Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BK06499. Deborah Andrews, Judge.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Melinda S. White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
BOREN, P.J.
The juvenile court denied a petition for a modification from Guadalupe S., who asked that a dependent child be placed in her home. (Welf. & Inst. Code, § 388.) We affirm. The petitioner did not make a prima facie showing of a change of circumstances, nor did she show that a change in orders would serve the best interests of the child. It is unclear whether Guadalupe S. is related to the child, and the court below found that she is not related. If Ms. S. is related, the court did not abuse its discretion by choosing to place the child in the care of others, and not with Ms. S.
All undesignated statutory references in this opinion are to the Welfare and Institutions Code.
FACTS
Z.M., born in March 2007, is the daughter of Audrey M. (Mother) and Robert Q. (Father). Mother has seven older children who became dependents of the juvenile court because they were physically abused in her home. She has a 1999 criminal conviction for willful cruelty to a child. Mother did not reunite with her older children.
Z. came to the attention of the Department of Children and Family Services (DCFS) in February 2009, based on a report of sexual abuse, neglect, and caretaker absence. During an examination, Z. was found to have ringworm, diaper rash, and thrush. The maternal grandmother advised DCFS that she has seen bruises on Z. and on Mother, and that the child is frightened of Mother’s boyfriend. Z. screams, does not sleep, and hits her head against the wall. Another relative stated that Mother uses “speed” and engages in domestic violence, exposing Z. to emotional abuse and possible physical harm. Z. did not receive adequate medical treatment, was dirty, and had bruise and pinch marks. A nurse practitioner found no evidence of sexual abuse, but described Z. as “very traumatized.” The DCFS social worker observed that Z. screamed and ran away whenever she heard Mother’s voice, and was uncomfortable when the social worker mentioned the names of Mother and Mother’s boyfriend.
Z. was detained by DCFS. A petition was filed alleging that Mother and her boyfriend engaged in domestic violence in Z.’s presence, and emphasizing that Z.’s siblings became juvenile court dependents as a result of Mother’s history of violence. The domestic violence endangers Z.’s physical and emotional health. The petition also alleged that Mother left Z. in the care of others for extended periods without making an appropriate plan for her care and supervision, and that Father-whose whereabouts are unknown-has not provided Z. with food, clothing, shelter, or medical care. Mother’s 18-year-old daughter wrote a letter to the court detailing Mother’s lengthy history of drug abuse and relationships with abusive men.
The court found a prima facie case for detaining Z. Mother denied the allegations in the petition. She described a difficult childhood: abandoned by her birth parents, she spent 11 years in an orphanage and foster care before being adopted. Mother admits to prior use of cocaine and methamphetamines, but claims sobriety since 2007. In light of Mother’s history of juvenile court intervention with her seven older children, and her failure to reunite with any of them, DCFS recommended that Mother be denied reunification services. Z.’s primary caretaker since birth has been her grandmother, and during most of Z.’s first year, Mother resided in a sober living home. After leaving the treatment program, Mother entered a relationship with an abusive partner, and frequently left Z. in the care of others without making a plan for the child’s supervision.
Mother failed to appear at the jurisdiction hearing on March 27, 2009. The charges against her were sustained. A contested disposition hearing was held on April 30, 2009. The court took judicial notice of the previously sustained petitions for Z.’s seven siblings; of Mother’s failure to reunite with her older children; and of the resulting permanency placement orders. The court denied Mother’s request for reunification services, finding that Mother failed to reunite with her older children and has not made a reasonable effort to address the problems that led to their removal. Z. was declared a dependent of the court, and the court set a permanency placement hearing date.
Z. was not placed with her maternal grandmother, who is the legal guardian of four of Z.’s siblings. The grandmother’s home was rejected because one of Z.’s siblings is on probation and lives there. Over the objections of Mother and DCFS, the court authorized Z. to have an extended visit with Michelle R. in March 2009. Ms. R. and her fiancé were willing to provide Z. with a permanent, adoptive home.
In an interim review report on May 29, 2009, DCFS described tension and conflict between the caregiver Michelle R. and Mother. The two women accused each other of grabbing and pushing during a visit at a fast-food restaurant on April 25. Ms. R. claimed that Mother became upset when Z. addressed Ms. R. as “mommy.” A witness to the scuffle blamed Ms. R. for acting unprofessionally and making mean or angry comments to Mother. Ms. R. was openly opposed to Mother’s visits. At Ms. R.’s home, DCFS social workers observed that Z. was happy and comfortable, and referred to Ms. R. as “mommy.” By the same token, Z. also referred to Mother as “mommy” during monitored visits at the DCFS office. Ms. R. applied to adopt Z.
On the day set for the permanency placement hearing, Father showed up in court for the first time, and asserted parental rights. The matter was continued so that Father and Z. could undergo paternity testing. Testing showed that Father and Z. share genetic markers: the probability of paternity is 99.99 percent. Father failed to come for monitored visits that the court authorized. Between August 24 and October 20, 2009, Mother had one visit with Z. Neither Mother nor Father assumed a parental role with Z.
In January 2010, Z.’s attorney asked the court to terminate Mother’s visitation rights, because Mother supposedly slapped Z. on the face during a visit, when the DCFS monitor left the visitation room. In the ensuing investigation, the monitor stated that Mother and Z. were never left unsupervised. In February 2010, DCFS reported that Ms. R. repeatedly slapped her 16-year-old daughter, and made threatening telephone calls to the girl. Ms. R. announced that she was no longer interested in adopting Z., explaining that the close relationship between Mother, Ms. R.’s son, and his wife (who is one of Mother’s children) created a stressful situation when Z. was placed in Ms. R.’s home.
After Ms. R. asked DCFS to remove Z., the child was placed in a certified foster home. Mother asked for Z. to be placed with Guadalupe S., who was variously described as “a nonrelated extended family member, ” “a pseudo aunt, ” and a “female companion.” The court promptly directed DCFS to assess the home of Ms. S. DCFS examined Ms. S.’s home, where she resides with her four minor children, ages one, eight, 14 and 17. Ms. S.’s 17-year-old son has a baby with Michelle R.’s 16-year-old daughter. Ms. S. stated that she was formerly married to Mother’s brother, and has two children by him. Ms. S. was present at Z.’s birth, and she has taken care of Z. for Mother in the past. DCFS was concerned about Ms. S.’s ability to protect Z. from Ms. R., which might inflame family conflict and tensions. Ms. S. expressed no concerns about Mother, with whom she has a good relationship. DCFS opposed the release of Z. to Ms. S. due to her ongoing family connections with Ms. R. Also, Ms. S. has a criminal record for welfare fraud, and has not had contact with Z. in the past year.
Ms. S.’s family status is significant, so we quote the transcript. Describing Ms. S., counsel stated, “She’s also kind of-you’ll like this one too, your Honor-a pseudo aunt by marriage. It’s the maternal uncle’s female companion, okay?” Z.’s attorney said, “Not married, ” to which Mother’s counsel agreed, “Not married.”
At a hearing in March 2010, Z.’s 19-year-old adult half-sister G.M. expressed an interest in having Z. placed with her. G.M. is a daughter-in-law of Ms. R. The court directed DCFS to assess the home of G.M. DCFS met with G.M. and explained that Z. could not be placed with her, due to the risk of emotional harm stemming from family dynamics.
Mother was scheduled to have monitored visits with Z. every Thursday at the DCFS office. She visited Z. once in January 2010, once in February, twice in March, and once in April 2010. Mother wanted DCFS to “give me another chance” with Z.
Z. was removed from the certified foster home when the family decided that they would prefer to adopt an older child. On April 5, 2010, Z. was placed in the prospective adoptive home of Mr. and Mrs. C., who completed an adoptive home study and expressed an interest in adoption. Z. was thriving and appeared to be bonded with Mr. and Mrs. C. and her prospective adoptive siblings, ages one and nine. Mr. C. is a corrections officer and Mrs. C. works in a hospital. After only a month, Z. referred to the C.’s as “mom” and “dad” and to their daughter as her “sister.” After visits with Mother, Z. used profanity.
On April 29, 2010, Guadalupe S. filed a petition for a modification, seeking to be named as Z.’s prospective adoptive parent. The grounds for the petition were that DCFS placed Z. “with strangers/foster parents” even though Ms. S. “has regular contact” with Z. Ms. S. described herself as Z.’s “maternal aunt/godmother” and stated that placing Z. with her “would allow Z. to remain in the family with a family member who has an existing positive relationship with Z.” Ms. S. contended that she would “protect Z. from any problematic family members.” Z.’s attorney opposed Ms. S.’s petition because it did not appear that Ms. S. had a relationship with Z.; because Ms. S. did not qualify as a nonrelated extended family member; and because there was too much family conflict.
On April 30, 2010, the court denied Ms. S.’s petition without a hearing because the request “does not state new evidence or a change of circumstances. Nor does it appear that the proposed change of order... promote[s] the best interests of the child.” The court described Ms. S.’s relationship with the child as “very tangential” and Mother’s attorney conceded that Ms. S. is “a pseudo aunt by marriage. She has stood in the shoes of an aunt, but she is not technically an aunt, and... she does have a relationship with the child.” Guadalupe S. is appealing the denial of her petition for a modification.
DISCUSSION
A parent “or other person having an interest in a child who is a dependent child of the juvenile court” may petition the juvenile court to change, modify, or set aside an order previously made, upon a showing (1) of a “change of circumstance or new evidence” and (2) that the proposed change is in the best interest of the dependent child. (§ 388; In re S.R. (2009) 173 Cal.App.4th 864, 870-871.) To avoid summary denial of the petition, the petitioner must make a “prima facie” showing of facts that would sustain a favorable decision if the evidence cited in the petition is credited. (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.) Resolution of the petition is committed to the juvenile court, and its determination must be upheld on appeal absent a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
In her petition, Guadalupe S. asserted two changed circumstances. First, she “has had regular contact” with Z. Second, her home “was deemed appropriate by DCFS” in March 2010. Both of the circumstances cited in the petition are belied by the record. When DCFS first investigated Ms. S. as a possible placement in March 2010, Ms. S. informed the investigator that “she has not had contact with the child Z. while she was placed in the home of Ms. R., from March 2009 until March 2010. This means Z. did not see Ms. S. for one-third of her life, between the ages of two and three. This does not amount to “regular contact” with a dependent child of tender age.
As to the second changed circumstance, DCFS did not deem Ms. S.’s home to be an “appropriate” placement following its investigation in March 2010. On the contrary, the DCFS report indicates that the agency “will not recommend release of the child Z. to the home of Ms. [S.]....” The reason was Ms. S.’s ongoing connection with Ms. R.: Ms. S.’s teenage son has a child with Ms. R.’s teenage daughter. DCFS did not believe that Ms. S. could protect Z. from Ms. R. Ms. S. acknowledged that Ms. R. is “a very difficult person and... might cause disturbance to her own family and also Z.’s placement.” The record establishes that DCFS did not believe that Z. should be placed with Ms. S., for sound reasons, due to volatile family dynamics. There was, in short, no genuine change in circumstances at the time Ms. S. filed her petition for a modification.
Ms. S.’s petition states that the change of order would benefit Z. because “the placement would allow Z. to remain in the family with a family member who has an existing positive relationship with Z. At the same time, petitioner has the strength, will and ability to protect Z. from any problematic family members.” As noted above, Z. had contact with Ms. S. from the time of her birth, but no contact between the ages of two and three. This minimal contact does not rise to the level of an existing positive relationship between Z. and Ms. S. While Ms. S. has a close relationship with Mother, she is a stranger to Mother’s three-year-old child, whom she has not seen in a year.
In her brief on appeal, Ms. S. argues that “Z. has a fundamental right to grow up knowing her biological family.” Ms. S. is not a member of Z.’s biological family: she is the ex-wife or a companion of Mother’s brother. Mother’s attorney described Ms. S. as a “pseudo aunt by marriage” and as “the maternal uncle’s female companion.” (Mother is the driving force behind Ms. S.’s interest in Z., and Mother’s attorney spoke in favor of Ms. S.) The reports show that Ms. S. lives with four children, with no mention of Z.’s uncle.
Given the vague and conflicting descriptions of Ms. S. as a nonrelated extended family member, an ex-wife, a female companion and a pseudo aunt, Ms. S. failed to carry her burden of demonstrating an actual familial relationship. If this was a common law marriage, California does not recognize it. The juvenile court acknowledged the failure of proof at the hearing on Ms. S.’s petition. The court concluded that Ms. S. is “not actually related, although she does have an existing relationship with the child, but she’s not really a blood relative. It’s very tangential.” In any event, concerns about Z.’s contact with her biological relatives are allayed by the assurances of the prospective adoptive family, who are willing to continue at least some contact between Z. and her family.
Assuming that Ms. S. is a relative, she incorrectly criticizes the juvenile court for failing to give “preferential consideration” to her home. (§ 361.3, subd. (a).) “Preferential consideration” simply means that a relative’s request will be considered first. (Id., subd. (c)(1).) In this case, the court promptly directed DCFS to investigate Ms. S.’s home (at Mother’s request) after Ms. R. withdrew her adoption request. Only five days passed between Ms. S.’s appearance as a potential placement and the court’s order to investigate Ms. S.’s home. The court gave first consideration to kin before deciding that Z. should be placed with unrelated foster families.
The court’s decision not to place Z. with relatives is reviewed for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The best interest of the child is the paramount consideration when there is a change of placement. (Id. at p. 321.) Substantial evidence supports a conclusion that relationships in Z.’s family are fraught with tension and hostility. There was a physical altercation between Mother and Ms. R. in April 2009, followed by Ms. R.’s false accusations that Mother slapped Z. on the face during a monitored visit in January 2010, and finally Ms. S.’s presence at a physical altercation between Ms. R. and her teenage daughter in February 2010. The court could reasonably conclude that it was not in Z.’s best interest to be placed in close proximity to warring family members. Ms. S. is close to Mother (who has a long history of domestic violence and a conviction for child cruelty), and she spends time with Ms. R., who is physically violent. Transferring Z. from Ms. R. to Ms. S. could create more family tension.
Apart from the evidence of family strife, the evidence also shows that Z. did not see Ms. S. for a year and could not have developed a lasting and significant relationship with Ms. S. when she was just an infant. In Stephanie M., for example, a grandmother unsuccessfully sought to have a two-year-old granddaughter placed with her: the evidence showed that the grandmother raised the child until she was nine months old, but she did not have contact with a child for over a year while she was in foster care, and the department of social services did not believe that the grandmother could protect the child from abusive family members. (7 Cal.4th at pp. 303, 305, 307, 318-321.) If Ms. S. had the close and loving relationship with Z. that she describes in her brief, she would have visited Z. in the home of Ms. R. to promote their family bond, and she would have come forward when Z. was detained in February 2009. Finally, Ms. S. has a criminal history, unlike the prospective adoptive family where Z. was ultimately placed.
When the trial court’s reasons for denying placement with a relative are clear from evidence and discussion contained in the record, the court’s failure to state its reasons is harmless error. (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.)
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.