mother relies, is inapposite. In that case, the visitation order directed visitation “‘supervised and arranged by the legal guardians at their discretion.’” (Id. at p. 272, italics added.) The juvenile court did not abuse its discretion in designating father to monitor mother’s visitation.
C. Telephone Contact
Mother next asserts that the juvenile court abused its discretion when it declined to order weekly telephone contact between mother and child. We disagree.
First, the authorities cited by mother are inapplicable. Those authorities require the juvenile court, in cases in which the permanent plan is guardianship or long-term foster care, to order visitation “with the parents or guardians” unless it finds “that the visitation would be detrimental” to the child. (§ 366.26, subd. (c)(4)(C).) The juvenile court in this case ordered visitation with mother. Mother cites no authority that the juvenile court was required to order additional telephone contact.
Second, the only justification offered by mother for the weekly telephone calls was to permit child to speak with her sister Myah while Myah was visiting with mother. Mother told the juvenile court, however, that Myah visited with mother on weekends. Myah thus would be visiting mother on the same day that mother was to have a two-hour visit with child. The juvenile court observed that Myah could accompany mother on her visits with child. By doing so, the sisters would have two hours per week of in-person contact, rather than a mere telephone call. The sole reason proffered by mother for the telephone calls was thus obviated. For the same reason, the juvenile court’s decision did not “interfere[] with [child’s] sibling relationship.” Given the strained relationship between mother and paternal grandmother, and the fact that mother had made threatening phone calls to paternal grandmother less than a year before, the juvenile court did not abuse its discretion by denying the requested telephone contact.
DISPOSITION
The order is affirmed.
We concur:, TURNER, P. J., KRIEGLER, J.