In re Devon G.

Filed 10/6/08 In re Devon G. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In this appeal, the maternal aunt of a dependent child challenges the juvenile courts denial of her petition to change the childs placement. She argues that the court failed to honor the statutory preference for relative placement and that she was denied due process. Finding no error, we affirm the challenged order.

BACKGROUND

The child whose interests are at issue in this proceeding is Devon G., who was born in March 2006. The appellant is Sonja H., the childs maternal aunt. Both of Devons biological parents reportedly have extensive histories of drug abuse, including the mothers use of methamphetamines at or near the time of Devons birth. The mother previously lost parental rights to Devons older siblings. At the time of Devons birth, the mother was incarcerated, and the child was taken into protective custody immediately.

Events in 2006

In April 2006, after Devon was detained, the assigned social worker, Mabel Chan, began looking into possible relative placements for him. Chan asked the mother for a list of relatives and friends she would like for the child to be placed with and then called everyone on the list. As the evidence demonstrates, appellant was among the relatives contacted. According to the April 2006 jurisdiction/disposition report that Chan had prepared, she left a telephone message for appellant on April 20th. Appellant returned the call, informing Chan that she was unable to care for Devon.

Even prior to Devons birth, inquiries about possible relative placement were made by another social worker, Marco Sandoval, who was assigned to Devons siblings case. Sandoval had broached the question of placing the unborn child with the couple caring for his sister, another maternal aunt and her husband. But the couple declined to take the unborn infant because it was very challenging for them just to take care of [the sister] as well as their two older boys. When appellants name came up as a possible placement for the baby, the couple told Sandoval that she wasnt in a good spot, that she was going through a divorce or ending a relationship and she wasnt in a good place. Sandoval did not follow up about appellant, because Devons case would be assigned to Chan.

Ultimately, all of Devons relatives declined to take the child during the mothers reunification efforts, despite knowing that Devon would go into foster care if he was not placed with a relative.

In June 2006, at two months of age, Devon was placed in his second foster home, with a couple who later became de facto parents and his prospective adoptive parents.

Events in 2007

As stated in papers filed below by appellants attorney, when it became apparent that the mother was failing in her reunification efforts, appellant formulated the plan and desire to adopt [Devon] herself as a blood relative.

In June 2007, reunification services to the mother were terminated. At around the same time, appellant contacted social worker Craig Dossman, who was then assigned to Devons case. Since appellant is an Oregon resident, Dossman initiated proceedings under the Interstate Child Placement Compact (ICPC).

In October 2007, following a contested hearing, the court terminated the parental rights of both the mother and the father. By then, the Department was recommending Devons adoption by his foster family.

Modification Petition

In November 2007, appellant brought a petition for modification of Devons placement under section 388 of the Welfare and Institutions Code. (Further unspecified statutory references are to that code.) Appellant sought to have Devon placed with her. Other relatives also brought petitions under section 388, likewise seeking Devons placement with appellant.

The matter was set for a hearing in January 2008. At the scheduled hearing date, the court continued the matter to permit briefing of the legal issues. Counsel for appellant thereafter filed a memorandum, with a declaration by appellant. Counsel for the Department and for Devon each filed written opposition.

At the continued date in February 2008, based on its review of the papers submitted in connection with the petition, the court noted a factual dispute that relates to the Departments inquiry of potential relatives that might have been available to the child prior to July 2007. In her papers, appellant had asserted that she was never given a serious investigation as a potential adoptive placement. In its opposition papers, the Department had responded that appellant was offered placement of the child in April 2006, but refused placement. The court set the matter for a contested evidentiary hearing in April, limited to the factual dispute over the Departments early pursuit of relative placement more specifically, its contact with appellant.

April 2008 Hearing

At the April 2008 hearing on the modification petitions, the court received both testimonial and documentary evidence. The court heard testimony from appellant and from social workers Chan, Sandoval, and Dossman. The documentary evidence included: the papers previously submitted; further opposition to the petitions filed by Devons counsel; two reports by the Department (an interim review report and an addendum report); contact logs maintained by social worker Chan; and appellants telephone records for April 2006.

Appellant offered her own testimony in support of her petition. Among other things, she stated that she had not spoken with social worker Chan in April 2006. Appellant acknowledged that her telephone records from that period showed a phone number that looked like a County number on 4/20. Appellant explained that she had two cellular telephones at the time, and that the incoming call from San Jose on April 20th had been received on the one used by her then-boyfriend. Appellants telephone records also showed an outgoing call from that telephone to the same San Jose number, made the next day.[1] As the Departments evidence demonstrated, the San Jose telephone number was Chans extension at the Department. Appellant nevertheless testified that she did not call Chan, and that the first time that she ever had contact with anybody from Social Services regarding Devon was in June 2007, when she called social worker Dossman.

The Departments documentary evidence told a somewhat different story. That evidence included a declaration from a County telephone services engineer, who retrieved outgoing telephone records from Chans extension made to Portland, Oregon on 4/20/06. According to the Departments addendum report for the April 2008 hearing, the outgoing call on that date was placed from the telephone extension of Chan, to [an Oregon] phone number that appellant acknowledged as hers. The addendum report further states: Ms. Chan reports leaving a message for [appellant] on 4/20/06, and receiving a return call from [appellant], stating that she was unable to care for Devon. In testimony at the hearing, Chan acknowledged that she did not recall contacting appellant. Nevertheless, Chan testified: Its in my court report[;] thats what I did.

After receiving all of the proffered evidence, the juvenile court heard oral argument from all parties. It then ruled from the bench, denying the petitions.

The court concluded that the Department really had made an extremely diligent effort to locate relatives. The court made a finding that Chan had contacted appellant, at least left a message on the 20th. The court opined that Chan made a mistake on the dates in her report. The phone records seem to indicate that [appellant] returned the call the next day on the 21st and there was a five minute conversation. In any event, the court understood from the testimony that appellant was going through a difficult time in her own life, that she probably was not in a position to open her home to an infant at that very moment in time. In the courts view, the Department certainly met [its] obligation in attempting to contact relatives, unfortunately, they werent available at that key time. In denying the petitions, the court found it in Devons best interest to remain with his current family.

Appeal

Representing herself, appellant brought this appeal in May 2008.

As noted above, appellant asserts two claims on appeal: the failure to accord her statutory preference as a relative placement for Devon, and the denial of due process. Acting through counsel, both the Department and Devon have filed respondents briefs disputing appellants claims.

Attached to appellants notice of appeal are a number of documents that were not before the juvenile court at the hearing. As the Department correctly observes, it is improper for this court to consider those documents. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) We therefore disregard that material.

DISCUSSION

As a framework for our analysis of the issues presented by appellant, we first describe the relevant principles of dependency law.

I. General Legal Principles

A. Overview of Dependency Law

The Legislature has provided for juvenile court jurisdiction over dependent children. (See 300 et seq.) The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.)

In dependency proceedings involving the removal of children from their parents, there are generally four phases: (1) jurisdiction, (2) disposition, (3) reunification (unless bypassed), and (4) the selection and implementation of a permanent plan. (In re Matthew C. (1993) 6 Cal.4th 386, 391.) Dependency proceedings are proceedings of an ongoing nature. While different hearings within the dependency process have different standards and purposes, they are part of an overall process and ongoing case. (In re Marilyn H., supra, 5 Cal.4th at p. 307.)

Throughout the dependency, interested persons may petition the juvenile court for modification of its prior orders, as provided in section 388. To warrant relief under section 388, the petitioner must prove by a preponderance of the evidence (1) that new evidence or changed circumstances exist and (2) that the proposed change will be in the dependent childs best interests. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

B. Section 361.3

Under section 361.3, preferential consideration shall be given to relatives seeking placement of dependent children. ( 361.3, subd. (a).) Preferential consideration means that the relative seeking placement shall be the first placement to be considered and investigated. (Id., subd. (c)(1).) The statute thus puts the relative at the head of the line when the court is determining which placement is in the childs best interest. (In re Sarah S. (1996) 43 Cal.App.4th 274, 286.) It assures that an interested relative will be considered before a stranger in placing the child. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.) The statute does not create an evidentiary presumption in favor of placement with a relative, however. (Ibid.; In re Sarah S., at p. 286.)

Nearly two decades ago, this court explained the policy underlying relative preference at the disposition stage: The object of dispositional hearings is to find a temporary caretaker who will meet the childs physical and psychological needs while cooperating in reunification efforts. A relative, who presumably has a broader interest in family unity, is more likely than a stranger to be supportive of the parent-child relationship and less likely to develop a conflicting emotional bond with the child. (In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1493; accord, In re Robert L. (1993) 21 Cal.App.4th 1057, 1064.)

The statutory relative preference is also relevant when a change in placement becomes necessary after disposition. ( 361.3, subd. (d); Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) Conversely, when there is no need for a change in the childs placement, the preference does not apply. (In re Lauren R. (2007) 148 Cal.App.4th 841, 853, 854.)

Once the juvenile court has determined that reunification is no longer possible and that the child should be freed for adoption, the reason for the preference disappears. (In re Baby Girl D., supra, 208 Cal.App.3d at p. 1493.) At that point in the dependency proceeding, the overriding concern is to provide a stable, permanent home where the child can develop a lasting emotional attachment to his caretakers. (Id. at pp. 1493-1494.) As the California Supreme Court has observed: Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Reflecting that same policy, a different provision applies at the permanency planning phase, which gives preference to a relative or other person who has been a caretaker or foster parent during the dependency proceeding. ( 366.26, subd. (k); see In re Sarah S., supra, 43 Cal.App.4th at pp. 285-286; In re Lauren R., supra, 148 Cal.App.4th at pp. 856-858.)

Overall, it is important to accord relatives a fair chance to obtain custody of a dependent child. (Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1033.) But the fundamental duty of the juvenile court is to assure the best interest of the child. (Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 864.) The linchpin of the analysis thus is whether placement with a relative is in the best interests of the minor. (Id. at pp. 862-863.)

C. Appellate Review

The grant or denial of a petition brought under section 388 is committed to the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Its ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. (Ibid.) Likewise, the juvenile courts placement determination for a dependent child typically is reviewed under the abuse of discretion standard. (Id. at pp. 318-319.) As more specifically applicable here, that same deferential standard governs review of the juvenile courts decision whether to place a dependent child with relatives. (In re Robert L., supra, 21 Cal.App.4th at p. 1067; Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 863.)

II. Application

A. Appellants Statutory Claim

On appeal, appellant continues to advance this factual assertion: I was not contacted by anyone in the county concerning my interest in being a foster or adoptive parent for my nephew. She contends that the social worker failed to assess me properly under the relative placement preference.

We cannot accept appellants factual assertion. The juvenile court found in favor of the Department on this disputed issue, and substantial evidence supports that finding. On appeal, we review the record to determine whether there is any substantial evidence, contradicted or not, which supports the courts conclusions. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) Here, the evidence showing Department contact in April 2006 includes telephone records, the Departments reports, and the testimony of social worker Chan. As this evidence demonstrates, the Department contacted appellant in April 2006 but she declined placement. (See, In re Corienna G. (1989) 213 Cal.App.3d 73, 83 [evidence showed that court complied with the statutory requirement to give preferential consideration to a relative home placement]; cf. In re Sarah S., supra, 43 Cal.App.4th at pp. 286-287 [substantial evidence supported decision not to place child with grandparent].)

On this record, we conclude, appellant was accorded preferential consideration at the dispositional phase, as required by the statute. ( 361.3, subd. (a).) Appellant was not entitled to preferential relative consideration thereafter. In papers submitted to the juvenile court in support of appellants modification petition, her attorney sadly conceded that the statutory preference lapsed upon the termination of the birth parents parental rights on October 31, 2007. The fact that appellant came forward prior to that time does not warrant application of the statutory preference, since reunification had already failed. (See Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1031; In re Baby Girl D., supra, 208 Cal.App.3d at p. 1494.) Nor was there any need to change Devons placement at that juncture. (Cf. 361.3, subd. (d).) Finally, the permanency planning preference does not apply, since appellant was not Devons caretaker or foster parent during the dependency proceeding. ( 366.26, subd. (k).) Appellant thus is not entitled to any statutory priority under that provision. (In re Sarah S., supra, 43 Cal.App.4th at p. 286.)

In sum, there was no statutory violation. Nor was there an abuse of discretion. Here, the juvenile court carefully considered [the childs] best interests and decided against a change in placement based upon the evidence. (In re Sarah S., supra, 43 Cal.App.4th at p. 286.) By any rational analysis, the trial court did not abuse its discretion. (Id. at p. 287; see also, e.g., In re Stephanie M., supra, 7 Cal.4th at p. 317 [there was not sufficient evidence produced at the hearing to establish that a change of placement was in the best interest of the child].) As the evidence in this case demonstrates, the minor had been with [his] foster-adoptive family for most of [his] life. Evidently, the trial court felt that to wrench [him] away from [his] source of stability and security to live with a strange family would be detrimental to the childs welfare. We see no abuse of discretion in this exercise of the courts judgment. It would be contrary to Legislative policy to uproot the child and force [him] to adjust to a new home. (In re Baby Girl D., supra, 208 Cal.App.3d at p. 1495.)

B. Appellants Due Process Claim

Appellant also asserts that she was not given due process, let alone a chance. She makes that claim in connection with the ICPC process, which was initiated in 2007.

We reject that claim. As discussed above, there was no statutory imperative requiring the Department to assess appellant for placement at that late date. (Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1031.) Nor was there any constitutional imperative to do so.

The federal and state Constitutions guarantee that no state shall deprive any person of life, liberty or property without due process of law. (In re Marilyn H., supra, 5 Cal.4th at p. 306.) Procedural due process requires notice and an opportunity to be heard before an individual suffers governmental deprivation of a fundamental interest. Entitlement to procedural protections depends upon the extent to which grievous loss is threatened; it requires the court to weigh the individuals interest in avoiding the loss against the governmental interest in summary adjudication. (C.V.C. v. Superior Court (1973) 29 Cal.App.3d 909, 915, fn. omitted.) Thus, for example, a prospective adoptive couple was entitled to a judicial hearing before the child was removed with the court exercising its independent judgment on the evidence to determine whether the agencys decision to abrogate the placement was justified by the best interest of the child. (Id. at p. 920.)

Here, there was no procedural due process violation. In 2006, at the outset of the dependency, appellant was considered for placement, which she declined. In 2008, she was given a full evidentiary hearing on her modification petition. (See In re Marilyn H., supra, 5 Cal.4th at p. 310.)

Nor is there a substantive due process violation here, since the challenged governmental action did not deprive appellant of any constitutional right. As the courts have recognized, parents have a liberty interest in the care, custody and companionship of their children. (In re Julie M. (1999) 69 Cal.App.4th 41, 50.) A parents interest in the companionship, care, custody and management of his children is a compelling one, ranked among the most basic of civil rights. (In re Marilyn H., supra, 5 Cal.4th at p. 306.) But even where parental rights are at stake, those interests cannot be maintained at the expense of [the childrens] well-being. (In re Julie M., at p. 50.) Children have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. (In re Marilyn H., at p. 306.) Thus even a parents constitutional interest is not unfettered. More to the point, we are aware of no authority recognizing other biological relatives constitutional right to custody. To the contrary, as has been said, the overriding concern of dependency proceedings is not the interest of extended family members but the interest of the child. (In re Lauren R., supra, 148 Cal.App.4th at p. 855; see also, e.g., In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1112-1113.)

In this case, the juvenile court concluded that Devons best interest would be served by remaining with his prospective adoptive parents, the only real family he has ever known. (In re Lauren Z., supra, 158 Cal.App.4th at p. 1113; In re Baby Girl D., supra, 208 Cal.App.3d at p. 1495.) We agree with that conclusion. Appellants interest in caring for Devon must yield to the childs interest in a stable, loving home. (In re Lauren Z., at p. 1112.)

There is no error here.

DISPOSITION

The order of April 1, 2008 is affirmed.

____________________________________________

McAdams, J.

WE CONCUR:

________________________________

Bamattre-Manoukian, Acting P.J.

________________________________

Duffy, J.

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[1]There was a discrepancy in the evidence concerning the date of the call from appellants Oregon telephone number to Chans San Jose office. According to the April 2006 jurisdiction/disposition report, Chan received the call on April 24th. According to appellants telephone records, the call was made April 21st. In her testimony at the hearing, Chan acknowledged that the latter date was more likely accurate.