In re H.C.





















Filed 3/8/13 In re H.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 >CALIFORNIA>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

In re H.C. et al., Persons Coming Under the Juvenile Court Law.
L.C., Plaintiff and Appellant, v. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Defendant and Respondent.	E056350 (Super.Ct.No. INJ016246)
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. T.C., Defendant and Appellant.	E056552 (Super.Ct.No. INJ016246) OPINION

APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Charles Everett
Stafford, Jr., Judge.
Affirmed.

Lauren
K. Johnson, under appointment by the Court of Appeal, for Plaintiff and
Appellant L.C.

Megan
Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and
Appellant TC

Pamela J. Walls, County Counsel, Anna M. Deckert, Deputy County Counsel, for
Plaintiff, Defendant, and Respondent.

Leslie A. Barry, under
appointment by the Court of Appeal, for Minors.

This
opinion addresses two appeals that have been consolidated. The first appeal is brought by T.C. (Mother),
who is the mother of H.C. and A.C. (collectively “the children”). The second appeal is brought by L.C.
(Cousin), who is Mother’s cousin—the children’s second cousin. The juvenile
court terminated Mother’s parental rights to the children. (Welf. & Inst. Code, § 366.26, subd.
(b)(1).)href="#_ftn1" name="_ftnref1" title="">^[1] Additionally, the juvenile court (1)
suspended visitation between Cousin and the children, (2) ordered the
children’s permanent plans to be adoption by their caregivers, and (3) denied
Cousin’s request to place the children with Cousin (§ 388).

Cousin
contends the juvenile court erred because (1) it failed to follow the statutory
requirements concerning relative placement (§ 361.3), and (2) it was in the
children’s best interests to be placed together, in order to preserve their
sibling bond. Mother contends the
juvenile court erred because it “did not adequately assess and evaluate the
suitable and available relative placement with maternal cousin.” We affirm the judgment.

>FACTUAL AND PROCEDURAL HISTORY

A. BACKGROUND

Mother
had six children: T.C., L.W., M.W.1,
M.W.2, H.C., and A.C. In August 2004,
after giving birth to M.W.1, Mother tested positive for methamphetamine. In 2005, Mother’s parental rights to M.W.1
were terminated. M.W.1 lived in a
prospective adoptive home. In January
2006, Mother’s reunification services for L.W. were terminated, and L.W. was placed
in his father’s custody. In September
2006, Mother’s parental rights to M.W.2 were terminated. Cousin adopted M.W.2. In April 2007, Mother’s reunification
services for T.C. were terminated, and T.C. was placed in the custody of her
father.

H.C.
is female and was born in December 2009.
Mother was unable to provide any identifying information for H.C.’s
father. A.C. is male and was born in
July 2011. A.C.’s alleged father asked
the Riverside County Department of Public
Social Services (the Department) for a paternity test because Mother “dated
several people at the same time” she was dating him.

B. DETENTION

On
July 21 and 22, 2011, the Department received referrals concerning A.C. Mother had given birth to A.C.; who was in href="http://www.sandiegohealthdirectory.com/">respiratory distress and
placed in neonatal intensive care.
Mother did not know she was pregnant and had not received prenatal
care. Mother admitted using
methamphetamines during the pregnancy and stated she had been homeless at one
point. Mother and A.C. tested positive
for methamphetamine. Mother wanted
A.C.’s father to have custody of A.C.
A.C.’s father did not come to the hospital for the birth, or to visit
A.C.

Mother
told a Department social worker, “‘I drink meth, but I don’t use every[]day.’” Mother refused to tell the Department where
H.C. was located; she feared the Department would take custody of H.C. After an Indio
police officer spoke to Mother, Mother told the Department H.C. was with a
friend. H.C. was eventually located with
a different friend, and taken into the Department’s custody. A.C.’s alleged father was not willing to care
for A.C. until the paternity test was completed. The Department took custody of the children.

The
Department filed a petition alleging the children were at substantial risk of
suffering harm due to Mother neglecting the children as a result of her
substance abuse. (§ 300, subd.
(b).) The Department further alleged the
children’s fathers left them without any provision for support. (§ 300, subd. (g).) The juvenile court found the children came
within section 300, in that the children needed to be removed from Mother’s
care to protect them from a risk of substantial harm. The court ordered the children be detained
and placed with a relative or in foster care.
Additionally, the court ordered supervised visitation between Mother and
the children to occur a minimum of once per week.

C. JURISDICTION/DISPOSITION

H.C.
was placed in a foster home in the San Gorgonio Pass area. H.C. appeared fearful when her foster parent
would attempt to wash H.C.’s genitals.
A.C. was placed in a foster home in the Coachella Valley. A.C. appeared healthy and was doing well in
his placement. In August 2011, the
Department tried to contact Cousin to inquire about her interest in taking
custody of H.C., since Cousin adopted M.W.2; however, the Department did not
have a current telephone number for Cousin.


The
Department interviewed Mother. Mother
explained she did not receive prenatal care for A.C. because “she had been
living on the streets at the time and she did not have any income or
insurance.” Mother stated she had been
unemployed for “a couple of years” and was currently unemployed. Mother received food stamps, but no other
types of assistance. No visits took
place between Mother and the children due to Mother missing a scheduled visit
and not making another appointment.
A.C.’s alleged father missed three paternity testing appointments.

Mother
requested the children be placed with (1) a paternal great-aunt; (2) a paternal
cousin; or (3) a maternal great-aunt.
The Department submitted a referral for the paternal grandmother, to be
assessed for placement of A.C., but the assessment ended when she decided she
did not want to be considered for placement.


The
juvenile court found the allegations in the petition to be true. The court sustained the petition and adjudged
the children wards of the court. The
juvenile court denied Mother reunification services due to Mother failing to
reunify with the children’s siblings and/or half-siblings, and Mother’s
parental rights being terminated to two of her children. (Former § 361.5, subds. (b)(10) & (11)
[eff. Jan. 1, 2011].) The court found
A.C.’s father, to be an alleged father; he was dismissed from the case.

The
juvenile court found H.C. and A.C. were a sibling group with their siblings,
who were still under the juvenile court’s jurisdiction. The court reasoned the children were a
sibling group because “at least one child in the group was under the age of
three at the time of the initial removal and all of the children were removed
from parental custody at the same time”—given the juvenile court’s last remark,
it appears the court considered H.C. and A.C. to be a sibling set by
themselves, without Mother’s other children, who were wards of the court. The court found efforts were being made to
place the children together.

D. MOTIONS

On
October 28, 2011, the Department moved for the juvenile court to order weekend
and holiday visits between Cousin and the children. The Department felt it was in the children’s
best interests to be placed with family, and Cousin wanted to get to know the
children in order to determine if she was interested in adopting them. The court granted the Department’s motion.

Two
weeks later, on November 14, A.C.’s foster parents moved for de facto parent
status. One week later, on November 21,
A.C.’s foster parents moved to be designated prospective adoptive parents. On December 5, the children’s attorney (Cote)
moved the juvenile court to suspend visitation between Cousin and the
children. Cote explained that she
initially supported the Department’s motion for visitation, but came to realize
the motion was based on information that was no longer correct. Specifically, Cousin was only interested in
adopting A.C., but Cousin had initially indicated she would be interested in
adopting both. Cote explained A.C.’s
foster family was interested in adopting both children, if their home could be
approved for both.

Further,
Cote stated H.C. was not visiting Cousin; and when H.C. had recently been
removed from her placement Cousin was unwilling to take H.C. Cote argued the visitation between Cousin and
the children was unnecessary because (1) Cousin does not fall within the
statutory category of relatives who should receive preferential treatment
(former § 361.3, subd. (c)(2)); (2) the children have “no connection with
[Cousin] other than some remote biological relationship”; (3) there is no
relationship between H.C. and AC; (4) there is no relationship between the
children and M.W.2; and (5) A.C.’s foster parents had various motions pending
in the juvenile court (described ante).

Mother’s
attorney made no comment in response to Cote’s argument. The Department did not join in Cote’s request
because it did not appear anything detrimental was taking place during the
visits. The court denied without
prejudice the motion to suspend visitation because the court was “not hearing
that there is any detriment.” On
December 14, the juvenile court granted A.C.’s foster parents’ request for de
facto parent status.

E. OBJECTIONS TO PLACEMENT WITH COUSIN

AC
was doing well in his foster placement.
H.C. was adjusting well in her new foster placement. Mother did not visit the children. The children visited Cousin every other
weekend. Cousin requested, through the
Department, that A.C. be placed in her custody.
Cousin felt H.C. was “too much for her to handle.” In January 2012, the Department informed Cote
of its intent to remove the children from their foster homes and place them in
Cousin’s home.

Cote
filed an objection to A.C.’s removal.
Cote argued it was not in A.C.’s best interests to be removed from his
foster parents’ home because (1) they were the only family A.C. knows, (2) A.C.
was bonded to his foster family, (3) the foster parents had de facto parent
status and were waiting for prospective adoptive parent status, (4) the foster
parents had always expressed a willingness to adopt A.C., (5) Cousin only
visited A.C. two times, (6) A.C. had no bond with Cousin, and (7) A.C. did not
have a bond with H.C.

Cote
filed a separate objection to H.C.’s removal from her foster family’s
home. Cote argued it was not in H.C.’s
best interests to be removed from her foster placement because (1) H.C.
“suffered greatly” in her prior placement and was just beginning to show
improvements in the current placement, (2) Cousin had “steadfastly indicated”
she was not interested in adopting H.C., (3) Cousin did not take custody of
H.C. when H.C. had to be removed from her prior foster placement due to an
emergency, (4) there was no bond between Cousin and H.C., and (5) there was no
bond between A.C. and H.C.

AC’s
de facto parents also filed an objection to A.C.’s removal from their
home. The de facto parents asserted A.C.
had been in their home since he was 17 days old, there was no basis for
removal, and Cousin was a “virtual stranger” to A.C. and “a distant
relative.”

The
Department argued the children should be placed with Cousin. The Department argued Cousin’s home was the
best placement for the children because they could be placed together with
their half-sibling, M.W.2. The
Department asserted Cousin was “fully committed” to both children and
understood the placement was a “lifetime commitment.”

On
January 17, 2012, the juvenile court held a hearing on the issue of removing
the children from their placements. At
the hearing, Cote argued H.C. had “special emotional needs.” Cote asserted H.C. was improving in her new
placement, and the switch to living with Cousin might cause a setback in H.C.’s
progress. Cote argued Cousin only
visited with H.C. one time, and with A.C. two times—Cousin had contacted the
Department and requested H.C. not be at the second visit. Cote further argued there had not been visits
occurring between H.C. and A.C.

The
Department confirmed Cote was correct about the number of visits; it argued it
was the Department’s prerogative to make placement changes, and that it was not
a decision to be made by the court. The
Department stated it was its intention to move the children into Cousin’s
home. The Department again stressed
placement transfers were within the Department’s discretion, and the standard
for reviewing the Department’s transfer decisions is abuse of discretion. The Department asserted there was no evidence
indicating it was abusing its discretion.


The
juvenile court found it was not in the children’s best interests to be removed
from their placements; it did not state the reasons for its decision. The court ordered visitation between Cousin
and the children could continue.

F. REQUESTS TO CHANGE A COURT ORDER

On
February 21, 2012, Cote filed a request to change the court’s order concerning
visitation between Cousin and the children.
(§ 388.) Cote argued the visits
were harming the children because (1) the children were confused by the visits,
and (2) the visits disrupted the children’s regular routines. For example, H.C. was angry and emotionally
detached when she returned to her foster parents after a four-day visit with
Cousin. H.C. also smelled foul after the
four-day visit and was dirty. The
clothes the foster parents sent with H.C. were returned in a plastic bag and it
appeared they were soaked with urine.
H.C. had trouble sleeping after she returned to her foster parents’
house; she woke twice during the night crying, like she had when she initially
arrived at their home three months prior.
At daycare, H.C.’s naps were disturbed by “‘day terrors.’” H.C. appeared to stabilize after being back with
her foster parents.

As
to A.C., it was asserted the visits were detrimental because he was not given
his regular naps while with Cousin, so he had difficulties sleeping and eating
upon his return to his foster parents, which caused him to wake up during the
night. A.C. returned from the visits
with colds—after the first visit, A.C. had a cold that lasted for three
weeks.

The
juvenile court ordered a hearing on the request to change the court’s
order. On February 23, 2012, the court
suspended the visits between Cousin and the children pending the outcome of the
hearing.

On
March 5, 2012, Cousin filed a request to change a court order. (§ 388.)
Cousin asserted she wanted A.C. and H.C. placed with her. Cousin explained she did not have many visits
with the children due to the children’s foster parents cancelling the
appointments. Cousin argued the children
should be placed with her because (1) Cousin is the children’s relative, and
(2) the children’s half-sibling is in Cousin’s care.

AC’s
de facto parents filed an objection to Cousin’s request to change a court
order. The de facto parents asserted
there was no longer a preference for relative placement because the case was in
the permanency planning stage. The de
facto parents further argued it was not in A.C.’s best interests to be placed
with Cousin. The de facto parents denied
hindering the visits between A.C. and Cousin.
The de facto parents explained there were communication problems with
the social worker that led to missed visits and visits taking place on short
notice. The Department’s report
reflected a new social worker was assigned to the case on February 28, 2012.

After
a different social worker took over the case, the Department changed its
position and supported the children’s requests to stay in their
placements. The Department argued
Cousin’s request for placement should be denied because Cousin had been
“hesitant from the beginning” in taking custody of H.C. due to H.C.’s tantrums and
the financial expenses related to daycare.
The Department also asked the court to designate A.C.’s de facto parents
as prospective adoptive parents.

The
juvenile court remarked that the children were both under the age of three
years old. A.C. was seven months old,
and H.C. was two years old. The court
found the children had bonded with their foster parents, but that the children
had not connected with their various older siblings. The juvenile court explained that it was a
goal to keep siblings together and place children with relatives, “[b]ut
sometimes the situations are presented that we get to a point in time that
that’s not always possible and doesn’t serve the interests of the
children. And this is one of those
occasions.” The court found it would be
detrimental to the children to remove them from their foster placements,
because the children were in stable environments and removal would require the
children to “start the bonding process all over again.” The court observed that removing the children
to Cousin’s house might be in the best interests of Cousin, but it would not be
in the children’s best interests.

The
court denied Cousin’s request to change a court order on the basis that there
were not changed circumstances and the requested change was not in the
children’s best interests. (§ 388.) Further, the court designated A.C.’s de facto
parents as prospective adoptive parents because the designation was in A.C.’s
best interests. The court ordered the
children’s permanent plan to be adoption by their caregivers. The court suspended visitation between Cousin
and the children, but denied, without prejudice, Cote’s motion to terminate
visitation with Cousin.

G. TERMINATION

The
children were doing well in their placements.
The Department recommended Mother’s parental rights be terminated. The juvenile court terminated Mother’s
parental rights to the children, A.C.’s alleged father’s parental rights, and
H.C.’s unknown father’s parental rights.
The court found adoption was in the children’s best interests.

>DISCUSSION

A. SECTION 361.3: COUSIN’S APPEAL

Cousin
contends the trial court erred by failing to apply the relative placement
preference (§ 361.3) during the hearing on Cousin’s request to change a court
order (§ 388).href="#_ftn2" name="_ftnref2"
title="">^[2] We disagree.

Former
section 361.3, subdivision (a), provided:
“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. In determining whether
placement with a relative is appropriate, the county social worker and court
shall consider, but shall not be limited to, consideration of all the following
factors[.]” (Eff. Jan. 2008.)

Former
section 361.3, subdivision (d), sets forth:
“Subsequent to the hearing conducted pursuant to Section 358 [(the
disposition hearing)], 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.” A juvenile court’s alleged legal errors, such
as failing to follow proper legal procedures, are reviewed de novo. (In re
Charlisse C. (2008) 45 Cal.4th 145, 159.)

The
disposition hearing in this case took place on September 19, 2011. Cousin filed her request to change a court
order on March 5, 2012. The hearing on
the request took place on March 20, 2012.
At the time of the March 20, 2012 hearing, A.C. continued to reside with
the same foster family he had been with since he was 17 days old, and H.C.
continued to reside with her second foster family. In other words, at the March 20 hearing, the
children had not been removed from their homes. As a result, the March 20 hearing was not one
in which a new placement of the children needed to be made. (§ 361.3, subd. (d) [“whenever a new
placement of the child must be made”].)
Accordingly, since the section 388 hearing took place after the disposition
hearing and the children were still residing in there foster placements,
section 361.3 did not apply to the March 20 section 388 hearing. Thus, we conclude the juvenile court did not
err.

In
a mixed argument, Cousin asserts the juvenile court erred because it failed to
apply section 361.3 and it made a decision about the children’s placement
without evidence of the Department assessing Cousin’s home. Cousin does not explain why the juvenile
court was legally required to apply section 361.3 during a postdisposition
hearing where the children had not been removed from their placements. Thus, we find Cousin’s argument to be
unpersuasive.

B. SECTION 361.5: MOTHER’S APPEAL

Mother
asserts the juvenile court erred because it “did not adequately assess and
evaluate the suitable and available relative placement with maternal cousin in
deciding that the best interest of the children was to remain in their separate
foster home placements.” Mother appears
to concede that section 361.3 does not apply in this case, and therefore her
argument relies on section 361.5.href="#_ftn3"
name="_ftnref3" title="">^[3]

Mother
specifically relies on former section 361.5, subdivision (g)(1)(D), which
provided: “Whenever a court orders that
a hearing shall be held pursuant to Section 366.26 . . . it shall direct the
agency supervising the child and the licensed county adoption agency . . . to
prepare an assessment that shall include:
. . . [¶] . . . [¶] (D) A preliminary assessment of the
eligibility and commitment of any identified prospective adoptive parent or
guardian . . . . If a proposed guardian
is a relative of the minor, the assessment shall also consider, but need not be
limited to, all of the factors specified in subdivision (a) of Section 361.3
and in Section 361.4.” (Eff. Jan.
2011.) Given this law, Mother asserts
the juvenile court erred in making a placement decision for the children
without an assessment of Cousin’s home having been conducted by the
Department.

“Prospective
Adoptive Parent” is a defined term in former section 366.26, subdivision
(n)(1), which provides that a juvenile court “may designate a current caretaker
as a prospective adoptive parent if the child has lived with the caretaker for
at least six months, the caretaker currently expresses a commitment to adopt
the child, and the caretaker has taken at least one step to facilitate the href="http://www.fearnotlaw.com/">adoption process.”

The
children did not live with Cousin for six months, so Cousin could not be a
prospective adoptive parent. (Welf.
& Inst. Code, §366.26, subd. (n)(1); see also Fam. Code, § 8731 [six-month
requirement for prospective adoptive parent].)
Additionally, there is nothing in the record indicating Cousin is the
children’s guardian. Accordingly, Cousin
does not qualify as an “identified prospective adoptive parent or guardian,”
such that a home study of Cousin’s house needed to be conducted. (Welf. & Inst. Code, § 361.5, subd.
(g)(1)(D)). In other words, the juvenile
court did not err.

Mother
discusses the Department’s failure to initially contact Cousin when the
children were removed from Mother’s care.
Mother seems to assert the children could have been placed with Cousin
if the Department had tried harder to contact Cousin. The record reflects the Department tried to
contact Cousin prior to the Jurisdiction/Disposition hearing, but the telephone
number it had for Cousin was not in service.
When the Department interviewed Mother prior to the
Jurisdiction/Disposition hearing, Mother suggested three different relatives
for placement of the children—Cousin was not among them. Given that Mother did not attempt to have the
children placed with Cousin earlier in the case, we are not persuaded by her
current complaint that the Department did not try hard enough to have the
children placed with Cousin prior to the Jurisdiction/Disposition hearing.

Moreover,
we note the Department tried to place H.C. with Cousin in November 2012, after
the Jurisdiction/Disposition hearing, but Cousin declined the placement
explaining that H.C. was “too much for her to handle.” Thus, the Department made an effort to place
H.C. with Cousin; as a result, Mother’s arguments concerning the Department’s
lack of effort are unavailing.

C. SECTION 388: COUSIN’S APPEAL

Cousin
asserts the juvenile court’s ruling on her section 388 petition should be
reversed because it was in the children’s best interests to be placed together,
with M.W.2, in Cousin’s home. Cousin’s
best interest argument is moot because she does not address the “change
circumstances” prong of the section 388 analysis.

“When
no effective relief can be granted, an appeal is moot . . . .” (In re
Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.) “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. [Citation.]” (In re
Zachary G. (1999) 77 Cal.App.4th 799, 806.)

In
denying Cousin’s section 388 request, the juvenile court said, “And it’s denied
because there is not a change of circumstance sufficient to warrant the
granting and the granting of that [JV-]180 petition would not be in the best
interest of either one of these children.”
Cousin’s appeal only addresses the best interest prong of the
analysis. Therefore, even if Cousin were
correct in her contention, this court could not provide her the relief she
seeks because the “changed circumstances” prong would prevent reversal of the
juvenile court’s decision. In other
words, the juvenile court would have needed to have erred as to both prongs in
order for its decision to be reversed.
Since Cousin is only asserting an error with the “best interests” prong,
this court cannot reverse the juvenile court’s decision even if Cousin’s
contention is correct. Thus, the issue
is moot.

>DISPOSITION

The
judgment is affirmed.

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS



MILLER

J.





We concur:





RICHLI

Acting P. J.





KING

J.