In re D.V.
Filed 3/19/13 In re D.V. CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 re D.V., a Person Coming
Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF
PUBLIC SOCIAL SERVICES,
Plaintiff and Respondent,
v.
N.P.,
Defendant and Respondent;
T.P.,
Real Party in Interest and Appellant.
E055688
(Super.Ct.No. RIJ1100212)
OPINION
APPEAL from
the Superior Court
of
County. Matthew C.
Perantoni, Temporary Judge. (Pursuant to
Cal. Const., art. VI, § 21.) Affirmed.
Mitchell
Keiter, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela
J. Walls, County Counsel,
and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
Fifteen-month-old
D.V. was injured while in the care of her mother’s boyfriend, sustaining a
spiral fracture to her left humerus among other
dependent child, offering services to the noncustodial alleged father, but denying
services to mother due to the allegation of severe physical abuse. After father’s services were terminated at
the six-month review hearing, a hearing pursuant to Welfare and Institutions
Code,
mother’s aunt (maternal great-aunt) learned of the proceedings and came forward
seeking relative placement. She visited
the minor, forging a relationship with the child, and her home was evaluated. However, the minor was also bonded to the foster
parents, who wished to adopt. The
maternal great-aunt made a request to change a court order (JV-180; § 388),
seeking placement of the minor, but the request was denied based on the court’s
determination that it would be detrimental to move her from her current foster
home placement. The maternal great-aunt
appealed.
On appeal,
the maternal great-aunt asserts (1) the trial court erred in refusing to hear
evidence showing that the foster parents had committed perjury in their
application for standing as de facto parents, and (2) the court abused its
discretion in denying the section 388 petition.
We affirm.
BACKGROUND
On February 11, 2011, mother took D.V.
to the doctor after noticing that something was wrong with the baby’s arm. A few days earlier, mother had left the child
in the care of her boyfriend, D.V.’s father, while she went to work. Mother’s boyfriend took a shower while the
15-month-old child slept on mother’s bed.
When he came out of the shower, he saw D.V. lying under a low bookcase
that had fallen on top of her. The
boyfriend informed mother of the incident, but D.V. seemed to be acting
normally, so mother did not seek medical attention, despite the presence of
multiple bruises on D.V.’s abdomen, knees, and left scalp, abrasions to her
right hand and elbow, and a bleeding cut on her lip. Both mother and her boyfriend acknowledged
marijuana use, and mother indicated alcohol use as well.
D.V. seemed
normal until February 11, 2011,
when she pulled her left arm away and would not let mother touch it. Mother noticed swelling, but went to
work. At lunchtime, mother’s boyfriend
brought D.V. to mother’s workplace because the swelling of the arm had
worsened. That evening, mother took D.V.
to her primary doctor who notified authorities upon seeing multiple bruises all
over the baby’s body.
While
en route and at the hospital, a worker for the Riverside County Department of
Public Social Services (DPSS) interviewed mother. Upon transfer to Loma Linda University
Medical Center for evaluation, D.V. was found to have suffered a fractured left
humerus (diagonal split, offset spiral fracture), numerous bruises all over her
body (including a blackened right eye), bite marks, hair loss, and head
swelling. The pediatric forensic
consultant reported that the injuries were out of proportion and were
inconsistent with the history provided.
A hospital hold was placed by Child Protective Services (CPS).
A
dependency petition was filed on February
16, 2011, alleging nonaccidental physical abuse (§ 300, subd. (a)),
neglect (§ 300, subd. (b)), and severe physical abuse to a child under
five. (§ 300, subd. (e).) At the detention hearing, the minor was
detained and temporarily placed in the custody of DPSS, who placed the minor in
a foster family agency. On March 28,
2011, the court found the allegations of the petition true and sustained
it. The minor was declared a dependent
and removed from the custody of her parents.
Reunification services were offered to the father, but the court denied
services to mother based on a finding under section 361.5, subdivision (b)(5),
relating to the finding that the minor came within section 300, subdivision
(e), due to the conduct of the parent.
Notwithstanding
the fact that services to mother were denied, mother promptly engaged in
services with Family Preservation Court and actively participated in
programs. She visited regularly, but
showed up with bruises on her body and did not come prepared with diapers or
snacks. Father, for whom services were
ordered, failed to participate in any program.
He was inconsistent with visits, frequently showing up late and
unprepared. At times, father attended
visits with his parents (the paternal grandparents), and argued with the
grandfather during the visit.
In
September, 2011, the maternal great-aunt learned that mother’s visits had been
reduced and that the home of the maternal grandmother was being assessed for
placement. At the six-month review
hearing conducted on October 3, 2011, father’s reunification services were terminated
and a section 366.26 hearing was scheduled to select and implement a proposed
permanent plan of adoption for the minor.
On November 5, 2011, the maternal grandmother was arrested for
prostitution and methamphetamine use, putting an end to any consideration of
placement of the minor in her home. When
the maternal great-aunt was informed of this fact, she contacted DPSS to
request placement. On November 7, 2011,
a referral was made to the Relative Assessment Unit (RAU) to evaluate the home
of the maternal great-aunt.
After
making contact with DPSS, the maternal great-aunt visited frequently, traveling
500 miles each way from the Sacramento area to Riverside County. After DPSS received the favorable Livescan
results of the maternal great-aunt, she began receiving unsupervised visits
with the minor. However, the social
worker felt it would be detrimental to remove the minor from her current
placement.
On December
19, 2011, the foster parents filed a request for standing as de facto parents
of the minor. In support of their
application, the foster parents alleged they had provided day-to-day care of
the minor since the minor was placed with them in February 2011. They also alleged that the minor’s behavior
changes after visiting with her mother or her father, becoming very angry and
scared, and having nightmares.
On
January 27, 2012, the maternal great-aunt filed a request to change court order
(JV-180; § 388) seeking placement of the minor.
maternal great-aunt’s petition as well as the foster parents’ de facto parent
status request. At the hearing, mother’s
counsel objected to the de facto parent application and wanted to examine the
foster mother as to any attempts to thwart or misrepresent visitation,
referring to the foster parents’ statements in their application about the
minor’s behavior after visits with the parents.
Father’s counsel joined in the objection. Mother’s counsel was permitted to examine the
foster mother on the issue.
However, the
court cut examination short after sustaining a relevance objection, informed
the parties it had heard enough, and indicated it was not considering the
foster parents’ statements regarding the minor’s behavior for purposes of their
application for de facto parent standing.
Mother’s counsel made an offer of proof that other witnesses would show
that the foster mother was either misstating the facts or was not accurate in
the statements on the de facto parent application. Father’s counsel joined in mother’s objection
again. The maternal great-aunt’s counsel
did not object or examine the foster parents.
The court then granted the application.
The court
then proceeded with the maternal great-aunt’s petition pursuant to section 388,
seeking relative placement. Counsel for
the maternal great-aunt called the mother, the maternal grandfather, the social
worker, and the maternal great-aunt to testify over a two-day hearing. The maternal great-aunt informed the social
worker about the foster family agency’s unwillingness to accommodate her work
schedule in setting up weekend visits.
When the maternal great-aunt attempted to set up holiday visits, or
visits when she had time off, the foster parents were either busy or had other
plans. After hearing the evidence and
the arguments of counsel, the court determined that it would not be in the
minor’s best interests to remove her from her current caretakers, and denied
the maternal great-aunt’s petition.
On February
17, 2012, the maternal great-aunt appealed the denial of her section 388
petition.
DISCUSSION
Error in the Curtailing of Testimony of the Foster Mother, Made in Connection
with the Foster Parents’ De Facto Parent Application, Was Not Preserved.
On appeal,
the maternal great-aunt argues that the trial court erred in refusing to hear
evidence showing that the foster parents committed perjury in their application
for de facto parent status. Respondent
argues that the maternal great-aunt is precluded from raising this issue
because the evidentiary ruling was made in connection with the hearing on the
de facto parent application which the maternal great-aunt did not appeal. Maternal great-aunt clarified her position in
her reply brief by arguing that her objection
was to the trial court’s denial of the section 388 petition after excluding the
perjury evidence, which was relevant to the foster parents’ fitness to adopt
the minor. The great-aunt’s position is
not well-taken as it has not been preserved and there was no evidence of
perjury.
First,
testimony of the foster mother was adduced during the hearing on the foster
parent’s application for de facto parent
status. The parents’ counsel
examined the foster mother at length about statements on the application for de
facto parent status in which the foster parents stated that the minor’s
behavior changes following visits with the mother and father, and that she had
nightmares after visits.
The court
finally cut off the cumulative questions on the ground that they were not
relevant to the issue of whether the foster parents should be granted de facto
parent status. The maternal great-aunt
took no position on the de facto parent application, did not join in the objections
of mother and father, and did not ask the trial court to consider allegations
of perjury in the de facto parent application in connection with the 388
petition. Further, in his argument to
the trial court at the section 388 hearing, counsel for the maternal great-aunt
made no argument that the foster parents’ veracity in their de facto parent
application should be considered in ruling on the section 388 petition.
A failure
to object or to raise certain issues in the juvenile court prevents a party
from presenting the issue to the appellate court. (In re
R.C. (2008) 169 Cal.App.4th 486, 492, citing In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338.) Here, the issue pertaining to the credibility
of the foster parents in their de facto parent application was posited by the
parents. The maternal great-aunt did not
join in the objection. Nor did she argue
that the credibility of the foster parents had a bearing on her own section 388
petition. The issue was not preserved
for appeal.
Even
if the issue could be raised, it would not compel a reversal of the order
denying the maternal great-aunt’s section 388 petition. The testimony was not excluded, as asserted
in the opening brief. Rather, after
extensive questioning about the statements in the application, the court
finally determined that the information on the form was not relevant to the
application because it “doesn’t go to the issue of the De Facto parent
motion.†Later, the court clarified its
ruling to say that it was excluding further testimony from the de facto parents
on the issue of the statements in item 6-C of the application pursuant to
Evidence Code section 352, as unduly time consuming. The record shows that the area was thoroughly
examined.
Further
questioning about the foster parents’ statement about how the minor behaved
after visits with the parents was irrelevant to the issue of whether they
should be granted standing as a de facto parent. A de facto parent is a person who has been
found by the court to have assumed, on a day-to-day basis, the role of parent,
fulfilling both the child’s physical and psychological needs for care and
affection for a substantial period. (
909, 919.)
De facto
parent status allows a person who has assumed the role of parent of a child to
participate in the court hearings and share their “‘legitimate interests and
perspectives’†with the juvenile court as it makes decisions about the child’s
future care and welfare. (
127, 146, citing In re Kieshia E.
(1993) 6 Cal.4th 68, 77-78.) A person
who otherwise qualifies for de facto parent status may become ineligible by
acting in a manner that is fundamentally inconsistent with the role of a
parent. (In re Bryan D., at p. 142.)
Applicants for de facto status who have caused serious and substantial
harms to the children involved may be denied standing as a de facto
parent. (Id. at pp. 143-144.)
De facto
parent is ordinarily liberally granted on the theory that a court only benefits
from having all relevant information relating to the child’s best
interests. (In re D.R. (2010) 185 Cal.App.4th 852, 864.) The factors generally considered in
determining whether to grant such status include whether (1) the child is
psychologically bonded to the adult; (2) the adult has assumed the role of a
parent on a day-to-day basis for a substantial period of time; (3) the adult
possesses information about the child unique from other participants in the
process; (4) the adult has regularly attended juvenile court hearings; and (5)
a future proceeding may result in an order permanently foreclosing any future
contact between the adult and the child.
(In re Patricia L. (1992) 9
Cal.App.4th 61, 66-67.)
The
statements on line 6-C of the de facto parent application were not relevant to
the issues presented. Nevertheless, the
court permitted extensive (but not never-ending) examination of the foster
mother by the parties based on the possibility that the foster parents were
making efforts to thwart any reunification efforts or visitation. The foster mother testified about the
behaviors she observed after the minor had visited with the parents that she
interpreted as being scared and angry, and indicated that the minor cried a lot
at nighttime after visits with the mother and father. There was no showing of perjury.
No
other evidence was presented by any party to refute this testimony. The questioning was not geared at eliciting
information relating to conduct by the foster parents that have caused serious
and substantial harm to the child, so further questioning was irrelevant to the
court’s determination of the application.
Thus, the trial court’s ruling was correct.
b. The Trial Court Did Not Abuse Its
Discretion in Denying the Section 388 Petition.
The
maternal great-aunt argues that the court, which found her to be a “wonderful
woman,†erroneously concluded that changing placement for the minor was not in
the minor’s best interests, for purposes of a petition pursuant to section 388. We disagree.
A
juvenile court order may be changed, modified or set aside under section 388 if
the petitioner establishes by a preponderance of the evidence that (1) new
evidence or changed circumstances exist, and (2) the proposed change would
promote the best interests of the child.
(In re Stephanie M. (1994) 7
Cal.4th 295, 316-317.) The party making
the request to change the court order bears the burden to show both a
legitimate change of circumstances and that undoing the prior order would be in
the best interest of the child. (
519, 529.) Generally, the petitioner
must show by a preponderance of the evidence that the child’s welfare requires
the modification sought. (
1228.)
The
linchpin of placement of dependent children is their best interests. (In re
Antonio G. (2007) 159 Cal.App.4th 369, 378.) Although courts determining a child’s best
interests under section 388 should carefully evaluate whether a child’s
distress in severing a temporary bond is simply situational, and not base their
decisions on a transitory problem, courts may place great weight on evidence
that after a substantial period in foster care, the severing of a bond with the
foster parents will cause long-term, serious emotional damage to the
child. (In re Jasmon O. (1994) 8 Cal.4th 398, 418-419.)
Of
course, a finding of detriment cannot be based solely upon a successful
relationship between a foster child and foster parent, but it may be based on
evidence that severing the bond with the foster parents would do serious,
long-term emotional damage to the child.
(In re Jasmon O., supra, 8
Cal.4th at p. 418.) The petition is
addressed to the sound discretion of the juvenile court, and its decision will
not be overturned on appeal in the absence of a clear abuse of discretion. (In re
Stephanie M., supra, 7 Cal.4th at p. 318; In re S.J. (2008) 167 Cal.App.4th 953, 959.)
In
the present case, we accept that the court found the maternal great-aunt’s
request for relative placement to be a change of circumstances, within the
meaning of section 388, because the court did not deny the petition on the
ground there were no changed circumstances.
In fact, it ordered a hearing on the petition, which implies a finding
that the petition set forth a prima facie basis for relief. We treat the first prong of section 388 as
having been established.
The
crux of the case, which the court acknowledged was difficult, was the second
prong of section 388. Maternal
great-aunt argued at the hearing that the minor had an extended family on the
maternal side that is very invested in caring for the child. She testified that five generations of
maternal relatives lived in close proximity.
Her counsel also argued that the court should look at the case globally,
considering what will happen to the minor when she is older and seeks to learn
about her family.
However,
the court found that any change in the minor’s placement would be detrimental
to her. The court noted that the minor
was brought into the system after being severely battered and injured, and had
been nurtured back to health by the caretakers, with whom she has lived for
more than half her life. The documentary
evidence presented at the hearing included the report prepared for the section
366.26 report, where the social worker’s assessment indicated that initially,
after her injury, she had difficulty trusting adults. The nurturing provided by the caretakers
aided her ability to interact with adults without being guarded. During this time period, the minor has
developed a loving bond with the foster parents.
The trial
court was not free to ignore the potential impact on the minor that a removal
from the current placement would have.
We are not free to ignore it either.
Based on this record, the decision to deny the petition was a reasonable
exercise of discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RAMIREZ
P.
J.
We
concur:
RICHLI
J.
KING
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
name="_ftn2" title=""> [2] The
mother also filed a section 388 petition, but she withdrew the petition on the
date of the hearing.
