THOMAS v. VENTURA COUNTY HUMAN SERVICES AGENCY (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Thomas H., maternal grandfather of the minor Christiana O., petitions for extraordinary writ review of the juvenile court's order denying his petition for change of placement.  (Welf. & Inst.Code,1 §§ 361.3, 388.)   He contends the court erred in finding he was not entitled to the “relative placement preference” under section 361.3.   He also claims he should have been granted a “criminal records exemption” under section 361.4, subdivision (d)(2).   We affirm.

FACTS AND PROCEDURAL HISTORY

Susan H. (mother), petitioner's adult daughter, gave birth to Christiana in July 2008.²  On February 24, 2009, mother left Christiana with petitioner and his wife, Susan H. (Susan), who agreed to take care of the child at their home in Camarillo until mother was released from jail for a drug-related conviction.³

On the afternoon of March 15, 2009, deputies from the Ventura County Sheriff's Department responded to a call from petitioner's 15-year-old stepson, Keith.   When the deputies arrived at petitioner's home, he was highly intoxicated and was holding Christiana in an unsafe manner.   The deputies reported that petitioner was swaying “side to side and back and forth” and was “unsteady on his feet, his eyes were red and watery, and his speech was slurred.”   Fearing that petitioner would drop Christiana, the deputies persuaded him to hand the minor over to Keith.   Petitioner admitted that he had consumed tequila and was too drunk to care for Christiana.

Susan was found on the bedroom floor, crying hysterically.   After the deputies helped her up, she had difficulty balancing and walking without assistance.   She also smelled strongly of alcohol, and her speech was slurred.

Keith told the deputies that he had called for help because he was afraid of what petitioner would do.   Petitioner was yelling at Susan, had thrown a box of pictures at her, and was having difficulty walking.   When Keith told petitioner he was going to call the police if he did not calm down, petitioner replied “go ahead” and proceeded to continue yelling and staggering.   Keith also told the deputies that petitioner and Susan drank every weekend and “are habitually drunk while caring for Christiana.”

Petitioner and Susan were arrested and charged with child endangerment (Pen.Code, § 273a, subd. (b)) and habitual intoxication in the presence of children (Pen.Code, § 273g).   Christiana and Keith stayed with one of petitioner's brothers until petitioner and Susan were released on bail the following day.

On March 24, 2009, petitioner and Susan were interviewed by social worker Raychel Cutler.   Petitioner denied having any history of drug or alcohol abuse, and claimed his last arrest was 10 years ago.   He also claimed that he only drank about seven times a year and that Susan rarely drank.   The following day, however, Cutler received petitioner's criminal report, which included a long history of substance abuse and convictions that resulted in prison terms.   The report also reflected that petitioner's own children had been removed in two juvenile dependency cases, one of which resulted in Christiana's mother being placed in a legal guardianship with her maternal grandparents at the age of nine.   A review of the child welfare history of Susan's children also reflected long-standing substance abuse problems and parental neglect that resulted in the removal of her children in three prior dependencies.

Cutler interviewed Keith on March 24.   Keith claimed, contrary to what he told the police, that petitioner and Susan only drank alcohol on social occasions and that it had been a “couple of years” since he had seen them intoxicated.   Keith also told Cutler that “usually his mother stays away from his father, so they do not fight.”   When Cutler interviewed Keith again on March 27, he referred to an incident in 2007 when he had also called the police as a result of petitioner's intoxication.   Keith said he was afraid that petitioner would hit Susan and that he “called the police before it got out of control.”

Cutler interviewed mother at the Ventura County jail on March 25, 2009.   Mother noted her time in foster care and referred to a number of recent incidents when petitioner and Susan had been drunk.   During one such incident in 2007, the police came to the home due to domestic violence.   On another incident on Father's Day, petitioner was arrested due to his intoxication.   Mother also reported that petitioner had been arrested four or five years earlier on drug charges.   When she learned about petitioner's latest arrest, she made it clear that she did not want Christiana staying with him.

On March 27, 2009, Christiana was removed from petitioner's home and placed in foster care with her prospective adoptive parents, Kevin and Celine A. On April 1, 2009, the Ventura County Human Services Agency (HSA) filed a juvenile dependency petition alleging failure to protect and no provision for support. (§ 300, subds.(b) & (g).)  At the detention hearing on April 2, HSA reported that petitioner and Susan “are not suitable” for placement due to their prior dependency cases, substance abuse, and criminal history, and that it was evaluating whether Christiana could be placed with her great aunt, Judy C., and husband William C. The court found prima facie evidence that Christiana fell within the provisions of section 300, expressly finding “[t]hat continued residence in the parents [sic ] home would not be in her welfare.   It's in her best interest that such custody be removed.   Reasonable efforts have been made to prevent the need for removal from the home.”   Christiana was continued in foster care, and the jurisdiction and disposition hearing was set for April 28, 2009.

At the hearing on April 28, HSA again reported that petitioner and Susan had requested relative placement.   The report stated that “[t]he agency will not be approving placement with these relatives, due to their prior Child Welfare History, both [petitioner and Susan] have had dependency cases with respect to their children.   In addition, this is the home the child was detained from, as [petitioner and Susan] were intoxicated while caring for the minor.”   HSA also reported that “[w]ith respect to the maternal grandfather and step grandmother, [petitioner and Susan], the mother is requesting that any visitation they have with their grandchild occur in her presence, or after the grandparents submit to a breathalyzer test.   The agency has informed the mother that when she is released from jail, the maternal grandparents can attend visitation with her, at her discretion.   The agency will not be providing any additional visitation to the maternal grandparents at this time, given the circumstances surrounding the child's detention.”   The report further noted that the application for relative placement filed by Judy and William had yet to be approved because a criminal background check disclosed a domestic violence incident that required an exemption under section 361.4.

At the conclusion of the hearing, the court sustained the section 300 petition.   In doing so, the court made another express finding that petitioner and Susan were not suitable for Christiana's placement because they were unable to provide her a safe environment.   Mother was offered reunification services, Christiana was continued in foster care, and the six-month review hearing was set for October 13, 2009.

On October 13, HSA requested and was granted a 90-day continuance in order to extend additional services to mother.   HSA reported that in June 2009 the prospective adoptive parents had taken Christiana for a development assessment at the Child Development Center in Simi Valley (CDC).  The assessment disclosed symptoms of prenatal exposure to methamphetamine, stiffness in her upper body, temper tantrums, and difficulty with self-regulation.   The prospective adoptive parents thereafter took Christiana to CDC every week for occupational and speech therapy.   CDC reported to HSA that the prospective adoptive parents were “very loving and supportive” of Christiana.

HSA also reported that Christiana had just begun to demonstrate appropriate “stranger anxiety” with the prospective adoptive parents when Judy and William were approved for relative placement and the minor was moved to their home on September 15, 2009.   On November 12, however, Judy and William notified HSA that they could no longer care for Christiana.   The minor was returned to the prospective adoptive parents on November 25.

On December 10, 2009, the prospective adoptive parents filed a de facto parent request.   The request detailed their ongoing commitment to Christiana's developmental and emotional needs, which included the fact that Celine had quit her job so she could stay home with the minor.   They also noted their observation that Christiana's skills had regressed during the time she was placed with Judy and William.   On February 3, petitioner filed his own request for de facto parent status.

On February 1, 2010, HSA recommended that reunification services for mother be terminated and that the matter be set for a hearing to implement a permanent plan of adoption by the prospective adoptive parents.   At mother's request, a contested hearing was set for March 2. The court also indicated that it had taken both de facto parent requests under consideration.   On February 8, the court granted the request of the prospective adoptive parents, and denied petitioner's request.

On March 2, petitioner filed a section 388 petition requesting that Christiana be placed with him.   Petitioner alleged as changed circumstances the fact that “[t]he judge was not aware of the child's relationships with her siblings, nor was the judge aware of the financial resources available to this child if she were to continue to be placed with relatives and allowed to remain with her biological birth family[.]”  The petition further alleged that the requested change was in the best interests of Christiana because “[t]he child would be placed in a family to whom she is closely bonded.   She would not be confused by being called by a different name and she would continue to have the potential benefits available to her as a beneficiary of her family trust [.]”  Attached to the petition was a declaration in which petitioner asserted that HSA “has disregarded or downplayed Christiana's existing relationship with her siblings, her cousins, her extended family as well as with me and my immediate household.”   He also complained that the court had failed to consider “the fact that Christiana has a significant expectancy in and participation in (as a current beneficiary) of [sic ] a large family trust,” and stated his understanding that her interest “would be valued at approximately $1,000,000-$2,000,000.”

At the hearing set for that same day, mother withdrew her request for a contest and submitted the matter.   The court terminated reunification services and set the matter for a permanency planning hearing on June 21, 2010.   The court then proceeded to deny petitioner's section 388 petition.   The court reasoned:  “This case is here because of the conduct initially of the grandparents.   And the child was placed with them by mom.   And we would not have been involved but for the incident that brought us here.   And it wasn't just the incident, but being under the influence of [sic ] putting the child in danger.”   The court did not “trust” petitioner because he “wasn't fully honest about his history.”   The court added, “And there's no question that there is a problem with substance abuse.   It doesn't appear that it's been adequately addressed.   That's what brought us here initially․  [T]his case started because of the conduct of the grandparents.   And so I don't see that that was ever addressed.   I don't see an admission.   I don't see anything.   And this has been going on for a year now.”   The court concluded:  “I don't think that there's been new evidence, certainly not new evidence that would convince me, even if I assume all this were accurate, that changing placement now would be in the best interest of this child or placement with [petitioner] despite his best intentions.   So I'm going to deny the 388.”

DISCUSSION

Petitioner contends the court abused its discretion in denying his section 388 petition because (1) he should have been given the preferential consideration for Christiana's placement pursuant to section 361.3, subdivision (a);  and (2) the court's decision was based on the erroneous failure to grant him a criminal records exemption under subdivision (d)(2) of section 361.4.   Neither contention has merit.

A party petitioning the court under section 388 to change, modify or set aside a previous court order has the burden of showing by a preponderance of the evidence that (1) there is a change of circumstances or new evidence, and (2) the requested change or modification would be in the child's best interests. (§ 388;  In re Jasmon O. (1994) 8 Cal.4th 398, 415.)   We review the denial of a section 388 petition for an abuse of discretion.   (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)   To make this showing, petitioner must establish the court exceeded the bounds of reason in denying the requested relief.  “The denial of a section 388 motion rarely merits reversal as an abuse of discretion.  [Citation.]”  (In re Amber M. (2002) 103 Cal.App.4th 681, 686.)

Petitioner fails to demonstrate the court abused its discretion in denying his section 388 petition.   His “changed circumstances” or “new evidence” consisted of allegations that (1) the court had failed to consider Christiana's sibling relationships in deciding to place her with the prospective adoptive parents, and (2) the court was apparently unaware that the child will enjoy a substantial inheritance if mother's parental rights are not terminated.   Neither of these allegations amount to changed circumstances, and the evidence is not “new” in that petitioner could have presented it earlier.   Moreover, petitioner never explained how this evidence supports his claim that Christiana should be placed with him.   At best, he merely offers reasons why it might not be in Christiana's best interests to terminate mother's parental rights.   Petitioner lacks standing to challenge the court's decision in that regard, much less assert the child's relationship with her siblings or her inheritance rights as grounds for returning her to the very environment from which her removal was necessary.  (See In re Harmony B. (2005) 125 Cal.App.4th 831, 838 [grandparent lacked standing to appeal order terminating parental rights for adoption by foster parents, where grandparent wanted the minor placed with her];  In re P.L. (2005) 134 Cal.App.4th 1357, 1361-1362 [same];  In re Miguel E. (2004) 120 Cal.App.4th 521, 538-539 [concluding same in appeal from order modifying minor's placement].)

The only changed circumstances or new evidence that would have been relevant here would have related to petitioner's newfound ability to provide Christiana a safe and secure home.   The section 388 petition and writ petition are not only devoid of any such information, but also omit most of the evidence upon which the decision to remove the child from petitioner's custody was based.   The statement of facts in the writ petition does not contain any citations to the record, in violation of rule 8.204(a)(1)(C) of the ⁴

When the actual facts are considered, it is readily apparent the court did not abuse its discretion in denying petitioner's request for relative placement notwithstanding the preference afforded such placements under section 361.3.⁵  The relative placement preference does not “operate as an evidentiary presumption in favor of placement with [relatives] that would overcome the juvenile court's duty to determine the best interests of the child.”  (In re Stephanie M., supra, 7 Cal.4th at p. 320.)   The statute expressly states that it should not be construed to “guarantee” placement to any identified relative. (§ 361.3, subd. (a)(8).)  “ ‘Preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.” (§ 361.3, subd. (c)(1).)   Subdivision (d) further provides in part that “[s]ubsequent to the [jurisdictional/dispositional hearing], whenever a new placement of the child must be made, consideration for placement shall again be given ․ to relatives who have not been found to be unsuitable and who will fulfill the child's reunification or permanent plan requirements.”  (Italics added.)

Petitioner's request for relative placement was denied because he was found to be unsuitable for that purpose.   Indeed, it was his own conduct that precipitated the child's removal.   Notwithstanding petitioner's self-serving claim that he has stopped drinking, there is no evidence it would have been in Christiana's best interests to remove her from her long-standing placement with her prospective adoptive parents and return her to the very environment from which she was removed.  “The overriding concern of dependency proceedings ․ is not the interest of extended family members but the interest of the child.   ‘[R]regardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected.’   [Citation.]”  (In re Lauren R. (2007) 148 Cal.App.4th 841, 855.)

Petitioner's claim relating to section 361.4 warrants little discussion.   The statute merely provides that before placing a child with a relative, the child protective services agency must determine whether the placement is appropriate and must conduct a criminal records check of every person living in the relative's home.   If the records check discloses a resident has been convicted of a crime, the child cannot be placed in the home unless (1) the crime is one for which the agency may grant an exemption pursuant to Health and Safety Code section 1522, and (2) the agency grants such an exemption. (§ 361.4, subds.(a)-(d);  In re G.W. (2009) 173 Cal.App.4th 1428, 1438.)   As county counsel correctly notes, the court did not base its denial of the section 388 petition on the fact that HSA had not granted petitioner an exemption for his prior felony conviction.   The court made clear that its decision to deny the section 388 petition was based on petitioner's conduct, and not his status as a convicted felon.   The court went on to note that even if it had relied on section 361.4, it would have assumed that it had discretion to disregard the lack of an exemption and would “still reach the same conclusion.”   As we have explained, petitioner fails to demonstrate that this decision amounts to an abuse of discretion.

The petition for extraordinary writ is denied.

NOT TO BE PUBLISHED.

We concur:

Tari L. Cody, Judge

Superior Court County of Ventura

Law Offices of Mary Quin, Mary Quin;  Ratzkin & Chandler and Susan H. Ratzkin, for Petitioner.

No appearance for Respondent.

Noel A. Klebaum, County Counsel, Winnie Cai and Oliver G. Hess, Assistant County Counsel, for Real Party in Interest.

Andrew M. Wolf for Minor.

FOOTNOTES

FN1. All further undesignated statutory references are to the Welfare and Institutions Code..  FN1. All further undesignated statutory references are to the Welfare and Institutions Code.

FN2. Mother is not a party to this appeal.   The whereabouts of the child's alleged father is currently unknown..  FN2. Mother is not a party to this appeal.   The whereabouts of the child's alleged father is currently unknown.

FN3. When petitioner was interviewed on March 24, 2009, he stated that Christiana had been living with them since December 2008.   In a declaration filed in support of his section 388 petition, he claimed that Christiana and mother had been living with him since Christiana's birth..  FN3. When petitioner was interviewed on March 24, 2009, he stated that Christiana had been living with them since December 2008.   In a declaration filed in support of his section 388 petition, he claimed that Christiana and mother had been living with him since Christiana's birth.

FN4. Although we decline to exercise our authority to strike the brief due to petitioner's failure to include a proper statement of facts under rule 8.204(a)(1)(C), we admonish counsel and warn that future violations of this sort will result in sanctions..  FN4. Although we decline to exercise our authority to strike the brief due to petitioner's failure to include a proper statement of facts under rule 8.204(a)(1)(C), we admonish counsel and warn that future violations of this sort will result in sanctions.

FN5. Subdivision (a) of section 361.3 states as follows:  “In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.”.  FN5. Subdivision (a) of section 361.3 states as follows:  “In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.”

YEGAN, Acting P.J. COFFEE, J.