In re J.G.

























Filed 3/21/13 In re J.G. CA1/4

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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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
FOUR




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In re J.G., a Person Coming Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.G., Defendant and Appellant.	A135110 (Alameda County Super. Ct. No. HJ11016655D)

I.

Introduction

In this href="http://www.fearnotlaw.com/">juvenile dependency matter, appellant
A.G., the maternal grandmother of the minor, J.G., appeals from an order
denying her petition under Welfare and Institutions Code section 388.name=FN2>href="#_ftn1" name="_ftnref1" title="">>[1] In appellant’s section 388 petition, she
requested removal of J.G. from her foster parents, who have cared for the minor
her entire life and who wish to adopt her, and that a placement in appellant’s
home should be made. The juvenile court
denied appellant’s section 388 petition after finding that a change in
placement was not in the minor’s best interests.

On appeal,
appellant primarily contends that the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Alameda
County Social Services Agency (the Agency) and the juvenile court gave
insufficient weight to appellant’s placement request under the requirements of
section 361.3, affording preferential consideration to a relative’s
request. Appellant claims the
resulting denial of her section 388 petition should be reversed to allow
her the full benefits of preferential
placement consideration
under section 361.3,
and “the matter remanded to the trial court to start the transition of [the
minor] into her grandmother’s home.”

For the
reasons stated below, we determine that the court’s denial of appellant’s
section 388 petition did not constitute an abuse of discretion. Therefore, we will affirm the challenged
order.

II.

Facts
and Procedural Circumstances

The minor was taken from her
mother’s custody a few days after her birth in March 2011 after the mother
exhibited abnormal and uncooperative behavior in the hospital. At three days old, the minor was placed in
her current foster home, where she has remained throughout these proceedings.

The
mother has a long-standing and well-documented history of mental health
problems which have resulted in a string of inpatient psychiatric
hospitalizations. She has a diagnosis of
schizophrenia and bipolar disorder that is untreated because she denies that
she has a mental illness, and believes it is a violation of her rights to be
forced to take medication.

Appellant,
the maternal grandmother, was present at the hospital following the minor’s
birth. At that time, she expressed an
interest in having the minor placed in her care. Shortly after the minor’s birth, a “Team
Decision Making Meeting” was held to determine the best placement option for
the minor. It was decided that appellant
would be the first choice for placement pending home approval and the second
choice was to have the minor remain in foster care. However, appellant delayed completing the
required home assessment. Appellant
reported that she was unable to have her home assessed because she was in the
middle of remodeling it; the kitchen was completely gutted and one of the
bathrooms was being remodeled. Several
months later, the Agency’s social worker told appellant that the relative
assessment referral needed to be closed because any assessment needed to be
completed within 30 days. Appellant was
informed that a new referral could be submitted when the construction was done
and her home was ready for assessment.

In
the meantime, dependency jurisdiction
was assumed over the minor and she was continued in her foster care
placement. The mother received
reunification services but was out of compliance with her reunification
plan. Her behavior deteriorated over the
course of the minor’s dependency, and she committed a number of violent and
threatening acts toward those having contact with the minor. She believed the minor had been kidnapped and
that the Agency “is a child-kidnapping organization with child-kidnapping
artists.” She wrote to Governor Edmund
G. Brown, Jr. explaining that she is “fighting to get my newborn child out of
the corrupted Juvenile Court” and she sought his assistance to “return my
infant kidnapped by Child Protective Services.”
For their own safety, the minor’s social worker and foster family
obtained restraining orders against the mother.
She violated the restraining order by going to the foster parents’ home
and sending letters and documents in the mail.

On
November 7, 2011, at the six-month review hearing, mother’s reunification
services were terminated. The minor’s
foster parents were granted de facto parent status, and the trial court set the
case for a permanency planning hearing pursuant to section 366.26.

On
September 14, 2011, appellant again expressed her interest in having the minor
placed with her. The social worker
informed appellant that there was no guarantee that she would be selected for
placement because the minor, who was now six months old, had developed a loving
relationship with her foster parents, who wished to adopt her, and she was
thriving in their care. On October 3,
2011, a second meeting was held to determine the best permanency option for the
minor. Appellant participated in the
meeting. The Agency recommended that the
minor remain in her current placement with a permanent plan of adoption. Nevertheless, on October 13, 2011, appellant
was referred for a relative home assessment.
Appellant’s home was approved on November 10, 2011.

Appellant
filed a section 388 petition on November 18, 2011, requesting the court place
the minor in her home. She explained the
delay in seeking custody: “Early on in
the case . . . [w]hen the baby was born, my house was under
construction. I attempted over and over
to complete the project, but there was one problem after another (out of my
control) such as unexpected plumbing problems, [and] contractor injury which
significantly delayed the project. Once
the project was near completion, I attempted to re-apply for relative placement
and that is what I have done at this time.”
She indicated: “I have asked for
visitation over and over and the social workers have luckily accommodated my
requests, however, I have only had four visits.” “Although I had [only] four visits, they were
wonderful.”

In
the report prepared for the hearing on appellant’s section 388 petition, the
Agency recommended that the minor remain with her foster parents and that
adoption remain the permanent plan. The
social worker wrote: The minor, “age 11
months, has developed a close relationship with her caregivers. They have been providing her consistent care since
she was 3[]days old. Although
[appellant’s] home has been approved, it does not appear to be in [the minor’s]
best interest[s] to move her. It is
concerning that it took 8 months for the home . . . to be approved
and during [that] time [appellant] did not pursue consistent visitation. As a result, it is recommended to maintain
[the minor’s] placement in her current home under the plan of adoption.”

A contested
hearing on appellant’s 388 petition commenced on February 27, 2012. Appellant testified that she is willing to
adopt the minor and cooperate with all court orders. She has the financial means to take care of
the minor. She gets support from her
ex-husband and she has a business, a party supply store. She does not run her business because she is
busy with her family. She has been in
the same three-bedroom house for 18 or 19 years. She lives there with two of her
children. She has a room and baby
supplies ready for the minor.

Appellant
explained that she wanted to have the minor placed with her after she was born
but her “house wasn’t ready.” The house
was under construction from approximately September 2010, prior to the minor’s
birth, until about October 2011. At the
time of her testimony, appellant indicated she had participated in five
supervised visits with the minor. She
acknowledged that she did not visit the minor for a four-month period between
April and August 2011. She explained
further that she did not make a request to see the minor more at the beginning
of the minor’s life because she thought the mother would “follow through with
her kid.” Appellant admitted during the
minor’s entire dependency, she had never made a request for visitation that was
denied.

Appellant
testified that her daughter, the minor’s mother, had not lived with her for
about three years, and that she does not visit.
However, she acknowledged that in the recent past, appellant had allowed
the mother to use her address to receive mail; and appellant had let the mother
use her cell phone because the mother did not have a phone. She indicated that if the minor was placed
with her, she would be willing to call the police and file for a restraining
order in order to protect the minor from her mother.

The court
announced its ruling on March 16, 2012.
The court denied appellant’s section 388 petition for modification after
finding that appellant “not necessarily through any fault of her own,
. . . has not established a relationship with this child in the way
that [the foster parents] have established a relationship. [Appellant] has had five visits with the
child which is about six hours during the course of her life.” The court found “it would not be in [the
minor’s] best interest[s] to be removed from the custody” of the foster parents
who have offered her “a stable placement.”

III.

Discussion

A. Standard of 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 (Stephanie M.).) The court’s “ruling should not be disturbed
on appeal unless an abuse of discretion is clearly established. [Citations.]”
(Ibid.) Likewise, that
same deferential standard governs review of the juvenile court’s decision
whether to place a dependent child with relatives. (In re Robert L. (1993) 21 Cal.App.4th
1057, 1067; Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863
(Alicia B.).)

B.
Overview of Parties’ Contentions on Appeal

Appellant
asserts that by enacting section 361.3, the Legislature has indicated its name="SR;4489">preference that dependent children be placed with name="SR;4491">relatives; and in this case, the Agency “fail[ed] to
articulate a viable reason why it did not make a concerted, good faith effort
to place [the minor] with her own grandmother.”
She requests the case be remanded with directions to the court to:
(1) vacate its order denying appellant’s placement request; and
(2) start the process of transitioning the minor into her home.

In response, the Agency insists that the court properly
denied appellant’s section 388 petition and motion to change placement
because a new placement was not necessary, and therefore the section 361.3
relative placement preference did not apply.
The Agency also claims appellant has failed to show that removing the
minor from her de facto parents and the only home she has ever known would
be in the child’s best interests.

C. Section 361.3—Relative Placement Preference

Section 361.3,
often referred to as the relative placement
preference, provides that preferential consideration must
be given to suitable relatives whenever the name="SR;3232">placement of a dependent child must be
made. (§ 361.name="SR;3243">3, subds. (a), (d).)
“ ‘Preferential consideration’ means that the
relative seeking placement shall be
the first placement to be considered and investigated.” (§ 361.name="SR;3270">3, subd. (c)(1); In re Sarah S. (1996) 43 Cal.App.4th
274, 286 (Sarah S.)
[preferential consideration places the relative
at the head of the line when the court is determining which placement
is in the child’s best name="SR;3308">interests].) However,
the relative placement preference
established by section 361.3 does
not constitute “a relative placement
guarantee.” (In re Joseph T. (2008)
163 Cal.App.4th 787, 798, original italics (Joseph T.).)
Although the statute does not insure relative name="SR;3317">placement, it does “express[ ] a command that name="SR;3324">relatives be assessed and considered favorably,
subject to the juvenile court’s consideration of the
suitability of the relative’s home and the name="SR;3345">best interests of the child.” (Stephanie M., supra, 7 Cal.4th at p. 320, original italics.)

Section 361.3 identifies the factors that the court and
social worker must consider in determining whether the child
should be placed with a relative, including the child’s
best interest, the parents’ wishes, the good moral character of the name="SR;1285">relative and any other adult living in the home, the nature
and duration of the relationship between the child and the relative,
the relative’s desire to provide legal permanency for the
child if reunification fails, and the relative’s
ability to protect the child from his or her parents. (§ 361.name="SR;1334">3, subd. (a)(1)-(8).)
The juvenile court is required to consider the factors identified in
section 361.3, subdivision (a), “in determining whether placement with a
particular relative who requests placement is appropriate. [Citation.]”
(In re Antonio G. (2007) 159
Cal.App.4th 369, 377, fn. omitted.)
However, the “linchpin of a section 361.name="SR;3453">3 analysis is whether placement with a
relative is in the best name="SR;3465">interests of the minor. [Citation.]”
(Alicia B., supra,
116 Cal.App.4th at pp. 862-863.)

>D. Applicability of Section 361.3

Although the issue was contested, the juvenile court
believed appellant should be given the benefit of section name="SR;1485">361.3, the relative placement preference. However, in considering the section 361.3
placement criteria, the trial court found that it would not be in the minor’s
best interests to change the minor’s placement, and therefore, the preference
was overridden. As a threshold matter,
we agree with the Agency that section 361.3 was not properly at issue in
this case.

By
its terms, section 361.3 applies in two situations: When
a child is removed from parental custody (§ 361.name="SR;4935">3, subd. (a)) and thereafter, “whenever a new
placement of the child must be
made . . . .”
(§ 361.3, subd. (d).)

We
consider the first situation when section 361.3 applies––removal from parental
custody. Section 361.name="SR;5372">3, subdivision (a) provides in part: “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 name="SR;5413">child for placement of the name="SR;5418">child with the relative . . . .” This provision “assures interested name="SR;2108">relatives that, when a child is taken from her parents and
placed outside the home pending the determination whether reunification
is possible, the relative’s application will be
considered before a stranger’s application.
[Citation.]” (Sarah S., supra, 43 Cal.App.4th at
p. 285.)

When the
minor was removed from her mother’s custody at birth and a placement became
necessary, the record reveals appellant was accorded preferential
consideration as required by the statute (§ 361.3,
subd. (a)). Appellant was present
at the hospital following the minor’s birth.
Shortly after her birth, a “Team Decision Making Meeting” was held to
determine the best placement option for the minor. It was decided that appellant would be the
first choice for placement pending home approval and the second choice would be
to have the minor remain in foster care.
However, appellant delayed completing the required home assessment. Appellant reported that she was unable to
have her home assessed because
construction was ongoing at her house and she did not consider the home
habitable for an infant. Because
it is conceded that appellant was unable to accept the minor into her home when
the minor was removed from parental custody; there was no violation of the name="SR;1420">preferential consideration afforded under section name="SR;1424">361.3, subdivision (a).

The relative placement
preference also applies when a change of placement becomes necessary. Section 361.3, subdivision (d) provides in
part that “whenever a new placement of the name="SR;2211">child must be made, consideration for name="SR;2217">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 name="SR;2243">reunification or permanent name="SR;2246">plan requirements.”href="#_ftn2" name="_ftnref2" title="">>[2] The relative placement name="SR;6745">preference afforded by section 361.3, subdivision (d), name="SR;6747">has been found to apply when a new name="SR;6751">placement becomes necessary after reunification services are
terminated, but before parental rights are terminated. (Cesar V. v. Superior Court (2001) 91
Cal.App.4th 1023, 1032.) Conversely, when there is no need for a
change in the child’s placement,
the preference has been found not to apply.
(In re Lauren R. (2007) 148 Cal.App.4th 841, 853-855.)

We
recognize that the court in Joseph T., supra, 163 Cal.App.4th 787, has held that the name="SR;7888">relative placement preference
afforded by section 361.3, subdivision (d) should be an
ongoing preference, whether or not a new
placement is needed.
(Id. at p. 795.) name="SR;7914"> Specifically, the
court in Joseph T. expanded the name="SR;7961">relative preference after disposition
to whenever a relative comes forward during the
reunification period and requests placement, whether or
not a new placement is needed. (Id. at p. 794.) Even if subdivision (d) is construed as
broadly as Joseph
T. suggests, a matter we need not decide, it does not support appellant’s
relative placement request. Unlike the
relative in Joseph T., appellant did
not seek the minor’s placement until after the reunification period ended, the point in the dependency
process where the focus necessarily shifts from the desire of the extended
family to maintain a relationship with the child to the child’s need for
permanence and stability. (>Stephanie M., supra, 7 Cal.4th at p. 317.)

To our
knowledge, the relative placement preference has never been applied to remove a
child in a long-term, stable and continuing placement because a relative has
come forward, after termination of reunification services, seeking placement of
the child. Therefore, at
the time of appellant’s request for custody of the minor, there was no longer a
section 361.3 relative
placement preference.

> E. Section 388 Petition

Of course,
even after reunification services have been terminated, section 388 allows a
relative to seek placement of a dependent child who is in a still-viable
placement upon a
showing of changed circumstances, if it would be in the best interests of the child.
However, where a section 388 petition is
brought to change the court’s earlier placement order after the termination of
reunification services, as in this case, our Supreme Court has instructed that
“the predominant task of the court [is] to determine the child’s best
interest[s] . . . .”
(Stephanie M., supra,
7 Cal.4th at p. 320.) Specifically,
“[a]fter the termination of reunification services, the parents’ [and extended
family’s] interest in the care, custody and companionship of the child are no
longer paramount. Rather, at this point
‘the focus shifts to the needs of the child for permanency and stability’
[citation], and in fact, there is a rebuttable presumption that continued
foster care is in the best interest[s] of the child. [Citation.]
A court hearing a motion for change of placement at this stage of the
proceedings must recognize this shift of focus in determining the ultimate
question before it, that is, the best interest[s] of the child.” (Id. at p. 317.)

In Stephanie
M., the maternal
grandmother requested placement after Stephanie was
detained and placed in foster care. (Stephanie M., supra, 7 Cal.4th at pp. 303-304.) The social worker recommended against name="SR;6271">placement with the grandmother because the grandmother did
not believe that the parents had abused Stephanie. (Id.
at pp. 304-305.) As the case
progressed, Stephanie remained with the foster parents,
who had applied for de facto parent status and who wished to adopt
her. (Id. at
pp. 305-306.) After the juvenile
court set a section 366.26 permanency planning hearing,
the court heard a contested section 388 petition regarding whether Stephanie’s name="SR;6342">placement should be changed from the foster
parents to the grandmother. (>Id. at p. 306.) The juvenile court denied the section 388 petition
on the ground that the change of placement was not in
Stephanie’s best interests. (Id. at p. 308.)name="sp_999_10">name="citeas((Cite_as:_2012_WL_6559659,_*10_(C">

The
appellate court reversed the order, finding that the juvenile court had failed
to give sufficient weight to the relative name="SR;6405">placement preference set forth in section 361.name="SR;6412">3. (Stephanie M., supra, 7 Cal.4th at
pp. 316, 319.) Our Supreme Court
granted review and reversed the appellate court’s ruling, concluding that
“[t]he Court of Appeal erred in giving too great weight to the grandmother’s
interest in maintaining a family tie with the child and substituting its
judgment for that of the juvenile court.”
(Id. at p. 324.) At that late stage of the dependency
proceedings, “on the motion for change of placement, the
burden was on the moving parties to show that the change was in the name="SR;6553">best interests of the child
at that time. Evidence that at
earlier proceedings the court had not sufficiently considered placement
with the grandmother was not relevant to establish that at the time of the
hearing under review, placement with the grandmother was
in the child’s best name="SR;6600">interests.” (Stephanie
M., supra, 7 Cal.4th
at p. 322, fn. omitted.)

“Putting
aside the question whether the grandmother had any cognizable interest at all,
and treating her as a parent, her interests were not significant compared to
the need of the child for stability. [Citation.]”
(Stephanie M., supra,
7 Cal.4th at. p. 324.) The court
concluded, “[t]he Legislature has declared that a dependent child
has an interest in continuity and stability in name="SR;6724">placement.
[Citations.] This interest was
served by the order denying change of placement.” (Id. at p. 326.)

Properly
focusing on the minor’s interests rather than appellant’s interests, as we are
required to do under Stephanie M.,
we determine that the juvenile court could reasonably find that appellant had
failed to make the necessary showing that it was in the minor’s
best interests at the relevant
time—on March 16, 2012, when the court ruled on appellant’s section 388
petition—to remove the child from her stable,
long-term placement with her de facto parents and place
her with appellant who was “merely [a] friendly visitor[],” as characterized by
the trial court. It
was undisputed that the child was healthy and happy in the foster parents’ home,
where she had lived her entire life; and that she had bonded with them, calling
them “Mom” and “Daddy.” They were
devoted to her and wished to adopt her.
(See Jasmon O., supra,
8 Cal.4th at p. 421 [existing psychological bond between dependent name="SR;2815">children and their caretakers is extremely important factor
bearing on any placement issue].)

In
contrast, the minor had only interacted with appellant during a total of six
supervised visits, with two of the visits taking place after appellant filed
her section 388 petition.href="#_ftn3"
name="_ftnref3" title="">[3] As the evidence in this case demonstrates,
“the minor had been with her foster-adoptive family for most of her life. Evidently, the trial court felt that to
‘wrench’ her away from her source of stability and security to live with a
strange family would be detrimental to the child’s welfare. We see no abuse of discretion in this
exercise of the court’s judgment. It
would be contrary to Legislative policy to uproot the child and force her to
adjust to a new home.” (In re Baby
Girl D. (1989) 208 Cal.App.3d 1489, 1495.)
For the foregoing reasons, we cannot say the trial court abused its
discretion in denying appellant’s section 388 petition.
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IV.

DISPOSITION

The order denying the section 388 petition is affirmed.









_________________________

RUVOLO,
P. J.





We concur:





_________________________

REARDON, J.





_________________________

HUMES, J.