California Court of Appeal Apr 17, 2014 No. D064709Unpublished
Filed 4/17/14 In re Madison T. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re MADISON T., a Person Coming Under the Juvenile Court Law. D064709 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. CJ001094) Plaintiff and Respondent,
v.
KELLY S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Ronald F.
Frazier, Judge. Affirmed.
Neil R. Trop, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent.
No appearance for Minor.
Kelly S. appeals an order denying her Welfare and Institutions Code1 section 388
petition for modification seeking placement of her daughter, Madison S., with nonrelative
extended family members. Kelly contends the court abused its discretion in finding that
she did not show it was in Madison's best interests to be placed with the nonrelative
In September 2012, Madison became a dependent of the juvenile court under
section 300, subdivision (b), and was removed from her parents' custody pursuant to
section 361, subdivision (c)(1).2 The court placed Madison in licensed foster care and
ordered reunification services for Kelly S. (mother).
From September 2012 to March 2013, Kelly participated in case plan services.
However, in March 2013, she was discharged from the residential substance abuse
treatment center for not complying with program rules. Kelly relapsed several weeks
later while awaiting acceptance into a new residential recovery program.
1 All statutory references are to the Welfare and Institutions Code.
2 Kelly suffered Chronic Paranoid Schizophrenia, was not under the care of a psychiatrist, had been noncompliant with her prescribed medication, and admitted smoking marijuana during her pregnancy. At birth, Madison tested presumptively positive for marijuana and Kelly admitted smoking marijuana during pregnancy. Nine days later, Madison stopped breathing and was admitted to the hospital for treatment. Kelly exposed Madison to domestic violence by her boyfriend in the hospital room when Madison was receiving treatment.
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In April 2013, the San Diego Health and Human Services Agency (Agency)
reported its intention to evaluate the Victorville home of Madison's paternal aunt,
Suzanne T., for placement. Suzanne was also caring for Madison's half sister, K. T.
Kelly stated she did not want Madison placed with Suzanne because Suzanne did not
have experience raising children and because Kelly worried she would be unable to visit
Madison if she was placed in Victorville.
In May 2013, Kelly was admitted into a new residential substance abuse treatment
center, but was discharged on the same day because she did not get along with the other
residents. Three days later, the Agency conducted a Team Decision Meeting to
determine Madison's placement. The Agency concluded that, in addition to Suzanne's
home, it would evaluate the home of nonrelative extended family members (NREFMs)
Stephano and Rosario B., where Madison's other half sibling, Kaylie, resided.
In June 2013, Kelly filed a section 388 petition to modify the court order placing
Madison in licensed foster care. The petition alleged, as changed circumstances, there
were concerns regarding Madison's care in the foster home, and the home of the
NREFMs had subsequently been approved for Madison's placement. In addition, the
petition alleged it would be in Madison's best interests to live with the NREFMs because
they were prepared to meet her developmental needs and she could reside with her half
sister, Kaylie.
The Agency cleared the homes of both the NREFMs and Suzanne for Madison's
placement, and both families stated they would like to adopt Madison if reunification
with Kelly was unsuccessful. With respect to Suzanne, the Agency was concerned about
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Kelly's objection to placement with Suzanne and possible visitation issues because of the
travel distance to Victorville. However, Suzanne stated she would provide weekly
supervised visitation for the parents and they could have additional visits if they traveled
to Victorville. Suzanne presented a safety plan for Madison and stated that if the parents
arrived at her home unannounced, she would ask them to leave and call the police if they
refused to comply.
With respect to the NREFMs, the social worker expressed concern they would not
be as protective as Suzanne, be unable to set clear boundaries with the parents regarding
visitation with Madison, and put Kelly's needs over Madison's. Stephano admitted he
would take Kaylie downtown with him to look for the parents. In addition, there had
been prior referrals between Kelly and Rosario for domestic violence and drug use, and
Kelly and Stephano had filed dual restraining orders against each other in the past. When
asked what he would do if Kelly arrived at the house or acted inappropriately, Stephano
stated he would try to calm Kelly down, ask her to leave, and get in his car and drive off
if she would not leave.
A Court Appointed Special Advocate (CASA) accompanied Madison on several
visits with each family. During Madison's visit with Kelly and the NREFMs, the CASA
reported the stroller and toys brought by the NREFMs were dirty and covered in grime.
She also noted Rosario did not hold or talk to Madison, but rather told other people what
to do with her. Further, Madison's half sister, Kaylie, was distant and not affectionate
with Madison. During the visit, Kelly took Madison away from the group and forcibly
picked at Madison's nose until she began crying. When Suzanne visited with Madison,
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the CASA reported Suzanne was very affectionate with her, brought clean toys and baby
equipment for her, and interacted with her throughout the entire visit. The father, Jason
T., made no effort to visit Madison.
During the reunification period, Kelly refused to enter residential treatment, did
not attend several scheduled visits, and arrived at one visit with visible marks on her body
that she alleged occurred when Jason's girlfriend beat her up. Kelly expressed to the
social worker that she did not want to reunify with Madison and wanted the NREFMs to
adopt her. The Agency recommended reunification services be terminated for both
parents and Madison be placed with Suzanne.
On July 30, 2013, the court held an evidentiary hearing on Kelly's section 388
petition. After considering the evidence and arguments of counsel, the court denied
Kelly's section 388 petition. The court found a change of circumstances existed, but
Kelly did not meet her burden of proof in showing placement with the NREFMs was in
Madison's best interests. The court ordered placement of Madison with Suzanne,
terminated reunification services for both parents, and scheduled a hearing under section
366.26 to select and implement a permanent plan for Madison.
DISCUSSION
A. Standard of Review
We review the grant or denial of a petition for modification under section 388 for
abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D.
(1999) 70 Cal.App.4th 38, 47.) To modify an existing court order, the petitioner must
show, by a preponderance of the evidence: (1) there is a change of circumstances or new
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evidence; and (2) the modification will promote the child's best interests. (§ 388; Cal.
Rules of Court, rule 5.570(e)(1); In re Justice P. (2004) 123 Cal.App.4th 181, 188-189;
In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) The primary goal in determining the
child's best interests is to assure stability and continuity for the child. (In re Stephanie M.
(1994) 7 Cal.4th 295, 317.) The denial of a section 388 motion rarely merits reversal as
an abuse of discretion. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
B. Analysis
Kelly contends the court abused its discretion by denying her section 388 petition
to modify the existing court order and place Madison in the home of the NREFMs. She
contends evidence showed the proposed modification was in Madison's best interests
because it would allow her to reside with her half sister Kaylie, stay connected with her
extended family, and maintain her family identity.
Kelly contends the social worker was unable to articulate any legitimate reason for
her concerns about placement with the NREFMs. This contention is unpersuasive. At
the hearing, the social worker specifically testified as to her concerns about placing
Madison with the NREFMs. She testified the NREFMs were not able to set clear
boundaries with Kelly and went out of their way to help the parents despite Kelly's
refusal to attend substance abuse treatment and her cancellation of visits. The social
worker expressed her concern the NREFMs would put the parents' needs before
Madison's, as evidenced by their poor judgment in taking Kaylie downtown to search for
Madison's homeless father after suspecting he had broken a window at their home. In
addition, the social worker testified she was concerned the NREFMs would take Madison
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downtown with them, allow Madison to have unsupervised contact with Kelly, and would
be unable to safely take Madison from her parents if they attempted to take her.
The social worker further testified Suzanne was the preferred placement for
Madison because she appeared more protective of Madison, was willing to draw strict
boundaries with the parents, and could remove Madison from dangerous situations. The
record also shows Suzanne presented a safety plan and visitation schedule for Madison
and her parents, evidenced her willingness to remove Madison from any situation if the
parents appeared intoxicated, and said she would immediately call the police if Madison's
parents showed up to her home unannounced. Moreover, in her report, the CASA
observed that, unlike the NREFMs, Suzanne brought clean baby equipment and toys for
Madison and interacted with her throughout the entire visit. Considering all observations
and factors presented, the social worker testified placement with Suzanne was in
Madison's best interests.
Kelly further contends the presence of Kaylie with the NREFMs is a pivotal factor
separating their home from Suzanne's home. Although placement with siblings in the
same home is one factor considered by the court, the court must consider all factors to
determine the best interests of the child. (§ 361.3, subd. (a).) As previously noted,
several factors led the social worker to determine it would be in Madison's best interests
to be placed with Suzanne. Although Kelly contends Madison and Kaylie have cultivated
a relationship through weekly visits during the course of the dependency, the CASA
reported Kaylie appeared unaffectionate and distant from Madison. In addition, Kelly
disregards the presence of Madison's other half sister, K., in Suzanne's home.
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The court is bound to consider all of the circumstances before it in rendering a
judgment or order. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) Based on
the evidence presented, the social worker's testimony, and counsel's arguments, we
conclude the court properly considered all of the relevant factors in determining it was in
Madison's best interests to be placed with Suzanne. We also conclude the court did not
abuse its discretion in finding Kelly did not meet her burden to prove placement with the
NREFMs, rather than Suzanne, was in Madison's best interests.
Kelly next contends the relative preference provisions of section 361.3 are not
applicable in this case. She argues relative placement is only mandated on the initial
removal from parental custody at the dispositional hearing or at a later stage of the
dependency action when a new placement must be made. (§ 361.3, subd. (d).) However,
the relative status of Suzanne under section 361.3 is not at issue in this case. Although
the court gives relatives preferential treatment in the placement of a dependent child, the
court must consider all factors enumerated in section 361.3, subdivision (a), to determine
the best interests of the child. As previously noted, the court considered all of the
evidence and testimony presented at the evidentiary hearing before deciding to place
Madison with Suzanne, a decision we conclude was a proper exercise of its discretion.
Finally, Kelly contends, and the Agency concedes, the statutory requirement that
review of an order made pursuant to section 366.26 is sought by petition for
extraordinary writ is not applicable in this case. The statute provides that if a party is
present when the order is made, the court shall orally advise the party of the requirement
to file a petition for extraordinary writ review within seven days. (§ 366.26, subd.
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(l)(3)(A); Cal. Rules of Court, rule 8.450 (e)(4)(C).) Here, the court did not advise Kelly
of the writ requirement if she wished to challenge any of the court's findings or orders.
Therefore, the Agency and Kelly agree Kelly has properly sought review in this case by
way of appeal.
DISPOSITION
The order is affirmed.
McDONALD, J. WE CONCUR:
McCONNELL, P. J.
McINTYRE, J.
9
AI Brief
AI-generated · verify before citing
Holding. The court did not abuse its discretion in denying a mother's section 388 petition for modification, as she failed to meet her burden of proving that placing the child with nonrelative extended family members was in the child's best interests.
Issues
Did the juvenile court abuse its discretion in denying the mother's section 388 petition for modification of placement?
Did the court properly consider the child's best interests in selecting a placement between nonrelative extended family members and a relative?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The court found a change of circumstances existed, but Kelly did not meet her burden of proof in showing placement with the NREFMs was in Madison's best interests.”
“The denial of a section 388 motion rarely merits reversal as an abuse of discretion.”
“The primary goal in determining the child's best interests is to assure stability and continuity for the child.”