California Court of Appeal Dec 11, 2014 No. E060836Unpublished
Filed 12/11/14 In re K.D. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re K.D., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E060836
Plaintiff and Respondent, (Super.Ct.No. RIJ1200630)
v. OPINION
R.D., et al,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,
Judge. Affirmed.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and
Appellant R.D. (father).
Liana Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant D.V. (grandmother).
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Gregory P. Priamos, County Counsel, and Julie Koons Jarvi, Deputy County
Counsel, for Plaintiff and Respondent.
Appellant R.D. (father) is the father of K.D. (child), who was nearly two months
old when the initial juvenile dependency petition was filed under Welfare and Institutions
Code section 300.1 Father appeals from the juvenile court’s orders of March 21, 2014,
first denying the maternal grandmother’s petition for modification under section 388, and
then terminating father’s parental rights to the child. Appellant D.V. is the child’s
maternal grandmother (grandmother). Grandmother also appeals from the order denying
her section 388 petition and joins in father’s opening brief. As discussed below, we
affirm the court’s orders.
FACTS AND PROCEDURE
Detention
In early June of 2012, father beat up the child’s mother (mother) in the child’s
presence and while the child’s eight-year-old half brother2 was in the house.3 When
1 All section references are to the Welfare and Institutions Code unless otherwise indicated.
2 The child’s half brother is not a subject of this appeal. He was placed with his paternal grandparents.
3 The exact chain of events in June 2012 is not perfectly clear from the detention report dated June 22, 2012. The parents apparently argued on a regular basis in the presence of the child and his brother, and this often turned violent. Mother and the child changed residences on at least two occasions in May and June, including once to a domestic violence shelter that she left without notice. Mother at one point allowed father to move back in with her and the child.
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Father repeated this action the following day, mother asked the brother to call police.
This took place during a fight between the parents that included them arguing over the
child and exchanging him back and forth between them. Police arrested father for
domestic violence and found him to be under the influence of methamphetamine. Father
was sentenced to summary probation and a restraining order was issued. On June 13,
2012, mother left a voicemail for the social worker about the incident, stating she could
not protect the child from father when he is released from jail and that the social worker
should “come and get” the child.
Father and mother had a child welfare history together, recently generating
referrals in January, March, and April (twice) of 2012 for domestic violence while
mother was pregnant with the child and in the presence of the brother.
On June 19, 2012, the parents’ social worker from the previous referrals
interviewed mother at the CPS office. Mother stated she did not think she could protect
the child from father, and gave conflicting statements about whether she wanted to keep
the child or voluntarily relinquish him for adoption. Both children were placed into
protective custody.
On June 21, 2012, the Department of Public Social Services (DPSS) filed a section
300 petition, alleging as to the child and his brother that the parents had failed to protect
them as defined in section 300, subdivision (b). Specifically, the petition alleged: the
parents engage in domestic violence in front of the children and failed to participate in
pre-placement services; father has an extensive history of abusing methamphetamine; and
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mother allows father to provide care for the children while under the influence of
methamphetamine.
At the detention hearing held on June 22, 2012, the court found a prima facie case
for detaining the children.
An amended petition was filed on July 20, 2012, to delete allegations regarding
the father of the child’s brother.
Jurisdiction and Disposition
At the jurisdiction hearing held on August 27, 2012, the court found the
allegations to be true and declared the child and his brother to be dependent children.
The court removed the child from father’s care and ordered DPSS to provide father with
reunification services and monitored visits.
Section 387 Supplemental Petition, Detention and Jurisdiction
On November 16, 2012, DPSS placed the child and his brother with mother after
successful overnight and weekend visits and a Team Decision Meeting. On November
19, 2012, during the social worker’s home visit, mother said she did not feel bonded to
the child and did not think she could care for him. Mother stated she had the child only
because father wanted a child, and that father had primarily cared for the child before the
detention in June. Mother asked that the child be placed with the previous foster parents.
Mother asked to keep the child’s brother because she was attached to him. The child was
removed from mother and placed with the previous foster parents that same day. The
foster parents were glad to have the child and expressed interest in adopting him. The
social worker informed them that relatives would need to be considered first for adoption
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Also on November 19, 2012, the social worker asked mother about relatives to consider
for placement and mother suggested her mother, grandmother, who lives in Missouri.
On November 21, 2012, DPSS filed a supplemental juvenile dependency petition
under section 387 indicating the previous disposition had not been effective because
mother had asked that the child be removed from her care. In the detention report filed
with the petition, DPSS asked the juvenile court to order an Interstate Compact on the
Placement of Children (ICPC) agreement for grandmother, and on November 26, at the
detention hearing, the court did so.
At that time father was in a one-year residential drug program and was to have a
supervised visit with the child once each week. Father was referred to the program by the
probation department after he served his jail time for the June domestic violence incident.
Father stated that he was interested in reunifying with the child and declined to
participate in adoption planning.
In December of 2012, mother told the social worker that she was happy the child
was with the foster parents and noted that the child was “really attached” to them. Mom
was unsure if she wanted the child returned to her care, and wanted the child placed with
father or with family in Missouri. Mother at that time refused to visit with the child.
On January 2, 2013, the juvenile court again took jurisdiction over the children
and ordered reunification services for mother.
Six-Month Status Review
On January 28, 2013, the social worker made a referral to the ICPC unit to
investigate grandmother for placement. Mother expressed misgivings about placing the
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child out of state, but agreed that the ICPC should proceed. On February 20, 2013,
during a discussion about possible adoption, mother told the social worker that she
wanted the child placed with grandmother in Missouri.
On January 11, 2013, father was terminated from the substance abuse program
when he returned late from juvenile court. Also in January, father had a warrant out for
his arrest for a carjacking in which mother was the victim. As of February 2013, father
had not participated at all in his case plan and had not contacted the social worker after
leaving the substance abuse program. When the child’s brother was removed from
mother for the final time in March 2013, he told the social worker that he was “terrified”
of father. Father had been spending time at mother’s residence, despite the existence of
the restraining order.
On March 4, 2013, father was arrested and held for burglary. Father would remain
in custody for the rest of these proceedings.
At the six-month status review hearing held on May 2, 2013, the court terminated
father’s reunification services because he did not participate regularly or make
substantive progress in the reunification plan.
Twelve-Month Status Review
On May 28, 2013, the social worker made an updated referral to the ICPC unit
regarding grandmother in Missouri. At about that time mother expressed misgivings
about placing the child out of state and said she did not want him placed with
grandmother. The social worker expressed concern about placing the child out of state
because he was visiting weekly with his brother, the two had bonded, and the brother
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made clear that he did not want to move to Missouri. On June 7, 2013, mother stated she
still had mixed feelings about reunifying with the child, and visited him only every four
to six weeks instead of the weekly visits that she was allowed. However, on July 16,
2013, mother declined to participate in adoption planning, stating “I don’t want to.”
Father also declined to participate in adoption planning, stating that he wanted to get his
son back, but if not he would like the child to be placed with mother’s family.
On July 31, 2013, the juvenile court terminated mother’s reunification services
and set a section 366.26 selection and implementation hearing for December 5, 2013.
Section 366.26 Hearing and Grandmother’s Section 388 Petition
In the report prepared for the section 366.26 hearing, the social worker reported
that on August 26, 2013, DPSS sent “an outgoing [ICPC] packet” to Missouri regarding
grandmother, which Missouri accepted on September 23, 2013. The home study was to
be completed by November 27, 2013. DPSS recommended the child be adopted by his
foster parents and that the hearing be postponed for 90 days to allow for an adoption
assessment. The social worker reported that the child and his brother saw each other
once or twice each week, at the child’s foster home, at church, and at the park, and were
quite bonded to each other. The brother became very upset when mother told him the
child might move to Missouri.
The section 366.26 hearing set for December 5, 2013, was continued to March 5,
2014.
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The ICPC with grandmother was approved on December 9, 2013. However,
DPSS recommended the child be adopted by the foster parents, citing his close
attachment to the foster parents and his continuing bond with his brother.
On December 25, 2013, mother died suddenly of an unspecified illness.
On March 10, 2014, grandmother filed a petition under section 388 to modify the
juvenile court’s order, asking that the child be placed with her and her husband because
they had been approved for placement through the ICPC.
On March 21, 2014, the juvenile court held a hearing on the section 388 petition,
with grandmother present by telephone, and the contested section 366.26 hearing, with
father present in custody. The court concluded that, although circumstances had
changed, in that grandmother had been approved for placement through the ICPC, it
would not be in the child’s best interest to take him from his caregivers of nearly two
years, and from the more-than-weekly contact with his brother, and place him with the
grandmother whom he had only met twice. The court then held the section 366.26
hearing. After hearing argument from both sides, the court found that none of the
exceptions to the preference for adoption existed, and so terminated father’s parental
rights and set adoption by the foster parents as the child’s permanent plan.
This appeal followed.
DISCUSSION
1. Grandmother’s Section 388 Petition
Both grandmother and father challenge the juvenile court’s order denying
grandmother’s section 388 petition for modification to allow the child to be placed with
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her in Missouri. DPSS argues father has no standing to appeal this order. Because we
ultimately decide the court properly denied grandmother’s petition, we decline to address
the standing issue.
“Section 388 allows a person having an interest in a dependent child of the court
to petition the court for a hearing to change, modify, or set aside any previous order on
the grounds of change of circumstance or new evidence.” (In re Anthony W. (2001) 87
Cal.App.4th 246, 250.) “‘[S]pecific allegations describing the evidence constituting the
proffered changed circumstances or new evidence’ is required. [Citation.]” (Ibid.)
“[T]he change of circumstances or new evidence must be of such significant nature that it
requires a setting aside or modification of the challenged prior order.” (Ansley v.
Superior Court (1986) 185 Cal.App.3d 477, 485.)
“In any case in which a child is removed from the physical custody of his or her
parents . . . preferential consideration shall be given to a request by a relative of the child
for placement of the child with the relative . . . .” (§ 361.3, subd. (a).) “‘Preferential
consideration’ means that the relative seeking placement shall be the first placement to be
considered and investigated.” (§ 361.3, subd. (c)(1).) The relatives entitled to
preferential consideration for placement include an adult who is a grandparent or aunt.
(§ 361.3, subd. (c)(2).) The preferential consideration continues at least throughout the
reunification period. (In re Joseph T. (2008) 163 Cal.App.4th 787, 795.)
The relative preference for placement is again at issue when a new placement is
necessary. Section 361.3, subdivision (d), provides, in relevant part: “Subsequent to the
hearing conducted pursuant to Section 358 [the dispositional hearing], whenever a new
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placement of the child must be made, consideration for placement shall again be given as
described in this section to relatives who have not been found to be unsuitable and who
will fulfill the child’s reunification or permanent plan requirements.”
In determining whether relative placement is appropriate, the juvenile court and
the Department are to consider, among other factors, as follows: “(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. [¶] . . .
[¶] (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 if
reunification is unsuccessful. [¶] (7) The ability of the relative to do the following:
[¶] . . . [¶] (E) Facilitate court-ordered reunification efforts with the parents.” (§ 361.3,
subd. (a).)
However, “[a]fter the termination of reunification services, the parents’ interest in
the care, custody and companionship of the child are no longer paramount. Rather, at this
point ‘the focus shifts to the needs of the child for permanency and stability’ [citation],
and in fact, there is a rebuttable presumption that continued foster care is in the best
interest of the child. [Citation.] A court hearing a motion for change of placement at this
stage of the proceedings must recognize this shift of focus in determining the ultimate
question before it, that is, the best interest of the child.” (In re Stephanie M. (1994) 7
Cal.4th 295, 317.)
“The relative placement preference . . . is not a relative placement guarantee . . . .”
(In re Joseph T., supra, 163 Cal.App.4th at p. 798.)
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We review the juvenile court’s denial of a section 388 petition for abuse of
discretion. (In re Anthony W., supra, 87 Cal.App.4th at p. 250; see also In re Marcos G.
(2010) 182 Cal.App.4th 369, 382.)
Here, grandmother argues the juvenile court abused its discretion when it denied
the petition because it failed to apply the relative placement preference and DPSS’s delay
in processing the ICPC prejudiced her request for placement of the child. In her petition,
grandmother cited the approval of the ICPC as the changed circumstances, asked the
court to place the child with her in Missouri, and explained that the change would be in
the child’s best interest because grandmother was his blood relative, his mother had died
unexpectedly, and there were many family members in Missouri, including a half brother
and half sister, that he should have a chance to be with.
We cannot say that the juvenile court abused its discretion. Despite the change in
circumstances as described in grandmother’s petition, placing the child with the
grandmother in Missouri would not be in the child’s best interest. First, the child had
been with the foster family since he was eight weeks old, and at the time of the hearing
he was nearly two years old. The foster family was the only family the child knew, and
the record shows he was bonded to the foster parents. Second, the record shows the child
had visited with grandmother only twice—once when he was 10 weeks old and again
when grandmother visited for mother’s memorial service. Regarding the half siblings
mentioned in grandmother’s petition, neither the child, nor even grandmother, had ever
met them. Third, moving the child to Missouri would interfere with the close bond he
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shared with his older half brother, which was established and maintained by visits taking
place once or twice weekly.
Regarding grandmother’s specific arguments on appeal, the juvenile court did not
err by not applying the relative placement preference, because this preference does not
exist after reunification efforts have failed. (In re Stephanie M., supra, 7 Cal.4th at p.
317.) Mother’s reunification services were terminated at the 12-month review hearing on
July 31, 2013, a full seven months prior to grandmother’s petition, and father’s services
were terminated even earlier, at the six-month hearing on May 2, 2013. Grandmother
also argues the delay in completing the ICPC prejudiced her in seeking placement of the
child because it allowed the child to become bonded with the foster parents. However,
grandmother fails to recognize that placing the child with her in Missouri would have
interfered with mother’s own efforts to reunify with the child. Further, mother often
changed her mind about whether she wanted the child placed with grandmother or to stay
in local placement with the foster family. As stated above, the wishes of the parents and
the relative’s ability to facilitate reunification efforts with the parents are relevant in
determining whether placement with a relative is in the child’s best interest. (§ 361.3,
subd. (a)). In addition, DPSS initially requested an ICPC for grandmother in November
2012, right after the child was re-detained at mother’s request. DPSS referred the case to
the ICPC unit on January 28, 2013 and made an updated referral on May 28, 2013, after
which mother again changed her mind and stated she did not want the child placed with
grandmother. On August 26, 2013, within weeks after the end of the reunification period,
DPSS sent an outgoing ICPC packet to Missouri to have grandmother assessed for
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placement. However, by that time, DPSS noted, the child had become bonded with both
the foster parents and his older half brother.
We sympathize with grandmother that placement of the child with her in Missouri
took a back seat to mother’s ultimately unsuccessful efforts to reunify with the child. We
also realize that this delay resulted in the child having time to become bonded with both
the foster parents and his older half brother. However, we emphasize that the paramount
consideration at the time of the challenged decision was the best interest of the child, and
we cannot say that the juvenile court abused its discretion when it determined that
removing the child from the only family he knew to place him with the grandmother he
had met only twice was not in the child’s best interest. For this reason we affirm the
order denying grandmother’s section 388 petition.
2. Termination of Father’s Parental Rights
Father briefly asserts the juvenile court erred when it terminated father’s parental
rights at the section 366.26 hearing.
“Adoption is the Legislature’s preferred permanent plan.” (In re D.M. (2012) 205
Cal.App.4th 283, 290.) Thus, as a general rule, at a section 366.26 hearing, if the
juvenile court finds that the child is adoptable, it must terminate parental rights.
(§ 366.26, subds. (b)(1) & (c)(1).) There is an exception to this rule, however, if “[t]he
court finds a compelling reason for determining that termination would be detrimental to
the child” (§ 366.26, subd. (c)(1)(B)) for one of six specified statutory reasons. (Id.,
subd. (c)(1)(B)(i)-(vi).)
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Father does not argue the child is not adoptable. Neither does he specifically
argue that one of the specified exceptions to the preference for adoption applies. He
merely asserts the court should have chosen adoption as the permanent plan because he
had a bond with the child and his lack of visits with the child was caused by “external
obstacles.” Father has not carried his burden as appellant to establish error by the
juvenile court. “The juvenile court’s judgment is presumed to be correct, and it is
appellant’s burden to affirmatively show error.” (In re S.C. (2006) 138 Cal.App.4th 396,
408.) Father has not done so. For this reason we affirm the court’s order terminating his
parental rights.
DISPOSITION
The juvenile court’s orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
HOLLENHORST J.
KING J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court did not abuse its discretion in denying a grandmother's section 388 petition for placement or in terminating the father's parental rights, as the child's best interest favored stability with his foster family over a move to an out-of-state relative.
Issues
Did the juvenile court abuse its discretion by denying the grandmother's section 388 petition for modification of placement?
Did the juvenile court err in terminating the father's parental rights at the section 366.26 hearing?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The relative placement preference . . . is not a relative placement guarantee . . . .”
“The juvenile court did not err by not applying the relative placement preference, because this preference does not exist after reunification efforts have failed.”
“we cannot say that the juvenile court abused its discretion when it determined that removing the child from the only family he knew to place him with the grandmother he had met only twice was not in the child’s best interest.”