Filed 3/19/13 In re L.P. CA1/5

                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



In re L.P. et al., Persons Coming
Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL                                                       A135810
SERVICES AGENCY,
         Plaintiff and Respondent,                                          (Alameda County Super. Ct.
                   v.                                                       Nos. J177157, J177158,
KRISTA S.,                                                                  and OJ10015185)
      Defendant and Appellant.
________________________________________/

         S. (mother) appeals from a juvenile court order limiting her right to make
educational decisions with respect to her three children. She contends the court abused
its discretion and violated her due process rights by limiting her ―educational rights.‖
         We affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
         We provide only the factual and procedural details that are germane to mother‘s
specific claims.
         Mother has three children: L.P. (born in 1996), A.P. (born in 1999), and A.S. (born
in 2001). In July 2010, the Alameda County Social Services Agency (the Agency) filed a
petition alleging the children came within Welfare and Institutions Code section 300,


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subdivision (b), specifically that: (1) mother‘s anger management problem and drinking
and drug use prevented her from adequately parenting the children, (2) mother
―physically abused all of the [children] with brooms, belts or her hand,‖ and (3) ―mother
[did] not have sufficient food in the home at all times because she uses the money to buy
alcohol and drugs.‖1 The court detained the children, found jurisdiction, and ordered
reunification services for mother. In July 2011, the court returned the children to
mother‘s care under the supervision of the Agency. In December 2011, the court issued a
bench warrant for mother and a protective custody warrant as to the children because the
minors had not been seen in several weeks.
               The Section 387 Petition and Restraining Order Application
       In January 2012, the Agency filed a section 387 petition stating: (1) the children
had been detained; (2) mother had failed to adhere to her case plan; and (3) mother
refused to inform the court about her children‘s whereabouts and was ―hiding‖ them from
the Agency and the court. The court detained the children and authorized the Agency to
facilitate supervised phone contact between the children and mother. The court later
authorized the Agency to facilitate supervised visits between the children and mother.
       In early April 2012, counsel for the children requested the court modify the current
visitation and contact order ―to more appropriately meet the children‘s needs and avoid
further detrimental contact.‖ On April 12, the Agency filed an interim review report
describing the children‘s various behavioral problems and reporting that, among other
things, A.P. had been involuntarily hospitalized after writing in a school journal that he
wanted to kill people at school. According to the Agency, the children ―want a healthy
mother who does not hit them, beat them or berate them. . . . [M]other sees nothing
wrong in her behavior which is why it is difficult for her to consider changing her


1   Unless otherwise noted, all further statutory references are to the Welfare and
Institutions Code. The Agency filed a section 300 petition in 1999 alleging the children
came within section 300, subdivisions (a), (b), and (j). The children were returned to
mother‘s custody after spending nearly four years in foster care. The presumed father is
not a party to the appeal.

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behavior. [She] does not connect the dots between her addictions, and mental health
issues and the [children‘s] behavior.‖
       That same day, children‘s counsel filed a restraining order application requesting
the court order mother to stay away from the children, their schools, and their foster
parents. The application stated mother had defied the search and seizure warrant issued
in December 2012, had refused to disclose the location of her children for three weeks,
and had harassed and verbally threatened the children since they entered foster care. The
court issued a restraining order prohibiting mother from visiting the children and from
going near the location where the children were visiting each other. Although the court
allowed mother to have supervised telephone contact with A.S., it determined mother had
―continued to engage in a pattern of harassment of both the children and foster mother‖
and had ―placed the children in an emotionally compromised position leading to one of
their hospitalizations.‖
       Following the contested jurisdictional and dispositional hearing on the section 387
petition, the court issued an order concluding, among other things, that: (1) the
allegations in the section 387 petition were true; (2) mother had failed to comply with her
case plan; and (3) there was clear and convincing evidence that returning the children to
mother‘s custody would cause a ―substantial danger [their] physical health, safety,
protection, or physical or emotional well-being.‖ The court ordered mother to ―cooperate
with and make reasonable efforts to obtain all educational services necessary to meet the
needs of the children‖ and advised her ―that failure to do so may result in termination of
[her] educational rights and appointment of an educational surrogate.‖ It denied further
reunification services for mother, reissued the April 2012 restraining order, and set a
status review hearing.
       In early May 2012, and following a hearing on L.P.‘s motion to modify the
restraining order, the court ordered mother ―not to have any type of contact‖ with L.P.
and ―not to take any actions related to [her] educational issues.‖




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                    The Order Regarding Mother’s Educational Rights
       At a May 22, 2012 review hearing, counsel for mother urged the court to allow
mother to retain her educational rights ―as long as there is a clear understanding that [she]
is to have no physical contact during that time with her children.‖ Counsel explained it
was ―not necessary to protect the child[ren] by completely eliminating mother‘s
educational rights.‖ Counsel claimed mother had ―been a constant advocate for her
children. With regard to [L.P], [mother] has spoken to the Oakland Unified School
District when she realized that there was going to be an [individualized education plan]
regarding [L.P.] and she informed them that there is an existing restraining order out
against her; and . . . the Oakland School District advised her that she could meet with the
group separately. As long as there is no contact, the mother wishes to be able to exercise
her educational rights. She realizes that this has to be outside the presence of her
children. She has already signed on.‖ Counsel continued, mother ―feels that [L.P.] could
use her in the school setting. She has already signed [A.P.] up for summer school, but
she‘s had no opportunity to do anything with regarding to [A.S.] because she . . . has no
idea what school [A.S.] goes to and even how she is doing.‖
       In response, counsel for the children argued maintaining mother‘s educational
rights ―creates the opportunity for [her] to be more involved and more engaged and to
regain custody. Mother‘s control and custody have led them to have intense disruption.
They‘ve experienced multiple placement changes, trauma and confusion and instability.‖
Counsel also noted that the restraining order and mother‘s ―behavior‖ constituted
circumstances compromising her ability to exercise her educational rights under section
358.1, subdivision (e).2 Regarding telephone contact, counsel for the minors expressed


2   Section 358.1, subdivision (e) requires a social worker or child advocate who prepares
a social study or evaluation to discuss the following subject: ―If the parent or guardian is
unwilling or unable to participate in making an educational decision for his or her child,
or if other circumstances exist that compromise the ability of the parent or guardian to
make educational decisions for the child, the county welfare department or social worker
shall consider whether the right of the parent or guardian to make educational decisions
for the child should be limited. If the study or evaluation makes that recommendation, it
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concern that mother would ―abuse that privilege‖ and ―bait the children into
communicating with her. . . . [¶] . . . [M]other has failed to put the children‘s needs first.
Again, to allow supervised phone contact would only give [her] an opportunity to abuse
that privilege and abuse that right.‖
       After hearing additional argument from counsel, the court stated: ―Based on the
totality of the circumstances and my review of all of the reports in this matter, I have to
agree with [counsel for the children]. I think that [mother] should not be having any
contact with the children. I do think that the children are entitled to some stability. I do
not believe that [mother] should be in charge of [L.P.‘s] educational rights.‖ In addition,
the court agreed with counsel for the children‘s recommendation that mother‘s
educational rights be limited as to A.P. and A.S. Following the hearing, the court issued
―Findings and Orders Limiting Right to Make Educational Decisions for the Child,
Appointing Educational Representative, and Determining Child‘s Educational Needs‖
(form JV–535, rev. July 1, 2008) limiting mother‘s educational rights as to the children.
The court also modified the restraining order issued in April 2012 to prohibit mother
from contacting L.P.‘s foster mother, as well as the three children.
                                        DISCUSSION
       Mother contends the order limiting her right to make educational decisions with
respect to the children must be reversed because: (1) the order is not supported by
substantial evidence; (2) the court based ―its determination on improper factors[;]‖ and
(3) the court violated her due process rights.
       Parents have a constitutionally protected right to control their children‘s education.
(Troxel v. Granville (2000) 530 U.S. 57, 65; In re R.W. (2009) 172 Cal.App.4th 1268,
1276.) The juvenile court, however, may limit a parent‘s right to control his or her
child‘s education when the child has been declared a dependent under section 300.
(§ 361, subd. (a)(1); Cal. Rules of Court, rule 5.650(a).) The court has broad discretion to


shall identify whether there is a responsible adult available to make educational decisions
for the child pursuant to Section 361.‖

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make reasonable orders for the care and support of a child, but any limitations on a
parent‘s control over educational decisions under section 361 must not exceed ―those
necessary to protect the child.‖ (§ 361, subd. (a)(1); Jonathan L. v. Superior Court
(2008) 165 Cal.App.4th 1074, 1087, fn. 12.) We review the juvenile court‘s order
limiting mother‘s educational rights for abuse of discretion. (In re R.W., at p. 1277.)
Under that standard, we do not disturb the ruling unless we find the juvenile court
― ‗ ―exceeded the bounds of reason‖ ‘ ‖ and find the order ― ‗ ―an arbitrary, capricious, or
patently absurd determination.‖ ‘ ‖ (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
       Mother contends the procedure used to limit her educational rights was somehow
unfair because there was no substantial evidence that the limits placed on her educational
rights were ―necessary to protect‖ the children under section 361, subdivision (a)(1). We
disagree. The court had before it evidence establishing mother did not comply with her
case plan and that she had defied various court orders, including a restraining order. The
court also had before it evidence that mother‘s involvement in the children‘s lives was
disruptive and traumatic: it had determined mother had ―continued to engage in a pattern
of harassment of both the children and foster mother‖ and had ―placed [the] children in
an emotionally compromised position leading to one of their hospitalizations.‖ Mother‘s
involvement in her children‘s education may have been well intentioned, but it
exacerbated her children‘s behavioral struggles and caused instability in their lives.
Based on this evidence, the court was well within its discretion to conclude limiting
mother‘s educational rights was ―necessary to protect‖ the children under section 361.
(In re R.W., supra, 172 Cal.App.4th at p. 1277 [evidence ―amply supported the juvenile
court‘s decision‖ to limit the parents‘ educational rights].)
       Next, mother seems to contend insufficient evidence supports the order because
her trial counsel stated at the May 22, 2012 hearing that a representative of the Oakland
Unified School District would allow mother to ―be involved in the [individualized
education plan for L.P.] by meeting with the group separately from the child.‖ According
to mother, the court should have treated counsel‘s statement as ―evidence‖ because
counsel was an officer of the court and because none of the parties objected to, or

                                              6
disputed, counsel‘s statement. We are not persuaded. Assuming for the sake of
argument that counsel‘s statement was — as mother contends — ―evidence,‖ it would not
alter our conclusion given the overwhelming evidence supporting the court‘s conclusion
that limiting mother‘s educational rights was ―necessary to protect‖ the children under
section 361.
       That mother was willing and able to exercise her educational rights does not
demonstrate the court abused its discretion by restricting those rights. In an April 2012
report, the Agency opined that the children‘s ―mother sees nothing wrong in her behavior
which is why it is difficult for her to consider changing her behavior. [She] does not
connect the dots between her addictions, and mental health issues and the [children‘s]
behavior.‖ Mother had not ―shown good judgment in making decisions affecting [the
children and] had been deemed an unfit parent, and her reunification services had been
terminated.‖ (In re R.W., supra, 172 Cal.App.4th at p. 1278.) Given mother‘s lack of
self-insight and self control, her willingness to exercise her educational rights does not
undermine the court‘s conclusion that limiting those rights was ―necessary to protect‖ the
children. (§ 361, subd. (a)(1).)
       Mother claims the court improperly ―agreed‖ with statements made by counsel for
the children because those statements were unsupported by the evidence. Mother also
contends the court improperly relied on counsel‘s statements, which somehow
demonstrated the court ―did not understand the controlling legal principles involved in
the determination.‖ We disagree. The court based its ruling on ―the totality of the
circumstances‖ and on its ―review of all of the reports in this matter‖ not on any one
factor or statement by counsel.
       Finally, mother suggests the order limiting her educational rights violated her
constitutional right to due process. Mother has not established a due process violation.
Mother had notice that the court might limit her educational rights. At a hearing in April
2012, the court ordered mother to ―cooperate with and make reasonable efforts to obtain
all educational services necessary to meet the needs of the children‖ and advised her ―that
failure to do so may result in termination of [her] educational rights and appointment of

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an educational surrogate.‖ In addition, mother was present at the May 22, 2012 hearing
and was ably represented by counsel. Mother does not argue she was prevented from
offering evidence supporting her desire to retain educational rights at the hearing. (See In
re R.W., supra, 172 Cal.App.4th at p. 1278 [―[m]other does not contend she wanted to
present evidence or testify at the hearing‖].)
                                       DISPOSITION
       The juvenile court‘s May 22, 2012 order limiting mother‘s educational rights is
affirmed.




                                                        _________________________
                                                        Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Needham, J.




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