Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD17945
Bamattre-Manoukian, ACTING P.J.
B. M. and Amy G., the parents of the child at issue here, appeal from an order terminating their parental rights. (Welf. & Inst. Code, § 366.26.) Father contends that the juvenile court erred when it failed to require respondent Department of Family and Children’s Services (the Department) to file a section 387 petition and that the court abused its discretion when it denied father’s section 388 petition and granted the child’s section 388 petition. Father further contends that his counsel rendered ineffective assistance and that, if this court reverses the order denying his section 388 petition and granting the child’s petition, the order terminating parental rights must also be reversed. Father also joins in mother’s contentions.
All further statutory references are to the Welfare and Institutions Code.
Mother contends that the juvenile court lacked authority to modify a prior placement order without requiring the Department to file a section 387 petition, that her counsel rendered ineffective assistance, that the court abused its discretion by denying father’s section 388 petition and granting the child’s section 388 petition, and that the order terminating parental rights must be reversed. Mother also joins in father’s contentions.
On the record before us, we find that the juvenile court properly considered the child’s and father’s section 388 petitions without requiring the Department to file a section 387 petition. We also find that the court did not abuse its discretion in denying father’s petition and granting the child’s petition. Further, we find that the parents have not carried their burden of showing ineffective assistance of counsel. As a result of these findings, and as neither parent otherwise contests the order terminating their parental rights, we will affirm the order terminating parental rights.
BACKGROUND
In March 2007, the child was placed in protective custody a few days after his birth due to the parents’ history of substance abuse and criminal conduct. Further, the child’s half-sibling was made a dependent child of the court in November 2006 after mother was arrested for being under the influence of methamphetamine while pregnant with the child, and after the sibling was found in a motel room containing illegal drugs and drug paraphernalia but no food or drink. Further, mother was awaiting sentencing on two felony convictions. The Department filed a first amended petition under section 300, subdivisions (b) [failure to protect] and (j) [abuse of sibling] as to the child on March 14, 2007. The juvenile court ordered the child detained on March 15, 2007.
The social worker’s report for the jurisdiction hearing stated that the child had been placed in a emergency foster home. The child’s paternal grandmother had expressed an interest in having the child placed with her, but the Department found such a placement to be not appropriate based on the grandmother’s child welfare, criminal, and substance abuse history. Father was incarcerated for a new felony offense but he wanted to reunify with the child. Mother wanted to waive reunification services. At the hearing on April 6, 2007, the parents signed waivers of their rights and submitted the matter on the social worker’s report. The court found the first amended petition true and continued the matter for a disposition hearing.
The social worker’s report for the disposition hearing stated that the child remained in his emergency foster home but that his paternal great-aunt who lives in Idaho agreed to be the concurrent placement for the child. At the hearing on May 11, 2007, mother submitted a written waiver of reunification services and the court ordered that services be provided to father. The court also approved placement of the child with a family member or in a foster home. On June 7, 2007 the court requested an expedited placement hearing for the great-aunt under the Interstate Compact on the Placement of Children (ICPC).
In a report for an interim review hearing held on July 13, 2007, the social worker stated that father remained incarcerated and that, if the child could not be placed with the paternal great-aunt in Idaho, the child would be placed in a concurrent home in San Jose. At a meeting on July 25, 2007, in which the paternal great-aunt participated by telephone, the social worker informed the paternal grandmother and the great-aunt that if the great-aunt did not complete the paperwork required for the ICPC placement before August 9, 2007, the social worker would place the child in a local foster-adoptive home. At that time, neither the grandmother nor the great-aunt identified another relative as a potential concurrent placement. On August 29, 2007, the court approved the placement of the child with his prospective foster-adoptive parents, and the child’s placement was changed that same day. The foster-adoptive parents were told that the child might move to Idaho once the ICPC assessment was completed.
The social worker’s reports for the six-month review hearing recommended that reunification services be terminated and that a section 366.26 hearing be set for the child. The child appeared to be well adjusted and bonded to his foster-adoptive parents, and mother had reported that she wants the child to be adopted. Father was still incarcerated but the paternal grandmother had been visiting the child twice each month. The Idaho ICPC worker had informed the social worker that the paternal great-aunt had decided not to complete the ICPC application. When father was informed of this, he told the social worker that he did not have any other relatives that would be a concurrent placement for the child. However, on September 24, 2007, the paternal grandmother informed the social worker that another paternal great-aunt in Idaho could be a concurrent home for the child. The social worker spoke with this great-aunt the same day and sent her the ICPC paperwork for a required home study. The home study was expected to be completed by November 21, 2007.
The six-month review hearing was held on October 26, 2007. Father submitted the matter on the social worker’s reports. The court terminated father’s reunification services and set the matter for a section 366.26 hearing.
On December 13, 2007, at the request of the Department, the court approved the placement of the child with his great-aunt in Idaho effective December 26, 2007. The great-aunt had expressed a desire to adopt the child, her ICPC home study had been approved, and the social worker gave the foster-adoptive parents a seven-day notice on December 10, 2007, of the intent to move the child. Counsel for the child had no objection to the requested change in placement. However, the foster-adoptive parents had reported that they wanted the child to remain with them, that they planned to seek de facto parent status, and that they planned to appeal any decision placing the child in Idaho.
On December 18, 2007, the court set a hearing on the foster-adoptive parents’ written request for de facto parent status for January 22, 2008. At the scheduled hearing, the court granted the foster-adoptive parents’ request. The court further ordered that all previous orders were to remain in full force and effect.
As the reporter’s transcript for this hearing is not in the record on appeal, we do not know whether or not the court was informed at this hearing that the child had not yet been placed with his great-aunt in Idaho and was still in the home of the foster-adoptive parents.
The social worker’s addendum report for the section 366.26 hearing states that a “Grievance Hearing” had been held and that on February 7, 2008, the director of the Social Services Agency decided that the child was to remain with his foster-adoptive parents rather than with his paternal great-aunt in Idaho. The great-aunt had been making weekly trips to San Jose for overnight visits with the child, and was very upset that she would not be able to adopt the child.
The section 366.26 report itself is not in the record on appeal.
On February 13, 2008, the date set for the section 366.26 hearing, counsel for the Department informed the court that its recommendation was that parental rights be terminated and that the child remain in his foster-adoptive home. Counsel for the child stated that she agreed with the Department’s recommendation. Father submitted a section 388 request that the child be placed with the great-aunt, and the great-aunt submitted a request for de facto parent status. Mother’s counsel stated that mother also supported placement with the great-aunt. The court stated that it did not think the Department’s grievance procedure usurped the court’s authority or relieved it of the obligation to consider relative placement. Therefore, the court needed information on the great-aunt’s ICPC home study. The court also stated that it understood that there was a court order to move the child to the great-aunt. Accordingly, it continued the matter so that the social worker could prepare a report addressing the issues of relative placement, “specifically what the court would be needing to find in order to not place [the child] with a relative at this point in time.” Counsel for the child asked that the order moving the child “remain . . . stayed” pending the continued hearing and counsel for the father requested that the great-aunt continue to have visits with the child. The court granted both requests.
Neither the social worker nor mother were present at the hearing.
The social worker filed a response to father’s section 388 request, stating that the child continues to reside with the foster-adoptive parents, that the child views the foster-adoptive parents as his parents, and that there was no need to move the child.
At a hearing on Monday, March 3, 2008, the court stated: “The state of the case at this point pending this [section 366].26 hearing is that there is a signed and filed in this court’s file an order dated December 13th, 2007, placing the child with the paternal great aunt . . . . [¶] And in the interim it is my understanding that there has been an administrative procedure in the Department which has delayed th[e] implementation of that order without notice to this court, without bringing the matter to this court. [¶] The court is operating under the clear relative preference, which requires that the court first consider relatives, [section] 361.3 of the Welfare and Institutions Code. And the matter of that consideration was never placed before this court except in the context of an ap[plication] and order ex parte that I signed and was never followed through. [¶] So I have indicated to all parties that whatever papers they want to file with me to inform me about what they think the law is and how we should proceed at this point in time legally needs to be filed by the close of business on Wednesday. [¶] I’ll have a hearing on this on Thursday afternoon . . . and I’ll make at decision at that point in time.” The court stated that it had set a hearing on the great-aunt’s request for de facto parent status, “but none of those other motions are going to be heard because there is a valid court order that has not been complied with and that needs to be dealt with first.”
Counsel for the child filed points and authorities arguing against a move of the child to Idaho. She also filed a section 388 request that the December 13, 2007 order for removal of the child from the foster-adoptive parents and for placement of the child with the great-aunt be set aside as not in the child’s best interests. Counsel for the foster-adoptive parents filed a memorandum arguing for placement of the child with them. Counsel for the Department filed a memorandum arguing that the court’s December 13, 2007 order was voidable because the foster-adoptive parents were not served with a copy of the application for the order, and thus were not given an opportunity to object.
On Thursday, March 6, 2008, the court found that “there is no basis upon which to declare void the order that was made by the court for placement [of the child] with [the great-aunt].” “So what we have is a constructed situation of increased bonding with the foster parents based upon . . . what I think is an inappropriate process within the Department. [¶] . . . I don’t think anyone’s disputing the admitted excellent care that this child receives in this current foster home. . . . [¶] There is nothing other than that that precludes placement with a relative.” The court then asked the parties what they wanted the court to do.
Counsel for the Department asked the court to set aside the December 13, 2007 order, to not move the child from the home of the foster-adoptive parents, and to hold the section 366.26 hearing. Counsel stated that the Department did not intend to disregard the December 13, 2007 order, that the social worker had prepared an application for a stay of that order, that the application was not presented to the court due to “some type of processing problem within the office of . . . counsel,” and that the social worker believed that the court had granted the stay. Father’s counsel asked the court to enforce the December 13, 2007 order. Mother’s counsel joined in the request by father’s counsel. Counsel for the foster-adoptive parents asked that the child remain with them. The child’s counsel asked the court to grant the child’s section 388 petition to set aside the December 13, 2007 order. The great-aunt asked the court to enforce the order. The court continued the matter and ordered that the “status quo will remain while I have a chance to figure out what I’m going to do given the circumstances.”
On March 14, 2008, the court stated that before it holds the section 366.26 hearing it will hold a hearing on the section 388 requests filed by the child and father and on the request for de facto parent status filed by the great-aunt. “I’ve been through this whole circumstance and sequence of events in this case and I can think of no way to resolve the issues without providing an opportunity for a fair hearing for all the parties, so that’s what I’m going to do.” All prior orders, including the stay, were to remain in effect until that time.
The Contested Hearings
The contested hearings were held over 11 days beginning on April 29, 2008, and ending on June 12, 2008. After the great-aunt testified and was cross-examined, the court found that her involvement with the child did not “rise to the level of being a de facto parent simply because she is not assuming the role of a parent on a day-to-day basis for a substantial period of time.” Therefore, the court denied the great-aunt’s request for de facto parent status.
Supervising social worker Mark Lapiz testified as an expert in the areas of risk assessment, placement and permanent placement of dependent children. He testified that every time a child is moved from a placement, the child experiences a large amount of trauma, which impacts the child’s overall functioning regardless of the age of the child. The Department’s recommendation as to the appropriate placement of the child in this case is the decision of the grievance officer. When the foster-adoptive parents agreed to the child’s change of placement, it meant that they agreed to participate in the transition of the child to Idaho. However, they could still contest the change of placement.
The Department’s policy is that social workers are to attempt to identify relative placements as soon as possible during the reunification process when a child is taken into custody. When a relative is interested in placement of the child, that relative must contact the social worker. If more than one relative comes forward, the Department may determine which placement is the most appropriate. In this case, prior to September 2007, only one great-aunt’s name was given to the Department as a possible placement for the child. The second great-aunt’s name was not provided by the family at the start of the reunification period, and the second great-aunt did not contact the social worker until the end of September 2007, which was still within the six-month reunification period.
At the grievance hearing, the social workers learned from the foster-adoptive parents that the child had been exhibiting “adverse behaviors” after his over-night visits with the great-aunt. The child needs additional physical comforting and contact from the foster-adoptive parents, he has difficulty sleeping through the night, and he often needs a light on in order to fall asleep. The child also has trouble separating from his foster-adoptive parents at the beginning of the visits. Therefore, Lapiz believes that the over-night visits are detrimental to the child’s well being. In his opinion, moving the child from his current placement would not be in the child’s best interests and would be detrimental to his well being and his emotional, psychological and physical development. The child has now been with his foster-adoptive parents for nine of his 14 months, he evidences an attachment and bond with them, and he has already been through a placement change. His opinion would have been different had the child’s placement been changed in December 2007.
Clinical psychologist Lynda Heiden, Ph.D., testified as an expert in the areas of assessment, diagnoses and treatment of child clinical disorders and of assessment of parent-child relationships. She reviewed the social worker’s notes and reports, the correspondence from the great-aunt about the child’s visits and placement, the ICPC report from Idaho, and correspondence by the foster-adoptive parents. She also observed the child with the great-aunt. She was asked to determine if there would be an adverse effect on the child should he be moved from his current placement to the great-aunt in Idaho and what was in the best interests of the child. The child enjoyed interacting with the great-aunt, was very responsive to her, and showed signs of attachment to her. She believes that it would not be detrimental to the child in the long term to move his placement, although it would better for the child in the short term to stay where he is. There is a minimal risk that the child will develop a reactive detachment disorder no matter which family he is placed with, although there would be a difficult adjustment period if he were moved. The foster-adoptive parents would have to take part in the transition, the transition would have to begin as early as possible, and the change would have to be done gradually.
Father testified that his preference is to have the child placed with family members so the child knows his biological family. The child’s possible placement with the first of his great-aunts in Idaho was discussed as early as the detention hearing. When father was told on August 28, 2007, that his first great-aunt was not going to take the child, he said that he did not know anybody else who could take the child because he did not have his other great-aunt’s contact information.
The great-aunt testified that she is seeking placement of the child with her because she thinks that it is in the best interests of the child to be raised by his family. She first learned about the child when he was born. About three or four months later, she learned that the child was not in his parents’ care. She understood that the child’s other great-aunt was working with the Department to get placement of the child. She was contacted in early September when the other great-aunt could not take the child. She contacted her local social services agency, she did the background review and home study, and she took the required classes. The first time she saw the child was when she had her first visit on November 13, 2007. She received her foster care license on November 28, 2007, and her second visit with the child was on December 9, 2007. Her first overnight visit was December 16 and 17, 2007. She has had overnight visits every week since then, except for four cancelled visits.
At a meeting in early December 2007, which both she and the foster-adoptive parents attended, it was decided that the child would be moved to her care after three overnight visits. The social worker said that a court order for the move was needed because the great-aunt lives out of state. The order was signed and the social worker told the great-aunt that the child would be moved to her care by the end of the year. Although the foster-adoptive parents signed the transition plan agreement, they filed a grievance to stop the child being moved. The great-aunt attended the grievance hearings that were held on December 31, 2007, and February 6, 2008. For the first time on February 6, 2008, both she and the social workers learned from the foster-adoptive parents about the behavioral problems the child exhibits after his overnight visits with the great-aunt.
If the child is moved to the care of the great-aunt, the child will go to daycare while the great-aunt works. The great-aunt also has joint custody of her 18-year-old daughter, who would transport the child to daycare. The great-aunt would pick the child up from daycare on her way home from work.
The social worker testified as an expert in the areas of risk assessment, placement, and permanent placement of dependent children. She testified that the Department has a policy to place children with relatives, extended family members, or foster-adoptive parents as concurrent placements during the reunification period. If a concurrent placement is found before services are terminated by the court, the Department does not seek a change in placement once services are terminated.
In March 2007, when the paternal grandmother was not approved for placement of the child, the grandmother told the Department that she would contact her relatives, but the grandmother did not provide any relatives’ names. The child was placed in an emergency foster home. The first great-aunt contacted the Department on April 18, 2007, to request placement of the child, and the Department began the ICPC process. When the first great-aunt had not submitted the required ICPC paperwork by July 11, 2007, the social worker spoke to the grandmother, who stated that no other relatives were available to take the child. The social worker was informed on August 27, 2007, that the first great-aunt withdrew her ICPC application, so the social worker informed the grandmother and father that she would be placing the child in a concurrent placement on August 29, 2007. Father stated that he had no other available relatives. The child had been in his emergency foster home for about five and one-half months by the time he was moved to the foster-adoptive home, and he had become attached to his foster mother.
The second great-aunt did not contact the social worker about possible placement of the child with her until September 24, 2007. The social worker initiated the ICPC process and informed the foster-adoptive parents that another relative had come forward. Services for father were terminated on October 25, 2007, and on October 31, 2007, the great-aunt requested her first visit with the child. Once the social worker received information that the great-aunt had received ICPC approval, she recommended placement of the child with the great-aunt and she sought a court order for that placement. Although the court signed the order, the child remained with his foster-adoptive parents because they requested a grievance hearing. The grievance hearing was held over three days beginning in mid December 2007. The social worker prepared a request for a stay of the court order placing the child with the great-aunt during the grievance hearing period, faxed the request to counsel for the parties, and submitted it to the Department’s counsel for delivery to the court. The social worker first learned in March 2008, that the request for a stay had never been submitted to the court.
The request was not faxed to father’s then-current counsel.
The decision after the grievance hearing was that the child should stay with his foster-adoptive parents, and that decision became and is the recommendation of the Department. In the social worker’s opinion, it is in the child’s best interests to remain with his foster-adoptive parents because the child has been in their home for over one-half his life, he has a secure attachment to the foster-adoptive parents, he will experience trauma if he is removed, and he is at a crucial stage in his cognitive and physical development.
The foster-adoptive mother testified that before the child was placed with her, she was told that the Department was looking at one relative as a placement option, and that if the relative placement did not go through and services to father were terminated, she would be able to adopt the child. She was informed in late September 2007 that the Department was looking at a second relative as a placement option. The child fussed and acted distracted, he pushed away his food, he would not go to sleep right away, and he had trouble sleeping when he transitioned to the foster-adoptive home from the emergency foster home. These behaviors diminished over time and ended after about eight weeks.
The signs of distress that the child has exhibited after overnight visits with the great-aunt have changed. The child used to be apprehensive about being put in his car seat for visits and he now cries when he is put in the car seat for visits. He used to have occasional nightmares after visits and he now has two nightmares a night after visits, and more time has to be spent to console him to go back to sleep after each nightmare. He used to display frantic playing after visits and he now displays both frantic playing and obsessive behavior. After the last few visits he appeared exhausted, dehydrated, withdrawn and listless.
The social worker who participated in the transportation of the child between the foster-adoptive parents and the great-aunt testified that she attended the grievance hearings. During those hearings, she stated that the child appears to recognize the great-aunt during their visits. She also stated that the child’s behavior that concerned the foster-adoptive parents was age-appropriate behavior. The great-aunt brought the child to one of the grievance hearings, and he sat on her lap facing her. When the child saw the foster-adoptive parents, who were sitting at the same table, he tried to turn toward them and reach across the table to them. He whined when the great-aunt turned him back to face her. The social worker removed the child from the room for the remainder of the hearing.
During recent visits, the child exhibits the same behavior when transitioning from the foster-adoptive parents to the great-aunt as he does when the great-aunt leaves. His anxiety and stress at each separation has increased over time. The child refers to his foster parents as “dada” and “mama,” and he did not respond to the great-aunt when she referred to herself as “mommy.”
The emergency foster mother testified the she has been a foster parent for over 20 years and has had 45 foster children. She has often had newborns, and the newborns typically stay in her home no more than 90 days. The child at issue here was in her care for about five and one-half months, until the end of August 2007. The emergency foster mother has learned that transitions are very important, so she has tried to make sure that transitions go smoothly. If a nonverbal child acts really upset after a visit during the transition period, or if the child has been with her for a long time, she makes the transition longer. She also visits the child in the new home and has the child come back for visits at her home. When a child is moved out of state, participation in such a transition plan is not possible.
The child was a very easy baby for the foster mother. He easily went to sleep and slept through the night, he easily took his bottle, and he easily entertained himself. During the child’s transition from the emergency foster home to the foster-adoptive home, the foster-adoptive parents were receptive to the information the emergency foster mother gave them about the child’s routine. Yet, after the child was moved to their home, the foster-adoptive parents reported that they had trouble putting the child to sleep and that the child was fussy. They also reported having trouble trying to begin to spoon feed the child. It appeared to the emergency foster mother that, due to the change in the child’s behavior, he was having a hard time transitioning to the foster-adoptive home. It was not until November that the emergency foster mother felt that the child had shifted his primary attachment from her to his foster-adoptive parents.
In the emergency foster mother’s opinion, a move to another home would be detrimental for the child because the child is attached to the foster-adoptive parents and this transition would be more difficult than the transition was from her home to the foster-adoptive parents. Because it is a difficult stage of the child’s development, transitioning a child who is between one and three years old is always more difficult than transitioning an infant.
The Department’s foster home support person testified as an expert in the areas of foster placement, concurrent placement, and the transition between the two placements. She observed the child with his emergency foster mother three times and it was clear to her that the two were attached and that the child was happy and content in that home. She was the support person for foster-adoptive parents during the child’s transition to their home. When she first saw the child in the foster-adoptive home on September 6, 2007, the child appeared to be happy and to be adjusting well. On her latest visit to the foster-adoptive home on April 7, 2008, it appeared that the child had switched his primary attachment from the emergency foster mother to the foster-adoptive parents and that he had bonded with the foster-adoptive parents. If the child were to be moved to the great-aunt’s care, she would want the great-aunt to stay home full time with the child for the first six months so that the child and the great-aunt could bond and attach to each other. She expects the child to regress, to have behavior problems, and to have difficulty attaching to the great-aunt’s family.
The foster-adoptive father testified that the child’s transition from the emergency foster mother to the foster-adoptive parents took about eight weeks. The great-aunt has had the equivalent of 14 or 15 days of visits with the child while the foster-adoptive parents have been the child’s primary care givers. The foster-adoptive father works from the home full time and the foster-adoptive mother works part-time outside the home, so they share the primary care of the child. The child has also developed an attachment to the foster-adoptive mother’s mother, who is caring for the child during the hearing.
A social worker supervisor in the district attorney’s office testified as an expert in the areas of risk assessment of a child, placement of a child, and permanent placement. On March 14, 2008, he was asked to do an assessment whether the child should remain in California or should be placed with a relative in Idaho. He had not been directly involved with the case before then, although one of his social workers did attend a placement meeting regarding the child in December 2007. He reviewed the same documents Dr. Heiden reviewed, he had several conversations with the child’s great-aunt, and he spoke once with the foster-adoptive father. In the social worker’s opinion, the child is exhibiting separation anxiety when he visits his great-aunt. Even though he has had consistent visits with the great-aunt, the transitions trigger the anxiety the child went through when he was transitioned from the home of his emergency foster mother to the home of the foster-adoptive parents. That first transition was difficult for the child because he had established a relationship with the emergency foster mother. In the social worker’s opinion, it would be detrimental to move the child from the care of the foster-adoptive parents because the child would suffer distress and, because the child was exposed to drugs in utero, he would be at risk of having a reactive attachment disorder wherein he would have difficulty attaching to a new primary caregiver. Any difficulty in attaching to the great-aunt would be exacerbated if the great-aunt were to place the child in day care for long hours because that would introduce yet another new caregiver and confuse the child.
Priscilla Merek, M.S.W., testified as an expert in providing mental health diagnosis and treatment of child, adolescents, adults, and families; in child development; in risk assessment; and in the evaluations of placements for children in foster care, including permanent placements and the assessment of attachment of children. She reviewed Dr. Heiden’s report and a transcript of her testimony, and, although Merek agreed with some items in Dr. Heiden’s reports, she did not agree with the conclusions. In Merek’s opinion, the child is attached to the foster-adoptive parents, there are risks to moving the child from that home, there are no short term or long term risks of distress if the child were to remain in that home, and there would be intense distress for the child in transitioning to his great-aunt. In Merek’s opinion, because the child was exposed to drugs in utero, another move at this age would affect the child’s ability to handle the stress caused by that move. Thus, if the child were moved to his great-aunt, he would not necessarily develop a reactive attachment disorder, but he could develop some other type of attachment disorder. He would give up on trying to attach and become attachment resistant or attachment avoidant. He would have delays in expressing and understanding language, in learning to run, and in cognitive development. Therefore, it would be in the child’s best interests to remain with his foster-adoptive parents.
The Court’s Decision
On June 12, 2008, the court stated in pertinent part: “With respect to the [section] 388 petitions, I find that the overwhelming weight of the evidence establish[es] that [the child] has developed a strong emotional bond with the [foster-adoptive parents], is securely attached to them and behaves toward them like a child of his age would be expected to behave toward its biological parents.
“I also find the evidence is equally compelling that removing [the child] from the [foster-adoptive parents] with whom he’s spent half his life would be traumatic for him and detrimental to his emotional well being putting him at risk of developmental deficits later.
“Thus, the Court concludes that it would be contrary to [the child’s] best interest to move him from his current placement at this time and in his best interest for him to remain there giving him the stability and permanence he clearly needs.
“Accordingly, the Court finds the evidence does not support father’s petition which requests removal and that petition is therefore denied, but does support the minor’s petition which requests continued placement and is therefore granted.
“Consequently, [the] order of December 13, 2007, is ordered set aside nunc pro tunc as of its apparent or presumed initial stay date, which as far as I can determine from going back through the records, is on or about February 13 of this year.”
“That should dispose of the [section] 388 petitions unless there are any procedural loose ends that should be taken up. We can do that at this time.”
Counsel for the Department stated that everybody had agreed to proceed with the section 366.26 hearing. Father’s and mother’s counsel submitted the matter on the social worker’s report and addendum. The recommendation in the reports was to order termination of parental rights and to free the child for adoption. The court adopted the recommendations and orders. The court also granted the foster-adoptive parents’ request for designation as the child’s prospective adoptive parents. (§ 366.26, subd. (n).) The matter was set for a section 366.3 status review hearing on December 8, 2008.
DISCUSSION
Section 387 and Section 388 petitions
The parents contend that the juvenile court lacked statutory authority to modify its December 13, 2007 order placing the child with the great-aunt, and to grant the child’s section 388 petition requesting that the order be changed, without first sustaining a section 387 petition. They argue that, although the child was never moved to relative placement, because of the court’s order he was constructively placed with the great-aunt, and the intent of the statutory scheme is to require the court to find that an ordered placement is no longer appropriate before the child is moved to a more restrictive placement.
The parents separately contend that the court erred when it failed to exercise its discretion to require that the Department file a section 387 petition based on the recommendation resulting from the grievance hearing. They argue that, because the Department sought, and counsel for the child did not object to, the December 13, 2007 order, judicial estoppel precluded the Department and the child from asserting a position contrary to the December 13, 2007 order unless the Department filed a section 387 petition.
The parents also contend that they were denied due process in that the Department failed to notify them that the child was not moved to relative care pursuant to the court’s order. Parents did not receive notice of, and were not allowed to attend, the grievance hearing. “Since the results of the grievance hearing were a ‘recommendation’ to the court and the court had issued an order in direct contrast to the recommendation, the only option the juvenile court had was to require the [Department] to file a section 387 petition.”
Father separately contends that by filing a section 388 petition rather than insisting that the court enforce the December 13, 2007 order and/or that the Department file a section 387 petition, his counsel rendered ineffective assistance. “Here, there was no satisfactory explanation for trial counsel’s . . . filing a petition to change the court order when the existing order was favorable to the client.” Mother contends that her counsel rendered ineffective assistance by failing to follow up on the Department’s ex parte application to stay the December 13, 2007 order; by failing to bring to the court’s attention that the Department was conducting a grievance hearing for the foster-adoptive parents; and by failing to request that section 387 findings be made before the court modified or set aside the December 13, 2007 order.
Mother acknowledges that a copy of the social worker’s request for a stay of the December 13, 2007 order was served on her trial counsel.
The Department and the child contend that, although mother has standing to appeal the termination of her parental rights, she lacks standing to appeal the denial of the placement of the child with father’s relatives. As mother and father have joined in each other’s contentions, we need not determine whether mother lacks standing to separately raise her contentions. The Department and the child also contend that, because neither parent raised the issue below of the need for the Department to file a section 387 petition, neither parent can raise the issue for the first time on appeal. As we disagree with the parents’ contentions, we do not need to determine whether they have forfeited their claims. Lastly, the Department and the child contend that the parents were not prejudiced by their counsel’s acts or omissions.
Under the dependency statutory scheme, the Department is obligated to monitor relative placements and to assess the continued appropriateness of such placements. (§ 366, subd. (a)(1).) If the Department has assessed that a relative placement is no longer appropriate, and if the Department seeks an order that changes or modifies a previous order by removing the child from the physical custody of a relative and directing placement of the child in a foster home, the Department must file a supplemental petition under section 387. (§ 387, subds. (a), (b) & (d).) Such a petition must contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child, or sufficient to show that the placement with the relative is not appropriate. (Id. at subd. (b); In re Miguel E. (2004) 120 Cal.App.4th 521, 541.)
“(a) An order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, . . . shall be made only after noticed hearing upon a supplemental petition. [¶] (b) The supplemental petition shall be filed by the social worker in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3. [¶] . . . [¶] (d) Upon the filing of the supplemental petition, the clerk of the juvenile court shall immediately set the same for hearing within 30 days, and the social worker shall cause notice thereof to be served upon the persons and in the manner prescribed by Sections 290.1 and 291. . . .” (§ 387.)
In the jurisdictional phase of a section 387 proceeding, the court determines whether the factual allegations of the supplemental petition are true and whether the previous disposition has been effective in protecting the child. (Cal. Rules of Court, rule 5.565(e)(1); In re Miguel E., supra, 120 Cal.App.4th at p. 542.) The Department must prove the jurisdictional facts by a preponderance of the evidence. (In re Jonique W. (1994) 26 Cal.App.4th 685, 691.) If the court finds the allegations are true, it conducts a dispositional phase to determine whether removal from custody is appropriate. (Rule 5.565(e)(2); In re Miguel E., supra, 120 Cal.App.4th at p. 542.) An appellate court reviews the court’s jurisdictional and dispositional findings under the substantial evidence standard of review. (In re Henry V. (2004) 119 Cal.App.4th 522, 529.)
All further rule references are to the California Rules of Court.
Whether or not the Department has filed a section 387 petition, a parent or any other person having an interest in a dependant child who is in a relative placement, including the child himself or herself through appointed counsel, “may, upon grounds of change circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . .” (§ 388, subd. (a).) “The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence; and (2) the proposed change in the court’s previous order is in the child’s best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415.)” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1071; see also In re Daijah T. (2000) 83 Cal.App.4th 666, 671-672.) The appellate standard of review is one of 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., supra, 8 Cal.4th at pp. 415-416; see also In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
In this case, the Department sought and the court filed on December 13, 2007, an order changing the placement of the child from the foster-adoptive parents to the great-aunt effective later in the month. Counsel for the child indicated that she had no objection to the requested order. Before the effective date of the ordered change of placement, the Department decided that the change should not take place on the date ordered. However, it did not file a section 387 petition. Rather, it prepared but did not submit a request for a stay of the order. While we do not condone the Department’s error in failing to secure a stay, we agree with the child’s contention that the failure of the Department’s counsel to submit the stay request to the court was not a deliberate plan by the Department to sabotage father’s family’s wish to place the child with the great-aunt, and that the record supports a finding that most of the parties thereafter acted on the assumption that the stay order had been signed. When father and the child learned that the stay order had not been signed, yet the change of placement had not occurred on the date ordered by the court, father sought to modify the order by changing the effective date of the change of placement and the child sought to set the order aside. As father’s parental rights had not been terminated, he could properly file a section 388 petition seeking to modify the December 13, 2007 order by requiring the change of placement go forward at a later date. Counsel for the child could properly file a section 388 petition seeking to set aside the December 13, 2007 order placing the child with the great-aunt, whether or not the child’s physical custody had already been changed to that of the great-aunt at the time the section 388 petition was filed. And, as counsel for the child is always authorized to act in the child’s best interests, the fact that counsel had previously indicated no objection to the December 13, 2007 order did not preclude counsel from later objecting to the order based on “a change of circumstance or new evidence.” (§ 388, subd. (a).) The court did not err or abuse its discretion in considering the child’s and father’s section 388 petitions without requiring the Department to file a section 387 petition.
California law expressly provides that indigent parents whose children are the subject of dependency proceedings and may be placed out of the home have the right to appointed counsel (§ 317, subd. (b); rule 5.534(h)(1)(B)), and, if represented by counsel, they have the right to competent counsel. (§ 317.5, subd. (a).) “[T]his statutory right to counsel ‘must include the right to seek review of claims of incompetence of counsel.” (In re Paul W. (2007) 151 Cal.App.4th 37, 66; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1662.) As in the criminal context, a parent challenging a court order based on ineffective assistance of counsel “must meet a two-part test: [the parent] must show that ‘counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law’ and must also ‘establish that the claimed error was prejudicial.’ [Citation.] The test for prejudice is whether it is ‘ “reasonably probable” ’ that a more favorable result would have occurred in the absence of counsel’s alleged failings. [Citations.]” (In re Paul W., supra, at p. 66; In re Kristin H., supra, at pp. 1667-1668.)
The record in this case amply supports the juvenile court’s finding that the order for the child’s change of placement from the foster-adoptive parents to the great-aunt was no longer appropriate and was not in the child’s best interests, and that the child should remain with his foster-adoptive family. (See § 387.) The great-aunt did not step forward as a possible placement for the child until one month before reunification services were terminated, and she did not receive her foster home certification or have her first visit with the child until after services were terminated. By that time, the child was eight months old, the foster-adoptive parents had been the child’s primary caregivers for over two months, and the child had just recently transferred his attachment from his emergency foster mother to the foster-adoptive parents after going through a difficult two-month transition. One month later, after the child began having overnight visits with the great-aunt, which were instituted in order to help the child transition from the foster-adoptive placement to the great-aunt’s home, the child began to exhibit symptoms of separation anxiety. Over time, the child’s exhibited behavior was such that those entrusted to determine the child’s best interests were of the opinion that the child would suffer an attachment disorder if the change of placement contemplated by the December 13, 2007 order did occur. The child was at a critical stage in his physical and emotional development and he had already experienced a difficult transition and change of attachment. If he had to experience another difficult transition, he would suffer such trauma that he would be at risk of developing an attachment disorder such that he would not be able to ever form another attachment. On this record, we cannot say that it is reasonably probable that a result more favorable to the parents would have occurred had either of their counsel insisted that the Department file a section 387 petition. Accordingly, we find that the parents have not carried their burden of demonstrating ineffective assistance of counsel.
Section 388 and Relative Placement
The parents contend that the court abused its discretion by granting the child’s section 388 petition and denying father’s petition. They argue that the court should have considered the relative placement preference in section 361.3, and that it was not in the child’s best interests for the child to remain with “strangers.” The Department and the child contend that the court exercised sound discretion and acted in the child’s best interests by allowing the child to remain with his foster-adoptive parents.
The appellate court in In re Kimberly F. (1997) 56 Cal.App.4th 519, listed some factors the juvenile court must consider when deciding a section 388 petition. First, “any modification under section 388 must consider the seriousness of the reason for the dependency in the first place.” (Id. at p. 530.) Second, the court must look at the strength of the existing bond between the child and his or her present caretakers and the length of time the child has been in the dependency system. “While the bond to the caretaker cannot be dispositive . . ., the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion.” (Id. at p. 531, italics omitted.) Third, as “the essence of a section 388 motion is that there has been a change of circumstances” (ibid.), the court must consider “the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (Id. at p. 532.)
By its provisions, section 361.3 requires the Department to give “preferential consideration” “to a request by a relative of the child for placement with the relative.” (§ 361.3, subd. (a).) Although “relatives” is defined as all relatives within the fifth degree of kinship, including great-aunts, the only relatives who are to be given “preferential consideration” for the placement of the child are adult grandparents, aunts, uncles, and siblings. (§ 361.3, subd. (c)(2).) “ ‘Preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.” (§ 361.3, subd. (c)(1).)
“[W]henever a new placement of the child must be made” after the initial dispositional order, “consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the child’s reunification or permanent plan requirements.” (§ 361.3, subd. (d); see In re Lauren R. (2007) 148 Cal.App.4th 841, 854.) However, in addition to the factors the Department considers when investigating a relative for an initial placement, for a change of placement the Department must also consider “whether the relative has established and maintained a relationship with the child.” (§ 361.3, subd. (d).) “If the court does not place the child with a relative who has been considered for placement pursuant to this section, the court shall state for the record the reasons placement with that relative was denied.” (§ 361.3, subd. (e).)
“The relative placement preference, however, is not a relative placement guarantee.” (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.) “The overriding concern of dependency proceedings . . . is not the interest of extended family members but the interest of the child. ‘[R]egardless 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 295, 321.) Section 361.3 does not create an evidentiary presumption that relative placement is in a child’s best interests. (7 Cal.4th at p. 320.) The passage of time is a significant factor in a child’s life; the longer a successful placement continues, the more important the child’s need for continuity and stability becomes in the evaluation of her [or his] best interests. (Id. at p. 319.)” (In re Lauren R., supra, 148 Cal.App.4th at p. 855; see also In re Jessica Z. (1990) 225 Cal.App.3d 1089, 1100.)
“[W]hen a court has made a custody determination in a dependency proceeding, ‘ “a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].” ’ [Citations.]” (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
In Stephanie M., the question before the juvenile court at the section 388 hearing was whether a change of placement from the foster parents to a grandmother was in the best interests of the child. The grandmother’s home had been evaluated and the grandmother testified at the hearing. The juvenile court essentially found the grandmother’s home to be a suitable one, and it carefully considered the question of placing the child in the grandmother’s custody. Nonetheless, it was the considered judgment of the juvenile court that a change of placement was not in the child’s best interest, in view of the child’s fragile emotional state and her successful and enduring bond with the foster parents. Our Supreme Court found no abuse of discretion or misapplication of section 361.3 in the juvenile court’s determination. (In re Stephanie M., supra, 7 Cal.4th at p. 321.)
In this case, the question before the juvenile court at the section 388 hearing was what was in the best interests of the child, that is, whether the order changing placement from the foster parents to the great-aunt should be modified or set aside. Although the Department had to consider placement of the child with the great-aunt when the great-aunt stepped forward, the great-aunt was not entitled to preferential consideration. (§ 361.3, subd. (c)(2).) When evaluating the great-aunt for placement of the child, as the child had already been placed in two different foster homes, the Department was required to consider whether the great-aunt had established and maintained a relationship with the child (§ 361.3, subd. (d)), and the court was required to consider the strength of the existing bond between the child and his then caretakers, the foster-adoptive family. (In re Kimberly F., supra, 56 Cal.App.4th at p. 531.)
The evidence presented at the section 388 hearing was as follows. The reason for the dependency was that the child was removed from his parents at birth due to their drug and criminal history, the child had been exposed to drugs in utero, and the child’s half sibling was found in a hotel room with drugs and drug paraphernalia but without food or drink. (See In re Kimberly F., supra, 56 Cal.App.4th at p. 530.) Placement of the child with the paternal grandmother had been considered and rejected due to her child welfare, drug, and criminal history. Placement of the child with the first great-aunt was considered until the great-aunt withdrew her request for that placement. The second great-aunt’s home had been evaluated through the ICPC process, she had received a foster care certification, and the social worker obtained an ex parte order for a change of placement from the foster-adoptive parents to the great-aunt’s home. When the foster-adoptive parents filed a grievance seeking to keep the child in their care, the social worker prepared a request for a stay of the ex parte order. The great-aunt participated in the grievance hearing and she testified at the section 388 hearing. The court essentially found that the great-aunt’s home was a suitable one, and the court carefully considered moving the child’s placement to the great-aunt’s home. Nevertheless, it was the considered judgment of the juvenile court that moving the child to the great-aunt’s home was not in the best interests of the child because of his attachment to his foster-adoptive parents and the anxiety he was exhibiting during the extended attempt at a transition. (Id. at pp. 531-532.) As we stated above, the record amply supports the juvenile court’s findings. Accordingly, we cannot say that the juvenile court abused its discretion or misapplied section 361.3. (In re Stephanie M., supra, 7 Cal.4th at p. 321.)
Termination of Parental Rights
The parents contend that, if this court finds that the court erred or abused its discretion in granting the child’s section 388 petition, it must reverse the order terminating parental rights and remand the matter. The parents do not otherwise contest the order terminating their parental rights. As we have found no error or abuse of discretion by the juvenile court regarding the order granting the child’s section 388 petition, we will affirm the order terminating both parents’ parental rights.
DISPOSITION
The order of June 12, 2008, terminating the parents’ parental rights is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.