In re D.S.

Filed 9/11/07 In re D.S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

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Appellant T.L.S., the mother of D.S. and J.S. (the minors), appeals from an order of the juvenile court denying a petition for modification (Welf. & Inst. Code, 388, 395),^[1]which sought to change the placement of the minors from nonrelative foster care to the home of T.Q., the minors paternal aunt. Appellant contends generally that in denying the petition for modification, the juvenile court abused its discretion. For the reasons that follow, we shall affirm the order.^[2]

FACTUAL AND PROCEDURAL BACKGROUND

On September 28, 2004, the Shasta County Department of Social Services (DSS) filed an original juvenile dependency petition pursuant to section 300 on behalf of 10-year-old D.S. and two-year-old J.S. That petition alleged the minors were at a substantial risk of suffering serious physical harm because of domestic violence and anger control issues of appellant and the father of the minors. The juvenile court sustained the petition, adjudged the minors dependent children, and ordered DSS to provide appellant with reunification services.

A June 2005 DSS report noted that relatives have indicated an interest in providing a permanent home for [the minors] should they not be returned to their parents. One relative has maintained continual communication and provided support to [the minors]. This social worker will pursue an ICPC [Interstate Compact on the Placement of Children, Fam. Code, 7901 et seq.] Relative Home Study with Alaska.^[3]

In May 2005 the minors were placed in a foster family agency home, where both were doing well. According to the social worker, the care provider was meeting the needs of the minors and was capable of providing continued care and supervision. Subsequent DSS reports also noted the minors were continuing to do well in foster care.

In its November 2005 report, DSS stated the minors would be considered for placement with a relative who lives out of state, after ICPC approval . . . . A December 2005 report noted Alaska authorities had responded to the request by DSS for a home evaluation of the paternal aunt and will forward that evaluation when complete. . . .

On July 17, 2006, the paternal aunt filed petitions pursuant to section 388 pertaining to each minor.^[4] Each petition sought an order by the juvenile court directing DSS to consider placing the minors with the paternal aunt. The court scheduled the matter for a hearing.

In its July 2006 report, DSS recommended the minors remain in their foster care placement. DSS had determined that it is in the childrens best interests that they remain permanently with the current foster parents. They have lived in this home for a year and two months, and [D.S.] strongly wants to remain where she is and be adopted by the current foster parents. [J.S.] has made a positive attachment to the foster family and is thriving in their care also. [DSS] originally planned to place the children with the [paternal] Aunt pending ICPC approval, but placement could not move forward while the [parents were] in the reunification process, with weekly visits. ICPC documents were sent on 11/04/05 and at that time Alaska had a social worker stationed full time on the island to complete the process. Completion of the ICPC was greatly delayed by the Aunts need to leave the island two months before her due date (January 2006) to obtain adequate medical care. She stated that she was unable to have the child on her remote island of Unalaska; the ICPC process could not be completed until she returned to her home in Unalaska. [The paternal aunt] stayed in Wisconsin for about three months with various friends and relatives, and at hotels during the end of her pregnancy and to give birth. [] [The paternal aunt] failed to provide much information about her fiance except that his first name was Casey, he worked as a corrections officer, and that he came to see her and the baby in Wisconsin. He is now living with them in her home in Unalaska, and the [minors] do not know him at all. The foster mother requested that Casey call the children so that they could start to get to know him but [the paternal aunt] did not follow through with that request. Telephone contact between the Aunt and the children has diminished also. Before leaving for Wisconsin, [the paternal aunt] had been calling two or three times a week and was talking to both children. Currently she calls once or twice a month, and many times she has called when [D.S.] was in school. [D.S.] is now reluctant to talk to her aunt because of the pressure [the paternal aunt] puts on her about the importance of family sticking together. [] [D.S.] has had a great number of moves and instability in her life and does not want to move again. The foster parents are willing to adopt the children, and have demonstrated maintaining birth family relationships. [] [D.S.] has stated numerous times to the treatment and the adoptions social workers, her foster parents, and to her Aunt that she would like [the paternal aunt] to remain her Aunt, and to live permanently with the foster family. [D.S.] has met with her attorney several times and has strongly conveyed her desire to be adopted by the foster parents, and he has supported her request.

Later in the report, DSS stated in part that it had determined it was in [the minors] best interest to remain in a stable placement. When advised of this decision, [the paternal aunt] at first stated that it was okay as long as they did not return to [appellant], and that they could stay connected with extended family. In April, 2006, the social worker contacted [the paternal aunt] to ask if she had any information on the whereabouts of her brother [the minors father]. Her return message on 04/26/06 instructed the social worker not to call her again, and that she would be hiring [counsel] to represent her. During the past six months, [the paternal aunt] has only contacted the social worker approximately six times. She did not request assistance from [DSS] in completing the home study until filing a motion through her attorney. [] Around June 21, 2006, Mary Gray of the Kodiak, Alaska, ICPC office contacted the social worker and stated there was a social worker traveling to Unalaska on an unrelated matter. The ICPC worker wanted to know if [DSS] was still seeking to place the children with [the paternal aunt] as she could do a home study of the [aunts] residence while on the island. [DSS] was not seeking to move the [minors], the parents had repeatedly objected to the children being placed with [the paternal aunt] and the current recommendation was adoption with the foster parents. Therefore, this social worker informed the ICPC worker that we were not seeking to move the children and did not request she complete a home study. [] [DSS] can re-initiate an ICPC upon the Courts decision to do so. However, [DSS] is recommending the Court not order an ICPC home study as the recommendation remains to keep [the minors] with their current caretakers, as being in the best interests of the [minors], and to achieve permanency in this home.

In a report filed September 1, 2006, DSS again recommended the minors remain in their foster care placement and that adoption was the appropriate permanent plan. According to that report, the minors foster parents wanted to adopt them. The minors were secure in their care and seek them out for comfort and affection. [The minors] foster family sees them as members of their family. They have been fully accepted as members of the family. They have developed a close relationship with their foster parents and view them as their parents.

At the September 15, 2006, hearing on the petitions for modification, the juvenile court construed the petitions as requests to place the minors with the paternal aunt. Moreover, the parties stipulated that if an ICPC had been conducted, the paternal aunts home would have been approved as suitable. The paternal aunt testified that at times in the past she had had regular contact with the minors. According to the paternal aunt, in November 2004 she had advised DSS of her willingness to care for the minors in Unalaska and still wanted the minors to live with her.

The minors foster mother testified that the minors were doing well. According to the foster mother, D.S. indicated she wanted to remain in the foster parents home. The foster mother was willing to maintain contact with other members of the minors family. The foster mother also opined that removing the minors from her custody would be detrimental to the minors.

Adoption supervisor Linda Vaught testified it would be detrimental for D.S. to be removed from her foster care placement, and that it would be in the best interests of J.S. to remain in his placement. According to Vaught, . . . the core issue is a detriment in the risk of moving children from a place where they are securely attached, where other people have become their psychological parents. The risk is so high to children whenever we do that, that it is something we do not do lightly.

Adoption social worker Janice Kehnle testified that D.S. had told her she wanted to remain with her foster parents.

Following argument by the parties, the juvenile court denied the petitions seeking to change the minors placement from foster care to relative placement. In its ruling, the court stated, in part, as follows: First of all, I have never lost sight of the love that the relatives have for these children, even as contentious as these hearings can be. I have never lost sight of that, but what we have in this situation are children who have psychologically bonded with another family. [] These children at this point, have adopted this family as their family, and that can happen in these cases with the passage of time. And they have become the defacto [sic] parents for these children, and removing them from this family would be like removing them again from parents and would be detrimental to both children. [] In particular this would be very detrimental to [J.S.] because these folks are the only family that hes realistically known, given his age. And then its unthinkable to separate these siblings as close as they are. But it would also be detrimental to [D.S.] in her own right, since she has psychologically bonded now to these parents as her parents. And we cant overlook the stability and the security that has been provided for them in such a way that they now look to these folks as their parents, so much so that it would be detrimental to remove them from this placement. [] I feel very strongly about relative placements and I want to underscore that. Whenever it is appropriate, that is always the first place where I would go for placement. When these children turn eighteen, they can choose to associate with whom they want. In the meantime, I hope that there will be this spirit of cooperation so that the aunts can play the role of being aunts, which are important in the childrens lives and that there will be this spirit of cooperation for the best interest of the children.

DISCUSSION

Appellant contends that, in denying the petitions for modification, which sought to change the placement of the minors to the home of their paternal aunt, the juvenile court abused its discretion. According to appellant, the court also committed various evidentiary errors, constituting an abuse of its discretion. Appellant states the issue as follows: Did the courts ruling which placed the children with the foster family instead of the aunt comport with their best interests . . . ?

A parent or other person may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances.^[5] The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a preponderance of the evidence. [Citation.] (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court, and absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (Id. at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parents interest in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

In considering placement of a dependent child, the juvenile court is obliged to grant preferential consideration to relatives who request placement with them. ( 361.3, subd. (a).)^[6] Aunts are included in the statutory definition of relatives. ( 361.3, subd. (c)(2).) Therefore, the paternal aunt qualified as a relative entitled to preferential consideration under the statute.

The record in this case reflects the paternal aunt requested that DSS evaluate her home for possible placement of the minors with her. Although a home study in Alaska apparently was not completed, at the hearing on the petitions the parties agreed the paternal aunts home would have been approved had such a study been conducted. The record also shows there were logistical and other difficulties involved in procuring such an evaluation, and that at one point allegedly the paternal aunt seemed satisfied with the minors foster care placement.

In her written arguments, appellant makes numerous references to alleged negligence on the part of DSS in evaluating the paternal aunt for placement of the minors. However, the actions of DSS during the proceedings have no relevance to matters pertaining to the section 388 petitions. In any event, the appeal before us is directed not to previous rulings by the juvenile court pertaining to home studies or the relative placement preference, but only to the courts exercise of its discretion in denying the modification petitions.

With overwhelming evidence before it that the minors were doing well in a placement where they had bonded with their foster parents and continued to have contact with relatives, it would have been an abuse of discretion by the juvenile court if it had ordered the minors placement modified. This is especially true in light of the testimony of adoption supervisor Linda Vaught, which suggested the minors would suffer greatly if they were moved. Moreover, DSS had noted that the minors were treated as members of their foster family. Finally, counsel for the minors also argued the minors need for security compelled denial of the petitions. In sum, the record here is clear that the benefits of extended family did not outweigh the interest of the minors in the permanence and stability they were finding with their foster parents.

Appellant claims several actions by the juvenile court constituted an abuse of its discretion and prejudiced its decision to deny her requested placement change. First, appellant argues the court relied for its decision in part on the unsworn testimony of D.S. in chambers. The record belies her claim. The statements made by D.S. were consistent with evidence already before the court: that she wished to remain with her foster parents. Moreover, in its ruling the court did not refer to D.S.s testimony. Accordingly, any error by the court in its examination of D.S. could not have prejudiced appellant. (Cal. Const., art. VI, 13.)

Appellant asserts the juvenile court erred prejudicially in considering four pages from a book about child attachment disorders. DSS offered the book excerpt as providing a basis for the testimony of Linda Vaught. The court agreed to consider it only for that limited purpose. That decision was proper. (Evid. Code, 801, subd. (b), 802.) In fact, counsel for appellant agreed with the courts rationale.

Appellant contends the juvenile court erroneously considered evidence pertaining to bonding and attachment. We disagree. While only of marginal relevance to the issue before the court, we think admission of such evidence was properly within the courts discretion. (Evid. Code, 352.)

Appellant complains the juvenile court improperly disallowed questioning pertaining to moving other minors out of one placement and into another at late stages of dependency proceedings. Appellant also claims the court erred in rejecting proffered evidence of the benefits accruing to the minors if they were placed with the paternal aunt. We disagree. Those matters were handled properly by the court pursuant to Evidence Code section 352. In fact, as the record reveals, the court permitted some questions along the lines sought by appellant. Finally, the parties stipulated as to some benefits the minors would enjoy from relocating to Alaska. There was no error.

Our examination of the record persuades us that the juvenile court found, based on evidence contained in the record, that modification of its previous placement order would not be in the minors best interests. The record supports that determination.

While it may be desirable in the abstract to place a minor with extended family members in order to maintain the minors contacts with his or her biological family, it is more important that the minor be attached to his or her caretakers and have a feeling of permanency and stability in the home. This reality is reflected in the statutory preference for adoptive placements for caretakers who are bonded to the minor. (366.26, subd. (k).)^[7] By contrast, section 361.3 provides only for preferential consideration for placement with relatives. ( 361.3, subds. (a), (c)(1).)

Under the difficult circumstances presented by this case, it was well within the discretion of the juvenile court to deny the petitions for placement filed by the paternal aunt and joined in by appellant and to order the minors placement with their foster parents to continue. Significantly, in that placement the minors may continue to have access to biological relatives, including especially the paternal aunt. There was no abuse of discretion by the juvenile court. (Cf. In re Daijah T. (2000) 83 Cal.App.4th 666, 673-675.) In sum, appellant has failed to meet her burden of showing prejudicial error.

DISPOSITION

The order denying the petitions for modification is affirmed.

RAYE , Acting P.J.

We concur:

MORRISON , J.

BUTZ , J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] On May 16, 2007, this court dismissed the appeals by J.S., the father of the minors, for his failure to file an opening brief.

^[3] The paternal aunts residence is in Unalaska, Alaska.

^[4] Appellant joined in the modification petitions at the September 15, 2006, hearing on the petitions. For purposes of deciding this appeal, we presume appellant has standing to seek appellate review of the denial of the petitions. (Cf. Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035.)

^[5] Section 388 provides, in part: Any parent or other person . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of the court previously made or to terminate the jurisdiction of the court. . . . [] . . . [] (c) if it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, or termination of jurisdiction, the court shall order that a hearing be held . . . .

^[6] Section 361.3, subdivision (a) provides, in pertinent part: (a) 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. In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors: [] (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. [] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. [] (4) Placement of siblings and half-siblings in the same home, if that placement is found to be in the best interest of each of the children as provided in Section 16002. [] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [] (6) The nature and duration of the relationship between the child and the relative, and the relatives 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: [] (A) Provide a safe, secure, and stable environment for the child. [] (B) Exercise proper and effective care and control of the child. [] (C) Provide a home and the necessities of life for the child. [] (D) Protect the child from his or her parents. [] (E) Facilitate court-ordered reunification efforts with the parents. [] (F) Facilitate visitation with the childs other relatives. [] . . . [] The court shall order the parent to disclose to the county social worker the names, residences, and any other known identifying information of any maternal or paternal relatives of the child. This inquiry shall not be construed, however, to guarantee that the child will be placed with any person so identified. The county social worker shall initially contact the relatives given preferential consideration for placement to determine if they desire the child to be placed with them. Those desiring placement shall be assessed according to the factors enumerated in this subdivision. . . .

^[7] Subdivision (k) of section 366.26 provides: Notwithstanding any other provision of law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the childs emotional well-being. [] As used in this subdivision, preference means that the application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child.