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In re A.Y.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Jan 17, 2012
A132308 (Cal. Ct. App. Jan. 17, 2012)

Opinion

A132308 A132441

01-17-2012

In re A.Y., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.M., et al., Defendants; A.Y., Real Party in Interest and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Francisco City & County Super. Ct. No. JD11-3011)

Abandoned by her biological and adoptive parents, A.Y. (A.Y. or appellant) was left in the care of her paternal grandmother, Elizabeth P. (grandmother). About a year and a half later, A.Y. was removed from grandmother's care after grandmother threatened suicide and underwent an evaluation pursuant to Welfare and Institutions Code section 5150. A.Y.'s mental health is fragile and complex, and she is receiving comprehensive mental health treatment.

All statutory references are to the Welfare and Institutions Code unless otherwise specified.

During the dependency proceedings initiated following the section 5150 assessment, the juvenile court denied grandmother de facto parent status, denied her request for relative placement, and vacated its prior order for a bonding study. Appellant challenges each order. We find no error and affirm.

I. FACTUAL BACKGROUND

A. Early Years

A.Y., now eight years old, was born drug exposed in May 2003. Her biological parents, L.M. and Mark Y., were drug users and found it difficult to care for the newborn. The mother abandoned the baby shortly after her birth. The father and baby moved in with his sister M.M. and her husband Jonathan. Mark and his daughter remained there until A.Y. was one year old, at which time he moved to Los Angeles, leaving her behind. M.M. and Jonathan adopted A.Y. in March 2006. M.M. has three biological children: Ashley Y., Alyssa F. and Nathan K.

In January 2009 M.M. and Jonathan separated. M.M. took A.Y. and her sisters to Japan in July of that year and tried, without success, to obtain visas for them. The children returned to the United States the next month; A.Y. and Ashley went to live with Jonathan. M.M. remarried, remained in Japan, and showed no interest in unifying with A.Y. When Jonathan became unemployed, he could no longer support the three children in his care. In November 2009 he signed a notarized letter giving permission for A.Y. to live with grandmother in San Jose.

Grandmother is the mother of Mark Y., A.Y.'s biological father, and M.M., her adoptive mother.

Grandmother arranged special education for A.Y. in San Jose. At school A.Y. kicked a first-grader in his private parts and pushed a girl to the ground. As a result of these incidents, school officials requested that grandmother take A.Y. to the Asian American Institute (AAI) for services. AAI contacted E.M.Q. Families First Agency, which provided A.Y. with in-home therapy four days a week.

In September 2010, a referral was made to the Santa Clara County Child Protective Services Agency (CPS). Grandmother had reported feeling overwhelmed and depressed. She was taking medication for depression and had a prescription for sleeping pills. One week prior to the referral, grandmother reported she had attempted suicide by overdosing, but stopped when she thought about who would take care of A.Y. She was overwhelmed by the child's acting out and "behavior issues."

CPS received another referral in December 2010, with further reports that grandmother was depressed and overwhelmed, with a history of suicide threats. Grandmother said A.Y. was disrespectful and laughed at her, reporting that she did not "want to go on anymore" and was "sick and tired and done with taking care of the child."

On January 12, 2011, grandmother again threatened suicide, and was "assessed for [section] 5150 status" but did not qualify. At that time she informed a child welfare worker that she could no longer care for A.Y. because the girl was out of control, and hit her. A.Y.'s behavior drove her to thoughts of suicide.

Ralph M., grandmother's fiancé, did not want to take care of A.Y. while grandmother was being evaluated. Therefore A.Y. was taken to the county shelter and then transferred to San Francisco because her father resided there and still maintained parental rights. B. Section 300 Petition

Respondent San Francisco Human Services Agency (Agency) filed a section 300 petition on January 14, 2011, alleging, among other points, that A.Y.'s parents abandoned her and had not maintained contact for approximately three years. The petition further alleged that A.Y. was left with grandmother, who threatened suicide and was no longer willing or able to care for her.

Protective Services Worker (PSW) Maryalice Means stated in the detention report that grandmother told a social worker "that she had thought about overdosing on sleeping pills," also indicating that A.Y.'s behavior drove her to such thoughts and she did not "want to deal with" the child anymore. A.Y. said she did not want to live with Ralph because he was mean and yelled at her, nor did she want to live with her father. Grandmother told A.Y. that her father got angry and threw a laundry basket at her sister. A.Y. also said grandmother hit her.

An addendum report noted that the adoptive mother did not want to reunify with A.Y. and would relinquish her parental rights. The adoptive father was similarly willing to relinquish his parental rights. He requested an open adoption so he and A.Y.'s siblings could visit. PSW Means reported that grandmother would not allow the father and siblings to visit A.Y. while in her care, and claimed A.Y.'s therapist recommended severing ties with all of them. She also stated that grandmother displayed mental health symptoms "that are believed to either be responsible for, or be a major contributing factor for the behaviors [A.Y.] has displayed while in her care." A.Y.'s counselor informed PSW Means that grandmother's behavior caused the psychologist to advise that she receive therapy and a psychological assessment. Grandmother became angry and abruptly ended the appointment.

The therapist denied telling grandmother that A.Y. should not visit with her siblings and father, but indicated she may have said she would not recommend leaving A.Y. at her father's home for visits.

At the detention hearing, both parents denied the allegations but submitted to the detention. The court ordered A.Y. detained and approved placement in emergency foster care. At the end of the hearing counsel for the minor briefly touched on whether counsel should be appointed for grandmother as a de facto parent, but the court declined to do so at that time.

PSW Melissa Rosenberg submitted a jurisdiction/disposition report, reiterating that the adoptive parents were not interested in reunifying with A.Y.; both expressed major concern about grandmother's mental health and believed she was not capable of adequately parenting A.Y. Grandmother and Ralph visited A.Y. every week. The Department was in consultation with A.Y.'s therapist to determine if the visits should take place less frequently, because it was not recommending that A.Y. return to grandmother's care. Grandmother reported that she was under the care of a therapist and was working on stabilizing her mental health.

According to school service providers, therapists, and an assessment, A.Y. exhibited symptoms of reactive attachment disorder, depression, oppositional behaviors and anxiety. Also, although she has never made an attempt, she also had a history of suicidal ideation with a plan. Apparently A.Y. was adjusting well in her current foster placement, getting along with the foster parent and the other child in the home. Neither the foster parent nor her teachers noted any major behavioral or emotional issues with her. PSW Rosenberg recommended recruiting an adoptive home for A.Y. and that the court set a section 366.26 hearing. She indicated the Agency was not pursuing placement with grandmother for three reasons: (1) grandmother's serious mental health issues which affected A.Y. negatively; (2) A.Y.'s adoptive parents did not sanction such a placement; and (3) grandmother had no legal right to reunification.

A settlement conference took place in March 2011. The minor's attorney indicated that grandmother requested placement, and asked that the court grant her de facto parent status. The court refused to appoint counsel for grandmother.

In further proceedings, father submitted to amended allegations and waived reunification, as did mother. C. Contested Disposition/Placement Hearing

The court conducted a contested disposition/placement hearing to address A.Y.'s placement with her grandmother. PSW Rosenberg testified that she had considered grandmother as a possible placement but concluded that disposition would not be appropriate. She conducted a background check of grandmother and Ralph against the child abuse index; although no matches were found, the prior Santa Clara County CPS referrals were revealed. The referrals were investigated and closed as unfounded, but issues were identified that needed to be addressed and the county sought to link grandmother and A.Y. to therapeutic services to resolve those issues. Additionally, there were no criminal record matches for grandmother. However, there were two for Ralph: a "DUI" misdemeanor for which he received three years' probation, and a misdemeanor conviction of inflicting corporal injury on a spouse or cohabitant in 1991.

At the time of the hearing Ralph was still on probation.

As well, PSW Rosenberg considered A.Y.'s serious mental health issues, including depression, posttraumatic stress disorder, psychotic features and amnestic episodes, issues which her therapists believed were made worse, if not caused by, living with grandmother. According to Rosenberg, A.Y. "has a lot of fear in regards to her grandmother that, according to her therapists, are impeding her getting better."

Rosenberg also had concerns about placement with grandmother, noting her history of suicidal ideation and depression which she expressed were worsened by caring for A.Y. Further, grandmother stated she has a heart condition and suffered six heart attacks that year, at least two of which she felt were brought on by A.Y. Rosenberg also explained that A.Y. was referred to CPS because of the "5150" evaluation of grandmother requested by the police, and the fact that when she was transported to the hospital, there was no caretaker remaining in the home.

Grandmother, in fact, was not hospitalized and no "5150" hold was issued. She confirmed she was never placed in a hospital after being evaluated by hospital staff, physicians or the police.

Rosenberg also acknowledged that A.Y. was very excited and pleased to have the supervised visits with grandmother and Ralph. However, there were reports from visitation staff as well as the foster parents indicating concern about A.Y.'s behavior after the visits.

Grandmother testified about the therapeutic services A.Y. received and explained that she herself was "supposed" to receive therapy through AAI, but her therapist was not available. Instead, grandmother arranged for individual therapy through Valley Mental Health and found it very helpful. As well, someone from E.M.Q. came to her home and gave her "some hints on how to deal with [A.Y.]."

Grandmother stated she did not have a history of mental health services, and was not under the care of a psychiatrist in 2009 and 2010. She was taking medication for fibromyalgia and rheumatoid arthritis; used nitroglycerin for chest pains (she did not receive a confirmed diagnosis that the chest pains were heart attacks); and took Doxepin and Valium for insomnia.

Further, grandmother said she would never consider suicide. Faced with frustration dealing with A.Y., she would say, "I just can't take it anymore," or "I just wished I would disappear." A.Y. would leave notes saying, "I hate you. I hope you die." Grandmother would say, "You really want Nana to die?" Incidents of A.Y.'s uncontrollable behavior included kicking and throwing things at grandmother, one time fracturing her fingers. A.Y. would also scream, kick and bang the walls. AAI never discussed the possibility of medication for A.Y., but medication was discussed when A.Y. was detained. Additionally, grandmother was told A.Y. would just be detained only for a week "to get her evaluated" so she "agreed to let her go."

Ralph M. testified that he met with a social worker from San Francisco, but did not meet with the Santa Clara County worker. He did not think grandmother ever seriously threatened suicide, and did not believe her heart condition would impede her ability to care for A.Y. He denied engaging in criminal behavior that resulted in his two misdemeanors. He did not have any problems controlling A.Y.'s behavior; they got along "famously."

The juvenile court continued A.Y. in foster care, denied grandmother's request for placement, and ordered a bonding study to assess the relationship between grandmother and A.Y. Further, it ordered that A.Y.'s relationship with grandmother and Ralph M. be maintained, pending further evaluation. D. Bonding Study Vacated

Five days after the above hearing, a social worker applied to the court to administer psychotropic medication to A.Y. A month earlier, she took a knife intending to kill herself, but actually did no harm. Dr. Bonnie Taylor, the prescribing physician, stated: "[A.Y.] meets criteria for Post Traumatic Stress Disorder with extreme symptoms of dissociation with identity shifts, reenactment of trauma, conscious and unconscious imitation of her very agitated, anxious, suicidal and depressed grandmother, avoidance of stimuli reminding her of her trauma, hyperarousal with insomnia, nightmares, panic attacks, anxiety, and high levels of distractibility. She hears her grandfather's voice as well as unknown voices telling her to harm herself. She is frequently emotionally dysregulated [sic] with episodes of sobbing at home and at school." The doctor recommended individual therapy, group therapy and psychotherapy twice a week. The court granted the application as requested.

In May 2011, the Agency filed a section 388 petition requesting that the court set aside the bonding study because A.Y.'s treating psychologist, therapist and psychiatrist believed that A.Y.'s participation in the study would disturb her mental health treatment. Dr. Taylor submitted a letter supporting the petition. In the letter Dr. Taylor outlined A.Y.'s "complex developmental trauma," as well as the diagnosis of posttraumatic stress syndrome and depression and the various impairments she demonstrated, including impairment in attachment, cognitive functioning and self-concept. She wrote: "[A.Y.] has identity shifts and she has been observed by this psychiatrist to both consciously and unconsciously imitate her grandmother in a pathological way. . . . The imitation of her grandmother appears to be a reenactment of the psychological trauma she experienced while living with her grandmother. For example, A.Y. reported [that] she told her grandmother she was suicidal while she lived with her grandmother. When she told her grandmother she had gone into the kitchen to get a knife to kill herself, A.Y. reported her grandmother's response was to ask her, 'Do you want me to take all my pills?' When A.Y. repeated her grandmother's response to her, her voice and demeanor of an old, bitter and angry woman was complete and striking." And further: "[A.Y.]'s individual identity has been overwhelmed by her grandmother's personality and needs. . . . [A.Y.]'s identity is fragile and underdeveloped . . . . Her mental health treatment could actually be disturbed by an unnecessary bonding study."

At the contested section 388 hearing, counsel for A.Y. argued that the bonding study was not duplicative and indeed was necessary on the issue of A.Y.'s placement and adoption. PSW Rosenberg stated that the clinicians were considering involving grandmother in the therapy process for A.Y. in the future, but presently did not recommend incorporating grandmother into the therapy based on their concern that A.Y. suffers an associative identity disorder. The court granted the Agency's petition, noting that it assumed that at some point grandmother would be involved and evaluated as a relative willing to take placement. If that did not occur, the court indicated it would address the issue "at some point." The court was concerned that the child's mental health was fragile and did not "want to disturb her at this point." The court did not make any finding as to grandmother's fault for A.Y.'s mental state.

Counsel for A.Y. noticed an appeal from the disposition order placing A.Y. in foster care rather than relative placement, as well as the order denying grandmother's request for de facto parent status. She further noticed an appeal from the order granting the Agency's section 388 petition. This court consolidated the two appeals.

II. DISCUSSION

A. Appellant has no Standing to Challenge Denial of the Request for De Facto Parent Status

Appellant minor challenges the order denying grandmother's request for de facto parent status. However, she lacks standing to prosecute the challenge.

In re Crystal J. (2001) 92 Cal.App.4th 186 (Crystal J.) is on point and convincingly explains why standing is absent in this case. There, Crystal's father placed his daughter with her aunt and uncle after Crystal's mother died; she lived with them for seven years. Upon her removal from their home due to unsanitary conditions, she sought, without success, to have her aunt and uncle declared her de facto parents. The reviewing court held that while the individual seeking de facto parent status has standing to appeal the denial of his or her own motion, the minor herself was not aggrieved by the denial because her own rights were not affected. De facto parent status only affords the de facto parent the right to be present, to be represented, and to present evidence. The minor, a party to the dependency proceeding, was already afforded those rights. That her relatives were denied de facto parent status did not preclude the minor from presenting evidence about her relationship with them, or arguing that she should be placed with them. (Id. at pp. 189-192.)

Appellant urges that Crystal J. is wrongly decided, reasoning that the court failed to recognize that where the interests of two parties coalesce, either has standing to litigate issues that impact the related interests. She cites In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1193 in support of this proposition, but that case does not address denial of de facto parent status or a minor's standing to challenge an order denying such status. Similarly, the father in In re K.C. (2011) 52 Cal.4th 231, also cited by appellant, lacked standing to challenge the order denying the paternal grandparents' request for relative placement of the minor with them. The father did not attack the order terminating his own parental rights, and thus by acquiescing in that ruling, he relinquished the only interest in the minor that could render him aggrieved by the order. (Id. at pp. 236-239.)

The mother in that case challenged the order terminating her parental rights in part because the alleged father of one of her children did not receive proper notice and was not present. She had no standing to assert the statutory rights of the alleged father because her interest was limited to continuation or termination of her own parental rights and did not interweave with those of the alleged father. (In re Caitlin B., supra, 78 Cal.App.4th at pp. 1193-1194.)

Appellant also calls our attention to In re Bryan D. (2011) 199 Cal.App.4th 127, 138, footnote 2, urging that we follow that court in its decision that the minor had standing to contest the denial of presumed mother or de facto parent status for his grandmother. This is not the whole story. The court's cursory statement that Bryan had standing to raise these issues cites as authority In re Karen C. (2002) 101 Cal.App.4th 932, 935-936, which held simply that the minor had standing to bring an action to determine the existence of a mother-child relationship between her and the woman she lived with since birth, because the governing statute allows any " 'interested person' " to bring such an action. Karen C. says nothing about standing to challenge denial of de facto parent status.

Like Crystal J., appellant was afforded the right to be present, represented and to bring forth evidence. Appellant states that because grandmother was not represented in the proceedings, the record contains no information about the history of A.Y. while in grandmother's care. However, the juvenile court did not preclude appellant from offering evidence of this history at the jurisdictional and disposition settlement conference. Further, grandmother had standing to appeal the denial of her own motion to attain de facto parent status, but did not pursue an appeal. (Crystal J., supra, 92 Cal.App.4th at p. 190.) Appellant has not persuaded us to depart from the logic and holding of Crystal J. B. The Juvenile Court Did Not Err in Denying Relative Placement with Grandmother 1. The Agency's Evaluation Was Adequate

Appellant is adamant that the court erred in denying her placement with grandmother, arguing first that the Agency's investigation into the suitability of placement with grandmother was insufficient, and thus the court erred in denying grandmother's request for placement. Not so.

a. Statutory Background

When a minor is removed from parental custody, preferential consideration must be given to a suitable relative who requests placement. (§ 361.3, subd. (a); In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1055.) " 'Preferential consideration' " means that the relative pursuing placement "shall be the first placement to be considered and investigated" under the statutory factors. (§ 361.3, subd. (c)(1).) However, preferential consideration does not create an evidentiary presumption favoring the requesting relative; rather, it merely moves the relative to the head of the line when the court determines which placement is in the minor's best interests. (In re Antonio G. (2007) 159 Cal.App.4th 369, 376.)

In deciding the propriety of a relative placement, the Agency and court must consider the factors enumerated in section 361.3, subdivision (a). The linchpin of any section 361.3 analysis is whether relative placement is in the best interests of the minor. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 862-863.) Our Legislature has determined that all the statutory factors are important in deciding whether placement with a relative is, or is not, appropriate. (§ 361.3, subd. (a); In re H.G. (2006) 146 Cal.App.4th 1, 16-17: juvenile court erred in removing minor from home of paternal grandparents without considering all the section 361.3 criteria, in light of the success of minor's placement with them prior to the events at hand and other traumatic family circumstances that served as the basis for removal.)

These are: "(1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement [strong legislative preference for relative placement and prohibition against discrimination in that process]. [¶] (4) Placement of siblings and half siblings in the same home . . . . [¶] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [¶] (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child . . . . [¶] (7) The ability of the relative to do the following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶] (B) Exercise proper and effective care and control of the child. [¶] (C) Provide a home and the necessities of life for the child. [¶] (D) Protect the child from his or her parents. [¶] (E) Facilitate court-ordered reunification efforts with the parents. [¶] (F) Facilitate visitation with the child's other relatives. [¶] (G) Facilitate implementation of all elements of the case plan. [¶] (H) Provide legal permanence for the child if reunification fails. [¶] . . . [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8) The safety of the relative's home. For a relative to be considered appropriate to receive placement of a child under this section, the relative's home shall first be approved pursuant to the process and standards described in subdivision (d) of Section 309." (§ 361.3, subd. (a)(1)-(7)(A)-(I), (8).)
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Pursuant to section 361.4, prior to placing a minor with a relative, the relative, and any adult in the relative's home, must undergo a "state-level criminal records check." (Id., subd. (b).) If the criminal records check reveals that the person has been convicted of a crime, the minor may not be placed in the home unless the offense is exemptible and the applicable county agency with authority to grant an exemption has so acted. (Id., subd. (d)(2), (3); see Health & Saf. Code, § 1522, subd. (g)(1); In re Esperanza C., supra, 165 Cal.App.4th at p. 1056.) The statute does not mandate that the relevant agency seek an exemption.

b. Analysis

The Agency conducted a sufficient investigation. Several of the section 361.3 factors were irrelevant, namely, those pertaining to placement of siblings (id., subd. (a)(4)) and facilitation of reunification and implementation of case plan (id., subd. (a)(7)(E), (G)). As to the relevant factors, the documentary evidence and testimony reveal that the Agency evaluated the history of A.Y.'s detention, the impact of grandmother's mental illness on A.Y., and her own ongoing mental and physical health issues, consistent with section 361.3, subdivision (a)(1) (best interest of child); (a)(5) (moral character); (a)(6) (nature of relationship between child and relative); and (a)(7) (ability to provide safe and stable environment). The Agency also conducted the required criminal background check on Ralph M., as called for under sections 361.3, subdivision (a)(5) and 361.4. He had been convicted in 1991 of inflicting corporal injury on a spouse/cohabitant, and much more recently of driving under the influence, for which he was on probation at the time. The Agency does not place children in the homes of persons on probation, and no exemption was sought.

The Agency also considered the wishes of A.Y.'s adoptive parents, as called for in section 361.3, subdivision (a)(2). Neither wanted A.Y. placed with grandmother, because they had concerns about her mental health and parenting abilities. Appellant speculates that in enacting this provision, the Legislature "was doubtless presupposing a parent who was somewhat involved in the child's life" and argues that in the current circumstances, the parents' wishes were entitled to little, if any, deference, citing In re K.C., supra, 52 Cal.4th 231, 236-237. She offers nothing to support the speculation, and the cite to In re K.C. is entirely misplaced because that case involved the sole issue of whether a parent whose parental rights had been terminated and who did not challenge that decision had standing to appeal an order denying relative placement. (Id. at p. 234.)

The Agency also paid attention to the sentiment of the mental health professionals working with A.Y. that her condition was aggravated by grandmother's behavior.

All these factors taken together amply supported the Agency's decision that placement with grandmother was not appropriate or in A.Y.'s best interest. Nonetheless, appellant argues that the assessment was flawed because the Agency did not conduct an in-home inspection. However, we reiterate that section 361.3 does not guarantee placement with an identified relative, and indeed regardless of the statutory preference, the juvenile court's fundamental duty is to assure a placement consistent with the child's best interests. (In re Lauren R. (2007) 148 Cal.App.4th 841, 855.) Here, the determination that placement with grandmother was not in A.Y.'s best interest obviated the need to conduct a home study. The Agency considered and investigated grandmother's request under the relevant factors, and found that placement unsuitable. The futile act of conducting a home study was not warranted. The law does not require idle acts. (Civ. Code, § 3532.) Nothing more was required.

In re H.G., supra, 146 Cal.App.4th 1, upon which appellant relies, is of no assistance. There, the county agency placed the minor with her paternal grandparents but then pursued a section 387 petition contending the placement was no longer appropriate because the grandparents allowed the minor's father to have unauthorized contact with her on more than one occasion. The juvenile court removed the minor from the grandparents' care and terminated the parental rights of her parents. It found the unauthorized contact allegations true and in violation of court orders. The reviewing court held that the lower court erred in sustaining the supplemental petition without considering whether the minor's placement was no longer appropriate in light of all the section 361.3 criteria, not just whether the grandmother exercised proper and effective care and control of the minor. There was no indication that the agency or the juvenile court considered the child's exceptional needs, her placement wishes and those of her parents and relatives, the stability of the placement or quality of day-to-day care and education. (Id. at pp. 15-17.)

Here, in contrast and as explained above, the agency evaluated a number of factors before concluding that placement with grandmother was inappropriate. As important, the Agency never made a prior determination, as was the case in In re H.G., supra, 146 Cal.App.4th 1, that grandmother was an appropriate placement. Moreover, unlike the situation in In re H.G., here there was evidence that A.Y.'s mental health issues may have been aggravated by grandmother's behavior and condition, a factor strongly militating against permanent placement with her.

2. The Juvenile Court Properly Exercised Discretion to Deny Placement with Grandmother

Appellant also faults the juvenile court for not exercising independent judgment in deciding whether placement in grandmother's care was suitable. Without question, the juvenile court must exercise its independent discretion when assessing the statutory criteria to determine whether a relative placement is appropriate. (In re H.G., supra, 146 Cal.App.4th at p. 15.) In other words, the lower court does not merely review an agency's placement decision for an abuse of discretion. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033.)

It bears pointing out that the reviewing courts in the above cases either found the agency's section 361.3 evaluation insufficient (Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1033), or criticized the operative report for failing to take into account relevant criteria (In re H.G., supra, 146 Cal.App.4th at pp. 15-16). On the other hand, we have concluded that the Agency's investigation was adequate.

At the April 2011 hearing it was apparent that the parties were somewhat confused because of the posture of the case. Legally, A.Y. was removed from her parents' care and reunification services were being terminated, although she was also removed from grandmother with whom the adoptive parents had chosen to place her. It is also true that minor's counsel and the court talked about the Agency's investigation in terms of "abuse of discretion." Nevertheless, the record demonstrates that the court exercised independent discretion.

First, the court allowed an extensive evidentiary hearing "to flesh out the assessment." It heard testimony from the social worker, grandmother and Ralph M. The court asked grandmother questions about her prescriptions, and if she had ever been placed in a hospital following hospital staff or police evaluation. Additionally, the court received and reviewed the jurisdiction/disposition report and reports detailing visits between A.Y. and grandmother and the January 2011 emergency response referral. Further, it heard cogent argument on the matter of the appropriateness of placement with grandmother. Having considered the testimony and documentary evidence, the court ordered A.Y. to remain in foster care and that the relationship with grandmother be maintained, but denied placement with her. We cannot say that the court merely rubber-stamped the Agency's recommendation and failed to exercise its independent discretion in so ruling. C. The Juvenile Court Properly Exercised its Discretion in Granting the Section 388 Petition to Vacate the Bonding Study Order

Finally, appellant attacks the juvenile court's vacation of its order for a bonding study evaluating her relationship with grandmother. She argues that the record lacks substantial evidence that the study was no longer necessary, or that vacating it was in her best interest.

1. Factual Background

In support of the Agency's section 388 petition seeking to vacate the order for a bonding study, PSW Rosenberg declared that A.Y.'s treating psychologist, therapist and psychiatrist attested that the girl's participation in the bonding study would disturb her mental health treatment. A detailed letter from Dr. Taylor, who conducted the psychiatric evaluation of A.Y., accompanied the petition. The letter outlined A.Y.'s mental health issues and expressed concern about undertaking the bonding study. Dr. Taylor concluded that A.Y.'s identity had been overwhelmed by grandmother's needs and personality. The girl's identity was fragile and underdeveloped. A.Y. was engaged in long-term psychological treatment to help her develop a stronger individual identity and sense of self. In Dr. Taylor's opinion, "[h]er mental health treatment could actually be disturbed by an unnecessary bonding study."

At the section 388 hearing, relying largely on Dr. Taylor's letter, the Agency argued that the clinicians believed the study was unnecessary and was "actually putting the child potentially through more hurdles and hoops which could potentially be harmful to her." PSW Rosenberg testified that A.Y.'s therapists believed that the minor may be suffering from an associative identity disorder, and characterized her identity as being "really meshed in with the grandmother's identity." Therefore, the therapists recommended against incorporating grandmother into ongoing therapy at that time, but would consider involving grandmother in the therapy process in the future. Counsel for A.Y. argued that the study would not be duplicative. Dr. Taylor had never met grandmother and proper attention had not been given to grandmother and her relationship with A.Y.

2. Legal Framework and Analysis

Section 388 allows any person having an interest in a dependent child to petition the juvenile court to change, modify or set aside a previous order, based on changed circumstances or new evidence. (§ 388, subd. (a).) The moving party has the burden of establishing by a preponderance of the evidence that changed circumstances existed and the proposed change was in the best interests of the child. (In re M.V. (2006) 146 Cal.App.4th 1048, 1057, 1059.) If it appears that the child's best interest may be promoted by the proposed change, the court shall order a hearing. (§ 388, subd. (d).) The change in circumstance must be of such significant nature that it requires setting aside or modifying the challenged order. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) It must relate to the purpose of the order, "and be such that the modification of the prior order is appropriate." (In re S.R. (2009) 173 Cal.App.4th 864, 870.)

We review a section 388 ruling for abuse of discretion. (In re M.V., supra, 146 Cal.App.4th at p. 1059.) The test for abuse of discretion is whether the juvenile court exceeded the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) We accept the lower court's factual findings and the reasonable inferences that support them. (In re M.V., supra, 146 Cal.App.4th at p. 1059.) However, the findings must be adequate to permit meaningful appellate review. (Id. at p. 1062.)

While the juvenile court is not obliged to order a bonding study in a dependency proceeding, once ordered, the court necessarily has found it is required by the court or a party. When this occurs, the court lacks discretion to vacate the order absent substantial evidence on the record that the study is no longer necessary or appropriate for valid reasons. (In re S.R., supra, 173 Cal.App.4th at p. 871.)

The Agency met its section 388 burden of demonstrating, by a preponderance of the evidence, that circumstances had changed such that a bonding study was no longer in A.Y.'s best interest. It submitted substantial information about A.Y.'s mental health and treatment, information that was not known or available when the court ordered the bonding study. That submission included the conclusion of A.Y.'s treatment team that pursuit of the bonding study would be detrimental to A.Y.'s treatment, as well as Dr. Taylor's letter summarized above and PSW Rosenberg's testimony concerning why the therapists were reluctant to involve grandmother in ongoing therapy at that time. Appellant did not challenge or rebut Dr. Taylor's assessment of A.Y.'s mental health or the conclusion that the bonding study could have a detrimental effect on her.

Granting the section 388 petition, and without assigning blame to grandmother, the juvenile court underscored the fragility of A.Y.'s mental health and its unwillingness "to disturb her at this point." The professional opinions and assessments regarding A.Y.'s mental health constituted substantial evidence that the bonding study was no longer appropriate for legitimate reasons, and thus warranted vacation of the prior order.

III. DISPOSITION

The juvenile court orders are affirmed.

________________

Reardon, J.
We concur: ________________
Ruvolo, P.J.
________________
Rivera, J.


Summaries of

In re A.Y.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Jan 17, 2012
A132308 (Cal. Ct. App. Jan. 17, 2012)
Case details for

In re A.Y.

Case Details

Full title:In re A.Y., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

Date published: Jan 17, 2012

Citations

A132308 (Cal. Ct. App. Jan. 17, 2012)

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