Filed 10/6/17 In re A.H. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Stanislaus County. Ann. Q. Ameral, Judge.

Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant.

John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

David H. (father) contests the juvenile court’s denial of his Welfare and Institutions Code section 388[1] petition requesting that his son A.H. be returned to the custody of paternal grandmother Joanne L. (grandmother), who lost placement when the Stanislaus County Community Services Agency (Agency) determined grandmother allowed an unauthorized individual to care for A.H. Father also contends the juvenile court erred when it failed to rule on whether the Agency should have filed a section 387 petition when it removed A.H. from grandmother’s care. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Newborn A.H. came to the attention of the Agency in March of 2016[2], when both A.H. and Katherine W. (mother)[3] tested positive for methamphetamine. Mother had tested positive for methamphetamine two weeks prior to A.H.’s birth as well. Mother also had a previous history of heroin and methadone use, as well as mental illness. Mother has three older children from a prior relationship who were placed in guardianship with their paternal grandmother.

Mother stated she planned to live with A.H. at grandmother’s home. The investigating social worker visited grandmother’s home to determine suitability. The house smelled “strongly of smoke.” Grandmother denied any mental health issues, criminal history, domestic violence or drug use.

Father, who was contacted outside the home, said he was aware mother tested positive at a prenatal visit, as well as at delivery. According to farther, he only smoked marijuana, but when asked to voluntarily drug test, admitted methamphetamine use. When asked if he thought grandmother could adequately care for A.H., father said she was a “pot head.” Grandmother was then confronted with this statement and she said she smoked marijuana for pain, but declined to do a voluntary drug test.

Detention

The Agency took A.H. into protective custody and filed a section 300, subdivision (b) petition, based on mother’s drug use, child welfare history, and mental illness, and father’s substance abuse and criminal history, all of which allegedly placed A.H. at a substantial risk of harm. At the detention hearing March 25, the juvenile court found grounds for detention and detained A.H. Jurisdiction/disposition was set for April 28.

Jurisdiction/Disposition

The report prepared in anticipation of jurisdiction and disposition stated A.H. was in foster care but grandmother was “going through the placement approval process.” At a visit at the end of March, grandmother arrived unscheduled and gave the Agency staff a “hard time” when they told her she needed to clear her visits with the social worker. Grandmother’s attitude continued at another visit in early April when she again arrived unscheduled. When she attempted to walk into the visit, she was stopped, at which point she rolled her eyes and said, “Every time! I don’t know what’s wrong with you guys!” After checking and finding grandmother was allowed to have a monthly visit, she stated, “It’s about time. This is ridiculous! This is bullshit! You guys do this all the time!” After the visitation rules were reviewed with her, grandmother continued to shake her head and state, “This is ridiculous! This is Bullsh[it]!” The report states both mother and father were quiet during grandmother’s “rant.”

At the time of the report, mother and father were both in residential treatment.

At the jurisdiction/disposition hearing April 28, both mother and father made offers of proof. Mother, through counsel, stated she loved A.H. and believed she could provide a safe environment for him if returned to her care. Mother was amendable to participating fully in services offered. Father, through counsel, noted grandmother’s request for placement was “in the hands of the Agency’s management right now as to whether to approve an exemption,” and asked that all parties be noticed if that exemption was denied, which was agreed to.

The juvenile court sustained the petition, declared A.H. a dependent and placed him in the custody of the Agency to be “placed in suitable placement.” Reunification services were granted for both mother and father. A six-month review hearing was set for October 20, with an interim review July 21, although the Agency was not required to submit a written report for the interim review.

Interim Review

At the interim review hearing July 21, the juvenile court “admonished” mother and father “regarding poor progress.”

Section 388 Petition

On September 19, father filed a section 388 petition asking that the April 28 “[g]eneral placement order, with [A]gency discretion to place with relatives” be changed. The requested change in order was for a “[s]pecific placement order for placement with Paternal Grandmother, and an immediate return of A.H. to her care.” The alleged change in circumstances stated the Agency

“placed [A.H.] with his paternal grandmother on May 25, 2016. The Agency, however, removed [A.H.] from his grandmother on September 16, 2016. According to the grandmother, the reason for this removal was because she reported a rash and was accused by the [A]gency of not providing proper care. Further she was not given the opportunity to remedy the situation or allowed to take him to a doctor.”

The petition further alleged that, prior to removing A.H. from paternal grandmother, a section 387 petition should have been filed by the Agency, in order to allow “relatives the opportunity to be heard” on the issue.

A hearing on the petition was set for October 13.

Six-Month Review Report

Prior to the scheduled section 388 hearing, the Agency filed a six-month review report in which it recommended services for father be continued, but terminated as to mother. Mother left her treatment program in early May and was now homeless. Father was discharged from Nirvana in May, but reentered in July, completed 60 days of treatment, and was now living in a sober living facility. Father was attending counseling and parenting classes.

The report noted A.H. had been placed with grandmother, but was removed due to a substantiated general neglect referral.

The juvenile court set the previously scheduled section 388 petition for a contested hearing on October 20, to coincide with the uncontested review hearing.

Agency’s Opposition to Section 388 Petition

The Agency filed a report in opposition to the section 388 petition, which discussed the history of placement with grandmother. The report and attached case notes stated A.H. was initially placed with grandmother in May after she executed a Safety Plan which addressed both conditions for her continued use of marijuana and for adults in her home or in frequent contact with A.H. One item in the Safety Plan stated grandmother “must notify the social worker before any adults spend the night in my house or are having frequent contact with me or [A.H.] as they need to be cleared.” Another item stated grandmother “will abide by the agency and court rules and will cooperate with the social worker and support reunification for BOTH parents.” Still another item stated that grandmother understood “that if any of the above rules are broken, [A.H.] could be removed from my home immediately.”

On July 15, the Agency received word from the minor’s previous foster parent, who was providing day care for him, that A.H. had bruising on his face. The investigating social worker found A.H. had a light purple bruise on his right eye, which was puffy, and also a rash on his neck. The complaint was later determined to be unfounded, but during the course of the investigation, grandmother stated she used marijuana for her swollen feet and menopause. According to her, she waited until A.H. was asleep and then stepped outside for a few puffs. Grandmother then signed an agreement that, if she felt unable to care for A.H. at any time, she would make arrangements for an “appropriate fingerprinted adult” to assist her in caring for him.

On September 15, the social worker received a call from grandmother that A.H. had been in the sun too long the day before and got a sunburn. Later that same day, the social worker received a call from the day care provider who said A.H. did not look like he had a sunburn, but instead had what looked like a broken blood vessel. An emergency response worker was sent to investigate.

When interviewed, grandmother said A.H. “just woke up with the rash” and she did not know how he got it. She then said A.H. stayed with her “friend” the day before while she went to clean two houses. Grandmother did not have either an address or date of birth for this friend, Billy, but provided a phone number. Grandmother was then told that Billy was not an approved person to provide care for A.H. and that A.H. would be placed in another home. When asked if she would voluntarily drug test, grandmother declined, but claimed she no longer used marijuana.

A.H. was taken to the hospital for evaluation. The marks on his face were found to be petechiae, which could be caused by coughing as A.H. sounded sick, and he was medically cleared. During a subsequent evaluation, A.H., now six months old, was not able to sit up, crawl or roll over. His leg tone was weak, and he did not hold a bottle unless his hands were placed around it.

An investigation of Billy, who was found to live down the street from grandmother, determined that he had a prior substantiated referral for physical abuse and general neglect for being intoxicated and dropping an infant, causing injuries.

When grandmother was again confronted about leaving A.H. with an unapproved caretaker, she said she was aware of Billy’s “past,” but that he would not hurt A.H. as she had seen how he was with him. She said she left A.H. with Billy for three hours.

Billy was interviewed and said he watched A.H. three times. He claimed he “took the blame” on the past abuse allegation so the children would not be removed. He acknowledged past heroin use, but claimed not to have done so for the past five years. He declined to take a voluntary drug test.

The referral was closed with a finding of substantiated general neglect against grandmother. Any finding on physical abuse was inconclusive.

Section 388 and Six-month Review Hearing

At the October 20 hearing, grandmother testified that A.H.’s day care provider called her on September 14 to pick up A.H., who was sick and coughing. Because grandmother was working, she called Billy to pick him up. Grandmother acknowledged that Billy was not “cleared,” but that this was the only time he had “really watched him,” although Billy had picked A.H. up from day care several times. She claimed that, if A.H. was returned to her, she would no longer allow him to be alone with Billy.

When asked if she knew about Billy’s child welfare history, grandmother testified that Billy told her he had let his daughter slip out of his hands while giving her a bath and fractured her skull. Instead of fighting the charges, Billy “told them” to give the baby back to the mother, and “he would do the time.” Grandmother said she believed Billy.

Father’s counsel argued that the Agency failed to file a section 387 petition to remove A.H. from grandmother. He also argued it was in A.H.’s best interests, under section 388, to return A.H. to his grandmother.

Counsel for the Agency countered that section 387 applied only to an ordered placement, not a placement made by the Agency pursuant to a general placement order. The Agency argued against returning A.H. to grandmother’s care.

In ruling on the petition, the juvenile court questioned whether the Agency was required to file a section 387 petition, stating “even if the Agency should have filed a 387, what are we going to do? Place [A.H.] back with [grandmother], then have her go through the torture of having him removed again? I think not. I am not going to make a direct placement order just because of the circumstances.” It then denied the section 388 petition, finding that, while there had been a change in circumstance, it would not be in A.H.’s best interest to be returned to grandmother’s home, noting specifically her “poor judgment” in allowing A.H. to stay with Billy after repeatedly being told not to allow him to stay with a person who had not been fingerprinted. The juvenile court further found the Agency did not abuse its discretion when it removed A.H. from grandmother’s care.

The juvenile court then moved to the six-month review hearing and adopted the proposed findings and orders, terminating services to mother and extending them to father.

DISCUSSION

1. SECTION 388 PETITION

Father contends the juvenile court erred when it failed to order that A.H. be returned to grandmother’s care because he met his burden of showing changed circumstances and best interest. The juvenile court found that removing A.H. from grandmother’s care constituted a change in circumstances under section 388. Neither father nor the Agency challenges this finding. Instead, father contends the juvenile court abused its discretion when it found returning A.H. to placement with grandmother was not in A.H.’s best interest.

Under section 388, a person having an interest in a dependent child may petition to modify a prior order “upon grounds of change of circumstance or new evidence.” (§ 388, subd. (a)(1); see California Rules of Court, rule 5.570(a).) At a hearing on a section 388 petition seeking to change a child’s placement, the moving party must show a change of circumstance or new evidence and that a change in placement is in the child’s best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)

We review the juvenile court’s ruling on a section 388 petition for abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.) Reversal is appropriate only if we find the juvenile court has made an arbitrary, capricious or patently absurd determination. (Ibid.) We do not inquire whether substantial evidence would have supported a different order, nor do we reweigh the evidence and substitute our judgment for that of the lower court. (Ibid.) We ask only whether the court abused its discretion with respect to the order it actually made. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)

The evidence before the juvenile court was that A.H. was placed with grandmother in May and removed four months later when a series of events led to the discovery that mother had allowed Billy, a man who had not been fingerprinted and who, it was later determined, had a child welfare history involving an injury to his infant daughter while he was intoxicated. It was also learned that Billy had a history of substance abuse, including heroin.

Prior to placement of A.H. in grandmother’s home, grandmother entered into a Safety Plan, which she signed, which specifically stated she understood that anyone having frequent contact with A.H. would need to be cleared by the Agency. The Safety Plan also informed grandmother that, if she broke any of the rules, A.H. could be removed immediately. During a referral and investigation of grandmother’s home in July, two months after A.H. was placed, grandmother signed another agreement which stated that, if she could not care for the minor, she would make arrangements for an “appropriate fingerprinted adult” to do so.

At the section 388 petition hearing, grandmother admitted that she knew of Billy’s child welfare history, at least his version of it. She also admitted that she knew the Agency did not want her leaving A.H. with Billy. And despite knowing this, she still used Billy on multiple occasions to pick A.H. up from daycare and care for him.

We find no abuse of discretion on the part of the juvenile court when it declined to return A.H. to grandmother’s care.

2. SECTION 387

Father also contends the juvenile court abused its discretion when it failed to rule on whether the Agency should have filed a section 387 petition when it removed A.H. from her care. At the contested section 388 hearing, the juvenile court did not specifically rule on whether the Agency was required to file a section 387 petition when it removed the minor from grandmother. Respondent submits it was not necessary for the juvenile court to rule on this question as is was not placed before the juvenile court by the section 388 petition. Respondent argues in the alternative that the juvenile court’s ruling, that the Agency did not abuse its discretion when it removed A.H. from grandmother’s care, may be interpreted as an implied holding that no section 387 petition was required, as such a ruling is only applicable to a determination regarding the appropriateness of the removal. We find no abuse of discretion on the part of the juvenile court.

Section 387 provides, in pertinent part:

“(a) an order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home … shall be made only after the noticed hearing upon a supplemental petition. [¶] (b) The supplemental petition … shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective .…” (§ 387, subds. (a), (b).)

It is well settled that section 387 applies only to an “ordered placement,” i.e., one ordered by the juvenile court. (In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1489 (Cynthia C.) It does not apply to a placement made by the social services agency pursuant to a general placement order which vests the agency with custody of the child and with the discretion to select a suitable placement. (Id. at pp. 1489-1490.) Pursuant to a general placement order, the agency may change the placement without filing a petition and without further court order. (Ibid.)

Here, the juvenile court did not make an ordered placement with grandmother. Instead, its order, which never changed throughout the proceedings, vested custody with the Agency to select a suitable placement. Therefore, the Agency was authorized to exercise its discretion to reassess the suitability of the environment in which it placed A.H. and, if deemed unsuitable, to move A.H. to an improved situation. (Cynthia C., supra, 58 Cal.App.4th at p. 1490.)

At the section 388 hearing, father argued Cynthia C. was a “horrible” case, which need not be followed as it was from the Fourth, rather than the Fifth, District Court of Appeal. On appeal, father acknowledges the holding of Cynthia C., but asserts that the filing of a supplemental petition pursuant to section 387 when the Agency seeks to place a child in a more restrictive placement, as it did here, is the better practice and provides all parties with notice and the opportunity to be heard. In support of this position, he cites In re Jonique W. (1994) 26 Cal.App.4th 685. This case, however, addressed whether a relative who was also the dependent child’s de facto parent lacked standing to contest a supplemental petition under section 387, not whether a section 387 petition was required to remove the child from the relative. (In re Jonique, supra, at p. 690.)

Although we find section 387 not applicable here, we note that father had the opportunity, through his section 388 petition, to litigate both the propriety of the Agency’s removal of A.H. from grandmother’s care and his request to have him returned to her. We find no abuse of discretion on the part of the juvenile court.

DISPOSITION

The order is affirmed.