Opinion
B291798
01-24-2020
In re FREDERICK H., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.T., Defendant and Appellant.
Robert R. Walmsley, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK10313) APPEAL from order of the Superior Court of Los Angeles County. Pete R. Navarro, Commissioner. Affirmed. Robert R. Walmsley, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
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Paternal grandmother appeals the juvenile court's order summarily denying her request to remove her grandson Frederick from his placement with a long-term caregiver/guardian. Specifically, grandmother contends the court erred in not holding a hearing to determine whether Frederick should be placed in her home. We conclude the court acted within its discretion and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts leading to the juvenile court's assumption of jurisdiction over Frederick have minimal relevance to the issues raised on appeal. Accordingly, we only briefly summarize them: In May 2015, two-year-old Frederick and his half-siblings were taken into protective custody. The Department of Children and Family Services (Department) then filed a petition alleging that domestic violence within the home and Frederick's parents' drug abuse endangered him. The court detained Frederick and his half-siblings from their mother, and ordered the Department to give notice of the proceedings to Frederick's father. The court also ordered the Department to investigate possible relative placement or non-extended family member placement for all the children.
In October 2015, the Department reported that father would not "hold himself out" as Frederick's father and had requested DNA testing. Based on the parentage test results, the court found that father was Frederick's biological parent.
In December 2015, the court sustained allegations that the parents had neglected Frederick and his half-siblings, and ordered the children's removal. The court ordered monitored visitation for father, but no reunification services. Two months later, in February 2016, the Department reported that father had not maintained contact with his assigned social worker. In August 2016, at the six-month review hearing, the court terminated mother's reunification services, and ordered the Department to initiate an adoption home study.
In November 2016, now four-year-old Frederick visited with his paternal grandfather who expressed interest in being a part of his grandson's life. The visit took place at the Department's office, and went "well." The paternal grandfather had only seen Frederick once previously when the child was an infant.
The following month, the Department reported that Frederick had been living with his caregiver for over a year, and father had not visited him. Several of Frederick's half-siblings were also living with the caregiver. All the children were "well-bonded" with the caregiver and "happy under her care." The Department recommended a permanent plan of legal guardianship for Frederick and his half-siblings. The caretaker was willing to be a legal guardian but did not want to adopt the children because she wanted them to know their parents.
At the selection and implementation hearing on December 1, 2016, paternal grandparents appeared. The court continued the matter and directed the Department to speak with Frederick's caregiver and paternal grandfather about continuing visitation. On March 10, 2017, the court found it would be detrimental to return the children to their parents and it was in their best interest that a guardianship be granted. The court appointed the caregiver as the legal guardian of Frederick and four of his half-siblings.
In August and September 2017, the court held hearings on Frederick's visitation schedule with his paternal grandparents. The court ordered the Department to prepare a written visitation schedule for them.
Approximately six months later, in March 2018, the court terminated jurisdiction over Frederick. The following month, paternal grandparents filed a Welfare and Institutions Code section 388 petition requesting a visitation schedule and a change of the order appointing a guardian for Frederick which was now a year old. They claimed they had only learned of Frederick's existence approximately two years earlier, and had been visiting with him for almost a year. According to their declaration, when they visited Frederick he was wearing clothes that were too small and worn out, was unkempt, and the guardian's "male companion" had "abused alcohol" and was "belligerent" with them. Paternal grandparents requested that the court approve the "proposed visiting schedule" attached to the petition, and place Frederick in their home.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
The juvenile court summarily denied the petition later that month. The court concluded that on the face of the petition there were no changed circumstances nor any basis to find it would be in Frederick's best interests to grant the relief sought. Paternal grandmother timely appealed.
Neither mother nor father appealed the denial of the section 388 petition, the order terminating jurisdiction, or any other order germane to the present appeal.
DISCUSSION
On appeal, paternal grandmother argues only that the juvenile court erred in summarily denying her request for Frederick to be placed with her. She does not challenge the court's order denying her earlier request for a visitation schedule. At respondent's request, we take judicial notice of an August 28, 2018 minute order entered several months after paternal grandmother filed her notice of appeal in which the juvenile court established a written visitation schedule for paternal grandparents with Frederick.
1. The Notice of Appeal was Legally Sufficient
Respondent first argues we lack jurisdiction to hear this appeal because the notice of appeal was deficient. The notice of appeal stated that it was an appeal from the "May 4, 2018 Summary Denial of 388 petition." Respondent correctly argues that the date of the order was wrong—the juvenile court denied the section 388 petition on April 27, not May 4.
A notice of appeal is sufficient if it "identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.100(a)(2).) "[N]otices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant is trying to appeal from, and where the respondent could not possibly have been misled or prejudiced." (Luz v. Lopes (1960) 55 Cal.2d 54, 59.)
Here, respondent does not claim it was prejudiced by the erroneous date on the notice of appeal. The notice of appeal adequately stated it was an appeal from the denial of the section 388 petition and that paternal grandmother was the appealing party. The record discloses only the one section 388 petition so there could have been no legitimate confusion about the order appealed. We conclude the notice of appeal sufficiently apprised respondent.
2. The Juvenile Court Did Not Abuse its Discretion in Summarily Denying the Section 388 Petition
Appellant argues the juvenile court abused its discretion in summarily denying her motion for change of placement under section 388 without holding an evidentiary hearing. We do not agree.
a. Section 388
Any parent or other person having an interest in a child who is a dependent child of the juvenile court may, on grounds of change of circumstances or new evidence, petition the court in the same action in which the child was found to be a dependent child for a hearing to change, modify, or set aside a previously made order of the court. (§ 388, subd. (a)(1).)
"If it appears that the best interests of the child . . . may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ." (§ 388, subd. (d).) A petition for modification must be liberally construed in favor of granting a hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The petitioner need only make a prima facie showing to trigger the hearing requirement. (Id. at p. 310.)
There are two components to the prima facie showing the moving party must make: "(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 Anthony W. (2001) 87 Cal.App.4th 246, 250.)
b. No Abuse of Discretion
As to the first of the two components to securing a section 388 hearing—changed circumstances—appellant contends that her "coming forward as a relative and seeking adoption" constituted a change of circumstances such that the court should have granted an evidentiary hearing to consider Frederick's adoption by paternal grandparents. We agree that grandmother's request to adopt was a changed circumstance that satisfied the first prong of the test. Nevertheless, we find the trial court did not abuse its discretion with respect to the second component—that the relief sought in the section 388 petition is in best interests of the child. Accordingly, we affirm the order.
"In any custody determination, a primary consideration in determining the child's best interests is the goal of assuring stability and continuity. [Citation.] 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
In In re Stephanie M., our Supreme Court upheld the continued placement of a child with her foster mother in the face of the parents' section 338 petition that the child should be placed with her grandmother. In doing so, the Supreme Court reversed the decision of the Court of Appeal that had found the trial court had not given sufficient weight to relative placement preference under section 361.3. Much like the situation here, the Supreme Court found that at this late stage of the proceedings the fact that the Department may not have earlier considered sufficiently placement with the grandmother "was not relevant." (Stephanie M., supra, 7 Cal.4th at p. 322.) The Supreme Court held that "at the hearing on the motion for change of placement, the burden was on the moving parties to show that the change was in the best interests of the child at that time." (Ibid., italics in original.)
Here, at the time the petition was filed in April 2018, Frederick had been living with his half-siblings and caregiver for over two years. Over a year prior, the court had appointed Frederick's caregiver as his legal guardian. In support of the petition, paternal grandparents generally claimed to have been visiting with Frederick for almost a year, but cited only two specific visits—one in May 2017 and one in June 2017. (See In re Anthony W., supra, 87 Cal.App.4th at pp. 250-251 [general averments are insufficient without stating specific allegations describing the new evidence or a change of circumstances required for the granting of a section 388 hearing].)
That the grandparents may have visited for a year was not itself sufficient to show it was in Frederick's best interest to remove him from his long time foster parent/guardian. Indeed, the juvenile court could have reasonably found that if grandparents had been visiting with Frederick regularly for nearly a year, they would have been in a strong position to provide details that would establish that a change in placement was in Frederick's best interests. Yet the section 388 petition provided scant evidence that a change would benefit Frederick. Specifically, in response to the question why granting the petition was in Frederick's interests, grandparents stated only generally that placing "Frederick with us would provide him with stability and permanency. We are willing to adopt our grandson which would provide long term stability. It would eliminate the uncertainty of foster care placement, and would preserve Frederick's family connection." Elsewhere in the petition, the grandparents stated that they first learned of their grandson in 2016 and that they "have met Frederick and developed a meaningful and genuine relationship with him. We have been visiting with Frederick for almost a year now, and have come to love him and also to become very concerned with his placement." The petition is devoid of any details regarding the nature of the relationship between the grandparents and Frederick, how often they visited, how they have spent their time together, how Frederick engaged with his grandparents, or any of the myriad of details that might have shown that placement with the grandparents was truly in Frederick's best interests. In contrast, grandparents set forth in some detail how they concluded that the current caregiver was acting inappropriately — dressing Frederick in clothes too small for him, allowing in her home on one occasion a male companion who may have been intoxicated and behaved belligerently, and creating an uncomfortable situation when grandparents tried to deliver an Easter basket.
The juvenile court also reasonably could have concluded that the belated entry into Frederick's life tended to show that grandparents' expressed desire to adopt was not as strong as they had suggested. Grandparents acknowledged that they were aware that Frederick was in foster care sometime in 2016. In December of that year, the Department advised the court of a November visit between grandfather and Frederick. The court directed the Department to coordinate continuing visitation, and in August and September 2017, the court held hearings to address Frederick's visitation schedule with paternal grandparents. Yet, grandparents did not file their 388 petition until April 2018.
Appellant argues that her proposed plan of adoption was in Frederick's best interests because adoption is the preferred permanent plan for a dependent child. She is correct on the general rule. We find its application here unavailing. Appellant relies on two cases in support of this argument: In re Jose V. (1996) 50 Cal.App.4th 1792 and In re D.R. (2016) 6 Cal.App.5th 885. In In re Jose V., the Court of Appeal affirmed an order terminating parental rights, rejecting the mother's assertion that the trial court should have considered guardianship even when the child is adoptable. (In re Jose V., at p. 1797.) In In re D.R., the Court of Appeal reversed the trial court's order of legal guardianship on the ground that no substantial evidence supported the court's finding that the child's grandmother was unwilling to adopt the child—the evidence showed the grandmother was willing to adopt him. (In re D.R., at pp. 578-579.)
These authorities are not persuasive. The present case is not an appeal from an order terminating parental rights or appointment of a legal guardian. Neither In re Jose V. nor In re D.R. addressed the discretion afforded to the juvenile court in summarily denying a section 388 petition after a guardian has been appointed, and jurisdiction over the child terminated. (See In re Jose V., supra, 50 Cal.App.4th at pp. 1797-1798 [interpreting section 366.26]; In re D.R., supra, 6 Cal.App.5th at pp. 578-579 [applying section 366.26].)
Appellant also contends the juvenile court gave insufficient weight to the statutory preference for placement with relatives set forth in section 361.3, subdivision (a). That statute provides that whenever a dependent child is removed from the physical custody of his parents, preferential consideration shall be given to a request by a relative for placement of the child. (§ 361.3, subd. (a).) Despite the strong relative preference rules, section 361.3 does "not supply an evidentiary presumption that placement with a relative is in the child's best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 320.) "[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected." (Id. at p. 321 citing In re Jessica Z. (1990) 225 Cal.App.3d 1089.) The burden on a moving party under section 388 is to show that the proposed change is "in the best interests of the child at that time." (Id. at p. 322, italics in original.)
Here, the juvenile court acted within its discretion in finding that appellant failed to make a prima facie showing that placing Frederick in her home would be in the best interests of the child as of the time the petition was filed. Evidence that paternal grandparents had had two visits with the child over the past year did not indicate that it would be in his best interest to remove him from his home of over two years where he was strongly bonded with his guardian and happy in the company of his half-siblings. Evidence that Frederick was wearing clothes and shoes that he had outgrown, was in the presence on one occasion of someone who may have been intoxicated and belligerent, and of a misunderstanding over the Easter basket visit did not establish as a matter of law that the juvenile court's order was an abuse of discretion.
DISPOSITION
The order is affirmed.
RUBIN, P. J. WE CONCUR:
MOOR, J.
KIM, J.