Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County, Super. Ct. No. DP006937, Richard Y. Lee, Judge.
Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
OPINION
FYBEL, J.
INTRODUCTION
This dependency case is before us on appeal for the fourth time. T.B., now 19 years old, suffers from Down syndrome, and severe behavioral, emotional, and medical problems. Reunification services for T.B.’s father, Timothy B. (father), were terminated in 2004, when the juvenile court selected a permanent plan of long-term foster care for T.B. T.B. has lived in a group home since that time.
In previous opinions, this court has affirmed the juvenile court’s orders denying a contested postpermanency plan review hearing to father (In re T.B. (Sept. 21, 2009, G041623) [nonpub. opn.] (In re T.B. I)), and summarily denying father’s petitions under Welfare and Institutions Code section 388 (In re T.B. (Apr. 5, 2010, G042513) [nonpub. opn.] (In re T.B. II); In re T.B. (Dec. 3, 2010, G043563) [nonpub. opn.] (In re T.B. III)). (All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.)
Because T.B. is no longer eligible to remain in his group home, due to his age, the Orange County Social Services Agency (SSA) began exploring the option of placing T.B. in an adult foster home in Orange County. Father, who continues to advocate moving T.B. to a group home in Idaho, where father lives, filed a petition under section 388 asking that SSA be prevented from moving T.B. to an identified adult foster home until the evaluation of T.B.’s placement options in Idaho had been fully explored. The juvenile court summarily denied the section 388 petition, and father appeals.
We conclude the juvenile court did not err in summarily denying the section 388 petition. Father failed to make a prima facie showing of either changed circumstances or that the proposed order would be in T.B.’s best interests. We therefore affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In re T.B. I, In re T.B. II, and In re T.B. III contain detailed background sections setting forth the factual and procedural history of T.B.’s dependency case. In this opinion, we will reiterate only those facts necessary to provide a context for the resolution of the issue presented by the current appeal.
T.B. has Down syndrome, as well as severe emotional and physical health issues. T.B. and his sister, R.B., were taken into protective custody in 2002. In February 2004, the juvenile court terminated father’s reunification services, and selected a permanent plan of long-term foster care for T.B. (R.B.’s dependency case was closed in November 2006 after she reached the age of majority.)
T.B. has been living in the same group home since February 2007. Although T.B. had reached the age of 18, SSA obtained a waiver allowing him to remain in the group home until he turned 20 years old, while SSA sought a different living situation for him. Father lives in Idaho.
April 2011 Postpermanency Plan Review Hearing and Status Review Reports
In the status review report for the postpermanency plan review hearing in April 2011, SSA noted T.B.’s current placement in the group home was appropriate, and “that the staff is highly qualified to meet T[.B.]’s special needs.” SSA stated father continued to express his desire to care for T.B. at his own home in Idaho. The juvenile court had previously asked SSA to assess the possibility of transferring T.B. to a group home in Idaho. SSA, however, did not agree to T.B.’s placement in Idaho because “there does not appear to be an appropriate facility that can adequately meet T[.B.]’s needs, ” and the director of group homes for Idaho had informed SSA that the choices for a group home that could deal with T.B.’s challenging behaviors were limited.
At the status review hearing, the postpermanency plan review was set for a contested hearing, based on father’s argument that T.B. should be placed in a facility in Idaho. Father was ordered to find alternative placements for T.B. in Idaho.
The matter was continued several times, until it finally came on for a hearing in February 2012. In the interim, SSA filed regular addendum reports. In June 2011, SSA reported that father had not provided any new information on group home placements in Idaho since the April 2011 status review hearing, but the social worker had made inquiries of some group homes, all of which declined serving T.B. SSA also reported that the option of an adult foster home in Orange County, servicing developmentally delayed adults, was being explored. The court again directed father to provide to SSA contact information for any group homes in Idaho that would accept T.B., and further ordered SSA to immediately investigate those group homes.
Father provided contact information for two group homes in Idaho to SSA in July 2011. The social worker obtained information that T.B. would be required to complete an assessment process in Idaho, which “includes reviewing previous records, completion of a functional evaluation, IQ tests and [a] face-to-face interview.” At a status review hearing in August 2011, father’s counsel provided information on two additional group homes in Idaho. Counsel advised the juvenile court that T.B. would have to be admitted to an Idaho state hospital for an evaluation. The court was hesitant to send T.B. to Idaho with no guarantee he could be placed in a suitable group home there.
SSA also reported that the regional center coordinator, T.B.’s teacher, group home manager, and social worker all agreed an adult foster home would be the best option for T.B., and that T.B.’s best interests would be served by remaining in California, where his primary support system was located. SSA believed that a conservator or public guardian should be appointed for T.B. before the end of his dependency, to ensure his health and safety needs would continue to be met.
In September 2011, SSA completed an application to determine T.B.’s eligibility as an adult with developmental disabilities in Idaho. At the same time, the Orange County Association for Retarded Citizens contacted SSA to advise it would be scheduling an intake/orientation for T.B. for a possible placement in an adult foster home. SSA’s ultimate recommendation remained the same: “The Social Services Agency continues to assess that it would be in T[.B.]’s best interest to remain in California and continue his relationships with these people who have become like family to him. In addition, an Adult Foster Home ([maximum] of two consumers) in a family like setting is more preferable th[a]n a group home setting which appears to be most available in Idaho. The Social Services Agency will continue to move forward with securing a Conservator or Public Guardian to ensure, T[.B.]’s health and safety will continue to be met in his adulthood. [¶] The Social Services Agency will continue to assess both placements in Idaho and in California to determine what placement would be in the best interest of the youth.”
In November 2011, SSA reported that it had been in communication with a quality assurance specialist from Regional Medicaid Services in Idaho. The specialist reported she had received T.B.’s application packet and would forward it to an independent center for disabilities evaluation. The specialist discussed the next steps in T.B.’s evaluation for placement in Idaho. In response to SSA’s concerns that the move to Idaho would be drastic and might have negative effects on T.B., the specialist “stated that based on her review of the file a placement is ‘do-able’ but finding the ‘right home’ with people that understand T[.B.] and his needs will be difficult.” When SSA expressed the need for T.B. to have a public guardian or conservator appointed “to ensure his safety should he be relocated to Idaho, ” the specialist stated, “I’ll be honest, we don’t have a strong support system for that.” SSA also provided the text of numerous letters from T.B.’s current and former service providers, and R.B., all expressing their opinion that T.B. should not be placed in Idaho, and the reasons for those opinions.
SSA continued to recommend that T.B. remain in California, and that placement in an adult foster home be pursued:
“Since the last Court Hearing..., numerous former and current staff at South Coast Children’s Society as well as school personnel have expressed their concern should T[.B.] be moved to the State of Idaho. Staff who know T[.B.] well believe the sudden lack of contact with everything that is familiar to T[.B.] would be detrimental to his emotional and physical well being. Since visitation with his father is monitored and it would be recommended that this visitation remain monitored staff is concerned that T[.B.] will be removed from all that he holds dear, (his circle of support and community) and placed in a facility that may not understand his triggers, his capabilities and/or his limitations.
“At the present time T[.B.] has completed an assessment for an Adult Foster Care Home in the Orange County area where the ratio is two to one. This home would provide a family like setting as well as provide for the intense supervision and support that T[.B.] needs.
“As previously reported throughout the history of this case, the Social Services Agency recognizes the youth’s father as an important person in T[.B.]’s life. However on February 2, 2004, the Orange County Juvenile Court ordered that there was substantial risk to place the child in the father’s care and ordered Long-Term Foster Care for the child. Return to the father’s care has not been a recommendation as there has been no change in the father’s situation that would warrant reconsideration of return to his care. [¶]... [¶]
“The Social Services Agency continues to assess that it is imperative that a Conservator or Public Guardian be in place prior to terminating dependency to ensure T[.B.]’s health and safety continue to be monitored. There is no guarantee if the youth is placed in Idaho[] that this process would be established.
“On June 9, 2011, the undersigned, Regional Center Coordinator..., T[.B.]’s teacher... and House Manager... met to discuss what the best living option would be for T[.B.] in the future.
“The undersigned and those professionals that live and work with T[.B.] on a daily basis believe that it is in T[.B.]’s best interest to remain in his current community where he has established long term relationships with people who understand his behavioral and medical conditions. Further, due to T[.B.]’s numerous medical challenges it would be to his great benefit to remain connected to the medical professionals and supports that are familiar with T[.B.]’s medical adecedents [sic] and procedures.
“As previously stated T[.B.] has lived for a large part of his life in California. It is unclear if a sudden change in environment and climate in addition to the loss of all his current and consistent relationships in his life would be in his best interest. T[.B.]’s visits with his father which occur approximately four times per year continue to be monitored for his safety and often result in traumatic episodes including sexually acting out behavior and violence towards himself after the visits are over.”
In early November 2011, SSA requested a referral for an adult IQ test for T.B., as required by Idaho before T.B.’s application would be processed. In early January, before the IQ test was administered, T.B. developed pneumonia and was admitted to the intensive care unit of a local hospital. T.B.’s illness delayed the necessary IQ testing. The juvenile court ordered SSA to review its file for any earlier “qualified IQ test result that would satisfy Idaho, ” and send it to Idaho, or if suitable test results were not available, to schedule an IQ test for T.B. as early as practical.
Section 366.3 Postpermanency Plan Review Hearing, February 8, 2012
The juvenile court conducted a postpermanency plan review hearing on February 8, 2012. At the hearing, father requested an evidentiary hearing as to (1) placing T.B. with father; (2) placing T.B. in a group home in Idaho; (3) “progress for placement in Idaho”; and (4) reinstatement of reunification services for father, based on changed circumstances in father’s situation.
The juvenile court ultimately denied father’s request for an evidentiary hearing, denied the requests that T.B. be placed with father or in an unidentified Idaho group home, and denied the request that reunification services be reinstated for father. The court did order SSA to continue pursuing placement options in both California and Idaho, and made clear that its orders were without prejudice to any party bringing a section 388 petition:
“... I acknowledge that there is a conflict in the authorities regarding whether or not an offer of proof is required prior to a parent participating in a contested evidentiary hearing at a 366.3 post permanency plan[] review hearing.
“I am going to adopt the reasoning of our own court of appeal[] who have spoken on this particular case on three prior occasions in written unpublished opinions.
“I’ve given the father an opportunity to ask—or to give an offer of proof, rather. The court finds that that offer of proof is insufficient.
“Even assuming everything in the offer of proof were true, the court cannot return T[.B.] to his father today. The court cannot return T[.B.] to a placement in Idaho today.
“I feel that the father has not, even accepting everything as true, that he has purchased a home, that he has been remarried, that he has engaged in positive activity in his community and church, he has fed the homeless and other such acts of good works, the court finds that even accepting all of that to be true, that would be an insufficient basis to give reunification services to the father at this point in time.
“There is no real basis to demonstrate that it would be in T[.B.]’s best interest to offer that. [¶]... [¶]
“I did ask the agency to explore the placement because the information in the reports suggests that at some point he is going to move. I don’t know when that’s going to happen.
“What I am going to do, I am intending to make findings today based on what I do know today, not based upon speculatively what might happen.
“I am going to order the agency to also provide 30 days[’] notice prior to changing T[.B.]’s placement. It probably is not going to happen in the next six months, but in the meantime, I’m also going to order the agency to continue evaluating a possible Idaho placement.
“For the next report, I want an update on any efforts that have been made for changes relating to the pursuit of a conservatorship, whether public or otherwise, I would like some information relating to whether or not it would be in T[.B.]’s best interest to be placed in Idaho from a resource financial point of view.
“He is now an adult and I don’t know what resources would be available to him if he were placed in Idaho today as an adult.
“He entered the California system as a depend[e]nt and he gets certain funding as a result of that. If he were placed in Idaho, it is possible he may forfeit that, which would clearly—which would clearly cut against placing him in Idaho.
“Of course, any party is free to file whatever 388 petitions they would like. Perhaps father would do so upon receiving notice that the agency is intending to place T[.B.] in a new home by this 30-day notice that I’m ordering them to give, but, frankly, that, again, also is speculative.
“Perhaps the agency would file a petition to modify the court order to stop exploring Idaho as a placement option if it learns from Idaho that T[.B.] would not be given the same level of funding that he currently enjoys and receives here in California.
“Again, I don’t know, but those are all options that are open to all of the parties.”
Father timely appealed from the portion of the court’s order denying him an evidentiary hearing.
Section 388 Petition
In April 2012, SSA filed an interim review report. SSA reported that an adult foster home had been identified for T.B., and preplacement visits were being scheduled. “The prospective foster mother is a registered nurse who is employed at Fairview Developmental Center. The family also has a biological child with Downs’s Syndrome. The team discussed the fact that with T[.B.]’s medically fragile condition this particular foster home sounded ideal as the foster mother would be able to better monitor T[.B.]’s day to day physical health.”
SSA also reported that T.B. had been admitted to the hospital in March 2012 with bacterial pneumonia. T.B.’s primary physician was of the opinion that T.B.’s increase in intensity of pulmonary distress episodes indicated T.B. would benefit from a higher level of care. T.B.’s physician agreed that the proposed adult foster home could provide a level of care that “would be most beneficial for” T.B.
An IQ test was performed and forwarded to Idaho’s developmental services office, although T.B.’s responses were sporadic and difficult to test, making the results inconclusive. However, SSA noted that, particularly in light of T.B.’s increasingly serious medical problems, “the Social Services Agency continues and adamantly contends that a transition to the State of Idaho with staff (who do not know his symptoms of distress) could very likely be life threatening.” SSA’s recommendation continued to be that T.B. be transitioned to an adult foster home in Orange County so he could remain connected with the medical professionals and emotional support system currently available to him.
In response to the identification of a possible foster home placement for T.B., father filed a section 388 petition, in which he requested that the juvenile court prevent SSA from moving T.B. to a foster home before the evaluation of T.B.’s placement options in Idaho was completed. As to changed circumstances, the petition alleged: “Social Services now plans to move T[.B.] from the professionally run group home where he has resided for years, with a staff Social Services has for a number of years claimed was vital to T[.B.]’s well being, to a completely different foster home. Beds in professionally run group homes continue to be available in Idaho and the IQ test requested for such a placement in Idaho has now taken place to the extent possible.” Father alleged the requested order would be in T.B.’s best interest because “T[.B.], consistent with all prior court reports, requires intense professional care both psychologically and medically for his continued safety and well being.” No declaration supporting the section 388 petition was filed.
Following a prima facie hearing, the juvenile court denied the section 388 petition without an evidentiary hearing:
“... We have been talking a long time about finding a better placement for T[.B.], a more permanent placement for T[.B.]. So I don’t think that... the social worker looking for a change of placement for T[.B.] is any grand surprise to anyone. The prior reports talk about getting an extension of time that he could stay in his current placement while they continue to look for a more permanent placement.
“I also don’t think it’s disputed that today there is not a home in Idaho that could take T[.B.]. And I know that that statement I just said is filled with a few double negatives, so let me rephrase that.
“It’s my belief based on the information presented that if I wanted to place T[.B.] in a home in Idaho today, we have [not] identified one for him to go into yet. And that is for a variety of reasons. I think that the social worker prior to moving T[.B.] should consider all placements whether in California or whether in Idaho. The bottom line is, the social worker needs to find the best placement for T[.B.] considering all of the factors. If it’s in Idaho, if it’s in California, if it’s in Alaska, wherever it might be, the best home for T[.B.] is what we’re all supposed to be looking for. Okay?
“And I would expect the social worker to evaluate all the possible placements, whether they’re here, there, or some other place, and from all of the options available then pick the best placement that is available and willing to take T[.B.].
“I do have some concerns that if we hold off on placing T[.B.] in the home that was identified in the report today, that that home might not be available in the future. Sounds like a nice family who has a limited capacity to take people. And it’s taken a long time to find even that particular situation in this particular instance.
“Father’s counsel has repeatedly stated for some time now that father has a belief the social worker is resistant to looking at placements in Idaho. And in consideration of that I have wanted to make sure that the social worker is, in fact, at least doing the things that would have to occur before a placement in Idaho could be considered, such as the IQ testing and what not.
“At the end of the day we all want what’s best for T[.B.]. I don’t think that there is a sufficient change of circumstances to warrant granting a further evidentiary hearing in this matter. There isn’t a change of circumstance. He is being considered for a possible placement move. I’m not sure it’s in his best interests to move him to a placement in Idaho. That hasn’t been articulated or demonstrated to me other than argument by father’s counsel that T[.B.] would benefit from being close to his father.
“I have a lot of questions, a lot of questions about that. T[.B.] currently enjoys certain funding that’s protected by the laws of California. T[.B.] currently is receiving care. If we moved him to Idaho, especially given that he’s not a minor right now, I don’t know if those funding requests would continue. I don’t know what Idaho’s protections would be. I don’t know how that would possibly be in T[.B.]’s best interests. That information certainly is not before the court.
“And I also find that based on prima facie the request fails to show that it would be in the best interests of the child to hold off on continuing to allow the social services agency to evaluate a more permanent placement for T[.B.].
“For all of those reasons the court denies the 388 motion. Of course that is without prejudice to father, upon a more complete or thorough showing, filing a 388 in the future....”
Father timely appealed from the order denying his section 388 petition without a hearing. Pursuant to father’s motion, this court consolidated the two appeals for purposes of briefing, oral argument, and decision. Father’s appellate briefs do not separately address the issue of the juvenile court’s refusal to conduct an evidentiary hearing at the section 366.3 review hearing in February 2012.
DISCUSSION
I.
STANDARD OF REVIEW
Petitions under section 388 “‘are to be liberally construed in favor of granting a hearing to consider the parent’s request. [Citations.] The parent 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 parent 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.)
II.
FORFEITURE
SSA initially argues that father has forfeited certain arguments on appeal by failing to raise them in the juvenile court. “As a general rule, a party is precluded from urging on appeal any point not raised in the trial court.” (In re Riva M. (1991) 235 Cal.App.3d 403, 411-412; see also In re Christopher B. (1996) 43 Cal.App.4th 551, 558 [“In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal”].) We will address the alleged forfeiture of each specific argument in context.
III.
CHANGED CIRCUMSTANCES
The juvenile court did not abuse its discretion in finding that father had not made a prima facie showing of changed circumstances. The need to transition T.B. from the group home in which he was residing to a new living facility was not a changed circumstances: SSA had advised the juvenile court for a period of time that T.B. would not be able to remain in the current group home due to his age, and the process of obtaining waivers to allow him to remain there until an alternative living facility had been found had begun before the previous court order issued. Long before the previous order was entered, SSA advised the juvenile court it was attempting to locate an appropriate adult foster home for T.B.; the only change was that an adult foster home willing to accept T.B. had finally been located. While father claims the availability of beds in professionally run group homes in Idaho was a changed circumstance, no space for T.B. in Idaho was ever identified.
Much of father’s opening appellate brief is devoted to arguing the changed circumstance that SSA no longer needed to satisfy the Interstate Compact on the Placement of Children, because T.B. had turned 18 years old. This issue was never raised in father’s section 388 petition or at the hearing on that petition; we therefore do not consider it on appeal. (In re Riva M., supra, 235 Cal.App.3d at pp. 411-412.)
Father also argues a changed circumstance based on the involvement of Idaho’s social services agency, which would assist in finding T.B. a placement in Idaho. This is another argument that was not made in the juvenile court, and has therefore been forfeited. (In re Riva M., supra, 235 Cal.App.3d at pp. 411-412.) Even if we were to consider the argument, we would find it unavailing. The information before the juvenile court was: “Once eligibility is determined the consumer’s guardian is then provided a list of Target Services Agenc[ie]s which assists in finding an appropriate home for the consumer. These Agencies also provide the ongoing supervision of the consumer and monitor their health and safety with their residential settings.” Whether this is a changed circumstance pursuant to section 388 is debatable; this information was available more than five months before the February 2012 review hearing. In any event, as was made clear throughout the proceedings, T.B.’s eligibility had not been determined, and T.B. would need to be admitted to a psychological facility in Idaho in order for his eligibility to be determined. While the IQ test required by Idaho had finally been completed, nothing in father’s section 388 petition explained why this changed circumstance justified a hearing on the petition, much less granting the petition. So, there was nothing before the juvenile court establishing that an agency in Idaho was, in fact, ready and able to currently assist in placing T.B. in a facility in that state.
IV.
BEST INTERESTS
The juvenile court did not abuse its discretion in finding father had not made a prima facie showing that the requested order would be in T.B.’s best interests. The section 388 petition alleged only that T.B. required “intense professional care both psychologically and medically for his continued safety and well being.” The petition did not allege either that the proposed adult foster home in Orange County was not able to provide such care, or that the as yet unidentified group home in Idaho could provide such care. To the contrary, T.B.’s primary physician believed the level of care in the adult foster home in Orange County “would be most beneficial for” T.B.
On appeal, father argues Idaho could have offered services identical to those provided by T.B.’s group home, and possibly better than those to be provided by the proposed adult foster home. Even if this argument had not been forfeited because it was not raised before the juvenile court (In re Riva M., supra, 235 Cal.App.3d at pp. 411 412.), it is insufficient to establish the juvenile court erred. Based on the record before us, we agree with the juvenile court that possible placement of T.B. in Idaho is speculative. The excerpts from the Idaho Administrative Code and Idaho’s Uniform Probate Code, which father attached to his appellant’s opening brief, establish generally that services are provided in Idaho for adults with developmental disabilities, and that any county in Idaho has the ability to create and budget for a community guardian. These code sections confirm the assumption of the juvenile court that comparable services may be available in Idaho, but they do not resolve the issue presented by this case—whether there is a facility in Idaho that is capable of providing for T.B.’s needs and is currently able to accept him.
Father also argues that the relief sought by his section 388 petition would have ensured that T.B. would not be forced to make one move, and then make another move. Father contends that if T.B. were moved to the proposed adult foster home, and a better placement in Idaho were later identified, T.B. would suffer from the multiple transitions he would be forced to undergo. However, it is clear that T.B. will be required to make at least one transition out of his current group home. Given T.B.’s specialized needs, the juvenile court’s concerns were justified. Placing a hold on proceeding with the adult foster home placement in Orange County could mean the loss of that spot, especially because T.B.’s proposed placement was with a family with a child of their own, meaning there was not an unlimited number of spots available there. In addition, information provided by Idaho social services to SSA indicated T.B. would have to be moved to Idaho for evaluation before his placement could be finalized; therefore, T.B. could possibly be moved to Idaho, and then back to California. Such a transition would be even more significant to T.B. than the one father claims to be seeking to prevent.
Finally, father argues moving T.B. to Idaho would be in T.B.’s best interests because T.B. and father would have more frequent contact. Of course, this argument misses the point. Father is not challenging an order requiring that T.B. be placed in California or refusing to place T.B. in Idaho; the only issue before us on appeal is whether the juvenile court erred in refusing to place a hold on SSA moving forward with a placement in an adult foster home in Orange County until the possible placement options in Idaho could be fully explored. In any event, the juvenile court was well aware that T.B. was made a dependent of the juvenile court because of father’s physical abuse of R.B., and that T.B.’s quarterly visits with father regularly resulted in T.B.’s regression in behavior. Father has failed to provide evidence of a significant bond between himself and T.B. Father also fails to address T.B.’s bonds to his local service providers. The overwhelming evidence before the juvenile court established that it was in T.B.’s best interests to remain in the same community for the continuity of his behavioral and medical care, and for maintenance of contact with his support system.
DISPOSITION
The orders are affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J.THOMPSON, J.