Opinion
F076209
05-24-2018
In re TAYLOR S. et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. LARRY S. et al., Defendants and Appellants.
Larry S., in pro. per., for Defendant and Appellant Larry S. Jeanette S., in pro. per., for Defendant and Appellant Jeanette S. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 517753, 517754)
OPINION
THE COURT APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Larry S., in pro. per., for Defendant and Appellant Larry S. Jeanette S., in pro. per., for Defendant and Appellant Jeanette S. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Meehan, J.
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Appellants Larry and Jeanette S. are the maternal grandparents of Taylor S. and W.S., now eight- and one-year-old, respectively. In June 2017, while the children were dependents of the juvenile court, appellants filed a modification petition (Welf. & Inst. Code, § 388) seeking placement of the children and increased visitation. The juvenile court granted appellants' request as to visitation but declined to consider placement because they had not completed the application process. Appellants in propria persona contend the court erred in not considering their request for placement. We affirm.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL BACKGROUND
In October 2016, the Stanislaus County Community Services Agency (agency) was informed that Tanya, the children's mother, gave birth to W.S. and admitted using methamphetamine the night before the delivery and for the previous four to five years. She was overwhelmed at the prospect of caring for another child. Thomas, the children's father and a methamphetamine user, had an arrest warrant for a drug-related charge. He was arrested while Tanya was in the hospital and left then seven-year-old Taylor in Larry's care.
Taylor told the investigating social worker his parents often argued and his father choked his mother in his presence. While discussing the domestic violence in his home, he showed signs of emotional distress such as pulling his hair and hitting his forehead with his hand. Larry agreed to care for Taylor while Thomas was incarcerated and Tanya was in the hospital.
The following day, the social worker obtained a protective warrant after Thomas, who had been released on bail, got into a verbal argument with Tanya at the hospital and Tanya left the hospital, stating she did not want the baby. The agency was initially unable to locate Taylor but found him at his parents' home three days later and took him into protective custody. When his parents tried to hug him, he pushed them away and said to his father, "You are such an idiot." He later explained he was tired of his father hurting his mother. He also said he went with Larry because the police were trying to find him and take him to jail. Taylor told the social worker Larry took him to a store and he had to hide his face and body so no one would recognize him.
The agency filed a dependency petition on behalf of both children, alleging parental failure to protect, which the juvenile court sustained. The court ordered reunification services for the parents and set the six-month review hearing for June 8, 2017. The court also ordered the grandparents one supervised visit a month for one hour. The agency placed the children together in foster care and, in November 2016, the placement specialist sent appellants a letter concerning placement. Apparently, they responded and were denied for reasons not explained in the record.
Appellants visited the children monthly beginning in January 2017. Taylor was very excited to see them when they arrived for the January visit. He ran out of the visitation room to hug them and did not want to leave them when the visit ended.
In April 2017, appellants scheduled a meeting with social worker Phil Reilly to discuss why their request for placement was denied. Larry stated he and Jeanette wanted more visits with the children before they adopted them and asked how they could begin the adoption process. Reilly explained placement preceded adoption and their request for placement was denied in November 2016. When Reilly tried to explain the reasons for the denial, Larry became contentious and physically threatening and the meeting was terminated.
By June 2017, neither parent had complied with their court-ordered reunification services or visited the children on a regular basis. Consequently, the agency recommended in its report for the six-month review hearing that the juvenile court terminate reunification efforts. In early June, the children's foster parents gave the agency a seven-day notice after Taylor punched his fist through a glass window at school and said he wanted to kill himself. He also said he wanted to find an electrical breaker so he could electrocute himself. The foster parents did not believe they could give him the care he needed.
In June 2017, two days before the six-month review hearing, appellants filed a statement informing the juvenile court they were Taylor's foster parents in 2011 and cared for him for five of his seven and one-half years and were prepared to adopt both children.
Taylor was a dependent of the Santa Cruz County juvenile court from June 2011 to October 2012.
On June 8, 2017, the juvenile court convened but continued the six-month review hearing for a week and set it as a contested hearing. That same day, appellants filed a petition under section 388 (section 388 petition) requesting placement of the children or unsupervised and overnight visitation pending placement. As changed circumstances, they alleged they were living in an adult community when the children were detained and therefore were not able to assume custody of them at that time. However, they had since moved into a new home where the children could reside with them. They also alleged Taylor lived in their home for more than five years and detailed the many ways in which they were involved with his life and development.
Appellants filed a "Request to Change Court Order" on form JV-180. Section 388 authorizes the filing of such a petition and provides statutory guidelines for the juvenile court in rendering its decision.
On June 13, 2017, the juvenile court conducted the six-month review hearing. Neither parent personally appeared and no evidence was presented. Before the court issued its rulings, there was discussion about appellants' section 388 petition. County counsel advised the court that appellants' request for placement was premature because they had not submitted an application and been deemed eligible through the "RFA" process. The court appointed special advocate (CASA) told the court she had a "gut feeling" appellants would not be an appropriate placement for the children explaining, "I just met the grandfather, and he's very intense. I mean, like he was sitting there talking, and he was breaking out in a sweat." Minors' counsel added, "I think there's been some issues with the grandparents with some volatile behavior.... [¶] Plus, I do believe the grandparents also hit the children for a period of time ..., but ... that's something to look into. We first have to see if they pass the RFA process ...." The court terminated the parents' reunification services and set a section 366.26 hearing in October 2017. Neither parent filed an extraordinary writ petition.
According to respondent, "RFA" stands for Resource Family Assessment.
On June 15, 2017, the juvenile court scheduled a hearing on appellants' section 388 petition. However, in a handwritten note on the court order form (JV-183), the court limited the scope of the hearing to the issue of visitation stating, "[The c]ourt will not make any orders [regarding] placement change. Relatives must go through the RFA process as to placement."
The JV-183 is a preprinted form entitled, "Court Order on Form JV-180, Request to Change Court Order."
The juvenile court conducted the hearing on appellants' section 388 petition on June 28, 2017. Appellants appeared with retained counsel who advised the court appellants had a significant relationship with Taylor and believed it would be in his best interest to preserve that relationship. County counsel and minors' counsel did not believe it was appropriate to increase the frequency of visits but supported increasing the duration of the monthly visit from one to two or three hours. Appellants' attorney stated the agency could have placed the children with appellants when it removed them from the foster parents, prompting the court to inquire whether appellants completed the RFA process. Jeanette replied, "We are fingerprinting." Larry replied, "No." The court granted appellant's section 388 petition and ordered one visit a month for three hours.
On August 24, 2017, appellants filed a section 388 petition, asking the juvenile court to place the children in their custody. As changed circumstances, they alleged they began the RFA process on or about June 30, 2017, and were on track to complete the process. They completed the pre-approval training classes, health and tuberculosis screening, live-scan fingerprinting, and submitted the Department of Motor Vehicle report, income verification. and character references. In addition, the caseworker performed a walk-through of their home. As to how placing the children with them served the children's best interest, they alleged it would provide the children the happiness and security they deserved.
The juvenile court denied appellants' section 388 petition without setting a hearing and explained in writing on form JV-183, "There is no change of circumstances indicated since the court denied the same request on June 15, 2017."
On August 25, 2017, appellants filed a notice of appeal from the order issued on June 28, 2017.
Respondent contends the appealable order was the juvenile court's form JV-183 dated June 15, 2017, limiting the hearing on the section 388 petition to visitation. Since appellants did not timely appeal from that order, respondent argues, their notice of appeal is untimely. We conclude appellants sufficiently raised the issue of placement at the June 28, 2017, hearing to permit an appeal on that issue from the juvenile court's order of the same date. Their attorney argued the agency could have placed the children with them upon their removal from the foster home and the juvenile court responded by inquiring whether they completed the RFA process. Since appellants' notice of appeal was timely filed from the June 28 hearing, we will address the merits.
DISCUSSION
Appellants contend the juvenile court erred in not considering placement at the June 28, 2017, hearing on their section 388 petition. They claim the court was aware they had started the RFA process but did not allow them to complete it and did not consider the RFA results. They assert that they completed the RFA process and the recommendation was that they receive custody of the children. They object to the CASA's statement that Larry was "intense and sweated a lot" and minors' counsel's statement that they demonstrated "volatile behavior" and "hit the children." They believe they are entitled to a hearing to reply to the false accusations they hit Taylor.
We begin with the placement issue. The problem with appellants' claim that the juvenile court erred in not considering placement is that they failed to show they were eligible for placement on or before the hearing on June 28, 2017. Consequently, the juvenile court was not required to consider it, as we now explain.
Appellants requested placement by filing a section 388 petition on June 8, 2017. Section 388 allows a person having an interest in a child who is a dependent of the juvenile court to petition for a hearing to change, modify, or set aside any order of the court previously made. The petitioner must establish by a preponderance of the evidence that new evidence or changed circumstances exist and the proposed change would promote the best interests of the child. (§ 388, subd. (a).)
In this case, the juvenile court excluded placement from its consideration of appellants' section 388 petition because it was aware appellants had not completed the RFA process. In effect, the court found appellants had not established changed circumstances with respect to their eligibility for placement. Therefore, the court could not consider it and appellants and their attorney knew that going into the hearing. During the hearing, appellants' attorney attempted to raise the issue of placement and appellants were forced to admit they still had not completed the RFA process. Consequently, the court cannot be faulted for not considering placement when appellants failed to show their placement status had changed.
Nevertheless, appellants, citing In re Isabella G. (2016) 246 Cal.App.4th 708 (Isabella G.), contend the juvenile court was required to consider their placement request. As here, Isabella G. involved grandparents seeking custody of a grandchild and a section 388 petition. However, the case is distinguishable on a critical point—the grandparents in that case were approved for placement by the hearing on their section 388 petition and were asking for relative placement preference under section 361.3. (Isabella G., at pp. 715-717.)
Section 361.3, subdivision (a) requires the juvenile court to give preferential placement consideration to statutorily defined "relatives." --------
In Isabella G., the grandparents repeatedly sought placement of the child without success after she was placed in protective custody. After the court terminated reunification services, the grandparents filed a section 388 petition and the court ordered an evidentiary hearing. Meanwhile, their home was approved for placement. At the hearing on the petition, the juvenile court declined to give them relative placement preference pursuant to section 361.3 and applied the caregiver adoption preference under section 366.26, subdivision (k). (Isabella G., supra, 246 Cal.App.4th at pp. 711-712.) The appellate court concluded the juvenile court erred in not giving preferential placement to the grandparents' request for placement. (Id. at p. 723.)
Here, appellants had not satisfied the basic requirement for placement by completing the RFA process. Consequently, they were not in a position to assume custody of the children, nor was the court in a position to grant it. Further, to the extent appellants were subsequently approved for placement, as they allege in their appeal, nothing precludes them from seeking placement of the children. However, this court cannot consider such evidence, even if true, because it happened after the juvenile court rendered its decision and this court can only review evidence that was before the court at the time it made its decision. Consequently, the court did not err in not considering placement or the RFA results at the hearing in question.
Finally, with respect to the statements by CASA and minors' counsel, we concur with respondent that the word "hit" was a transcribing error and the intended word was "hid." There is no evidence that appellants hit the children. There is, however, evidence they hid Taylor from the agency. Whether CASA's observation of Larry (i.e. intense and sweaty) were accurate is irrelevant to the ultimate issue in this case, which is whether the juvenile court erred in not considering placement. For all the reasons set forth above, we find no error and affirm the judgment.
DISPOSITION
The order is affirmed.