In re M.B.
Filed 12/17/12 In re M.B. CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
In re M.B., a Person Coming
Under the Juvenile Court Law.
SANTA CLARA COUNTY DEPARTMENT
OF FAMILY AND CHILDREN'S SERVICES,
Plaintiff and
Respondent,
v.
K.B.,
Defendant and
Appellant.
H037873
(Santa Clara
County
Super. Ct.
No. JD20380)
SANTA CLARA COUNTY DEPARTMENT
OF FAMILY AND CHILDREN'S SERVICES,
Plaintiff and
Respondent,
v.
A.M.,
Objector and
Appellant.
H037945
(Santa Clara County
Super. Ct. No. JD20380)
INTRODUCTION
In this
mother of the dependent child, and A.M., the child’s paternal grandmother,
separately appeal from the orders denying the paternal grandmother’s petition
under Welfare and Institutions Code section 388
and her motion for change of placement.
motion, the paternal grandmother sought to remove the 18-month old child from
placement with her foster parents, who had provided the child’s home for nearly
all her life and who wished to adopt her.
The paternal grandmother also requested that the child be permanently
placed with her.
Appellants
contend that the juvenile court
violated the statutory requirements that relatives be given notice that the
child has been removed from the parents (§ 309, subd. (e)(1)) and
their requests for placement assessed under the preference for relative
placement (§ 361.3). They also contend
that the trial court erred in failing to hold an evidentiary hearing on the section
388 petition and in denying mother’s request for a continuance of the section
366.26 permanency planning hearing. The mother additionally argues that since the
order denying the section 388 petition must be reversed and the matter remanded
for assessment of the paternal grandmother’s request for relative placement,
the judgment terminating her parental rights under section 366.26 must also be
reversed. For the reasons stated below,
we determine that none of the juvenile court’s rulings constitute an abuse of
discretion, and therefore we will affirm the challenged orders.
FACTUAL AND PROCEDURAL BACKGROUND
A. Original
Placement in Foster Home
The mother, age 22, gave birth
to her second child in May 2010 at a hospital where the medical social worker
determined that the mother had not received any prenatal care, had no place of
residence, and lacked the items
needed for the child’s immediate needs, such as baby clothes, diapers, a crib,
and formula.
title="">[3] While she was in the hospital, the mother
told a social worker that the baby’s father was a college student she met on
Facebook and with whom she had “casual sex.â€
The mother told another social worker that she did not know the identity
of the father.
A referral
was made to the
(the Department) and two days after the birth, the mother signed a voluntary
placement agreement allowing the child to be placed in a foster home when the
child was released from the hospital.
The child was returned to the mother
on June 12, 2010. At the mother’s
request, the child was left with the foster mother for several days in June
2010 while the mother attended to other activities. On July 19, 2010, a family conference was
held regarding alternative placement plans with relatives in case the mother
could not care for the child. At that
time, the child’s paternity was not established since the alleged father had
not been in contact with the child, the mother, or the Department. The mother indicated that the maternal
grandparents would not be appropriate caregivers (the record reflects that when
the mother was a minor, the maternal grandparents were investigated by the
Department due to reports regarding their inadequate care of the mother). The mother suggested her cousin as a possible
placement, but she did not have any of the cousin’s contact information.
B. Return to the Foster Home
On July 22, 2010, the child was
placed in the original foster home after the mother signed an
she agreed to visit the child twice a week in the foster home, submit to weekly
random drug testing, complete a drug assessment, attend parent education
classes, and participate in parent orientation classes. The mother’s subsequent conduct caused the
Department to have a number of concerns about her. Among other things, the mother had not
complied with the terms of the informal supervision agreement, since she had
failed to visit the child as scheduled and failed to submit to drug
testing. Additionally, during one visit
with the child, the mother stole money from the foster mother’s purse. The mother’s whereabouts became unknown in
October 2010. The Department also
learned that the mother’s first child resided with the child’s father, who had
full physical and legal custody, and the mother never visited her first child.
C. Section 300 Petition
On November 3, 2010, the Department
filed a section 300 petition asserting that the child came within the
jurisdiction of the juvenile court on the grounds of the parent’s failure or
inability to adequately supervise or protect the child. The Department’s jurisdiction/disposition report
stated that as of November 4, 2010, the child remained in the foster home where
she was originally placed. The social
worker had visited the foster home and found that that child was clean and
appeared healthy and well cared for. The
report further stated, “Since [the child’s] return to the current foster mom on
7/22/10, [she] has been adjusting well.
[She] has since grown an attachment with her foster mom, she appears to
be happy, she presents as being content at her placement, she is eating well,
and she interacts well with other children at her placement.â€
At the initial/detention hearing
held on November 8, 2010, the court determined that the risk of harm to the
child was sufficient to justify the child’s detention and that continuance in
the parent’s home was contrary to her welfare.
On November 11, 2010, the Department attempted without success to
contact the alleged father via Facebook.
However, contact was made at some point and the alleged father appeared
in court on December 2, 2010, at the jurisdictional/dispositional hearing. A continuance of the hearing was granted to
allow paternity testing.
The Department received the results
of the paternity test on January 5, 2011, which confirmed that the alleged
father was the biological father of the child.
After informing the biological father of the results of the paternity
test, the Department discussed relative placement options with him. He advised the Department that “he would
speak to the paternal grandmother to see if she would be willing to be a
placement,†but his other relatives lived outside the United States. On January 6, 2011, the father met with the
Department regarding the child. He
stated that his circumstances would not allow the child to live with him and he
approved of her current placement in the foster home. He was also interested in visitation. However, the father tested positive for
marijuana the same day, January 6, 2011.
On January 12, 2011, the court
sustained the section 300 petition after finding the allegations were true and
set a disposition hearing for January
26, 2011. Also on January 12, 2011,
the court found that the biological father was the presumed father. At the disposition hearing, the court ordered
reunification services for both the mother and the father.
D. Reunification Efforts
The father visited the child once in
January 2011. The mother did not visit
the child after February 2011. As of
March 3, 2011, the father had not followed through with the reunification
services offered by the Department and had not responded to the Department’s
multiple attempts to contact him. The
mother informed the Department in April 2011 that she was not participating in
reunification services. By May 2011, the
whereabouts of both parents were unknown.
The Department reported in May 2011
that the child was bonded with the foster mother, who wanted to adopt the child
if reunification failed. On April 13,
2011, the foster parents’ request to become de facto parents was granted.
non-participation in reunification services.
In July 2011, the Department
determined that the mother had been incarcerated since June 2011 and her
expected release date was in February 2012.
The Department stated in its August 18, 2011 status review report that
the father had not responded to any of the Department’s attempts to contact him
and his whereabouts remained unknown. In
the six months preceding the August 18, 2011 status review report, the child
had no contact with any grandparents or extended relatives, and none of them
had contacted the Department to inquire about the child.
The Department also reported that
the child had continued to live in the same foster home and was bonded with the
foster parents, who had provided “the only consistent, permanent and stable
home†and were committed to adopting the child if she could not reunify with
her parents. The child was described as
healthy and happy in the foster home.
The Department therefore recommended in its August 18, 2011 status
review report that reunification services be terminated and a section 366.26
hearing be set to establish a permanent plan for the child.
At the six-month review hearing held
on August 18, 2011, the court terminated reunification services and set a
section 366.26 hearing for December 14, 2011.
the mother be permitted contact visits with the child if the mother became
eligible for the in–custody visitation program where the mother was
incarcerated.
E. Paternal Grandmother’s Section 388 Petition and Motion for Change of
Placement
The paternal grandmother contacted the
Department for the first time on October 14, 2011, “to [i]nquire about the
child.†At that time, the paternal
grandmother told the social worker that “she did not have any information about
[the father] for a long period of time and finally he called her
recently.†The paternal grandmother
provided the father’s telephone number but she did not have an address for
him. The social worker then telephoned
the father, but he hung up. Despite
multiple attempts, the Department was unable to locate the father.
On December 5, 2011, the de facto
parents filed a caregiver information form in which they stated that the child,
now 18 months old, was bonded with them and called them “Mom†and “Dad.†They wanted the child to remain part of their
family and were willing to maintain contact with her biological family members.
The paternal grandmother filed a
section 388 petition to change the child’s placement on December 9, 2011, in
which she stated that she had “recently found out about [the child] . . . being
under the jurisdiction of the court.â€
She requested that the child be permanently placed with her because, as her
paternal grandmother, “I love and care deeply about [her], and believe it would
be her best interest to live with me. I
can provide a loving and stable family environment, strong ethnic/cultural
roots, and excellent educational opportunities for her future.†No other evidence was submitted with the
section 388 petition.
On December 13, 2011, the court
denied the paternal grandmother’s section 388 petition without a hearing,
on the ground that she had failed to state the requisite new evidence or a change
of circumstances. In its written order
filed on December 14, 2011, the court further explained that “Petitioner
alleges no change of circumstances or new evidence to warrant new or different
court orders regarding the child’s current placement. In addition, the court has received ample
evidence of the stability the minor has in her current placement. Petitioner provides only conclusory
statements, not credible evidence, to suggest that removing the minor from this
placement and placing her with petitioner at this stage in the proceedings
would promote the best interests of the minor.
[¶] The petition fails to make a
prima facie showing via credible evidence of changed circumstances or new
evidence and that the requested changes or modifications would promote the best
interests of the child.â€
On December 13, 2011, the paternal
grandmother filed a motion to terminate the foster home placement and place the
child with her. In her motion, the
paternal grandmother stated that she had never been notified of any proceedings
in the case, she was interested in adopting the child, and she wanted the child
to be placed with her forthwith. The
paternal grandmother also stated that she was a professor of education at Stanford
University and “a world-renowned expert in child development and mathematics
education in elementary and early-childhood classrooms. . . . She would be fully qualified and capable [of]
caring for her granddaughter.†The
paternal grandmother also argued that she was entitled to have the child placed
with her under the relative placement preference set forth in section 361.3.
On December 14, 2011, the court set
a contested section 366.26 hearing for January 23, 2012. The court also granted the paternal
grandmother’s request for visitation and ordered that she be allowed a minimum
of one supervised visit every other week for one hour.
F. Section 366.26 Report
The
Department filed its section 366.26 report on January 23, 2012. In the report, the Department noted that the
paternal grandmother had contacted the social worker on October 14, 2011, and
stated that her son, the presumed father, had told her the day before that he
had a child in foster care. The paternal
grandmother also said that she would like to pursue legal adoption. The social worker arranged for the paternal
grandmother to have three supervised visits with the child.
However, the social worker
determined that “in light of the fact that Family Reunification Services were
terminated, and the lack of relationship with the biological family, it is in
the best interest to maintain [the child] in her fost/adopt home.†The social worker “strongly†recommended that
the child be adopted by her foster parents, “[s]ince [the child] has been living
with this family for almost all her life and she has developed a strong
relationship with this family.†The
social worker therefore recommended that parental rights be terminated and the
child freed for a permanent plan of adoption.
Contested Section 366.26 Hearing
The
only witness at the section 366.26 hearing held on January 23, 2012, was the
mother. She testified that she objected
to the termination of her parental rights because the child should be kept in
the family and “not with like other people.â€
The Department’s representative responded that neither parent had a
relationship with the child, who was healthy, happy, and stable, as well as
“highly adoptable†and “developmentally on track.â€
After the mother testified, her
attorney objected to going forward with the section 366.26 hearing and
requested a continuance “to allow the social worker to investigate the paternal
and maternal grandparents for placement.â€
The child’s attorney agreed with the
Department’s recommendation that parental rights be terminated, and objected to
a continuance, stating: “My client is in
the only home she has ever known. She
actually came to this placement from the hospital. And only if something should happen to the
placement that she’s in right now would the relative preference be reopened. Once we terminated reunification services the
time for relative preference has ended.
And it is not in my client’s best interest to continue this case further
to look at relatives. [¶] I believe the current caregivers are very
appropriate and they have been allowing the grandparents to visit as this Court
has ordered.†The mother’s attorney
disagreed, arguing that the relative placement preference never “disappears.â€
The court denied the mother’s
request for a continuance, finding that the request had come at the conclusion
of the proceedings and there was no good cause for a continuance. The court stated, “To the contrary I believe
under [section] 352, the best interest of the child in moving the matter forward
to a permanency outweigh at least any of the statements that have been made to
me today . . . .â€
The court also invited the paternal
grandmother’s attorney to address her request for placement. In support of changing the child’s placement
to the paternal grandmother, her attorney argued that the paternal grandmother
had not received timely notice of the dependency proceedings; the priority was
to preserve family relationships; the paternal grandmother was able to provide
“emotionally, culturally, [and] financially†for the child; and both the child
and the paternal grandmother would suffer detriment absent placement in the
paternal grandmother’s home.
At the conclusion of the section
366.26 hearing, the court made several rulings.
First, the court found “by clear and convincing evidence that it is
likely that the child will be adopted both specifically and generally.†Second, the court adopted the findings
proposed by the Department in its section 366.26 report and terminated parental
rights based on that evidence. Finally,
the court freed the child for adoption, ordered adoption as the permanent plan,
and designated the foster parents as the prospective adoptive parents.
Regarding the paternal grandmother’s
request for placement, the court ruled as follows: “At the time that [the paternal grandmother]
filed her [section] 388 petition requesting an immediate change in placement
from who are now the de facto parents to [the child], the Court reviewed that
[section] 388 petition and found that it did not state a prima facie case that
there were changed circumstances and that the requested change in court order
would be in the child’s best interests. . . .
[¶] The Court has heard nothing
subsequently to change its analysis on that ruling. . . . [¶] .
. . The Court has reviewed the evidence that has been submitted by the
Department for the statutory hearings . . . and recognizes that
the Department has given some consideration to [the paternal grandmother] and
has expressed in a variety of places in the evidence that has been received by
the Court the Department’s belief that continued placement of the child with
the de facto parent is in the child’s best interest and that any disruption in
that would be detrimental to the child.
[¶] . . . [¶] And the Court also
believes that there is a substantial amount of evidence before the Court that
the current caretakers and caregivers provide the best prospective placement,
prospective adoptive home for the child . . . .â€
The paternal grandmother filed a
notice of appeal on February 10, 2012, from the order denying her section 388
petition and the order denying her motion for change of placement. The mother filed an amended notice of appeal
on February 14, 2012, from the order terminating her parental rights and the
order denying the paternal grandmother’s section 388 petition.
DISCUSSION
Since both appellants challenge
the trial court’s order denying the paternal grandmother’s section 388 petition
to change the child’s placement, we will begin our evaluation of their
contentions on appeal with an overview of the pertinent provisions of section
388.
A. Section
388
Section 388, subdivision (a)(1)
provides: “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 or to terminate the jurisdiction
of the court. The petition shall be
verified and, if made by a person other than the child, shall state the
petitioner’s relationship to or interest in the child and shall set forth in
concise language any change of circumstance or new evidence that is alleged to
require the change of order or termination of jurisdiction.â€
Thus,
“[t]he petition pursuant to section 388 lies to change or set aside any order
of the juvenile court in the action from the time the child is made a dependent
child of the juvenile court.
[Citations.]†(
415 (Jasmon O.).) “The petition for modification must contain a
‘concise statement of any change of circumstance or new evidence that requires
changing the [previous] order.’ [Citation.]†(Ibid;
see Cal. Rules of Court, rule 5.570.)
The petitioner “need only make a prima facie showing to trigger the
right to proceed by way of a full hearing.â€
(In re Marilyn H. (1993) 5
Cal.4th 295, 310 (Marilyn H.).) “ ‘ “A ‘prima facie’ showing refers to those
facts which will sustain a favorable decision if the evidence submitted in
support of the allegations by the petitioner is credited. [Citation.]â€
[Citation.]’ [Citation.]†(In re
Aaron R. (2005) 130 Cal.App.4th 697, 705 (Aaron R.).)
The
standard of review for an order denying a section 388 petition is abuse of
discretion. “The petition is addressed
to the sound discretion of the juvenile court and its decision will not be
disturbed on appeal in the absence of a clear abuse of discretion. [Citations.]â€
(Jasmon O.,
summarily denied a section 388 petition without a hearing, the standard of
review is also abuse of discretion. (
Regarding a
section 388 petition brought to change an earlier placement order after the
termination of reunification services, the California Supreme Court has
instructed that “the predominant task of the court [is] to determine the
child’s best interest. . . .†(
320 (Stephanie M.).) “After the termination of reunification
services, the parents’ 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 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 of the child.†(Id.
at p. 317.)
Thus, “when
a court has made a custody determination in a dependency proceeding, ‘ “a
reviewing court will not disturb that decision unless the trial court has
exceeded the limits of legal discretion by making an arbitrary, capricious, or
patently absurd determination [citations].†’
[Citations.]†(
“ ‘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.)
B. The
Parties’ Contentions
On appeal, the paternal
grandmother contends that the juvenile court erred in denying her section 388
petition because she is entitled to a full assessment of her placement request
under the relative placement preference set forth in section 361.3. We also understand the paternal grandmother
to argue that the Department and the court are estopped from denying her relative
placement consideration due to their combined failure to give her the notice
mandated under section 309, which would have allowed her to more promptly seek
the child’s placement in her home.
The
paternal grandmother also asserts that the Legislature favors placement with
relatives and the court’s failure to give her the benefit of the relative
placement preference constitutes a miscarriage
of justice. She requests a remand
directing the court to (1) require the Department to provide a written assessment
of her placement request; and (2) hold a hearing on whether she is entitled to
preferential placement.
The
mother’s contentions on appeal are similar.
In addition, the mother argues that the relative placement preference
under section 361.3 should have applied, even though reunification services had
been terminated by the time the paternal grandmother filed her section 388
petition for a change in placement, because the relative placement preference
continues until the time of the section 366.26 hearing.
The mother
also contends that the trial court’s summary denial of the paternal
grandmother’s section 388 petition is subject to do novo review. She maintains that under that standard, the
juvenile court erred in denying the petition because the paternal grandmother
made a prima facie showing of new evidence (that the paternal grandmother had
just learned of the child’s existence) and because placing the child with her
grandmother is presumptively in the child’s best interest. The court’s error was prejudicial, according
to the mother, because “[p]resented with the grandmother’s educational and
professional background, it was clearly an abuse of discretion for the trial
court to deny the grandmother a hearing on her petition.†Finally, the mother contends that the trial
court abused its discretion in denying her request for a continuance of the
section 366.26 permanency planning hearing.
In
response, the Department argues that the trial court did not err in summarily
denying the section 388 petition because the paternal grandmother failed to
allege new evidence or changed circumstances, as required by section 388, since
there was no allegation that the child needed a new placement. The Department also argues that the paternal
grandmother failed to show that removing the child from de facto parents and
the only home she has ever known would be in the child’s best interests. As to the court’s denial of the mother’s
request for a continuance of the section 366.26 hearing, the Department asserts
that the court did not abuse its discretion because “[t]he mother’s hope that a
different adoptive placement would be chosen if the hearing was continued was
irrelevant to the issues at a section 366.26 hearing,†since the only issue to
be decided at the hearing was whether there was clear and convincing evidence
that the child was adoptable.
In their
respondent’s brief, the de facto parents argue that the court properly denied
the paternal grandmother’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.
Additionally, the de facto parents contend that the Department complied
with the notice requirements of section 309 by diligently attempting to locate
and contact members of the mother’s family when the child was first removed
from the mother in May 2010, pointing out that the father’s paternity was not
established until late December 2010.
They also challenge that the paternal grandmother’s claim that the
Department had her address prior to the January 2011 dispositional
hearing. Although the de facto parents
acknowledge that address given by alleged father as his own address was
actually the paternal grandmother’s address, they note that the alleged father
has a different surname than the paternal grandmother.
The de
facto parents also argue that the court was bound by the standard that the
child’s best interest is the primary consideration in determining custody. Under that standard, according to the de
facto parents, the court properly determined that maintaining placement with
the de facto parents was in the child’s best interest. Alternatively, the de facto parents assert
that even assuming that the paternal grandmother did not receive the
statutorily required notice of the dependency action, the error was
harmless. They explain that even if the
Department had conducted an assessment of the paternal grandmother pursuant to
section 361.3 and had found her to be an acceptable caregiver, the outcome
would remain the same: placement with
the de facto parents was in the child’s best interest and removal from the only
home the child has ever known would be detrimental to the child.
The child,
in her minor’s brief, agrees with the Department and the de facto parents and
asserts that “[e]ven if placement with a relative is presumptively in the
minor’s best interest [citation], the presumption is overcome here because [the
child] is bonded with her de facto parents, stable in their home, no change in
placement is needed, and a placement change to the grandmother would cause
great emotional upheaval and disruption to the child.†The child also asserts that the paternal
grandmother may be considered for placement in the event that her current
prospective adoption by the de facto parents fails at some time in the future.
To evaluate
these contentions, we next turn to an overview of section 361.3, which provides
the relative placement preference that is the subject of the parties’ dispute.
C. Section
361.3
Section 361.3, 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 child for placement of the child with the relative.†Subdivision (a) also enumerates the factors
that the court and social worker must consider in determining whether the child
should be placed with a relative. (§
361.3, subds. (a)(1)-(8).)
The terms
“preferential consideration†and “relative†are defined in the statute. Section 361.3, subdivision (c) provides: “For purposes of this section: [¶]
consideration’ means that the relative seeking placement shall be the first
placement to be considered and investigated. [¶]
‘Relative’ means an adult who is related to the child by blood, adoption, or
affinity within the fifth degree of kinship, including . . . all relatives
whose status is preceded by the words ‘great,’ ‘great-great’ or ‘grand’ . . .
. However, only the following relatives
shall be given preferential consideration for the placement of the child: an adult who is a grandparent, aunt, uncle,
or sibling.â€
Section
361.3 expressly provides that the relative placement preference also applies
when a new placement must be made.
Subdivision (d) of section 361.3 states:
“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. In addition
to the factors described in subdivision (a), the county social worker shall
consider whether the relative has established and maintained a relationship
with the child.â€
Thus, “when
a child is taken from his [or her] parents’ care and requires placement outside
the home, section 361.3 assures an interested relative that his or her application
for placement will be considered before a stranger’s request. [Citations.]â€
(Alicia B. v. Superior Court (2004)
116 Cal.App.4th 856, 863.) 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.)
Nor does section 361.3 “create an evidentiary presumption that relative
placement is in a child’s best interests.â€
(In re Lauren R. (2007) 148
Cal.App.4th 841, 855; see also Stephanie
M., supra, 7 Cal.4th at p. 321
[construing former section 361.3].)
This court
has stated that the relative placement preference does not apply after
reunification services are terminated. (
1489, 1493-1494 “[O]nce the juvenile
court determines at a permanency planning hearing that reunification [with the
parents] is no longer possible and that a child should be freed for adoption,
there is no longer any reason to give relatives preferential consideration in
placement. The overriding concern at
this point is to provide a stable, permanent home in which a child can develop
a lasting emotional attachment to his or her caretakers. It is for this reason that in any subsequent
decision on adoptive placement, a foster parent to whom the minor already has
‘substantial emotional ties’ necessarily is entitled to preference over all
other candidates. [Citation.]†(Ibid.);
see also In re Jessica Z. (1990) 225
Cal.App.3d 1089, 1098 (Jessica Z.)
[the child’s best interest may require that placement with a grandmother be
rejected].)
D. Analysis
In
section 388 petition, which sought a change of placement from the de facto
parents to the paternal grandmother, on the ground that the petition failed to
make a prima facie showing that there were (1) changed circumstances; and (2)
the requested change in court’s placement order would be in the child’s best
interests. The juvenile court also
denied the paternal grandmother’s subsequent motion to terminate placement and
place the child with her, finding that the evidence presented in connection
with that motion did not alter the court’s prior determination that a change in
placement was not in the child’s best interest.
We first consider whether the court abused its discretion.
1. Abuse of Discretion
Even
assuming, as the mother argues on appeal, that the appearance of the paternal
grandmother in the case and her interest in providing a home for the child
constitutes a change of circumstances within the meaning of section 388, we
determine that appellants have not shown that the juvenile court abused its
discretion in denying the paternal grandmother’s section 388 petition and
motion for change of placement under section 361.3. Our analysis is guided by the California
Supreme Court’s decision in Stephanie M.
and this court’s prior decision in Jessica
Z.
In
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 placement with the grandmother because the
grandmother did not believe that the parents had abused Stephanie. As the case progressed, Stephanie remained
with the foster parents, who had applied for de facto parent status and who
wished to adopt her. (
permanency planning hearing, the court heard a contested section 388
petition regarding whether Stephanie’s placement should be changed from the
foster parents to the grandmother. The
juvenile court denied the section 388 petition on the ground that the change of
placement was not in Stephanie’s best interest.
(Id. at pp. 307-308.)
On appeal,
the appellate court reversed the order, finding that the juvenile court had
failed to give sufficient weight to the relative placement preference set forth
in section 361.3. The California Supreme
Court disagreed, stating that “the issue being litigated at the hearing was
whether a change of placement to the grandmother’s home would be in the best
interest of the child. The juvenile court, unlike the Court of
Appeal, properly focused on the child’s interest, rather than the grandmother’s
interest. From the point of view of the
child, the grandmother’s intervention did come too late; the child was already
bonded to foster parents.†(
The
assuming that the relative placement preference set forth in section 361.3
applies at a 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 best interest 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
interest.†(Stephanie M., supra,
7 Cal.4th at p. 322, fn. omitted; id.
at p. 320.)
Our Supreme
Court therefore concluded in Stephanie M.
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. 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 placement. [Citations.] This interest was served by the order denying
change of placement.†(
In
have been placed with her grandmother pursuant to section 361.3. (Jessica
Z., supra, 225 Cal.App.3d at p.
1095.) At the 12-month review hearing,
the juvenile court terminated reunification services and adopted the social
worker’s recommendation that Jessica remain in her foster placement and a
section 366.26 permanency planning hearing be set. (Ibid.) Although this court determined that the
juvenile court should have ordered an assessment of the grandmother’s
suitability as a placement at the earlier six-month review hearing, the
juvenile court’s order was upheld. This
court stated, “Given that by the time of the 12-month review hearing the
chances of reunification were becoming increasingly diminished, and that
Jessica had lived with her foster family for almost a year—almost her entire
life—we cannot fault the juvenile court for determining at this hearing that it
would have been detrimental to remove Jessica from her foster placement. Under these facts, at that juncture, it would
have been inappropriate for the juvenile court to have afforded Jessica’s
grandmother a relative placement preference under section 361.3. We therefore conclude it was not error for
the trial court to order Jessica continued in foster care at the 12-month
review hearing.†(Id. at p. 1100.)
Following
the decisions in Stephanie M. and
assuming that the section 361.3 relative placement preference applied to the
paternal grandmother’s request for a change of placement in her section 388
petition and her subsequent motion, the juvenile court could reasonably find
that the paternal grandmother had failed to make the necessary prima facie
showing: that it was in the child’s best
interest at the relevant time—
December 2011, when she filed her section 388 petition and motion for
change of placement— to remove the
child from her stable, long-term placement with the de facto parents and place
her with the paternal grandmother, who was a virtual stranger. (See Stephanie
M., supra, 7 Cal.4th at p. 326.)
The
evidence before the juvenile court showed that by December 2011, the
18-month-old child had been living with the de facto parents for nearly her
whole life since her birth in May 2010 (except for a few weeks in the summer of
2010 when she was unsuccessfully returned to the mother). It was undisputed that the child was healthy and
happy in the de facto parents’ home and that she had bonded with them, calling
them “Mom†and “Dad,†and that the de facto parents wanted to adopt her. Additionally, the juvenile court had terminated reunification services in August 18,
2011, after the parents failed to participate. It was therefore apparent that reunification
was unlikely and the child was doing very well in the long-term, stable home
provided by the de facto parents.
Although we
recognize the paternal grandmother’s sincere interest in her grandchild, under
these circumstances we find, as did the California Supreme Court in
. . . properly focused on the child’s interest, rather than the grandmother’s
interest. From the point of view of the
child, the grandmother’s intervention did come too late; the child was already
bonded to foster parents.†(
For these
reasons, we determine that the juvenile court did not abuse its discretion in
denying the paternal grandmother’s section 388 petition and motion for a change
of placement, or in denying the petition without an evidentiary hearing. (See Jasmon
O., supra, 8 Cal.4th at pp.
415-416; Aaron R.,
2. Section 309, subdivision (e)(1)
The
paternal grandmother argues that Stephanie
M. does not govern this case because the decision issued in 1994, well
before the notice provisions set forth in section 309, subdivision (e)(1)
were enacted. In her view, and in the view of the
mother, due to the lack of section 309, subdivision (e)(1) notice to the
paternal grandmother both the Department and the juvenile court are estopped
from denying her a full assessment under the section 361.3 relative placement
preference. We disagree.
Section 309
provides in part: “(a) Upon delivery to
the social worker of a child who has been taken into temporary custody under
this article, the social worker shall immediately investigate the circumstances
of the child and the facts surrounding the child’s being taken into custody and
attempt to maintain the child with the child’s family through the provision of
services. . . . [¶] . . . [¶] (e)(1) If
the child is removed, the social worker shall conduct, within 30 days, an
investigation in order to identify and locate all grandparents, adult siblings,
and other adult relatives of the child .
. . . The social worker shall provide to
all adult relatives who are located, except when that relative’s history of
family or domestic violence makes notification inappropriate, within 30 days of
removal of the child, written notification and shall also, whenever
appropriate, provide oral notification, in person or by telephone, of all the
following information: [¶] (A) The child has been removed from the
custody of his or her parent or parents . . . [¶] (B) An explanation of the various options to
participate in the care and placement of the child . . . .â€
The notice
provisions of section 309, subdivision (e) became effective in
January 2010. (Stats. 2009, ch.
261, § 1; see also Gov. Code, § 9600, subd. (a) [effective date of non-urgency
legislation].) On the record before us,
we discern no failure to comply with section 309, subdivision (e) after the
child was initially removed from the birth mother in May 2010. Only
the identity and location of the child’s maternal grandparents could be
confirmed by the Department within the mandated 30-day period after the child’s
removal, and the Department provided timely notice to them. The paternal grandmother does not contend
otherwise.
However,
the paternal grandmother asserts that the Department had her address by the
time it filed the section 300 petition on November 3, 2010, since the Department’s November 24, 2010
jurisdiction/disposition report states, “During the Voluntary Family
Maintenance (VFM) portion of this case, the previous social worker . . .
completed a search for [the alleged father] through the District Attorney’s
Office. A last known address . . . was
provided for [the alleged father] as well as an address for his
mother . . . .†According to the paternal grandmother, the
record therefore shows that “the Department and court could have readily
obtained the address of [the paternal grandmother], and given her notice of the
proceedings and inquired whether she would be interested in placement of her
granddaughter.†She also emphasizes that
when the alleged father appeared in court on December 2, 2010, and December 22,
2010, the juvenile court failed to inquire about his relatives.
We observe
that no authority has been provided to establish that (1) the Department has an
obligation to provide notice to a grandparent under section 309, subdivision
(e)(1) before the father’s paternity has been established; and (2) the notice
obligation continues after the 30-day period expressly stated in the
statute. The paternal grandmother and
the mother also fail to provide any authority to establish that where notice
under section 309, subdivision (e) was not given to a grandparent, the lack of
notice obviates the grandparent’s burden to make a prima facie showing on a
section 388 petition or a motion requesting a change of placement to the
grandparent that the change is in the child’s best interest. The decision on which the paternal
grandmother relies, In re Manzy W. (1997)
14 Cal.4th 1199 (Manzy W.), is
inapposite.
case; the issue was whether the juvenile court was required under section 702
to declare that the juvenile offender’s methamphetamine possession offense was
a misdemeanor or a felony. (
Since the record did not show that the juvenile court knew it had the
discretion to sentence the offense as a misdemeanor, the California Supreme
Court remanded the case for an express declaration under section 702 and
possible recalculation of the period of confinement. (Id.
at p. 1211.) No issue was raised as to
the notice requirement of section 309, subdivision (e).
The
paternal grandmother also relies on the decision in Guardianship of Christian G. (2011) 195 Cal.App.4th 581, which
states, “We read Manzy W. as holding that even a lack of literal
compliance with a mandatory duty may be harmless error, so long as the record
affirmatively reflects that the protections intended to be afforded to private
parties through the exercise of that duty has been otherwise provided.†(Id.
at p. 608.) We understand the
paternal grandmother to claim that the lack of compliance with the mandatory
notice provisions of section 309, subdivision (e)(1) does not constitute
harmless error since her interest in having the child placed with her was not
protected.
We
reiterate that the California Supreme Court ruled in Stephanie M. that even assuming that the relative placement
preference set forth in section 361.3 applies at a late stage of the dependency
proceedings, “[e]vidence 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 interest. â€
(Stephanie M., supra, 7
Cal.4th at p. 322, fn. omitted; id.
at p. 320.) Accordingly, even
assuming in the present case that the paternal grandmother was not considered
for placement early in the dependency proceedings due to the Department’s
failure to give her the notice mandated by section 309, subdivision (e), the
error was harmless. Whether notice was
properly given, or whether placement with the grandmother was properly assessed
at an earlier date, are not matters that were relevant to the juvenile court’s
determination in December 2011 that the paternal grandmother had failed to make
a prima facie showing in either her section 388 petition or her motion for
change of placement that placement with the paternal grandmother was in the
child’s best interest at that time. (See Stephanie
M., supra, at pp. 320, 322.)
Having
determined that the juvenile court did not abuse its discretion in denying the
paternal grandmother’s section 388 petition and motion for a change of
placement, we find no merit in the mother’s additional argument that since the
court erred in denying the section 388 petition, the judgment terminating her
parental rights under section 366.26 must also be reversed.
3. Request for a Continuance
Finally, the mother contends
that the trial court erred in denying her request for a continuance of the
section 366.26 permanency planning hearing to allow the Department to
investigate all of the grandparents for possible placement.
During the
section 366.26 hearing held on January 23, 2012, the juvenile court denied the mother’s request for a continuance on the
grounds that the request had come at the conclusion of the section 366.26
proceeding and there was no good cause for a continuance. The court stated: “To the contrary I believe under [section]
352, the best interest of the child in moving the matter forward to a
permanency outweigh at least any of the statements that have been made to me
today. . . .â€
Section 352
governs continuances in a juvenile dependency matter, and provides in
part: “(a) Upon request of counsel for
the parent, guardian, minor, or petitioner, the court may continue any hearing
under this chapter beyond the time limit within which the hearing is otherwise
required to be held, provided that no continuance shall be granted that is
contrary to the interest of the minor.
In considering the minor’s interests, the court shall give substantial
weight to a minor’s need for prompt resolution of his or her custody status,
the need to provide children with stable environments, and the damage to a
minor of prolonged temporary placements.
[¶]
upon a showing of good cause and only for that period of time shown to be
necessary by the evidence presented at the hearing on the motion for the
continuance. . . .†“The trial court’s
ruling on
continuance came within those guidelines is reviewed for abuse of
discretion. [Citation.]†(In re
B.C. (2011) 192 Cal.App.4th 129, 143-144.)
On appeal, the mother argues that the
juvenile court abused its discretion because a continuance would have allowed
the juvenile court to receive information regarding the paternal grandmother’s
three visits with the child and and, after an investigation, reach the possible
conclusions that either placement with the paternal grandmother, a
guardianship, or a post-adoption contact agreement was in the child’s best
interest.
The
Department responds that since the only issue at a section 366.26 hearing is
whether there is clear and convincing evidence that the child is adoptable,
“[t]he identification of who will adopt a child is not a relevant inquiry at
the section 366.26 hearing.â€
We find
that the mother failed to make a showing of good cause for a continuance of the
section 366.26 hearing. The California
Supreme Court has stated that “the sole purpose of the section 366.26 hearing
is to select and implement one of the listed permanent plans.†(Marilyn
H., supra, 5 Cal.4th at p.
304.) At the section 366.26 hearing the
juvenile court does not have the option of removing the child from the current
foster home and placing the child with a relative with whom the child is not
presently residing, since that is not one of the plans listed in the statute.
continuance in order to obtain a change of placement to the paternal
grandmother, with whom the child did not reside. Her request therefore failed to show good
cause for continuance of the section 366.26 hearing, since the hearing was set
for the proper purpose of determining whether parental rights should be
terminated and adoption selected as the permanent plan.
Moreover,
the juvenile court determined that a continuance would be contrary to the best
interest of the child in moving towards a permanent plan, which was consistent
with the factors set forth in section 352, subdivision (a) for ruling on a
request for a continuance: “the court
shall give substantial weight to a minor’s need for prompt resolution of his or
her custody status, the need to provide children with stable environments, and
the damage to a minor of prolonged temporary placements.†We therefore conclude that the mother has not
shown that the court abused its discretion in denying her request for a
continuance of the section 366.26 hearing.
DISPOSITION
The order of December 14, 2011, denying the section 388 petition, and the
order of January 23, 2012, denying the motion for a change of placement and the
request for a continuance of the section 366.26 hearing, are affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA,
ACTING P.J.
__________________________
MIHARA,
J.
further statutory references are to the Welfare & Institutions Code unless
otherwise indicated.
name="_ftn2" title=""> [2]
On May 9, 2012, this court on its own motion ordered that appellate case
numbers H037873 and H037945 be considered together for the purposes of
briefing, oral argument and decision.
