In re R.P.
In re R
In re R.P.
Filed 1/25/13 In
re R.P. CA4/1
NOT TO BE PUBLISHED IN
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
In re R.P., a
Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY
HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
N.T. et al.,
Defendants and Appellants.
(Super. Ct. No. SJ12371)
from a judgment of the Superior Court of San Diego
County, Ronald F. Frazier, Judge. Affirmed.
is the dependency case of child R.P., who is now five years old. In May 2012, the juvenile court denied the
Welfare and Institutions Code section 388
modification petition of his maternal aunt, Gabriella S., and terminated the
parental rights of R.P.'s mother and father, N.T. and Robert P. (together, the
parents). The parents and Gabriella
appeal. N.T., joined by Robert,
contends the court erred by declining to apply the beneficial relationship
exception to termination of her parental rights (§ 366.26, subd.
(c)(1)(B)(i)). Gabriella contends the
court abused its discretion in denying her section 388 petition. We affirm.
has a history of paranoid
schizophrenia. She was stable when
she took her prescribed medication, but stopped taking the medication in order
to become pregnant. When R.P. was born
in November 2007, N.T. did not resume taking her medication.
May 2010, Gabriella went to N.T.'s home and found her in a "zombie
like" state. Two-year-old R.P. was
hungry and extremely dirty. The home was
in disarray. N.T. expressed suicidal and
homicidal thoughts. She had not eaten
for three days. She said she wanted to
see R.P. "die slowly" by starvation.
took N.T. to a psychiatric hospital, then took R.P. to her own home in Riverside County. The San Diego County Health and Human Services
Agency (Agency) filed a dependency petition for R.P. based on the above events
and the parents' history of paranoid schizophrenia.
was detained with Gabriella. R.P. had
never been away from N.T. and cried for her.
Gabriella told the Agency she was committed to adopting R.P. or becoming
his guardian if the parents did not reunify with him. R.P. exhibited problematic behavior in
Gabriella's care, including self-induced vomiting, biting, sleep disturbances
and frequent tantrums. N.T. was openly
critical of Gabriella's care of R.P.
was clear at the beginning of the case that R.P. was bonded with N.T. Although N.T. was sometimes loving and
appropriate during their supervised visits, at other times she was unable to
set limits, discipline R.P. appropriately and redirect his behavior when
needed. N.T. related to R.P. in ways
inappropriate to his age. She spoke to
him about issues beyond a child's comprehension. She cradled and rocked him, as if he were an
infant, despite his resistance. N.T.
disregarded advice regarding R.P.'s physical health. She persisted in putting gel in his hair
although his pediatrician said the gel caused a rash. N.T. gave R.P. chocolate although she knew he
might be allergic to it.
July 14, 2010, Gabriella took R.P. to the maternal grandparents' home. The next day, Gabriella called social worker
Caitlin McCann and said that due to unforeseen financial and family
circumstances, she could no longer care for R.P. Gabriella cited R.P.'s behavior, her own conflicts
with N.T. and other issues. There was
extreme tension between Gabriella and N.T., and Gabriella appeared unable to
cope with the tension. She was also
unable to "assist and [redirect N.T.] in her increasing concerning
interactions with [R.P.]." R.P. was
aware of the discord between N.T. and Gabriella, and it affected him
adversely. Gabriella had several
children, including one with special needs, and her husband was on military
July 15, 2010, McCann picked up R.P. from the maternal grandparents' home and
transported him to Polinsky Children's Center.
On July 23, because no relatives' homes were available for placement,
the Agency moved R.P. to a preadoptive foster home, that is, the home of a
foster parent who was willing to provide R.P. a permanent home if reunification
efforts failed (§ 366.21, subd. (l)(1);
see also § 358.1, subd. (b)).
R.P.'s behavior improved in the foster home.
August 2010, the court made a true finding on the dependency petition. In October, the court ordered R.P. placed in
foster care and granted N.T. reunification services. In November and December, Robert physically
assaulted his brother and verbally threatened his elderly mother. Although N.T. was aware of Robert's violence,
she continued to take him to visits with R.P. N.T. insisted that the three of them should
"be a family."
November or December 2010, R.P.'s foster parent notified the Agency that her
church obligations prevented her from caring for R.P. any longer. McCann contacted Gabriella and asked her if
it would be feasible to place R.P. with her.
Gabriella said no and noted that her husband was still deployed and they
might be moving to Japan. This was Gabriella's first
contact with the Agency since July.
the 2010 Thanksgiving holiday, Gabriella had an overnight visit with R.P. This was her first contact with R.P. since
July. R.P.'s problematic behaviors,
which had nearly disappeared, resumed after the visit.
a 2010 Christmas holiday visit at Gabriella's home, she reported R.P. had
tantrums, repeatedly "cried over everything," threw himself on the
ground when anyone told him "no," scratched himself on purpose,
curled up in a fetal position and was restless in his sleep. Gabriella appeared overwhelmed by this
2010, when McCann met with Gabriella,
Gabriella asked to be reevaluated for R.P.'s placement. The Agency inspected and approved Gabriella's
home. McCann inquired how Gabriella's circumstances
had changed to allow her to resume caring for R.P. Gabriella replied that aside from her
financial situation, which had been rectified, "nothing has changed." Gabriella said, "We're just [going to]
have to make it work. I don't know how,
but [we're going to] have to make it work.
I don't want him to go to strangers."
Agency "had numerous concerns with [Gabriella]'s ability to care for
[R.P.] and his special needs, as well as her abilities to care for him long
term if a concurrent plan is needed."
The Agency was concerned about the conflicts between Gabriella and N.T.,
which would hinder reunification, and about R.P.'s behavior while in
Gabriella's care. McCann spoke with
Gabriella about the factors that had led her to discontinue caring for R.P. in
July 2010, including the impact on her children, her husband's deployment and
the delay inherent in arranging for services in Riverside County. During the December 27 discussion, Gabriella
claimed she would be able to set boundaries with N.T. and help her interact
with R.P. more appropriately. McCann saw
Gabriella as making "a last ditch effort rather than really wanting and
truly committing to [R.P.]." The
Agency decided Gabriella was "not an appropriate placement for [R.P.] at
this time" and placement with Gabriella would not be in R.P.'s best
interests. On January 21, 2011, the Agency notified Gabriella of this decision. Gabriella had no further in-person contact
with R.P. for the rest of this case.
on January 4, 2011, the Agency moved R.P. to a temporary foster home while the
Agency searched for a preadoptive home.
On March 14, after a transition period lasting approximately one month,
R.P. was moved to the preadoptive foster home of the M. family. The M.'s were willing to adopt R.P. if
reunification efforts failed. This was
R.P.'s fifth placement, and he remained in the M.'s home for the remainder of
the 12-month review hearing in November 2011, the court terminated
reunification services and set a section 366.26 hearing. In December, Gabriella moved to Japan. In January 2012, she learned that services
had been terminated. On May 11, she
filed her section 388 petition. The petition
sought modification of an unspecified "February 2011" order and
requested that R.P. be placed with Gabriella for adoption. On May 31, 2012, the court denied the
petition and terminated parental rights.
SECTION 388 PETITION
388 allows the juvenile court to modify an order if a party establishes, by a
preponderance of the evidence, that changed circumstances exist and the
proposed modification would promote the child's best interests. (In re
Zachary G. (1999) 77 Cal.App.4th 799, 806.)
When a case is past the reunification phase, the focus is on the child's
need for permanency and stability, and there is a rebuttable presumption that
it is in the child's best interests to remain in the current placement. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.)
We review the denial of a section 388 petition for an abuse of
discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
a changed circumstance, Gabriella's petition alleged that that she was no
longer having financial difficulties. The court concluded she had shown a change of
circumstance with respect to her financial situation, but she had not shown
that a change of placement was in R.P.'s best interests. The court noted there had been five
placements, and R.P. was in a stable environment where he was thriving.
contends the court abused its discretion by failing to find that it was in
R.P.'s best interests to be placed with her. She argues she and her family had a bond with
him that began when he was born; he was placed with her early in this case; and
she is able to give him a stable and loving home. Gabriella asserts her sole motive in
relinquishing R.P. in July 2010 was to further his best interests, and her
subsequent paucity of contact with him was motivated by her wish not to
interfere with N.T.'s reunification.
Gabriella claims that as a relative, she is entitled to placement
preference (§ 361.3). Finally, she
argues the M.'s were unwilling "to nurture any relationship" between
R.P. and his biological family and there was no evidence that severing R.P.'s
bond with the M.'s would cause him long-term emotional problems. To the extent the Agency's evidence conflicts
with Gabriella's on the best interests issue, we accept the court's implied
determination that the Agency's evidence was more credible. (In re
Dakota H. (2005) 132 Cal.App.4th 212, 228.)
relative placement preference does not assist Gabriella. Section 361.3 gives "preferential
consideration" to placement requests by certain relatives upon the child's
removal from the parent's physical custody at the dispositional hearing. (§ 361.3, subds. (a) & (c); In re Lauren R. (2007) 148 Cal.App.4th
841, 854.) " 'Preferential
consideration' means that the relative seeking placement shall be the first
placement to be considered and investigated." (§ 361.3, (c)(1).) "Preferential consideration 'does not
create an evidentiary presumption in favor of a relative, but merely places the
relative at the head of the line when the court is determining which placement
is in the child's best interests.'
[Citation.]" (In re Antonio G. (2007) 159 Cal.App.4th
369, 376.) After the original
dispositional hearing, the relative placement preference does not arise again
until "a new placement of the child must be
made . . . ."
(§ 361.3, subd. (d), quoted in In
re Lauren R., at p. 854.) At the
time of the section 388 hearing, R.P. had been in his preadoptive home for more
than a year and no new placement was necessary.
Moreover, as noted above, because this case was past the reunification
phase, the focus was on R.P.'s need for permanency and stability, and there was
a rebuttable presumption that it was in his best interests to remain with the
M.'s. (In re Stephanie M., supra,
7 Cal.4th at p. 317.)
the time of the hearing, Gabriella and her family were living in Japan where
her husband will be stationed until approximately December 2014. Gabriella testified there were services
available there, but admitted she did not know what services R.P. needed. Gabriella declared N.T. would be unable to
interfere with her care of R.P. any longer because Gabriella was in Japan. Gabriella testified that N.T. would also be
prevented from interfering if Gabriella became R.P.'s adoptive parent; R.P.'s
behavior had not been a factor in her decision to stop caring for him; and her
financial condition had been the sole factor.
had not seen R.P. since December 2010.
In the 15 months preceding the hearing, she had apparently spoken with
him by telephone only once, in January 2012. Gabriella testified she kept her
"distance" from R.P. to avoid conflicts with N.T. and other relatives
and because it would "devastate" Gabriella and her family if they
never saw R.P. again. Gabriella believed
this distance had been in R.P.'s best interests.
court did not abuse its discretion in concluding that Gabriella had failed to
show the proposed modification was in R.P.'s best interests. As discussed more fully below, R.P. had been
living with the M.'s for more than a year; they wished to adopt him; and he was
flourishing in their care and bonded with them.
An order granting Gabriella's section 388 petition would have caused
R.P. to be removed from a loving, stable home and placed in an unfamiliar
environment with caregivers with whom he had had little recent contact.
The court did not
abuse its discretion by denying the section 388 petition.
BENEFICIAL RELATIONSHIP EXCEPTION
a dependent child is adoptable,
the court must terminate parental rights at the section 366.26 hearing unless
the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th
71, 80-81.) One such exception exists if
"[t]he parents have maintained regular visitation and contact with the
child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) A beneficial relationship is one that
"promotes the well-being of the child to such a degree as to outweigh the
well-being the child would gain in a permanent home with new, adoptive
parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) If terminating parental rights "would
deprive the child of a substantial, positive emotional attachment such that the
child would be greatly harmed, the preference for adoption is overcome . . .
." (Ibid.) The existence of a
beneficial relationship is determined by "[t]he age of the child, the
portion of the child's life spent in the parent's custody, the 'positive' or
'negative' effect of interaction between parent and child, and the child's
particular needs . . . ." (Id. at p. 576.) Examining the evidence in the light most
favorable to the judgment (ibid.), we
conclude that while N.T. maintained regular visitation and contact, substantial
evidence supports the court's finding the benefits adoption would confer on R.P.
outweighed the parent-child bond.
the time of the hearing, R.P. was four and one-half years old and had been out
of N.T.'s care for two years. Their
visits were always supervised. According
to R.P.'s behavioral therapist, the relationship between R.P. and N.T. was
dysfunctional. Adoptions social worker
Sarah Ulrich believed N.T.'s relationship with R.P. was not "a parenting
type of relationship." N.T. lacked critical
and fundamental parenting skills. She
remained unable to set limits and allowed R.P. to be the authority figure in
behavior during visits upset R.P., and she was unable to recognize this. N.T. frequently argued with the social worker
and others in R.P.'s presence. During a
January 2012 visit attended by R.P.'s court-appointed special advocate (CASA),
N.T. repeatedly asked the CASA if she "was going to rip her child out of
her arms." After visits with N.T.,
R.P. was "worn out" and subdued.
was sometimes inattentive to R.P. during visits and sometimes confrontational
with him. She interrogated him. She repeatedly told him to be careful when
there was no apparent danger. During visits
and telephone calls, N.T. repeatedly discussed matters pertaining to the case
with R.P. During a May 2012 visit, she
tried to discuss placement with him. She
refused to change the subject although the social worker told her several times
to do so and R.P. cried and begged N.T. to stop.
enjoyed visits largely because he demanded certain gifts from N.T. and she
generally complied. When she did not, he
became upset. He showed no distress when
they parted. Often R.P. did not want to
come to the telephone when N.T. called and, after telephone conversations with
her, he appeared emotionally upset.
was flourishing in his prospective adoptive home. His behavioral therapist described the M.'s
as supportive of R.P. and said they had created a good home for him. R.P. had lived in the home for more than a
year. He had adjusted well and was well
behaved. He was happy, attached to the
M.'s and called them "mom and dad."
R.P. was also very close to the M.'s six-year-old son. The M.'s wished to adopt R.P. When Ulrich asked R.P. how he would feel
about being adopted by his prospective adoptive parents, R.P. said, "I
have been trying really hard . . . on getting them to keep
me." R.P. said he would be sad if
he did not see N.T. again, but "she was not safe." He described feeling scared when he was in
evidence supports the conclusion R.P.'s relationship with N.T. did not promote
R.P.'s "well-being . . . to such a degree as to outweigh the well-being
[R.P.] would gain" by being adopted.
(In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Substantial evidence supports the court's
decision not to apply the exception.
judgment is affirmed.
HALLER, Acting P. J.
 All further statutory references are to
the Welfare and Institutions Code.
 Robert contends if N.T.'s parental
rights are reinstated, his must also be reinstated.
 In January 2011, a temporary
restraining order was issued to prohibit contact between Robert and R.P. and,
in May, the juvenile court ordered that there be no in-person contact between
Robert and R.P. There is no indication
N.T. violated either order.
 At the section 388 hearing, Gabriella
testified that she made this statement in November 2010, not in December. She testified that in December her financial
situation was "fine," although she apparently did not have a vehicle
large enough to transport her children and R.P. simultaneously.
 The maternal grandparents were
additional petitioners, and the petition requested placement with Gabriella as
an alternative to placement with the maternal grandparents. The court summarily denied the petition
insofar as it concerned the maternal grandparents, and they do not appeal. Gabriella now contends the court improperly
denied the maternal grandparents' request for placement. We need not address this contention, as
Gabriella lacks standing to raise the issue.
(In re S.A. (2010) 182
Cal.App.4th 1128, 1134.)
 At the hearing,
Gabriella testified that in July 2010, her car was repossessed and she was on
the verge of losing her home through foreclosure. She also testified that she then lived in
Riverside County, and it had been difficult for her to access services for R.P.
in San Diego County. Gabriella did not
apprise the Agency of these specific difficulties at the time. Furthermore, in 2010, Gabriella and N.T. told
the Agency that N.T. and other relatives were planning to move to Riverside
County. Thus, McCann communicated with
the Riverside County Department of Public Social Services about services
available there, and about a possible transfer of the case if N.T. moved.
 Gabriella raises several forfeited
issues. (In re
S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on
other grounds as stated in In re M.R.
(2005) 132 Cal.App.4th 269; In re Crystal
J. (1993) 12 Cal.App.4th 407, 411-412.) First, she argues that before she relinquished
care of R.P. in July 2010, she repeatedly asked the Agency for services in
Riverside County, to no avail, and the lack of services contributed to her
financial strain and caused the relinquishment.
She did not raise this issue until the section 388 proceedings, when it
was too late for any effective relief.
Gabriella argues the Agency should have placed R.P. with her in December 2010
or January 2011 when her circumstances had changed; the Agency instead moved
him twice without informing her; and the Agency failed to place R.P. with her
because she had relinquished him and because her husband was in the
military. She argues this failure to place
led to her section 388 petition, and she did not know earlier that she could
file a petition to seek placement. The
time for Gabriella to challenge this placement denial was in early 2011, when
the Agency notified her of the denial, not now.
at the section 388 hearing, the Agency offered into evidence a "gram"
regarding placement prepared by McCann in January 2011. Gabriella did not object in the juvenile
court to the admission of the gram, and the court admitted it into evidence. The gram is dated "[January 2,
2011]," but refers to McCann's "[January 21, 2011]" consultation
with her supervisor. Gabriella now
complains the dates in the gram are internally inconsistent and inconsistent
with McCann's testimony. Gabriella also
questions why the court did not receive the gram until the section 388
hearing. Gabriella may not raise this
evidentiary challenge for the first time on appeal.
 In her declaration in support of her
section 388 petition, Gabriella listed N.T.'s interference as another reason
for the relinquishment. The Agency
asserts the declaration was not offered into evidence and the court did not
consider it. The declaration was part of
the section 388 petition and R.P.'s counsel cross-examined Gabriella about the
 At the hearing, R.P.'s counsel asked
Gabriella "how many times [she had] spoken to" R.P. "in the past
15 months." Gabriella replied,
"I spoke with him the day before I left this January." She did not mention any other conversations.
 N.T. does not contest the adoptability
the first time in her reply brief, N.T. contends the Agency attempted to
restrict her free exercise of religion by directing that the daily blessing she
gave R.P. be in English. N.T. filed a
section 388 petition on this issue, and the court allowed her to give the
blessing in Spanish as she requested.