In re Frankie L.
Filed 1/23/14 In
re Frankie L. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
In re FRANKIE L., a Person Coming Under
the Juvenile Court Law.
2d
Juv. No. B248735
(Super.
Ct. No. JV50690)
(
SAN LUIS OBISPO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Plaintiff and Respondent,
v.
V.M.,
Defendant and Appellant.
V.M. appeals
the juvenile court's order denying her petition
to modify an order placing her minor grandson Frankie L. with his
prospective adoptive parents (Welf. & Inst. Code,
The trial court denied the petition in conjunction with terminating the parental
rights of Frankie's father and ordering a permanent plan of
circumstances and that placing Frankie with her would be in the child's best
interests. She also claims the court
abused its discretion in failing to grant her visitation with Frankie. We affirm.
STATEMENT OF
FACTS
When Frankie
was born in 2005, he and mother tested positive for drugs. They moved in with
appellant shortly thereafter. Mother
continued to use drugs and died in January 2007. Frankie remained in appellant's custody while
father was in prison on a drug-related charge.
In
2009, Frankie began spending the summer and holidays with father and his wife;
the rest of the year he lived with appellant.
In August 2011, appellant took Frankie without permission from the home
of his step-siblings' father, R.L. Father
was subsequently granted full legal and
physical custody of Frankie.
On
March 6, 2012, a dependency petition
was filed alleging that father and his wife were using drugs and engaging in
domestic violence. (§ 300, subds.
(b), (g)). Frankie was placed with R.L.,
who is considered a non-relative extended family member (NREFM). Father was granted reunification services and
the matter was set for a six-month review hearing.
In July
2012, the San Luis Obispo County Department of Social Services (DSS) recommended
that appellant be allowed to visit Frankie.
Father "admitted that he had 'slandered' his mother during the
early part of the investigation, lied about things in the past and that none of
these things were true. He has indicated
several times that he is no longer interested in participating in Family
Reunification services and wishes to have the child placed with [appellant] . .
. as a permanent placement." DSS
noted that appellant had been approved as a potential placement and was
"considered a potential concurrent plan for the child. It is the hope of [DSS] that Frankie can go
on a visit and begin to transition to placement with [appellant]
permanently."
At the
six-month review hearing, DSS recommended that father's reunification services
be terminated because he had only made minimal progress on his case plan. Although father still wanted Frankie to be
placed with appellant, DSS no longer supported this plan. Frankie enjoyed his visits with father and
appellant, but he preferred his current placement and was thriving in it. DSS reported that appellant "has a very
difficult time containing her emotions and becomes highly emotional in a very
short period of time. . . . [Appellant]
becomes very dramatic when describing a situation that involves her and
[father]. It has been observed that
[appellant] attempts to embellish the circumstances surrounding an event in
order that she may appear to be the victim." It was discovered that appellant and father
were engaging in domestic disputes and "[appellant] has demonstrated
having little to no boundaries with her son.
[Appellant] has stated that she is extremely fearful of her son and it
appears that he is able to manipulate her to the point where [appellant] makes
poor personal choices." The Court
Appointed Special Advocate (CASA) supported DSS's recommendation.
Notwithstanding
DSS's recommendation, the court granted father an additional six months of
services and set the matter for a 12-month review hearing. Frankie was continued in his placement with
R.L.
On October 19, 2012, appellant applied for de facto parent status.
denied on November
1, 2012.
On November 7, 2012, DSS filed a form JV-180 request that father's reunification
services be terminated due to arrest for possession of a controlled substance
and a new report of domestic violence against his wife. At a hearing on December 13, 2012, the court terminated reunification services and set the matter for
a permanency planning hearing (§ 366.26) on April 10, 2013.
Appellant
filed another request for de facto parent status on December 17, 2012, then withdrew that request on December 27, 2012. On February 14, 2013, Frankie was placed with his prospective adoptive parents.
DSS's objection. The court told
appellant: "[Y]ou probably are
aware that Frankie currently is in a home that . . . [DSS] has been looking to
as . . . the permanent plan, for Frankie.
This does not change that, as you know.
But it certainly confirms the relationship that you had with your
grandson in the past and the importance that you want to continue to have and
be involved in this case, and that's what I'm granting by way of this
request."
On March 22, 2013, appellant filed a section 388 modification petition (form JV-180)
requesting that Frankie be immediately placed with her. Appellant also asked the court to order a
bonding study. On April 8, 2013, DSS filed a modification petition requesting that the court
discontinue visitation between Frankie and father while father was
incarcerated. The court granted DSS's
petition and suspended Frankie's visitation with father. Appellant's section 388 petition was set to be
heard in conjunction with the section 366.26 hearing.
At the
combined section 388 and section 366.26 hearing, DSS opposed appellant's
request that Frankie be removed from the custody of his prospective adoptive
parents and placed with her. The social
worker reported that Frankie was doing well in his placement. The social worker also indicated that she had
reassessed appellant as a possible permanent placement for Frankie. Appellant had ultimately been ruled out as a
placement option based on prior information, the social worker's recent
interactions with appellant, and the social worker's observations of
appellant's relationship with Frankie during their supervised visits. The social worker noted that father claimed
appellant regularly used marijuana and was "neglectful and abusive"
when father was a minor. Although father
"has gone back and forth" with regard to whether he wanted Frankie to
live with appellant, he most recently told the social worker that he wanted
Frankie to remain in his current placement and did not want appellant to be
considered as a placement option. According
to appellant, father had "changed his position" again and wanted
Frankie to be placed with appellant.
The
social worker also reported that appellant "has made many conflicting
statements/gestures regarding [father]." Although appellant claimed to be afraid of
father, she and father came to a September 2012 hearing together and were
holding hands. Appellant told the social
worker "this is a lie," even though the CASA and DSS staff had
observed it. The social worker also
referred to instances when appellant displayed emotionally unstable behavior with
DSS staff and CASA. When the social
worker attempted to discuss the case with appellant on two occasions, appellant
"became immediately defensive, angry, and hostile, yelling at [the] social
worker and ultimately hanging up the phone on both occasions." Appellant had also made several inappropriate
calls to the prospective adoptive parents, vacillating from anger and hostility
to "crying, begging and pleading[.]"
The
social worker had supervised three visits between appellant and Frankie. During the first two visits, which preceded
Frankie's placement with his prospective adoptive parents, he seemed happy to
see appellant and gave her a hug.
Appellant and Frankie had very little interaction during any of the
visits. When appellant would tell
Frankie that she loved and missed him and he did not respond, appellant asked,
"Don't you miss Grandma, too? Don't
you still love Grandma?" Appellant
spent a significant portion of the second visit reading her camera manual while
Frankie played. Immediately after the social
worker gave a "five-minute warning" indicating that the visits were
about to end, "Frankie took off toward the car and was ready to leave, not
showing any outward signs of distress about the visit ending."
Frankie's
prospective adoptive parents brought him to the third visit and stayed in the
park while the visit took place. While
they were driving to the visit, Frankie repeatedly asked them, "You're not
going to leave me, right?" and "You're going to stay at the park
where I can see you, right?" When
they arrived, Frankie held on to his prospective adoptive mother's hand and
shook his head when appellant encouraged him to run up and hug her. When Frankie's CASA arrived near the end of
the visit, Frankie ran to her and gave her a hug. The prospective adoptive parents reported
that Frankie was "irritable and withdrawn" for several days after the
visit.
The prospective
adoptive parents were initially amenable to allowing appellant to continue
seeing Frankie. As soon as appellant
discovered that Frankie was having visits with the prospective adoptive
parents, she began calling the prospective adoptive mother and her mother,
demanding that they stay away from the child.
The prospective adoptive parents decided to bring Frankie to the third
supervised visit because they were hopeful that she would be put at ease if she
met them in person. Instead, appellant
continued to make angry phone calls to the prospective adoptive parents. After the prospective adoptive mother stopped
answering appellant's calls, appellant began calling her at work and on her
cell phone. This social worker sent
appellant a certified letter insisting that she initiate no further contact
with the prospective adoptive parents or their parents. As a result of appellant's behavior, the
prospective adoptive parents were "uncomfortable with ongoing and future
contact." If appellant was willing
to accept them as part of Frankie's life and maintain appropriate boundaries,
they would be willing to initiate further contact by letter.
The
social worker concluded that "[Frankie's] prospective adoptive parents
have not only raised their own two sons, but raised both of Frankie's
half-siblings into adulthood as well. In
his current home, he has the opportunity to form and have a relationship with
his brother and sister. Frankie states
that he 'loves' his brother and his sister and he looks forward to the time he
spends with them on weekends. Both his
brother and sister are young adults who provide a positive influence in
Frankie's life. . . . They are
developing a healthy and supportive relationship that will continue throughout
the rest of their lives.
[¶] . . . During a recent private conversation with his CASA
worker, Frankie stated . . . that he is happy in his current home and would
like to remain where he is. His
caregivers report that he asks them when it will be May 10. He is aware that a court hearing is happening
on this date and tells his care providers 'That's when the Judge is going to
decide that I can live here forever and ever!'"
CASA
also opposed the petition, noting that "Frankie is thriving in his current
placement in a loving family, which includes regular and frequent contact with
his half-brother and half-sister . . . .
Frankie's sister and brother both stated to me that they believe they
were 'saved' by the parents Frankie is now placed with, and that they were
lovingly shown how to live successful and productive lives away from alcohol,
drugs and gangs." CASA stated: "I strongly believe and agree . . . that
it is in Frankie's best interest to remain with, and be adopted by, the family
in which he is currently placed. I
firmly believe it would be detrimental to Frankie on social, emotional,
physical, psychological, intellectual, and educational levels to be placed with
others currently vying for him. From
what I have been told and observed, [appellant] appears to have many issues of
her own to contend with. From all that I
have seen and heard during the past year, I do not believe she is a good choice
to raise Frankie."
Father,
who was incarcerated at the time, testified that he wanted Frankie to be placed
with appellant. R.L. testified that
Frankie told him he wanted to live with appellant during the time he was in
R.L.'s custody. A friend of appellant's
testified that appellant had been an excellent caretaker of Frankie, even
though she was being treated for cancer part of the time he was in her custody.
Appellant also testified on her own
behalf. She claimed to have a taped
phone call from March in which Frankie said he wanted to live with her. She did not recall telling the social worker
that she was afraid of father or that he had tried to rape her.
The
adoption worker opined that continued visitation between Frankie and appellant
was not in the child's best interests due to appellant's emotional instability
and her refusal to support his current placement. The adoption worker's attempts to discuss her
concerns with appellant were unsuccessful. Instead of improving, appellant was becoming
even more emotionally unstable. When the
adoption worker called appellant to discuss Frankie's placement or visitation,
appellant "immediately gets very angry, lets me know she's calling her
attorney and slams the phone down."
At the
conclusion of the hearing, the court denied appellant's section 388 petition on
its findings that appellant had failed to demonstrate either changed
circumstances or that removing Frankie from his current placement would be in his
best interests. The court proceeded to
find that Frankie was adoptable, terminated father's parental rights, and set
the matter for a post-permanency planning review. With regard to visitation, the court noted there
was no prior order for visitation; rather, appellant had been allowed
supervised visits as a matter of courtesy.
The court decided to "leave them as courtesy visits at this
time" and declined to order any further visitation.
DISCUSSION
Appellant
contends the juvenile court abused its discretion in denying her section 388
petition. She claims she proved that
circumstances had changed and that removing Frankie from the home of his prospective
adoptive parents and placing him with her would be in the child's best
interests. She further contends the
court abused its discretion in declining to order visitation between herself
and Frankie.
Section
388, subdivision (a)(1), provides in relevant part: "Any parent or other
person having an interest in a child who is a dependent child of the juvenile
court
. . . may, upon grounds of change of circumstance or new evidence,
petition the court in the same action in which the child was found to be a
dependent child of the juvenile court . . . for a hearing to change, modify, or
set aside any order of court previously made . . . ." "At a hearing on a motion for change of
placement, the burden of proof is on the moving party to show by a
preponderance of the evidence that there is new evidence or that there are
changed circumstances that make a change of placement in the best interests of
the child. [Citations.]" (In re
Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie
M.).) "[A] primary
consideration in determining the child's best interests is the goal of assuring
stability and continuity. [Citation.]"
(Ibid.)
We
review the denial of appellant's section 388 petition for an abuse of
discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.) "'The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be
deduced from the facts, the reviewing court has no authority to substitute its
decision for that of the trial court.' [Citations.]" (Id.
at pp. 318–319.)
Appellant
contends that circumstances had changed in that Frankie's dependency had
progressed to permanency planning and the child had been moved to the
prospective adoptive parents' home in violation of the relative placement
preference mandate of section 361.3. DSS
responds that appellant has forfeited the right to invoke section 361.3 by
failing to do so below. Although
appellant argued that the relative placement preference applied, she did not
assert that Frankie had been moved to the prospective adoptive home in
violation of that preference. Appellant
has thus forfeited the latter claim. (
1330, 1338.)
In any
event, appellant fails to demonstrate that section 361.3 applied here. Section 361.3, which provides that
"preferential consideration shall be given to a request by a relative of
the [removed] child for placement of the child with the relative" (at subd.
(a)), initially comes into play at the dispositional hearing. After that
hearing, relatives are entitled to preferential consideration only when the
child's existing placement fails:
"Subsequent to the hearing conducted pursuant to Section 358,
whenever a new placement of the child must be made, consideration for placement
shall again be given as described in this section to relatives who have not
been found to be unsuitable and who will fulfill the child's reunification or
permanent plan requirements.â€
(§ 361.3, subd. (d).)
In the
early stages of the proceedings, DSS approved appellant as a potential
placement for Frankie and proceeded on the presumption that he would
"transition to placement with [appellant] permanently." DSS subsequently determined, however, that
placing Frankie with appellant would not be in the child's best interests. As appellant recognizes, "the court
denied [her] early request for placement of Frankie, finding her behavior
concerning and her not showing a parental role." That ruling, in the form of an order denying
appellant's request for de facto parent status, was appealable. (§ 395.)
Appellant did not appeal, however.
Once the court determined she was not a suitable placement for Frankie,
the relative placement preference no longer applied to her. (§ 361.3, subd. (d), italics added
["Subsequent to the [dispositional] hearing conducted pursuant to Section
358, whenever a new placement of the child must be made, consideration for
placement shall again be given as described in this section
unsuitable and who will fulfill the child's reunification or permanent plan
requirements"].)
Even if
the statute did apply, it would not aid appellant. Section 361.3 makes clear that "preferential
consideration" does not guarantee preference in placement. In fact, the statute specifically defines
preferential consideration as merely a requirement "that the relative
seeking placement shall be the first placement to be considered and
investigated." (§ 361.3, subd.
(c)(1).) DSS reported that appellant had
been reassessed and once again ruled out as a possible permanent placement for
Frankie. Ample evidence supports that
conclusion. "Once reunification
services are ordered terminated, the focus shifts to the needs of dependent
children for permanency and stability." (In re
A.A. (2008) 167 Cal.App.4th 1292, 1320.)
Notwithstanding the relative placement preference, the court's
fundamental duty "is to assure the best interests of the child[.]" (Stephanie
M., supra, 7 Cal.4th at p. 321.)
Appellant's
petition sought to have the court remove Frankie from a permanent placement in
which he was thriving, one in which he had the best possible chance for
permanency and stability. The factors
the court must consider in determining whether a relative placement is
appropriate plainly weigh against the result appellant advocates here.
ability to parent Frankie and the universal indications that the child is
thriving in his placement with his prospective adoptive parents, the court
found that the requested change in Frankie's placement would not be in his best
interests. Nothing about appellant's
status as Frankie's grandmother or his de facto parent undermines this result. (Stephanie
M., supra, 7 Cal.4th at p. 321; see also In re P.L. (2005) 134 Cal.App.4th 1357, 1361 [de facto parents'
limited rights do not include any rights to reunification services, custody, or
visitation].) Appellant's section 388
petition was fully litigated in conjunction with the section 366.26 hearing. In light of the evidence presented at that
hearing, the court did not abuse its discretion in finding that neither changed
circumstances nor Frankie's best interests warranted that he be removed from
the custody of his prospective adoptive parents and placed with appellant.
Appellant
also fails to demonstrate the court abused its discretion in declining to order
visitation. Because the juvenile court "'.
. . has been intimately involved in the protection of the child, . . .'"
it is best situated to make custody and visitation orders based on the child's
best interests. (In re Chantal S. (1996) 13 Cal.4th 196, 206.) The court's broad discretion in determining a
minor's best interests will not be reversed on appeal unless it is shown the
court abused its discretion by making an arbitrary, capricious or patently
absurd determination. (
The
facts support the court's decision to continue with visitation on a courtesy
basis. In arguing otherwise, appellant
urges us to reject inferences that can reasonably be deduced from the facts in
favor of different inferences that support her position. This we cannot do. (Stephanie
M., supra, 7 Cal.4th at pp. 318-319.)
The juvenile court was in the best position to decide issues of
visitation, and appellant offers nothing to demonstrate that its ruling was
outside the broad bounds of its discretion.
The
judgment is affirmed.
NOT
TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT,
P. J.
YEGAN,
J.
>
Linda D. Hurst, Judge
Superior Court County of San Luis Obispo
______________________________
M.
Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rita L.
Neal, County Counsel, Leslie H. Kraut, Deputy County Counsel, for Plaintiff and
Respondent.
statutory references are to the Welfare and Institutions Code.
(father) is appellant's son. Frankie's
mother (mother) is deceased.
