In re Rickey T.








Filed 10/6/11 In re Rickey T. CA2/6




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In re RICKEY T., a Person Coming Under the Juvenile Court Law.	2d Juv. No. B229647 (Super. Ct. No. J1174917) (Santa Barbara County)
SANTA BARBARA COUNTY CHILD WELFARE SERVICES, Plaintiff and Respondent, v. BEVERLY R. et al., Defendants and Appellants.

Appellants Beverly R. and Peter H. are Rickey T.'s former foster parents.^[1] He resided with them for two years before he was removed from their foster home. They appeal the order of the juvenile court in summarily denying their modification petition in which they requested that Rickey be returned to their care. (Welf. & Inst. Code, § 388.)^[2] We affirm.
FACTS
Rickey, age 8, lived with appellants for two years. He was removed from their home after an allegation was made that foster father had pinched Rickey. Foster father denied any abuse. Appellants then filed a section 388 petition, requesting that Rickey be returned to their home. The juvenile court summarily denied their petition.
Rickey was born in 2002 and detained in 2006, due to parental neglect and physical and drug abuse. He suffered from encopresis (fecal soiling), enuresis (bedwetting), aggressive behavior, sleep disturbances, hyperactivity and marked stuttering. Parental rights were terminated in 2008. While an appeal of the termination rights was pending, the adoptive parents lost their housing and asked that Rickey be removed. Child Welfare Services (CWS) requested that the judgment be reversed. We reversed and remanded the matter to the juvenile court.
Although eight years of age, Rickey functions at the age of a four-year-old. He had been in at least 12 different placements before his arrival at appellants' foster home in May 2008. In a report dated February 2009, CWS commented upon Rickey's significant progress, which it attributed largely to appellants' efforts and understanding of his developmental delays and mental health issues. His verbally and physically aggressive behaviors had decreased substantially. Rickey has been recently diagnosed by Alcohol Drug and Mental Health Services (ADMHS) as suffering from Pervasive Development Disorder, NOS, neglect and physical and sexual abuse of a child. His symptoms place him on the autism spectrum.
In a status review report dated December 2009, CWS indicated that Rickey was doing well in his placement yet he still had many physical and verbally aggressive outbursts. CWS stated that appellants were doing "an exceptional job." They took Rickey to restaurants, on vacations, car rides, swimming lessons and to Qi Gong lessons. His stuttering had vastly improved, although he continued to experience serious emotional and behavioral problems. Managing his behavior was very demanding for appellants because Rickey required constant supervision and care to ensure his safety. Appellants had been successful in managing his encopresis and enuresis at night. He continued to require intensive mental health services and therapy. Rickey was in first grade at Hope elementary school in Santa Barbara where he received special education services.
CWS reported that appellants had Rickey evaluated by Tri-Counties Regional Center (TCRC) for autism, but he was denied services. Appellants wished to appeal that decision. Rickey had also been receiving "SB163 Wraparound services" which involved collaboration with the child, family and a mental health team to fashion a treatment plan. Appellants indicated that the therapeutic component of the services did not meet Rickey's needs, and he required more specialized services from more highly trained staff. Wraparound services were discontinued in October. Appellants requested reinstatement of the services, arguing that they were terminated as a "punitive action" against them for voicing their opinions about the quality of the services.
In a January 21, 2010 interim review report, CWS reported that appellants had independently engaged the services of a clinical psychologist and a neurologist. CWS requested that appellants be required to confer with and obtain consent from CWS and Children's Mental Health before engaging services from outside medical specialists.
De Facto Parent Request and First Section 388 Petition
On March 3, 2010, appellants filed a de facto parent request. They indicated in a letter to the court that they wished to act as Rickey's authorized representatives at an upcoming TCRC appeals hearing. On March 26, appellants filed a section 388 petition, requesting the court to change its order that they not seek further mental health treatment for Rickey without the consent of CWS.^[3] Appellants wished to obtain an independent assessment from the UCLA Autism Center for Rickey's appeal to the TCRC. The court ordered a hearing on both matters.
Prior to the hearing, CWS issued an interim review report, indicating that it opposed the de facto parent request. During the prior two years, CWS had presented appellants with the possibilities of adoption and guardianship, but they had not proceeded with either option. In November 2009, appellants asked that Rickey be removed, but later withdrew that request. At a hearing in January 2010, the foster mother yelled to the social worker in the courtroom that she wanted Rickey removed. The following day she explained she was upset and did not mean what she had said.
CWS again remarked upon Rickey's significant progress in appellants' home. It expressed concern, however, that the foster mother had alienated some of the service providers by her vigorous criticism. The SB163 Wraparound program staff was no longer willing to work with her. CWS noted that appellants' "very strong views" might impede collaboration with ADMHS, should appellants decide the treatment plan was ineffective. It suggested that it might become necessary to place Rickey elsewhere if appellants were unwilling to collaborate with CWS and ADMHS.
April 1, 2010 Status Review Hearing
On April 1, 2010, the juvenile court conducted a status review hearing in which it denied appellants' request for de facto parent status and their section 388 petition. The court first addressed the request for de facto parent status, noting that appellants had given "mixed messages" to CWS regarding adoption and had declined to accept guardianship. At one point they asked CWS to remove Rickey from their home, but later withdrew that request. The minor's counsel argued that the foster mother was "oppositional, uncooperative and critical" of the service providers.
The foster mother informed the court that she felt they finally had the right "mental health team" to assist them, were interested in permanent guardianship and would consider adoption. The court stated that appellants had been fighting CWS for over two years, impeding it from following its mental health plan. The court stated that CWS had the right to make the minor's health care decisions and appellants would not be granted that right unless they adopted Rickey or became his legal guardians.
According to the foster mother, mental health workers had advised her that if Rickey did not get the care he needs, he would become a psychopath. She indicated this was the reason they could not commit to adoption or guardianship until they had the right mental health team assembled. The court credited the work that appellants had done for Rickey, but denied de facto parent status with prejudice because appellants had not demonstrated a desire to make a permanent commitment. Appellants had been ambivalent about whether they wanted to parent Rickey, and had twice indicated to CWS that they wanted him removed from their care.
The court stated, "I'm going to deny the [section 388 petition] because I'm not legally authorized to grant what you want, which is to tell the department that they have to take a backseat in terms of the care that is given to Rickey." The court continued, "I want you to work with the department cooperatively and I want to you to [sic] not engage in any medical care or therapy or mental health care without consulting with the department . . . ." The court emphasized that appellants must cooperate with CWS because they were not a permanent placement. "If you were the adoptive parent or the guardian, you would have free rein in terms of what treatment protocol Rickey would receive."
Second Section 388 Petition filed May 26, 2010
On May 4, 2010, Rickey appeared at school with a bruised forearm. He told school officials that his foster father had pinched him when he used bad words. Rickey was removed from appellants' home and placed in an emergency shelter.
On May 26, 2010, appellants filed a second section 388 petition asking the court to make an order returning Rickey to their home so they could begin adoption proceedings. Attached was a declaration from the foster father in which he detailed their care of Rickey and described their visits to the emergency shelter to visit him. The foster father adamantly denied having pinched Rickey. The court denied the petition on the basis that it did not address a change of order, but instead asked the court to issue an order.
A status review report filed November 18, 2010, indicated that Rickey was transitioning well to the emergency shelter and receiving numerous therapeutic services. He had a very active summer and his SB163 Wraparound services had been reinstated. The TCRC appeal had been postponed pending the results of another assessment. Rickey appeared calmer and less aggressive. CWS recommended that he have no visitation with appellants.
Third Section 388 Petition filed November 30, 2010
Appellants' appeal is taken from the court's denial of their third section 388 petition, filed November 30, 2010. In that petition, they asked the court to change the following order: "(1) denied de facto parent status; (2) PPLA^[4] with [current foster mother] is appropriate plan; (3) setting W&I, § 366.26 hearing is not in Rickey's best interest because child is not a proper subject for adoption; (4) related orders and findings supporting [CWS's] plan for Rickey's continued dependency until adulthood; (5) [Appellants'] § 388 petition denied."
According to appellants, circumstances had changed because CWS had conducted an evidentiary hearing and found insufficient cause to refer appellants to the Child Abuse Central Index. They requested the court to make the following orders: "(1) appoint [appellants] as de facto parents; (2) order an adoptive homestudy for [appellants]; (3) order weekly visitation for Rickey and [appellants] with the goal of returning Rickey to them; (4) order mediation between the parties to try to find common ground on Rickey's needs and the best ways to meet those needs; (5) set a section 366.26 hearing to consider [appellants'] plan to adopt Rickey." Appellants stated this would be better for Rickey because he had been thriving in their home before his removal. They felt he would continue to thrive if returned, and "[t]here is no comparable benefit" to continuing him in long-term foster care. Attached to the petition were appellants' declarations, detailing their care of Rickey in their home.
The juvenile court did not conduct a hearing. It summarily denied appellants' petition on November 30, making a written finding (JV-183) that appellants had not stated new evidence or changed circumstances and the proposed change of order was not in Rickey's best interest.
December 2, 2010 Post-Permanency Hearing
Included in the record on appeal is the reporter's transcript of a post-permanency hearing on December 2, 2010. Appellants were not present. The only relevance this hearing bears to appellants' petition is the juvenile court's comment that appellants had previously filed a section 388 petition, which it denied.
During the hearing, the court stated that Rickey's permanent plan was placement with a substitute care provider with a goal of legal guardianship. Counsel for the minor stated that an investigator had visited Rickey's placement multiple times and he was doing very well. The court stated, "It looks like he is thriving and there was a J.V. 180 filed by the former caregivers, which the court denied because it did not appear it was in his best interest or there were changed circumstances. Moreover, legally, very limited standing." The court briefly addressed some other matters and concluded the hearing.
DISCUSSION
Appellants claim the court abused its discretion in denying their petition and dispute its comment that they had "very limited standing." They assert that, as Rickey's caretakers, they were entitled to file the petition. Appellants argue that the court summarily denied their petition on the day it was filed without crediting the facts asserted either in the petition or their attached declarations. They contend the facts they alleged were sufficient to justify an evidentiary hearing.
At oral argument, CWS acknowledged that there was no issue as to standing. Thus, we consider appellants' petition on the merits. A JV-180 section 388 petition for modification allows a "person having an interest" in a dependent child to petition the juvenile court to change an order made in the dependency proceeding. Pursuant to section 388^[5], the court is authorized to modify a prior order if the petitioner (1) shows a change of circumstances or new evidence and (2) establishes that modification is in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Eric E. (2006) 137 Cal.App.4th 252, 260.)
To obtain an evidentiary hearing on a section 388 petition, the petitioner must make a prima facie showing as to both of these elements. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) The section 388 petition should be liberally construed in favor of granting a hearing, but "[i]f the liberally construed allegations of the petition do not show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.]" (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Carl R. (2005) 128 Cal.App.4th 1051, 1071.)
"In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]" (In re Justice P., supra, 123 Cal.App.4th at p. 189.) We review the summary denial of a section 388 petition for an abuse of discretion. (In re Zachary G., supra, 77 Cal.App.4th at p. 808; In re Anthony W., supra, 87 Cal.App.4th at p. 250.) The court has broad discretion in resolving a petition to modify a prior order. Its determination will not be disturbed on appeal unless an abuse of discretion is clearly shown. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) A genuine change of circumstances is not enough to merit a modification. The petitioner "must show that the undoing of the prior order would be in the best interests of the child. [Citation.]" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
Appellants assert that a changed circumstance was that foster father was "exonerated" from the abuse allegation following an administrative hearing by CWS. They cite to CWS's "administrative findings and appellants' newly articulated committment [sic] to Rickey." However, they do not specify those findings, nor is there any documentation in the record concerning such a hearing. Appellants add that their newly-retained counsel also constitutes a changed circumstance. The retention of counsel has no bearing on the facts surrounding the minor's dependency.
Next, appellants contend that placing Rickey with them would be in his best interest because he had thrived while in their care. Rickey had resided with them for two years -- the longest he had remained in any placement. They allege he will now be in long-term foster care until age 18. By contrast, they state, dependency jurisdiction could be dismissed if he was returned to them.
Appellants' request for a change of placement is not based upon changed circumstances or new evidence. It would not be in Rickey's best interest to be returned to their care. He deserves to be in a home that offers permanence and stability, not one in which foster parents vacillate between adoption and removal, depending upon their satisfaction with the mental health team. Appellants did not make a prima facie showing of changed circumstances requiring the court to hold an evidentiary hearing. There was no abuse of discretion in the summary denial of appellants' section 388 petition.
DISPOSITION
The juvenile court's order denying appellants' section 388 petition is affirmed.
NOT TO BE PUBLISHED.




COFFEE, J.


We concur:



GILBERT, P.J.



PERREN, J.

James E. Herman, Judge

Superior Court County of Santa Barbara
______________________________


William D. Caldwell for Defendants and Appellants.
Dennis A. Marshall, County Counsel, Sarah A. McElhinney, Deputy Counsel for Plaintiff and Respondent.



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