Filed 9/27/17 In re P.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed.

Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant.

Jean-Rene Basle, County Counsel, Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.

C.D. is the maternal grandmother (MGM) of P.M., who was five months old on the date of the challenged order, February 7, 2017. MGM argues the court erred when it: (1) denied her petition under Welfare and Institutions Code section 388[1] asking the court to reverse its disposition order placing P.M. with the prospective adoptive parents and instead place her with MGM; and (2) failed to apply the section 361.3 relative placement preference to her when she requested placement after disposition. We affirm.

Facts and Procedure

More than a year before P.M. was born, in April 2015, her mother’s (mother) seven other children were removed from mother’s care because of mother’s substance abuse, domestic violence, and mental health issues. P.M.’s five half siblings were placed with their father and their dependency case was dismissed in December 2015. P.M.’s two full siblings were placed with MGM in an open guardianship dependency.

P.M. was born in August 2016 and tested positive for amphetamine and methamphetamine. The San Bernardino County Children and Family Services (CFS) placed a hold on P.M. while she was still in the neonatal intensive care unit. On August 25, 2016, the social worker spoke with MGM to ask her if she would take placement of P.M. MGM stated she could not care for another baby and said she had already informed mother of that. The court detained P.M. on August 29, 2016, and found that “[t]here are not relatives able and willing to provide a temporary home for the child.”

In the jurisdiction and disposition report filed on September 13, 2016, CFS recommended no reunification services for mother because she had previously failed to reunify with her seven other children. MGM had placement of P.M.’s two full siblings, then ages one and two, and was in the process of obtaining guardianship. CFS was unable to contact mother or P.M.’s father and MGM also stated she did not know how to contact mother. CFS described mother’s prognosis for reunifying with P. M. as poor. MGM’s ex-husband, the maternal grandfather (MGF), told the social worker he was interested in caring for P.M. However, at the time of the report, he had not provided the social worker with “appropriate identifying information,” so his paperwork could not yet be submitted to the Relative Assessment Unit (RAU). P.M. was still hospitalized because she was having trouble feeding. At the continued jurisdiction and disposition hearing held on October 11, 2016, the court took jurisdiction over P.M., denied reunification services to both her parents, and set a section 366.26 hearing for February 8, 2017. The court found that MGF had “not submitted sufficient identifying information to assess for relative placement. Therefore there are no known maternal/paternal relatives available for a Concurrent Planning home placement.”

CFS filed the section 366.26 report on January 30, 2017. CFS recommended terminating parental rights and selecting adoption as P.M.’s permanent plan. P.M. was placed in a concurrent planning home upon release from the hospital at age three weeks. P.M. was healthy overall, but had “poor weight gain,” and would be referred to a gastrointestinal specialist if she did not improve by the next doctor appointment. P.M. was recovering from the rigidity, tenseness, and aversion to touch that were caused by the prenatal drug exposure. Her caregivers reported she is less frequently rigid and loves to be held and snuggled. At some point,[2] MGM changed her mind and asked to be assessed for placement. MGF must have provided the requested information, because the RAU assessed and approved both homes. MGM had recently moved, so the RAU worker visited the home to assess it for P.M.’s two siblings, and also told MGM she would assess the home for P.M. At that point, MGM told the social worker, “I will take her if I have to.”

MGM had not yet been able to adopt or establish guardianship for P.M.’s two siblings, ages one and two years. At the section 366.26 hearing for the siblings in October 2016, the court chose a PPLA[3] as their permanent plan because CFS had some concerns about MGM’s stability as a placement. The social worker for the siblings made an unannounced home visit and found the family was moving out of their home and into a motel, without having reported this to CFS. When MGM was being evaluated during the beginning of the siblings’ case in November 1995, the worker found a bottle of alcohol on the floor in one of the children’s bedrooms and that MGM’s two teenage daughters were providing daycare for the siblings when MGM was at work. MGM was instructed to place the children in a licensed daycare facility, which she did briefly before having to pull them for having head lice. She enrolled them in a different, home-based day care, but CFS found it was not licensed. After the RAU approved MGM’s home, the social worker called MGM to assess her for placement and adoption of P.M. MGM requested placement of P.M. and stated the siblings’ social worker was in the process of approving her current daycare arrangement by having the adults in that home live scanned. MGM emphasized that she wanted to keep the family together, and when asked how she could care for P.M. in addition to the two young siblings and her own two teenage daughters, she stated, “You just do it.”

P.M.’s social worker contacted the social worker for the siblings regarding MGM’s ability to care for another child. The siblings’ social worker reported concerns with the teenagers providing child care, one of the teenagers co-sleeping with the younger sibling when she was a baby, marginal housekeeping standards, and trouble in getting MGM to schedule medical appointments and follow up with the Screening, Assessment, Referral, and Treatment Program (SART) for the children. Overall, the siblings’ social worker was concerned that MGM was barely meeting the minimal standard of care for the two children. CFS recommended the court not place P.M. with MGM, citing the instability in her current living arrangements, prior lack of appropriate childcare arrangements, concerns about whether she would follow through with medical and mental health recommendations, and the overall difficulty she was already having in caring for P.M.’s two siblings. On January 17, 2017, MGM for the first time requested to visit with P.M. This was arranged for January 27.

On February 6, 2017, MGM and MGF each filed separate but similar petitions under section 388, seeking to have P. M. placed with either themselves or the other grandparent. On February 7, the juvenile court denied each petition without a hearing. For each petition, the court checked the boxes indicating “the request does not state new evidence or a change of circumstances”; “the proposed change or order . . .does not promote the best interest of the child”; and “other,” with the handwritten reason: “The social worker’s report for 2/8/17 explains why placement is not appropriate. Minor is in a concurrent planning home and has been there her whole life since release from the hospital.”

At the section 366.26 hearing held on February 28, 2017, the court terminated parental rights and chose adoption as P.M.’s permanent plan.

This appeal followed. MGF also filed a notice of appeal, but on June 8, 2017, this court dismissed the appeal for failure to file an opening brief.

Discussion

MGM argues the juvenile court erred when it: (1) denied her section 388 petition without a hearing; and (2) found MGM and MGF did not qualify for relative placement under section 361.3 because P.M. was in a concurrent planning home. As a preliminary matter, MGM has cited no authority whatsoever for her assertion that she has standing to challenge the juvenile court’s decision not to place P.M. with MGF. MGM claims that, because she argued in her section 388 petition that P.M. be placed with MGF as an alternative to placement with her, she can challenge on appeal the court’s failure to place P.M. with MGF. This is incorrect. As the appellant, MGM has the burden establish standing, and she has failed to do so. (See In re D.M. (2012) 205 Cal.App.4th 283, 293-294.) We will therefore consider only the arguments MGM makes on her own behalf.

1.Section 388 Petition

“A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. [Citation.] The [petitioner] bears the burden to show both a ‘ “legitimate change of circumstances” ’ and that undoing the prior order would be in the best interest of the child. [Citation.]” (In re S.J. (2008) 167 Cal.App.4th 953, 959.)

A petitioner must have a prima facie showing under section 388 to trigger the right to a hearing. (§ 388, subd. (d); In re Marilyn H. (1993) 5 Cal.4th 295, 309-310; In re Anthony W. (2001) 87 Cal.App.4th 246, 250; Cal. Rules of court, rule 5.570(h).) “ ‘There are two parts to the prima facie showing: The [petitioner] must demonstrate (1) a genuine change of circumstances or new evidence; and that (2) revoking the previous order would be in the best interests of the children.’ ” (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.) A prima facie showing is made if the liberally construed allegations of the petition show both changed circumstances and that the best interests of the child may be promoted by petitioner’s proposed change of order. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431-432.)

A juvenile court’s summary denial of a section 388 petition is reviewed on appeal for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460.) “ ‘ “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” ’ [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) “ ‘The denial of a section 388 motion rarely merits reversal as an abuse of discretion.’ ” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)

MGM asked the court to change its dispositional order placing P.M. in foster care, which resulted in part from the finding that “there are no known maternal/paternal relatives available for a Concurrent Planning home placement.” MGM asserted in the petition that the changed circumstance or new evidence is “[t]he Department of Childrens Services has determined not to place the minor child in relative placement.” This does not appear to us to be a change in circumstances, but rather a CFS decision based on existing circumstances. We agree with CFS that the actual change in circumstances is MGM’s reversal of her initial decision not to accept placement of P.M. However, nothing about the relevant circumstances regarding MGM’s ability to care for P.M. had actually changed, and MGM did not provide information to show that she had addressed the concerns voiced by the social worker regarding the two siblings. MGM continued to care for two teenagers in addition to P.M.’s one-year-old and two-year-old siblings. MGM did not allege in the petition that she had yet obtained stable housing.[4] MGM did not allege that CFS had yet given approval for her childcare arrangements, which is relevant because she had first allowed her two teenagers to babysit while she worked and later placed P.M.’s siblings in nonlicensed daycare, despite being told licensure was a requirement. MGM did not allege how she would be able to provide care to P.M. given that the siblings’ social worker had stated that MGM was barely meeting the minimum standard of care for them, and the court had been unwilling to approve MGM for adoption or guardianship of the siblings at their section 366.26 hearing in October 2016. In short, while MGM did show that she had changed her mind about being willing to care for P.M., she did not make a prima facie case that her ability to care for P.M. had changed for the better since the disposition order, especially given the huge burden she was already shouldering by taking care of her own two teenagers and her daughter’s two toddlers.

We applaud MGM for being willing to care for yet another of her daughter’s children as a means to keep P.M. within the extended family. However, the record shows that the requested change would not be in P.M.’s best interest. First, as described ante, MGM was facing real challenges in caring for P.M.’s siblings, and for this reason had not been able to adopt them or obtain guardianship. In particular, we consider the opinion of the siblings’ social worker that MGM was barely meeting the standard of care for P.M’s siblings. Second, we note that P.M. had since birth experienced difficulty in feeding, was possibly going to need to see a gastrointestinal specialist, and had been assessed for SART services, whereas the sibling’s social worker noted that MGM was lax in meeting the siblings’ needs to schedule medical appointments and participate in SART services. Third, P.M. was placed in a concurrent planning home directly upon being released from the hospital, and by all reports was doing well with that family. In addition, these foster parents were able and willing to adopt P.M. and provide her with a stable and loving home, versus MGM’s home that offered no imminently foreseeable prospect of adoption or even guardianship. We also note that the loving care the foster parents provided to P.M. was helping her to progress in overcoming the rigidity, tenseness, and aversion to touch that were caused by the prenatal drug exposure. Overall, given P.M.’s medical needs, the positive results the concurrent planning family was obtaining for P.M. regarding these needs, and that family’s willingness and ability to adopt P.M., as opposed to MGM’s struggle to provide for P.M.’s siblings’ needs and her inability to adopt or obtain guardianship, we can only conclude that the juvenile court did not abuse its discretion when it denied MGM’s section 388 petition.

2.Relative Placement Preference Under section 361.3.

MGM also argues the court erred when it found she did not qualify for relative placement. As explained post, MGM did not qualify for the relative placement preference because she requested placement after the disposition hearing, and would qualify for the preference again only if P.M. changes placements.

The relative placement provisions in section 361.3 apply when a child is taken from her parents and placed outside the home pending the determination whether reunification is possible. (In re Sarah S. (1996) 43 Cal.App.4th 274, 285.) A relative, who presumably has a broader interest in family unity, is more likely than a stranger to be supportive of the parent-child relationship, and less likely to develop a conflicting emotional bond with the child. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) Where a relative requests placement of a child prior to a dispositional hearing, and the agency does not timely complete a relative home assessment, the relative requesting placement is entitled to a hearing pursuant to section 361.3, without having to file a section 388 petition. (In re Isabella G. (2016) 246 Cal.App.4th 708, 712.) Here, however, MGM initially stated she could not take P.M. because she was already caring for her own two teenagers and P.M.’s one- and two-year-old siblings. MGM later requested placement of P.M., but not until after the disposition hearing. Thus, as explained post, she would next qualify for the relative placement preference when and if P.M. needed to be moved to a new placement.

The relative placement preference also applies to placements made after the dispositional hearing, even when reunification efforts are no longer ongoing, whenever a child must be moved. (§ 361.3, subd. (d); see Cesar V. v. Superior Court, supra, 91 Cal.App.4th at pp. 1031-1032.) Here, P.M. was placed directly from the hospital into a concurrent planning home and her foster parents planned to adopt her. Thus, the preference did not apply because P.M. was not going to move from her current placement.

The juvenile court did not err when it failed to apply the relative placement preference to MGM, because she failed to request placement until after disposition, and the preference would thereafter only apply when and if P.M. needed to change placements.

Disposition

The court’s order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

FIELDS

J.