In re Michael H.























Filed 4/19/13
In re Michael H. CA5













NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT


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In re MICHAEL H., a Person Coming Under the Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. SCOTT H., Defendant and Appellant.	F065926 (Super. Ct. No. JD128268-00) > >O P I N I O N

>THE COURThref="#_ftn1" name="_ftnref1" title="">^*

APPEAL from
an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kern County. Louie L. Vega, Judge.

Roni
Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Theresa A.
Goldner, County Counsel, and Paul E. Blackhurst, Deputy County Counsel, for
Plaintiff and Respondent.

-ooOoo-

Appellant, Scott
H., is the father of 17-month-old Michael, the subject of this dependency
appeal, who was detained and placed in foster care. After the dispositional hearing in April
2012, Michael’s maternal grandmother filed a Welfare and Institutions Code
section 388href="#_ftn2" name="_ftnref2"
title="">^[1] petition asking the juvenile court to place
Michael with her. The juvenile court
denied the petition and subsequently terminated href="http://www.mcmillanlaw.com/">reunification services and set a section
366.26 hearing.

Scott appeals from the juvenile
court’s denial of the maternal grandmother’s section 388 petition. We affirm.
The juvenile court properly exercised its discretion in determining that
Michael’s best interest would not be served by a change of placement.

PROCEDURAL AND FACTUAL SUMMARY

In February
2012, the Kern County Department of Human
Services (department) took then three-month-old Michael into href="http://www.mcmillanlaw.com/">protective custody because Scott and
Nichole, Michael’s mother, were caring for him while under the influence of
methamphetamine. At the time, Scott,
Nichole, and Michael were living with Nichole’s mother, Michelle, and
Michelle’s live-in boyfriend, Rex.
Michelle and Rex are both drug addicts in recovery. The department placed Michael in foster care.

Nichole
told the investigating social worker that she smoked methamphetamine on and off
over the prior five years and that she relapsed after Michael was born. She said she did not use methamphetamine at
Michelle’s house because it was not allowed.
However, she helped Michelle take care of Michael while she (Nichole)
was under the influence of methamphetamine.


Scott told
the social worker that he had been using methamphetamine periodically for
approximately seven or eight years. In
February 2011, he completed a drug diversion program but relapsed the following
May. He said his relapses consisted of a
one-time use. Following his relapse in
May 2011, he smoked methamphetamine several more times but not in Michelle’s
house.

Michelle
stated that Scott and Nichole had been living with her for approximately a
month and a half before Michael was born. She did not know that Scott and Nichole were
using drugs until Nichole overdosed in her home in November 2011, six days
after Michael’s birth. Nichole was
transferred to the hospital where she remained for approximately three
days. During Nichole’s hospitalization,
Michelle was informed that the department would be notified. She said she welcomed the department’s
involvement. However, the department
closed the case after a social worker visited Scott, Nichole, and Michael
several times in Michelle’s home.
Michelle told the social worker that she was concerned about Scott and
Nichole’s drug use and tried to persuade the department to provide them drug
treatment and leave Michael in her care.


Michelle
also stated that she enlisted the help of a friend who worked for the health
department. Her friend visited her home
every two to three weeks from December 2011 to February 2012 to make sure Scott
and Nichole were taking care of Michael while Michelle was working. She also said that she called the child abuse
hotline in January 2012 but did not get a response. She called the hotline again several weeks
later and again got no response.

The
department filed a dependency petition
on Michael’s behalf alleging under section 300, subdivision (b) that Scott and
Nichole’s drug use placed him at a substantial risk of harm. The juvenile court ordered Michael detained
pursuant to the petition and, at an uncontested jurisdictional hearing,
adjudged him a dependent of the court.
The court set the dispositional hearing for April 2012.

Michelle
retained an attorney who filed a section 388 petition several days before the
dispositional hearing asking the juvenile court to place Michael with
Michelle. At the time, the department
was evaluating Michelle’s home for placement.


In April
2012, the juvenile court conducted the dispositional hearing, ordered Michael
removed from parental custody, and ordered six months of reunification services
for Scott and Nichole. The juvenile
court also ordered the department to arrange weekly supervised visitation for
Scott and Nichole and ordered visitation for Michelle to occur concurrently
with Nichole’s. The juvenile court set a
hearing on the section 388 petition in May 2012 and a six-month review hearing
in October 2012.

The
juvenile court continued the section 388 hearing and it was ultimately
conducted in August 2012. Meanwhile, in
June 2012, the department completed its inspection of Michelle’s home for
placement and approved her home.
However, the department denied Michelle’s request for placement because
she failed to protect Michael from Scott and Nichole’s drug use while Michael
was living in her home.

In its report for the section 388
hearing, the department informed the juvenile court that Michael was placed
with a foster family in March 2012 and was doing very well. Michael’s foster parents wanted to adopt
him.

In August
2012, the juvenile court conducted a contested hearing on Michelle’s section
388 petition. Michelle testified about
her efforts to protect Michael while he was in her home. Aside from contacting the department, she
tried to minimize the time Michael was left alone with Scott and Nichole. She estimated that he was only with them
three or four hours on a typical day.
She said she considered forcing Scott and Nichole to leave her house but
was afraid they would take Michael with them.
She thought she could better protect Michael by allowing them to live
with her. She also considered pursuing a
legal guardianship but Scott and Nichole would not consent to it. In addition, Michelle did not have the
resources to obtain legal assistance.

Michelle
further testified that she regularly visited Michael after he was removed and
that he displayed love and affection for her during their visits. She said she had the financial means to
support Michael and would take care of him full time if he were placed in her
care.

On
cross-examination, Michelle testified about her own drug history. She said that, at one time, she used
methamphetamine “quite a lot” but she had not used it in eight years. She suspected that Nichole was using drugs
while pregnant with Michael because Nichole was agitated and slept all day and
was up all night. However, she never saw
Nichole and Scott use drugs or found drugs or drug paraphernalia in her
home. She said her suspicions were
confirmed after Nichole overdosed. She
begged Nichole and Scott to get drug treatment and attend Narcotics Anonymous
meetings, however, she could not bring herself to report their drug use to the
police.

Michelle
further testified on cross-examination that in February 2012, approximately a
week before Michael was taken into protective custody, Michelle saw Nichole and
Scott passed out on the bed with a methamphetamine pipe nearby. Michelle said she did not call the police and
regretted it.

At the
conclusion of the hearing, the juvenile court determined that a change in
Michael’s placement was not in his best interest and denied Michelle’s section
388 petition. Michelle filed a href="http://www.fearnotlaw.com/">notice of appeal (F065673) challenging
the juvenile court’s denial of her section 388 petition. The appeal was dismissed after she failed to
file an opening brief. Scott subsequently
filed a notice of appeal from which this case arises.

In October
2012, the juvenile court conducted the six-month review hearing.href="#_ftn3" name="_ftnref3" title="">^[2] Neither Nichole nor Scott personally
appeared. Their whereabouts were unknown
and they had not completed any of their reunification services, nor were they
drug testing. The juvenile court
terminated their reunification services and set a section 366.26 hearing in
February 2013 to select a permanent plan.
Neither Nichole nor Scott filed a writ petition challenging the setting
order.

DISCUSSION

Scott
contends the juvenile court erred in denying Michelle’s section 388 petition on
two grounds: (1) as Michael’s grandmother, Michelle was entitled to the
relative placement preference pursuant to section 361.3; and (2) it was in
Michael’s best interest to be placed with Michelle. Thus, he further contends, section 388
compelled the juvenile court to issue an order placing Michael in Michelle’s
care.

We conclude Scott failed to
preserve the issue of relative placement by not challenging the setting hearing
by writ petition. We further conclude
the juvenile court did not abuse its discretion in deciding, under section 388,
that Michael’s best interest would not be served by placing him with Michelle.

Section 388

Under section 388, subdivision (a), a party may petition
the juvenile court to change, modify or set aside a previous court order. The petitioning party has the burden of
showing, by a preponderance of the evidence, there is a change of circumstances
or new evidence, and the proposed modification is in the child’s best
interest. (§ 388, subd. (a); >In re Zachary G. (1999) 77 Cal.App.4th
799, 806.)

We review the denial of a section 388 petition for abuse of
discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) Thus, we will not reverse unless the juvenile
court’s decision was “‘“arbitrary, capricious, or patently absurd”’” (>In re Stephanie M. (1994) 7 Cal.4th 295,
318 (Stephanie M.)) and “‘exceeded
the bounds of reason’” (id. at pp.
318-319.)

In Michelle’s section 388 petition, she identified the
change of circumstances as a favorable evaluation of her home. As the record reflects, the department in
fact approved her home for placement and there is no dispute that the approval
constitutes a change of circumstances for purposes of section 388. Thus, the issue is whether the juvenile court
abused its discretion in determining that removal of Michael from his foster
home and placing him with Michelle was not in his best interest.name="sp_999_4">

name="citeas((Cite_as:_2013_WL_285776,_*4_(Cal">In Michelle’s section 388 petition, she asserted the
relative placement preference under section 361.3 and the permanence and
stability she could provide Michael as reasons why it would serve his best
interests to be placed with her. In his
appeal, Scott argues that Michelle was entitled to placement under section
361.3 once the department approved her home.
As we now explain, Michelle was not entitled to relative placement
preference and Scott forfeited the issue by not filing a writ petition. Nevertheless, the ultimate consideration
under sections 361.3 and 388 is the same; i.e., the best interest of the
child. Further, a party may seek to
modify a placement order on a section 388 petition until such time as parental
rights have been terminated. (>In re Ronald V. (1993) 13 Cal.App.4th
1803, 1805.) Consequently, though we do
not reach the issue of Michael’s best interest under section 361.3, we review
it in the context of Michelle’s section 388 petition since Scott’s parental
rights are still intact.href="#_ftn4"
name="_ftnref4" title="">^[3]

Relative Placement

The relative placement preference
is set out in section 361.3. It gives
“preferential consideration” to a request by a relative of a child who has been
removed from parental custody for placement of that child. “‘Preferential consideration’ means that the
relative seeking placement shall be the first placement to be considered and
investigated.” (§ 361.3, subd.
(c)(1).) However,
contrary to Scott’s assertion, 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.) Nevertheless, it does “express[ ] a command
that relatives be assessed and considered favorably, subject to the
juvenile court’s consideration of the suitability of the relative’s home and
the best interest of the child.” (>Stephanie M., supra, 7 Cal.4th at p. 320, original italics.)

The relative placement preference applies at the
dispositional hearing and thereafter “whenever a new placement of the child
must be made....” (§ 361.3, subd.
(d).) However, relative
placement no longer applies once
the juvenile court terminates reunification services. (In re
Sarah S. (1996) 43 Cal.App.4th 274, 285-286.)

In this case, Michelle raised the
relative placement preference in her section 388 petition and Scott preserved
it by challenging the juvenile court’s denial of it by direct appeal. However, the juvenile court terminated Scott
and Nichole’s reunification services and set a section 366.26 hearing at the
six-month review hearing in October 2012.
The juvenile court’s findings and orders issued at the setting hearing
must be challenged by writ petition (Cal. Rules of Court, rules 8.450 and
8.452) or they are forfeited. Since
Scott did not challenge the juvenile court’s order terminating reunification
services, he failed to preserve the relative placement issue. Thus, it no longer applies to Michelle and we
are precluded from reviewing it as a factor in the juvenile court’s best
interest analysis.href="#_ftn5"
name="_ftnref5" title="">^[4]

Best Interests

The question before the juvenile court at the section 388
hearing was whether a change in placement was in Michael’s best interest. In deciding that it was not, the juvenile
court stated it did not believe Michelle did not know that Nichole and Scott
were using methamphetamine while in her home given her own use of the drug and
ability to recognize someone who was using.
In addition, the juvenile court noted that Michael had been in the same
foster home for six months (March through August 2012), which it considered a
long-term placement. Under the
circumstances, the juvenile court determined that Michelle had not met her
burden of proof under section 388 and that placing Michael with her would not
serve his best interest.

We concur with the juvenile court’s
decision. Scott and Nichole were using
methamphetamine while caring for Michael.
Michelle knew it and failed to take appropriate measures to protect
Michael. In addition, Nichole’s
methamphetamine use was sufficiently severe that she overdosed. Under the circumstances, Michael could have
been seriously hurt while in her care.
Further, the record does not support Scott’s contention on appeal that
Michael was bonded to Michelle. Even if
that were true, it would not undermine the juvenile court’s placement decision
in this case.

We conclude the juvenile court did
not abuse its discretion in denying Michelle’s section 388 petition and affirm.

DISPOSITION

The juvenile court’s order issued on
August 14, 2012, denying Michelle’s section 388 petition, is affirmed.