Opinion
E067522
09-18-2017
In re A.A., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.D., Defendant and Appellant; T.S., Appellant.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant. Liana Serobian, under appointment by the Court of Appeal, for Appellant T.S. Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. J262616) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant. Liana Serobian, under appointment by the Court of Appeal, for Appellant T.S. Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
Prior to terminating A.A.'s (Minor) parents' parental rights, the juvenile court denied appellant, T.S.'s, the paternal aunt (PA), request for placement of Minor. On appeal, PA contends the juvenile court abused its discretion by denying her an evidentiary hearing on her Welfare and Institutions Code section 388 petition requesting the court to reconsider its order denying her placement of Minor. We affirm.
Mother also appealed; however, Mother filed her appeal untimely. Mother filed a petition for writ of habeas corpus seeking constructive filing of her notice of appeal, which we denied. We dismissed Mother's appeal by separate order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 18, 2015, personnel from plaintiff and respondent, San Bernardino County Children and Family Services (the Department), took Minor (born in August 2014) into protective custody. At the detention hearing on October 21, 2015, Father's counsel requested relative placement. The court observed: "There are no relatives able and willing to temporarily care for [Minor]. The Court notes that [Father's attorney] has apparently relatives that she is going to give contact information to the attorney for the Department and then they can arrange to assess." The court detained Minor.
Father is not a party to this appeal.
In the jurisdictional and dispositional report filed on November 13, 2015, the social worker noted: "The paternal aunt, [J.S.R.], has requested consideration [for] placement. She lives in San Jacinto, CA. Her name has been submitted to RAU [relative assessment unit] for assessment and the results of this assessment are pending." In a December 18, 2015, information for the court, the social worker noted: "The relative assessment(s) for paternal cousin, [J.S.R.], is still pending . . . ."
J.S.R. is not the appealing PA.
On January 25, 2016, after a contested jurisdictional and dispositional hearing, the juvenile court removed Minor from the parents' custody and denied them reunification services pursuant to section 361.5, subdivision (b)(10), (11), and (13). The court set the section 366.26 hearing for May 24, 2016.
In the May 19, 2016, section 366.26 report, the social worker requested a 180-day continuance for a permanent plan of adoption to be implemented. The social worker deemed Minor appropriate for adoption, but had yet to find an adoptive placement for her. At the hearing on May 24, 2016, the Department's attorney noted: "Apparently, a friend of the family, a [S.M.], was submitted as a possibility that was submitted to RAU. [¶] The RAU worker's been out to that home. So it appears that is being assessed." Mother's counsel observed: "And my client's position may change if [S.M.] is, in fact, assessed and approved and the child is placed with her." The court continued the matter for 120 days.
It is unclear from the record whether the relative assessment for J.S.R. was ever completed and, if so, what was the result of that assessment.
On July 12, 2016, Department personnel submitted S.M.'s assessment. S.M. admitted she was not a relative. She had failed to follow through with completing the paperwork. Mother reported that S.M. was no longer able to provide for Minor. The social worker recommended S.M. be ruled out as Minor's placement. The court so ordered.
At a hearing on August 18, 2016, the juvenile court was informed Minor had been placed in a prospective adoptive home on August 12, 2016; she was adjusting well. The court formally ordered placement with the prospective adoptive parents (PAPs) on September 12, 2016.
In a September 21, 2016, information for the court, the social worker informed the court that Minor had adjusted well to the placement and was very attached to the PAPs. She called them "mommy" and "daddy." A relative assessment had been submitted by the PA on July 12, 2016. The social worker noted: "To this date the undersigned has not heard anything from R[AU] regarding the paternal aunt. When the unders[ig]ned spoke to [the PA] on [July 12, 2016,] the undersigned asked her why she was coming forward now and didn't come forward when the child came to our system." The PA said the parents did not want her to come forward because they wanted Minor to reside locally. The PA had not seen Minor for two years. The social worker recommended that the court continue the section 366.26 hearing for another 90 days in order to stabilize Minor in the PAPs' home.
At a hearing that same day, Father's attorney requested that the Department complete the relative assessment of the PA, noting that Minor had been in the PAPs' home for less than a month. Mother joined Father's request. The court continued the matter for 90 days and asked that the relative assessment of the PA be completed; however, the court observed: "Actually, at a [section] [366].26 hearing, there's not necessarily a relative preference anymore."
Minor had actually been in the PAPs' home for slightly more than a month.
In a nonappearance review hearing on October 19, 2016, the social worker noted that Minor was very attached to the PAPs and thriving in their home. The social worker did not believe that it was in the best interest of Minor to disrupt her placement with the PAPs to be placed with a relative with whom she did not have a relationship. The social worker opined it would be detrimental to Minor to remove her from the PAPs and place her with the PA. On October 27, 2016, the court ordered Minor not be placed with the PA.
In the section 366.26 report filed on December 6, 2016, the social worker reported that Minor and the PAPs had developed a mutual bond; the PAPs were committed to raising her to adulthood. On December 14, 2016, the PA filed a section 388 petition requesting the court to review its placement decision and place Minor in the PA's custody. The PA reported she lived in Fresno, but that even though she resided in another county, she was committed to caring and providing permanence for the Minor. The PA contended that Minor knew her, had visited her home, and that they shared a close bond. She additionally maintained that a relative assessment had approved her home. On December 16, 2016, the court summarily denied the PA's section 388 petition, noting it did not state new evidence or a change of circumstances and that the proposed change did not promote the best interest of Minor.
At the section 366.26 hearing on December 16, 2016, Mother's counsel objected to termination of parental rights and reiterated the request that Minor be placed with the PA. Mother's counsel noted: "It's our understanding [the PA] was approved for placement in August and is ready, willing, and able to take the child today." The court terminated the parents' parental rights and ordered adoption as the permanent plan.
II. DISCUSSION
The PA contends the juvenile court abused its discretion by denying her section 388 petition without holding an evidentiary hearing. We disagree.
"To prevail on a section 388 petition, the moving party must establish that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. [Citation.]" (In re J.T. (2014) 228 Cal.App.4th 953, 965.) "Under section 388, a party 'need only make a prima facie showing to trigger the right to proceed by way of a full hearing.' [Citation.] The prima facie showing 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.] In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.] The petition must be liberally construed in favor of its sufficiency. [Citations.]" (In re J.P. (2014) 229 Cal.App.4th 108, 127.)
"We review a summary denial of a hearing on a modification petition for abuse of discretion. [Citation.] Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. [Citation.]" (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
"[W]hen a child is adjudged a dependent of the court and removed from the parents' physical custody, 'preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative . . . .' (§ 361.3, subd. (a).) '"Preferential consideration" means that the relative seeking placement shall be the first placement to be considered and investigated.' (§ 361.3, subd. (c)(1).) The statute does 'not supply an evidentiary presumption that placement with a relative is in the child's best interests' but it does require the social services agency and juvenile court to determine whether such a placement is appropriate, taking into account multiple factors including the best interest of the child, the parents' wishes, and the fitness of the relative. [Citations.] 'The correct application of the relative placement preference places the relative "at the head of the line when the court is determining which placement is in the child's best interests." [Citation.]' [Citation.]" (In re R.T. (2015) 232 Cal.App.4th 1284, 1295-1296 (R.T.), fn. omitted [reversing the denial of the relatives' § 388 motion seeking to modify the court's dispositional order placing the minor with a nonfamily member].)
The court must apply the preference regardless of whether a change in placement is required "where the relatives invoked the preference before the dispositional hearing, the agency and court failed to apply it at disposition, and the error was timely raised by a section 388 motion. Under these circumstances, the court should . . . direct[] the agency to evaluate the relatives for placement under the relevant standards (§ 361.3, subd. (a)(1)-(8)) and, upon receipt of the evaluation and the agency's placement recommendation, exercise[] its independent judgment to consider if relative placement [is] appropriate. [Citation.]" (R.T., supra, 232 Cal.App.4th at p. 1301.)
Here, the court acted within its discretion in denying the PA's section 388 hearing without an evidentiary hearing because the PA failed to make a prima facie showing of changed circumstances or that placement of Minor with her would be in Minor's best interest. First, the PA did not file a request for relative placement until long after, rather than prior to, the dispositional hearing. The dispositional hearing took place on January 25, 2016. The PA did not submit the request for relative placement until July 12, 2016, nearly six months after the dispositional hearing. Indeed, the PA did not submit her request until nearly two months after the date originally scheduled for the section 366.26 hearing.
Second, the social worker took into account the appropriate criteria when determining that it would not be in the best interest of Minor to be placed with the PA. The PA lived in Fresno; she said she did not come forward earlier because the parents wanted Minor placed locally. The PA had not seen Minor in two years.
In her section 388 petition, the PA alleged that Minor had visited her at her home, but did not aver when this occurred. The PA also asserted in a "declaration," not signed under penalty of perjury, that she shared a close bond with Minor. However, a single visit two years earlier by Minor, who was barely over two years old, would not have conferred a sufficient bond to suggest that it was in Minor's best interest to remove her from the PAPs.
At oral argument, the PA's counsel asserted that our assertion in the tentative opinion that the declaration was not signed under penalty of perjury was incorrect; she directed our attention to the verification of the petition at page 280 of the clerk's transcript. However, the verification on page 280 is preprinted form language reading: "I declare under penalty of perjury under the laws of the State of California that the information in this form is true and correct to the best of my knowledge." (Italics added.) The declaration containing the PA's assertion she shared a close bond with Minor is not contained within the form of the petition; rather, it is attached as a separate, supporting document; it was not executed under penalty of perjury.
Father's counsel at the hearing on September 21, 2016, observed "just because the paternal aunt has not had a relationship with the child for about two years, does not mean that [a relative placement] does not take priority over the foster caregiver."
At the time the juvenile court denied the PA's section 388 petition, Minor had been living with the PAPs for nearly four months. Minor was well adjusted to the placement; she was very attached to the PAPs; she called them "mommy" and "daddy." The PAPs were committed to raising Minor to adulthood. The social worker believed it was in the best interest of Minor to remain with the PAPs.
The PA exposits R.T., supra, 232 Cal.App.4th 1284 and In re Isabella G. (2016) 246 Cal.App.4th 708 (Isabella G.) for the proposition that the juvenile court improperly gave the PAPs preference over the PA. We find R.T and Isabella G. distinguishable. In both those cases, the relatives requested placement prior to the dispositional hearing. (R.T., supra, at p. 1301; Isabella G., supra, at pp. 713, fn. 4, 722.) In R.T., the relatives requested placement shortly after the detention hearing. (R.T., supra, at p. 1293.) One of the relatives testified the department actively discouraged her from requesting placement. (Ibid.) In Isabella G., the relatives repeatedly requested placement beginning prior to the detention hearing. (Isabella G., supra, at p. 722.) The department did not conduct a relative assessment until after the relatives had filed a section 388 petition. (Isabella G., supra, at p. 723.)
Both cases held that when a relative requests placement prior to the dispositional hearing, the court must ensure an assessment is made upon the proper criteria. (R.T., supra, 232 Cal.App.4th at p. 1301; Isabella G., supra, 246 Cal.App.4th at pp. 712, 722, fn. 11.) Here, the PA did not request placement until long after the dispositional hearing. The Department had conducted an assessment of the PA prior to the filing of the section 388 petition. Both the Department and the juvenile court considered the proper criteria when determining that placement with the PA was not appropriate, foremost, that it was not in Minor's best interest to remove her from the PAPs' home and place her with someone she had not seen in over two years. The juvenile court acted within its discretion in summarily denying the PA's section 388 petition.
The only "evidence" in the record that a relative assessment of the PA had been conducted and approved consists of the following: (1) mother's counsel's statement at the section 366.26 hearing that, "It's our understanding she was approved for placement in August . . . ."; and (2) the PA's statement in her section 388 petition that the Department "came out to my home, I did the livescan, my home was APPROVED." However, at a hearing on September 21, 2016, father's counsel requested that the Department complete the relative assessment of the PA which father's counsel said was still pending. This would suggest the assessment had not been completed prior to Minor's placement with the PAPs. Ultimately, we cannot simply speculate based on the insufficient record presented here that the PA complied with all the requirements of obtaining an approved relative assessment prior to placement of Minor with the PAPs. (Bui v. Nguyen (2014) 230 Cal.App.4th 1357, 1376 ["It is the appellant's burden to produce a record that demonstrates claimed error; failure to present such a record mandates that the claimed error be resolved against appellant."].)
In her reply brief, the PA exposits four additional cases in support of her argument: Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, In re Antonio G. (2007) 159 Cal.App.4th 369, In re N.V. (2010) 189 Cal.App.4th 25, and In re Esperanza C. (2008) 165 Cal.App.4th 1042. We find these cases distinguishable from the instant case.
In Cesar V. the maternal grandmother requested placement immediately upon termination of the father's reunification services after a change in the minors' placement was necessitated. (Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1027.) The court held the statutory preference for relative placement applied after reunification services had been terminated when the child must be moved after disposition. (Id. at p. 1032.)
In In re Antonio G., the minors were placed with the maternal grandmother (MGM) upon detention. (In re Antonio G., supra, 159 Cal.App.4th at p. 372.) The department later removed the minors from the MGM when it was found she was allowing them unsupervised visits, including overnight stays, with the mother; the minors were placed with a nonrelative caretaker. (Ibid.) After the court terminated mother's reunification services, a new placement was necessitated as the minors' caretaker was no longer willing to fulfill that role. (Id. at p. 373.) The minors, who had lived together their entire lives, were placed in separate homes. (Id. at p. 378.) The MGM requested placement which the department denied without conducting an assessment because the minors had been removed from her previously; the MGM filed a section 388 petition again seeking placement of the minors with her. (In re Antonio G., supra, at p. 373.) The court denied the petition. (Id. at p. 376.) On appeal, the court reversed, holding that the relative placement preference required that the department at least conduct an assessment of the MGM regardless of the fact that the minors had been removed from her care previously. (Id. at pp. 377-379.)
In In re N.V., the MGM requested placement of the minors at the detention hearing. (In re N.V., supra, 189 Cal.App.4th at p. 28.) The department conducted a relative assessment of the MGM, in which they declined to approve placement of the minors in her home. (Ibid.) After the MGM moved, she initiated an administrative grievance proceeding regarding the department's disapproval of placement; as part of that process, the department was reassessing the MGM's new home which she had moved into after the initial denial. At the dispositional hearing, the court sustained objections to the MGM's attorney's efforts to cross-examine the social worker about the reasons for the denial of placement, noting that the grievance proceeding was still pending. (Id. at p. 29.)
On appeal from the dispositional order, the MGM contended the juvenile court erred by excluding evidence at the dispositional hearing regarding the department's refusal to grant her placement. (In re N.V., supra, 189 Cal.App.4th at p. 27.) The appellate court noted that the administrative review process was designed to protect the relative's rights (id. at p. 30); moreover, where the department could not say when that process would be completed, such an indefinite postponement would undermine judicial review. Thus, the juvenile court abused its discretion by excluding evidence concerning the department's refusal to place the minors with the MGM; nevertheless, the error did not require reversal because there was no miscarriage of justice since the MGM had moved into a new home which had yet to be physically inspected. (Id. at p. 31.)
In In re Esperanza C., the minor's maternal great uncle (MGU) requested placement of the minor prior to the dispositional hearing. (In re Esperanza C., supra, 165 Cal.App.4th at p. 1050.) The juvenile court removed the minor from the mother's custody and bypassed reunification services. Shortly thereafter, the department denied placement with the MGU, finding he had a nonexemptible disqualifying conviction. (Ibid.) The MGU filed a grievance with the department alleging the conviction was not disqualifying. (Id. at pp. 1050-1051.) The minor then filed a section 388 petition requesting the court review the department's denial of placement with the MGU. The court found that the MGU's conviction was exemptible, but that it did not have jurisdiction to review the department's denial of placement on that basis; thus, the court denied the section 388 petition without holding an evidentiary hearing. (In re Esperanza C., supra, at p. 1051.)
On appeal, the court held that the juvenile court may review the department's denial of a criminal records exemption for abuse of discretion. Thus, it held that the juvenile court erred in denying the minor's section 388 petition. (In re Esperanza C., supra, 165 Cal.App.4th at p. 1060.) The court remanded the matter for a hearing under section 388 in which the juvenile court would determine whether the department had abused its discretion in determining the MGU had been convicted of a nonexemptible offense. (In re Esperanza C., supra, at pp. 1061-1063.)
The instant case is distinguishable from the cases discussed above. Here, Minor had never been placed with the PA. As noted above, the PA waited until after the date originally scheduled for the section 366.26 hearing to request placement. Minor, a single child, had apparently already been placed with the PAPs prior to the PA receiving an approved relative assessment if, in fact, she had ever received an assessment or approval at all. The PA never filed a grievance proceeding. The PA failed to preserve the issue by moving the assessment, if it existed, into evidence. Here, we simply have no competent evidence that the PA complied with the compilation of an assessment or that one was actually approved.
See footnote 9, ante. --------
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. SLOUGH
J.