In re S.D.

Filed 1/2/08 In re S.D. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from orders of the Superior Court of Orange County, Gary L. Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Huettl, Malmsten & Associates and Lisa Peskay Malmsten for Plaintiffs and Respondents Richard H. and Kimberly H.

Nicole Williams, under appointment by the Court of Appeal, for the Plaintiff and Respondent S.D.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Defendant and Respondent.

* * *

The minors maternal grandmother, Mario O. appeals the juvenile courts order granting motions brought under Welfare and Institutions Code, section 388. (Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.) We reject all of her arguments and affirm.

I

FACTS

S.D., the minor, was born in 2004. He was brought to the emergency room when he was seven weeks old. Doctors found healing fractures of four ribs and two healing fractures of his left leg. Among other injuries, he had a soft tissue hematoma and swelling and hemorrhage in his head. The findings were consistent with non-accidental traumachild abuse.

Orange County Social Services Agency (SSA) removed S.D. from his home. The court found there was a substantial danger to the physical health of S.D. and ordered his removal from the parents custody.

In 2007, SSA made the following assessment: Although it is unknown as to who caused the extensive injuries to [S.D.] it is known that he spent the majority of his time with his mother and father as well as his maternal grandparents. The parents appear to remain in denial that these injuries occurred putting the child at risk of future injury. Given the severe abuse [S.D.] endured while in the care and custody of his parents and the lack of acknowledgement of this abuse from his parents the undersigned respectfully requests that the child be found adoptable and parental rights be terminated in order to proceed with a permanent plan of adoption. The court ordered termination of reunification services for both parents and ordered a hearing pursuant to section 366.26. On April 23, 2007, the court ordered the parental rights of both parents terminated.

The court found both the maternal grandparents and the foster parents to be de facto parents. Funds were authorized for an attachment study of S.D. with each set of de facto parents.

A comprehensive psychological evaluation was conducted by a forensic clinical psychologist. The doctor reported that S.D. was positively bonded with both sets of [de facto] parents. After concluding both sets of de facto parents treated S.D. selflessly and well, the doctor said: I believe the quality of the relationship the Minor has had and can develop with the [foster parents] is likely to be better for him, in the long term, than the relationship he has and can develop with the [maternal grandparents]. I am led to this conclusion by a number of factors, including; [] The fact the [foster parents] have been relatively more successful as parents than the [maternal grandparents]. The three [children of the foster parents] are higher functioning and have more positive relationships with their parents and each other than do the two [children of the maternal grandparents] have reportedly. [] Two [children of the foster parents] are reported (and report themselves) to be achieving very nicely in school and to be very active in sports. They also seem socially poised and to have very good relationships with their parents, and each other. By contrast, [the children of the maternal grandparents] have not fared as well. They each have had children out of wedlock, with men their parents do not approve of and with whom the parents do not have good, intimate, cooperative relationships. Their relationships with their parents and each other have been inconsistent. There may well have been a lack of parental limit setting in their upbringing; as suggested by some references in the records reviewed.

The doctor explained he did not think the maternal grandparents have deeply held beliefs that the Minor was abused in their household. The [maternal grandfather] said he did not witness anything untoward in their household and that, if anything happened, he would suspect the Minors father. The doctor said the maternal grandmother similarly believes that her daughter had nothing to do with the Minor being injured, and also suspects the father. Given that they each assume the daughter cannot be held responsible for the Minors injuries, it is difficult to imagine that they would not facilitate her being involved with the Minor, again; why would they not, if they believe her to have been benign?

The psychologist concluded: While I cannot detect a difference in the strength of the bond between the Minor and the two sets of [de facto] parents, I think the quality of his bond with the [foster parents], particularly in the long term, is likely to be more beneficial to him.

S.D.s attorney filed a motion under section 388. In the motion, S.D.s attorney requested the court change an order it previously made placing S.D. in the care of the maternal grandparents and place him in the home of the foster parents. The reasons for the requested change were stated in the moving papers: The requested change is in the childs best interests because the maternal grandparents continue to make statements [which] indicate that they are not convinced that the child was injured in their household or that there is any possibility that their daughter is responsible for the abuse. Therefore, they cannot be relied upon to protect the child from contact with his parents if allowed to adopt, which places the child at risk of further physical injury. [] In addition, the [Evidence Code section] 730 evaluator cites additional reasons for his conclusion that the minor[s] best interests would be served by his placement with the [foster parents], including the fact that they have proven themselves to be more successful in parenting their other children than the maternal grandparents and can be trusted to maintain and promote the childs relationship with the maternal grandparents after they adopt.

On the same day, the foster parents also filed the same motion under section 388. They explained their reason for requesting the change of placement: In anticipation of adoption following the termination of parental rights, the immediate change of placement of [S.D.] to the home and care of [the foster parents]. In a seven-page nonevidentiary attachment to their motion, the foster parents describe the contents of the most recent SSA report and conclude that if the facts had been known to the Court, we respectfully contend that the Court would not have made the current placement.

Over a several-day period, the juvenile court conducted an evidentiary hearing. There was evidence the maternal grandmother observed the father hit the mother when she was pregnant with S.D. The maternal grandmother minimized the mothers explosive behavior. For example, she said it was the father, not the mother, who slammed a door so hard at the courthouse after the judges ruling, that it resulted in a hole in the wall. When she was reminded that a bailiff observed the mother slam the door, the maternal grandmother explained the mother gets mad easily, but like a normal person and that the mother was mad at the Court due to what had happened to her. When the social worker inquired of the maternal grandmother whether or not she thought the mother may have had problems with postpartum depression and may have hurt S.D. under those circumstances, the maternal grandmother stated she does not know what happened to S.D., nor does she know who did it. The maternal grandmother observed that it could not have been the maternal grandfather who hurt S.D. because he would not even hold or hug [S.D.] when he was a baby because he was angry with [the mother] for getting pregnant. The social worker reported to the court: The undersigned is concerned about the ability of [the maternal grandmother] to protect [S.D.], given that she did not take steps to protect her daughter from physical abuse while her daughter was pregnant with [S.D.]. Once [S.D.] was removed from his parents care, [the maternal grandparents] let the man who [the maternal grandmother] believes to have physically abused her daughter while pregnant, move into their home. Despite the evidence . . . she does not seem to believe that [S.D.] was intentionally abused. [The maternal grandmother] states she does not have a relationship with [the father], yet she and her husband continue to care for his dog.

Both section 388 motions were granted on April 19, 2007. The court ordered that S.D. be placed with the foster parents. The juvenile court explained its reasons in a lengthy oral statement. It lamented its option of continuing placement with the maternal grandparents, while underscoring this child barely came out of the womb before he was battered. The court said: I could keep the kid with the grandparents with a lot of surveillance in place, and then increase the [foster parents] contact, and so on. Whats that going to do for the boy? That doesnt give him a life. That makes him tantamount to a resident of a very large prison in which he will find restrictions for the rest of his life. It doesnt give him a chance to grow up and to be a boy. . . . Clearly, this kid is adoptable. There is no other option but adoption. But, assuming for the sake of argument, I didnt have that option, Id have to sit there and oversee this case for, what, 15 years and ten months, because I dont believe the grandparents are going to protect because they dont have the insight necessary to see.

More than once, the court indicated the maternal grandparents lacked credibility. The court explained: I feel for the grandparents. I dont think theyll protect this child. I think the daughter runs their life. I think they dont know how to draw a line in the sand. I think shes a hellion, and if she wasnt an abuser, certainly the father was. And she was running all over these parents from the time that she was old enough to become probably an adolescent, and they cant control her. And I dont believe them when theyre sitting here saying, well, they wont let the daughter back in. What does the report say? Back to the report, page 17 of the .26 report, [S.D.]s maternal grandparents have stated, They would like [S.D.] returned to his mother, but if he cannot, theyre committed to adopting him. Well, how reassuring is that? The court added, Ive had two years and four months to make an assessment. And I didnt just fall off the old truck.

The maternal grandmother filed a notice of appeal. She appeals from the order granting the motions brought under section 388. The notice states: I appeal from the findings and orders of the court: On April 19, 2007, the court removed the minor from the care of the maternal grandparents, who are also de facto parents. A 388 motion had been filed by both the minors attorney and the former foster parents, asking for the removal from the maternal grandparents and placing the child with the former foster parents. She requests this court take judicial notice of its prior opinion in this matter (Christopher D. v.Superior Court (Dec. 27, 2005, G036081) [nonpub. opn.].) Her request was previously granted by this court. She also requested that her appeal either be treated as a petition for extraordinary writ or that an expedited briefing schedule be ordered. This court previously denied both alternate requests. She further requested that certain documents sealed by the juvenile court be added to the record on appeal. This court granted that request. The clerk of this court was ordered to unseal the requested portion of the record.

The mother filed her own notice of appeal, G038760, and requested that it be consolidated with the grandmothers appeal. SSA also requested the two appeals be consolidated. Those requests were previously denied by this court without prejudice to renewing the requests after the mothers opening brief is filed. Once it was filed, the consolidation motions were renewed. The maternal grandmother argued she would be greatly prejudiced in her appeal were the motions granted. The motions to consolidate are denied.

II

DISCUSSION

Allegations in petition and granting a hearing

The grandmother contends the juvenile court abused its discretion when it agreed to hear the section 388 motions. A parent may, upon grounds of change of circumstances or new evidence, petition the court for a hearing to change, modify or set aside any order of the court previously made to terminate the jurisdiction of the court.

( 388, subd. (a).) If it appears that the best interests of the child may be promoted by the proposed change of order or termination, the court shall order that a hearing be held.

( 388, subd. (c).)

Juvenile courts have the discretion to grant or deny a hearing, depending on whether or not the best interest of the child may be promoted by the proposed change or order. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806; Cal. Rules of Court, rule 5.570.) The juvenile courts decision will not be disturbed on appeal absent an abuse of discretion. (In re Zachary G., supra, 77 Cal.App.4th at p. 808.)

A hearing may be denied only if the application fails to reveal any change of circumstance or new evidence which might require a change of order. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) The applications contained allegations that S.D.s safety was in question. Under these circumstances, we cannot say the court abused its discretion when it agreed to hear the section 388 motions.

New evidence and evidence of changed circumstances

The grandmother argues substantial evidence does not support the juvenile courts decision to grant the section 388 petitions. The grandmother states: When there is no substantial evidence to support the juvenile courts order, the court abuses its discretion. [Citation.]

But Reynaldo R. has to do with a minors appeal from a commitment to the California Youth Authority. That court held the trial judge did not abuse its discretion in ordering the commitment. (In re Reynaldo R. (1978) 86 Cal.App.3d 250.) The case does not support the grandmothers claim the juvenile court erred here.

At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child. [Citations.] (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) We review section 388 petitions for abuse of discretion. (Id. at p. 318.) Therefore, we will not disturb the trial courts decision unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination . . . . [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.] (Ibid.)

The grandmother argues her continued failure to acknowledge the risk the mother and father present to S.D. is insufficient for purposes of a section 388 motion. As she contends: There simply cannot be a changed circumstances or new evidence if the circumstances have remained the same, and nothing has changed but the passage of time.

From the time of placement of S.D. with the maternal grandparents, the court viewed it as a temporary solution in that the court expressed hope, but not a great deal of expectation, the grandparents would or could protect S.D. Placement with the maternal grandparents was only considered after a planned placement with the paternal grandparents in Nebraska was aborted. The judge articulated the courts continuing reservations about the maternal grandparents because of their failure to acknowledge their daughter might have abused S.D. On February 8, 2006, the court said: This is not a very good situation, because I dont even know if [S.D.] can do well in their home. I dont really know about long term and their ability to protect. [] . . . [] Maybe, reluctantly, theyve begun to see that the father is not a very good guy. Maybe, reluctantly, theyve begun to see that the mother in their home wasnt very conducive to [S.D.] being placed there.

A few months prior to the section 388 hearing, the grandparents expressed a desire to have S.D. returned to his mother, but if he is not, they are committed to adopting him, an ambivalent commitment at best. At the section 388 hearing, the social worker testified: My concerns are that the grandparents dont acknowledge that [S.D.] was injured non-accidentally; that they dont acknowledge that it happened in their home. They dont seem to understand that someone in their home did this to [S.D.], and they dont because of those things, I dont believe they can protect [S.D.]. Regarding the grandparents testimony, the trial court simply did not believe them when they promised to protect S.D.

At the hearing, the grandmother admitted she knows her other grandchildren visit with the mother and father, the suspected abusers, yet she has never even spoken to her other daughter, the mother of the other grandchildren, about exposing the children to them. The grandfather said S.D.s broken ribs might have been caused from somebody hugging him too tightly.

The expert psychologists report supports the courts conclusion the grandparents are still in denial about the abuse inflicted upon S.D.: I do not think that the grandparents hold deeply held beliefs that the Minor was abused in their household. [The grandfather] said he did not witness anything untoward in their household and that, if anything happened, he would suspect the Minors father. [The grandmother] similarly believes that her daughter had nothing to do with the Minor being injured, and also suspects the father. Given that they each assume the daughter cannot be held responsible for the Minors injuries, it is difficult to imagine that they would not facilitate her being involved with the Minor, again; why would they not, if they believe her to have been benign?

With this record, we must conclude the juvenile court did not abuse its discretion when it granted the section 388 motions. There was significant new evidence regarding the grandparents ability to protect S.D. Circumstances changed in that, 14 months earlier, the juvenile court gave the grandparents the benefit of the doubt vis--vis their insight and ability to protect S.D. By the time of the hearing on the section 388 petitions, the court found there was no longer any reason to give them that benefit.

Burden of proof

The grandmother argues the order granting the two petitions brought under section 388 must be reversed because the juvenile court did not apply the correct legal test. In different ways, she claims the petitioners burden was proof by clear and convincing evidence. For several reasons, we reject the grandmothers contention.

In a proposed order, the juvenile court was specifically requested to employ a clear and convincing standard. In making its ruling, the court detailed the two and one-half year progress of the case. And, while the court did not specifically state its ruling was made after a finding the petitioners met their burdens by clear and convincing evidence, it appears clear from the record that, had someone reminded the court at that point in time there was a request for a determination by clear and convincing evidence, the magic words would have been included in the courts thorough and exhaustive oral explanation of its ruling. By not raising the issue at the hearing, the grandmother waived her right to argue it on appeal. (In re Levi U. (2000) 78 Cal.App.4th 191, 201.)

Another argument not brought up in juvenile court is the grandmothers claim she was denied her rights to procedural and substantive due process and equal protection under the Fourteenth Amendment to the United States Constitution because

the court did not employ the higher burden of proof. This argument is also waived because it was not raised below. (In re Levi U., supra, 78 Cal.App.4th 191, 201.)

The grandmother claims error because the trial court failed to articulate that it was employing the clear and convincing standard of proof. While the court did not state the standard it employed, appellate courts infer all findings necessary to support the judgments and orders of the lower court. (Virtanen v. OConnell (2006) 140 Cal.App.4th 688, 709.) Because she cites no authority that the courts specific articulation was required, we also deem this argument to be waived. (Hess Collection Winery v. Agricultural Labor Relations Bd. (2006) 140 Cal.App.4th 1584, 1607, fn. 6.)

Of greater import, however, clear and convincing evidence is not a requirement under these circumstances. Ordinarily the moving party for a section 388 motion has the burden of establishing by a preponderance of the evidence that a change of circumstances exists and that the proposed change is in the childs best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) A heightened burden of proof is required when a petition under section 388 is brought by a governmental agency, and the removal is from the parents or guardians home. The rationale for this requirement is that section 361 imposes the higher requirement at a dispositional hearing, and, therefore, the higher requirement remains during the various stages of a dependency proceeding because there is a statutory presumption the child will be returned to parental custody. ( 361, subd. (c); In re Michael D. (1996) 51 Cal.App.4th 1074, 1085.) But the heightened requirement does not apply when the 388 motion seeks to remove the child from the home of de facto parents. (In re M.V. (2006) 146 Cal.App.4th 1048, 1058.)

Rule 5.570

The grandmother extends her burden of proof argument to a claimed violation of California Rules of Court, rule 5.570(h).^[1] She claims the rule requires a section 388 petitioner to prove its case by clear and convincing evidence. Her contention does not merit extended discussion because it rests upon language in section 361, subdivision (c)^[2]that does not apply here.

Section 361, subdivision (c) requires the child be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated. Here, S.D. was removed from the home of his maternal grandparents, not from the physical custody of his parents or guardians. A de facto parent does not have the same rights as a parent or a legal guardian. (In re M.V., supra, 146 Cal.App.4th at p. 1059.) Accordingly, the clear and convincing standard is applied to protect the rights of parents and guardians, but it is applied to no one else. (Ibid.) When petitions are filed to remove children from the custody of a relative, the court uses the preponderance of the evidence burden of proof and need not look at less restrictive alternatives. [Citation.] (In re A.O. (2004) 120 Cal.App.4th 1054, 1061.)

Relative preference

Bootstrapping onto her California Rules of Court, rule 5.570 argument, the grandmother next claims the juvenile court erred when it selected the foster parents over grandparents because of the requirements of section 361.3, subdivision (a)^[3]and rule 5.560.^[4] Just as explained, above, this argument fails because S.D. was not removed from a parent, a requirement under section 361.3.

III

DISPOSITION

The orders of the juvenile court are affirmed.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] Rule 5.570(h) states: (1) The petitioner requesting the modification under section 388 has the burden of proof. If the request is for the removal of the child from the childs home, the petitioner must show by clear and convincing evidence that the grounds for removal in section 361(c) exist. If the request is for removal to a more restrictive level of placement, the petitioner must show by clear and convincing evidence that the change is necessary to protect the physical or emotional well-being of the child. All other requests require a preponderance of the evidence to show that the childs welfare requires such a modification.

^[2] Section 361(c) states: A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances. . . .

^[3] Section 361.3 (a) states: 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.

^[4] Rule 5.560(c) states: A supplemental petition must be used if petitioner concludes that a previous disposition has not been effective in the protection of a child declared a dependent under section 300 and seeks a more restrictive level of physical custody. For purposes of this chapter, a more restrictive level of custody in ascending order, is [] (1) Placement in the home of the person entitled to legal custody; [] (2) Placement in the home of a noncustodial parent; [] (3) Placement in the home of a relative or friend; [] (4) Placement in a foster home; or [] (5) Commitment to a private institution.