Opinion
C057640
9-3-2008
In re TOMMY H., a Person Coming Under the Juvenile Court Law. MARK B., Plaintiff and Respondent, v. TEHAMA COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendant and Respondent; TOMMY H., Appellant.
Not to be Published
The minor, Tommy H., appeals from an order of the juvenile court granting a petition for modification brought by his half sibling, Mark B., to change Tommy H.s placement. (Welf. & Inst. Code, §§ 388, 395.) Appellant contends the court abused its discretion in granting the modification. We agree and reverse.
Appellant filed a notice of intent and a petition for writ following the hearing but it was unclear whether appellant was attempting to invoke the procedures of California Rules of Court, rule 8.452 or traditional mandate. (Case No. C057106.) We denied the petition as not authorized under rule 8.452 and, if construed as a petition for writ of mandate, concluded that the petition did not show that appeal was not an adequate remedy. (Case No. C057106.) No petition for writ of supersedeas was filed in this case.
Hereafter, undesignated statutory references are to the Welfare and Institutions Code.
FACTS
Fourteen-month-old Tommy and his 13-year-old half brother, Mark, were removed from parental care in September 2005 due to the mothers substance abuse and history of violent behavior. Mark had been living with a family friend but had run away and was found with the mother. Neither parent identified any possible relative caretakers and none came forward. A non-relative extended family member was identified as a placement alternative but was rejected. The minors were placed in separate foster homes and the court ordered reunification services.
According to the six-month review report, Tommy, who had been in the same foster home for nine months, was very attached to the foster mother and was eager to be with her. Tommy enjoyed visits with Mark, who had been moved to a new foster home. The 12-month review report recommended termination of reunification services. Tommy had been in the same placement for a year but Mark was in his third placement. Mark was having a hard time being separated from his family and was in counseling. Tommy and Mark continued to visit. At the 12-month review hearing in November 2006, the court terminated reunification services and set a selection and implementation hearing pursuant to section 366.26.
The report for the section 366.26 hearing stated that Tommy had lived in the same foster placement for 16 months, showed a deep attachment to the foster parents and would benefit from adoption. Mark was now in his fourth placement, having been moved to the home of a maternal aunt, where he appeared to be stable. Mark did not want to be adopted and his permanent plan was long-term foster care. In visits, Mark showed an emotional attachment to Tommy. However, while Tommy enjoyed the visits, he was not emotionally mature enough to maintain a similar relationship with Mark. The social worker assessed that adoption was the best plan for Tommy and long-term foster care was best for Mark as it met his needs and allowed for a support structure for the maternal aunt in parenting him.
The California Department of Social Services (CDSS) also performed an assessment of the two boys with similar results. According to the CDSS assessment, Mark was stable in his relative placement. Tommy showed separation anxiety when apart from his foster mother, but recently his anxiety was decreasing in intensity over time. Mark expressed a desire to be adopted by the maternal aunt but continued to feel responsible for his mother. Family was very important to him. Tommy was observed to be closely bonded to the foster family. The assessment noted that Mark had a strong emotional tie to Tommy; however, Tommy was too immature to maintain an ongoing relationship with Mark. The assessment concluded that Tommy saw the foster parents who had cared for him for the last 16 months as his psychological parents and removal from their home would be seriously detrimental to his well-being.
In February 2007, the court set the matter for a contested hearing. Shortly thereafter, Mark filed a petition for modification seeking to have Tommy moved from his placement with the prospective adoptive parents to the relative placement with the maternal aunt where Mark resided. The petition alleged circumstances were changed due to Marks placement with the maternal aunt and the possibility they could now be placed together. He objected to adoption of Tommy by anyone other than the maternal aunt and alleged that the change in placement was in Tommys best interest because Tommy had a close bond to Mark and living separately would be detrimental to both of them.
An addendum report filed in March 2007 continued to recommend adoption with the current caretakers as Tommys permanent plan, but changed the recommendation for Mark to a permanent plan of adoption without termination of parental rights. The social worker interviewed Mark who said he was living with his mother when the minor was born and continued to live there about six months helping to care for Tommy. He then lived with his father for a year and finally lived with a family friend before being placed in foster care. During this period he visited Tommy frequently. The addendum stated Mark and Tommy were placed in separate homes and had visited at least once a week for the last year. Mark interacted with Tommy during visits and Tommy would occasionally go to Mark for a hug but never had trouble leaving Mark and eagerly returned to his foster parents. When Marks third foster placement failed, he declined the opportunity to be placed with Tommy and was happy to be placed with his maternal aunt. At about this time, the maternal aunt began to request Tommy be placed with her as well, but was told that he was in a stable placement. The maternal aunts insistent focus on Tommy led adoption workers to question her commitment to Mark. The report contrasted Marks ability, at age 14, to comprehend his relationship to Tommy with Tommys relative inability to do so at age two. The report stated that Tommys attachment was to his caregivers and he was secure with them. However, while he was comfortable with Mark, Mark was not a primary person in Tommys life. According to the report, because Tommys identity at his young age stems from primary caregivers, that relationship defined his sense of security. Removing him from the caregivers would compromise him emotionally and risk his well-being. The social worker conferred with the CDSS adoptions specialist and adoptions psychologist who opined that, due to the disruptive attachment to his mother which led Tommy to fear that his needs would not be met, he would suffer if he were separated from his caretaker and, further, that Tommys attachment to his caretaker was more important to him than the attachment to his sibling.
When detained, Mark was found to be with his mother, having run away from the family friends home. At that time he stated he was not living with his mother and did not want to return to her home, but instead wanted to return to the friends home.
A report by the CDSS adoptions specialist concurred with the social workers report and analyzed the relationship between the maternal aunt, Mark and Tommy, concluding adoption in his current placement was in Tommys best interest and noting that the maternal aunt had taken no steps to adopt Mark.
A separate social workers report in response to the petition for modification was filed in March 2007. The report stated the maternal aunt requested placement of the minors just prior to Marks move to her home on December 6, 2006. At the time, Tommy was in the home where he was originally placed and had lived for 15 months. Because Tommy was secure in the placement and no change was contemplated, the maternal aunts request for placement was denied. There did not appear to be a significant sibling bond at that time.
The report noted that Mark and Tommy lived together for the first six months of Tommys life and visited on and off thereafter. During reunification, Tommy interacted with both his mother and Mark in visits but was eager to return to his foster mother. The relationship between Mark and Tommy appeared to be that of friendly visitors.
The report further stated that the minors were not placed together at the outset of the dependency because Tommys foster home did not have room. Mark was subsequently placed in another foster home and moved twice. Prior to his placement with the maternal aunt, Mark was asked if he wanted to move to Tommys foster home because a place was available there. Mark declined the placement stating it would be "too hard for him to live with Tommy until he was eighteen and then move out and have to leave him." According to the report, Tommy, due to his young age, did not perceive the relationship with Mark the same way that Mark did and that Tommys primary relationship was with his caregiver. The report further stated that, before moving to the maternal aunts home, Mark was content with visiting Tommy and did not express any objection to Tommys adoption by his foster parents, but now wanted to be involved in planning Tommys permanent plan. The report concluded that Marks development and life experiences were very different from Tommys and that Tommys stability would be maintained by remaining with his foster parents.
We note that, regardless of Marks wishes, the permanent plan is developed by the Department of Social Services, subject to evidentiary hearing and argument by the parties and ultimately ruled on by the court. At best, a sibling may express his or her wishes about the permanent plan of another sibling.
At the next hearing, the court granted the maternal aunt defacto parent status, presumably as to Mark, and granted a request for a bonding study which had previously been denied.
The completed bonding evaluation was attached to an addendum filed in June 2007. The evaluator described a play session she observed between Tommy, Mark and various members of his extended biological family, noting Tommy was willing to interact with the others but displayed no special relationship, attachment or bonding to them and lacked any significant reaction to being separated from them. This contrasted with Tommys strong negative reaction at being separated from the foster parents during their observed play session. The evaluator recommended Tommy remain in his foster care placement because disruption of his bond to the foster mother could cause permanent damage and Tommy did not have a significant bond with Mark.
The hearing on Marks petition for modification occurred on September 28, 2007, a year after services had been terminated and a permanent plan was to be selected. The social worker testified there was no option but to place the minors separately at the outset of the dependency. She said there was an ongoing assessment of the placements and, had a relative come forward earlier in the proceeding or a suitable foster placement for both minors been located, they would have been placed together. She noted that, if the parents do not disclose relatives names, they cannot be assessed for placement. She further testified that the maternal aunt did not request placement until after services were terminated and, at that time, Tommy was stable in an adoptive placement. At the one point when Mark could have joined Tommys placement, he declined to do so in favor of moving to the maternal aunts home. The social worker agreed that Mark had an emotional attachment to Tommy but the level of Tommys bond to Mark was difficult to determine. In the social workers opinion, the sibling relationship did not outweigh Tommys interest in permanency.
The specialist who performed the bonding evaluation testified that, while she was asked to prepare a bonding study between Mark and Tommy, it was necessary to involve the other family members because a child under the age of five exists in the context of the relationship with the adult caregivers, so her report included evaluation of the sibling bond in addition to other issues. The specialist found Tommy had anxious attachments as a result of the experiences of his first year but that over time his anxiety was decreasing with the foster parents. She testified that Tommy liked his brother, got along with him and there was an attachment between them demonstrated by the friendly relationship, but his primary attachment was to the foster mother. In the specialists opinion, the bond between the brothers was less important for Tommys well-being than his bond to his primary caregiver. Because the needs of the brothers were so different due to their ages and developmental stages, she felt that the assessment of their bond was not critical; instead, what was important to Tommy was his relationship with the nurturing adult.
Tommys foster mother testified she offered Mark a place in her home when one became available but that he declined. She was aware of the importance of sibling relationships and encouraged the minor to be with his biological family.
The maternal aunt testified she had come forward to request placement of the minors as soon as she found out that the mother was going to lose her parental rights. She did not want to "get involved" earlier. She stated that Mark was emotional about his lack of visits with Tommy and missed him. She stated that it would be in Marks best interest for Tommy to live with them because Marks life would be more complete.
The maternal aunt, the minors older sister and Mark testified about their perceptions of the specialists observation of Tommys interaction with them during the bonding study. Their perceptions differed from the specialists report in that all of them described Tommy as upset and crying when Mark and the maternal aunt left the observation room, but the specialist said Tommy was merely quieter and less joyful. The sister also testified that Mark was close to Tommy and that she wanted to be able to see the brothers grow up and know she was their sister. The parties stipulated other older siblings who were present at the evaluators observation would testify similarly.
Mark testified he wanted Tommy to move to his placement so they could grow up together. He described how he helped care for Tommy when Tommy was an infant and their current interactions at visits. He said he declined the offer to move to Tommys placement because he thought Tommy would move to the maternal aunts home. Mark stated that the brother relationship was important to him.
Following extensive argument, the court stated: "All right. These facts present an unfortunate circumstance that the minors find themselves in.
"And I am not pointing fingers at anyone. I know there has been some discussion during this hearing as far as the Department not taking appropriate action in terms of placement. But the facts are the facts.
"And what I have heard from the testimony of [the social worker] is that things could have been done differently at an earlier phase in the proceedings. There could have been more of an attempt to keep the boys, the two minors, together in terms of placement.
"[The maternal aunt] had, according to [the social worker] asked for placement of both of these children with her. And that was done, according to my notes, a year ago. And she still maintains that she wants the children placed with her. Shes testified — [the maternal aunts] testified that she is willing to adopt both of the children.
"The court did order a bonding assessment be done. And unfortunately, in my opinion, it hasnt been done. The testimony of [the specialist] is that she didnt agree that a bonding assessment was of any value. And thats what I understood her to say. And that wasnt addressed. Or if it was addressed, it was addressed very indirectly in her report. Her addressal of the issues here concern placement of Tommy.
"There wasnt even an agreement as to the term `bonding. She preferred to use the word `attachment. And when she was asked about that particular term, she had indicated [the maternal aunt] is a nurturing attachment figure.
"[The maternal aunt] has had Mark with her for some time now. She has a 3,100-square-foot house, several bedrooms, two bathrooms, and what sounds to be horses and stables; seemingly appears to be an environment that children can be raised in. There were no allegations of neglect on her behalf or any factors that would cause the Court concerns as far as the placement of either or both of these children with her.
"I also noted that the time that the expert, [], had spent with Tommy was fairly minimal. And I dont think that she could have addressed appropriately the request of her for a bonding assessment.
"There was further testimony that she wasnt there at all times when Tommy was with [the maternal aunt] and [the foster mother]; that she had parted before the actual termination of the visit. And that would seem to be critical in making a decision as far as the relationship the two minors had to each other and what kind of attachment and bonding they had. So I dont give much weight to the report of [].
"What I did hear was testimony from Mark B[.] describing his relationship with his brother for his first 15 months of life: that he fed his brother, he changed his brothers diapers, he held his brother. He was there when his brother first walked. He also described his current relationship with his brother in terms of playing with him, hugging him.
"It appears to me that there is more than attachment. A bond that has been created. And I think it would be detrimental to the children to separate them and have separate placements for them. I think it is in the best interests of the minors that they be kept together.
"Tommy has already undergone one separation when he was taken from his mother. He seems very resilient. He still is young enough I think to undergo another placement.
"So I am going to grant the motion made for the change of placement of Tommy. I am ordering that Tommy be placed with [the maternal aunt]."
DISCUSSION
I.
Tommy H. contends that the court abused its discretion in granting the petition for modification. We agree.
A person interested in the minor, including a sibling, may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances. The person "requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is preponderance of the evidence. [Citation.]" (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The best interests of the subject child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., supra, at p. 317.) Children have a fundamental right to have a placement that is permanent and stable. (In re Jasmon O. (1994) 8 Cal.4th 398, 419.) Thus, the juvenile court must look to the needs of the child for permanence and stability when assessing the best interests of the child when reunification is no longer at issue. (In re Stephanie M., supra, at p. 317; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
Section 388 provides, in part: "(a) Any . . . person having an interest in the child who is a dependent child . . . 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 or to terminate the jurisdiction of the court. . . . [¶] (b) Any person, including a child who is a dependent of the juvenile court, may petition the court to assert a relationship as a sibling related by blood, adoption or affinity through a common legal or biological parent to a child who is . . . a dependent of the juvenile court, and may request visitation with the dependent child, placement with or near the dependent child or consideration when determining or implementing a case plan or permanent plan for the dependent child or make any other request for an order which may be shown to be in the best interest of the dependent child. . . . [¶] (c) If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, or termination of jurisdiction, the court shall order that a hearing be held . . . ."
Mark properly alleged a factual basis of changed circumstances and best interest for the proposed modification. (In re Daijah T. (2000) 83 Cal.App.4th 666, 674-675.) As the moving party, Mark had the burden to show that the proposed order was in Tommys best interest. Since reunification efforts had ceased, Tommys best interest lay in continuity and a stable placement. However, Marks evidence focused on his own desire to have Tommy change placement and the benefits that he and the other older siblings, not Tommy, would derive from the change.
Mark did not show that disruption of Tommys current long-term placement with the foster parents was in Tommys best interest. Evidence that the maternal aunt would be a good caretaker, had a large home and wanted to adopt Tommy simply indicated the existence of a placement equivalent, in the material sense, to the one he had.
There was evidence from the social worker and both the adoptions specialist and the adoptions psychologist from CDSS that changing Tommys placement would be detrimental to him and that his best interests would be served by the permanency of adoption by the foster parents, to whom he was most attached.
Evidence that severing a bond with foster parents, with whom a child has lived for a substantial period, will cause the child long-term, serious emotional damage is highly significant in determining the childs best interests after reunification has failed. (In re Jasmon O., supra, 8 Cal.4th at pp. 418-419.) A child may have interests of his or her own which diverge from those of a parent or his or her siblings. (Id. at p. 419; see, e.g., In re Celine R. (2003) 31 Cal.4th 45, 51, 61.) These divergent interests may support divergent placements.
It appears from the ruling that the juvenile court did not consider Tommys best interests or Tommys bond to Mark, but instead concerned itself with Marks interests and Marks bond to Tommy. The juvenile court also found it would be detrimental to separate the siblings, but the issue was not separation of the siblings, who had been separated for some time, but whether a change of placement was in Tommys best interests. The juvenile court also focused on relative placement and the positive aspects of the maternal aunts home without considering the lack of relationship between Tommy and the maternal aunt as opposed to the strong relationship he enjoyed with the foster parents.
The court failed to apply the proper legal standards in assessing whether Marks petition for modification should be granted. This constituted an abuse of discretion. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 85.)
Because of the courts failure, it is impossible to review its determination for substantial evidence and the matter must be remanded for a new hearing. (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 659-660.) In any case, where the trial court decides the case by employing improper criteria, reversal is required regardless of whether substantial evidence supports the judgment. (See Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 436.)
Recognizing that time has passed and Tommy has been living with the maternal aunt during the pendency of this appeal, on rehearing the juvenile court may consider current evidence when determining whether the change of placement to the maternal aunts care is in the minors best interest. In making this determination, the juvenile court will not consider any placement preference which might otherwise apply to either the relative or the foster caretakers.
II.
Since reversal is required, we shall also address some of the ancillary issues raised at the hearing as they may recur on rehearing.
A. Sibling Placement
Section 16002, subdivision (a) states that the Legislatures intent is that "when siblings have been removed from their home, either as a group on one occurrence or individually on separate occurrences, [they] will be placed in foster care together, unless it has been determined that placement together is not in the best interest of one or more siblings." The social worker must make efforts to maintain sibling relationships in out-of-home placements and make efforts to place them together. (§ 16002, subd. (b); see also § 361.2, subd. (i).) If placement together is not possible there should be diligent efforts to provide for ongoing frequent interaction among siblings. (§ 16002, subd. (b).) However, placement of a child with his or her siblings after removal from parental custody is a legislative goal, not a mandatory duty on the part of the social worker. (§ 16002; County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 642.) Failure to timely object to separate placements or the lack of supporting findings for separate placements forfeits any error. (In re Anthony P. (1995) 39 Cal.App.4th 635, 640-641; In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
There was a considerable amount of questioning of the social worker about why Mark and Tommy were not placed together at the outset and why they were not subsequently placed together. Challenges to irregularities, if any, have been forfeited by failure to object in a timely fashion. We note only that had Tommy been placed with Mark at all times during the dependency, he would doubtless have had to move from home to home as Marks placements failed. We see no dereliction of the social workers duties in the decision to maintain Tommy in a stable placement while attempting to meet Marks more challenging needs in various placements and continuing to assess whether they could be placed together. Under the circumstances, the social worker complied with the statute by maintaining and fostering whatever sibling bond existed through frequent ongoing visitation.
B. Relative Placement Preference
When children are removed from parental custody, relatives who request placement are afforded preference when the social worker and the juvenile court are considering placement options. (§ 361.3, subd. (a).) Thereafter, "whenever a new placement of the child must 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 childs reunification or permanent plan requirements. In addition to the factors described in subdivision (a), the county social worker shall consider whether the relative has established and maintained a relationship with the child." (§ 361.3, subd. (d).) During the reunification phase, the preference applies whether or not a new placement is required if the relative requests custody and the request is made before "any substantial damage would be done to the child by a change in placement." (In re Jessica Z. (1990) 225 Cal.App.3d 1089, 1099.) After termination of services but before termination of parental rights, the relative placement preference applies when a new placement becomes necessary. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) Dependency proceedings are concerned with the interests of the child, not those of extended family members; thus, even when the relative preference applies, the juvenile court must determine the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Lauren R. (2007) 148 Cal.App.4th 841, 855.) After termination of reunification services, when the intent is to place the child for adoption and a new placement is not necessary, the preference is for continued care by the foster parents who are interested in adoption. (§ 366.26, subd. (k); In re Lauren R., supra, at p. 856.)
The evidence established that the relative placement preference did not apply to the case. When the minors were first removed, the parents identified only a friend, not any relatives, as a possible placement option and no relatives came forward at that time or at any time during the reunification period. Subsequently services were terminated November 8, 2006, and Mark was placed with the maternal aunt on December 6, 2006. The maternal aunt did not request placement of the minors until shortly before Marks placement. The maternal aunt testified she did not seek placement of the minors until she found out that the mother was going to lose her parental rights. Accordingly, the most basic condition for application of the preference, i.e., that a willing relative come forward, did not occur in a timely fashion. After services were terminated, no new placement needed to be made because Tommys foster parents were willing to adopt him. If any preference applied to Tommys placement at the time the maternal aunt made her request, it was the caretaker preference. Moreover, the maternal aunt had neither established nor maintained a relationship with Tommy. The relative placement preference was not relevant to the determination of Marks petition for modification.
DISPOSITION
The order granting the petition for modification and placing Tommy with the maternal aunt is reversed. The juvenile court is directed to conduct a new hearing in accordance with the views expressed in this opinion.
We concur:
SCOTLAND, P.J.
SIMS, J.