Filed 5/26/21 In re C.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
In re C.C., a Person Coming Under
the Juvenile Court Law.
D078291
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J519821)
Plaintiff and Respondent,
v.
CHARLES AND WENDY C.,
Objectors and Appellants.
APPEAL from an order of the Superior Court of San Diego County,
Browder A. Willis, III, Judge. Affirmed.
Gary S. Plavnick, under appointment by the Court of Appeal, for
Objectors and Appellants.
Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel,
and Tahra Broderson, Deputy County Counsel, for Plaintiff and Respondent.
This is an appeal from an order of the juvenile court denying a petition
to change, modify, or set aside an order of the court previously made
regarding issues of placement of the detained minor, C.C. (Minor). (Welf. &
Inst. Code, § 388; further unidentified statutory references are to this code.)
The petitioners in the juvenile court, Charles and Wendy C., are the
appellants (Appellants) here. At the time of the petition, Appellants were the
Minor’s caretakers and court-approved de facto parents. The denial of their
petition left in effect a general placement order of the juvenile court that
would allow the San Diego County Health and Human Services Agency
(Agency) to place the Minor in a licensed resource home and/or relative’s
home at the Agency’s discretion.
On appeal, Appellants contend that the juvenile court abused its
discretion in denying their petition. More specifically, they contend that the
court’s findings regarding the best interests of the Minor are not supported
by substantial evidence. They further contend that, by ordering a transfer of
the Minor’s placement to certain maternal relatives, the court misapplied the
relative placement preference under section 361.3. As we explain, by ruling
that Appellants did not meet their burden under section 388, the court did
not abuse its discretion in denying Appellants’ petition. As we further
explain, contrary to the premise of Appellants’ presentation on appeal, in
denying Appellants’ section 388 petition, the court did not order the removal
of the Minor from the placement with Appellants or a new placement for the
Minor. Thus, with the knowledge that the Agency was recommending a
transfer of the care to the maternal relatives, the court merely acknowledged
the effect of leaving the Minor’s placement to the Agency’s discretion.
2
Accordingly, Appellants did not meet their burden of establishing
reversible error, and on this basis we will affirm the order denying their
section 388 petition.
I. FACTUAL AND PROCEDURAL BACKGROUND1
The Minor, born in July 2018, is the daughter of C.P. (Mother).2 The
Minor tested positive for amphetamine and methamphetamine at birth, at
which time the Agency detained her and filed a section 300, subdivision (b)(1)
petition for her protection. (See In re Monique T. (1992) 2 Cal.App.4th 1372,
1378 [being “born with dangerous drugs in her body . . . creates a legal
presumption that she is a person described by” § 300, subd. (b)(1)].)
In preparation for the detention hearing, the Agency prepared and
submitted to the court an August 2018 report which disclosed, in relevant
part, that Mother did not provide the names or contact information for any
relatives. At the August 2018 detention hearing, the juvenile court made a
prima facie finding that the Minor was a person described by section 300,
subdivision (b)(1), ordered that she be detained in out-of-home care, limited
Mother to supervised visits, and directed Mother not to breast feed without
medical authorization. As relevant to the issue in the present appeal, the
court expressly found that “there may be relatives available who [are] able
and willing to care for the child” and ordered Mother to disclose to the social
1 We limit our recitation of the facts to those that are relevant to the
issues on appeal, given the standard of review set forth at part II., post.
2 The birth certificate does not identify the father. The record on appeal
discloses two alleged fathers: One was excluded from paternity via genetic
testing; and the other denied paternity.
3
worker all “known identifying information of any maternal . . . relatives of
the child.”
In preparation for the jurisdictional and dispositional hearing, the
Agency prepared and submitted to the court a written report. It advised that
the Minor was being detained in a confidential licensed resource home3 and
recommended that: the court make a true finding on the section 300,
subdivision (b)(1) petition; the Minor be placed in a licensed resource home;
the Minor’s custody be removed from Mother; Mother be provided
reunification services; and Mother receive supervised visitation with the
Minor. The report further disclosed that Mother had enrolled in an intensive
substance abuse outpatient program and had progressed nicely: She drug
tested with negative results, attended treatment sessions in the program,
and participated in Narcotics Anonymous and Alcoholics Anonymous
meetings outside the program.
As particularly relevant to this appeal, the jurisdictional and
dispositional report also disclosed that Devin V., Mother’s sister (Maternal
Aunt), had contacted the Agency in mid-August 2018, less than a week after
the Minor’s detention. In a conversation on August 13, 2018—which was less
than a week after the detention hearing and a little more than two weeks
before the initial jurisdictional and dispositional hearing—the Maternal Aunt
explained to the Agency that she lived in Idaho and that when Mother found
out she was pregnant, Mother moved to Idaho to live with the Maternal Aunt
3 Effective January 1, 2017, the Legislature replaced the former system
of “certifying foster homes” with a new system of “approv[ing] resource
families.” (Legis. Counsel’s Dig., Assem. Bill No. 403 (2015-2016 Reg. Sess.),
Stats. 2015, ch. 773, § 111; see § 16519.5, subds. (a), (c)(5), (q); see generally
§ 16519.5 et seq.)
4
in order to get away from methamphetamine use and an abusive boyfriend
who was dealing methamphetamine. The Maternal Aunt further explained
that she was contacting the Agency because the Maternal Aunt had not
heard from the Mother in more than two months, since June 2018. The
Maternal Aunt was concerned that, due to the Mother’s continued drug use,
the Mother might try to conceal the birth of her baby. Otherwise, the
Maternal Aunt expressed “worr[y]” that “the baby was going to be born on
drugs and . . . taken” by the authorities.
In a telephone call approximately 11 days later, the Maternal Aunt
provided the Agency with some of the Mother’s family background. For
example, their mother had physically and emotionally abused Mother, and
their father and uncle had molested her. In addition, according to the
Maternal Aunt, the Mother was “an addict,” could be “very manipulative,”
and had serious “mental health” issues.
By the time of the October 2018 contested jurisdictional and
dispositional hearing, the Mother was receiving unsupervised visits with the
Minor. Nonetheless, at the October 2018 hearing, the juvenile court found
the petition true, declared the Minor to be a dependent of the juvenile court
under the Agency’s supervision, removed custody of the Minor from the
Mother, and ordered reunification services for the Mother. The court
confirmed the Minor’s (confidential) placement in a licensed resource home.
Two weeks later, pursuant to the Interstate Compact on the Placement
of Children (ICPC),4 the Agency requested a home study for the Maternal
Aunt in Idaho.
4 “The ICPC is a compact among California and other states, the purpose
of which is ‘ “to facilitate the cooperation between states in the placement and
monitoring of dependent children.” ’ ” (In re Suhey G. (2013) 221 Cal.App.4th
5
At the end of the following month, November 2018, the Mother tested
positive for methamphetamine.
During December 2018, because the Minor was “not gaining adequate
weight,” the Agency became “concern[ed]” that the Minor was “not being fed
enough.” Later that month, as part of a medical exam at the emergency
department of the pediatric hospital, the Minor “was found to have a parietal
skull fracture . . . and a 9th posterior rib fracture” that the attending child
abuse expert determined to be “non-accidental.” That same day, the Agency
removed the Minor from the care of the resource parents, placing her
temporarily at the Polinsky Children’s Center. The following week, the
Agency placed the Minor in a new resource home.
In preparation for the section 366.21 six-month review hearing in early
April 2019, the court received reports from the Agency and the Minor’s court-
appointed special advocate. In the new placement, “all of [the Minor’s] needs
[we]re being met”: She was “doing well in the [new] home” and “appeared to
be bonded and responsive to the resource parent.” The Mother attended
unsupervised visits, and the Minor was always happy to see her. The Mother
successfully completed her drug treatment program, tested negative at all
times since the November 2018 incident, and transitioned to aftercare. She
also completed a parenting class, maintained two jobs, found a place to live,
purchased a car, and had a support network.
Meanwhile, in February 2019, the Maternal Aunt participated (with
the Mother, Agency representatives, counselors, and one of the resource
parents) in a child and family team meeting for the Minor. In March 2019, in
732, 742.) In California, the ICPC can be found at Family Code section 7901.
The version in effect at the time of the Agency’s actions in this case can be
found at Statutes 2014, chapter 144, section 13 (eff. Jan. 1, 2015).
6
response to the Agency’s October 2018 ICPC request, the Agency received “a
preliminary relative home study” for the Maternal Aunt from the Idaho ICPC
worker. Prior to the six-month review hearing, the Agency advised the court
that, if the Mother is unable to reunify with the Minor, the Mother “would
like placement with [the Maternal Aunt] once the ICPC is approved.”
A little over a week after the six-month review hearing in April 2019,
the Maternal Aunt’s home in Idaho was approved for the Minor’s placement.
Nonetheless, at the review hearing, the juvenile court found that, because the
extent of Mother’s progress “ha[d] been substantial,” there was a “substantial
probability” that the Minor would be returned to the Mother’s custody.
Accordingly, rather than pursue the ICPC placement, the court ordered
additional reunification services for the Mother and authorized overnight
visitation for a trial period.
Toward the end of May 2019, the Mother and the Maternal Aunt
attended another child and family team meeting—this time to discuss
reunification. The drug counselor reported that the Mother “had made
‘incredible progress[,]’ met all her goals, and was in compliance with [the]
treatment program.” Following this meeting and the court’s order at the six-
month review hearing, on June 1, 2019, the Mother started a 60-day
overnight trial visit with the Minor.
However, the Mother tested positive for methamphetamine on June 27,
2019; and on July 8, 2019, she was discharged from the recovery services
program she had been attending. By the end of July 2019, the Mother failed
to pass at least four drug tests: She did not show for one; she presented a
diluted specimen at another; and she tested positive for methamphetamine at
two. Accordingly, the Agency terminated the overnight visitation, picked up
the Minor, placed the Minor with a new resource family, and petitioned the
7
court for an order that the Mother’s visitation revert to supervised daytime
visits.
Appellants were the new resource family, and they received the Minor
on July 30, 2019. On August 13, 2019—i.e., within the first two weeks of this
placement—the Agency expressly advised Appellants both that the Maternal
Aunt had previously requested the Minor’s placement and that the Agency
was in the process of updating the ICPC request in support of a placement
with the Maternal Aunt in Idaho.
In mid-August 2019, at an expedited hearing on the Agency’s request
for an order, the juvenile court considered the prima facie showing, found
that the best interests of the Minor required a change in the visitation order,
and ruled that the Mother could have supervised visitation pending an
evidentiary hearing. At the conclusion of the contested evidentiary hearing
in early October 2019, the court granted the Agency’s petition—finding that
the changed circumstances and Minor’s best interests required that Mother’s
visitation of Minor be “reverted to supervised”—and confirmed the date the
following week for the section 366.21 12-month review hearing.
The day before the 12-month review hearing, the Maternal Aunt
contacted the Agency. The Mother had just informed her that the Agency
was recommending a termination of services. The Maternal Aunt was “upset
that her niece would potentially be ‘adopted out’ to foster parents” and
“unhappy with the Agency and the decision to place [the Minor] back with
[the Mother].” The Maternal Aunt stated that she “wanted custody of [the
Minor] and would do whatever it took to have [the Minor] placed with her in
Idaho.”
At the initial 12-month review hearing in October 2019, the Agency
recommended termination of reunification services. Mother opposed the
8
Agency’s recommendation, and requested a trial on the issues of termination
of services and the potential placement of the Minor with the Maternal Aunt.
The Mother indicated that she had the proper contact information for the
Maternal Aunt, and the Agency indicated that, since the prior ICPC request
had expired, the Agency would initiate a new one. The court set November
2019 dates for a pretrial status conference and the contested 12-month
review hearing.
Approximately a month later, the Agency received documentation that
the ICPC request had been received in Idaho. Less than a week later—i.e., at
a time when Appellants had been caring for the Minor for three and a half
months—the Agency discussed with Appellants the potential placement of
the Minor “with maternal relatives.” Appellants “did not agree,” objecting to
a placement with a person the Minor had never met and questioning why the
maternal relatives had not reached out earlier. Appellants indicated that
they wanted to adopt the Minor and that they possibly would be filing for
status as de facto parents.
At the contested 12-month review hearing in late November 2019, the
juvenile court terminated the Mother’s reunification services and set a March
2020 date for the section 366.26 selection and implementation hearing
(“section 366.26 hearing”).5 The Agency reported that it had resubmitted the
ICPC request, and that the Mother and the Minor each requested—and that
5 The basis of the court’s ruling was the Mother’s continued drug use.
Speaking directly to the Mother, the court complimented her on her short-
term successes with sobriety and explained: If, during the four months until
the section 366.26 hearing, “you have a good period of time where you can
show the court and the Agency that you’re going to remain sober,” then “I
think you may have a chance of reunifying with your child eventually.”
9
the Agency agreed to provide—ongoing notice of both the status of the ICPC
request and the decision whether the Minor was going to be moved.
In mid-December 2019, the Maternal Aunt and her husband moved to
Kansas, because he had been hired for a six- to 12-month job. The Maternal
Aunt again indicated that she wanted the Minor placed with her, expressly
requesting that the Agency submit an ICPC request to Kansas for placement
with her in Kansas. A week or so later, the Agency arranged video visits
between the maternal relatives and the Minor; and by the beginning of 2020,
Appellants agreed to facilitate weekly video visits.6 Prior to the first video
visit, Appellants continued to “express concern” about the possible placement
of the Minor with the Maternal Aunt, since the Maternal Aunt and her family
were “ ‘strangers’ to [the Minor]” who failed to reach out earlier in the case.
More specifically, Appellants were “concerned with [the Maternal Aunt’s]
intentions and effort in engaging in a relationship with [the Minor].”
Days after the first video visit in early January 2020, the Agency
submitted, and the juvenile court approved, a request for an expedited ICPC
evaluation of the Maternal Aunt’s home in Kansas.
About a week later, the Mother again told the Agency that she wanted
the Minor placed with the Maternal Aunt.
During the first week of February 2020, Appellants submitted, and the
juvenile court granted, a request for de facto parent status.
6 Between December 20, 2019 and November 6, 2020, the Maternal Aunt
and her family failed to participate in 34 of the 84 visits that they and
Appellants had prearranged. More specifically, during the April 27 –
June 17, 2020, time period, neither the Maternal Aunt nor her family
participated in any of the scheduled visits.
10
Later that month, the Maternal Aunt contacted the Agency to request
in-person visits with the Minor, and by the end of the first week in March
2020, the Maternal Aunt had attended approximately five such visits.
During and after one of these visits, the Maternal Aunt reaffirmed to the
Agency her family’s commitment to adopting the Minor, including protecting
the Minor from the Mother if necessary; and Appellants reaffirmed to the
Agency their concern over the Maternal Aunt’s intentions. At a child and
family team meeting in between the Maternal Aunt’s visits, the Maternal
Aunt and Appellants repeated both their respective desires to adopt the
Minor and their respective concerns with how the dependency proceedings
had progressed. At this meeting, the Maternal Aunt disclosed her family’s
intent to return to Idaho and expressed her worry that the move would
prolong the placement process. Following the five in-person visits, the
Agency’s social worker who had observed the visits reported about them in
detail, concluding that each was positive. In the same report, the social
worker commented that, in more than 40 of the video visits, the Maternal
Aunt’s husband and their child (i.e., the Minor’s uncle and cousin,
respectively) participated and that the Minor recognized and engaged freely
with all three of them.
In preparation for the initial section 366.26 hearing, the Agency
submitted a report and an addendum. In both, the Agency recommended a
60-day continuance for the Agency to determine the most appropriate
permanent placement plan for the Minor. At the initial March 2020 hearing,
on its own motion, the juvenile court continued the section 366.26 hearing
until mid-July 2020, pursuant to the COVID-19 pandemic and related
emergency or general orders.
11
By late April 2020, the Maternal Aunt had returned to Idaho, and at
the Agency’s request the court had ordered an expedited ICPC evaluation of
the Maternal Aunt’s home. By the time of the continued section 366.26
hearing in mid-July 2020, Idaho had delivered the preliminary home study to
the Agency, and the Maternal Aunt and her family had completed their ICPC
home study evaluation.
Between May and mid-July 2020, Appellants reported to the Agency
their concern over the number of times the Maternal Aunt (and family)
missed scheduled virtual visits with the Minor—including having no contact
between May 2 and June 17. (See fn. 6, ante.) The Agency followed up with
both the Maternal Aunt’s family and Appellants. The Maternal Aunt’s family
members told the Agency the reasons they were unable to participate in the
video visits.7 Appellants told the Agency about: their “multiple ‘concerns’
with the [Mother’s] relatives”—including, but not limited to, the belief that
“the maternal relatives were ‘liars’ and had not been ‘upfront’ about certain
information”; and their feelings that the assigned social worker “ ‘does not
care’ and just says, ‘Thanks for the information.’ ” In June 2020, Appellants
complained to the Agency that the maternal relatives had been joining the
Mother (who had relocated to Idaho but was not living with them) in her
video visits with the Minor.
Approximately a week before the continued section 366.26 hearing in
mid-July 2020, the Agency submitted an addendum report in which it
attached copies of notices of the section 366.26 hearing (on selection of a
7 These reasons included the move back to Idaho, a confidential medical
condition, and the difficulties in getting telephone and internet service in the
remote part of Idaho where they lived.
12
permanent placement plan) and proofs of service, re-noticing the parties that
the Agency was recommending termination of parental rights and
implementation of a plan of adoption. Two days later, the Agency filed an
additional addendum report, recommending a 60-day continuance of the
section 366.26 hearing “to determine the most appropriate permanent plan
and placement for [the Minor],” explaining that “the ICPC for Idaho
continues to assess the [M]aternal [A]unt for placement.” At the continued
section 366.26 hearing, the Agency requested another 60-day continuance;
and over an objection by Appellants, the court continued the hearing until
mid-September 2020.
Approximately a month later, in mid-August 2020, Appellants filed a
section 388 petition to change or modify the court’s general placement order.8
More specifically, Appellants sought a full hearing on the issue of the Minor’s
placement, requesting (instead of the general placement) an order for a
specific placement with them. In part, the petition alleged:
“[Appellants] are informed and believe that the Court made
a general placement order which would allow for the Minor
to be placed in a foster home and/or relative home at the
discretion of the [Agency]. This order would allow for the
[M]inor to be moved by the Agency to the home of a relative
without a Court hearing.”
“[Appellants’] attorney was informed that the ICPC of the
[M]aternal [A]unt and uncle has been approved and that
the Agency is undertaking an analysis to determine the
8 Section 388 provides in relevant part: “Any parent or other person
having an interest in a child who is a dependent child of the juvenile court . . .
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 court previously made[.]” (§ 388, subd. (a)(1).)
13
appropriate placement of the [M]inor as between the home
of the relatives or [Appellants].”
“That [Appellants] be granted a full hearing on the issue of
placement and that the [M]inor not be moved from the
home of [Appellants] . . . until the issue of placement, as
between [Appellants] and the maternal relatives, can be
fully heard by this Court.”
In support of their petition, Appellants argued that the Minor’s best
interests would be served by the continued placement with Appellants.
Factually, Appellants explained: During the first year of her life, the Minor
had multiple placements prior to being placed with Appellants; Appellants
were “the only parental figures that [the Minor] has ever known”; and the
Minor has developed a sibling relationship with the other child in Appellants’
household. Legally, Appellants contended: Although section 361.3 gives
preferential consideration to a relative who requests placement of a child
removed from parental custody, the preference applies only at the
dispositional hearing or thereafter when a new placement of the child must be
made; and there is no need for a new placement for the Minor in the present
case.9
In response, the juvenile court issued an order advising the parties that
the court would consider Appellants’ section 388 petition at the continued
section 366.26 hearing in mid-September 2020. In preparation for the
hearing, the Agency submitted two additional addenda to its March 2020
section 366.26 report. In the first, the Agency recommended that the Minor
9 Section 361.3 provides in relevant part: “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 . . . .”
(§ 361.3, subd. (a).)
14
be placed with the Maternal Aunt and her family in Idaho. In the second, the
Agency recommended that the court terminate parental rights and order a
permanent plan of adoption for the Minor.
At the September 2020 hearing, the court granted Appellants’ request
for an evidentiary hearing on their section 388 petition, expressly finding
that Appellants had made the requisite prima facie showing. The court
denied the Agency’s request (with which the Mother and Minor agreed) that
the Minor be placed with the Maternal Aunt pending resolution of the
section 388 petition and the section 366.26 hearing. The court set dates for a
pretrial status conference and a November 2020 contested hearing on the
section 366.26 hearing (which necessarily would include Appellants’ § 388
petition).
At the November 2020 contested hearing, the parties agreed, and the
juvenile court ordered, that they would proceed first with the placement issue
raised in Appellants’ section 388 petition. At the hearing, Appellants
presented testimony from the primary social worker, Appellants’ expert, and
the de facto mother (one of Appellants). The court admitted into evidence
more than a half dozen exhibits, including the Agency’s most recent
addendum report and Appellants’ expert’s written report and curriculum
vitae. After consideration of the social worker’s credentials, the court ruled
that it would consider the content of the addendum report as expert opinion
evidence. After the direct testimony from Appellants’ expert, the court ruled
that he was qualified and that his testimony was received as expert opinion
evidence.
15
In summary, Appellants’ expert explained about a child’s attachment to
a parent;10 how the multiple placements the Minor experienced during her
first year of life (the most recent being with Appellants, with whom she had
lived for approximately 15 months by the time of the contested hearing at
issue) adversely affected her ability to attach; Appellants were meeting the
Minor’s needs; the Minor had developed a “secure attachment” to each of
Appellants; how separation from Appellants (and the other young child in
their household) would be traumatic for the Minor, adversely impacting her
ability to form personal relationships in the future; biology does not affect
attachment; and, importantly, because of the Minor’s young age, “an ability
to finalize an adoption with [Appellants] outweigh[ed] the risk of taking a
chance on a new placement . . . and not finalizing adoption for another year
or more by the time she’s four or five.” Accordingly, the expert opined, it was
not in the Minor’s best interests to be moved to the Maternal Aunt’s home at
that time.
The Minor, the Mother, and the Agency all acknowledged that
Appellants had provided a warm loving home for the Minor, who was thriving
under their care.11 During closing argument, the Minor, through her
guardian ad litem, recognized that she “formed an attachment with
10 According to the expert, “Attachment is a neuro biopsychosocial
connection from the child to the parent based on meeting the basic
dependency needs of the child over the first three, or four, five years of life,
and it forms the pattern . . . for all future relationships.”
11 Nonetheless, the Agency, the Minor, and the Mother all opposed
Appellants’ section 388 petition, instead supporting the Agency’s
recommendation that the Minor be placed with the Maternal Aunt’s family
in Idaho.
16
[Appellants],” that “[Appellants have] done a great job raising [her],” and that
“if [Appellants] were to adopt her, . . . they would continue to be doing a great
job.”12 Likewise, the Mother “agree[d] the [Minor has] received wonderful
care from [Appellants].” Finally, the Agency acknowledged that “[Appellants]
have provided [the Minor] with excellent care” and they “love [her] very
much.”
Despite the foregoing, legally the Agency focused on section 361.3,
subdivision (a)’s requirement that the court give “preferential consideration
. . . to a request by a relative of the child for placement of the child with the
relative.” The Agency emphasized that the Maternal Aunt requested that the
Minor be placed with her as early as August 2018, prior to the jurisdictional
and dispositional hearing, and consistently throughout the proceedings.
At the close of argument, the court took the matter under submission
and set a further hearing the following week, at which time the court would
issue its oral ruling. At a hearing on November 18, 2020, the court denied
Appellants’ section 388 petition and ordered the Agency to start the
transition process for the Minor’s placement with the Maternal Aunt
(November 2020 Order). The court also set a December 2020 date for the
section 366.26 hearing.
On November 30, 2020, Appellants filed this appeal from the November
2020 Order.13
12 Nonetheless, the Minor’s guardian ad litem argued, whatever trauma
the Minor might suffer from a new placement with the Maternal Aunt would
be outweighed by the benefits of being placed with family.
13 An order denying a section 388 petition to modify a prior order of the
juvenile court is appealable under section 395, subdivision (a)(1). (In re K.C.
(2011) 52 Cal.4th 231, 235-236.)
17
II. DISCUSSION
In the juvenile court, Appellants, as the petitioners in the section 388
proceedings, had the burden of proof. (In re Cliffton B. (2000) 81 Cal.App.4th
415, 423.) On appeal, we presume the November 2020 Order is correct; and
Appellants, as the appealing parties, have the burden of establishing
reversible error here. (In re S.R. (2020) 48 Cal.App.5th 204, 206, fn. 1.)
We review the denial of a section 388 petition for an abuse of discretion.
(In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.) [§ 388 petition to
change placement]; In re J.C. (2014) 226 Cal.App.4th 503, 525 [§ 388 petition
to change custody and vacate § 366.26 hearing].) Where, as here, the juvenile
court exercises its discretion in a dependency proceeding, “ ‘ “a reviewing
court will not disturb that decision unless the trial court has exceeded the
limits of legal discretion by making an arbitrary, capricious, or patently
absurd determination.” ’ ” (Stephanie M., at p. 318; see id. at pp. 318-319
[“ ‘The appropriate test for abuse of discretion is whether the trial court
exceeded the bounds of reason.’ ”].)
A.
Appellants argue on appeal that the juvenile court erred “when it
removed [the Minor] from [Appellants’] care as there was absolutely no
showing that removal and/or the change of placement was in her best
interests.” However, this appeal is not from an order removing the Minor
from Appellants’ care.
As the juvenile court expressly ruled—which Appellants quote in their
opening brief—in denying Appellants’ section 388 petition, the court merely
left in place an “order granting discretion to the Agency to place [the Minor]
with [the] Maternal Aunt without further court hearings” and scheduled the
continued section 366.26 hearing. The court’s general placement order is not
18
before us; our review is limited to the court’s November 2020 Order denying
the request to change or modify the general placement order.
B.
As Appellants acknowledge in their opening brief, section 361.3
“provides the relatives [of the dependent minor] with only the right to have
their home considered as a placement prior to the consideration of non-
relative homes.” (Quoting § 361.3, subd. (c)(1) [“ ‘[ “]Preferential
consideration[”] means that the relative seeking placement shall be the first
placement to be considered and investigated.’ ” (Italics omitted.)].) To the
extent section 361.3 was at issue, the juvenile court ruled only that the
statute applied in this case. The court based this ruling on the finding that
“the Maternal Aunt has been present, at least as far as the desire for
placement is concerned, and that the ongoing communication, while
disrupted at one or two points, is a clear indication of a proper expression of a
desire to provide for [the Minor].”14
Very simply, by acknowledging the Legislature’s statutory directive
that “preferential consideration” be given to a relative’s request for placement
of the minor (§ 361.3, subd. (a)), the juvenile court did not abuse its discretion
in denying Appellants’ section 388 petition to change or modify the existing
14 The court’s finding of the Maternal Aunt’s presence or participation in
the proceedings is supported by substantial evidence. At the detention
hearing on August 9, 2018, the court found that “there may be relatives
available who [are] able and willing to care for the child.” In fact, just four
days later, the Maternal Aunt contacted the Agency, explaining her concern
over the Mother’s molestation while growing up, her pregnancy, her drug use,
and her recent disappearance. Eleven days after that, the Maternal Aunt
again contacted the Agency, this time expressing her concern that, regardless
of the Mother’s difficulties, the Minor receive what is best for her.
19
order that allowed for the placement of the Minor at the Agency’s discretion.
Stated differently, the juvenile court’s decision to deny Appellants’
section 388 petition based on the application of a statute to a factual situation
for which the statute was enacted neither exceeded the bounds of reason nor
was arbitrary, capricious, or patently absurd.
C.
In their opening brief, Appellants raise only a substantial evidence
challenge to the November 2020 Order. They rely on authority for the
proposition that, in authorizing a change in a detained minor’s placement,
substantial evidence must support the finding that the change is in the
minor’s best interests. (Citing In re M.M. (2015) 235 Cal.App.4th 54, 64.)
However, our determination whether the juvenile court abused its discretion
does not, in the context of the present appeal, allow for substantial evidence
review. That is because, contrary to Appellants’ presentation—and the
factual background in M.M. (id. at p. 56 [order of removal at the § 366.26
selection and implementation hearing])—the order on review does not direct
either a removal or a change in placement based on the minor’s best
interests. For this reason, we are unable to, and thus reject Appellants’
suggestion that we, conduct a substantial evidence review of “the juvenile
court’s finding that the change is in the minor’s best interests.” (Citing M.M.,
supra, 235 Cal.App.4th at p. 64.) Whereas such a finding may be required
when the court orders a new placement (id. at p. 60 [e.g., § 366.26 hearing]),
no such finding is required in a section 388 proceeding at which the court
denies a requested change of an existing placement order.15
15 Likewise, most of Appellants’ other authorities are inapposite, since
they involved appellate review of a juvenile court order following proceedings
to determine the placement of the minor. (E.g., Stephanie M., supra, 7
20
Here, we are reviewing an order that keeps in place an existing order
which established the Agency’s discretion in the general placement of the
Minor. Where, as here, the court’s ruling is, in effect, that the parties with
the burden of proof did not carry their burden, “ ‘it is misleading to
characterize the failure-of-proof issue as whether substantial evidence
supports the judgment.’ ” (In re K.S. (2016) 244 Cal.App.4th 327, 340 [denial
of request for dismissal of a § 388 petition]; compare ibid. [consideration of
substantial evidence may apply to appellate review of an order granting a
request to dismiss a § 388 petition].)
Although the juvenile court denied Appellants’ request that the general
placement order be modified or changed, we recognize that the November
2020 Order provides that “[t]he Agency is to start the transition process for
the minor’s new placement with [the] maternal aunt and uncle.” However,
we do not read that provision as directing either a removal or a new
placement for the Minor. That is because the statement at issue follows both
(1) the Agency’s recommendation that, at the section 366.26 hearing, the
Minor be placed with the Maternal Aunt and her family in Idaho, and (2) the
following exchange at the conclusion of the hearing, which left the Minor’s
placement to the discretion of the Agency and set the section 366.26 hearing:
“[Appellants’ counsel]: If somebody could contact me at
the appropriate time with respect to any transition
discussion, I would appreciate it, your Honor.
Cal.4th 295 [motion for change of placement]; In re M.H. (2018) 21
Cal.App.5th 1296 [motion for change of placement]; In re N.M. (2011) 197
Cal.App.4th 159 [in declaring minor a dependent of the court, court ordered a
placement for minor]; In re Shirley K. (2006) 140 Cal.App.4th 65 [court
challenge to agency’s placement of minor].)
21
“The Court: The Agency is directed to begin the process.
I want to see that plan as well.”
Read in context, the court merely acknowledged the Agency’s discretion to
effect its recommended placement with the Maternal Aunt—pending the
continued section 366.26 hearing.
Neither Appellants’ section 388 petition nor anything that came up at
the contested hearing on the petition called on the court to order a new
placement. To the contrary, by setting a date for the continued
section 366.26 hearing at the conclusion of Appellants’ section 388 hearing,
the court essentially ruled that it would consider issues related to the Minor’s
permanent placement at the continued hearing based on the section 366.26
criteria.
D.
In their reply brief, Appellants assert that the relative placement
preference provided in section 361.3 does not apply in this case, because
subdivision (d) limits its application to “ ‘whenever a new placement of the
child must be made’ ” after the section 358 dispositional hearing. (Quoting
§ 361.3, subd. (d).)16
As an initial consideration, by raising this argument for the first time
in their reply brief, Appellants forfeited appellate review of this argument.
16 Section 361.3, subdivision (d) provides in full: “Subsequent to the
hearing conducted pursuant to Section 358, whenever a new placement of the
child must be made, consideration for placement shall again be given as
described in this section to relatives who have not been found to be
unsuitable and who will fulfill the child’s reunification or permanent plan
requirements. In addition to the factors described in subdivision (a), the
county social worker shall consider whether the relative has established and
maintained a relationship with the child.” (Italics added.)
22
(In re Daniel M. (2003) 110 Cal.App.4th 703, 707, fn. 4 (Daniel M.).) In any
event, even if we were to reach the merits, the result would be no different.
As Appellants acknowledge, the statutory limitation on which they rely
applies, if at all, only when a new placement of the child must be made.
(Quoting § 361.3, subd. (d).) As we explained ante, however, at the time of
the hearing on Appellants’ section 388 petition, the Minor did not require a
new placement, and in fact the November 2020 Order did not effect a new
placement.
E.
In their reply brief, Appellants also argue that, because of the Maternal
Aunt’s multiple moves and lack of consistent contact with the Agency, “the
maternal relatives gave up their right to assert the relative placement
preference set forth in section 361.3.” Again, Appellants have forfeited
appellate review of this issue, since they failed to raise it until their reply
brief. (Daniel M., supra, 110 Cal.App.4th at p. 707, fn. 4.) In addition,
Appellants forfeited appellate review of the issue by not raising it, in the first
instance, in the juvenile court during the section 388 proceedings. (In re
Samantha H. (2020) 49 Cal.App.5th 410, 413.)
To the extent Appellants contend that their objections in the juvenile
court regarding the Maternal Aunt’s inconsistency in visitation preserved the
issue of waiver on appeal, the juvenile court impliedly rejected a finding of
waiver of section 361.3’s relative placement preference. In its oral ruling on
Appellants’ section 388 petition, the court noted that, although “the missing
visits [wa]s an issue,” such evidence was not an “indicat[ion] that the
[maternal] relatives lack[ed] the ability to provide permanency or stability
and continuity or security or love or anything of that nature or to overcome
past, present, or future trauma.” (See also fn. 14 and related text, ante
23
[Maternal Aunt’s participation in the proceedings “is a clear indication of a
proper expression of a desire to provide for [the Minor]”].)
F.
Based on our review of the entire record, we have found no reason to
question or dispute the following statement from the juvenile court’s oral
ruling denying Appellants’ section 388 petition: “All parties agree that the
home of [Appellants] is a healthy environment. The evidence is clear that
[the Minor] is thriving in that environment and has . . . created a secure and
long-lasting attachment.” Thus, our ruling today no doubt adds further
disappointment to Appellants, who have done nothing wrong; to the contrary,
based on the record in this appeal, they have succeeded in providing
everything that is asked of resource parents.
Nonetheless, as we have explained, given the scope of the section 388
petition and the lack of a court-ordered change in placement, Appellants’
provision of care to the Minor is not at issue. The standards the juvenile
court and this court are to apply have been established by the Legislature;
and the job of the courts is to apply the law as written, not to come up with
the least disappointing ruling.17
17 The rulings in this opinion are limited to this appeal from the
November 2020 Order and to the proceedings on Appellants’ section 388
petition that resulted in the order. Nothing in this opinion is intended to
express a view as to the outcome of any future juvenile court proceedings in
which the removal of, or a new placement for, the Minor is at issue.
24
III. DISPOSITION
The November 2020 Order is affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O’ROURKE, J.
25