In re Q.S.
Filed 6/17/08 In re Q.S. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re Q.S. et al., Persons Coming Under the Juvenile Court Law. | |
MONICA J., Plaintiff and Appellant, v. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Defendant and Respondent. | E042756 (Super.Ct.No. RIJ111419) OPINION |
APPEAL from the Superior Court of Riverside County. William A. Anderson, Jr., Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.
Christopher R. Booth, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Defendant and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, and Nicole Williams for Minors.
The juvenile court summarily denied the minors maternal grandmothers (Grandmother) Welfare and Institutions Code section 388 petition requesting the minors be placed in her care.[1] Grandmother contends the juvenile court erred by summarily denying her petition.[2] The minors also contend the juvenile court erred by summarily denying Grandmothers petition. We affirm the order denying the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Q.S. was born in May 2001. Q.S.s half sister, H.J., was born in March 2005. The minors were determined to be a sibling set. On January 19, 2006, the two minors were taken into protective custody by child protective services after the minors mother (Mother) was arrested for murdering H.J.s father.
The Riverside County Department of Public Social Services (the Department) filed a juvenile dependency petition concerning both minors, pursuant to section 300, alleging (1) a failure or inability of the minors parents to supervise or protect the children; and (2) an inability of the parents to provide support for the minors. The petition alleged that Mother was incarcerated and the whereabouts of Q.S.s biological father were unknown. The minors were declared dependents of the court. The minors were ordered to be placed in suitable relative care, nonrelative care, or in a suitable licensed facility. The minors were placed in a licensed foster home.
At a contested six-month review hearing, Mothers attorney commented that Grandmother was waiting for a criminal exemption to be granted that would allow the children to be placed in her care. Grandmother required a criminal exemption due to at least one misdemeanor conviction in 2003.[3] Additionally, Grandmothers minor son, who lived with Grandmother, would need to be granted a criminal exemption due to sustained juvenile delinquency petitions. An additional issue raised regarding placing the children in Grandmothers home was 13 prior contacts with child protective services involving Grandmother. The court found adoption of the minors would be the appropriate permanent plan. The court continued the minors placement in foster care, but scheduled a special interim hearing regarding placing the minors with Grandmother, so that a report from the relative assessment unit could be obtained.
In the selection and implementation hearing report, it was recommended that the minors stay at their foster care facility, where they had resided for over a year, and that unsupervised visits with Grandmother be suspended indefinitely. Q.S.s therapist recommended that his visitation with Grandmother be suspended indefinitely because Q.S. is picked on by a more aggressive younger child when he visits his grandmothers home; he is encouraged to get into fistfights with a slightly older child who hits him in his face and . . . hurts [him]. Also, . . . he is held down by an adolescent uncle who hits him in the chest. Additionally, when the Department investigated Grandmother, she admitted having five previous referrals to child protective services. During monitored visits with Grandmother, she gave appropriate attention to each minor. In the updated case plan, it was noted that Q.S. got along well with his foster siblings and was very bonded to his foster mothers nephew, who is in the same kindergarten class as Q.S.
At the interim hearing, Mothers attorney stated that Grandmother had received a criminal exemption allowing the children to be placed with her; however, Grandmothers son had not been exempted and therefore the children could not be placed in Grandmothers home. Grandmother offered to move her son to a godparents home so the minors could be placed with her. When the social worker was informed of the plan to remove Grandmothers son from the home, she commented to Mothers attorney that it would not be likely that [the Department] would place the children with the grandmother as she has chosen the grandchildren over her own child, and that it is her responsibility to raise her children, not put them off on other people. In addition, [Grandmother] has now had at least three children involved with the criminal system and the chances that these grandchildren will be involved is likely as well if placed with the grandmother.
Also at the hearing, Mothers attorney offered that Grandmother could explain to the court that she had no prior contacts with child protective services. In the Departments report, it is noted that Grandmother claimed her sister may have used Grandmothers identity when contacted by the police. The court held that the existing order would stay in effect, but in the event that the child of the maternal grandmother vacates the home, the Department is to continue to assess and look into whether or not those 13 alleged referrals were related to this particular person or if there could be a mistake as to identity.
On March 20, 2007, Grandmother filed a petition pursuant to section 388, seeking a modification of the courts order. Grandmother provided a detailed statement as to why the courts order should be modified. Grandmother stated that her son no longer lived in her house, she visited Q.S. and H.J. regularly, had been involved in the minors lives since birth, that Q.S. would follow her instructions when he refused to follow other peoples directives, and that she was capable of providing for the minors. The court denied Grandmothers petition without an evidentiary hearing, because (1) the petition did not state new evidence or a change of circumstances; (2) the petition did not show that the requested modification would be in the minors best interests; and (3) Q.S.s therapist recommended Q.S. not visit his Grandmothers home.
DISCUSSION
Grandmother contends the juvenile court abused its discretion by summarily denying her section 388 petition. We disagree.
Under section 388, a party may petition the court to change, modify, or set aside a previous court order. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1071.) A person seeking modification of a juvenile court order under section 388 must make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.] (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) To make the required prima facie showing, the petitioner must show that (1) there has been a genuine change of circumstances or new evidence; and (2) revoking the prior order would be in the best interests of the minors. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The petition must be liberally construed in favor of granting a hearing to consider the [relative]s request. (In re Carl R., supra, at p. 1071.) However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. [Citation.][4] (In re Mary G., supra, 151 Cal.App.4th at p. 205.) We review the juvenile courts summary denial of a section 388 petition for an abuse of discretion. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
In her petition, Grandmother gave many reasons why the minors should be placed in her care; however, she only mentioned one changed circumstanceher son no longer resided in her home. At the hearing that took place prior to Grandmother filing the section 388 petition, Mothers attorney mentioned that Grandmothers minor son might move into his godparents home, and the court stated that in the event that the child of the maternal grandmother vacates the home, the Department is to continue to assess and look into whether or not those 13 alleged referrals [to child protective services] were related to this particular person or if there could be a mistake as to identity.
The courts order took into consideration the possibility that Grandmothers son might move out of her home and provided a directive for such an occurrence. Consequently, evidence that Grandmothers son no longer resided in her home would not have required modification of the courts order, as such information had already been taken into account in the order. In other words, if the juvenile court had granted an evidentiary hearing concerning Grandmothers petition, and Grandmother produced credible evidence regarding all the allegations in her petition, then the courts previous order would still not need to be modified because the prior order already provided directives for the Department based upon Grandmothers son moving out of Grandmothers residence.[5]
Grandmother failed to make a prima facie showing in her petition that new evidence was available or that circumstances had changed such that a favorable decision on the petition would be sustained if the allegations in the petition were found true. Accordingly, we find the juvenile court did not abuse its discretion in summarily denying Grandmothers petition.
DISPOSITION
The order denying the petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
Acting P.J.
We concur:
/s/ Richli
J.
/s/ King
J.
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[1]All further statutory references will be the Welfare and Institutions Code unless otherwise noted.
[2]Grandmother separates her contention into two parts. First, Grandmother asserts the court erred by denying her petition. Second, Grandmother argues the court erred by not granting her an evidentiary hearing. We construe Grandmothers contentions as alleging a single error, which is that the court erred by summarily denying her petition.
[3]Grandmothers criminal history was not clearly set forth in the record.
[4]In their respondents brief, the Department notes that [t]he petition must allege circumstances that require[] changing the [courts] order. [Citation.] In her reply brief, Grandmother argues that the Department has set forth a stricter standard than applied in prior appellate cases. Grandmother argues the recognized rule is that if the petition presents any evidence [that] an evidentiary hearing would promote the best interests of the child, [then] the juvenile court must order the hearing. Both parties are partially correct. If the petition sets forth any allegations that, if supported by evidence, would require modification of the courts order, then the court must grant the hearing. (In re Mary G. (2007) 151 Cal.App.4th 184, 205.)
[5]Grandmother alleged no new evidence discovered by Department or herself concerning the 13 prior referrals to child protective services. The only allegation in Grandmothers petition concerning the prior referrals was that she had no knowledge of any prior referrals, which is contrary to her admission of having five previous referrals.
