Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. NJ11907D, Carol Isackson, Judge.
McINTYRE, J.
Eddie F. appeals from a judgment denying his petition for a modification of the orders of the juvenile court terminating his parental rights and selecting adoption as the permanent plan for his daughter, Eva F., based on changed circumstances. (Welf. & Inst. Code, § 388; all further statutory references are to this code.) He contends the juvenile court abused its discretion in denying his petition because the San Diego Health and Human Services Agency (the Agency) failed to comply with the court's earlier order to expedite consideration of placement of Eva with his mother, Nancy H., in Mississippi. The Agency acknowledges that there was incomplete follow-through on the consideration of the relative placement prior to the hearing terminating Eddie's parental rights, but contends that (1) Eddie does not have standing to raise this challenge on appeal, and (2) in any event, he has not shown that the juvenile court abused its discretion in finding that his petition was not supported by a showing of either changed circumstances or that the requested relief was in Eva's best interests. We need not reach the standing issue because we reject Eddie's argument on its merits.
FACTUAL AND PROCEDURAL BACKGROUND
Eva is the daughter of Eddie and Rochelle B. At her birth, both Eva and her mother tested positive for cocaine and the Agency filed a petition on Eva's behalf pursuant to section 300, subdivision (b). The court placed Eva in foster care, but later returned her to Eddie's custody and terminated its jurisdiction. Eddie promptly took Eva to Mississippi and left her in the care of his former girlfriend; Nancy took Eva into her home after concluding that the former girlfriend's home was not suitable.
In June or July of 2006, when Eva was about a year old, Eddie brought her back to San Diego. Within weeks, Eddie was arrested for possessing rock cocaine for sale and admitted his continuing use of marijuana. The Agency filed a second dependency petition on Eva's behalf, resulting in Eva again being placed in foster care.
At that time, Eddie told assigned social worker Carly Ray that he wanted Eva and her younger half-brothers, Kenneth and Malachi, who were living together in another foster home, to be placed with Nancy in Mississippi while he underwent services. A month or so later, however, he indicated his desire to have the children to stay in San Diego with him or with his cousin, Ursula C., although Ursula never returned any of the Agency's calls about possible placement with her. Nancy appeared at the August 2006 jurisdictional and dispositional hearing and requested that the court place Eva with her in Mississippi.
In March 2007 social worker Ray contacted Nancy regarding the possible placement of Eva, Kenneth and Malachi together. Nancy expressed a willingness to care for all three of the children, and Ray initiated a referral for a Mississippi home evaluation for possible placement under the Interstate Compact for the Placement of Children (the ICPC). When Ray called Nancy let her know that the ICPC process had begun, Nancy indicated that she could care for Eva but not the boys. At some point, Nancy was contacted by the child protective service office in Mississippi for fingerprinting, but thereafter was told that that office was waiting for information from California before the matter could proceed further. The Mississippi office, however, did not notify the California representatives that more information was needed.
At about the same time that Ray was following up on Eva's placement with Nancy, Eddie was arrested anew on drug-related offenses. He entered into a plea agreement pursuant to which he would serve a two- to four-year sentence and thereafter stopped participating in services or maintaining contact with Eva, despite Ray's efforts to keep him involved. At that time, Eddie indicated that he was no longer interested in having the children moved out of state, but wanted them to stay in their current placements. Based in part on Eddie's impending incarceration, Ray prepared a report recommending that the juvenile court terminate services for him and set the matter for a permanency planning hearing, with a recommendation that Eva be placed for adoption.
In May 2007, Ray was contacted by the San Diego ICPC coordinator regarding the status of the Mississippi referral and told that the referral paperwork had been lost. She reinitiated the Mississippi referral and requested an expedited response in August 2007, but noted that the Agency's desire (and that of Eddie) was not to move the children out of state. Although the request did appear on the Mississippi county office's computer system, that office did not follow up on the request because the necessary paperwork was either not transferred to it by the Mississippi state ICPC coordinator or was at some point misplaced by one of the two offices.
In early 2008, the juvenile court terminated services for Eddie, who was still awaiting sentencing on the March 2007 criminal charges; he was arrested on additional drug charges less than a month later. Shortly thereafter, Eva's mother stopped participating in services and relinquished her parental rights to Eva, and the juvenile court relieved her attorney and set a permanency planning hearing pursuant to section 366.26. In preparation for the hearing, Ray prepared an assessment report indicating that Eva had bonded to her foster mother, who was interested in adopting Eva, and that there were a number of other families with approved home studies who were interested in adopting a child with Eva's characteristics.
In July 2008, Stephannie Novitski replaced Ray as the assigned social worker for Eva. In the fall, Novitski was contacted by the San Diego ICPC office, was told that it had not received any response to its contacts with the Mississippi regarding the evaluation of Nancy's home as a possible placement for Eva, and was asked whether the Agency wanted to close the interstate placement referral. Novitski submitted the paperwork to close the ICPC referral, although she subsequently spoke to Nancy, who reiterated her desire to get custody of Eva but reported that she had not heard from the Mississippi representatives for "some time."
In January 2009, county counsel undertook to investigate what had happened with the Mississippi ICPC referral. At about the same time, Eddie filed his section 388 petition requesting that the court modify its July 1 order setting a permanency planning hearing to require that the Agency complete the ICPC referral, place Eva with Nancy, and allow Nancy to adopt Eva, if appropriate. While Eddie's petition was pending, Novitski initiated, yet again, an expedited referral for an evaluation of Nancy's home in Mississippi.
In support of his petition, Eddie filed a detailed declaration from Nancy stating that she had cared for Eva from June 2005 until June 2006 and that, while in her care, Eva had many opportunities to spend time with extended family that lived in Mississippi. It also indicated that Nancy had visited Eva twice and talked to Eva on the phone frequently after Eva was placed in protective custody and that, although she had followed up on numerous occasions with the Mississippi Child Protective Services regarding the status of the ICPC referral, she was consistently told that more information was needed from California. Nancy also averred that beginning in January 2008 she made multiple calls a week to social worker Ray and left messages (specifically that she "must have called 50 times and left messages for her in... January 2008 alone"), but did not get a response from the Agency until social worker Novitski called her in October of that year. She also said that Eva's foster mother never returned her calls seeking to arrange visits with Eva when she was in San Diego in September 2008 and January 2009.
At the combined contested hearing on Eddie's petition and the permanent plan for Eva, numerous witnesses, including Nancy, Eva's foster mother, Ray and Novitski, testified. The court also considered the stipulated statement as to the testimony that the Mississippi ICPC coordinator would have given regarding the handling of the ICPC request if called as a witness.
After the close of evidence and having heard argument, the court found that Eddie had not met his burden to establish changed circumstances under section 388. Specifically, it found not credible Nancy's testimony that she had attempted to make numerous, repeated contacts with the Agency and with Eva's foster mother, and noted that neither Eddie nor Nancy had requested a follow up on the ICPC referral at the court hearings in August 2007 or July 2008, but instead raised the issue for the first time in October 2008, when the permanency planning hearing was imminent. The court also concluded that it was not in Eva's best interests to change her placement, terminated Eddie's parental rights and placed Eva for adoption.
Eddie appeals.
DISCUSSION
Section 388, subdivision (a) allows a parent of a child who has been declared a dependent of the juvenile court to petition the court to modify, change or set aside any of its previous orders based on changed circumstances or new evidence. To obtain relief under section 388, the petitioning parent must show not only changed circumstances or new evidence, but also that the requested change is in the child's best interests. (§ 388; Cal. Rules of Court, rule 5.570(h); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Where, as here, the court has terminated reunification services and the parent thereafter requests a change of placement, the focus of the section 388 hearing shifts away from the parents' interest in the care, custody and companionship of the child to the child's needs for permanency and stability; in this way, "the [statutory scheme] provides a means for the court to address a legitimate change of circumstances while protecting the child's need for prompt resolution of [her] custody status." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
The determination of whether modification is appropriate requires a consideration of (i) the seriousness of the problem leading to the dependency and the reason for its continuation; (ii) the strength of the parent-child and child-caretaker bonds and the amount of time the child has been in the system; and (iii) the nature of the changed circumstance, the ease by which it might be achieved and the reason it did not occur sooner. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-531.) The juvenile court's decision about whether to modify a prior order rests within the court's sound discretion and we will not disturb it unless it was " 'arbitrary, capricious, or patently absurd.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318, quoting In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) Here, the juvenile court concluded that Eddie had not established either changed circumstances or that a change in placement was in Eva's best interests. The court did not abuse its discretion in reaching these conclusions.
Although the law recognizes a preference for placement of a child with a relative (§§ 361.3, subd. (a), 16000, subd. (a), 16501.1, subd. (c)(1); also § 309; Fam. Code, § 7950, subd. (a)(1)), this preference does not rise to the level of a due process right. (See In re Stephanie M., supra, 7 Cal.4th at p. 321 [recognizing that the statutory preference for relative placement does not even create an evidentiary presumption that relative placement is in a child's best interests, which is the overriding concern of dependency proceedings].) Further, the fact that this preference was not facilitated here was not, as of the time of the hearing on the section 388 petition, a new circumstance. Nancy appeared at the jurisdictional and dispositional hearing in August 2006 and requested that Eva be placed with her, and the social worker initiated the ICPC referral in March 2007. Nonetheless, no evaluation of Nancy as a possible placement for Eva happened for well over a year, and no one involved with this matter sought to rectify that, until Eddie filed his section 388 petition in January 2009, when (as the juvenile court noted) the permanency planning hearing was imminent. By that time, the fact that no evaluation had occurred constituted neither a changed circumstance nor new evidence.
Moreover, even if the failure to complete the ICPC evaluation had constituted a changed circumstances or new evidence within the meaning of section 388, the evidence submitted at the hearing on Eddie's petition for relief was more than sufficient to support the court's finding that Eva's best interests would not be served by completing the ICPC evaluation and thereafter determining whether to place Eva with Nancy. Eva had lived with her foster mother for two and a half years, had thrived in her foster mother's care and was strongly bonded with the foster mother and her extended family. Eva's foster mother facilitated regular visitation with Kenneth and Malachi, with whom Eva also had a close relationship. By contrast, because Eva's contacts with Nancy were so limited and sporadic during Eva's current detention, they did not have as strong a relationship as Eva had with her foster mother.
The primary consideration in determining a child's best interests at this late point in the proceedings is in assuring stability and continuity for the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) " 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' " (Ibid., quoting Burchard v. Garay (1986) 42 Cal.3d 531, 538.) Here, granting Eddie the relief he requested would have extended Eva's detention, and the uncertainty of her permanent placement, for another not-insignificant period of time. The juvenile court did not abuse its discretion in concluding that Eva's needs for continuity and stability were best served by denying the section 388 petition.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P.J., AARON, J.