In re A.C.
Filed 2/4/13 In re A.C. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.C., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff
and Respondent,
v.
D.H.,
Defendant
and Appellant.
E055555
(Super.Ct.No.
INJ1100102)
OPINION
In re B.O. et al., Persons Coming Under the Juvenile Court
Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff
and Respondent,
v.
D.H. et al.,
Defendants
and Appellants;
G.H.,
Appellant.
E056286
(Super.Ct.No.
INJ1100102)
APPEAL from the Superior
Court of
County. Lawrence
P. Best, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed as to
case No. E055555. Affirmed as to case
No. E056286.
Konrad S. Lee, under
appointment by the Court of Appeal, for Defendant and Appellant D.H.
Marissa Coffey,
under appointment by the Court of Appeal, for Defendant and Appellant E.O.
Sharon S. Rollo,
under appointment by the Court of Appeal, for Appellant G.H.
Pamela
J. Walls, County Counsel,
and Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
D.H. (hereafter
mother) and E.O. (hereafter father) purport to appeal from the trial court’s
order on a Welfare and Institutions Code section 300 petition terminating their
parental rights with respect to their two young children, B.O. and E.O.
the trial court abused its discretion in denying the section 388 petitions
filed by G.H., the maternal grandfather of B.O. and E.O., in which he sought an
order placing the two children with him.
G.H. also appeals from the trial court’s order denying his section 388
petitions. In a separate appeal
(E055555), mother challenges the trial court’s disposition order denying her
child, A.C., who was living with his father pursuant to a family law custody
order at the time the section 300 petition was filed in this case. We conclude the claims are all meritless, and
therefore we will affirm.
The pertinent
facts, which are not disputed, are recounted in detail in our opinion in case
No. E055147 in which we denied the writ petitions of mother and father after
the trial court denied them reunification services and set the selection and
implementation hearing. In order to
resolve the issues raised in this appeal, it is sufficient to note that
Services (DPSS) filed a section 300 petition in February 2011 with respect
to E.O., B.O., and A.C. after a physical examination of then-four-month-old
E.O. disclosed the infant had suffered severe physical injuries, including
multiple bruises on his body that were in various stages of healing, a skull
fracture, a fractured forearm, a fractured humerus, two fractured tibias, and
several fractured ribs. The fractures
also were in varying stages of healing.
Other tests disclosed E.O. had internal bleeding and a laceration on his
liver. Mother claimed there was a family
history of anemia and easy bruising, but neither mother nor father could
explain the fractured bones. Both mother
and father denied they had inflicted the injuries.
Additional
facts will be recounted below as pertinent to our resolution of the issues
raised in this appeal.
REUNIFICATION SERVICES
Mother contends the trial
court erred in denying her reunification services with her oldest child,
A.C. In February 2011, when DPSS filed
the section 300 petition, then-four-year-old A.C. lived with his father, O.C.,
who had sole physical custody of the child pursuant to a family law custody
order. Nevertheless, DPSS included
allegations regarding A.C. in the section 300 petition it filed after it
removed E.O. and then-18-month-old B.O. from mother’s custody based on the
severe physical injuries E.O. had suffered.
At the conclusion
of the contested jurisdiction hearing,
the trial court denied reunification services to mother with respect to all
three children under section 361.5, subdivision (b)(6) which states, in
pertinent part, that reunification services need not be provided to a parent if
the court finds by clear and convincing evidence “[t]hat the child has been
adjudicated a dependent pursuant to any subdivision of Section 300 as a result
of . . . the infliction of severe physical harm to the child, a
sibling, or a half sibling by a parent or guardian, as defined in this
subdivision, and the court makes a factual finding that it would not benefit
the child to pursue reunification services with the offending parent or
guardian.†The trial court removed the
two younger children from mother’s custody and placed them in out-of-home
care. The trial court ordered that A.C.
remain with his father. The trial court
also awarded the father sole legal and physical custody of A.C., with mother to
have monthly supervised visits. The
trial court then terminated jurisdiction over A.C.
Mother contends
the trial court abused its discretion in denying her reunification services
with A.C., because the evidence did not establish that she had caused E.O.’s
physical injuries. We will not address
the particulars of mother’s claim, because A.C. was not removed from mother’s
physical custody, and therefore mother was not entitled to reunification with
the child. Section 16507, subdivision
(b) states, “Family reunification services shall only be provided when a child
has been placed in out-of-home care, or is in the care of a previously
noncustodial parent under the supervision of the juvenile court.â€
The trial court,
as previously noted, ordered that A.C. remain in the care of his current
custodial parent, his father, who had custody of the child pursuant to a family
law order. Because the trial court did
not order A.C. placed in either out-of-home care or with a previously
noncustodial parent, mother was not entitled to reunification services, her
contrary arguments notwithstanding. In
short, the trial court reached the right result with respect to A.C., even
though it relied on section 361.5 rather than section 16507 as authority for
its decision.
MATERNAL GRANDFATHER
The
remaining issue we must resolve is whether the trial court abused its
discretion when it denied the section 388 petitions filed by the maternal
grandfather, G.H., in which he requested that E.O. and B.O. be placed with him
for adoption. We conclude, as we explain
below, that the trial court did not abuse its discretion.
The
pertinent factual and procedural details are not in dispute. After the trial court denied reunification
services to mother and father, it set the selection and implementation hearing
for April 2, 2012, and
ordered DPSS to evaluate any proposed relatives as potential adoptive
parents. In all previous placement
discussions, mother and father had identified the children’s paternal
grandparents as relatives willing to take temporary custody of B.O. and E.O., and
DPSS had submitted the appropriate referral to DPSS’s relative assessment unit
(RAU). According to a discussion that
occurred at the conclusion of the contested jurisdiction and disposition
hearing on December 1, 2011,
DPSS had not placed the children with the paternal grandparents because the
paternal grandmother had an outstanding warrant in Riverside
County. The case social worker represented to the
court that the RAU social worker had twice sent an exemption packet to the
paternal grandmother, but she had not completed and returned that
paperwork. The paternal grandmother
purportedly had also hung up when the RAU social worker tried to contact her by
telephone.
The trial court
ordered DPSS to “revisit the assessment of the grandparents, specifically
confirm whether or not that warrant is this particular person [presumably
referring to the paternal grandmother], and either proceed with it [presumably
referring to placing the children with the paternal grandparents] or show us
that we can [sic].â€
request to set an interim status hearing on the issue, but granted father’s
request to have DPSS look at any relatives the parents identified as potential
adoptive parents.
In
that regard, the social worker’s completed services log, attached to the report
for the section 366.26 hearing, indicates that on December 5, 2011, the case
social worker confirmed that the paternal grandmother had a misdemeanor warrant
issued in May 1994. On that same day,
the RAU social worker contacted the maternal grandmother by telephone and left
a message asking her to call back so that they could continue with the
placement process. The RAU social worker
was “still waiting for the exemption paperwork/documents†from the paternal
grandmother, who needed to “take care of her Active [sic] misdemeanor warrant issue[d] 05/05/1994.†On December 13, 2011, the RAU social worker
closed the assessment and evaluation of the paternal grandparents because the
paternal grandmother had not responded to the social worker’s “contact
attempts†that included telephone calls and a certified letter mailed December
6, 2011.
On December 13,
2011, DPSS placed E.O. and B.O. with prospective adoptive foster parents. The social worker contacted father by telephone
to tell him about the placement and to ask that he tell mother. On December 20, 2011, mother called the case
social worker to ask why the children had been moved to a new placement and
also to ask what was going to happen at the next hearing. When the social worker explained that the
next hearing is to terminate parental rights, and that the children had been
placed in a pre-adoptive home because neither she nor the father had provided
the names of any potential adoptive relatives, mother told the social worker
that G.H., the children’s maternal grandfather, and a cousin wanted to be
assessed. When asked why she had not
provided this information before, mother told the social worker that she
thought the children would be coming home, but now that they might be adopted,
these relatives want to be assessed.
The maternal
grandfather, G.H., filed section 388 petitions on May 1, 2012, requesting the
trial court place E.O. and B.O. with him.
information to establish when G.H. first contacted DPSS about placement. However, the social worker’s report for the
section 366.26 hearing indicates that on March 1, 2012, DPSS “began receiving
information of other family members who were interested in being considered for
relative placement of the children.†In
addition, it is apparent from statements made at the hearing on G.H.’s section
388 petitions that DPSS had initiated the process of evaluating him for
placement. For example, counsel for DPSS
objected to placing the children with G.H. because the assessment process had
not been completed and exemptions had not been processed for G.H.’s criminal
convictions. G.H., in turn, confirmed
that DPSS had evaluated his home for placement.
He also submitted to the court five letters of reference, four of which
were dated April 21, 2012, and one dated April 26, 2012. Mother’s attorney also represented to the
court that the RAU social worker was proceeding with the placement approval
process, although the social worker had not indicated whether G.H. would be
approved. The trial court ultimately
denied G.H.’s section 388 petitions based on the lack of information regarding
the requested placement.
G.H., joined by
mother and father, challenges the trial court’s order denying the section 388
petitions.
2011, order issued at the conclusion of the jurisdiction and disposition
hearing, the trial court deferred ruling on the issue of relative placement and
as a result that issue “remained open.â€
We do not share G.H.’s interpretation of the pertinent order.
As set out above,
at the conclusion of the contested jurisdiction and disposition hearing, the
trial court ordered DPSS to “revisit
assessment†of the paternal grandparents by determining whether the
paternal grandmother had a criminal conviction or outstanding criminal matter
that would prevent DPSS from placing the children with her. The trial court also ordered DPSS to consider
any other relatives the parents identified as prospective adoptive
parents. The trial court’s order was not
a blanket deferral on the question of relative placement, as G.H.
contends. It was a directive to complete
the evaluation of the paternal grandparents and of any other relatives the
parents identified as prospective adoptive parents.
According to the
record, mother identified G.H. in December 2011, but the evaluation process did
not begin until the following March.
G.H. does not dispute DPSS’s representation that G.H. did not contact
the social worker until March 2012.
Contrary to G.H.’s suggestion that DPSS is responsible for the delay,
the evidence indicates he caused the delay in the
to contact DPSS before March 1, 2012.
Because the trial court set the selection and implementation hearing for
April 2, 2012,
title="">[5] and also ordered DPSS to evaluate any
relatives the parents identified as prospective adoptive parents, we must
construe the latter order to include the requirement that any interested
relatives immediately come forward. That
did not happen in this case.
Even if we were to
conclude, as G.H. contends, that the trial court left open the issue of placing
the children with relatives, we nevertheless would reject his claim that the
preference for relative placement set out in section 361.3 was applicable at
the time he filed his section 388 petitions.
The section 361.3 preference applies to placements made when a child is
initially removed from the parent’s physical custody. (§ 361.3, subd. (a) [“In any case in
which a child is removed from the physical custody of his or her parents
pursuant to Section 361, preferential consideration shall be given to a request
by a relative of the child for placement of the child with the
relative.â€].) Unless the child is moved
to a new placement after the disposition, there is no preference for placement
with a family member. (See § 361.3,
subd. (d).) In short, by the time G.H.
filed his section 388 petitions the children had been placed with prospective
adoptive parents in accordance with the trial court’s disposition order. The statutory preference for placing the
children with relatives no longer applied.
The only issue the
trial court was required to resolve at the hearing on G.H.’s section 388
petitions is whether G.H. alleged any changed circumstance or new evidence that
warranted change of the trial court’s disposition placement order, and whether
the proposed change was in the best interests of the children. (§ 388, subd. (a)(1); In re Casey D. (1999) 70 Cal.App.4th 38 [The moving party bears the
burden of demonstrating both a change of circumstance and that the proposed
change is in the best interest of the child.].)
We review the trial court’s ruling on a section 388 petition for abuse
of discretion. (Casey D., at p. 47.)
G.H. alleged in
his section 388 petitions that circumstances had changed because at some
unspecified time he had been fingerprinted so that his grandchildren could be
placed in his care. G.H.’s allegations
are not sufficient to demonstrate changed circumstances that would warrant
removing the children from their prospective adoptive parents. In order to even consider placing the
children in his custody, G.H. would have had to establish that DPSS had
completed the evaluation process and had approved G.H. as a prospective
adoptive parent for the children. At
best, the allegations show he was in the process of being evaluated for
placement, and therefore the circumstances might change in the future.
Moreover, even if
the allegations had established changed circumstances, G.H. would have had to
demonstrate that the proposed change in placement was in the best interests of
the children. (§ 388, subd. (d) [“If
it appears that the best interests of the child . . . may be promoted
by the proposed change of order . . . the court shall order that a
hearing be held . . . .â€].)
of the allegation in the petitions that the children would be “better off
living with family members.†Although
that might have been true at an earlier stage in the dependency process, it was
no longer true in this case, as discussed above. There is nothing in the record to indicate
that G.H. had any connection with E.O. and B.O., except that of biology. In contrast, by the time of the hearing on
the section 388 petitions, the children had lived with their prospective
adoptive parents for four months and as a result presumably had established a
connection with their caregivers, as the trial court observed.
G.H. failed to
establish either required aspect of a section 388 petition, and therefore we
conclude the trial court did not abuse its discretion by denying his petitions.
We also reject
G.H.’s assertion that the trial court abused its discretion by denying the
parents’ request to continue the section 366.26 hearing so that DPSS could
complete their evaluation of G.H. as a suitable placement for the
children. We are not persuaded G.H. has
standing to assert this issue, but we will not belabor that point.
The pertinent
details are that after the trial court denied G.H.’s section 388 petitions, it
then proceeded with the selection and implementation hearing. Mother’s attorney, joined by father’s attorney,
purported to object, based on her previously expressed view that the trial
court had ordered DPSS to investigate placement of the children with a
relative, and DPSS had not complied with that order. Therefore, she objected “to termination and
the Court proceeding today without that further information†and asked that the
hearing be put over so that the RAU social worker could be present to address
the issue of relative placement. The
trial court denied that request.
The trial court
did not abuse its discretion by denying the request to delay the section 366.26
hearing. As previously discussed, the
question of whether to place the children with a relative was not pertinent by
the time of the section 366.26 hearing.
Therefore, neither parent established good cause to continue that
hearing. (§ 352, subd. (a)
[“Continuances shall be granted only upon a showing of good cause and only for
that period of time shown to be necessary by the evidence presented at the hearing
on the motion for the continuance.â€].)
The
trial court’s disposition order in case No. E055555 denying reunification
services to mother is affirmed.
The
trial court’s orders in case No. E056286 (a) terminating the parental rights of
mother and father and (b) denying maternal grandfather’s section 388 petitions
are affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
MCKINSTER
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Welfare and Institutions Code unless indicated otherwise.
name="_ftn2" title=""> [2] We assume the court meant to say “cannotâ€
rather than “can.â€
