Opinion
G054791
08-21-2017
In re R.B., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. M.B., Defendant and Appellant.
Donna P. Chirco, for Defendant and Appellant. Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. DP025614-001, DP025614-002) OPINION Appeal from orders of the Superior Court of Orange County, Gassia Apkarian, Judge. Affirmed. Donna P. Chirco, for Defendant and Appellant. Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
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In this appeal, the paternal grandmother of R.B. contends the juvenile court erred when it denied her petition, brought pursuant to Welfare and Institutions Code, section 388 (all further statutory references are to this code) without a hearing. We affirm the orders of the juvenile court.
I
FACTS
R.B. is almost three years old. R.B.'s 12-year-old half sibling, J.B., was born with symptoms of drug withdrawal and was previously a dependent of the court.
R.B.'s mother, M.G., and father, S.B., each has a lengthy criminal history involving controlled substances. Mother also has a history of domestic violence, which is one of the reasons J.B. had been taken into protective custody three times. Mother and father met at a rehabilitation facility and dated for about two and a half years.
Mother was incarcerated when R.B. was born. R.B. was born at full term and was healthy. At the time, father had been sober for three years and had a stable job. R.B. was placed in the custody of father under the supervision of the Orange County Social Services Agency (SSA).
When R.B. was several weeks old, the social worker received an anonymous voicemail stating father was using heroin. Several weeks later, on December 29, 2014, father missed a drug test. In mid-January 2015, the paternal grandmother, with whom father and R.B. lived, told SSA that father had hit his sister and "was on something" that "was pure white." Father informed SSA he was going to leave the paternal grandmother's home with R.B.
An SSA report dated May 2015, states that father secured a one bedroom residence for himself and R.B. The father told the social worker "life is really great right now." On June 3, 2015, SSA received a report that father tested positive for opiates. On August 10, father again tested positive for opiates, and on August 15, the juvenile court ordered the child removed from the father's home. On September 22, SSA reported mother tested positive for opiates and methamphetamine. Mother also admitted to using intravenous heroin and methamphetamine. The paternal grandmother had drugs and paraphernalia in her home. She transported those items in a car while R.B. was in the car with her. Thereafter, R.B. was placed in a foster home. During a visit with R.B., the paternal grandmother was described as "rude, aggressive and volatile." SSA requested "an expedited Interstate Compact on the Placement of Children [(ICPC)]" assessment of the maternal grandmother who lives in Virginia.
The paternal grandmother, through counsel, moved for placement of R.B. with her, arguing that it was in R.B.'s best interest. Members of the paternal grandmother's family informed SSA that placement with the paternal grandmother was inappropriate because of her dependence on prescription drugs and "she appears to be overbearing on the child." After conducting a hearing, the juvenile court denied the paternal grandmother's motion on March 14, 2016.
On May 12, 2016, SSA reported that it had not been able to make contact with either parent and that the ICPC assessment in Virginia continued. An undated letter states the home study assessment was completed and that SSA recommends the placement of R.B. with the maternal grandmother. On June 14, 2016, the juvenile court granted the maternal grandmother's motion to have R.B. placed with her in Virginia.
On July 9, 2016, R.B. was placed with the maternal grandmother in Virginia. On July 14, SSA filed a request to change the court's order. The request states: "The child was officially placed with the maternal grandmother on July 9, 2016. Since that time, the maternal grandmother has requested that the child be placed back with the previous foster parents . . . . The maternal grandmother feels that it is in the child's 'best interest' to be adopted by the former foster parents."
On March 6, 2017, the paternal grandmother petitioned for the juvenile court to change its order pursuant to section 388. The paternal grandmother again requested the court to place R.B. with her. Her counsel argued that two circumstances had changed since she last requested placement of R.B. with her. First, while conceding there had been family divisiveness, pointing out it had "lessened somewhat." Second, the paternal grandmother was caring for R.B.'s "full sibling" in her home. The court concluded the paternal grandmother did not make "prima facie on the JV180 on the 388 motion," and denied the change of order request without conducting another hearing.
The juvenile court found there was clear and convincing evidence that R.B. would be adopted. Pursuant to section 366.26, the court terminated the parental rights of both mother and father.
II
DISCUSSION
The paternal grandmother contends the juvenile court abused its discretion when it denied her second petition to place R.B. with her. She also contends she was a preferred relative placement "even without a pending 388 petition."
Section 388 allows a parent or "interested person to petition the juvenile court for a hearing to change, modify, or set aside a previous order if the petitioner can establish" (1) "changed circumstances," and (2) "that the proposed order would be in the best interests of the child." (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.) In order to obtain an evidentiary hearing on the petition, the petitioner must make a prima facie showing of both prongs of the test. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
"A 'prima facie' showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited." (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) In order to proceed by way of a full hearing on a section 388 petition, the petitioner must make a prima facie showing of a change of circumstances and that the proposed change of order is in the best interest of the child. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.)
We apply the abuse of discretion standard in our review of the juvenile court's decision to deny the section 388 petition without a hearing. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) "[T]he juvenile court is vested with '"very extensive discretion in determining what will be in the best interests of a child,"' and that determination will not be reversed absent a clear abuse of discretion." (In re K.S. (2016) 244 Cal.App.4th 327, 340.)
In the instant appeal, the paternal grandmother contends the juvenile court abused its discretion in denying her request for a change of R.B.'s placement order without a hearing. She argues she met her prima facie burden for both a change in circumstance and in showing the best interests of R.B. She states: "Here, paternal grandmother sought to change the order denying her relative placement and request [R.B.] be placed in her care. Paternal grandmother still lived in the home [R.B.] was previously placed. [R.B.'s] stuff was still in the home. [R.B.'s] full sibling [A.B.], six months old, also lived with paternal grandmother for the purposes of adoption. Paternal grandmother was financially stable. Paternal grandmother consistently visited [R.B.] weekly, for two hours. Grandmother and [R.B.] also talked on the phone once or twice per week. Paternal grandmother would bring [A.B.] to visits with [R.B.] and they grew attached to each other. Paternal grandmother reported both mother and father were supportive of her having [R.B.] in her care. The divisiveness in the family had lessened. Paternal grandmother was a loving, caring, nurturing, competent family member who wanted what was best for [R.B.] and shared a bond with her. Paternal grandmother was willing to provide permanency for [R.B.] Paternal grandmother could maintain [R.B.'s] connection to her lineage and her significant family relationships."
Evidence before the juvenile court included father's report that he took R.B. and moved out of the paternal grandmother's home due to people "yelling[,] screaming and grabbing each other." Mother reported she feels the environment that R.B. had in the paternal grandmother's home "was not healthy" and that there was "yelling, fighting and arguing" there. The maternal grandmother also reported "yelling and screaming" in the paternal grandmother's home. Other close relatives expressed being "upset" with the social worker because R.B. had been placed with the paternal grandmother. Their concern was based on how the paternal grandmother brought up her own children and her "erratic behavior." The paternal grandmother had drugs and paraphernalia in her home. She transported those items in a car while R.B. was in the car with her. Family members also reported the paternal grandmother was dependent on prescription drugs. During a visit with R.B., the paternal grandmother was described as "rude, aggressive and volatile." The social worker wrote in a report: "There is no doubt in the undersigned's mind that the paternal grandmother loves her grandchild very much, but it's concerning that her closest relatives do not think she is an appropriate placement option."
Given the circumstances in this record, we cannot conclude the juvenile court abused its discretion when the proffered changed circumstances included a representation that family divisiveness had "lessened somewhat." Nor can we conclude the court erred in not placing R.B. with the paternal grandmother.
With regard to the paternal grandmother's argument the juvenile court erred in not giving her preferential consideration pursuant to section 361.3, the paternal grandmother has not shown in her brief that she ever raised this issue in the court down below. "'"'"'Generally, issues raised for the first time on appeal which were not litigated in the trial court are [forfeited]. [Citations.]'"' [Citation.]" [Citation.]'" (Gray 1 CPB, LLC v. SCC Acquisitions, Inc. (2015) 233 Cal.App.4th 882.) However, given the circumstances in this record, it is clear the court did not consider placement of R.B. in the paternal grandmother's home to be in R.B.'s best interests. Thus, even if the court should have ordered an assessment of the paternal grandmother and conducted an inquiry pursuant to section 361.3, any resulting error was harmless. (In re Joseph T. (2008) 163 Cal.App. 4th 787, 789, 794-795.)
III
DISPOSITION
The orders of the juvenile court are affirmed.
MOORE, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.