In re Y.R.

Filed 9/19/07 In re Y.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order of the Superior Court of San Diego County, Hideo Chino, Commissioner. Affirmed.

Jorge G. appeals a juvenile court order summarily denying his Welfare and Institutions Code section 388^[1]modification petition requesting that his minor daughter, Y., be placed with her paternal grandparents. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2006 the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court on behalf of newborn Y. under section 300, subdivisions (f) and (g). The petition alleged Y. was at risk of suffering harm because before she was born, Jorge had sexually abused her sibling, Martha R., resulting in Martha's death. Jorge and Y.'s mother awaited trial on various charges, including first degree murder of Martha. Following Martha's death, the court removed Y.'s two older siblings, L.R. and Jonathan R.,^[2]from parental custody and placed them in foster care.

At the August 2006 detention hearing, Jorge requested that the court consider placing Y. with her paternal grandparents. The paternal grandparents lived in Mexico and Y.'s grandmother told social workers she was interested in adopting Y. The court detained Y. in out-of-home care and ordered the Agency to evaluate the homes of all relatives for further consideration of placement. Following the detention hearing, the Agency initiated a home evaluation with Desarrollo Integral de la Familia (DIF), the Mexican social services agency.

In the jurisdiction and disposition report, the social worker recommended that Jorge not be offered reunification services and Y. be removed from his custody. Jorge remained in jail awaiting trial for murder and Y.'s older siblings reported that Jorge had physically and sexually abused them on multiple occasions. The court followed the Agency's recommendation, removed Y. from parental custody, declined to order reunification services and scheduled a section 366.26 selection and implementation hearing.

In the section 366.26 assessment report, the social worker reported that the Agency had facilitated several visits between Y. and her two siblings. The visits went well and in January 2007, the Agency placed Y. in the same foster home as her siblings. The social worker believed Y. and her siblings have since developed a strong relationship with each other. The current caregivers are committed to adopting all three minors and their home has an approved adoptive home study. Concerning placement of Y. with her relatives, the results of the DIF home evaluation report had not been completed and the social worker had not been contacted by the paternal grandparents in more than three months. The social worker recommended Y. remain with her siblings because the three shared a strong relationship and it was likely the siblings would be adopted together.

In an April 2007 addendum report, the social worker reported that the Agency had received a positive home evaluation of the paternal grandparents from DIF. The evaluation did not, however, report that in addition to the grandparents, relatives including Y.'s paternal aunt, Jorge's common law wife and Jorge's four-year-old son all lived in the grandparents' two-bedroom home. The social worker believed that based on this additional information, the paternal grandparents' home was not appropriate for Y.

The social worker later spoke with the paternal grandmother and inquired as to whether additional family members lived in the home. The grandmother claimed only one other family member had been living in her home but that she now lived alone with Y.'s grandfather. The grandmother reaffirmed her desire to have custody of Y. but explained she could only care for Y. and not L. or Jonathan.

The social worker reported Y. continued to do well in her current placement and believed that keeping the siblings intact was in all of the minors' best interests. Y.'s relationship with her siblings was growing stronger and all three children were thriving in their current placement.

Before the section 366.26 hearing, Jorge filed a section 388 petition for modification, seeking to have the court place Y. with her paternal grandparents in Mexico. Jorge alleged as changed circumstances that the grandparents had received a positive home study. Jorge asserted it would be in Y.'s best interests to live with and be raised by her biological family. After considering Jorge's contentions, the court summarily denied the petition. It found the petition did not meet the prima facie requirements and there was no evidence in the petition showing it would be in Y.'s best interests to be moved from her current placement. The court further found Y. was adoptable and none of the exceptions to section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court terminated parental rights and referred Y. for adoptive placement. Jorge timely filed a notice of appeal.

DISCUSSION

Jorge contends the court erred by summarily denying his section 388 modification petition seeking placement of Y. with her paternal grandparents in Mexico. He asserts he made a prima facie showing circumstances had changed and the proposed modification was in Y.'s best interests because she would benefit from living with her biological family. He further asserts the court did not properly consider the preference for placing dependent children with relatives.

A

Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party 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 proposed modification is in the child's best interests. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.) The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Id. at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (Jasmon O., supra, at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) However, if the liberally construed allegations of the petition do not make a prima facie showing that the relief sought would promote the best interests of the child, the court may deny the petition without an evidentiary hearing. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 322-323.) "The 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. (1999) 77 Cal.App.4th 799, 806.)

B

The court agreed that the positive home evaluation generated by DIF may be considered new evidence showing a change in circumstances. Jorge, however, does not make a prima facie case showing that a change in Y.'s placement is in her best interests. Establishing the best interests prong of section 388 is more difficult to accomplish when alleged changing circumstances come after reunification services have been terminated. At this point, the focus of the proceedings has shifted from family preservation to providing the minors with a safe, stable and permanent home. (See In re Jasmon O., supra, 8 Cal.4th at p. 420; In reMarilyn H., supra, 5 Cal.4th at p. 309.) Y. currently lives in a stable, loving home with prospective adoptive parents who wish to adopt her and her two older siblings. The siblings share a very strong relationship and severing their relationship is not in the best interests of Y. or her siblings.^[3] The social worker believes that separating the three children at this point in the dependency would result in "great loss." We acknowledge the wish of Y.'s paternal grandparents to care for Y. The paternal grandparents, however, made little effort to establish a relationship with Y. They did not visit her or make efforts to contact the Agency regarding Y.'s status. The

paternal grandparents did receive a positive home evaluation, but additional evidence in the record shows that the home's living conditions had been brought into question. Further, they stated they could not adopt all three siblings. The record does show, however, that Y. has a relationship with her siblings and her caregivers want to adopt all three minors. The overriding inquiry here remains whether the change in placement is in Y.'s best interests; the focus is not on Jorge's or the paternal grandparents' interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 323-324.) Because the facts alleged in Jorge's section 388 petition would not have sustained a favorable decision on the modification petition, Jorge was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at p. 808.)

Jorge further argues that the court erred by failing to apply the relative placement preference under section 361.3 and place Y. with her paternal grandparents in Mexico. With respect to changes in the placement of dependent children, the governing statute is section 361.3, which provides that relatives who request placement of a dependent child are given preferential consideration. ( 361.3, subd. (a).) The statute does not require preferential placement for relatives. Preferential consideration under the statute "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 Sarah S. (1996) 43 Cal.App.4th 274, 286.) Here, the paternal grandparents expressed a wish to care for Y., but it was Jorge who filed the section 388 petition and requested a change in placement, not the paternal grandparents. Section 361.3 thus does not govern the determination of the appropriate placement for Y. (See  361.3, subd. (a).) The only issue in this case is whether the change of placement would be in the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

Even had section 361.3 applied, it only governs in two situations. First is at the dispositional hearing when the child is removed from parental custody ( 361.3, subd. (a)). The second is when "a new placement . . . must be made . . . ." ( 361.3, subd. (d); see also Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) In the second situation, the overriding inquiry is whether the change in placement is in the child's best interests. (See In re Stephanie M., supra, 7 Cal.4th at pp. 320-321.) Here, the disposition hearing had passed and there was no need to change Y.'s placement. Y. was in good health and was doing well in the home of a family who wanted to adopt her and her two siblings. As noted above, it was not in Y.'s best interests to change placement. We conclude the statutory preference given to considering relatives for placement under section 361.3 was not properly at issue.

DISPOSITION

The order is affirmed.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] L. and Jonathan are not subjects to this appeal.

^[3] The juvenile court is required "to consider the existence, nature and impact of a dependent child's sibling relationships on the child's placement and planning for legal permanence." (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 705 (2001-2002 Reg. Sess.) as amended on June 11, 2001, p. 2.) The Legislature emphasizes the importance of "maintaining relationships between a dependent child and his or her siblings." (Id. at p. 1; see also In re Valerie A. (2007) 152 Cal.App.4th 987, 1003.)