California Court of Appeal Aug 17, 2015 No. E061916Unpublished
Filed 8/17/15 In re C.K. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 C.K. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E061916
Plaintiff and Respondent, (Super.Ct.Nos. J252208 & J252209 & J252210) v. OPINION R.S. et al.,
Defendants and Respondents;
E.T. et al.,
Appellants.
APPEAL from the Superior Court of San Bernardino County. Christopher B.
Marshall, Judge. Affirmed.
Hassan Gorguinpour, under appointment by the Court of Appeal, for Appellants.
Jean-Rene Basle, County Counsel, Kristina M. Robb, Deputy County Counsel
for Plaintiff and Respondent.
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No appearance for Defendants and Respondents.
The juvenile court terminated the parental rights of defendants and respondents
R.S. (Mother) and R.K. (Father) to their three children, C.K., P.K., and Z.K.
(collectively “the children”). (Welf. & Inst. Code, § 366.26.)1 Prior to termination
E.T., the children’s paternal grandmother (Grandmother), and R.T., the children’s
paternal step-grandfather (Grandfather), petitioned the juvenile court for the children to
be placed in Grandmother and Grandfather’s (collectively “Grandparents”) custody. (§
388.) The juvenile court denied Grandparents’ petition. Grandparents contend the
juvenile court erred by (1) summarily denying their petition; and (2) denying their
request for a continuance. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Z.K. is a female, born in 2010. P.K. is a female, born in 2011. Z.K. and P.K.
have been diagnosed with seizure disorder, autism, visual impairment, speech delays,
speech impairment, and developmental delays. Z.K. also suffers cardiac murmurs. P.K.
is non-ambulatory; she crawls, but does not walk. C.K. is a male, born in 2013. C.K.
suffers from a respiratory distress syndrome. Father is developmentally delayed.
Mother suffers from mental health issues.
The children were removed from Mother’s and Father’s care in November 2013
when Mother and Father were arrested for the offense of willful harm or injury to a
child under circumstances or conditions likely to cause great bodily harm or death (Pen.
1All subsequent statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
2
Code, § 273a, subd. (a)). The three children were initially placed in three separate
foster homes. However, in April 2014, Z.K. moved in with the foster family that was
already caring for P.K., so the two girls were in the same foster home. C.K. remained at
a different foster family’s home. Grandparents had monthly visits with the children
while the children were in foster care.
In May 2014, Grandparents filed a request to change a court order. In a joint
declaration attached to the request, Grandparents explained that the Department
incorrectly concluded Grandparents were too elderly to care for the three children.
Grandmother was 69 years old, had been diagnosed with cancer in 2010, but was in
remission. Grandmother hikes and speed walks. Grandfather had recently reroofed his
home, installed venting in the crawlspace underneath the home, and rebuilt the air
conditioning unit. Grandparents declared they understood the children had special
needs, but that Grandparents were capable of providing for those needs. Grandparents
explained they had both previously cared for special needs children, and had helped to
care for Z.K. and P.K. Grandparents declared they would protect the children from
Mother and Father.
Grandparents requested the juvenile court order the children placed into
Grandparents’ custody (§ 388). Grandparents asserted the change would be better for
the children because (1) the three children could live together at Grandparents’ home,
and (2) it was possible that, due to the children’s special needs, no one will want to
adopt them. The juvenile court ordered a hearing to take place on May 29, 2014
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regarding Grandparents’ request, and ordered the Department to respond prior to the
hearing.
In the Department’s May 22, 2014, report concerning termination of parental
rights, the Department explained that all three children were adoptable, in that their
respective foster parents were interested in adopting them. The report reflects the
Department “ruled out” Grandparents’ home as a placement option for the children “due
to the special needs of the children and the extensive care they would require . . . .” The
Department expressed concern about Grandmother’s ability to care for the children’s
special needs while also attending to her own medical issues, such as her cancer that
was in remission. The Department concluded the children’s best interests would be
served by being adopted by their respective foster parents. The Department noted the
foster parents were committed to maintaining the children’s contact with Grandparents.
On May 29, 2014, the Department filed a separate response to the Section 388
Petition. The response reflected that, in November 2013, Grandmother disclosed to the
Department that Father’s two older children were taken from Grandmother’s custody, in
the State of Tennessee, due to Father reporting abuse. The Department reported
Grandfather was “shaky” when he picked up C.K. Grandmother was reportedly
sweating and suffering loss of breath while trying to take care of all three children
during a visit.
The Department explained that Grandparents might be able to care for the
children at the present time, but the children had long term special needs, and
Grandparents were unlikely to be able to care for the children long term, due to
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Grandparents’ ages and health issues. The Department also expressed concern that
Grandparents minimized Father’s abusive behavior, blaming only Mother for
perpetrating the abuse.
At the hearing on May 29, the court said it found Grandparents presented a prima
facie case for their request to change a court order (§ 388). The Court scheduled the
matter for a hearing on July 28, so that Mother could be given proper notice. On July
28, the matter was continued again to September 5. On September 5, it was continued
to September 17, in order for the Relative Assessment Unit to reassess or reauthorize
Grandparents, given the information regarding possible abuse in Tennessee.
On September 17, the Department filed additional information with the juvenile
court. A letter from the State of Tennessee Department of Children’s Services (the
Tennessee letter) was included with the information. The letter reflected a Tennessee
CPS History Search Specialist searched the Tennessee CPS database and found: (1) a
substantiated allegation of Grandparents sexually abusing two children in April 2003;
(2) a substantiated allegation of Grandmother posing a substantial risk of physical injury
to one child in February 2003; (3) a substantiated allegation of the Grandparents
physically abusing one child in September 2002; (4) a substantiated allegation of
Grandparents physically abusing two children in 2001; and (5) a substantiated allegation
of Grandmother physically abusing one child in 1998.
At the hearing on September 17, Grandparents requested a continuance.
Grandparents’ attorney (Vega) asserted he had received the Tennessee letter that
morning. Vega contacted the person who authored the Tennessee letter, Genora Wilson
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(Wilson). Wilson told Vega she looked at a computer database, which contained names
and “the word substantiated.” Wilson did not “review the actual records.” Vega
explained that Grandparents asserted they were contacted only one time by the
Tennessee Department of Children’s Services, and that single occurrence took place in
2002.
The Department argued the court should deny Grandparents’ request for a
continuance. The Department asserted Grandparents were no longer approved by the
Relative Assessment Unit as a placement option, due to the substantiated allegations
from Tennessee, and therefore, Grandparents’ request to change a court order (§ 388)
had to be denied. The Department argued Grandparent’s section 388 request should be
denied “without further hearing based on the information from the State of Tennessee.”
The Department explained Grandparents would need to go through the Department’s
grievance process to seek approval as a placement option.
Minors’ counsel (Wollard) asserted that at least one of the Tennessee allegations
was accurate because Grandparents had previously admitted having children removed
from them by the Tennessee Department of Children Services. Wollard explained the
Relative Assessment Unit “can’t approve that.” Wollard asserted that, due to the
children’s special needs, she agreed with the Department that “[t]here is no need to go
any further on [Grandparents].”
The juvenile court concluded the Relative Assessment Unit could not approve
Grandparents’ home as a placement option due to the one substantiated allegation that
Grandparents admitted. The court explained Grandparents could seek an exemption
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through the grievance process; however, since the matter had already been continued for
three months, the court concluded a ruling needed to be made on the request to change a
court order. The court denied Grandparents’ requested continuance. The court found
there was not a change in circumstances, and the requested change would not be in the
children’s best interests. The court explained the children had been with their respective
caretakers “a period of time in which there is stability, there is permanence.” The court
found the children were likely to be adopted, and terminated Mother’s and Father’s
parental rights.
DISCUSSION
A. SUMMARY DENIAL
Grandparents contend the juvenile court erred by summarily denying their
request to change a court order (§ 388).
Section 388 permits a person having an interest in a dependent child to petition
the court, on the ground of a change in circumstances or new evidence, to change,
modify, or set aside a court order. (§ 388, subd. (a)(1).) The juvenile court “shall order
that a hearing be held” if it appears the child’s best interests may be promoted by the
proposed change. (§ 388, subd. (d).) The petitioner need only make a prima facie
showing to trigger the right to proceed by way of a full hearing. (In re A.S. (2009) 180
Cal.App.4th 351, 357-358.)
In this case, the summary denial concerns a question of law: Whether a
substantiated finding of child abuse in a child welfare context (as opposed to a criminal
context) precludes placement with the relative who perpetrated the abuse. Section 361.4
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provides law regarding relative placement and background checks. A dependent child
may be placed in a relative’s home, but if the relative is not a licensed or certified foster
parent, then the county social worker must check the Child Abuse Central Index (CACI)
for all adults living in the relative’s home. The county social worker should also check
the child abuse registries in other states, if the adults in the home have lived in other
states in the preceding five years. (§ 361.4, subd. (c).)
Additionally, the county social worker must check for criminal records related to
any adults living in the home. (§ 361.4, subd. (b)(1).) If the adults do not have criminal
records, then the child welfare agency and the juvenile court may consider placing the
child in the relative’s home. If the criminal record check reveals a criminal history, then
an exemption must be obtained in order for the child to be placed in the relative’s home.
(§ 361.4, subd. (d)(2).) “[T]he child shall not be placed in the home unless a criminal
records exemption has been granted by the county.” (§ 361.4, subd. (d)(2).)
The question left open by the statute is: If a relative has a substantiated child
abuse finding in the child welfare context, but there is not a criminal conviction, can the
child be placed in the relative’s home without seeking an exemption? Grandparents,
because they do not have a criminal conviction, assert there is nothing in the statute
requiring them to obtain an exemption, so the juvenile court should have held the
hearing. We will assume, without deciding, that Grandparents are correct—they do not
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need to proceed through the exemption process because they do not have criminal
records.2
We now consider whether the denial of the hearing was prejudicial. (Code Civ.
Proc., § 475 [prejudice required for reversal]; Cal. Const., Art. VI, § 13 [miscarriage of
justice required for reversal].) Out of an abundance of caution, we will apply the
Chapman standard, and consider whether the denial of the hearing was harmless beyond
a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23.)
In November 2013, Grandmother admitted Father’s “older two children were
taken away from her in the State of Tennessee due to his reporting of abuse.” At the
September 2014 hearing, Grandparents’ attorney said Grandparents were contacted by
the Tennessee Department of Children’s Services in 2002. The Tennessee letter reflects
that, in 2002, there was a substantiated finding of physical abuse to one child by
Grandmother and Grandfather.
2 The Department requests this court take judicial notice of the California Department of Social Services Manual for Child Welfare Services section 31-410. The Department asserts this court may take judicial notice of the manual because it is a regulation or legislative enactment. (Evid. Code, § 452, subd. (b).) We deny the request for judicial notice because the Department fails to explain how the manual constitutes a regulation or legislative enactment. (See People v. Moore (1997) 59 Cal.App.4th 168, 177 [burden is on the party requesting judicial notice].) Notably, the manual reflects that it contains various regulations, statutes, and court decisions, but that it is an “operational tool.” While the manual may include regulations and statutes amongst its content that does not equate with the manual being a regulation or legislative enactment of which this court may take judicial notice. (Evid. Code, § 452, subd. (b).)
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Grandparents’ petition to change a court order includes a 12-page declaration by
Grandparents. The petition and declaration do not mention the 2002 child abuse or how
circumstances may have changed related to that abuse. Instead, the petition focuses on
the assumption that Grandparents were denied placement of the children due to
Grandparents’ age. If any juvenile court learned (1) the Grandparents were denied
placement by the Department due to the substantiated abuse finding (as opposed to the
denial being due to their age); (2) the nature of the 2002 abuse finding, particularly the
fact that it involved both Grandparents; and (3) Grandparents’ petition to modify did not
address this issue, then, beyond a reasonable doubt, the juvenile court would summarily
deny the petition because the petition did not address the necessary issue, i.e., how the
circumstances related to the abuse had changed. Grandparents’ petition failed to present
a prima facie case concerning the relevant issue. Therefore, we conclude the denial of
the hearing was harmless beyond a reasonable doubt because any juvenile court faced
with these circumstances would have also summarily denied the petition.
B. CONTINUANCE
Grandparents contend the juvenile court erred by denying their request for a
continuance because Grandparents’ attorney received a copy of the Tennessee letter the
morning of the hearing on the petition to modify.
Upon the request of counsel, a juvenile court may continue a hearing provided
that the continuance is not contrary to the minor’s interests, taking into consideration the
minor’s need for stability and a prompt resolution. Continuances may only be granted
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upon a showing of good cause. (§ 352.) We review the juvenile court’s ruling for an
abuse of discretion. (In re Mary N.B. (2013) 218 Cal.App.4th 1474, 1481.)
In May, when the Department filed its response to Grandparents’ petition, the
Department raised the issue of abuse in Tennessee. On September 5, the hearing on
Grandparents’ petition was continued in order to gather more information about the
abuse in Tennessee. Given that the issue of abuse was raised in May, which was more
than three months before the hearing, and raised again approximately two weeks before
the hearing, the trial court could reasonably find there was not good cause to continue
the September 17 hearing because Grandparents should have been prepared to discuss
the abuse issue on September 17. In other words, Grandparents should have been
prepared to address the abuse, even if the Tennessee letter did not exist. The juvenile
court could reasonably conclude that Grandparents’ lack of preparation to address how
the circumstances related to the abuse had changed did not constitute good cause for a
continuance.
Grandparents assert they did not investigate the Tennessee abuse allegations
prior to the September 17 hearing because, at the September 5 hearing, the Department
said it would investigate the abuse allegations. Grandparents’ argument is unpersuasive
because they do not explain why, when the Department raised the abuse issue in its May
response to the petition, Grandparents did not prepare themselves to address the abuse
issue. In other words, Grandparents do not explain what, if anything, they did to
address the abuse issue between May and September, such that good cause would exist
for the continuance.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
KING J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the grandparents' section 388 petition and their request for a continuance, finding that the petition failed to establish a prima facie case regarding changed circumstances and that the grandparents failed to show good cause for a continuance.
Issues
Did the juvenile court err by summarily denying the grandparents' section 388 petition?
Did the juvenile court abuse its discretion by denying the grandparents' request for a continuance?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Grandparents’ petition failed to present a prima facie case concerning the relevant issue.”
“The juvenile court could reasonably conclude that Grandparents’ lack of preparation to address how the circumstances related to the abuse had changed did not constitute good cause for a continuance.”