In re Brandon Z.

Filed 6/11/08 In re Brandon Z. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert M. Padia, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant L.B.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant Rachel Z.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Minor.

Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

I. INTRODUCTION

Rachel Z. (mother) appeals from an order of the juvenile court under Welfare and Institutions Code^[1]section 366.26 terminating her parental rights to her son, Brandon Z. Mother contends the juvenile court erred in assuming jurisdiction over Brandon because the petition filed by the Riverside County Department of Public Social Services (Department) failed to state a cause of action and her attorney provided ineffective assistance by failing to challenge the sufficiency of the petition in juvenile court. In addition, Brandons paternal grandmother, L.B., (grandmother) appeals from an order of the juvenile court denying her petition under section 388. Specifically, grandmother contends the juvenile court abused its discretion in failing to consider information it had previously ordered, and her petition made the requisite showing; thus, the juvenile court erred in failing to conduct an evidentiary hearing. Counsel for minor has submitted a letter brief joining in the position of the Department urging us to affirm the orders appealed from. We find no error, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND^[2]

Mother gave birth to Brandon in June 2006 while mother was incarcerated; she was not scheduled to be released until November 2008. Mother had made arrangements with her friend, C.L., to care for Brandon. C.L. took Brandon home from the hospital and then applied for foster care benefits and other welfare program benefits for Brandon.

In a background check on C.L. and her husband, M.H., the Department discovered M.H. had a significant criminal record that included attempted robbery, use of a deadly weapon, possession of a controlled substance for sale, and vehicle theft. He was on parole for a charge related to domestic violence in 2003. In addition, C.L. had substantiated allegations of general neglect in 2002 with Child Protective Services (CPS).

Mother had a significant prior history with [the Department] and had lost four children, two to guardianship and two to adoption. In April 1997, two of Mothers children were declared dependents of the court due to Mothers admission of drug use during both pregnancies. Both children were born drug exposed and suffered through withdrawals. Although the parents had received reunification services, [p]arental rights were subsequently terminated due to the parents lack of compliance with their case plans, repeated drug use, and incarceration. The dependency of these two children was terminated in July 2002. In addition, Mothers prior [Department] referrals dated back to 1990 and included substantiated allegations for caretaker absence/incapacity, physical abuse, and sibling at risk in 2000, substantiated allegations of severe neglect in 1997, and numerous referrals for general and severe neglect from 1990 through 1993. Mother also had a significant criminal history dating back to 1991, replete with vehicle theft crimes, theft-related crimes, drug-related offenses, and resisting arrest.

The Department filed a petition under section 300, alleging that Brandon fell within subdivisions (b) and (g). The petition alleged mother had left Brandon with inappropriate caretakers and had an extensive history of substance abuse, as well as extensive prior criminal and CPS histories. The whereabouts of Brandons alleged father, Angel V. (father), were unknown.^[3] Mother told the social worker that father lived with his mother. The juvenile court held a prima facie case had been established that Brandon came within section 300, subdivisions (b) and (g).

The Department filed a jurisdiction/disposition report in August 2006. The Department recommended denial of reunification services for both parents. The report stated that on July 31, the social worker had learned grandmothers name, address, and telephone number. A letter sent to father at that address was returned unclaimed. The social worker did not visit grandmothers home but had left a numeric page when she attempted to telephone grandmother; however, grandmother had not called back.

At the contested jurisdiction/disposition hearing, mother testified she hoped to enter a mother-infant program at the prison in the near future; her paperwork had been completed. She wanted grandmother to care for Brandon during her incarceration, but she did not have grandmothers address. The juvenile court found the allegations of the petition to be true and denied reunification services.

Mother filed a notice of intent to file a writ petition and thereafter filed a writ petition in this court in case No. E041529. In that petition, mother contended the evidence was insufficient to support the juvenile courts jurisdictional findings, and the juvenile court had erred in failing to order reunification services. In our December 2006 opinion, we rejected mothers contentions on the merits and affirmed the juvenile courts orders.

In November 2006, the Department filed a personal proof of service indicating that a notice of hearing on selection of a permanent plan had been served on father by substituted service on grandmother at her home. In December 2006, the Department filed an addendum report indicating Brandon was doing well in his foster placement, and his caretaker wished to adopt him. In January 2007, the Department filed a section 366.26 report indicating fathers whereabouts were still unknown.

The juvenile court held a selection and implementation hearing in January 2007, at which father appeared for the first time. Grandmother also attended the hearing. The juvenile court ordered the Department to conduct a relative assessment for grandmother and continued the matter for a further contested section 366.26 hearing in April.

The Department filed a status review and selection and implementation report in March 2007. The report stated the alleged father and grandmother had a brief visit with Brandon after the January hearing, but father had not made any further contact with the Department. The social worker had talked to grandmother by telephone in February and had discussed placement and the necessity of an assessment. The social worker informed grandmother an RAU SW had been assigned.

The Department filed an addendum report in July 2007 indicating grandmothers home had been certified by the Relative Assessment Unit in February 2007. Grandmother had asked the social worker about placement of Brandon with her, but had received no response. Grandmother had one visit with Brandon in April and two visits in May. The report stated that [d]ue to lack of information, lack of communication from the father or other relatives in the beginning of this case, and the mothers initial lack of cooperation with the interviewer, the Department could not identify a relative caretaker and the child was placed in an adoptive home. A log entry for June 2007 stated, The Committees recommendation: Child has been placed in current prospective adoptive home for almost one full year. However, the department needs to explore paternal grandmother for possible placement as she was approved by RAU on 2/28/07. CSSW to explore why paternal grandmother did not have child placed with her initially.

In July 2007, grandmother submitted a JV-180 request to change court order form. In the form, grandmother indicated her wish that Brandon be placed with her or that she be able to adopt him. The juvenile court denied the request without a hearing, and grandmother filed a notice of appeal.

In August 2007, the juvenile court held a contested selection and implementation hearing. Mother testified she had named grandmother in August 2006 as a relative with whom Brandon could be placed, and she still hoped Brandon could be placed with grandmother. Grandmother testified that she had requested placement in January 2007, that the social worker would not answer her calls, and that she had to speak with the social workers supervisor to get a response. Grandmother testified her home had been approved since February 2007, and she was still willing to have Brandon placed in her care.

The juvenile court terminated mothers and fathers parental rights, found Brandon adoptable, and selected adoption as the permanent plan. The court also referred the matter to mediation on the issue of post-adoption contact with mother and paternal grandmother.

III. DISCUSSION

A. Sufficiency of Allegations of Petition

Mother contends the juvenile court erred in assuming jurisdiction over Brandon because the section 300 petition filed by the Department failed to state a cause of action.

1. Forfeiture

The Department contends mother has forfeited her contention because she failed to file a petition for extraordinary writ review raising the issue she now asserts on appeal.

The juvenile courts orders regarding jurisdiction and disposition were made at the hearing at which the court also set a section 366.26 hearing. All orders issued at a hearing in which a section 366.26 hearing is ordered are subject to section 366.26, subdivision (l) and must be reviewed by extraordinary writ. [Citation.] (In re Tabitha W. (2006) 143 Cal.App.4th 811, 817.) Under section 366.26, subdivision (l), such an order is not appealable unless all of the following apply: (1) a timely petition for extraordinary writ review was filed; (2) the petition substantively addressed the specific issues to be raised on appeal and supported the challenge to those issues by an adequate record; and (3) the petition was summarily denied or otherwise not decided on the merits.

Here, mother timely filed a writ petition; however, the writ petition did not raise a challenge to the failure to state a cause of action in the Departments section 300 petition. Moreover, this court decided mothers writ petition on the merits. Thus, the second and third prerequisites to an appeal set forth in section 366.26, subdivision (l) have not been met.

Moreover, mother failed to demur to the allegations in the section 300 petition in the juvenile court, and she is therefore precluded from raising the issue for the first time on appeal. (In re Shelley J. (1998) 68 Cal.App.4th 322, 328.) In In re S.O. (2002) 103 Cal.App.4th 453, the court explained, Given that lay social workers are usually lumbered with the task of writing petitions, they must be given a certain amount of slack. If the parent believes that the petition does not adequately communicate the [Departments] concerns or is otherwise misleading, the onus is on the parent to challenge the petition at the pleading stage. [Citations.] Accordingly, Mother has waived her right to contest the sufficiency of the petition by failing to do so below. (Id. at pp. 459-460.) Although an exception applies when the parent claims the petition failed to provide adequate notice of the factual allegations against the parent (In re Athena P. (2002) 103 Cal.App.4th 617, 626-627), mother raises no such claim in this appeal.

In In re Alysha S. (1996) 51 Cal.App.4th 393, 397-400, on which mother relies, the court reached a contrary result, holding that a challenge to the sufficiency of the allegations of the petition could be raised on appeal. However, we join with the other courts that have rejected the reasoning of In re Alysha S. and have found forfeiture. (See, e.g., In re Javier G. (2006) 137 Cal.App.4th 453, 458-459; In re James C. (2002) 104 Cal.App.4th 470, 480-481; Athena P., supra, 103 Cal.App.4th at pp. 626-627; In re S.O., supra, 103 Cal.App.4th at pp. 459-460; In re Shelley J., supra, 68 Cal.App.4th at pp. 328-329.)^[4]

We therefore conclude mothers challenge to the sufficiency of the petition has been forfeited. However, mother has claimed that she received ineffective assistance of counsel based on counsels failure to raise prior challenge to the sufficiency of the petition. We will exercise our discretion to address the issue on the merits. (See, e.g., In re S.D. (2002) 99 Cal.App.4th 1068, 1079-1081; In re Dennis H. (2001) 88 Cal.App.4th 94, 98.)

2.Analysis

Mother contends the allegation under section 300, subdivision (b), which asserted mothers placement of Brandon with C.L. amounted to a failure to protect the child, did not state a cause of action because Brandon had been removed from C.L.s care, and the allegation did not meaningfully assert that minor was at risk of any future harm as a result of such placement. Similarly, mother asserts, Allegations b-2, b-3, and b-4, which were based on mothers history of drug use, criminal history, and history with the Department, did not state causes of action because they were not meaningfully tied to a present risk of harm to Brandon. Section 300, subdivision (b) provides for jurisdiction when a substantial risk exists the child will suffer serious physical harm or illness as a result of various types of conduct or acts of omission by the childs parent.

Mother contends the allegation under section 300, subdivision (g), which asserted mother had failed to properly arrange for Brandons care, did not state a cause of action because it did not refer to mothers ability to arrange for Brandons care at the time of the jurisdictional hearing. Section 300, subdivision (g) provides for jurisdiction when the child has been left without any provision for support; . . . or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful.

Finally, mother contends the allegations that related to fathers inadequate efforts to protect and care for Brandon (allegations b-2 and g-2) did not state causes of action because they were predicated on the deficient allegations relating to [mother].

The adequacy of the petition itself is irrelevant if the jurisdictional findings are supported by substantial evidence. (In re Athena P., supra, 103 Cal.App.4th at pp. 626-627.) As this court explained in that case, in addressing a parents argument that her counsel provided ineffective assistance by failing to challenge the sufficiency of the dependency petition, if the evidence is sufficient to support the jurisdictional findings, any failure of the petition to state a cause of action is harmless error. (Id. at p. 628.) In the instant case, this court addressed the issue on the merits in mothers prior writ petition and held that the evidence was sufficient to support the jurisdictional findings. It necessarily follows, therefore, that any deficiency in the petition was harmless error. (Ibid.)

B. Section 388 Petition

Grandmother appeals from an order of the juvenile court denying her petition under section 388. Specifically, grandmother contends the juvenile court abused its discretion in failing to consider information it had previously ordered, and her petition made the requisite showing; thus, the juvenile court erred in failing to conduct an evidentiary hearing.

1. Forfeiture

Grandmother contends the juvenile court erred in summarily denying her section 388 petition without conducting an evidentiary hearing. However, grandmother checked a box on the petition form requesting that a decision be made on her petition without a hearing. Thus, she is foreclosed from arguing that the juvenile courts failure to hold a hearing was error. Nonetheless, because the Department has argued the issue on the merits, we will exercise our discretion to reach the merits of grandmothers claim.

2. Standard of Review

The juvenile court has discretion whether to provide a hearing on a [section 388] petition alleging changed circumstances. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) We review the juvenile courts summary denial of a section 300 petition under an abuse of discretion standard. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)

3. Analysis

Grandmothers section 388 petition was dated on July 23, 2007, and stamped as having been received on that date. The juvenile court denied the petition on July 27, 2007. On appeal, grandmother characterizes the petition as having sought a change in Brandons placement. However, the only relief sought in the petition was to change a court order that Brandon . . . be adopted out and parental rights be terminated. The juvenile court had not yet issued any order terminating parental rights and selecting adoption as Brandons permanent plan; that order was not made until the section 366.26 hearing on August 27, 2007. Thus, the petition was properly denied on the basis that the facts did not support what was requested.

And even if the petition had requested a change in Brandons placement, the juvenile court did not abuse its discretion in failing to hold an evidentiary hearing. To obtain a hearing on a section 388 petition, a petition must make a prima facie showing that (1) changed circumstances or new evidence requires the modification of a prior order, and (2) the requested modification would promote the best interests of the child. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.) Whether a petitioner has made the requisite prima facie showing depends on the facts alleged in her petition, as well as the facts established as without dispute by the courts own file (e.g., [the childs] age, the nature of [the childs] existing placement, and the time [the child] came into care as a dependent child). (In re Angel B. (2002) 97 Cal.App.4th 454, 461.)

In her section 388 petition, grandmother claimed as a change of circumstance that she would like to have custody or be able to adopt Brandon. However, grandmothers wish was not a change of circumstances that wish had been known to the court since January 2007.

Grandmother claims, however, that considering the entire factual and procedural history of the case, her petition made the required showing. She claims the juvenile court was apparently unaware that at an earlier hearing, the commissioner had ordered the Department to assess grandmothers home for placement. Grandmother asserts it was reasonably probable the court would have granted her an evidentiary hearing on her section 388 petition if the court had known such an evaluation had been ordered.

In determining whether a section 388 petition has made the required showing, the court may consider the entire factual and procedural history of the case. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451 [noting that the juvenile court did not abuse its discretion by summarily denying a section 388 petition when the court was thoroughly familiar with the facts in the case, having presided at each of the hearings].) We do not read that case as requiring the juvenile court to scour the record for facts to support a section 388 petition. Rather, it was incumbent on grandmother to bring those facts to the courts attention to the extent she relied on them to support her position.

Next, grandmother claimed that giving her custody of Brandon would be in his best interests [b]ecause Brandon has a large and loving family on both parents[] side[s] and would benefit growing up with blood relatives and not a single parent. When dependency proceedings are first commenced, family preservation is the first priority. (In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1112.)^[5] However, a childs best interests prevail over all other considerations, even if this means adoption of the child by non-relative foster parents. (Ibid.). At the initiation of the proceedings and through the disposition hearing, section 361.3 gives preferential consideration to a relatives request for placement. Thereafter, however, such preference is not given unless a new placement of the child must be made. ( 361.3, subd. (d); In re Lauren R. (2007) 148 Cal.App.4th 841, 854.) Section 361.3 describes a relative as an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship. ( 361.3, subd. (c)(2).)

Here, grandmother made her first request for placement in January 2007, several months after the disposition hearing, which was held in October 2006, and no new placement needed to be made. Moreover, grandmothers name had not been given as a possible relative placement at the outset of the dependency proceedings. Although the Department attempted to contact grandmother once it obtained her name and telephone number, the Department was unable to do so until February 1, 2007.

Finally, Brandon had been placed in the same foster home since he was two and one-half weeks old. He was thriving in that home and was bonded to his prospective adoptive parent, who wished to adopt him. At the time grandmother filed her section 388 petition, Brandon had been placed with the prospective adoptive parent for over a year. The adoptions worker stated her opinion that Brandon would be negatively affected if he were removed from the prospective adoptive home. In contrast, grandmother had only four or five visits with Brandon. We conclude the juvenile court did not err in concluding the petition did not show it would be in Brandons best interest to change his placement.

IV. DISPOSITION

The orders appealed from are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

KING

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] Some of the facts are taken from the opinion this court issued denying mothers prior petition for extraordinary writ under California Rules of Court, rule 38.1 in case No. E041529.

^[3] Father is not a party to this appeal.

^[4] To the extent In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134, may be construed as agreeing, in dictum, with In re Alysha S., we disagree with that dictum.

^[5] We observe that grandmother is only an alleged grandmother because father is only an alleged father. Father did not request consideration as a presumed father, had never requested a paternity test, and was not named on the birth certificate. [A] biological father is not entitled to custody under section 361.2, or reunification services under section 361.5 if he does not attain presumed father status prior to the termination of any reunification period, [but] he may move under section 388 for a hearing to reconsider the juvenile court's earlier rulings based on new evidence or changed circumstances. [Citation] (In re Andrew L. (2004) 122 Cal.App.4th 178, 191.) Father never moved under section 388 to change his status from an alleged father to a presumed father. (See, e.g., In re Eric E. (2006) 137 Cal.App.4th 252, 257.) We question whether grandmother could assert any rights in this case greater than those her son asserted.