Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. NJ13402, Harry M. Elias, Judge.
AARON, J.
Baby Boy L. appeals following a contested special hearing to address his placement. Baby Boy L. asserts that the juvenile court abused its discretion by ordering that he be placed in foster care rather than with his maternal grandparents, pursuant to Welfare and Institutions Code section 361.3, which requires that the court give preferential consideration to relatives who request that dependent children be placed with them. We reverse the court's order.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2006, the San Diego County Health and Human Services Agency (Agency) filed a dependency petition on behalf of newborn Baby Boy L. under section 300, subdivisions (b) and (g). The petition alleged that Elizabeth L., Baby Boy L.'s mother, was unwilling and unable to care for Baby Boy L. and that she wanted to put him up for adoption. Elizabeth did not know who the father of the child was and claimed that the child was conceived as the result of a sexual assault. Baby Boy L. became a dependent of the juvenile court and was removed from parental custody. The court found there were no relatives available to care for the child and placed him in out-of-home care.
During the next six months, Elizabeth did not visit with Baby Boy L. or participate in services. She remained firm in her desire that he be adopted. Baby Boy L. had lived in the same foster home since his birth, where he received excellent care. His caregivers remained committed to adopting him. However, the Agency reported that during this phase of reunification, it discovered that Baby Boy L. had maternal grandparents who lived in Veracruz, Mexico, and that his grandparents wanted to adopt him. The Agency recommended that Elizabeth's parental rights be terminated and that the court authorize placement with the maternal grandparents.
In August 2006, Desarrollo Integral de la Familiar (DIF), the Mexican social services agency, generated a home study of the grandparents' home, pursuant to a request from the Agency. The results of the study were very positive. The evaluation indicated that the grandparents' home was a suitable one that would provide "pleasant hygienic conditions" for Baby Boy L. According to the home study, the grandparents live in a rural region of Veracruz and own a two-bedroom home that is well furnished and has all basic appliances. The home receives public services and utilities, including lighting, police services and mail services. Schools are accessible to the family. The maternal grandfather is employed as an Emergency Medical Technician (EMT) specialist at a local hospital, receives a steady monthly income, and has health insurance. Based on the grandparent's interest in taking custody of the minor and the positive home study, the Agency recommended that Baby Boy L.'s placement be modified to allow him to live with his grandparents.
The Agency learned of the maternal grandparents' whereabouts and received a DIF report in August 2006, during the reunification phase of the dependency proceedings. The record is unclear as to why the court did not consider placement of Baby Boy L. with his relatives before it terminated Elizabeth's reunification services.
The grandparents also care for Elizabeth's two younger daughters, who are ages two and five years. The grandparents want their grandson to be a part of his biological family. The grandparents maintain that they will provide Baby Boy L. with love, warmth, protection and an education. Baby Boy L. would have the opportunity to be raised in the same home as his two half-sisters if he were placed with the grandparents.
At the six-month review hearing on December 12, 2006, the Agency and counsel for Baby Boy L. requested that the court authorize the transfer of the child to his grandparents. The court acknowledged that the grandparents had come forward in a timely manner, but expressed its belief that the grandparents had made little effort to contact Baby Boy L. The court granted the caregivers' request for de facto parent status and appointed counsel to represent them. The court terminated reunification services and scheduled a section 366.26 selection and implementation hearing. Based on the request of minor's counsel and the Agency, the court also scheduled a contested special hearing to address the Agency's request to change Baby Boy L.'s placement.
At the contested special hearing, the Agency presented testimony and arguments in favor of placing Baby Boy L. with his grandparents. Social worker Marti Lee testified that allowing Baby Boy L. to live with his grandparents and siblings would provide him with the opportunity to create positive familial relationships. Social workers in Mexico would monitor Baby Boy L.'s case by visiting the grandparents' home. Ms. Lee believed that Baby Boy L. would receive better educational opportunities and have access to better health care if he were to remain in the United States. However, she did not have any information that would lead her to believe that the grandparents would not provide Baby Boy L. with an education.
Ms. Lee testified that Baby Boy L. had lived with his current caregivers since birth, and that he appeared to have bonded with them. Although Baby Boy L. would experience some emotional harm if removed from his caregivers, Ms. Lee did not believe the transition to his grandparents' custody would have any long-term negative impact on his emotional well-being. Concerning the grandparents' lack of visits with Baby Boy L., Ms. Lee reported that the grandparents did not have passports and did not have adequate financial resources to enable them to travel to the United States. The grandparents did call her to ask about Baby Boy L., and consistently expressed their desire to provide a permanent home for him.
Social worker Marianne Valdivia also recommended that Baby Boy L. be placed with his grandparents in Mexico. She had experience working with social services in Mexico, and believed that DIF would continue to check on the welfare of Baby Boy L. Ms. Valdivia further testified that Elizabeth did not want Baby Boy L. to be placed with his grandparents because she wanted him to remain in the United States, where, Elisabeth believed, he would be afforded better opportunities. Ms. Valdivia explained that if Baby Boy L. were placed in his grandparents' care, he would receive the benefit of living with his grandparents and half-sisters, and would also be exposed to extended family members. He would gain a sense of identity and would be able to connect with his biological family in ways he could not if he were to remain in his current placement. Ms. Valdivia did not believe that Baby Boy L. would have the opportunity to get to know his relatives if he were to remain with his caregivers.
After considering the testimony and the Agency's reports and reviewing the factors set forth in section 361.3, the court concluded that it would not be in Baby Boy L.'s best interests to be placed with his grandparents in Mexico. The court based its ruling on its determination that Baby Boy L. would have better educational opportunities in the United States than he would in Mexico. In reaching this conclusion, the court expressed its belief that basic education in Mexico ends at the equivalent of the eighth grade. The court also took into consideration Elizabeth's desire that Baby Boy L. remain in the United States.
DISCUSSION
The Juvenile Court Abused Its Discretion By Refusing to Place Baby Boy L. With His Maternal Grandparents
In the sixth-month review report and at the six-month review hearing, the Agency recommended that Baby Boy L. be placed with his grandparents. The trial court scheduled a contested special hearing to address Baby Boy L.'s placement, and denied the request at the conclusion of the hearing. Baby Boy L. contends that the juvenile court abused its discretion by denying Agency's request to change his placement from the caregivers to the maternal grandparents in Mexico. He asserts that it was in his best interests to be placed with his grandparents, where he would be raised with his two half-siblings, and would be near other relatives, thus enabling him to maintain familial connections. He further claims that the court did not properly consider the Legislature's express preference for placing dependent children with relatives, in determining which placement would be in his best interests.
On appeal, the Agency changes its position, and presents theories and arguments contrary to those it presented at trial.
Generally, the proper method by which to request a change in an order is to file a section 388 order. However, when the juvenile court removes a child from his or her parents, the court must hold periodic review hearings at six months, twelve months and eighteen months. (§ 366.21.) At these review hearings, the court has the authority to modify previous orders. (§ 366.21, subds. (e), (f), (g)(1), (g)(3), (h).) These statutes presumably give sufficient notice that previous orders are subject to change at a review hearing. (In re Natasha A. (1996) 42 Cal.App.4th 28, 35.) Here, the trial court addressed the request for change in placement at the six-month hearing by scheduling a contested special hearing. All parties had notice of the special hearing and no due process rights were compromised.
A. Requests for Changes of Placement
Placement and visitation orders are the prerogative of the juvenile court, which must always consider the best interests of the child when making them. (In re John W. (1996) 41 Cal.App.4th 961, 973-974; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) In exercising its discretion, the court is required to make a " ' "reasoned judgment" ' " and comply with legal principles and policies appropriate to a particular matter. (In re Lee G. (1991) 1 Cal.App.4th 17, 26-27, quoting Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 300.) "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.) A court hearing a motion after the termination of reunification services must recognize that " 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M., supra, 7 Cal.4th at p. 317, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
We review a juvenile court's custody placement order under the abuse of discretion standard of review. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 862-863; In re Sarah S. (1996) 43 Cal.App.4th 274, 286.) This standard entails deference to the trial court. However, finding an abuse of discretion only in those circumstances in which the judge acted arbitrarily or capriciously would be misleading because "it implies that in every case in which a trial court is reversed for an abuse of discretion its action was utterly irrational." (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1289, 1297.) While the abuse of discretion standard gives the trial court significant latitude, "[the scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of the action. . . .' " (City of Sacramento, supra, 207 Cal.App.3d at p. 1297.) "Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion." (Ibid.)
B. The Evidence Does Not Support The Trial Court's Findings
While the overriding goal of the juvenile dependency system is to protect children, the Legislature has made it clear that the juvenile court is to attempt to preserve and strengthen children's family ties whenever possible. (§ 202, subd. (a).) This goal is articulated throughout the Welfare and Institutions Code, which stresses the importance of reunification of a child with the custodial parent(s) (§ 361.5), provides for placement of a minor with the noncustodial parent (§ 361.2) where placement with the custodial parent is not possible, and expresses a preference for placement of a child in the home of a relative (§ 361.3) where the child cannot be placed with a parent. Further, a minor has a fundamental liberty interest in maintaining his or her biological relationships. (See Moore v. East Cleveland (1977) 431 U.S. 494, 504-505.) Although reunification services may be terminated, family preservation remains a primary objective " 'whenever possible.' " (In re Matthew C. (1993) 6 Cal.4th 386, 400.)
Baby Boy L. contends that the court erred in failing to place him with his grandparents, since section 361.3 provides for preferential consideration of relatives who seek placement of a dependent child. However, that section requires that preferential treatment be given to relatives only at the time the child is initially removed from parental custody (§ 361.3, subd. (a)), or when there is a need for a new placement. (§ 361.3, subd. (d); see also Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032). Here, there was no need to change Baby Boy L.'s placement. Rather, the Agency requested a change in Baby Boy L.'s placement from the caregivers to the grandparents following its receipt of the positive evaluation of the grandparents' home, which the Agency initiated. Section 361.3 thus does not govern the determination of the appropriate placement for Baby Boy L. The only issue in this case is whether the change of placement would be in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
We conclude that the court abused its discretion in denying the Agency's request that Baby Boy L. be placed with his grandparents because the evidence in the record does not support the trial court's conclusion. On the contrary, the Agency rebutted the presumption that continued foster care was in Baby Boy L.'s best interests by presenting new evidence in the form of a positive DIF report pertaining to the grandparents' home, testimony demonstrating that Baby Boy L. would not suffer harm if his placement were changed, and testimony that Baby Boy L. would be able to form and maintain relationship with members of his biological family if placed with his grandparents. This evidence supports a determination that a change in placement would be in Baby Boy L.'s best interests. (See In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Baby Boy L. was about eight months old at the time of the placement hearing. Elizabeth had wanted to put him up for adoption from the time he was born. Because Elizabeth did not identify any relatives at the initial disposition hearing, Baby Boy L. was placed in foster care. His caregivers have provided him with excellent care and want to adopt him. However, once the Agency located the grandparents—two months after the disposition hearing, and secured a positive evaluation of their home, the Agency requested that the court set a special hearing to address Baby Boy L.'s placement. At that hearing, Agency recommended that Baby Boy L. be placed with the grandparents.
At this stage of the proceedings, the child's need for continuity and stability plays an important role. While Baby Boy L. lived with his caregivers throughout the dependency, there was no evidence showing that he would suffer any lasting harm if he were removed from his current placement. In fact, social worker Lee testified that Baby Boy L. would not suffer long lasting psychological harm if he were removed from the custody of the caregivers and placed with his maternal grandparents. According to Ms. Lee, at his young age, he would not remember the transition later in life. As for his educational needs, Ms. Lee opined that Baby Boy L. was likely to receive a better education if he were to remain in the United States. However, there was no evidence presented to support this statement, and Ms. Lee agreed that there was no indication that the grandparents would be unable or unwilling to educate Baby Boy L. in Mexico.
The DIF report indicated that the grandparents were capable of caring for a young child and that they could provide Baby Boy L. with a safe home with appropriate living conditions. The grandparents had adequate income to support Baby Boy L., and had health insurance that would cover him. DIF evaluated the grandparents' home as pleasant, hygienic and suitable for the "optimal development" of a child. Both social workers Lee and Valdivia recommended that Baby Boy L. be placed with his grandparents. The grandparents were willing and able to take him into their home. If he were placed with his grandparents, Baby Boy L. would have the opportunity to grow up in the same home as his two half-siblings.
The grandparents consistently expressed their desire to provide a safe, permanent home for Baby Boy L. and called the Agency on several occasions to inquire about his well-being. Their failure to visit him was not because of indifference on their part, but rather, was attributable to the fact that they did not have passports, and did not have the financial resources to travel from Veracruz to the United States.
In articulating its findings, the juvenile court examined the factors under section 361.3. The court cited Elizabeth's preference that Baby Boy L. remain in the United States in support of its determination that it would be in Baby Boy L.'s best interests to remain with his caregivers. The court apparently addressed Elizabeth's preference for Baby Boy L.'s placement pursuant to section 361.3, subd. (a)(2), which provides that, in determining whether placement with a relative is appropriate, one of the factors the court should consider is "[t]he wishes of the parent . . . if appropriate." (§ 361.3, subd. (a)(2), italics added.) As we have stated, this section does not govern the placement issue in this case. However, even if it did, it would not be appropriate for the court to have considered Elizabeth's wishes, since she wanted nothing to do with Baby Boy L. from the time he was born, and never had any relationship with him. The court also expressed concern that the grandparents had made attempts to contact the caregivers, and noted that the grandparents were upset with the caregivers because the caregivers wanted to adopt Baby Boy L. However, the grandparents' personal feelings about the caregivers do not indicate that placing Baby Boy L. in the grandparents' care would be inappropriate. Once the grandparents learned about Baby Boy L., they were steadfast in their desire to have the child live with them, and repeatedly contacted the Agency to inquire about his well being. Finally, there was no evidence presented that supports the court's finding that Baby Boy L. would receive a "more beneficial" education in the United States than in Mexico.
In determining whether it is in a dependent child's best interests to change placement, the court should exercise caution when comparing advantages and disadvantages of one country or culture to another, particularly where these comparisons are not supported by admissible evidence presented in court.
In view of the lack of evidence to support the trial court's findings, we conclude that the court abused its discretion by basing its placement decision on factual findings that are not supported by evidence in the record, and in failing to consider the Legislature's general preference to maintain familial relationships, or the DIF report, in determining the best interests of Baby Boy L.
DISPOSITION
The placement order in Baby Boy L.'s case is reversed. The juvenile court shall issue a new order placing Baby Boy L. with his grandparents, absent new information showing that the placement would not be in the minor's best interests.
WE CONCUR: HALLER, Acting P. J. McINTYRE, J.