Opinion
F075244
11-02-2017
In re O.V., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. MERLE B. et al. , Objectors and Appellants.
Merle B., in pro. per., for Objector and Appellant. Jessica B., in pro. per., for Objector and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 517530)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Merle B., in pro. per., for Objector and Appellant. Jessica B., in pro. per., for Objector and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Franson, J. and Peña, J.
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Jessica and Merle B. (together appellants) are the maternal great-aunt and great-uncle of 21-month old O.V., a dependent of the juvenile court. Appellants appeal from the juvenile court's order denying their Welfare and Institutions Code section 388 petition requesting placement with them in Montana. Appellants contend the juvenile court abused its discretion in denying the petition and in misapplying section 361.3, the relative placement statute. We affirm.
R.B., O.V.'s mother, also filed an appeal in this matter. We address her issues separately in case No. F075242.
PROCEDURAL AND FACTUAL SUMMARY
We granted judicial notice in this case of the record filed in case No. F075242.
Dependency Overview
Then seven-week-old O.V. came to the attention of the Stanislaus County Community Service Agency (Agency) in March of 2016, when he was taken to the hospital by mother and found to have multiple fractures to the parietal bone on the right side of his skull and a subdural hematoma. Mother said she left O.V. in his baby seat on a table and he fell while she was in another room. Mother tested positive for various illegal drugs, had federal charges pending against her, and was arrested. The Agency filed a section 300 petition alleging failure to protect (§ 300, subd. (b)), as evidenced by injuries to O.V. and mother's positive drug test, as well as no provision for support (§ 300, subd. (g)), as both mother and father were incarcerated and unable to care for the child. The petition was found true, neither mother nor father were offered reunification services, O.V. was placed into foster care and, eventually, on January 12, 2017, the juvenile court terminated both mother and father's parental rights. O.V. was found likely to be adopted and adoption was ordered as the permanent plan. Relative Placement Procedural History
All further dates are to 2016 unless otherwise stated.
At detention on March 14, mother's counsel indicated there were relatives in Montana interested in placement. The juvenile court authorized an Interstate Compact for the Placement of Children (ICPC) be initiated with the state of Montana if a relative made a placement request.
On March 21, the Agency began the ICPC process in Montana with maternal great aunt and uncle, Nichole and Jay B., who were "very interested" in placement. Paternal grandfather stated he would come to the office to apply for placement. Maternal great-grandmother also requested an application, which was mailed to her but not yet received back by the Agency.
At the originally scheduled jurisdiction hearing May 4, the juvenile court recited the substance of an off the record conference with the parties, in which the consensus was that the "best-case scenario" would be that the ICPC should proceed so O.V. could be placed with Nichole B.
At the trailed jurisdiction hearing May 12, the Agency informed the juvenile court that Montana would not officially start the ICPC process until after disposition. Mother's counsel asked whether Nichole and Jay B. had submitted all necessary information to begin the ICPC process and were told by the placement specialist that they had. Mother's counsel indicated maternal great-grandmother was the "back-up plan" for placement. The juvenile court cautioned mother's counsel to have others interested in placement to obtain applications as well.
On May 13 the social worker made contact with appellants, also in Montana, who indicated an interest in placement, and sent them an application. On June 1 the social worker called appellant Jessica B. to state a meeting "between two relatives" would be held to decide whose home should be assessed first.
At the disposition hearing June 22, mother's counsel indicated mother was "desirous" of O.V. being placed with relatives in Montana and "very supportive" of Nichole B. being the preferred placement. Counsel understood the Agency was proceeding in that direction. A progress hearing on the ICPC status was scheduled for August 24.
On July 27 Nichole B. called to inquire about O.V.'s health and development and was updated by the social worker. A week later, Nichole B. telephoned to say they had been assigned a social worker in Montana, who was going to assess their home. Nichole B. telephoned several times to report that, according to their Montana social worker, the ICPC process was expected to be completed by September 1. On August 15 Nichole B. called to inquire whether O.V. had drugs in his system when he was born.
At the progress hearing held August 24, the ICPC initiated in Montana was said to be proceeding appropriately. The Agency reported that Nichole and Jay B. were signed up for classes necessary to be certified for placement, but had not been to California to visit O.V.
On August 30 Nichole B. sent a message stating they had completed everything on their end. When asked why they had not visited O.V., Nichole B. said it was difficult and expensive, since they had children and livestock to care for.
On September 6 Nichole B. sent another message stating that Montana had put the paperwork in the mail to the Agency and asked about the transition process and arranging a time to pick up O.V. The social worker replied that the current caregivers said their doors were "open" for a visit so Nichole and Jay B. could get to know O.V. The following day, the current caregiver stated they would be willing to take O.V. to Montana to ease the transition.
On September 15 Nichole B. informed the social worker they would no longer take placement of O.V. Nichole B. suggested "a different relative family in Montana, who had expressed interest in the past," be assessed to take placement of O.V. When the social worker called Nichole B. to ask what had happened, she said she and her husband had decided their two children were enough. She thought appellants would be a "better fit," although appellants "might not have the best relationship."
On September 16 the social worker contacted another social worker regarding the application previously submitted by appellants, and it was agreed to submit the ICPC paperwork for them.
On September 19 the social worker spoke to Jessica B. and reported on O.V.'s health. Jessica B. stated they wanted to be considered for placement and submitted paperwork in June, but Nichole and Jay B. were assessed first. They still wanted placement of O.V. Jessica B. inquired about coming to visit, was told to get in touch with the current caregivers, and then sent a message that they would be in the area from October 17 to 21. The social worker said she would work on scheduling a visit.
On September 21 the social worker completed the ICPC request for appellants and sent a letter to Montana requesting an "expedited home evaluation and social assessment."
On September 23 a meeting was held between the agency ICPC coordinator, the social worker, a social work supervisor and a manager to discuss the case. It was decided that it would not be in O.V.'s best interests to move him as the ICPC process was long and he had developed a significant bond with his caretakers. It would instead recommend he be adopted by the current caregivers.
Several days later, the social worker spoke to Jessica B. and explained that the ICPC paperwork had been submitted, but that it was currently the Agency's positon that O.V. should stay with his current caretakers and be adopted by them unless the placement disrupted or O.V. was found to be eligible under the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) and the Tribe desired a relative placement. The ICPC assessment, however, would go forward.
The report filed in anticipation of the section 366.26 hearing stated the Agency would not consider moving O.V. from his current placement to the home of appellants unless the current placement were disrupted or the ICWA was found to apply. The reasoning was that O.V. had developed a strong bond to his current caregivers and it would not be in his best interest "at the moment." O.V. had had no visits from any member of his biological family during this reporting period. Section 388 Petition
On October 12, Jessica B. filed a section 388 petition, in pro per, requesting O.V. be placed with them, "so he will be with family and be loved and get to know his parents." Mother filed a similar section 388 petition that same day, also requesting O.V. be placed with appellants. The juvenile court set both petitions for hearing on October 21, to coincide with the section 366.26 permanency planning hearing for mother and father.
At the scheduled hearing October 21, the juvenile court recited the substance of an off the record conference, indicating the ICPC process had been initiated for Jessica B., but was still pending. Jessica B. had thus far had two visits with O.V. Because the section 366.26 hearing would have to be put over for ICWA purposes, the agreement was to also put over the two section 388 petitions to November 28. It was also agreed Jessica B.'s petition would be amended to allow appellant Merle B. to join.
On November 3 the current foster parents filed for de facto parent status.
On November 23 the Agency filed opposition to the section 388 petitions. Agency case notes indicated appellants and their daughter had visited O.V. on October 17 and 20. During the visit October 17, O.V. refused to be held by either appellant, although the foster parents attempted to facilitate them holding him. Appellants were told O.V. suffered from asthma and used a nebulizer. The Agency did not hear from appellants again until November 7, when Jessica B. sent a text asking how O.V. was doing, as he had been sick when they visited in October.
The social worker spoke to Jessica B. on November 14 to discuss the possibility of more frequent visitations in order to allow O.V. to become more familiar with them. Jessica B. said visitation would be difficult due to family and work commitments, inclement weather, and the fact that she was deathly afraid of airplane rides. While they planned to be at the November 28 hearing, they would return home immediately thereafter and did not know if a visit was possible. The social worker encouraged Jessica B. to schedule a visit and to Skype as well, as interaction with O.V. was "extremely important" to the Agency to assess their interaction and relationship. Although Jessica B. later called the caregivers to ask about Skype, she did not inquire about O.V.
Word was received November 22, that appellants had been approved, although not yet licensed. In order to be licensed, they would need 18 hours of classes, which were not available until the beginning of 2017. Without a license, they would not receive Foster Care payments.
The Agency continued to maintain that moving O.V. from his current home was not in his best interests because he had such a strong bond with his current caregivers.
The juvenile court granted the de facto parent request on November 28. The remainder of the case, both the section 388 petitions and the section 366.26 hearing, were trailed to December 22.
At the hearing on the contested section 388 petitions December 22, the social worker, appellants, and O.V.'s de facto parents were present; mother was not. During the morning session, the juvenile court stated it would be best during the lunch recess for the parties to "figure out some kind of transitional plan so that [O.V.]'s best interests are being met." When court resumed, the Agency stated it was not in favor of moving O.V. to appellant's home.
The section 366.26 hearing was trailed to further address ICWA issues. --------
Mother's counsel made an offer of proof that mother was in favor of placement with appellants.
Merle B. testified that O.V. had "a big extended family" in the area of Montana, where they lived. Merle B. testified that they made two trips to California, for a total of three visits with O.V., and Skyped with him twice a week after that. When asked if O.V. participated in the Skype visits, Merle B. testified that O.V. liked to play with the phone and passed it around. Appellants were aware of O.V.'s asthma issues.
According to Merle B., they put in their paperwork on the placement request at the same time as his brother (Jay B.), but that the Agency chose to pursue his brother's request. He later acknowledged that he could not remember when he sent in the original paperwork. He had not asked for photos of O.V. at that time, saying he would see him after they placed him with his brother. Merle B. did not think it would be an "abrupt change" or "transition" to place O.V. into their home immediately, as he was "young enough." Both appellants worked full time and they planned to send O.V. to daycare. When asked if he would be willing to move because O.V.'s asthma was exacerbated by cold weather, Merle B. said he did not think so.
Jessica B. testified that she thought they let the Agency know of their interest in O.V. around the end of April. Jessica B. testified she has asthma and stays inside when it gets cold. She worked at Head Start as a teacher for seven years and had taken child development courses. When asked if she thought it would be hard for O.V. to be removed from his foster parents, she thought he would "be okay" because of his young age. When asked if she was willing to come to California the following month, with or without her husband, to facilitate a transition, she said she would need to discuss it with her husband, that she was not comfortable coming by herself in the winter, and that she did not like airplanes.
Counsel for the Agency made an offer of proof that the social worker would testify that Nichole and Jay B. contacted her on March 21 and returned an application on March 29. Appellants were contacted by letter April 29 and requested an application May 13. On June 1 the social worker had a meeting with both families on the telephone regarding placement. While both families wanted placement, the decision was made to go forward with Nichole and Jay B.'s assessment first, as they applied first and expressed more interest in O.V.'s health and needs often. Jessica B. was told of this decision.
An offer of proof for the current social worker was that she inherited the case in July and first had contact with appellants on September 19. In addition to the visits that occurred with O.V. in October, they had visits scheduled for November 17 and 28, which they cancelled due to work. Skyping did not start until after November 28.
De facto mother made a sworn statement that her concern was that, if O.V. was moved, that there be a transition, as he was extremely bonded to her.
The juvenile court continued the matter to January 6, 2017, but facilitated a visit between appellants and O.V. for the following day.
At the continued section 388 hearing January 6, 2017, appellants appeared by telephone. Counsel for O.V. indicated the last visit went well, although the de facto mother testified O.V. had difficulty after the visit.
A letter from O.V.'s doctor was introduced which stated O.V. has moderate persistent asthma which was exacerbated in November and December and called for twice a day treatments with a nebulizer. He was awaiting appointments with a "pulmonologist and ENT" for further evaluation.
O.V.'s counsel asked that the juvenile court grant appellants' section 388 petition, citing as authority In re Isabella G. (2016) 246 Cal.App.4th 708 (Isabella G.). Mother's counsel also asked that appellants be granted placement of O.V. The Agency objected, asking that the juvenile court not make a direct placement with appellants at this late date.
The juvenile court denied both section 388 petitions. It found mother's section 388 petition moot and found that setting a section 361.3 hearing and ordering placement of O.V. with appellants was not in the child's best interests.
As to appellants' section 388 petition, the juvenile court found Isabella G. inapplicable. The juvenile court stated O.V.'s asthma was not "necessarily a special need, but it does certainly concern me that there is a request to place O[.] in the home of the B[.]s at a time when the weather in Montana can get to be below 30 when one considers the windchill factor." The juvenile court stated it was "hard-pressed to believe that there would be no detriment to O[.] in placing him, taking him out of a home where ... he is extremely well-bonded to the de facto parents and placing him with people ... he doesn't really know." The juvenile court also expressed concern that appellants voiced a desire to have O.V. because they wanted him to get to know his parents, "which leads me to believe is the real motivation of the B[.]s to make sure that O[.] is able to be connected with his parents who are both in ... federal custody right now because of crimes that they have committed, which is extremely concerning to this Court." While the juvenile court noted that nothing was "wrong" with the B[.]s, they had "virtually no contact at all" with O.V. until the past few months, "and it seems to me that if they were really that interested, that they should have been asking to have visitation so they could have established a connection with this little boy." The juvenile court concluded that, while there was a change of circumstance in that the other prospective placement fell through, the juvenile court "cannot, in good conscience, find that the granting of the 388 would be in the best interest of this very young child."
DISCUSSION
Appellants contend the juvenile court erred in denying their section 388 petition requesting placement of O.V., because, as they frame the issue, O.V. "should have been placed with family first," in compliance with "the holdings of Isabella G." We find no abuse of discretion.
Section 388 provides for modification of juvenile court orders when the moving party presents new evidence or a change of circumstances and demonstrates modification of the previous order is in the child's best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Y.M. (2012) 207 Cal.App.4th 892, 919; see Cal. Rules of Court, rule 5.570(e).) The standard of review for an order denying a section 388 petition is abuse of discretion. "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. [Citations.]" (In re Jasmon O.V. (1994) 8 Cal.4th 398, 415-416.)
In promoting their argument that O.V. should have been placed with them, appellants cite to Isabella G., in which the grandparents repeatedly sought placement of the child after she was placed in protective custody. However, their requests were ignored by the social services agency. (Isabella G., supra, 246 Cal.App.4th at pp. 711-712.) When reunification services were terminated, the grandparents filed a section 388 petition. (Isabella G., supra, at p. 712.) The relative home assessment was then completed and their home was approved for placement in less than three weeks. (Ibid.) At the hearing on the petition, the juvenile court declined to proceed under the relative placement preference set forth in section 361.3 and applied the caregiver adoption preference under section 366.26, subdivision (k). (Isabella G., supra, at p. 712.)
The appellate court in Isabella G. concluded that "when a relative requests placement of the child prior to the dispositional hearing, and the Agency does not timely complete a relative home assessment as required by the law, the relative requesting placement is entitled to a hearing under section 361.3 without having to file a section 388 petition." (Isabella G., supra, 246 Cal.App.4th at p. 712.) The court noted that section 361.3 requires the juvenile court to evaluate several factors, including the child's best interest, and rejected the agency's argument that the application of the relative placement factors would not result in a more favorable outcome. (Isabella G., supra, at p. 724.) The court relied on the following facts: the grandmother was the child's primary caregiver from birth until she was 23 months old; the child missed the grandmother and was happy to be with her; the current caretaker facilitated contact with the grandmother at the child's request, which sometimes occurred as often as three times a week; the child had her own bedroom at the grandparents' home; the current caretaker recommended that the child be placed with the grandmother; the child wanted to live with the current caretaker or the grandmother; the current caretaker did not believe the child would suffer any harm if returned to the grandmother's care; and the grandparents' home had been approved for placement. (Ibid.) Thus, the court concluded that "[f]ocusing on the history and quality of [the child's] relationship with Grandmother instead of on the quality [the child's] relationship with her caregiver may lead to a different outcome on remand." (Ibid.)
We find Isabella G. distinguishable and not helpful to appellants. To the extent appellants claim the juvenile court abused its discretion because they are extended family members and placement with blood relatives is statutorily preferred, they are incorrect. Section 361.3, subdivision (a) reads as follows: "In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative." For purposes of section 361.3, subdivision (c)(2), "[r]elative" means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words "great," "great-great," or "grand," or the spouse of any of these persons even if the marriage was terminated by death or dissolution. Thus appellants' application, as great-aunt and great-uncle, was considered before a stranger's application. However, only an adult who is a grandparent, aunt, uncle, or sibling may be given preferential consideration for the placement of the child. (§ 361.3, subd. (c)(2).) Appellants do not fall into the category of "relative" as defined by section 361.3, subdivision (c)(2), and the juvenile court was under no duty to give them preferential consideration for placement. (In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1494.)
Even if we assume for sake of argument that the relative placement preference applies, our Supreme Court has explained that "regardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected." (In re Stephanie M., supra, 7 Cal.4th at p. 321.) In considering whether placement with a relative is appropriate, the juvenile court and social worker are to consider, among other factors and as relevant here, the best interests of the child, including special physical, psychological, educational, medical, or emotional needs; the parent's wishes; the good moral character of the relative and any other adult living in the home; the nature and duration of the relationship between the child and the relative and the relative's desire to prove legal permanency for the child; the relative's ability to provide a safe, secure and stable environment for the child, exercise proper and effective care and control of the child, provide a home and the necessities of life for the child and protect the child from his or her parents. (§ 361.3, subd. (a)(1)-(8).) Ultimately, the "linchpin of a section 361.3 analysis is whether placement with a relative is in the best interests of the minor." (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 862-863.)
Contrary to appellants' assertions, the juvenile court considered all of these factors. There was evidence before the juvenile court of O.V.'s asthma and his needs related to his asthma; the relationship or lack thereof between appellants and O.V.; appellants' willingness or lack thereof to accommodate a less traumatic transition for O.V., as well as their attitude toward O.V.'s physical and mental needs.
In its ruling denying placement with appellants, the juvenile court stated it was concerned that O.V.'s asthma could be exacerbated by the, at time, "30 below" temperatures in Montana. Of concern to the juvenile court was the possible detriment in taking an almost one-year old child from a home where he was "extremely well-bonded" to the caregivers and placing him with people "he doesn't really know." This was O.V.'s second placement and, at his young age, stability was of utmost importance. Also of concern to the juvenile court was that one of appellants' motivations for seeking placement was to ensure O.V. would know his parents, who were both in federal custody due to criminal activity. The juvenile court also found that, while there was nothing "wrong" with appellants, they had had "virtually no contact at all" with O.V. until very recently, and had they been "really that interested," they could have asked to have visitation earlier to establish a connection with O.V. In conclusion, the juvenile court denied the section 388 petition, finding it would not be in O.V.'s best interests to place him with appellants.
We find no abuse of discretion on the part of the juvenile court in denying appellants' section 388 petition seeking placement of O.V.
DISPOSITION
The juvenile court's order is affirmed.