Filed 11/29/18 In re S.A. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed.

William Hook, under appointment by the Court of Appeal, for Objector and Appellant.

Michelle D. Blakemore, County Counsel, Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.

D.D. is the paternal grandmother (PGM) of S.A., who was age four on the date of the challenged orders. PGM challenges: (1) the juvenile court’s decision at the disposition hearing on March 12, 2018, denying her request to be evaluated for preferential relative placement under Welfare and Institutions Code section 361.3[1]; and (2) the court’s decision on April 9, 2018, to deny without a hearing her section 388 petition on the same subject. As discussed post, we affirm the court’s orders.

Facts and Procedure

Detention—June 2017

On June 20, 2017, social workers responded to the home of paternal family member Ms. U. to investigate a report of sexual abuse. S.A. had told another family member that S.A.’s father (Father) had put his “tail” in her bottom at least four times and that it hurt. S.A. told social workers that Father had touched her on her bottom with his tail one time, and then refused to say anything else. S.A. had been living with Ms. U. and her family since S.A. was about 15 months old, which would be about March 2015. S.A.’s mother (Mother) had not seen or spoken with S.A. since then. S.A. had been having overnight visits with Father on Thursday and Friday nights until he was incarcerated from May 26 to June 17, 2017. Ms. U. had petitioned to become S.A.’s legal guardian, with an upcoming hearing in August 2017. Father had written two letters, in November 2016 and January 2017, asking that Ms. U. become S.A.’s guardian because he was unable to care for her in his home. Father denied the allegations, and stated he no longer wanted S.A. to live with Ms. U., but wanted S.A. to live with him. CFS attempted to make contact with Mother, but was unsuccessful as of the date of the detention report, dated June 23, 2017.

Both parents were present for the detention hearing on June 26, 2017. The juvenile court ordered S.A. detained, granted Mother visits, but held off on considering visits to Father until the jurisdiction hearing. The court authorized CFS to assess Mother for placement of S.A. by approval packet.

Jurisdiction and Disposition—July-November 2018

In the jurisdiction and disposition report prepared July 11, 2017, CFS recommended removing S.A. from both parents and providing them with reunification services. Father had a custody order dated December 18, 2015, from the Los Angeles Superior Court, with visitation to Mother. Ms. U. and her husband, Mr. U., had begun to help Father by having S.A. in their home an increasing amount of time after Father struggled to care for S.A. when he lost his job. Until his recent incarceration, Father had S.A. at his home two nights a week. Ms. and Mr. U. had become bonded to S.A. and wanted to continue to care for her and had initiated guardianship proceedings. They were willing to adopt S.A. if the parents did not reunite with her. S.A. told the social worker that she liked living with Ms. U. and called her “mom.” Father told the social worker that he had not abused S.A. He was concerned that the U. family might have caused S.A. to make up the allegations. Father stated Ms. U. started helping him take care of S.A. in February 2016[2] after he broke his leg and could not work. He stated he went back to work in November 2016 and began spending more time with S.A. and giving Ms. U. $300 a month for S.A. Father was living with his cousin and his cousin’s wife, and they all worked so they could not care for S.A. Father believed Ms. U. was trying to take S.A. away from him. Father got custody of S.A. in December 2015 because Mother was taking drugs and not able to care for her. Mother was doing better now and had another child in her custody. Mother and Father had lived together in PGM’s home when S.A. was a baby. When S.A. was about two months old, Father and Mother got into a physical dispute, and PGM called law enforcement. Father spent a few days in jail and was ordered to take a 52-week domestic violence class.

The jurisdiction and disposition hearing was continued to August 21, 2017, after S.A.’s scheduled appointment with the Children’s Assessment Center (CAC) on July 31.

The assessment at CAC eventually took place on August 18, 2017. S.A.’s description of the abuse was consistent with her earlier accounts, and she added that Father’s actions made her “so mad.” This caused the jurisdiction and disposition hearing to be continued to September 14. That hearing was continued to October 12, pending the results of a medical exam.

The social worker submitted a CFS 6.7 additional information to the court on October 12, 2017. The forensic medical exam could neither confirm nor negate sexual abuse. Father continued to state he had not abused S.A. and was enrolled in a parenting class and counseling. Mother visited with S.A. one time and stated she could tell S.A. was bonded with Ms. U.’s family, and so did not want to pursue custody, have additional visits, or engage in reunifications services. Ms. U. stated S.A. had nightmares after talking about the abuse. CFS recommended no reunification services for Father.

At the continued jurisdiction and disposition hearing on October 12, 2017, Father asked to set the jurisdiction hearing contested, and to have it bifurcated from the disposition hearing. Jurisdiction was set for November 17, and disposition for November 29. Father had not yet had any visits, as they were awaiting the CAC results. The court authorized Father to visit with S.A. in a therapeutic setting.

At the contested jurisdiction hearing on November 17, 2017, the juvenile court heard argument from the parties, found the allegations true, and took jurisdiction over S.A.

The detention hearing was held on November 29, 2017. The court heard testimony from the psychologist who conducted the psychological evaluation of Father. The psychologist testified that if the allegations of sexual abuse were found true, Father would benefit from reunification services. The social worker also testified. The court denied reunification services to Father and granted services to Mother.

On February 24, 2018, police answered a domestic disturbance call to the U. family home and arrested Mr. U. for being under the influence of methamphetamine. In the early days of March, the social worker met and consulted with the U. family, S.A., other family members, and CFS staff to determine the next steps. Notably for this appeal, the social worker called both parents to inquire about family members to assess for placement. Mother stated she had no family because she had grown up in foster care. Father gave the social worker the name of his aunt, but no one else. During a telephone conversation, the aunt told the social worker that she did not believe Father had “fondled” S.A., and that Father would often “pop in” and visit her home whenever he liked. The social worker concluded that the aunt would not be a safe placement for S.A. because she did not believe the abuse took place and would allow Father access to S.A. The social worker spoke with Mother and with Ms. U. about possible placements for S.A. Each stated their opinion that the aunt and Father’s mother, PGM, would allow Father access to S.A. if she were placed with either of them.

On March 7, 2018, CFS detained S.A. from the U. home and placed her in a new concurrent planning home.

On March 9, 2018, CFS filed a section 387 supplemental juvenile dependency petition requesting a more restrictive placement for S.A. In the petition, CFS alleged S.A. was at risk of neglect or physical harm because Mr. U. had been arrested for being under the influence of methamphetamine, and Ms. U. knew or should have known that her husband was using drugs while S.A. was in their care. In the detention report filed on the same date, the social worker asked that the aunt and PGM be ruled out for placement because of concerns they would allow Father access to S.A. Attached to the detention report is a form CFS 309 “Relative: Family Find and ICWA Inquiry” (CFS 309) from PGM, dated March 12, 2018, in which she asked to be considered to have S.A. live in her home. The aunt and Mr. and Ms. U. also each submitted a CFS 309. The minute order for March 12 acknowledged receipt of these forms, although the record transcript does not contain any mention of them.

The detention hearing was held on March 12, 2018. Father was present but Mother was not. Father’s counsel stated he had no comment regarding whether S.A. should be removed from the U. family, but asked “to reserve the issue of relative placement.” The court then stated: “If Dad has anybody to be assessed, I’ll ask that he provide that to the social worker.” All counsel agreed to waive jurisdiction and disposition. The court found that the previous disposition had not been effective in protecting S.A., and ordered S.A. removed from the U. family.

On April 5, 2018, PGM filed Judicial Council Form, form JV-180, request to change court order under section 388. PGM asked the court to change its order of March 12, 2018, placing S.A. in foster care. PGM asked the court to give her preference as a relative caregiver for S.A. pursuant to sections 361.3 or 366.26, subdivision (k). PGM cited as new information the accompanying declaration stating she would fully comply with the court’s orders.[3] PGM stated the change would be better for S.A. because it would provide S.A. with stability and continuity in a familiar environment and preserve her connection to family.

On April 9, 2018, the court denied the JV-180 without a hearing. The court checked the boxes on the form to indicate “the request does not state new evidence or a change of circumstances” and “the proposed change of order . . . does not promote the best interest of the child.”

This appeal followed.

Discussion

1. Relative Preference under Section 361.3

PGM argues the juvenile court denied her due process at the section 387 hearing on March 12, 2018, when it failed to order CFS to assess her home for placement as required by section 361.3. Respondent counters that the court exercised its independent judgment at the hearing when it evaluated the available information about PGM and did not abuse its discretion when it declined to place S.A. with PGM.

Section 361.3, subdivision (a), provides in part: “In any case in which a child is removed from the physical custody of his or her parents . . . preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative, . . .”

“The relative placement preference established by section 361.3 does not constitute ‘a relative placement guarantee.’ ” (In re K.L., (2016) 248 Cal.App.4th 52, 66, fn. 4.) Nor does it supply a presumption that the children will be placed with the relative. (In re Stephanie M. (1994) 7 Cal.4th 295, 320-321.) The court must still determine whether placement with the relative is appropriate, taking into account a host of factors. (Id. at p. 321.) These factors include the following that are most relevant to this case: (1) the best interest of the child; (2) the wishes of the parents, relative, and child; (3) the nature and duration of the relationship between the child and the relative; (4) the relative’s ability to provide a safe, secure, and stable environment; and (5) the relative’s ability to protect the child from their parents. (§ 361.3, subd. (a).)

We review the juvenile court’s determination regarding relative placement for abuse of discretion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067; see In re M.M. (2015) 235 Cal.App.4th 54, 64 [applying the abuse of discretion standard to the juvenile court’s order changing the child’s placement at the § 366.26 hearing].) We will not disturb the court’s determination “ ‘ “unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.” ’ ” (In re Stephanie M., supra, 7 Cal.4th at p. 318.)

Here, the court had before it credible evidence that PGM would not protect S.A. from Father and could therefore not provide her with a home safe from abuse. Both Ms. U. and Mother independently told the social worker that PGM would allow Father to have access to S.A. Ms. U. was related to both Father and PGM and for at least the previous two years had shared with Father the responsibility of caring for S.A. Because of Ms. U.’s relationship and experience with Father, PGM, and S.A., the court was correct to rely on her opinion in determining whether placement with PGM was in S.A.’s best interest. As to the validity of Mother’s opinion of PGM’s ability and willingness to protect S.A. from further abuse by Father, Mother had lived with Father and S.A. in PGM’s home, and so, again, was likely familiar with the family dynamics between Father, PGM, and S.A.

Neither parent wished for S.A. to be placed with PGM. In addition to Mother’s statement that PGM would not be a good placement for S.A., Father himself never put forth PGM, his own Mother, as a possible placement for S.A. This was despite Father responding to the social worker’s inquiry with the request that his aunt be considered for placement, with no mention of PGM. This was also despite the court directing Father at the March 12, 2018 hearing to tell the social worker if he wanted to suggest any relatives for placement.

Finally, the record contains no evidence that PGM had a current relationship with S.A., at all. Although S.A. and her parents lived with PGM for an undetermined amount of time when she was an infant, S.A. was living with Ms. U. by the age of 15 months. The record does not indicate that PGM maintained contact or visited with S.A. during that time. Further, PGM did not come forward during the initial detention proceedings in June 2017 to request visits, and the record contains no indication that she offered her home to S.A. when Father lost his job and turned to their relative, Ms. U.

Given the evidence: (1) from relatives familiar with the paternal family dynamics that PGM would not protect S.A. from Father; (2) that neither parent wished to have S.A. placed with PGM; and (3) that PGM and S.A. did not have a current relationship and had not had one for at least the last half of S.A.’s lifetime, we cannot say the juvenile court abused its discretion when it declined to place S.A. with PGM. In view of these facts and the requirements of section 361.3, subdivision (a), it would have been pointless for the court to order CFS to assess PGM’s home and living situation.

Finally, when a relative placement issue arises under section 361.3, the juvenile court must exercise its independent judgment on the evidence. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033.) “[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, . . .” (In re Stephanie M., supra, 7 Cal.4th at p. 321.) “In any custody determination, a primary consideration in determining the child’s best interests is the goal of assuring stability and continuity.” (Id. at p. 317.) As of the date of the detention hearing on March 12, 2018, S.A. had been in the new concurrent planning home only five days, and so new placement with a qualified family member would not necessarily have interfered significantly with the stability and continuity of S.A.’s living situation. However, had the court placed S.A. with PGM, S.A. faced the very real possibility of having to be moved yet again should PGM, as predicted by Ms. U. and Mother, allow Father to have access to S.A., even in the absence of further abuse.

To conclude, the juvenile court neither abused its discretion nor denied PGM due process when it declined to place S.A. with PGM at the hearing on March 12, 2018.

2. The Petition to Change a Court Order

PGM contends the juvenile court erred by summarily denying her petition to change a court order under section 388.

“ ‘[I]f 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.] [¶] ‘The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.’ ” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)

Here, PGM’s petition does not make a prima facie showing of changed circumstances since the March 12, 2018 detention hearing. The entire basis of PGM’s claim of changed circumstances is her declaration that she would not allow Father to have contact with S.A. if S.A. were placed with her. This is not actually a change of circumstances since March 12, but rather a promise on her part that still needed to be fulfilled. As respondent points out, PGM in her declaration uses the vague word “trauma” to refer to Father having sexually abused S.A., which is not a strong indicator that PGM took the abuse seriously enough to keep her son from having access to his daughter. More to the point, the significant circumstances that had not changed were that neither Father nor Mother wanted S.A. to be placed with PGM; both Mother and Ms. U. advised the social worker, based on their experiences with the paternal family, that they did not think PGM would protect S.A. from Father; and that PGM had not had any relationship with S.A. for the last two to three years of four-year-old S.A.’s life.

For these same reasons, the proposed change would not have been in S.A.’s best interest. An additional factor in this analysis is that S.A. had been placed in a concurrent planning home, and so was in a placement at least as likely as PGM’s home to further S.A.’s need for stability and permanency. This contradicts PGM’s statement in the JV-180 that S.A. “would benefit by removing the prolonged uncertainty of foster care and instead be living in a home that is stable and certain.” PGM’s absence from S.A.’s life since S.A. was 15 months old also contradicts the claim in the JV-180 that being placed with PGM would allow S.A. to “be in a familiar environment.”

For these reasons, we cannot say that the juvenile court abused its discretion when it denied PGM’s JV-180 request without holding a hearing.

Disposition

The juvenile court’s orders are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

FIELDS

J.

RAPHAEL

J.