In re D.C.

Filed 9/7/07 In re D.C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment and an order of the Superior Court of San Diego County, Cynthia A. Bashant, Judge. Affirmed.

Edward C., the father of D.C., appeals the judgment terminating his parental rights and an order denying his petition for modification under Welfare and Institutions Code section 388.^[1] We affirm the judgment and order.

FACTUAL AND PROCEDURAL BACKGROUND

D.C. was born in April 2004 to Edward C. and J.Z. In November 2005 the San Diego County Health and Human Services Agency (Agency) took D.C. into protective custody. Neither parent was available to care for their daughter. J.Z. was detained on juvenile probation violations and Edward was in prison. In January 2006 the court made a finding of jurisdiction under section 300, placed D.C. in foster care and ordered a plan of family reunification for J.Z.

J.Z. participated in services for several months, and then left the state without contacting the Agency or her daughter. Edward expressed a desire to reunify with D.C. after his release from prison in January 2009. The Agency did not identify a suitable relative placement for D.C. during the reunification period. D.C.'s paternal grandmother visited her regularly, but did not express an interest in caring for her. The paternal grandfather had a criminal record involving a theft ring and gang-related activity, and his daughters were on juvenile probation for drugs and gang activity. The maternal grandmother had an extensive history with child protective services.

In July 2006 the Agency reported that A.S., a paternal aunt,^[2]was willing to adopt D.C. if family reunification did not occur. A.S. lived in Texas. She was in the process of adopting a child and had an approved adoptive home study. Shortly before the six-month review hearing, Edward asked the Agency to place D.C. with his grandmother, Connie C. (D.C.'s paternal great-grandmother), until he was released from custody.

On September 1, 2006, the court terminated family reunification services and set a hearing under section 366.26. The court ordered the Agency to "evaluate the paternal great[-]grandmother as well as all relatives for placement of the minor." In December the Agency informed the court that it had not evaluated Connie's home. The court ordered the Agency to explore all possible relative homes for adoptive placement. In February 2007, at Edward's request, the court continued the section 366.26 hearing to allow the Agency time to complete an evaluation of the paternal relatives' homes.

The section 366.26 hearing was held on March 14, 2007. Edward filed a section 388 petition for modification (petition) asking the court to place D.C. with Connie. The court granted a hearing on the petition, which was held immediately prior to the section 366.26 hearing.

Connie testified she came forward in September 2006 when she learned the Agency was looking for an adoptive home for D.C. Until that time, she believed the court would return D.C. to Edward's care when he was released from prison. Connie had been waiting for the Agency to evaluate her home since September 2006. The social worker told Connie she was too old to care for D.C.^[3] The Agency did not complete a home evaluation.

Connie had weekly unsupervised visits with D.C., who often stayed overnight in her home. She furnished a bedroom with a crib, clothes and toys. D.C. was accustomed to being in Connie's care. They loved each other.

The Agency moved to dismiss Edward's petition. The court denied the motion. The court stated that it had ordered the Agency to evaluate Connie's home on September 1, 2006, and wanted to hear why the evaluation had not been completed.

Social worker Reed was assigned to the case on September 18, 2006. The previous social worker requested a home study, but the request was transferred to the Agency's south region and dropped. Reed requested an evaluation of Connie's home on February 15, 2007.

Reed opined that either Connie or A.S. would be able to provide D.C. a suitable home. However, Reed wanted D.C.'s next placement to be considered her adoptive placement. The "very best placement" for D.C. was with A.S. It was in D.C.'s long-term interest to live with an "intact family," that is, a mother, father and brother. A.S. could provide for all of D.C.'s needs into adulthood. A.S. returned to San Diego each summer, and she intended to maintain D.C.'s contact with family members, including Connie.

In making her recommendation, Reed took Connie's age and status as a single person into consideration. D.C. would be affected if something happened to Connie. In addition, Connie's sons and grandchildren were involved in gang-related activities. Connie remained loyal to her family, and D.C. would be exposed to a criminal element if placed in her care.

The court stated D.C. was lucky to have two loving relatives who wanted to care for her. The issue of placement was a close call. Considering all the factors, the court determined it would be in D.C.'s best interest to be placed with A.S. and denied Edward's petition. The court found that D.C. was adoptable and terminated parental rights.

DISCUSSION

I

Edward contends that the juvenile court erred when it denied his section 388 petition seeking placement of D.C. with Connie. He maintains the evidence established relative placement with Connie was in D.C.'s best interest. Edward argues the court erred when it adopted the Agency's recommendation for placement without considering the statutory factors used to determine relative placement under section 361.3.

The Agency contends Edward does not meet his burden on appeal to show the court abused its discretion when it denied his petition. The Agency argues the appeal should be dismissed because Edward does not raise any argument concerning the judgment terminating parental rights. It also maintains the appeal from the denial of the petition should be dismissed as moot.

A

Procedural Issues

On March 20, 2007, Edward filed a notice of appeal from the judgment terminating parental rights and the order denying his section 388 petition. The Agency argues Edward's appeal of the order denying his section 388 petition should be dismissed as moot. The Agency maintains that after parental rights have been terminated, it is entitled to the exclusive custody, control and supervision of the child. ( 366.26, subd. (j); Fam. Code,  8704, subd. (a).) The Agency contends this exclusive authority includes the discretion to place the child in, and remove the child from, a prospective adoptive home or temporary placement. (Amber R. v. Superior Court (2006) 139 Cal.App.4th 897, 901-902.) The Agency argues this authority allows it to make an independent determination of the child's adoptive placement, and any relief this court would grant to an appellant challenging a pretermination placement order would not be effective. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 (Eye Dog).) The Agency requests we dismiss the appeal as moot.

We reject the Agency's argument. A parent may appeal from the order terminating parental rights simply to preserve the right to appeal the denial of a section 388 petition. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1317.) An order denying placement under section 388 is reviewed for abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) If a reviewing court concludes the trial court erred, it may grant effective relief, including vacating the judgment terminating parental rights and ordering a new placement hearing, without considering the merits of the trial court's decision to terminate parental rights. (In re H.G. (2006) 146 Cal.App.4th 1, 18; In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) Edward filed a timely notice of appeal from the order terminating parental rights, and this court has appellate jurisdiction to modify that order. (In re Jessica K., supra, 79 Cal.App.4th at pp. 1316-1317.) We therefore decline to deem Edward's appeal of the judgment terminating parental rights abandoned.

We acknowledge the authority of the Agency to make posttermination adoptive placements; however, that authority is no longer unfettered. ( 366.26, subd. (n); see Wayne F. v. Superior Court (2006) 145 Cal.App.4th 1331, 1337-1340.) The authority to decide contested issues concerning a dependent child rests with the juvenile court, even when that determination is limited to deciding whether the Agency abused its discretion in making an adoptive placement. ( 300.2; 366.26, subd. (n); see Amber R. v. Superior Court, supra, 139 Cal.App.4th at pp. 901-902.)

A pretermination placement, especially one that involves a family relationship that has continued for a significant period during the child's life, can affect factors relevant to a determination of the child's best interest in an adoptive placement. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Although subsequent developments may affect the nature of the relief granted by a reviewing court, the possibility those developments might occur does not mean the reviewing court cannot grant effective relief from the order being appealed. We therefore decline to dismiss Edward's appeal on the basis no effective relief can be granted by this court.^[4] (Eye Dog, supra, 67 Cal.2d at p. 541.)

B

The Court Did Not Abuse Its Discretion When It Denied Edward's Petition for Modification Under Section 388

Edward contends the Agency did not complete an evaluation of Connie's home because the social worker considered her to be too old to adopt D.C. He contends the evidence established that placement with Connie was in D.C.'s best interest and, therefore, the court erred when it denied his petition to modify the placement order. Edward maintains he requested relative placement before the six-month review hearing, and the court ordered the Agency to complete the process of evaluating Connie's home "long before the section 366.26 hearing." He asserts the court erred when it did not apply the factors used to determine placement with a relative under section 361.3.

The Agency argues the social worker considered many factors, including age, when she determined the best placement for D.C. was with A.S., and the court acted within its discretion when it found that awarding custody of D.C. to Connie was not in the child's best interest. The Agency contends Connie was not entitled to preferential consideration as described in section 361.3 because she was not the child's grandparent, aunt, uncle or sibling. ( 361.3, subd. (c)(2).)

Under section 388, a parent, interested person or the dependent child (generically, petitioner) may petition the court to change, modify or set aside a previous order on the grounds of changed circumstances or new evidence. ( 388, subd. (a).) The petitioner requesting the modification has the burden to show a change of circumstances or new evidence, and that the proposed modification is in the child's best interest. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) Generally, the petitioner must show by a preponderance of the evidence that the child's welfare requires the modification sought. (Cal. Rules of Court, rule 5.570(f)(1).)

We review the grant or denial of a petition for modification under section 388 for an abuse of discretion. (In re Shirley K., supra, 140 Cal.App.4th at p. 71; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) While the abuse of discretion standard gives the trial court substantial latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action . . . .' Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion. [Citation.]" (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)

Generally, when a relative seeks placement of a dependent child who is in a viable foster care placement, as here, the mandatory provisions of section 361.3 do not apply.^[5]

In such cases, the overriding inquiry is whether the change in placement is in the child's best interest. (See In re Stephanie M., supra, 7 Cal.4th at pp. 320-321.) In determining whether a relative placement is in the child's best interest, the court may consider the criteria listed in section 361.3, but it is not required to do so. As discussed above, section 388 also requires the court to determine whether the proposed modification is in the child's best interest.

The concept of a child's best interest "is an elusive guideline that belies rigid definition. Its purpose is to maximize a child's opportunity to develop into a stable, well-adjusted adult." (Adoption of Michelle T.(1975) 44 Cal.App.3d 699, 704; In re Ethan N. (2004) 122 Cal.App.4th 55, 66.) A primary consideration in determining the child's best interest is the goal of assuring stability and continuity of care. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

The court noted the placement decision was "a close call," and stated that its decision to place D.C. with A.S. did not mean that placement with Connie was inappropriate. Rather, the court was considering which of the two suitable placements was the most appropriate. In determining D.C.'s best interest, the court gave special weight to four factors: family composition; the caregiver's ability and willingness to facilitate appropriate contact with family members; the child's exposure to criminal elements; and whether there were any impediments to adoption. (See, generally, In re Stephanie M., supra, 7 Cal.4th at p. 317; Adoption of Michelle T., supra, 44 Cal.App.3d at p. 704.)

The court found that placement with A.S. was in D.C.'s best interest. There, she would be raised in a two-parent household. A.S. had strong connections in San Diego and was willing to maintain D.C.'s existing relationships with relatives in San Diego. Living with A.S. would distance D.C. from the criminal element in Connie's immediate family. The court also noted A.S. had an approved adoptive home study and there likely would not be any impediment to D.C.'s adoption. (Cf.  361.3, subd. (a).)

Edward's argument the court improperly relied on the Agency's consideration of age as a factor in determining D.C.'s placement is not supported by the record. The social worker testified age was one factor out of many she took into consideration. The record clearly shows the court did not take age into consideration when determining D.C.'s placement. We also observe that Edward's complaint about the Agency's consideration of age as an inappropriate factor in determining an adoptive placement is not supported by citation to legal authority.

We conclude that the court did not abuse its discretion when it determined placement with Connie was not in D.C.'s best interest because a more appropriate placement was available. As the selection of a permanency plan for D.C. was imminent at the time of the hearing on the section 388 petition, the court properly considered D.C.'s long-term interest in a permanent placement, rather than focusing on relative placement factors under section 361.3. The court's placement decision was well-reasoned, and a proper exercise of its discretion. There was no error.

DISPOSITION

The judgment and order are affirmed.

HALLER, Acting P. J.

WE CONCUR:

McINTYRE, J.

O'ROURKE, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

^[1] Unless otherwise specified, statutory references are to the Welfare and Institutions Code.

^[2] At the March 2007 hearing, Edward's grandmother explained the "aunt" was Edward's cousin from his mother's side of the family.

^[3] Connie's age was not in evidence. In his closing remarks, minor's counsel stated he believed Connie was 62 years old.

^[4] When the Agency assesses an adoptive placement for a dependent child, we expect that it would not completely disregard the trial court's previous findings concerning the best interest of the child, or this court's disposition in an appeal involving the placement of a child.

^[5] For purposes of this appeal, we need not consider whether a great-grandparent is included within the meaning of "grandparent" under section 361.3, subdivision (c)(2).