In re Alize S

Filed 8/21/06 In re Alize S. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Amber Y. and Robert L., de facto parents to Alize S., appeal an order of the juvenile court denying their modification petition filed pursuant to Welfare and Institutions Code section 388.[1] We affirm.

FACTS AND PROCEDURAL HISTORY

On June 6, 2004, Santa Barbara County Child Protective Services ("CPS") filed a petition on behalf of two-year-old Alize S. Alize's parents were then fifteen years old and unable to provide adequate care for her. In the dependency petition, CPS alleged that Alize's mother left home without permission frequently, Alize's father did not have a stable home, and they were involved in frequent family disputes. (§ 300, subds. (b) & (g).)

The juvenile court ordered Alize detained. CPS placed her in the home of a paternal aunt and her husband, Natalie and Jorge M. The court later sustained the dependency allegations against Alize's parents, continued Alize as a dependent, and ordered CPS to provide family reunification services to the parents.

Alize's parents were unable to complete family reunification services. Alize's mother had psychological problems and became a dependent child during the reunification services period. Alize's father struggled to attend high school, reunification services classes, and remain employed. Overwhelmed, he made only "minimal progress." A CPS social worker evaluated the parents' lack of progress with reunification services and stated: "Both parents are very young and inexperienced teenagers with little or no positive support or direct supervision from their families."

On December 9, 2004, the juvenile court terminated family reunification services to Alize's mother; nine months later, it terminated family reunification services to Alize's father. The juvenile court then set the matter for a permanent plan hearing pursuant to section 366.26.

Alize's Care and Custody

Alize had lived with her paternal aunt and uncle, Natalie and Jorge M., since her detention. Jorge and Natalie were employed, Natalie attended college, and the couple had an infant. At times, Alize became anxious, threw temper tantrums, and could be not comforted. After caring for her for one year, the M. family requested CPS to remove Alize from their care.

On June 8, 2005, CPS filed a supplemental petition requesting the juvenile court to order placement of Alize in a foster home. The juvenile court granted the petition and on June 10, 2005, CPS placed Alize in the "foster-adoptive" home of Amber Y. and Robert L.

Five and one-half months later, CPS abruptly removed Alize from the care and custody of her foster parents without notice. CPS returned Alize to the care and custody of her aunt and uncle at their request. Natalie M. was then working fewer hours and would soon graduate from college. Alize's aunt and uncle had visited Alize during her placement with her foster parents, and regretted their decision to request her removal.

Termination of Parental Rights and De Facto Parent Status

On December 1, 2005, the juvenile court held a permanent plan hearing and concluded by clear and convincing evidence that Alize is likely to be adopted. It terminated the parental rights of Alize's parents.[2]

On December 12, 2005, the juvenile court granted de facto parent status to the foster parents as well as to Alize's aunt and uncle. Thereafter, the foster parents filed a modification petition pursuant to section 388, requesting the return of Alize, or alternatively, contact with her. The foster parents also filed a petition for the disclosure of all records and files pertaining to Alize's dependency. The juvenile court denied their disclosure petition. Following an offer of proof and argument by counsel, it also denied the modification petition. In his ruling, the judge remarked: "This thing is tragic all around. Absolutely tragic. . . . The manner in which the child was removed . . . was improper. . . ."

Amber Y. and Robert L. appeal and contend that the juvenile court erred by: 1) denying the modification petition without an evidentiary hearing, and 2) quashing a subpoena directed to a CPS social worker.

DISCUSSION

I.

The foster parents argue that the juvenile court abused its discretion by denying their modification petition without an evidentiary hearing.

[3] They assert that a return of Alize to their care and custody would promote her best interests. (In re Matthew P. (1999) 71 Cal.App.4th 841, 848-849.) The foster parents rely in part upon letters from Alize's therapist discussing her strong bond with them and expressing concern over her sudden removal. (In re Hashem H. (1996) 45 Cal.App.4th 1791, 1799 [letter from other's therapist supported allegation of changed circumstances].)

The juvenile court possesses discretion to deny summarily a section 388 petition if the petitioner does not provide evidence that a hearing might promote the dependent child's best interests. (Cal. Rules of Court, rule 1432(b); In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) "The court may deny the application ex parte only if the petition fails to state a change of circumstance or new evidence that even might require a change of order . . . ." (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) The petitioner bears the burden of establishing a prima facie case of changed circumstances and the promotion of the child's best interests. (In re Anthony W., supra, 87 Cal.App.4th 246, 250.)

The trial court did not abuse its discretion by denying the foster parents' modification petition without an evidentiary hearing. The modification petition, filed after the section 366.26 hearing, did not present new evidence or changed circumstances such that a change of care and custody would be in Alize's best interests. (In re Marilyn H. (1993) 5 Cal.4th 295, 307 [after termination of reunification services, court must focus upon child's placement and well-being].)

Moreover, section 361.3, subdivision (a), requires CPS to accord "preferential consideration" to placement of a child in the home of a relative. Section 361.3, subdivision (b)(2), provides that an aunt is a relative who "shall be given preferential consideration." Thus, placement of Alize with her aunt and uncle satisfied the statutory preference.

De facto parent status does not confer the rights of a parent or even a legal guardian. (In re P.L. (2005) 134 Cal.App.4th 1357, 1361.) Although a de facto parent has a right to an attorney and to present evidence, he does not have the right to reunification services, custody, or visitation. (Ibid.) "Consequently, [a de facto parent] has no legal standing to complain of the decision to place the child with the new prospective couple since [he] has no right to custody or continued placement as a mere de facto parent." (Ibid.)

Although Alize may have had a strong bond with her foster parents, the juvenile court ruled reasonably by denying the modification petition. There is sufficient evidence that placement of Alize with her aunt and uncle is in her best interests. Alize's aunt and uncle had cared for her for a year and had visited her during the six months her foster parents cared for her. They also receive statutory preference as the custodians of Alize. (§ 361.3.) This is not to say that the foster parents did not also have a strong and loving bond with Alize, or that CPS's act of abruptly removing Alize from their care, without warning, was proper. We are simply concluding that the juvenile court did not abuse its discretion by denying the modification petition. (In re Daniel C. (2006) __ Cal.App.4th ___, ___ [discussing standard of review of post-termination placement].)

II.

The foster parents assert that the juvenile court improperly instructed CPS to ignore a subpoena directed to a CPS social worker. They complain that the juvenile court made the order at an ex parte hearing without notice to them.

During an ex parte hearing at which CPS requested additional time to prepare briefing, the juvenile court remarked: "I would just say ignore [the subpoena]. The only way you can get to the files is through court order, not subpoenas." Consequently, the CPS social worker did not respond to the foster parents' subpoena.

There is no error. The foster parents are complaining of a change of custody that occurred before they received de facto parent status. Moreover, de facto parents have limited rights in dependency proceedings. (In re P. L., supra, 134 Cal.App.4th 1357, 1361.) "While de facto parents are given an opportunity to participate in the proceedings, that status does not give them the rights accorded to a parent or legal guardian." (Ibid.)

The order denying the modification petition is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Arthur A. Garcia, Temporary Judge*

Superior Court County of Santa Barbara

______________________________

Vincent W. Davis for Defendants and Appellants.

Stephen Shane Stark, County Counsel, Laura Ornelaz, Deputy County Counsel for Plaintif and Respondent.

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

[2] Alize's parents do not appeal the order.

[3] To ease the reader's task, we shall refer to Amber Y. and Robert L. as "foster parents," and to Natalie and George M. as "aunt and uncle."

* *(Pursuant to Cal. Const., art. VI, § 21.)