Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court Nos. DP001284, DP001285 & DP001286 of Orange County, Gary L. Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Joanne D. Willis Newton, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Jr., Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
No appearance for the Minors.
Diana V., the maternal aunt of Pedro, Liliana, and Jose, appeals from the order denying her petition under Welfare and Institutions Code section 388 (all further statutory references are to this code unless otherwise indicated). She argues the juvenile court abused its discretion in dismissing her petition without a hearing and that it failed to comply with its duty to assess her petition under statutory preferences for relative placements. We find no error and affirm the order.
After the close of briefing, county counsel filed a supplemental letter brief contending Diana lacked standing to assert placement claims under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA) and that the tribe’s admission the children were technically ineligible for tribal membership ameliorated any harm from the asserted ICWA deficiency. These issues are waived for failure to raise them in respondent’s initial brief, as to consider them would be unfair to Diana who had no opportunity to address them. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
FACTUAL AND PROCEDURAL BACKGROUND
1. The Children’s Removal and Placement
Orange County Social Services Agency (SSA) removed the three children from their parents in 1999. Their maternal grandparents became their legal guardians in 2000 after their parents failed to reunify with them.
In 2004, SSA detained the children and declared them wards of the court when Liliana suffered physical injuries while in the grandparents’ care. The grandparents received reunification services and the dependency was terminated in July 2005.
Subsequently, six more child abuse reports were filed against the grandparents, alleging physical abuse and general neglect. The final one, resulting in the current case, alleged substantiated allegations of physical abuse of Liliana and general neglect of all three children.
In March 2007, SSA filed a dependency petition alleging grandmother had physically abused Liliana, grandfather knew or should have known of the abuse and failed to protect her, and Liliana’s abuse placed her brothers at risk of abuse. The doctor who examined Liliana after the children’s removal opined she had “absolutely, positively” been abused.
Although relatives including Diana indicated desire to have the children placed with them, they thought Liliana was a chronic liar and did not believe her. SSA determined that no relatives would be considered for placement until the police completed their forensic interview, scheduled for the day before the detention hearing.
At the detention hearing, the court sustained the allegations of the petition and ordered the children placed in a suitable facility. The court ordered SSA to evaluate relatives, including Diana, for potential placement.
The next day, Diana faxed her personal information to SSA, who initiated a background check. An investigation revealed Diana had been living at the grandparents’ mobile home for several weeks before the children were detained, which grandmother said was because Diana’s house was being remodeled. Diana had also lived there in 2004 and 2005, which lead SSA to assume she must have known of the grandparents’ actions.
Both Diana and her sister “said it didn’t matter what physical evidence existed, they wouldn’t believe [s]ocial [s]ervices or the police” regarding the abuse allegations. They called Liliana a “liar” and said “there is no way the allegations are true.” Diana stated, “I know my mom is not capable of doing these things,” and denied observing any abuse while residing at the home.
A few days after the detention hearing, SSA told Diana “she was not being considered for placement at this time because she [did] not appear to be honestly and objectively entertaining the possibility that the children were being abused by the legal guardians.” SSA was concerned Diana was “unduly prejudiced in favor” of the grandparents and “that if the children were being abused . . . there is no way that she could not have been aware of this.” According to SSA, she did “not appear to be approaching this situation objectively,” which raised the issue of whether she would be “forthcoming . . . about any pertinent information that could potentially arise, should [she] be caring for the children.” Additionally, given Diana’s belief the involvement of SSA and the court was unjust and without merit, SSA questioned her motivation for complying with its or the court’s requests.
Upon being detained, the children were placed in Orangewood Children’s Home (Orangewood) and then moved to a temporary group home for siblings. But they presented “challenging behaviors” as well as special educational needs and the group home was concerned about interactions with the legal guardians and extended family, who had lobbied numerous complaints against it. As a result, the children were moved back to Orangewood in April and future placements were to be confidential.
Diana visited with the children regularly throughout this time. The children “enjoyed these visits” and “appear to be happy and comfortable in interacting with these relatives.”
SSA acknowledged the importance of keeping the children together in considering potential placement options and identified a confidential foster home where the children were to be moved one at a time. When Liliana was placed there she “acclimated quite well.” But when Pedro arrived, both had behavioral problems. Accordingly they were returned to Orangewood at the foster parents’ insistence. Later all three children were placed together in a group home.
2. The Section 388 Petition
Diana filed a section 388 petition in May asking the court to modify its prior order authorizing the children’s placement in a foster care facility or home based on the changed circumstance that the children’s “emotional [and] mental health ha[d] deteriorated markedly in” their placements. She requested the court order SSA to immediately evaluate her for placement and other relatives as “back-ups” and asserted it was in the children’s “best interests to be placed with family members and to remain together.” According to her, the change would be better for the children because she and her two children, ages 7 and 10, had a “close and loving relationship” with them and the children were “not doing well in foster care.”
In her supporting declaration, Diana asserted she had “seen the children deteriorate emotionally since their placement in emergency shelter care. They are normally happy, animated and easily engaged. They have become shut down emotionally. They appear sad, depressed, and uncommunicative.” She conceded she had “recently moved in with [her] mother and stepfather after the sale of [her] marital home” because she had separated from her husband but that “[she had] located a suitable apartment and [was] prepared to move into [her] own housing right away.” She declared she was “willing and committed to abiding by any conditions imposed on the placement, including not permitting [her] mother and stepfather to have contact with the children except as authorized by [SSA].”
Diana also submitted a letter from Isleta Del Sur Pueblo, a federally recognized Indian tribe of which she is a member. Upon reviewing the case, the tribe had decided not to intervene, although it “strongly conveye[d] that every effort be made by [SSA] to consider placing the children in a relative placement setting.” In a subsequent letter in support of Diana’s section 388 petition, the tribe noted its “extreme concern” about the children’s removal “from all family and their dispersal among different foster homes” and stated it “strongly supports family placement of these children and, in particular, [Diana’s] request . . . that the children be placed in her care as soon as possible.”
SSA noted Diana’s continued interest in having the children placed with her. But it reiterated its discomfort in placing the children with either maternal aunt because of its strong belief they knew or should have known about the abuse, their negative dispositions toward SSA, and their unwavering claims the grandparents had not committed any abuse or neglect. SSA also pointed out that although Diana stated she was willing and able to find a new residence, it was unclear whether she had been living with the legal guardians previously because of her separation or because her bathroom was being remodeled as originally claimed.
The court-appointed ICWA expert, Phillip Powers, agreed that returning the children to the grandparents’ custody would risk serious emotional and physical harm. Although he stated their current placements were “not in accordance with the placement provisions of ICWA as they [were] not Indian [h]omes,” he acknowledged SSA’s ongoing efforts to place the children with relatives. In a letter addressing Diana’s section 388 petition, he agreed with SSA’s reasons for not placing the children in Diana’s care.
SSA also obtained clarification from Isleta Del Sur Pueblo that although the tribe “prefer[s] placement with a relative and that if a relative placement can be stabilized with supportive services that these efforts be made,” the juvenile court “can rule whichever way [it] wants to based on the evidence.” The tribe would defer to the court’s judgment and would not contest a decision supported by the evidence.
After considering whether the section 388 petition established a prima facie showing to warrant a full evidentiary hearing, the court denied the petition without a hearing, finding it “woefully inadequate” because it failed to show a “change of circumstance or new evidence” and “the simple one liner or two for best interest isn’t sufficient.” It stated that “at some point, [it was] probably going to want to have a discussion about this aunt and placement. But that’s just because I want to discuss it to get some more information, because I want to keep options out there that might be available. But in terms of the request legally, it’s woefully inadequate.” The court indicated Diana was free to file additional requests at a later date.
DISCUSSION
1. Evidentiary Hearing
We review the juvenile court’s summary denial of a section 388 petition for an abuse of discretion (In re Stephanie M. (1994) 7 Cal.4th 295, 316-318) and will affirm unless the decision “‘“exceeded the bounds of reason.”’” (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) We find no abuse of discretion.
Under section 388, “[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . . .” (§ 388, subd. (a).) If it appears the child’s best interests “may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . .” (§ 388, subd. (c).)
Diana argues the word “may” in section 388, subdivision (c) requires a full hearing upon the mere possibility that granting a petition might benefit the child. This construction does not accord with the case law interpreting section 388. (See In re Justice P. (2004) 123 Cal.App.4th 181, 191.) Rather, to be accorded a full hearing on a section 388 petition, the petitioner must make a prima facie showing “that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806, italics added.)
The prima facie requirement is met if the facts alleged in the petition are supported by evidence, which if credited at the hearing, would warrant the granting of the petition. (In re Brittany K., supra, 127 Cal.App.4th at p. 1505.) But 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. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1071.)
Here, the change of circumstances and new evidence relied upon by Diana include the deterioration of the children’s emotional and mental heath, her regular visits with them since their removal, her request and suitability for placement, and the tribe’s letters supporting family placement. Even assuming, for discussion purposes, these allegations constituted a facial showing of changed circumstances and new facts, more is required. “It is not enough for a parent [or interested person] to show just a genuine change of circumstances under the statute. The parent [or interested person] must show that the undoing of the prior order would be in the best interests of the child. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529, italics omitted.)
Diana’s petition alleged the children’s best interests would be served by placement with her because they had a “close and loving relationship” with her and her children and they were “not doing well in foster care.” We conclude these allegations are inadequate to establish a prima facie case that the requested change would be in the children’s best interest. Importantly, they do not address SSA’s primary reasons for refusing to place the children with Diana—her steadfast refusal to entertain the possibility the legal guardians were capable of abuse, despite the fact a doctor had confirmed Liliana’s injuries resulted from abuse. Her denial that she witnessed any abuse while residing with the children also concerned SSA because if abuse occurred there she had to have known of it. SSA questioned her objectivity and whether she would be forthcoming if pertinent information arose while she was caring for the children, as well as her motivation for complying with its requests given her belief SSA’s involvement was unjust and without merit.
Diana never addressed SSA’s position in her petition or at the prima facie hearing, despite knowing what the main obstacle was to placing the children with her. Nor are these issues addressed by Diana’s assertion in her petition that she was “willing to abide by any conditions on their placement, including not permitting the guardians . . . to have any unauthorized contact with [them] . . . .”
Diana argues “these allegations should have been . . . addressed at a full evidentiary hearing on the section 388 petition” and that the court erred in accepting SSA’s position without providing her an opportunity for an evidentiary hearing. According to her, the proceedings were confidential and she was not privy to the evidence. But Diana had indicated she would not believe the allegations of abuse regardless of “what physical evidence existed” and insisted her mother was “not capable” of abuse. She does not deny these statements or claim otherwise in her petition or appeal. An evidentiary hearing thus would have been pointless. The SSA reports do not contradict Diana’s factual allegations and no credibility issues required resolution.
Diana maintains the court should have considered evidence “the [children] were not doing well in their placements.” But she has not demonstrated the court did not consider such evidence. We presume it did absent any showing to the contrary.
2. Duty to Assess Placement Request Under Statutory Preferences for Relative Placements
Diana argues the court failed to comply with its sua sponte duty to assess her placement request in accordance with section 361.3, Family Code section 7950 and IWCA. We disagree.
Section 361.3’s requirement of preferential consideration for a relative’s request for a child’s placement provides only for the initial evaluation of the relative’s home, and creates no evidentiary presumption favoring such placement. (In re Antonio G. (2007) 159 Cal.App.4th 369, 376.) The child’s best interests remain the prevailing concern in such placement decisions, which are reviewed for abuse of discretion. (Id. at p 377.) Family Code section 7950 similarly states “[p]lacement shall, if possible, be made in the home of a relative, unless the placement would not be in the best interest of the child.” (Fam. Code, § 7950, subd. (a)(1).) As for IWCA, children are to be placed with extended family absent good cause to the contrary. (§ 361.31, subds. (b), (h); 25 U.S.C. § 1915(b).)
Here, in denying the petition, the juvenile court implicitly found the children’s best interests were not to be placed with Diana at the time, thereby satisfying section 361.3, subdivision (c)(1) and Family Code section 7950. That the placement is not in their best interests constitutes good cause for not placing them with an extended family member pursuant to IWCA. Under these circumstances, the court’s failure to specifically state its reasons for denying placement under these statutes is harmless because there was no reasonable probability that such reasons, if given, would have been in Diana’s favor. (See In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.)
DISPOSITION
The order denying the section 388 petition is affirmed.
WE CONCUR: O’LEARY, J., FYBEL, J.