California Court of Appeal Feb 17, 2015 No. D066300Unpublished
Filed 2/17/15 In re G.D. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 G.D. et al., Persons Coming Under the Juvenile Court Law. D066300 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. CJ1150A-C) Plaintiff and Respondent,
v.
A.D.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Laura J.
Birkmeyer, Judge. Affirmed.
Merrill L. Toole, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Jennifer M. Stone, Deputy County Counsel, for Plaintiff and Respondent.
A.D., Sr., (A.D.) appeals following the termination of his parental rights to his
daughter G.D. and his twin sons A.D., Jr., and R.D. (together, the children). A.D.
contends the juvenile court abused its discretion by summarily denying his modification
petitions (Welf. & Inst. Code, § 388).1 The modification petitions cited the relative
placement preference (§ 361.3) and sought the children's removal from the home of
nonrelative extended family members (NREFM's) in San Diego and placement with a
In October 2013, the San Diego County Health and Human Services Agency (the
Agency) filed dependency petitions for eight-year-old G.D. and seven-year-old twins
A.D., Jr., and R.D. The petitions alleged that A.D. asked the children if he should talk to
their mother, M.D. The children said yes. A.D. replied that he would have to kill M.D.
and solicited the children's involvement in his plan to kill her. A.D. then killed M.D.
The petitions also alleged that A.D. was incarcerated and unwilling or unable to arrange
appropriate and adequate care for the children.
A.D. was jailed and charged with murder. The children were detained in San
Diego with the NREFM's who had been caring for them since September 2013.2 At the
1 Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
2 On October 28, 2013, two days before the Agency filed the dependency petitions, A.D. told the social worker he wanted the paternal aunt to care for the children. A.D. refused to provide the paternal aunt's contact information. On October 28, the social worker obtained the telephone number from the NREFM's and called the paternal aunt. 2
of the paternal aunt and uncle in Texas and asked "for an [ICPC]." (The Interstate
Compact on Placement of Children (ICPC); Fam. Code, § 7900 et seq.) Counsel
acknowledged "that jurisdiction needs to be taken before an [ICPC] can be
authorized . . . ." The children's counsel asked that the children remain detained with the
NREFM's. The court stated the matter "needs to come back to the court before the
children are detained in Texas" and would require the "concurrence of [the children]'s
counsel."
The paternal aunt and uncle attended the next hearing in November 2013. A.D.'s
counsel said he had "expressed to the Agency as well as [the NREFM's] that [the paternal
aunt and uncle] are seeking an [ICPC]." Counsel noted that "[a]lthough[] an [ICPC] will
not happen until the court takes jurisdiction, it is likely that the jurisdiction portion of this
case may proceed at the settlement conference . . . ." The court authorized supervised
visitation for the paternal aunt and uncle and scheduled a settlement conference for
December 19 and a contested jurisdictional and dispositional hearing for January 17,
2014.
On December 19, 2013, the court made true findings on the petitions. A.D.'s
counsel asked "since the Court has taken jurisdiction today, that an ICPC be ordered" and
the children be placed with the paternal aunt and uncle once their home was approved.
The court ordered that the "ICPC process to begin." A.D.'s counsel requested a new date
The paternal aunt expressed an interest in caring for the children but did not have a relationship with them. 3
of February 4, 2014, for the dispositional hearing, citing A.D.'s January 17 hearing in
another case and "the fact that the ICPC may take some time . . . ." The court found that
ICPC proceedings did not constitute good cause for a continuance, but granted the
request in light of the conflicting hearing date.
Meanwhile, the children showed signs of trauma. They appeared angry and did
not follow instructions. During a forensic interview, R.D. did not acknowledge the
interviewer's presence and did not answer any questions. During his forensic interview,
A.D., Jr., occasionally smiled and nodded, but did not speak. During her forensic
interview, G.D. spoke of A.D.'s murder of M.D. and disclosed that both A.D. and M.D.
had hit her. The caregivers reported that A.D., Jr., and R.D. reenacted A.D.'s killing of
their mother and behaved aggressively. A.D., Jr., and R.D. refused to speak at school and
did not interact with children other than G.D. G.D. had crying episodes.
On February 4, 2014, A.D.'s counsel requested a continuance of the dispositional
hearing pending completion of the ICPC process, acknowledging there was "no case law
that supports [the] request . . . ." The children's counsel and the Agency's counsel
objected. The Agency's counsel stated the Agency had begun the ICPC process and had
assessed the paternal aunt. As explained more fully below, the social worker stated that
on January 22, the Agency had submitted a request to the Social Security Administration
for the children's Social Security cards, and had been told it would take three or four
weeks to receive the cards, which were due to arrive "any day." The court denied the
continuance request as not in the children's best interests, citing the six-month deadline
4
for making dispositional orders3 and noting its "experience with Texas [that] the [ICPC]
process can sometimes take many, many months." The court proceeded with the
dispositional hearing.
The social worker testified that when she was compiling the documentation
required for the ICPC process, the Agency's Social Security clerk informed her that the
children's Social Security cards had to be reordered because the mother's surname on the
cards did not match her surname on the children's birth certificates. The social worker
submitted the request for new Social Security cards on December 19, 2013, and the
Social Security clerk forwarded the request to the Social Security Administration on
January 22, 2014.
The social worker testified the children were in therapy. The children spoke to
their caregivers but did not talk to strangers. The children did not speak to the social
worker, but had recently made eye contact with her and, for the first time, smiled and
laughed in her presence. G.D. felt responsible for her mother's death and was "beginning
to process it." G.D. was adjusting to her placement; the adjustment was eased because
she was with her siblings.
Following this testimony, A.D.'s counsel renewed the continuance request. The
children's counsel and the Agency's counsel again stated their opposition. The court
denied the renewed request, noting "[i]t's completely speculative as to how soon any
information would be received." The court stated: "It's the court's experience that it
3 The deadline for completing the dispositional hearing was May 1, 2014, six months after the detention hearing. (§ 352, subd. (b).) 5
takes multiple months, usually sometimes longer, particularly with the [S]tate of Texas."
The court cited the fact that the children had been "horribly traumatized" and needed an
expeditious decision regarding placement. The court concluded there was not good cause
for a continuance and a continuance was not in the children's best interests.
After cross-examining the social worker, A.D.'s counsel again asked for a
continuance. The court denied the request, ordered the children removed from A.D.'s
custody and placed with the NREFM's, denied reunification services and set a section
366.26 hearing. The court directed the Agency, upon receipt of the children's Social
Security information, to forward ICPC information to Texas for evaluation of the paternal
aunt and uncle.
On March 27, 2014, the Texas Department of Family and Protective Services
approved the home of the paternal aunt and uncle for the children's placement. In June,
A.D. filed his section 388 petitions. The court summarily denied the section 388
petitions. In July, the court terminated parental rights.
DISCUSSION
I
Applicable Law
To obtain a hearing on a section 388 petition, the proponent must make a prima
facie showing that circumstances have changed and the proposed modification would be
in the children's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806; In re
Justice P. (2004) 123 Cal.App.4th 181, 188.) "It is not enough for a parent to show just a
genuine change of circumstances under the statute. The parent must show that the
6
undoing of the prior order would be in the best interests of the child." (In re Kimberly F.
(1997) 56 Cal.App.4th 519, 529.) The petition should be liberally construed in favor of
granting a hearing, but "[t]he prima facie requirement is not met unless the facts alleged,
if supported by evidence given credit at the hearing, would sustain a favorable decision
on the petition." (In re Zachary G., at p. 806.) "In determining whether the petition
makes the necessary showing, the court may consider the entire factual and procedural
history of the case." (In re Justice P., at p. 189.) When reunification services have been
denied, the focus is on the children's need for permanency and stability. (See In re
Stephanie M. (1994) 7 Cal.4th 295, 317.) We review the summary denial of a section
388 petition for abuse of discretion. (In re Zachary G., at p. 808; In re Jeremy W. (1992)
3 Cal.App.4th 1407, 1413; In re Aljamie D. (2000) 84 Cal.App.4th 424, 433.)
The relative placement preference, cited in A.D.'s modification petitions, gives
"preferential consideration" to placement requests by certain relatives upon the child's
removal from the parent's physical custody at the dispositional hearing. (§ 361.3, subds.
(a), (c); In re Lauren R. (2007) 148 Cal.App.4th 841, 854.) " 'Preferential consideration'
means that the relative seeking placement shall be the first placement to be considered
and investigated." (§ 361.3, subd. (c)(1).) "Preferential consideration 'does not create an
evidentiary presumption in favor of a relative, but merely places the relative at the head
of the line when the court is determining which placement is in the child's best
interests.' " (In re Antonio G. (2007) 159 Cal.App.4th 369, 376.) After the dispositional
hearing, the relative placement preference does not arise again until "a new placement of
the child must be made." (§ 361.3, subd. (d), quoted in In re Lauren R., at p. 854.)
7
As discussed below, A.D.'s arguments also involve the ICPC. "Both California
and Texas have signed the ICPC and enacted statutes codifying its provisions.
[Citations.] The purpose of the ICPC is to facilitate cooperation between participating
states in the placement and monitoring of dependent children. [Citation.] Article 2
defines 'Placement' as 'the arrangement for the care of a child in a family free or boarding
home or in a child-caring agency or institution . . . .' (Fam. Code, § 7901, art. 2, subd.
(d).) [¶] Article 3 . . . mandates that the child shall not be sent into the receiving state
'until the appropriate public authorities in the receiving state shall notify the sending
agency, in writing, to the effect that the proposed placement does not appear to be
contrary to the interests of the child.' (Fam. Code, § 7901, art. 3, subd. (d).) [¶] Article 5
of the ICPC requires the sending agency to retain jurisdiction over the child 'until the
child is adopted, reaches majority, becomes self-supporting, or is discharged with the
concurrence of the appropriate authority in the receiving state.' " (In re Johnny S. (1995)
40 Cal.App.4th 969, 974-975, fn. omitted.) Expedited ICPC proceedings are not
available for children older than four years. (Cal. Rules of Court, rule 5.616(h)(2)(B).)
II
Analysis
A.D.'s modification petitions sought the children's removal from the home of
NREFM's in San Diego and placement with the paternal aunt and uncle in Texas. As
changed circumstances, the petitions alleged that in March 2014, the paternal aunt and
uncle "took active steps to begin the ICPC process;" that month, Texas approved their
home for the children's placement; in June, the paternal aunt and uncle submitted to a
8
background check including fingerprinting; the paternal aunt and uncle and their family
had visited the children; and the paternal aunt had called to check on the children's well-
being. The court found that A.D. had made a prima facie showing of changed
circumstances,4 but had not made a prima facie showing the proposed modification was
in the children's best interests.
Because the court found that A.D. had made a prima facie showing of changed
circumstances, we need only discuss whether the court abused its discretion by finding he
had not made a prima facie showing that granting the petitions would be in the children's
best interests. In this regard, the petitions cited the relative placement preference and
alleged the paternal aunt and uncle could meet the children's needs and "provide a long-
term home" and "a sense of family." In finding that A.D. had not made a prima facie
showing regarding the children's best interests, the court stated the following: On the eve
of the section 366.26 hearing, the focus was on the children's need for permanency and
stability. The children had "been hugely traumatized." The paternal aunt and uncle had
first seen the children at their mother's funeral, had never lived with them and did not
have a full understanding of their day-to-day needs. The children were secure in the
home of the NREFM's, who had met their needs during "the first stage of a very rough
time" and were committed to the children long term.
4 Specifically, the court found "the paternal relatives have very willingly engaged in the [ICPC] process," their home had been approved and was a "high caliber home" and the paternal relatives were "very aware that there would be a[n] adjustment period" and were "very willing to . . . avail themselves of services and do what it is that they need to do for the children." 9
A.D. contends that until the December 19, 2013, jurisdictional hearing, the
Agency and the court ignored his requests for an evaluation of the paternal aunt and
uncle's home and the children's placement in that home. A.D. argues that as a result, the
home had not been evaluated at the time of the February 2014 dispositional hearing, and
this caused the paternal aunt and uncle to fall "from being first in line for placement"
under the relative placement preference, "without any input from the juvenile court."
A.D. acknowledged in the juvenile court, as he acknowledges on appeal, that the
court cannot order the institution of ICPC proceedings before it has taken jurisdiction.
Here, the court ordered ICPC proceedings at its earliest opportunity, immediately after it
made jurisdictional findings. The court also granted A.D.'s initial request to continue the
dispositional hearing. The court denied his subsequent continuance requests, citing the
"multiple months" required for the ICPC process, the children's fragile emotional
condition and their need for stability and permanency, and A.D. did not obtain review of
those denials.
The children had endured the trauma of losing their mother at A.D.'s hands. At the
time the court summarily denied the section 388 petitions, the children had been living
with the NREFM's for nine months. The NREFM's had provided the children with love,
security and stability and the children had slowly made progress in recovering from the
trauma. They were bonded with the NREFM's, who wished to adopt them. As
reunification services had been denied, the focus was on the children's need for
permanency and stability. The attainment of that goal had already been delayed when the
court granted A.D.'s request to continue the dispositional hearing even further beyond the
10
60-day period following the detention hearing, a situation requiring a finding of
"exceptional circumstances." (§ 352, subd. (b).) Any change in placement—no matter
how suitable the new placement—would not further the need of these fragile children for
stability. The court did not abuse its discretion by summarily denying the section 388
petitions.
In any case, any error in summarily denying the modification petitions would be
harmless. A prima facie showing of best interests requires something beyond the bare
statement the proposed modification would be in the children's best interests. Here, there
is nothing more than a bare statement. No information cited in the petitions or appearing
anywhere in the record provides the slightest suggestion that the proposed modification
would have been in the best interests of these traumatized and fragile children. Even if
the relative preference applied, it would not take precedence over the children's best
interests, the overriding concern here. (Samantha T. v. Superior Court (2011) 197
Cal.App.4th 94, 113.)
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR:
BENKE, Acting P. J.
MCINTYRE, J.
11
AI Brief
AI-generated · verify before citing
Holding. The court did not abuse its discretion by summarily denying the father's section 388 modification petitions because he failed to make a prima facie showing that changing the children's placement would be in their best interests.
Issues
Did the juvenile court abuse its discretion by summarily denying the father's section 388 petitions for modification of placement?
Did the father make a prima facie showing that a change in placement was in the children's best interests?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The court did not abuse its discretion by summarily denying the section 388 petitions.”
“Even if the relative preference applied, it would not take precedence over the children's best interests, the overriding concern here.”