Opinion
C084667 C085424
08-20-2018
In re B.P., a Person Coming Under the Juvenile Court Law. PLUMAS COUNTY DEPARTMENT OF SOCIAL SERVICES AND PUBLIC GUARDIAN, Plaintiff and Respondent, v. R.J., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JV16-00055)
R.J., mother of the minor B.P., appeals from the dispositional orders and the denial of her subsequent petition for modification. (Welf. & Inst. Code, §§ 358, 360, 395.) She contends the juvenile court erred in failing to evaluate the minor for placement with his grandmother and abused its discretion in denying mother's request to eliminate drug testing from her case plan. Finding no error, we affirm.
Undesignated statutory references are to the Welfare and Institutions Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
We dispense with a detailed recitation of the facts of the minor's case, as these details are not relevant to the issues raised on appeal. It suffices to say that the Plumas County Department of Social Services and Public Guardian (the Department) filed a section 300 petition on behalf of the minor in December 2016. The juvenile court detained him and placed him in the home of a non-related extended family member (NRFM). At the March 13, 2017 dispositional hearing, the court adjudged the minor a dependent, ordered him removed from both parents, and ordered reunification services for mother, including drug testing and substance abuse assessment and treatment.
On May 17, 2017, mother filed a lengthy section 388 petition for modification of the entire dispositional order, making numerous arguments and requests, including among many others the points that "jurisdiction should be terminated," "dependency should be terminated," drug and alcohol testing should cease, and the minor should be placed with his grandmother as a fallback option. The Department also filed a section 388 petition, seeking to require mother to drug test before visiting the minor. The juvenile court heard and denied both petitions in a lengthy hearing held on June 15, 2017, but did not expressly address all of mother's points. The court neither addressed nor was asked to address the minor's placement.
Mother filed timely notices of appeal from the March disposition and the June denial of her section 388 petition. As we explain post, her two challenges center on the section 388 hearing rather than the disposition. Additional facts are related in our discussion as relevant to mother's claims.
DISCUSSION
A parent petitioning the juvenile court under section 388 for a modification of a court order must allege facts showing the existence of new evidence or changed circumstances and that the proposed modification would be in the child's best interests. (In re Daijah T. (2000) 83 Cal.App.4th 666, 671-672.) The parent has the burden of proof by a preponderance of the evidence on both points. (Cal. Rules of Court, rule 5.570(h)(1).) We review a summary denial of a hearing on a section 388 petition for abuse of discretion. (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
I
Placement with Grandmother
Mother first broadly contends that the juvenile court erred in failing to consider the maternal grandparents for placement of the minor. (§ 361.3.) Mother's briefing admits that in this appeal she is "raising the issue of relative placement" (italics added) rather than challenging the court's ruling or order. This is because, as mother acknowledges, "during the dispositional hearing, nothing was mentioned about the relative placement issue." Likewise, mother agrees that the court "never addressed the relative placement issue" at the section 388 hearing. However, the issue was raised in the written motion to modify, as we discuss in more detail below.
At the time of detention, the Department had not yet identified any relatives to consider for placement, and the minor was placed with the NFRM. The minor's psychological evaluation included information relayed by the NRFM that grandmother had spoken privately to the minor during a visit and instructed him not to tell anybody what was going on. It was the evaluator's concern that this instruction may have contributed to the minor's reluctance to discuss his family situation during the evaluation.
Grandmother had not been present at the detention hearing. She was introduced at the February 16, 2017 jurisdictional hearing; however, the record reflects that no one asked to be heard regarding the minor's placement at that time. The disposition report indicated that grandmother had been given a placement packet to complete if seeking placement; the record does not show that the packet was ever completed. The report further indicated the Department was not recommending placement with grandmother due to her reported inappropriate instruction to the minor.
Grandmother was present at the disposition hearing. No one raised the issue of placement; all parties submitted in relevant part to the findings and orders, including the proposed finding (later adopted by the court) that the minor's current placement (with the NRFM) was necessary and appropriate. Mother did not voice any desire to change the minor's placement at the time of disposition.
When she filed her (pro per) petition to modify only two months later, mother submitted a declaration that asserted multiple relatives including grandmother had separately contacted the Department, requested placement of the minor at the time of his detention, and had been denied consideration for emergency placement. Mother also asserted the grandparents had requested placement "several times beginning December 28, 2016." She supplied a declaration by grandmother to the same effect. Grandmother also explained that her instruction to the minor not to speak freely was meant to apply to his classmates, not his evaluator.
Possible placement with the grandparents was not one of the requests specifically discussed at the section 388 hearing, although grandmother was present in court. At the hearing's conclusion, the juvenile court denied mother's petition for modification in its entirety because there was "no change of circumstances and there's not enough information to -- and also, you don't specify what you really want the Court to do, so it's nebulous." The court also commented several times that it could not find any of the many changes requested by mother to be in the minor's best interest without additional information.
On appeal and again represented by counsel, mother explains that "[s]he is asking this Court to reverse the lower court's orders with instructions . . . to conduct a new hearing after ordering [the Department] to fully evaluate the maternal grandparents or any other interested family members for placement as required by section 361.3." But we do not reverse orders in the absence of demonstrated error and resulting prejudice. This appeal was taken in part from the juvenile court's March 2017 dispositional order, where mother agreed the minor's current placement (with the NRFM) was appropriate and no attendee or document sought his placement with grandmother. This appeal was also taken from the court's June 2017 denial of mother's petition for modification, where no information that grandmother was eligible for placement was presented--and none is apparent from the record--and the court found no changed circumstances and insufficient information to find any of the many modifications to the dispositional order requested by mother were in the minor's best interest.
Mother has not established either of these orders was erroneous.
The only evidence before the juvenile court at disposition regarding potential placement with grandmother was that a packet had been provided for completion. There was (and still is) no evidence in the record showing grandmother completed the packet, the first step in showing desire for placement and suitability therefor. Although mother faults the court for not considering or exercising its discretion to place with grandmother, neither the issue nor any relevant facts were presented to the court for consideration. By the June 2017 section 388 hearing, mother had submitted evidence that the grandparents were interested in placement of the minor, and that interest was claimed to have been expressed to the Department as early as December 2016. But this evidence did not show changed circumstances or best interests.
Although mother argues that the Department's investigation was lacking, she does not tether the argument to a showing of error by the juvenile court. As far as the record reflects, the grandparents never completed the placement packet and, accordingly, the Department never completed the assessment or made a recommendation to the court. Both below in her petition to modify and now on appeal in her claim of error, mother requests additional process rather than change or an actual finding of error.
In the juvenile court, mother specifically requested the court to "direct the Department to evaluate the [maternal grandparents] for placement under the relevant standards [citation] and then exercise its independent judgment to consider if relative placement is appropriate. [Citation.]" As mother now emphasizes, the Department did not complete a placement assessment of the maternal grandparents and the juvenile court was not provided with the opportunity to exercise its discretion regarding the placement preference. Accordingly, the court had not yet made any findings or orders with respect to relative placement preference at that time. Thus, a petition for modification was not an appropriate vehicle by which to raise this matter, as there was no relative placement request order to change.
To the extent mother's argument can be interpreted to claim that because the Department has a duty to investigate relatives for placement, and the juvenile court is required at disposition to find the Department's investigation was reasonable (§ 358, subd. (b)), mother was seeking a change in the court's disposition order finding the investigation was reasonable, this argument is similarly flawed. First, the court was not required to and did not explicitly make a reasonableness finding in that regard at disposition. It did find the Department's actions reasonable in eliminating the need for removal and providing the minor with a safe home. Further, even if we infer an implied finding of reasonableness of relative placement investigation at disposition, the Department's provision of the placement packet to grandmother was sufficient at the time of disposition to show reasonableness. Mother presented no evidence at the hearing on the petition to modify that showed any subsequent efforts by the Department were lacking, nor did she present any evidence that grandmother provided any additional information to the Department regarding her suitability (rather than merely her desire) for placement. Thus, the court's finding of no changed circumstances remains appropriate when challenged by that avenue as well.
II
Eliminating Drug Testing
Mother also contends the juvenile court abused its discretion by denying her request to eliminate the drug testing requirement from her case plan. Mother does not contend substance abuse services, including drug testing, were improperly included in the reunification case plan, as she did not object to their inclusion when they were imposed. She argues only that the court erred in denying her request to eliminate them. We find no abuse of discretion.
Although the primary condition that led to the minor's dependency in this case involved domestic violence and mother's failure to address the minor's behavior and mental health needs, a predisposition psychological evaluation of mother, administered by Dr. April Bay, found, inter alia, that "[d]rug and alcohol test results were mixed, reflecting the possibility [mother] may suffer an undetected problem with alcohol or drug abuse. [Mother] denied use of drugs and reported consumption of no more than one cocktail once per week. [Mother] has no DUI or substance abuse related legal problems. No collateral sources, as known to social services, knew or reported a problem with substances. This issue cannot be confirmed nor disconfirmed." Accordingly, the juvenile court ordered, and mother's case plan included the requirement that, mother undergo random drug testing with the results made available to the Department, and to complete a Department-approved substance abuse assessment and recommended treatment program.
Mother did not drug test or complete an approved substance abuse assessment. Instead, she filed her section 388 petition seeking to eliminate drug testing from her case plan, arguing it was inappropriately included because she did not have a substance abuse problem. In support of her petition, mother attached a psychosocial/substance abuse assessment performed by a counselor of her choosing (who was unfamiliar to the Department and juvenile court) concluding that mother had a low probability of a substance dependence disorder and did not require counseling.
Mother now argues the assessment established that substance abuse services should not be part of her case plan. She thereby concludes the juvenile court abused its discretion in denying her request to eliminate these services therefrom.
In the two months between the disposition hearing at which the disputed order was issued and the filing of mother's petition for modification, the only new evidence or change of circumstances with respect to the court-ordered substance abuse services was mother's unapproved assessment. At the time of the hearing on her petition, mother had yet to submit any tests. Nevertheless, given the conflicting expert reports, the court did substantially reduce the frequency and duration of testing and agreed to revisit the issue in one month. Declining to do away with the testing requirement altogether where mother had steadfastly refused to test despite the court order to do so was not an abuse of the court's discretion.
DISPOSITION
The orders of the juvenile court are affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Mauro, J.