Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIJ109023 William A. Anderson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Arthur J. LaCilento for Objector and Appellant.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Tetley Law Offices and Frank O. Tetley for Movants and Respondents.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Minor.
OPINION
Richli, Acting P.J.
Melody L. is the paternal grandmother of Isaac L., the subject of this dependency proceeding. She appeals from the summary denial of her “changed circumstances” petition. (Welf. & Inst. Code, § 388.) Isaac had been placed at birth with a foster family that wanted to adopt him. After parental rights were terminated, Melody asked that Isaac be removed from that placement and placed with her and his two older siblings instead. We will hold that Melody failed to adequately allege either that there were changed circumstances since the entry of the relevant previous order or that granting her request would be in Isaac’s best interest. Hence, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
In August 2006, L.F. (the mother) gave birth to Isaac L. Because both the mother and Isaac tested positive for amphetamines, opiates, and tranquilizers, and because the mother admitted using illegal drugs while pregnant, Isaac was detained, and this dependency was filed.
J.L. (the father) is Isaac’s alleged father. The Department of Public Social Services (the Department) contacted him and made him aware of the dependency, but he refused to provide his address or to communicate with the Department any further, and he never appeared in the dependency proceedings.
The mother and father had two older children, but their parental rights to these children had been terminated. The children had been placed with the father’s parents (i.e., Isaac’s paternal grandparents), John and Melody L.
According to the social worker, when Isaac was first detained, Melody told her that “she could not provide care for [Isaac] at this time due to her current family circumstances. She is in the process of adopting [Isaac]’s siblings, . . . and she expressed feeling overwhelmed in providing care for her . . . son and two grandchildren.” Accordingly, when Isaac was discharged from the hospital, he was placed with unrelated foster parents, Mr. and Mrs. S. They almost immediately expressed an interest in adopting him.
In October 2006, the juvenile court declared Isaac a dependent and formally ordered him placed outside the home.
In late December 2006 or early January 2007, John and Melody asked that Isaac be placed with them. The Department considered this request; it arranged for them to have a visit with Isaac, but it ultimately determined that Isaac should remain with the S.’s.
In February 2007, the S.’s were granted de facto parent status. Immediately thereafter, the juvenile court held a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26). Melody and her counsel appeared at the hearing; Melody’s counsel requested a continuance so that Melody could file a “changed circumstances” petition pursuant to Welfare and Institutions Code section 388 (section 388) petition, seeking placement with her. Melody denied ever having said that she did not want placement. The juvenile court refused to grant a continuance and terminated parental rights.
On March 19, 2007, Melody submitted a section 388 petition. In it, she asked the juvenile court to place Isaac with her. She identified the order that she was seeking to modify as the detention order entered in August 2006, in which, she stated, “[t]he [juvenile court] provided [the Department] discretion to place the minor with any relative, parent or foster placement.” Elsewhere in her petition, however, she stated: “I am requesting this court modify its previous court orders terminating the parents’ parental rights on or about February . . . 2007.”
As changed circumstances, Melody alleged that she was “ready, willing and able” to care for Isaac, and that the Department had lied to her regarding placement. She noted that she was in the process of adopting Isaac’s two older siblings. She claimed that she had been calling the social workers for months, requesting visitation and custody, but they would not return her calls until her adoptions social worker interceded for her. At that point, the Department interviewed her. The social workers “were very positive and led [her] to believe that Isaac would be coming to [her] home.”
On March 21, 2007, the juvenile court denied the section 388 petition without a hearing. It found that the petition did not state new evidence or a change of circumstances and did not show how the relief requested would be in the best interest of the child.
II
DISCUSSION
Melody contends that the juvenile court erred by summarily denying her section 388 petition.
“Under section 388, a person with an interest in a dependent child may petition the court to change, modify, or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and the proposed modification is in the child’s best interest. [Citations.]” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
“ . . . ‘Such petitions are to be liberally construed in favor of granting a hearing to consider the [petitioner]’s request. [Citations.] The [petitioner] need only make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]’ [Citation.] ‘There are two parts to the prima facie showing: The [petitioner] must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.] We review the juvenile court’s summary denial of a section 388 petition for abuse of discretion.’ [Citation.]” (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079, quoting In re Marilyn H. (1993) 5 Cal.4th 295, 309-310 and In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451; cf. In re Serrano (1995) 10 Cal.4th 447, 455-456 [in determining whether a habeas corpus petition alleges a prima facie case, a court can reject allegations refuted by its own records].)
We also note that Melody affirmatively stated that her petition was “based upon the [l]egal [f]ile, all [s]ocial [w]orker reports in the file, the attached [d]eclaration and exhibits, and any oral argument . . . .” (Italics added.)
To show changed circumstances, Melody relied on the fact that previously, she had reportedly been unwilling to have Isaac placed with her, but now she was willing. She also asserted that the Department had abused its discretion by failing to place Isaac with her. The S.’s argue that these were not genuinely changed circumstances. They point out that Melody had first requested placement in December 2006 or January 2007 and that the juvenile court had been made aware of her request at or before the section 366.26 hearing in February 2007.
Understandably, Melody makes much of her allegation that the Department supposedly lied. We cannot see, however, how this makes the circumstances any more or less changed or the order sought any more or less in Isaac’s best interest.
At this point, it is important to remember that the whole point of a section 388 petition is “to change, modify, or set aside any order of court previously made . . . .” (§ 388, subd. (a).) Accordingly, the “change of circumstance” (ibid.) that the petitioner must show is a change since the previous order was made. But in this case, what was the relevant previous order? In her section 388 petition, Melody claimed at first that she was seeking to modify the August 2006 detention order. Later in her petition, however, she claimed that she was seeking to modify the February 2007 order terminating parental rights.
Moreover, the detention order merely gave the Department discretion to place Isaac “in suitable relative care, with an able and willing non-related extended family member, licensed shelter, foster home, or facility suitable to meet the child’s needs.” Prior to termination of parental rights, placement decisions are made by the Department (Welf. & Inst. Code, § 361.2, subd. (e)), subject to the juvenile court’s “general supervisory power . . . .” (In re Robert A. (1992) 4 Cal.App.4th 174, 188.) Although the Department had placed Isaac with the S.’s, the juvenile court had never made an order either approving that placement or denying placement with Melody. In a case like this, in which the juvenile court has never been asked to exercise its general supervisory power over placement, we question whether a section 388 petition is even an appropriate vehicle for a non parent to seek a change of placement.
It is appropriate for a parent to use a section 388 petition to seek custody of the child, because the parent is effectively seeking to modify the order removing the child from his or her custody. (See In re Marilyn H., supra, 5 Cal.4th at p. 310.) It may also be appropriate for a nonparent to use a section 388 petition to seek placement when this would effectively modify a previous placement order. (See, e.g., In re Antonio G. (2007) 159 Cal.App.4th 369, 372-373.)
Significantly, at the section 366.26 hearing, the juvenile court had ordered that an application for adoption by the S.’s was to be given preference over any other application for adoption. It was statutorily required to make such an order, as long as the Department had determined (1) that Isaac had “substantial emotional ties” to the S.’s, and (2) that removal from the S.’s “would be seriously detrimental to [Isaac]’s emotional well-being.” (§ 366.26, subd. (k).) Melody’s request that Isaac be removed from his prospective adoptive parents and placed with her effectively sought to modify this February 2007 order. We therefore conclude that, to obtain a hearing on her March 2007 petition, Melody had to allege changed circumstances since entry of the February 2007 order. Inasmuch as she had appeared at the February 2007 hearing and had indicated that she wanted placement, she could not do this.
Section 366.26, subdivision (i)(1), as relevant here, provides: “Any order of the court permanently terminating parental rights under this section shall be conclusive and binding . . . . After making the order, the juvenile court shall have no power to set aside, change, or modify it . . . .” We may assume, without deciding, that this provision does not apply to the portion of the order that gave the S.’s preference for adoption. If it does apply, of course, the juvenile court did not even have jurisdiction to grant the section 388 petition. (See In re Ronald V. (1993) 13 Cal.App.4th 1803, 1806.)
Separately and alternatively, Melody also did not adequately allege that the order she sought would be in Isaac’s best interest. Isaac had been placed with the S.’s virtually since birth; they were the only parents he had ever known. The social worker reported that he was “very bonded” to them. They, in turn, were “very committed to adopting Isaac.” The juvenile court had designated them as Isaac’s de facto parents. We note that Melody was present and represented by counsel at that hearing, yet she did not object to the S.’s request for de facto parent status.
By contrast, Melody had had only one visit with Isaac. When she held him, he “fuss[ed]” and was “not comfortable.” She had “handed Isaac back to the foster parents, saying the child was afraid or scared.” Although she wanted Isaac placed with her, nowhere in her section 388 petition did she say that she was interested in adopting him. Accordingly, the juvenile court could reasonably conclude that taking Isaac from the S.’s and placing him with Melody would leave him no better off, and most likely worse off.
Melody seems to simply presume that it would necessarily be in Isaac’s best interest to be placed with relatives — i.e., with her and his two older siblings. In the absence of any allegation that he had an established relationship with them, however, the juvenile court was not required to accept this presumption. Moreover, the record affirmatively demonstrated that Isaac had bonded, not only with the S.’s, but also with their two-year-old adoptive daughter. The S.’s reported that “[h]e is delighted at the very sight of his [f]oster [s]ister. Just the sound of her voice . . . will often soothe him mid-cry and his demeanor will change to a smile or a laugh immediately upon hearing her.”
Melody repeatedly complains that the juvenile court also failed to address “visitation issues and sibling contact issues . . . .” Her section 388 petition, however, did not request visitation with her or with Isaac’s siblings. Moreover, Isaac’s siblings were not parties to the section 388 petition or to the dependency. Thus, these issues simply were not before the juvenile court.
We therefore conclude that the juvenile court did not abuse its discretion by summarily denying Melody’s section 388 petition.
III
DISPOSITION
The order appealed from is affirmed.
We concur: Gaut J., King J.
In practice, nonparents have occasionally used section 388 petitions to request placement, even though there has been no previous court order regarding placement. (E.g., In re Daniel C., supra, 141 Cal.App.4th at pp. 1441-1443.) We are unaware, however, of any case squarely holding that this is appropriate. “‘[I]t is axiomatic that cases are not authority for propositions not considered. [Citations.]’ [Citation.]” (Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1153, quoting People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)