Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County No. CK62193, Marilyn Mackel, Juvenile Court Referee.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant Charles P.
Marsha F. Levine for Appellant Patricia A.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Father, Charles P., appeals from an order terminating his parental rights (Welf. & Inst. Code, § 366.26 ) over his minor sons, Joshua P. and Nicholas P., and denying a petition for change of order (§ 388) by paternal aunt, Patricia A. Patricia appeals from the same order. Both contend the juvenile court abused its discretion in denying Patricia’s request that the boys be placed with her. We affirm.
All further section references are to the Welfare and Institutions Code.
Father also purports to appeal from previous orders pertaining to the termination of parental rights and denial of the petition for change of order. Inasmuch as he makes no contentions with respect to any order other than the order denying Patricia A.’s petition, any such contention is waived. (Title G. & T. Co. v. Fraternal Finance Co. (1934) 220 Cal. 362, 363; Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 701, pp. 769-771.)
FACTUAL AND PROCEDURAL BACKGROUND
On December 14, 2005, the Department of Children and Family Services (DCFS) received a referral regarding then three-year-old Joshua and two-year-old Nicholas due to domestic violence between Father and Mother, Danielle D. On January 26, 2006, DCFS filed a petition under subdivisions (a), (b) and (g) of section 300, alleging the boys were at risk due to the parents’ domestic violence and substance abuse, as well as Father’s criminal history and Mother’s failure to provide for them. The boys were detained with their paternal grandparents. Their younger sister, Amber, was placed with a family friend, Diane F. Two older half-siblings also were detained.
Mother is not a party to this appeal.
The younger sister, who was renamed “Amber” by Diane F., and older half-siblings are not subjects of this appeal.
At the jurisdiction/disposition hearing, the petition was sustained as amended. The juvenile court ordered the boys detained with the paternal grandparents and ordered reunification services for Father and Mother.
While placed with the paternal grandparents, the boys visited with their younger sister, both at the grandparents’ home and with Mother at Diane F.’s home. They also saw Patricia A. regularly.
Neither Father nor Mother complied with the court-ordered case plans, and the court eventually terminated their reunification services. It set a section 366.26 permanency planning hearing for January 3, 2008.
DCFS filed a supplemental petition (§ 387) on April 10, 2007. Father had taken the paternal grandmother’s keys and abducted Joshua and Nicholas. They were located several hours later after Father, who was trying to take them to Mexico, was involved in a hit and run accident while driving under the influence. Father was arrested for driving under the influence, grand theft of an automobile and child stealing. The boys were detained with Diane F.
The juvenile court expressed concern that the paternal grandparents had not set firm boundaries for Father, so that he would not have unsupervised access to the boys. It did not believe, however, that they were allowing him to live in the family home or have unlimited access to the boys. It therefore dismissed the petition. It released the boys to the paternal grandparents but ordered the grandparents to have counseling to address codependency issues.
At the January 3, 2008 hearing, the permanency planning hearing was continued to April. Both the paternal grandparents and Diane F. were identified as prospective adoptive parents.
In late January 2008, however, a children’s social worker (CSW) noticed a strong odor of alcohol on the paternal grandmother’s breath. The grandmother agreed to submit to random drug and alcohol testing. On April 1, the permanency planning hearing was continued to May 12. The following day, DCFS learned that the grandmother had tested positive for cocaine. It removed the boys from her home and placed them with Diane F.
On April 7, 2008, DCFS filed a supplemental petition (§ 387) alleging placement with the paternal grandparents no longer was appropriate due to the paternal grandmother’s alcohol and drug use. At the detention hearing on the petition, Patricia A. requested that “[i]f [the boys] are not able to go back with my mom at some point, then I would like to step in.” The juvenile court explained that placement with their sibling would “take priority in the law. The siblings[’] relationship should be fostered.” The juvenile court ordered the boys detained with Diane F. It also ordered DCFS to assess Patricia “for placement in the event a new placement becomes necessary.”
In a report for the jurisdiction/disposition hearing on the supplemental petition, DCFS noted that Patricia A. had “expressed an interest in having [the boys] within her care. [Patricia] has stated that she feels that she could provide regular daily care to the children. [Patricia] has not provided regular care for the boy’s [sic] before but has help[ed] out with appointments and dropped in to visit for a few hours. [¶] [Patricia] currently does not have stable housing for the boy’s [sic] in place but would get housing if she knew for sure the boy’s [sic] would be placed in her care.”
DCFS also noted that the boys had lived with Diane F. and her family when Mother was unable to find housing and when the boys previously were detained. Diane had facilitated visitation with Patricia A. and the paternal grandparents. Diane and her family were “very dedicated to all of the children’s well being.” An adoption home study for Diane to adopt all three children had been approved.
On May 12, 2008, Patricia A. filed a petition for modification (§ 388), seeking to have Joshua and Nicholas placed in her custody and to be allowed to give them a permanent home. The change in circumstances, she stated was that “[b]ecause my nephews were so well taken care of I never felt the need to intervene with their placement or custody. However, with the recent detainment I would like to formally declare my interest in taking custody of my nephews and state my position.” This change would be in the boys’ best interest, Patricia stated, because “Joshua and Nicholas have always been a significant part of our family since the day they were born. These children are extremely attached to my family and I [sic], and depend on my family for stability and comfort.”
Attached to the petition was a May 5, 2008 letter Patricia A. wrote to the court, stating her concerns about the boys’ placement with, and possible adoption by, Diane F. Patricia expressed shock at the boys’ removal from the paternal grandparents’ home. She wrote that she told the CSW that she wanted custody of her nephews if they were not returned to her parents, and she was willing to obtain housing suitable for them if granted custody. She complained that the social worker “essentially overlooked what I told her and advised me that the [DCFS] was not going to recommend placing the children in my care because she feels that I am somehow ‘enabling’ my family.” The CSW also told her that DCFS would not allow her to adopt the boys; the most it would allow her would be legal guardianship. Patricia wrote about her involvement in the boys’ lives and asked the court not to “tear [her] family apart” but to place the boys in her custody if they could not be returned to her parents’ home.
On May 12, 2008, the juvenile court sustained the supplemental petition. It granted a hearing on Patricia A.’s petition for modification. It ordered DCFS to assess Patricia for placement but noted that she did not have a stable housing situation and was not in a position to care for the boys at that time.
In a report prepared for the July 1, 2008 hearing on the petition for modification, DCFS noted that Patricia A. had obtained suitable housing. She was committed to adopting Joshua and Nicholas and had enrolled in a parenting class. A CSW spoke to counsel for Joshua and Nicholas, who wanted the boys placed in Patricia’s care because she had been involved in their lives, was willing to protect them and would enable them to remain in contact with their paternal relatives. The CSW interviewed the boys’ therapist, who could not make a recommendation because the boys were doing well in their placement with Diane F. and had a connection both to her and to Patricia.
DCFS expressed concern that adoption by Patricia A. would separate Joshua and Nicholas from their sister, as well as a familiar caregiver. It also was concerned that she might limit the boys’ contact with their parents. In addition, it was not sure that Patricia “can accept/protect children” from the paternal grandmother’s substance abuse.
DCFS noted that since being placed with Diane F., Joshua and Nicholas had become more open with their feelings about Mother, and their relationship with her had improved. The boys were able to visit with their paternal relatives, including Patricia, on weekends. They expressed that they were happy with their placement in Diane’s home. DCFS recommended that they remain with Diane and have a permanent plan of adoption.
The hearing on Patricia A.’s petition was continued a number of times due to other matters in the case. On July 31, 2008, DCFS requested that Patricia no longer be allowed unmonitored visitation with Joshua and Nicholas. She had been asking them about where they want to live. Additionally, the paternal grandfather told them that their home was with the paternal grandparents, not with Diane F. At the hearing held on that date, the court granted Diane’s request for de facto parent status. It also ordered that the paternal grandparents not be present during Patricia’s visits with the boys.
The hearing was again continued a number of times. Joshua and Nicholas continued to do well in their placement with Diane F. Diane facilitated contact between Joshua and Nicholas and their older siblings. She also facilitated visitation with Mother. Diane’s adoption of Amber was finalized in November 2008.
Father was incarcerated and communicated with the boys by letter.
Joshua and Nicholas also continued “to enjoy regular weekend visits with their beloved paternal aunt Patricia A[.] The boys enjoy this time which affords them [a]n opportunity to spend time with paternal relatives and family friends.”
Home studies for both Diane F. and Patricia A. were approved. The CSW noted that “[o]n 02/05/09 a Team Decision Making Meeting was held to determine the most appropriate permanent plan for the boys.” This was attended by Mother, Diane F., the maternal grandfather, Patricia A.’s godmother, and a number of social workers. “The paternal grandparents were invited but did not attend.”
The CSW explained that “[w]hile the [DCFS] recognizes that the children have two viable permanent placement options, i.e., two approved home studies, the prevailing decision to have the children remain as placed is based on the children’s ongoing request to remain in [Diane F.’s] home where their sister Amber resides. Further, this option readily affords the children continued bonds via regular, ongoing and unobstructed contact with all their older siblings..., as well as with all extended maternal and paternal family members. Further, [Diane] is committed to maintaining these relationships, to include [Patricia A.] and the paternal grandparents... well beyond the finalization of adoption. Lastly, as a means to accommodate [Patricia], [Diane] is open to pursuing a Post Adoption Contact Agreement.”
The permanency planning/petition for change of order hearing finally began on May 14, 2009. At the hearing, Patricia A. testified that from the time she requested that Joshua and Nicholas be placed with her, the CSW made it clear that they would not be placed with her. The CSW “felt I was enabling my family. She felt I was aware my mother was using drugs and they were not going to place them with me.” Patricia testified that she was unaware of her mother’s drug and alcohol use and was not enabling her family.
According to Patricia A., DCFS had done nothing to assist her in maintaining her relationship with Joshua and Nicholas other than providing for court-ordered weekend visitation. She had not been permitted to participate in their school functions or to get educational or medical information regarding the boys. She also complained that some of her visits with the boys had been cancelled at the last minute.
Patricia A. stated that she loved Joshua and Nicholas very much, and they were bonded to her. They also had substantial relationships with other paternal relatives. If placed in her care, she would maintain these relationships.
Patricia A. was aware that Joshua and Nicholas wanted to remain with Diane F. She acknowledged that she had never been their primary caretaker. She also acknowledged a breakdown in her relationship with Diane which occurred in April 2008. That occurred when Diane told her that she was being forced to have an adoption home study for the boys, she did not want to adopt them and Patricia should keep fighting for them. Patricia was upset that Diane now said she wanted the boys. Diane told her that DCFS wanted to keep the three siblings together, so she took the boys so that she could keep Amber.
When asked about her relationship with Amber, Patricia A. explained that she did not try to have a relationship with her until Joshua and Nicholas were removed from the parental grandparents’ home. This was partly because Amber’s paternity had not been established. Then, once Diane F. adopted Amber, she did not allow Patricia to visit her.
Patricia A. felt it would be in the boys’ best interest to be placed with her, because she could give them more one-on-one care. Additionally, they loved her and knew her to be part of their family.
CSW Debra Manor testified that when Joshua and Nicholas were detained from the paternal grandparents’ home, she considered placement in both Patricia A.’s and Diane F.’s homes. The boys’ counsel stated a preference that the boys be placed with Patricia. DCFS placed them with Diane “[b]ased upon the history of the case, based upon the issues that have come about with the children and based upon the long term plan [of adoption] and... the main reason was the sibling.” If possible, DCFS wanted to place the siblings in the same adoptive home.
CSW Manor acknowledged that she had never observed anything during Patricia A.’s visits with Joshua and Nicholas that caused her concern. She observed both boys express affection toward Patricia. Both said they enjoyed visiting with her.
The trial court found the original placement of the boys with Diane F. after they were detained from the paternal grandparents’ home was proper. It comported with the policies that siblings not be separated and that children be placed in permanent stable homes.
On the question whether there was a change of circumstances, the court discussed the fact that, at the time the boys were placed with Diane F., it was time for the permanency planning hearing. The concern was to place the boys in a stable home. Had the court held a hearing on Patricia A.’s petition at that time, things might have been different. However, the hearing was delayed for various reasons, such as the court’s inability to get Father to court for the hearing, as well as scheduling conflicts among the attorneys involved.
By the time the hearing was held, the boys were doing well in Diane F.’s home. They had visitation with Patricia A., which also was going well.
However, the court noted, “[t]he unfortunate reality [was] the concern that the court has had all along with [Patricia A.] as a caretaker has been formed and shaped by what has occurred to the family prior to [the boys] being placed with [Diane F.]... [¶] This court has a very clear and ringing memory of the report that [CSW Manor] sent in expressing the concerns of smelling alcohol on the grandmother’s breath early in the daytime.” This was “because we had just completed a long [section] 387 hearing after the children had been removed when the father took off with them from that home where he was residing in the back house contrary to the directives of [DCFS] and this court. [¶] So we had concerns about [Patricia’s] perception and perspectives of that which is required to protect the children.”
The court said it “would have to question a daughter who wants to care for their nephews and sees them almost everyday [sic] in her home and does not have this perspective such that she protects, steps up to protect the children early on because they go through a second time coming out of that home.” The court questioned how Patricia A. could be in the home with the paternal grandparents so often yet have no perception that her mother had a problem with drugs and alcohol.
On the other hand, the court noted, Diane F. had shown herself to have the boys’ best interests at heart. She “reported on her good friend, the mother. A serious report actually regarding the mother’s behaviors.” In addition, she enabled the boys to have contact with their paternal relatives.
The court found it “quite clear... that the [DCFS’s] assessment in this situation is right on. [¶] It is quite specific and it is correct and it’s in the best interest of the children not to be placed with the paternal aunt and remain where they are and go forward with the [permanency planning] hearing that has been set now it seems for four, five years.” The court denied Patricia A.’s petition for modification and terminated Mother’s and Father’s parental rights.
DISCUSSION
Patricia A. contends the juvenile court failed to perform an independent assessment of her qualifications for relative placement under section 361.3. That section provides that when a child is removed from the physical custody of his parents, “preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.” (Id., subd. (a).) If a new placement must subsequently be made, “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.” (Id., subd. (d).)
Father, while acknowledging that he has no standing to raise the issue of the juvenile court’s refusal to place Joshua and Nicholas with Patricia A., joins in her arguments. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035.)
Patricia claims that her “section 388 petition charged DCFS with a failure to comply with the directives of section 361.3 by not properly assessing the appropriateness of placing her nephews, Joshua and Nicholas, in her home.” Her characterization of the petition is inaccurate. She stated in her petition that “[b]ecause my nephews were so well taken care of I never felt the need to intervene with their placement or custody. However, with the recent detainment I would like to formally declare my interest in taking custody of my nephews and state my position.” The change requested was “[t]o place the children in my custody and allow me to give them a permanent home.”
The record shows that, prior to the time she filed her petition, Patricia A.’s requests for placement of the boys with her were equivocal. At the detention hearing on the second supplemental petition, Patricia requested that “[i]f [the boys] are not able to go back with my mom at some point, then I would like to step in.” (Italics added.) In a report for the jurisdiction/disposition hearing on the supplemental petition, DCFS noted that Patricia “currently does not have stable housing for the boy’s [sic] in place but would get housing if she knew for sure the boy’s [sic] would be placed in her care.” (Italics added.)
Thus, the question before us is not whether the juvenile court complied with section 361.3. Rather, the question is whether the court abused its discretion in denying Patricia A.’s section 388 modification petition.
Section 388 permits a party to petition the juvenile court to change its prior orders based upon a change of circumstances. (In re Amber M. (2002) 103 Cal.App.4th 681, 685; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The party seeking a change must demonstrate both that a change of circumstances exists and that the proposed change of court order is in the child’s best interests. (Casey D., supra, at p. 47.) We review the court’s ruling on a petition for abuse of discretion. (Amber M., supra, at p. 685; Casey D., supra, at p. 47.) Discretion is abused when the court’s ruling is arbitrary or capricious or exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Rarely does the denial of a section 388 petition require reversal. (Amber M., supra, at pp. 685-686.)
Patricia A. argues that the boys’ best interests required that they be placed with her, in that she “took advantage of every opportunity offered to her [to form a bond with Joshua and Nicholas]. Even after the boys were removed from their paternal grandparents, Patricia visited them regularly and maintained a close and loving relationship with them. The relationship was positive and involved deep affection. The boys are bonded to her and do not want to leave her home after visits. They are always happy while at her home, have a sense of belonging there, and are appropriately cared for.”
“Of course, Patricia acknowledges, as she must, that more than a year has elapsed since Joshua and Nicholas were placed in Diane F.’s home. Presumably, the boys are happy in their home, are loved by their foster mother, are being properly cared for, and enjoy being with their sister. Nonetheless, [Patricia claims,] borrowing from In re Esperanza C.[ (2008)] 165 Cal.App.4th 1042: ‘Although the passage of time may impact assessment of the [children’s] best interest and the [children’s] wishes (§ 361.3, subd. (a)(1), (2)), [Joshua and Nicholas are] entitled to a “fair chance” to be placed with [their] natural family. [Citations.] To foreclose judicial consideration of a child’s placement with a relative based on an error of law would constitute a miscarriage of justice. (Cal. Const., art. VI, § 13.)’ ([Esperanza C., supra,] at p. 1062[.]) The court’s denial of Patricia’s relative placement consideration deprived the boys of this right, because Patricia was the only available relative requesting placement. Reversal is required, [Patricia asserts,] as the best interests of Joshua and Nicholas demand no less.”
Unlike Esperanza C., this case did not involve denial of a relative placement based on an error of law. In Esperanza C., the maternal great-uncle and his wife came forward immediately when the child was detained and requested that the child be placed with them. The child protection agency denied their request based on their backgrounds. (In re Esperanza C., supra, 165 Cal.App.4th at p. 1050.) The child and her mother filed section 388 petitions claiming the agency abused its discretion by refusing to place the child with her relatives. The juvenile court denied the petitions on the ground it did not have jurisdiction to review the agency’s decision. (Id. at p. 1051.)
On appeal, the court concluded that the basis on which the agency denied the relative placement was erroneous as a matter of law. (In re Esperanza C., supra, 165 Cal.App.4th at p. 1061.) Against this backdrop, the court concluded it would be a miscarriage of justice to foreclose the relative placement despite the passage of time. (Id. at p. 1062.)
Here, however, there was no error in placing Joshua and Nicholas with Diane F. after they were removed from the paternal grandparents’ home. Their sibling, Amber, had been placed with Diane, and she had been identified as a prospective adoptive parent. Patricia A. had not yet requested that the boys be permanently placed with her.
Once Patricia A. made her request, the question was whether it was in Joshua’s and Nicholas’s best interests to have their placement changed from Diane F.’s home to Patricia’s (In re Stephanie M., supra, 7 Cal.4th at p. 321; In re Casey D., supra, 70 Cal.App.4th at p. 47), not whether it would have been in their best interests to have been placed with Patricia at the time they were detained.
In determining whether a proposed change is in the child’s best interests, “a primary consideration... is the goal of assuring stability and continuity. [Citation.] When custody continues over a significant period, the child’s need for continuity and stability assumes an increasingly important role. [Citation.] That need often will dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. [Citation.] Thus, one moving for a change of placement bears the burden of proof to show, by a preponderance of the evidence that there is new evidence or that there are changed circumstances that may mean a change of placement is in the best interest of the child. [Citations.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 464.)
Patricia A. failed to present evidence of changed circumstances making it in the boys’ best interests to be removed from Diane F. and placed with her. Patricia’s claim now is not that the juvenile court erred in failing to find changed circumstances but that the boys originally should have been placed with her.
She also relies on the fact that she is a relative, while Diane F. is not. However, Diane is the adoptive parent of the boys’ sibling, Amber. There is a preference for placement of dependent children with their siblings (§ 366.26), in addition to the preference for relative placement, a preference to which the juvenile court gave great weight.
Another factor in the court’s decision was that Diane F. had facilitated visitation between the boys and Mother, as well as between the boys and Patricia A. and other paternal relatives. Thus, while Diane was not a relative, she enabled the boys to maintain their relationships with their relatives, both paternal and maternal.
The juvenile court considered these factors in making its decision as to whether it was in the boys’ best interests to be placed with Patricia A. It also considered the history of this case which raised questions in its mind as to Patricia’s ability to protect the boys. Having considered these factors, it concluded that a change in placement was not in the boys’ best interests. We perceive no abuse of discretion. (See In re Stephanie M., supra, 7 Cal.4th at p. 321.)
The orders are affirmed.
We concur: PERLUSS, P. J., ZELON, J.