In re Madison T. CA4/1

• Court: California Court of Appeal
• Decided: April 17, 2014
• Docket: D064709
• Status: Unpublished

Opinion

Filed 4/17/14 In re Madison T. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 MADISON T., a Person Coming Under the Juvenile Court Law. D064709 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. CJ001094) Plaintiff and Respondent,

v.

KELLY S.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Ronald F.

Frazier, Judge. Affirmed.

Neil R. Trop, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and

Respondent. No appearance for Minor.

Kelly S. appeals an order denying her Welfare and Institutions Code1 section 388

petition for modification seeking placement of her daughter, Madison S., with nonrelative

extended family members. Kelly contends the court abused its discretion in finding that

she did not show it was in Madison's best interests to be placed with the nonrelative

extended family members. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2012, Madison became a dependent of the juvenile court under

section 300, subdivision (b), and was removed from her parents' custody pursuant to

section 361, subdivision (c)(1).2 The court placed Madison in licensed foster care and

ordered reunification services for Kelly S. (mother).

From September 2012 to March 2013, Kelly participated in case plan services.

However, in March 2013, she was discharged from the residential substance abuse

treatment center for not complying with program rules. Kelly relapsed several weeks

later while awaiting acceptance into a new residential recovery program.

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

2 Kelly suffered Chronic Paranoid Schizophrenia, was not under the care of a psychiatrist, had been noncompliant with her prescribed medication, and admitted smoking marijuana during her pregnancy. At birth, Madison tested presumptively positive for marijuana and Kelly admitted smoking marijuana during pregnancy. Nine days later, Madison stopped breathing and was admitted to the hospital for treatment. Kelly exposed Madison to domestic violence by her boyfriend in the hospital room when Madison was receiving treatment.

2 In April 2013, the San Diego Health and Human Services Agency (Agency)

reported its intention to evaluate the Victorville home of Madison's paternal aunt,

Suzanne T., for placement. Suzanne was also caring for Madison's half sister, K. T.

Kelly stated she did not want Madison placed with Suzanne because Suzanne did not

have experience raising children and because Kelly worried she would be unable to visit

Madison if she was placed in Victorville.

In May 2013, Kelly was admitted into a new residential substance abuse treatment

center, but was discharged on the same day because she did not get along with the other

residents. Three days later, the Agency conducted a Team Decision Meeting to

determine Madison's placement. The Agency concluded that, in addition to Suzanne's

home, it would evaluate the home of nonrelative extended family members (NREFMs)

Stephano and Rosario B., where Madison's other half sibling, Kaylie, resided.

In June 2013, Kelly filed a section 388 petition to modify the court order placing

Madison in licensed foster care. The petition alleged, as changed circumstances, there

were concerns regarding Madison's care in the foster home, and the home of the

NREFMs had subsequently been approved for Madison's placement. In addition, the

petition alleged it would be in Madison's best interests to live with the NREFMs because

they were prepared to meet her developmental needs and she could reside with her half

sister, Kaylie.

The Agency cleared the homes of both the NREFMs and Suzanne for Madison's

placement, and both families stated they would like to adopt Madison if reunification

with Kelly was unsuccessful. With respect to Suzanne, the Agency was concerned about

3 Kelly's objection to placement with Suzanne and possible visitation issues because of the

travel distance to Victorville. However, Suzanne stated she would provide weekly

supervised visitation for the parents and they could have additional visits if they traveled

to Victorville. Suzanne presented a safety plan for Madison and stated that if the parents

arrived at her home unannounced, she would ask them to leave and call the police if they

refused to comply.

With respect to the NREFMs, the social worker expressed concern they would not

be as protective as Suzanne, be unable to set clear boundaries with the parents regarding

visitation with Madison, and put Kelly's needs over Madison's. Stephano admitted he

would take Kaylie downtown with him to look for the parents. In addition, there had

been prior referrals between Kelly and Rosario for domestic violence and drug use, and

Kelly and Stephano had filed dual restraining orders against each other in the past. When

asked what he would do if Kelly arrived at the house or acted inappropriately, Stephano

stated he would try to calm Kelly down, ask her to leave, and get in his car and drive off

if she would not leave.

A Court Appointed Special Advocate (CASA) accompanied Madison on several

visits with each family. During Madison's visit with Kelly and the NREFMs, the CASA

reported the stroller and toys brought by the NREFMs were dirty and covered in grime.

She also noted Rosario did not hold or talk to Madison, but rather told other people what

to do with her. Further, Madison's half sister, Kaylie, was distant and not affectionate

with Madison. During the visit, Kelly took Madison away from the group and forcibly

picked at Madison's nose until she began crying. When Suzanne visited with Madison,

4 the CASA reported Suzanne was very affectionate with her, brought clean toys and baby

equipment for her, and interacted with her throughout the entire visit. The father, Jason

T., made no effort to visit Madison.

During the reunification period, Kelly refused to enter residential treatment, did

not attend several scheduled visits, and arrived at one visit with visible marks on her body

that she alleged occurred when Jason's girlfriend beat her up. Kelly expressed to the

social worker that she did not want to reunify with Madison and wanted the NREFMs to

adopt her. The Agency recommended reunification services be terminated for both

parents and Madison be placed with Suzanne.

On July 30, 2013, the court held an evidentiary hearing on Kelly's section 388

petition. After considering the evidence and arguments of counsel, the court denied

Kelly's section 388 petition. The court found a change of circumstances existed, but

Kelly did not meet her burden of proof in showing placement with the NREFMs was in

Madison's best interests. The court ordered placement of Madison with Suzanne,

terminated reunification services for both parents, and scheduled a hearing under section

366.26 to select and implement a permanent plan for Madison.

DISCUSSION

A. Standard of Review

We review the grant or denial of a petition for modification under section 388 for

abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D.

(1999) 70 Cal.App.4th 38, 47.) To modify an existing court order, the petitioner must

show, by a preponderance of the evidence: (1) there is a change of circumstances or new

5 evidence; and (2) the modification will promote the child's best interests. (§ 388; Cal.

Rules of Court, rule 5.570(e)(1); In re Justice P. (2004) 123 Cal.App.4th 181, 188-189;

In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) The primary goal in determining the

child's best interests is to assure stability and continuity for the child. (In re Stephanie M.

(1994) 7 Cal.4th 295, 317.) The denial of a section 388 motion rarely merits reversal as

an abuse of discretion. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)

B. Analysis

Kelly contends the court abused its discretion by denying her section 388 petition

to modify the existing court order and place Madison in the home of the NREFMs. She

contends evidence showed the proposed modification was in Madison's best interests

because it would allow her to reside with her half sister Kaylie, stay connected with her

extended family, and maintain her family identity.

Kelly contends the social worker was unable to articulate any legitimate reason for

her concerns about placement with the NREFMs. This contention is unpersuasive. At

the hearing, the social worker specifically testified as to her concerns about placing

Madison with the NREFMs. She testified the NREFMs were not able to set clear

boundaries with Kelly and went out of their way to help the parents despite Kelly's

refusal to attend substance abuse treatment and her cancellation of visits. The social

worker expressed her concern the NREFMs would put the parents' needs before

Madison's, as evidenced by their poor judgment in taking Kaylie downtown to search for

Madison's homeless father after suspecting he had broken a window at their home. In

addition, the social worker testified she was concerned the NREFMs would take Madison

6 downtown with them, allow Madison to have unsupervised contact with Kelly, and would

be unable to safely take Madison from her parents if they attempted to take her.

The social worker further testified Suzanne was the preferred placement for

Madison because she appeared more protective of Madison, was willing to draw strict

boundaries with the parents, and could remove Madison from dangerous situations. The

record also shows Suzanne presented a safety plan and visitation schedule for Madison

and her parents, evidenced her willingness to remove Madison from any situation if the

parents appeared intoxicated, and said she would immediately call the police if Madison's

parents showed up to her home unannounced. Moreover, in her report, the CASA

observed that, unlike the NREFMs, Suzanne brought clean baby equipment and toys for

Madison and interacted with her throughout the entire visit. Considering all observations

and factors presented, the social worker testified placement with Suzanne was in

Madison's best interests.

Kelly further contends the presence of Kaylie with the NREFMs is a pivotal factor

separating their home from Suzanne's home. Although placement with siblings in the

same home is one factor considered by the court, the court must consider all factors to

determine the best interests of the child. (§ 361.3, subd. (a).) As previously noted,

several factors led the social worker to determine it would be in Madison's best interests

to be placed with Suzanne. Although Kelly contends Madison and Kaylie have cultivated

a relationship through weekly visits during the course of the dependency, the CASA

reported Kaylie appeared unaffectionate and distant from Madison. In addition, Kelly

disregards the presence of Madison's other half sister, K., in Suzanne's home.

7 The court is bound to consider all of the circumstances before it in rendering a

judgment or order. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) Based on

the evidence presented, the social worker's testimony, and counsel's arguments, we

conclude the court properly considered all of the relevant factors in determining it was in

Madison's best interests to be placed with Suzanne. We also conclude the court did not

abuse its discretion in finding Kelly did not meet her burden to prove placement with the

NREFMs, rather than Suzanne, was in Madison's best interests.

Kelly next contends the relative preference provisions of section 361.3 are not

applicable in this case. She argues relative placement is only mandated on the initial

removal from parental custody at the dispositional hearing or at a later stage of the

dependency action when a new placement must be made. (§ 361.3, subd. (d).) However,

the relative status of Suzanne under section 361.3 is not at issue in this case. Although

the court gives relatives preferential treatment in the placement of a dependent child, the

court must consider all factors enumerated in section 361.3, subdivision (a), to determine

the best interests of the child. As previously noted, the court considered all of the

evidence and testimony presented at the evidentiary hearing before deciding to place

Madison with Suzanne, a decision we conclude was a proper exercise of its discretion.

Finally, Kelly contends, and the Agency concedes, the statutory requirement that

review of an order made pursuant to section 366.26 is sought by petition for

extraordinary writ is not applicable in this case. The statute provides that if a party is

present when the order is made, the court shall orally advise the party of the requirement

to file a petition for extraordinary writ review within seven days. (§ 366.26, subd.

8 (l)(3)(A); Cal. Rules of Court, rule 8.450 (e)(4)(C).) Here, the court did not advise Kelly

of the writ requirement if she wished to challenge any of the court's findings or orders.

Therefore, the Agency and Kelly agree Kelly has properly sought review in this case by

way of appeal.

DISPOSITION

The order is affirmed.

McDONALD, J. WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.