Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. DP013949, James Patrick Marion, Judge.
Arthur J. LaCilento for Objector and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
Niccol Kording, under appointment by the Court of Appeal, for the Minor.
OPINION
SILLS, P. J.
C.D., the maternal grandmother of T.B., filed a petition in the juvenile court seeking to have the child removed from his foster placement and placed with her or another family member; she also sought increased visitation with the child. The juvenile court denied her petition without a hearing. She appeals, claiming her petition states a prima facie case for relief. As we explain, subsequent events have rendered the appeal moot, and we dismiss.
FACTS
T.B. was detained at birth, August 2006, for a positive toxicology screen. He was declared a dependent of the juvenile court and, at the request of the mother’s family, he was placed with T.C., who was ultimately granted de facto parent status. The mother was provided reunification services. The father, who lives in Washington State, was identified as a possible biological father in December 2006; his paternity test results were received in July 2007, and he was declared a presumed father in August 2007. By then, the Orange County Social Services Agency (SSA) was recommending termination of reunification services to the mother. Initially, no reunification plan was ordered for the father, but the juvenile court authorized funding for his participation in drug and alcohol testing and parenting classes. Both sets of grandparents wanted placement of the child. T.C. wanted to adopt him. The parents and grandparents became dissatisfied with the social worker and T.C., and tensions among the various interests escalated as the case progressed.
After repeated continuances, the juvenile court began the six-month review hearing on November 6, 2007. By that time, it was also the 12-month review hearing. The hearing dragged on until February 11, 2008. The court found it could not return the child to either parent and that the parents had not received reasonable services. Accordingly, the court ordered the father to participate in an alcohol abuse program for six months and ordered six more months of services for the mother. The father, the child, and SSA all appealed from the orders.
On January 10, 2008, while the 6- and 12-month review hearing was going on, the maternal grandmother filed a petition under Welfare and Institutions Code section 388, seeking to remove the child from T.C.’s home and have him placed in her home or, alternatively, to increase her visits with the child. The maternal grandmother alleged T.C. “originally agreed that she would only temporarily care for the minor, but now she wants to adopt him and she is doing anything she can to separate the minor from his biological family.” She claimed the child was “in imminent threat” of “both physical and emotional harm” in his current placement and should be placed with his biological family. The maternal grandmother attached her declaration; a declaration from the maternal grandfather; and a declaration from T.C.’s ex-husband, apparently filed in their divorce case, dated January 1997. She claimed T.C. had “made claims that [the child] is ill, has seizures, is autistic, has allergies, has a lazy eye, and has behaviourial [sic] problems without medical documentation to support her claims. She has pos[t]ed information on the Internet, discussed this case with people in our community in an attempt to harm me and my relationship with [the child]. Further, I have had my visits reduced and social services will not discuss placing [the child] in my care and custody even though I have repeatedly expressed my desire to adopt T.B.”
All statutory references are to the Welfare and Institutions Code.
T.C. filed opposition to the petition, attaching a current declaration from her ex-husband stating “Although [T.C.] and I had some difficulties during our divorce, we have since resolved them. I would be the first person to say, ‘she is a wonderful, caring person and an exceptional mother.’” T.C. also attached letters from Hope 4 Kids, the foster family agency for whom T.C. worked. The letters explained the agency had weekly contact with T.C. and found no evidence of abuse or interference with reunification. In fact, it reported “some concern about the ‘disrespect’ that maternal grandmother was showing to [T.C.],” which had been witnessed by agency employees.
The juvenile court stated it would consider the maternal grandmother’s petition after the review hearing concluded. It did so on February 28, 2008 and found the petition failed to show a change of circumstances or that the requested order would be in the best interests of the child. “I have heard a lot on this case, a lot, . . . and I feel pretty confident. . . . I don’t believe there’s been a change of circumstances or new evidence in this case that I haven’t heard before.” The petition was denied without a hearing. The maternal grandmother appealed the order. This court affirmed the orders made at the 6-and 12-month review hearing and affirmed the order summarily denying the maternal grandmother’s section 388 petition. (In re Baby Boy B. (Mar. 30, 2009, G040104) [nonpub. opn.].)
In March 2008, a new social worker, April Wright-Herrera, was assigned to the child’s case. An 18-month review hearing was set for August 4, 2008. Wright-Herrera arranged for the father to test for drug and alcohol use in Washington and made contact with the social worker there who handled the reports under the Interstate Compact for the Placement of Children (ICPC). The father began attending Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings, and his random drug tests were negative. He was allowed extended overnight visits with the child when he came to Orange County, which he was able to do about once a month for several days each time. The mother’s drug test results were negative except for several missed tests in April, which were considered positive. Her visits with the child went well, but she missed several visits in April and May. She also missed appointments with Wright-Herrera during April and May, had not entered a substance abuse program, and had not verified her attendance at NA/AA meetings.
In late March, the maternal grandmother complained to SSA that her visits had been reduced from eight to five hours weekly; she requested an increase to eight hours. The social worker was either unwilling or unable to accede to her request. On April 7, SSA received a “large express mail envelope with a stack of letters” from the maternal grandmother, various family members, co-workers and neighbors “suggesting” placement of the child with the maternal grandmother and expressing concern about abuse to the child in his current placement.
On Saturday, April 5, the child fell out of his crib and suffered a cut and bruise above his right eye. T.C. reported the incident to her foster family agency, Hope 4 Kids. The next day, a child abuse report was made to the Child Abuse Registry. On Monday, the maternal grandmother “spoke directly” to a Community Care Licensing analyst, Naomi Plair-Lopez. Subsequently, Plair-Lopez went to T.C.’s home to conduct an investigation along with two people from Foster Care Licensing, Monitoring and Investigations. T.C. reported that Plair-Lopez “took all of my cupboards apart throughout my house and left everything there.” T.C. was “outraged” by some deprecating comments Plair-Lopez made to her. Plair-Lopez wanted to decertify T.C.’s home and place the child elsewhere, but the social workers from Hope 4 Kids and Foster Care Licensing, Monitoring and Investigations all agreed there was no abuse and decertification was not necessary. One social worker told SSA that Plair-Lopez “needs to be reined in, she is aligned with the maternal grandmother.”
On April 18, Wright-Herrera removed the maternal grandparents as authorized monitors for the child’s visitation with the mother “since [Wright-Herrera] needed to ensure that the child’s mother was attending her visitation, yet not superseding the five hours of monitored visitation that she was authorized. In addition, [Wright-Herrera] was interested in feedback pertaining to the interaction between the child and the child’s mother. [She] also placed the child’s maternal grandparent[]s on monitored visitation to receive feedback about the child’s and grandparent[]s[’] interaction. The visitation for the child’s grandparents was slightly decreased from five hours to four hours weekly until further notice since the child is transported and under monitored supervision.”
The maternal grandmother prepared a section 388 petition in late April, seeking to change the juvenile court’s order allowing SSA to place the child in its discretion. She claimed there was new evidence “show[ing] that the minor is in imminent threat of danger of neglect, physical and emotional harm if he remains in the current foster placement,” citing a report and four citations against Hope 4 Kids issued by Plair-Lopez. The maternal grandmother asked for the child’s immediate removal from T.C.’s home and placement with her or another family member; alternatively, she asked for increased visitation and the removal of the visitation monitor. She claimed the new order would be in the best interests of the child because he was bonded to her and her husband and he was familiar with and comfortable in their home. Both maternal grandparents had completed SSA’s foster parent program.
The maternal grandmother attached the citations and investigative report issued by Plair-Lopez, which indicated there were cleaning solutions accessible to the child in an unlocked bottom bathroom cabinet, as well as “[n]umerous open and used adult facial and body cleaning agents[] and tanning oils” in the medicine cabinet. There were knives in “unlocked kitchen drawers and on cabinets,” and there were “no safety locks or Tot locks on cabinets throughout the home.” Plair-Lopez also investigated an incident that occurred the previous December, when the child had fallen and hit his head on a coffee table, and the maternal grandmother’s complaint that T.C. had told her friends and co-workers confidential information about the child’s medical history and his biological family. Furthermore, T.C. had posted more pictures of the child on her MySpace Web site, “including a sensitive photo of the foster minor and herself alone . . . .”
In May, the State of Washington completed the ICPC home study and agreed to supervise the child in the home of the paternal grandparents, where the father also lived. Based on these new developments, the father filed a section 388 petition asking for an order placing the child with him or, alternatively, placing the child with the paternal grandparents and allowing the father to live in the home without being the sole caretaker until he completed his programs. The father claimed the change of placement would be in the best interests of the child because it would facilitate reunification with him and it would remove the child from T.C.’s home, thus alleviating the “ongoing animosity between [T.C.] and the maternal grandparents” and “the repeated injuries to the child in the foster home.”
On May 14, 2008, the court heard argument from the maternal grandmother and the father on their respective petitions. The court denied a hearing on the maternal grandmother’s petition but granted a hearing on the father’s. Indicating its concern about the safety of the child, the court stated it could hear evidence on that issue during the hearing on the father’s petition because that petition also raised concerns about the safety of T.C.’s home. The mother had subpoenaed Plair-Lopez to testify on the safety of T.C.’s home, and joined with the father in arguing his petition had made a prima facie case. “[A]s much as it would break mother’s heart to have [the child] go to Washington, mother does believe that there has certainly been a change of circumstances and that it would be in her child’s best interest to be placed with his father.”
We take judicial notice of the following events that occurred subsequent to the date of the order from which the appeal is taken. (In re Karen G. (2004) 121 Cal.App.4th 1384, 1389-1390.) Plair-Lopez appeared for the hearing on the father’s petition on May 21; the hearing was continued to June 19. On that date, SSA filed a report in which Wright-Herrera stated she had received the ICPC home study recommending placement in the paternal grandparents’ home. The father was participating in a substance abuse program and was expected to complete it in August or September 2008. All his drug tests were negative. In response to the father’s section 388 petition, Wright-Herrera did not want to place the child with the father “until he has successfully completed the Substance Abuse Program and shown at least six months of no missed and/or positive drug test results.” She recommended placing the child with the paternal grandparents; the father would be authorized to live there but not to be the sole caretaker of the minor. Wright-Herrera felt this arrangement would be beneficial to the child because it would strengthen the relationship between him and his father.
In response to the June 19 report, the child filed a section 388 petition asking the court “to vacate suitable placement authority in SSA pending a hearing on the issue of moving [the child] from his foster home of almost two years to place him with a paternal grandmother he has only met a few times.” The section 388 petition alleged the child had “regressed since his relatively recent extended visits with his father.” Attached to the petition was an unsigned list of negative behaviors exhibited by the child after each day of visits with the father during extended visits in May and June, presumably prepared by T.C. T.C. filed a brief in support of the section 388 petition, arguing that the court should maintain the status quo pending the outcome of the pending appeals.
Wright-Herrera filed an addendum report on June 25, stating, “According to [T.C], the child has regressed since his relatively extended visits with his father. According to the child’s parents, the child has adjusted well with the extended visits with his father and has not regressed.” The social worker had monitored the child’s visits with both the father and the mother and had not seen any problems.
On June 25, 2008, the court found the child’s section 388 petition failed to make a prima facie case and denied it without a hearing. The court explained that it had “problems” with the child’s placement with T.C. “[T]here are issues with [T.C.] And she’s done everything to make this case go her way. And that was one of the reasons why it was unreasonable services [in the six- and 12-month review order] because that social worker who was the original social worker on this was the tail wagging the dog, and that was the reason I put that down. [¶] . . . [¶] I think she has credibility issues. Was it enough to take [the child] out of that placement? No. I didn’t want to upset the apple cart at that point in time....” The court denied the child’s request for a stay pending an appeal of its ruling. It then began the hearing on the father’s section 388 petition. The hearing was continued due to the court’s vacation, and the father ultimately withdrew his petition on July 15.
Both the child and the de facto parent appealed the denial of the child’s section 388 petition. This court issued an order on July 2, 2008, enjoining SSA from changing the child’s current placement.
These appeals were dismissed as moot in In re T.B. (Mar. 30, 2009, G040594 cons. with G040741) [nonpub. opn.].)
In July, Wright-Herrera said the father was participating in his program but still did not think he had an alcohol problem. Pictures of the father were posted on a MySpace site in June and July showing him in “drinking” situations. He admitted being with friends who drink but denied drinking himself. The mother was trying to get into a substance abuse program but had not yet been successful. Her drug testing had yielded some negative results, a missed test and an invalid test. In August, the social worker recommended termination of services and referral to a.26 hearing. She also recommended a 60-day trial visit with the father.
On August 11, the social worker was changed to Scott Sweaza. He observed: “Unfortunately, the relationships between the parties involved and extended family members have deteriorated over time. This has resulted in a severe lack of communication between adults, false accusations, misunderstandings, destruction of trust, and a complete disservice to [the child].” Sweaza took firm command of the situation and apparently was successful in getting the parties to treat each other civilly and communicate their concerns directly to him rather than to each other. The mother continued to work her programs, although she still missed tests now and then. Sweaza was concerned that the father failed to complete a breath analysis on July 14 and failed to show up for testing on August 12, 2008. He “continued[d] to have concerns related to the father’s [lack of] acknowledgement of his alcoholism, and participation in his case plan.” As of September 8, 2008, the father had not contacted the child for over three weeks.
The 18-month review hearing was continued repeatedly. On October 16, 2008, SSA filed a request with this court to lift the temporary stay so it could place the child with the mother for a 60-day “trial release,” starting around November 2. SSA explained that circumstances had changed and the trial release would be in the child’s best interest. The mother had been substance free since March 2008 and had complied with her case plan. SSA also explained that it no longer thought the de facto parent was a good placement because she was not cooperating with the reunification services to the parents. SSA also asserted it was no longer interested in moving the child to the State of Washington, so the stay was no longer necessary.
Sweaza submitted a declaration in support of SSA’s request to lift the stay, dated October 16, 2008. He concluded that the child needed to be removed from T.C.’s home as soon as possible because she would not cooperate with reunification services, she was requiring that [the child] call her “Mommy,” and she expressed her belief that God wanted the child placed with her. Sweaza also concluded that the mother had completed the requirements of her case plan. She continued to attend a drug treatment program and, he stated, “Mother has tested consistently twice a week since March 2008 without any positive or missed tests. Her tests have been free of any illegal drugs or alcohol, including methadone. Since April 2008, signature cards indicate that mother has been attending AA consistently at least twice a week.” The mother had three weekend visits with the child in the maternal grandmother’s home, which went well. At a team meeting on October 14, 2008, in which the father participated by telephone, it was decided to implement the trial release to the mother. The father was not opposed.
This court issued the following order on October 23, 2008: “The temporary stay issued by this court on July 2, 2008 is LIFTED for the limited purpose of a 60-day trial visit with the mother, K.B. The trial visit shall not be construed as a change in placement.”
All stays were lifted when the opinion was filed in In re T.B. (See footnote 2, ante.)
SSA’s report filed on November 19, 2008 stated that the child was returned to the mother for a 60-trial visit on November 3. T.B. was doing very well, seemingly happy with the mother and showing no signs of distress. The two of them were scheduled to start interactive therapy on November 24. The mother was in the process of locating a larger apartment, and family preservation services were scheduled for her. The social worker noted the mother was complying with her probation, attending her perinatal program twice weekly as required, and continuing “to be compliant with Social Services drug testing requirements.” However, the mother missed her random test for October 30, which the social worker brushed aside: “Due to [the mother’s] more recent consistency with testing and contacting the undersigned as required, there are no concerns at this time regarding the missed test.”
On November 19, 2008, the court continued the 18-month review hearing to January 8, 2009 to allow the trial visit to be completed. This court issued a stay of that hearing pending the resolution of the pending appeals.
On March 11, 2009, SSA reported that the mother and child were doing well; their conjoint therapist was enthusiastic about their interaction and bonding. The therapist recommended that the child have no contact with T.C. because it would be confusing to him. The mother had violated her probation by failing to appear at a progress review hearing and was ordered into “the Drug Court program, which is an outpatient program consisting of individual and group session and drug testing.” The mother had received a positive test for opiates, which she explained was a result of taking previously prescribed Vicodin for pain. The social worker recommended that the child remain with the mother and that T.C.’s de facto status be withdrawn.
DISCUSSION
The maternal grandmother contends the juvenile court abused its discretion by summarily denying her petition without holding a hearing on May 14, 2008. Section 388 allows a parent to petition the juvenile court to change or modify a previous order “upon grounds of change of circumstance or new evidence.” (§ 388, subd. (a).) The court must hold a hearing on the petition only “[i]f it appears that the best interests of the child may be promoted by the proposed change of order. . . .” (§ 388, subd. (d).) Thus, the petition must state a prima facie case of both changed circumstances and best interests of the child. “The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
Although the petition should be liberally construed in favor of granting a hearing (In re Mary G. (2007) 151 Cal.App.4th 184, 205), the juvenile court need not put blinders on when determining whether the required showing has been made. Rather, the court can consider the “entire factual and procedural history of the case” when evaluating the significance and strength of the allegations in the petition. (In re Justice P. (2004) 123 Cal.App.4th 181, 189; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.) We review the juvenile court’s decision to deny a hearing for an abuse of discretion. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
Here, the juvenile court had before it two petitions seeking removal of the child from T.C.’s home. There was clearly new evidence about the safety of T.C.’s home and a prima facie case that removal of the child would be in his best interests. But the record reveals the court preferred to address these issues in the context of returning the child to his father, which seemed likely at that time, rather than in the context of a temporary placement with the maternal grandmother.
In any event, we find the appeal is moot due to the events occurring subsequent to the juvenile court’s ruling on May 14. “An appeal is moot when as a result of changed circumstances the trial court on remand would be unable to grant the relief sought by the appellant. [Citations.]” (Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221, 1226-1227.) The relief sought by the maternal grandmother’s petition was an order removing the child from T.C.’s home and placing him with her or a family member. She also sought liberalization of her visitation. Since that time, the child has been with the mother on an extended six-month trial release; we assume the maternal grandparents have as much visitation as the mother deems appropriate. The stay restricting the child’s change of placement from T.C.’s home has been lifted, and both the court and SSA have indicated their intention to formally remove him from her home. The relief sought by the petition is no longer necessary.
DISPOSITION
The appeal is dismissed as moot.
WE CONCUR: ARONSON, J., FYBEL, J.