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IN RE ABRAMA M., B216673 (2011)

Court: Court of Appeals of California Number: incaco20110201005
Filed: Feb. 01, 2011
Latest Update: Feb. 01, 2011
Summary: NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS DOI TODD, J. INTRODUCTION The family involved in these consolidated juvenile dependency appeals has had a long history of involvement with the juvenile court and the Los Angeles County Department of Children and Family Services (the department). The family involves a three-generational extended family—Frank and Ola M. are the grandparents; they have at least six children, Jamia, Abra, Ayellah, Micah, Nathanial and Iola (many of whom were previously
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

DOI TODD, J.

INTRODUCTION

The family involved in these consolidated juvenile dependency appeals has had a long history of involvement with the juvenile court and the Los Angeles County Department of Children and Family Services (the department). The family involves a three-generational extended family—Frank and Ola M. are the grandparents; they have at least six children, Jamia, Abra, Ayellah, Micah, Nathanial and Iola (many of whom were previously juvenile court dependents based on abuse by Frank and Ola)1; and six grandchildren, Samuel, Akia, Abrama, Abigail, Sahri, and Isaiah. Most of the family lives together, except for those members who are incarcerated.

The grandparents have created and maintained a violent chaotic and dirty home environment and lifestyle, that continues from one generation to the next. There have been more than 100 child abuse referrals made to the department regarding this family. There have been multiple sustained allegations of physical abuse by the grandparents and their children, as well as sexual abuse by Nathanial. Over the years, the grandparents and their children have been confrontational and uncooperative with both the department and law enforcement.

This opinion addresses ten separately filed notices of appeal pertaining to four of the grandchildren: Frank and Ola filed three appeals relating to their grandchildren Isaiah (age 3) and Akia (now 17); their daughter Abra (mother) (age 24) filed six appeals relating to her two daughters Abrama (age 5) and Abigail (21 months); and their daughter Iola (age 16), a juvenile dependent herself, also filed an appeal relating to her son Isaiah.

Mother appeals from the following juvenile court orders:

The orders of July 8, 2009 granting Abrama's father, James S., legal and physical custody of her and terminating jurisdiction as to Abrama, and authorizing the department to place Abigail with James upon approval of his home as a non-related caregiver. (James S. is not the biological father of Abigail, whose father is Brian C. Neither father is a party to these consolidated appeals.);

The order of July 8, 2009 requiring her visits with Abrama to be supervised by a professional monitor to be paid by mother;

The dispositional order of November 5, 2009 allowing Abigail to be placed with James S.; and

The dispositional order of November 5, 2009 relating to notice to the Bureau of Indian Affairs (BIA) under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA).

All but one of mother's issues on appeal have become moot by recent events, and we conclude that her remaining ICWA issue has no merit.

Frank and Ola, as well as Iola, appeal from the following orders:

The order of July 1, 2009 terminating the grandparents' legal guardianship over Isaiah; and The orders of August 7 and 31, 2009, summarily denying the grandparents' petitions under section 388 of the Welfare and Institutions Code2 regarding allegations previously sustained against them concerning their granddaughter and former ward Akia.

The grandparents' arguments that the juvenile court erred in terminating their legal guardianship over Isaiah without first requiring a report from the department and by summarily denying their section 388 petitions also have no merit.

For the sake of clarity and because the parties' appeals raise different issues, we divide our opinion into two parts, with Part I addressing mother's appeals, and Part II addressing the grandparents' appeals. We affirm all orders being appealed by the parties.

PART I

Factual Background

On December 15, 2008, the department filed a juvenile dependency petition on behalf of mother's two daughters, Abrama and Abigail. On January 29, 2009, the department filed a first amended section 300 petition on behalf of the minors, containing numerous allegations against several family members, and detained the minors. On July 1, 2009, following a contested jurisdictional/dispositional hearing concerning Abrama and Abigail as well as other family members, the juvenile court sustained the following allegations: On numerous occasions mother physically abused Abrama and other children in the home; on numerous occasions Abrama and Abigail were exposed to violent altercations in the home; and on numerous occasions Abrama and Abigail's maternal uncle, Nathanial, sexually assaulted their cousin Akia while living in the home and mother failed to take action to protect the children by continuing to allow him to reside in the home.

Prior to the amended petition being sustained, mother had a monitored visit with her daughters on April 17, 2009, during which she engaged in physical altercations with two department monitors, causing injuries to both. On May 14, 2009 the juvenile court issued a restraining order against mother protecting the two visitation monitors, and ordered that her visits be monitored either by a professional monitor to be paid by mother or a department-approved monitor, and that visits take place outside the department's offices.

Early in the case, mother indicated that James S. was Abrama's father, and that domestic violence proceedings had been brought against him in family court. She obtained a protective order against him in 2005. On October 17, 2007, the family court issued a restraining order against him protecting mother and Abrama for two years, based in part on mother's allegations that he was physically abusing Abrama. Mother had an attorney in family court, but James did not. On March 23, 2009, he appeared in juvenile court and stated that he had not seen Abrama in more than a year because the family court had ordered that his visits with her be supervised by a professional monitor, which he could not afford. The juvenile court found him to be Abrama's biological father. James had full custody of his six-year-old son, and they lived with the paternal grandparents.

Abrama told the social worker that James hit her once and that she was scared of him, but that she wanted to live with him. During her first monitored visit with James in April 2009, she was initially unhappy to see him, but was laughing and talking with him before the visit ended. The second visit went well. Both the department and Abrama's attorney recommended that she be placed with James, who also requested placement of Abigail. Over mother's objections, on June 24, 2009 the juvenile court placed Abrama with James under the department's supervision with family maintenance services and family reunification services, ordered the department to detain Abigail with James "once ASFA is approved," and modified the 2007 restraining order by deleting Abrama as a protected person.

On July 8, 2009, the juvenile court granted James legal and physical custody of Abrama, and terminated dependency jurisdiction over her. The court ordered mother's visits to be supervised by a professional monitor to be paid by mother. The court declared Abigail a juvenile court dependent to remain under the department's supervision, and ordered mother to participate in reunification services with Abigail, including completion of department-approved individual counseling.

On August 6, 2009, the department placed Abigail with James after his home was approved pursuant to "ASFA standards." Her case was transferred to a different courtroom following a peremptory challenge filed by Abigail's father, Brian C. Brian appeared in juvenile court for the first time on August 12, 2009. At the hearing, he completed an ICWA questionnaire indicating that he may have Indian ancestry through his paternal grandfather, Huey R. When questioned by the court, he was unable to identify any particular tribe and responded, "I just know that he has a little Indian." The court ordered the department to conduct a complete investigation and to provide notice to any tribes identified, or to the BIA if no tribes were identified.

The department tried to interview Brian about his Indian heritage, but he refused to make himself available or return telephone calls. His mother also refused to provide any information about Huey R., or any information that could be used to determine the family's Indian heritage. The department did not provide any notice under ICWA.

On September 29, 2009, the department filed a section 342 petition alleging that Abigail's father, Brian, had a substantial criminal history. At that time, Abigail was living with James. On October 20, 2009, mother filed a section 388 petition alleging that she believed James S. was placing her daughters' lives in danger. The court summarily denied the petition. At the jurisdictional/dispositional hearing on November 5, 2009 pertaining to Abigail, Brian pled no contest to the section 342 petition. The court modified the previous visitation order by allowing mother's visits to be supervised by a department-approved monitor. The court believed that requiring a professional monitor would violate her parental rights. The court also ordered mother and Brian to participate in reunification services, with mother's case plan to include parenting classes, individual counseling and anger management counseling, as well as a psychiatric assessment.

DISCUSSION

Although mother filed several appeals from various orders of the juvenile court regarding her daughters Abrama and Abigail, her original opening brief and supplemental opening brief present relatively narrow issues: (1) whether substantial evidence supported the court's orders placing Abrama, and subsequently Abigail, with James S.; (2) whether the juvenile court abused its discretion by terminating jurisdiction over Abrama; (3) whether the juvenile court violated mother's constitutional rights and abused its discretion by ordering that her visits with Abrama be supervised by a professional monitor; and (4) whether ICWA was violated as a result of the department's failure to provide notice to the BIA. We find the first three issues to be moot on appeal, and no merit to the last issue regarding ICWA notice.

A. Placement Orders

Mother challenges the juvenile court's orders placing Abrama and Abigail with James. She argues there was insufficient evidence to support the court's finding that such placement would not be detrimental to the girls' safety or well being. She requests that we reverse the court's placement orders and remand the case with directions that Abrama and Abigail be removed from James's home.

We recently granted mother's request to take judicial notice of the juvenile court's post-appeal minute order of May 6, 2010, which indicates that Abrama and Abigail were detained from James. We also recently granted the department's request to take judicial notice of the juvenile court's post-appeal minute order of October 18, 2010, which indicates that Abrama has been declared a dependent of the juvenile court, and that both Abrama and Abigail have been ordered placed in the department's custody for suitable placement.

"When no effective relief can be granted, an appeal is moot and will be dismissed. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) `"`[T]he duty of this court . . . is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.'" [Citation.] . . . "[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the [respondent], an event occurs which renders it impossible for this court, if it should decide the case in favor of [appellant], to grant him [or her] any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. [Citations.]"' (Ibid.)" (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.)

"`[A]n action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed.' [Citation.]" (In re Dani R. (2001) 89 Cal.App.4th 402, 404.)

Because mother's requested relief that Abrama and Abigail be removed from James and placed in the department's protective custody has already occurred, the issue of whether substantial evidence supported the juvenile court's order placing the girls with James is moot. A reversal on the ground that substantial evidence did not support the juvenile court's placement orders will have no practical effect.

B. Custody and Termination Orders

Mother contends that the juvenile court abused its discretion when it granted James legal and physical custody of Abrama and then terminated dependency jurisdiction over her without first analyzing whether ongoing supervision of Abrama was necessary. She requests that we reverse the court's orders and remand the case with directions that the juvenile court receive and consider post-placement evidence regarding how Abrama is doing in James's home to determine whether ongoing supervision of Abrama is necessary.

The recent minute order of October 18, 2010 indicates that Abrama was declared a dependent of the juvenile court and that she was removed from James's home and placed in the care of the department for suitable placement. A reversal of the court's orders and a remand of the case for a determination as to whether continued jurisdiction is necessary would be without any practical effect. Accordingly, this issue is also moot on appeal. (In re Jessica K., supra, 79 Cal.App.4th at pp. 1315-1316; In re Dani R., supra, 89 Cal.App.4th at p. 404.)

C. Visitation Order

Mother contends that the juvenile court violated her constitutional due process rights and abused its discretion when it made the order on July 8, 2009 that her visits with Abrama be supervised by a professional monitor to be paid by mother, which she could not afford. She requests that we remand the case to the juvenile court with directions to modify the visitation order by lifting the professional monitor requirement and granting her less restrictive visitation with Abrama.

The juvenile court's recent minute order of October 18, 2010 states that mother's visits shall be supervised by a department-approved monitor, which would not involve payment by mother. Because there is no longer a requirement that the visits be supervised by a professional monitor, mother's requested relief has already been granted and a reversal would be without any practical effect. We therefore deem the issue as moot on appeal. (In re Jessica K., supra, 79 Cal.App.4th at pp. 1315-1316; In re Dani R., supra, 89 Cal.App.4th at p. 404.)

D. ICWA Notice

In her supplemental opening brief, mother contends that the department's failure to provide ICWA notice to the BIA of Abigail's potential Indian heritage requires a reversal of the juvenile court's dispositional orders.

Pursuant to ICWA, if the court knows or has reason to know that an Indian child is involved, the department must notify the Indian child's tribe. (25 U.S.C. § 1912(a).) "[O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child. [Citation.]" (In re Desiree F. (2000) 83 Cal.App.4th 460, 470; In re Pedro N. (1995) 35 Cal.App.4th 183, 186.) Notice to the tribe also "provides it the opportunity to assert its rights." (In re S.M. (2004) 118 Cal.App.4th 1108, 1115.) "[I]f the identity or location of the tribe cannot be determined, the notice shall be given to the Secretary of the Interior (Secretary). (25 U.S.C. § 1912(a).) The burden of identifying and providing notice to the proper tribe then shifts to the Secretary who presumably has more resources and skill with which to ferret out the necessary information." (In re Desiree F., supra, at p. 469.)

We agree with the department that Brian C.'s statement that his grandfather "has a little Indian" in him is "`too vague, attenuated, and speculative'" to trigger the notice provisions of ICWA. In In re Jonah D. (2010) 189 Cal.App.4th 118, the paternal grandmother told the department that she had been informed by her maternal grandmother that she had Native American ancestry, but she did not know whether it was from her maternal grandmother or maternal grandfather. She advised the department that "`I can't say what tribe it is and I don't have any living relatives to provide any additional information. I was a little kid when my grandmother told me about our Native American ancestry but I just don't know which tribe it was.'" (Id. at p. 123.) The appellate court found this information to be "too vague, attenuated and speculative to give the dependency court any reason to believe the children might be Indian children." (Id. at p. 125.)

The Jonah D. court followed earlier cases where a "bare suggestion" of Indian ancestry was found insufficient to trigger ICWA notice requirements. In In re Jeremiah G. (2009) 172 Cal.App.4th 1514, the court stated that "both the federal regulations and the California Welfare and Institutions Code require more than a bare suggestion that a child might be an Indian child." (Id. at p. 1520.) The Jeremiah G. court also stated: "In a juvenile dependency proceeding, a claim that a parent, and thus the child, `may' have Native American heritage is insufficient to trigger ICWA notice requirements if the claim is not accompanied by other information that would reasonably suggest the minor has Indian ancestry. Here, the assertion that there was a `possibility' the great-grandfather of the minor's father `was Indian,' without more, was too vague and speculative to require ICWA notice to the Bureau of Indian Affairs." (Id. at p. 1516.)

Likewise in In re O.K. (2003) 106 Cal.App.4th 152, the paternal grandmother stated that the father "`may have Indian in him. I don't know my family history that much, but where were [sic] from it is that section so I don't know about checking that.'" (Id. at p. 155.) She also stated that she was not an enrolled member, she did not know whether she or the minors' father were eligible for membership, and she could not identify a particular tribe or nation. (Ibid.) The appellate court "conclude[d] with little difficulty . . . the information she provided was insufficient to give the court reason to believe that the minors might be Indian children. The information provided by the paternal grandmother that the father `may have Indian in him' was not based on any known Indian ancestors but on the nebulous assertion that `where were [sic] from is that section . . . .' This information was too vague and speculative to give the juvenile court any reason to believe the minors might be Indian children." (Id. at p. 157.)

Mother argues that these cases are distinguishable because Brian did not state that his grandfather "might" have Indian ancestry, but that he "knew" his grandfather had "a little Indian" in him. But mother ignores that in In re Jonah, the paternal grandmother was "told" that she had Indian heritage. Yet without more, her statement was insufficient to trigger ICWA's notice requirements. Likewise here, Brian's vague statement regarding Indian ancestry, coupled with his subsequent failure to cooperate with the department's investigation of the matter, rendered the information too speculative to trigger ICWA's notice requirements. As such, the department's failure to notice the BIA provides no basis for reversing the juvenile court's dispositional orders.

Accordingly, the juvenile court orders from which mother appeals are affirmed.

PART II

Factual Background

On December 15, 2008, the same date the department filed its original section 300 petition on behalf of Abrama and Abigail, the department also filed a section 300 petition on behalf of their cousin Isaiah. Isaiah had previously been removed from the care of his mother Iola, who was 16 years old when the petition was filed, and released to the care of his grandparents Frank and Ola. Over the department's objections, his grandparents were granted legal guardianship over him on June 24, 2007. After a social worker investigated the family home, Isaiah was taken into protective custody on December 19, 2008. Following the contested jurisdictional/dispositional hearing concerning Isaiah and several other family members which commenced on June 24, 2009, the juvenile court on July 1, 2009 sustained the following allegations: On numerous occasions Frank and Ola physically abused Isaiah and the other children in their home; they exposed Isaiah to violent altercations in the home; and on numerous occasions Isaiah's maternal uncle, Nathanial, sexually abused Isaiah's mother and another minor cousin while residing in the home of Frank and Ola, who failed to take action to protect them and allowed their predator son to live in the family home.

In a 79-page jurisdictional/dispositional report filed by the department on January 29, 2009, the department recommended that the legal guardianship of Isaiah by his grandparents be terminated, and that his mother, who was hospitalized in a psychiatric hospital, be allowed to participate in reunification services. In April 2009, the jurisdictional/dispositional hearing was continued to June 24 so that the department could investigate whether to file a section 388 petition to terminate the grandparents' legal guardianship.

On June 23, 2009, the department filed a section 388 petition seeking termination of the grandparents' legal guardianship of Isaiah. The department alleged that the legal guardians had created an unsafe home by allowing a sexual perpetrator to live in the home with unlimited access to the children, that they had physically abused the children in their home, and that they had a long history of dependency cases, including new cases after the guardianship was granted. The court set the petition for a hearing on June 24, 2009, the same date as the contested jurisdictional/dispositional hearing.

Following the testimony, on July 1, 2009 the juvenile court concluded that the grandparents had made no progress despite "every effort" having been made to work with the family. The court granted the petition and terminated the grandparents' legal guardianship over Isaiah. Isaiah's mother was granted reunification services, and the court gave the department discretion to permit monitored visits for the grandparents.

Frank and Ola had also been legal guardians over their granddaughter Akia, who became a dependent of the juvenile court at age 14 based on sustained allegations of physical abuse by Ola and sexual abuse by Nathanial, without protection by her legal guardians. The juvenile court terminated their legal guardianship over Akia on July 18, 2008. Nearly a year later on June 1, 2009, Akia filed a section 388 petition to change the court's order sustaining the allegations against her grandparents and Nathanial, because after reflection while in foster placement she wished to "recant" all of her testimony at trial. She also asked to be returned to her grandparents' home and that they be reinstated as her legal guardians, because they did not hit her, she was not afraid of them, and Nathanial was incarcerated. On June 8, 2009, the court summarily denied the petition, noting that the "matter has already been litigated," and that it did not believe guardianship could be reinstated a year after its termination.

Based on Akia's changed allegations, Frank and Ola filed their own section 388 petition on August 6, 2009, asking that the prior allegations against them be dismissed with prejudice, that their legal guardianship over Akia be reinstated, and that she be returned to their home. On August 7, 2009, the court summarily denied the petition, stating that "credibility was weighed at the time of the original trial," and "petitions have been sustained as to former guardians on related cases subsequent to recantation surfacing."

Frank and Ola filed another section 388 petition on August 21, 2009, containing the same allegations and requesting either a new trial or an interview of Akia "by a forensic psychologist to determine the veracity of her recanting her prior testimony." Once again, the court summarily denied the petition on August 25, 2009, stating "see 8/7/09 denial," and "petitioners were parties represented by counsel in the trials on the related cases referenced in the 8/7/09 denial."

Although Akia, along with her grandparents, appealed the court's summary denials of her grandparents' section 388 petitions, Akia has abandoned her appeal. Her request to remain a party to the proceedings was granted. After these appeals were filed, her appointed appellate attorney submitted to this court a letter brief on Akia's behalf stating that Akia is 17 years old, and that her position is that she "does not want to recant the statements that were the basis of the juvenile dependency proceedings," she "does not want to return to the care of her maternal grandparents," and she "requests that the judgments on appeal be affirmed."

DISCUSSION

Grandparents Frank and Ola challenge the juvenile court's orders terminating their legal guardianship over their grandson Isaiah3 and summarily denying their section 388 petitions seeking to regain custody of their granddaughter Akia.

A. Termination of Isaiah's legal guardianship

Frank and Ola contend that the juvenile court abused its discretion by granting the department's section 388 petition to terminate their legal guardianship over their grandson Isaiah, because the court did not first order a report evaluating whether the guardianship could be continued with the provision of services. A section 388 petition is the proper vehicle for seeking termination of a legal guardianship. (§ 360, subd. (a).) A juvenile court's ruling on a section 388 petition is reviewed for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Abuse of discretion is established if there is no substantial evidence to support the court's ruling. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 796.)

Section 366.3, subdivision (b) provides that "[p]rior to the hearing on a petition to terminate legal guardianship . . . the court shall order the [department] to prepare a report, for the court's consideration, that shall include 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."

We find no merit to the grandparents' argument that the juvenile court failed to follow the statutory procedure of ordering a report for its consideration prior to terminating their legal guardianship over Isaiah. As early as January 29, 2009, more than six months before the juvenile court's ruling, the court already had such a report before it, in the form of the department's 79-page jurisdictional/dispositional report. The report stated that the department was recommending termination of Frank and Ola's legal guardianship over Isaiah, and set forth the basis for its recommendation.4 Indeed, the juvenile court stated on June 24, 2009, that everyone already knew that the department was recommending termination of guardianship. As the department states: "It is not the ministerial act of ordering the report that is relevant. Rather, what is essential under the statutory scheme is for the court to have for its consideration a report addressing what is in the child's best interest. The court, in this case, had such a report."

In addition to the report, the court had ample opportunity to evaluate whether providing services to Frank and Ola would be beneficial to Isaiah—the court had the benefit of listening to the testimony of several witnesses at the contested jurisdictional/dispositional hearing that commenced on June 24, 2009 (prior to the court's decision to terminate guardianship), including Frank and Ola. The court was therefore able to gauge firsthand the behavior and credibility of the relevant parties.

Moreover, there was substantial evidence to support the court's decision that it would not be in three-year-old Isaiah's best interest to provide services to his grandparents. While Isaiah was in the care of his grandparents, their legal guardianship over Akia was terminated, amid sustained allegations of their physical abuse and Nathaniel's sexual abuse. The record is clear that Frank and Ola have created and maintained a violent and dangerous household, including harboring a sexual predator with access to children. By the time their guardianship over Isaiah was terminated, they had been known to the department and law enforcement agencies for at least seven years, and had already had several children and grandchildren declared dependents of the juvenile court. Indeed, two of their children and one grandchild—Nathanial, Samuel and Jamia—were in custody at the time the grandparents testified in June 2009. There is little to no evidence that providing the grandparents with reunification services would cause their future behavior to change so as to be in Isaiah's best interest. Accordingly, the juvenile court did not abuse its discretion in granting the department's section 388 petition to terminate the grandparents' legal guardianship over Isaiah.

B. Denial of Section 388 Petitions Regarding Akia

Frank and Ola also contend that the juvenile court abused its discretion by summarily denying their section 388 petitions seeking to regain custody of their granddaughter Akia. They argue that because "it appears that subsequent to the jurisdictional hearing, Akia revealed that she was untruthful about the allegations against Ola and Frank M." that were sustained against them, a hearing should have been held to determine whether she had in fact lied about the allegations.

On appeal, 17-year-old Akia has stated through her attorney that she "does not want to recant the statements that were the basis of the juvenile dependency proceedings," she "does not want to return to the care of her maternal grandparents," and she "requests that the judgments on appeal be affirmed." Indeed, she has chosen to remain a party to these appellate proceedings so that her position would not be misrepresented. The department argues that even if Frank and Ola were to prevail on their claim that a hearing should have been set, there would be no practical effect to any reversal as Akia has made her position clear.

Whether the issue is moot is irrelevant because substantial evidence supported the juvenile court's decision to deny the section 388 petitions.

By the time the grandparents filed their section 388 petitions, their guardianship over Akia had been terminated for more than a year. The termination followed a lengthy evidentiary hearing on the merits of termination, during which Akia, her grandparents, and other family members testified. The court therefore had ample opportunity to weigh firsthand the credibility of the witnesses. Indeed, the court noted that one of the reasons it was denying the grandparents' petitions was that "credibility was weighed at the time of the original trial." "Under the substantial evidence rule, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. Rather, we `accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]' [Citation.]" (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135.)

Additionally, at the time the juvenile court summarily denied the section 388 petitions, it had already terminated the grandparents' guardianship over Akia's cousin Isaiah, and noted that "petitions have been sustained as to former guardians on related cases subsequent to recantation surfacing." Three other family members were incarcerated. There was no evidence that the grandparents' home or lifestyle was any less violent, chaotic or dysfunctional than before their guardianship over Akia was terminated. Nor was there any evidence that it would be in her best interest to return to their home, particularly in light of their ongoing abuse of other children in the home. We find no error in the juvenile court's summary denial of the grandparents' section 388 petitions regarding Akia.

DISPOSITION

All of the orders from the parties' consolidated appeals are affirmed.

We concur:

BOREN, P. J.

ASHMANN-GERST, J.

FootNotes


1. Another daughter, Akua, who was the mother of Akia, is deceased.
2. Unless otherwise noted, all statutory references shall be to the Welfare and Institutions Code.
3. Isaiah's mother, Iola, joins in this appeal.
4. The report stated: "Legal guardians, Frank and Ola [M.], have created a detrimental and unsafe home environment for the child Isaiah [M.]. Mr. and Mrs. [M.] have a substantial history of DCFS involvement and Dependency cases. Further, the child has been exposed to bouts of violence including physically of the child and of the child's minor cousins. Additionally, Mr. and Mrs. [M.] have allowed Nathanial [M.] to have unlimited access to the minor children in the home, despite their knowledge that Nathanial has sexually abused children in their home. At the initial referral investigation Nathanial was residing in the home and Mr. and Mrs. [M.] refused to remove him from their residence. . . .

"Further, Frank and Ola [M.], as parents of [Isaiah's mother] and as guardians of the children, Isaiah [M.], Sahri [M.] and Akia [M.], have 3 additional dependency court cases. Mr. and Mrs. [M.] have a history of non-compliance and disregard towards any authority figure. In addition, Frank and Ola [M.] failed to complete reunification services to reunify with the child Isaiah's minor cousin Akia [M.] and the Court terminated their guardianship of the child Akia on 07/18/2008. The history of the family reveals a chaotic and dysfunctional household. . . .

"[W]ith the history associated with this family it is clear that there is multigenerational dysfunction in the [M.] home. . . . The [M.] family has had over 100 child abuse/neglect referrals with just as many law enforcement calls for services made from the home. Further, the family has had numerous Voluntary and Court cases. The Department has been involved with the family for over 7 years and how is dealing with Mr. and Mrs. [M.'s] grandchildren."

Source:  Leagle

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