Opinion
D071899
08-08-2017
In re T.P., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.E., Appellant; ASHLEY J., Defendant and Respondent.
Jacob I. Olson, under appointment by the Court of Appeal, for Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NJ15226A) APPEAL from an order of the Superior Court of San Diego County, Michael Imhoff, Judge. Affirmed. Jacob I. Olson, under appointment by the Court of Appeal, for Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Respondent.
Four-year-old T.P.'s grandmother, T.E. (Grandmother), appeals from an order denying her petition under Welfare and Institutions Code section 388, requesting court-ordered visitation with T.P. Grandmother contends that the court erred by denying her section 388 petition without a hearing because she made a prima facie showing of changed circumstances and that visitation was in T.P.'s best interests. We reject Grandmother's arguments and affirm the juvenile court's order.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In light of the limited nature of Grandmother's appeal, we only briefly summarize the underlying facts of the dependency proceeding.
In July 2016, the juvenile court detained then three-year-old T.P. in protective custody after T.P. suffered serious physical abuse by his stepfather, William J. T.P had become unconscious while in William's care. A doctor examined T.P. and found that he had extensive bruises on his arms, chest, buttocks, thighs and back, elevated liver enzymes, and multiple posterior rib fractures. T.P.'s bruises were at various stages of healing. The doctor concluded that T.P. had been physically abused.
William admitted using physical discipline on T.P. that had resulted in marks and bruises on T.P.'s body. T.P.'s mother, Ashley J., had seen William physically discipline T.P. and had observed marks and bruises on T.P.'s body. William and Ashley were remorseful about their actions and actively participated in parenting services.
T.P.'s biological father, Bradley S., lived in Ohio and wanted to take custody of him and provide him with a stable home. Bradley had not previously been involved in T.P.'s life. Grandmother also lived in Ohio and had a relationship with T.P. Ashley and T.P. had lived with Grandmother for several months when T.P. was a baby. During that time, Grandmother helped care for T.P. Grandmother also cared for T.P. for a period of seven months, between June 2015 and January 2016, while Ashley moved to Oceanside, California.
The juvenile court considered Bradley's request to take T.P. to Ohio pending disposition. The court noted that, as T.P.'s biological father, Bradley was entitled to form a relationship with him. However, forming that relationship was a difficult matter because Bradley lived in another state and T.P. was attached to Ashley. In order to facilitate T.P.'s relationship with Bradley, the court authorized an extended visit for T.P. with Grandmother in Ohio. The court stated, "I think that's where we again exploit grandparents. Grandparents are the tremendous bridge that we rely on. The [child is] familiar with the grandparent. It is something that [the court] think[s] will solidify the approach for [Bradley]. Because if the child is at an optimal level of comfort, then the transition is going to be far less uncertain or traumatic for the child." The court ordered that Bradley would have unsupervised visits with T.P., including overnight visits, during T.P.'s extended visit with Grandmother.
In September 2016, T.P. flew to Ohio with Grandmother and stayed with her for approximately two weeks. During that time, T.P. visited with Bradley, Bradley's wife, and their two-year-old daughter. Bradley reported that the visits went well and that T.P. was adjusting to his new environment. T.P. spent several nights at Bradley's home.
In November 2016, the court granted Bradley's request for T.P. to have an extended visit with him. The court conditioned the extended visit on Grandmother having visits with T.P., including overnight visits, and Ashley having video calls with T.P. twice per week. T.P. spent most of December 2016 at Bradley's home. Bradley reported that T.P. enjoyed connecting with him, his wife, and T.P.'s half sister.
In December 2016, Ashley and Bradley agreed that they would share joint legal custody of T.P. and that Bradley would have sole physical custody of him. Thus, on December 13, 2016, the court removed T.P. from Ashley's physical custody and placed him with Bradley in Ohio. T.P. stated that he was happy to be at his father's house. By the end of December 2016, Bradley reported that T.P. had adjusted well to his new home and had started calling Bradley "dad."
In January 2017, Grandmother filed a section 388 petition seeking to modify the juvenile court's November 2016 order. Grandmother stated that the juvenile court's November 2016 order had granted her unsupervised visits with T.P., but did not specify a minimum number of visits or include the time and place for the visits to occur. Grandmother informed the court that circumstances had changed because since T.P. began living with Bradley in early December 2016, Bradley had canceled visits, responded rudely to her when she attempted to contact him, and no longer initiated contacted with her. Grandmother requested that the juvenile court modify the November order to grant her reasonable visitation with T.P. She alleged that the proposed order would be in T.P.'s best interests because she had a loving relationship with T.P., she had cared for him from June 2015 through January 2016, she lived with Ashley and T.P. between October 2014 and March 2015, she had spoken with T.P. twice per week while he was in foster care, and she had flown from Ohio to California to visit with him.
At a special hearing in January 2017, the juvenile court stated that it had received Grandmother's petition under section 388. Ashley and Bradley objected to Grandmother's petition and asked that the court not order visitation with Grandmother. They raised concerns about Grandmother's living situation, including whether her home was sanitary, and stated that Grandmother was unwilling to give them her address. Bradley expressed concern that Grandmother had been difficult when he tried to arrange visits, but indicated that he was willing to accommodate her if she was respectful, reasonable with her requests, and transparent about her living situation. T.P.'s counsel joined Bradley's arguments and stated that it was in T.P.'s best interests to allow Bradley to make decisions about visits with Grandmother.
At the conclusion of the hearing, the court summarily denied Grandmother's petition under section 388 without prejudice. The court explained that Bradley and Ashley had raised safety concerns about Grandmother's home, which the court believed was an issue within their parental authority. Further, the court noted that Bradley and Ashley had represented that they would promote contact and visits between T.P. and Grandmother. The court found that Bradley and Ashley "ha[d] shown incredible good faith in working through this, balancing the various interests, concentrating on their child's best interests, and they're making representations that they will do the same with the [G]randmother. [¶] So [the court] do[es] not believe at this juncture of the case that the [c]ourt has sufficient grounds to limit parental authority on this record with respect to the parents' position on contact." The juvenile court terminated dependency jurisdiction and entered a custody award providing joint legal custody of T.P. to Ashley and Bradley and sole physical custody to Bradley.
DISCUSSION
Grandmother contends that the juvenile court erred by summarily denying her section 388 modification petition. She contends that she made a prima facie showing sufficient to trigger the right to a full hearing.
A
"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." (In re J.T. (2014) 228 Cal.App.4th 953, 965 (J.T.).) "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." (In re J.P. (2014) 229 Cal.App.4th 108, 127.) "Section 388 thus gives the court two choices: (1) summarily deny the petition or (2) hold a hearing." (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.)
"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." (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
B
Grandmother's petition alleged that after T.P. started living with Bradley in December 2016, Bradley canceled T.P.'s visits with Grandmother, responded rudely to her, and no longer contacted her. Grandmother argues that Bradley's "prevention of court[-]ordered unsupervised visitation was a change in circumstances, as the ordered visits between [G]randmother and [T.P.] were being denied." Liberally construing the allegations in Grandmother's petition, we conclude that she has not made a prima facie showing of changed circumstances.
The juvenile court's November 2016 order granted Bradley's request for T.P. to have an extended visit with him. The court conditioned the extended visit on Bradley making accommodations for Grandmother to have visits with T.P. Based on the record, the purpose of the visitation condition was to help T.P. transition to Bradley's care. During the extended visit, T.P. adjusted well and was happy in Bradley's home. As a result, on December 13, 2016, the juvenile court removed custody from Ashley and placed T.P. with Bradley in Ohio. The court's placement order did not include a condition that T.P. have visits with Grandmother. Thus, at the time Grandmother filed her section 388 petition in January 2017, there was no visitation order in place.
Ashley argues that Grandmother's appeal is moot because the juvenile court terminated jurisdiction. Ashley contends that the proper forum to modify the juvenile court's visitation order is in the family court. "In juvenile cases, when an issue raised in a timely notice of appeal continues to affect the rights of the child or the parents, the appeal is not necessarily rendered moot by the dismissal of the underlying dependency proceedings. [Citation.] Rather, the question of mootness must be decided on a case-by-case basis." (In re Hirenia C. (1993) 18 Cal.App.4th 504, 517-518 (Hirenia C.).) In this case, Grandmother filed her section 388 petition before the juvenile court terminated its jurisdiction. Whether it is in T.P.'s best interests to have visitation with Grandmother is "still [a] very 'live' controvers[y]." (Hirenia C., at p. 518.) Thus, Grandmother's appeal is not moot.
While the November 2016 order contemplated that Grandmother would have visitation with T.P. during his upcoming extended visit with Bradley in December, the juvenile court's December 13 order granting Bradley full physical custody of T.P. superseded the November order. Thus, contrary to the allegation in Grandmother's petition, Bradley did not prevent Grandmother from having court-ordered visitation with T.P., because the visitation order had been rendered moot by the December 13 order.
Grandmother's petition requested that the juvenile court modify its November 2016 order, which had provided her visitation with T.P. during his extended visit with Bradley. She based her petition on an allegation that circumstances had changed because Bradley was not complying with the court's November order. As noted, the purpose of the November order was to ease T.P.'s transition to Bradley's home. After T.P. had adjusted well to Bradley's care, in December 2016, the juvenile court granted Bradley custody of T.P. and did not include a provision for Grandmother's visitation. The December order presumably did not include visitation for Grandmother because it was no longer necessary. In light of the juvenile court's December 13 order, the November order was no longer in effect. Thus, Grandmother's allegation of changed circumstances based on Bradley's noncompliance with the November order fails.
Even if Grandmother made a prima facie showing of changed circumstances, we would conclude that her petition did not show that T.P.'s best interests would be served by ordering visitation with Grandmother. At the time Grandmother filed her section 388 petition, T.P. had been placed with Bradley and had adjusted very well to the placement. There was no evidence to suggest that T.P. continued to need visitation with Grandmother to assist in his transition to Bradley's home.
Further, the record establishes that Grandmother had a contentious relationship with Bradley and Ashley. According to Bradley, Grandmother was difficult to deal with and made unreasonable demands regarding visitation. Ashley asserted that Grandmother thwarted Ashley's relationship with T.P. Bradley and Ashley objected to Grandmother having visitation because, despite their requests, Grandmother would not tell them where she lived. Based on the tension between Grandmother and T.P.'s parents, the court could have reasonably concluded that it was not in T.P.'s best interests to implement court-ordered visitation with Grandmother. Court-ordered visitation would have placed T.P. in the middle of a family conflict and exposed him to hostility at a time when he was bonding with Bradley and adjusting to being away from Ashley.
Grandmother's reliance on Hirenia C., supra, 18 Cal.App.4th 504, In re Robin N. (1992) 7 Cal.App.4th 1140, and J.T., supra, 228 Cal.App.4th 953 is misplaced because the cases are distinguishable and do not support reversal. The circumstances here contrast with Robin N. and J.T. because in those cases, the Court of Appeal affirmed visitation orders where the juvenile court had concluded that the evidence supported continuing contact between the child and a nonparent. (Robin N., at pp. 1143-1144, 1146-1147; J.T., at pp. 958-959, 965-966.) In Robin N., the court affirmed a visitation order for a de facto parent because the de facto parent had "devoted five continuous years to develop, nurture and maintain a close, bonded relationship with [the minor]." (Robin N., at p. 1145.) Similarly, in J.T., the court affirmed a visitation order for a minor's paternal grandmother where the grandmother had raised the minor for most of his life and had a strong bond with him. (J.T., at pp. 957.) The court's affirmance of visitation orders in Robin N. and J.T. makes those cases inapposite.
Hirenia C. also does not support Grandmother's position. In Hirenia C., appellant had participated in raising the minor for more than three years and cared for the minor in her own home for approximately 130 days out of each year. (Hirenia C, supra, 18 Cal.App.4th at pp. 510-511.) Appellant was involved in caring for the minor most of the minor's life. (Ibid.) The minor knew appellant as "Mama." (Id. at p. 511.) When appellant sought de facto parent status and a visitation order, the juvenile court denied the petition without a hearing on the basis that appellant did not have standing. (Id. at pp. 511-512.) The appellate court held that the juvenile court abused its discretion in denying the petition without a hearing because appellant had been steadily involved in raising the minor and the minor thought of appellant as one of her parents. (Id. at p. 516.)
The circumstances in the case before us differ significantly from those in Hirenia C. There was no evidence that Grandmother had regularly cared for T.P. during most of his life or that T.P. viewed Grandmother as a parent. Further, unlike appellant in Hirenia C., Grandmother did not allege that she was a de facto parent to T.P. (See Hirenia C., supra, 18 Cal.App.4th at pp. 513-514.) Accordingly, Hirenia C. is readily distinguishable from the case before us and does not advance Grandmother's argument.
Based on the foregoing, we conclude that Grandmother did not make a prima facie showing of changed circumstances and that providing her with court-ordered visitation would be in T.P.'s best interests. Thus, the juvenile court did not abuse its discretion in denying Grandmother's petition without a hearing.
Grandmother is not precluded from seeking visitation with T.P. in the family court. (§ 362.4; In re Sarah M. (1991) 233 Cal.App.3d 1486, 1504 ["The moment the juvenile court terminates the dependency proceedings, the child passes completely from the mandatory jurisdiction of the juvenile court, and the jurisdiction of the superior court, including the family law court, is available."].) --------
DISPOSITION
The juvenile court's order is affirmed.
AARON, J. WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.