In re Frankie L. CA2/6 ( 2014 )

Filed 1/23/14 In re Frankie L. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re FRANKIE L., a Person Coming 2d Juv. No. B248735
Under the Juvenile Court Law. (Super. Ct. No. JV50690)
(San Luis Obispo County)
SAN LUIS OBISPO COUNTY
DEPARTMENT OF SOCIAL SERVICES,
Plaintiff and Respondent,
v.
V.M.,
Defendant and Appellant.
V.M. appeals the juvenile court's order denying her petition to modify an
order placing her minor grandson Frankie L. with his prospective adoptive parents (Welf.
& Inst. Code,1 § 388). The trial court denied the petition in conjunction with terminating
the parental rights of Frankie's father and ordering a permanent plan of adoption
1 All further undesignated statutory references are to the Welfare and Institutions
Code.
(§ 366.26).2 Appellant contends that she demonstrated changed circumstances and that
placing Frankie with her would be in the child's best interests. She also claims the court
abused its discretion in failing to grant her visitation with Frankie. We affirm.
STATEMENT OF FACTS
When Frankie was born in 2005, he and mother tested positive for drugs.
They moved in with appellant shortly thereafter. Mother continued to use drugs and died
in January 2007. Frankie remained in appellant's custody while father was in prison on a
drug-related charge.
In 2009, Frankie began spending the summer and holidays with father and
his wife; the rest of the year he lived with appellant. In August 2011, appellant took
Frankie without permission from the home of his step-siblings' father, R.L. Father was
subsequently granted full legal and physical custody of Frankie.
On March 6, 2012, a dependency petition was filed alleging that father and
his wife were using drugs and engaging in domestic violence. (§ 300, subds. (b), (g)).
Frankie was placed with R.L., who is considered a non-relative extended family member
(NREFM). Father was granted reunification services and the matter was set for a six-
month review hearing.
In July 2012, the San Luis Obispo County Department of Social Services
(DSS) recommended that appellant be allowed to visit Frankie. Father "admitted that he
had 'slandered' his mother during the early part of the investigation, lied about things in
the past and that none of these things were true. He has indicated several times that he is
no longer interested in participating in Family Reunification services and wishes to have
the child placed with [appellant] . . . as a permanent placement." DSS noted that
appellant had been approved as a potential placement and was "considered a potential
concurrent plan for the child. It is the hope of [DSS] that Frankie can go on a visit and
begin to transition to placement with [appellant] permanently."
2 Frankie's father E.M. (father) is appellant's son. Frankie's mother (mother) is
deceased.
2
At the six-month review hearing, DSS recommended that father's
reunification services be terminated because he had only made minimal progress on his
case plan. Although father still wanted Frankie to be placed with appellant, DSS no
longer supported this plan. Frankie enjoyed his visits with father and appellant, but he
preferred his current placement and was thriving in it. DSS reported that appellant "has a
very difficult time containing her emotions and becomes highly emotional in a very short
period of time. . . . [Appellant] becomes very dramatic when describing a situation that
involves her and [father]. It has been observed that [appellant] attempts to embellish the
circumstances surrounding an event in order that she may appear to be the victim." It
was discovered that appellant and father were engaging in domestic disputes and
"[appellant] has demonstrated having little to no boundaries with her son. [Appellant]
has stated that she is extremely fearful of her son and it appears that he is able to
manipulate her to the point where [appellant] makes poor personal choices." The Court
Appointed Special Advocate (CASA) supported DSS's recommendation.
Notwithstanding DSS's recommendation, the court granted father an
additional six months of services and set the matter for a 12-month review hearing.
Frankie was continued in his placement with R.L.
On October 19, 2012, appellant applied for de facto parent status.3 DSS
opposed the request, which the court denied on November 1, 2012.
On November 7, 2012, DSS filed a form JV-180 request that father's
reunification services be terminated due to arrest for possession of a controlled substance
and a new report of domestic violence against his wife. At a hearing on December 13,
2012, the court terminated reunification services and set the matter for a permanency
planning hearing (§ 366.26) on April 10, 2013.
3 A de facto parent is "a person who has been found by the court to have assumed,
on a day-to-day basis, the role of parent, fulfilling both the child's physical and
psychological needs for care and affection, and who has assumed that role for a
substantial period." (Cal. Rules of Court, rule 5.502(10).) "On a sufficient showing, the
court may recognize the child's present or previous custodian as a de facto parent and
grant him or her standing to participate as a party in the dispositional hearing and any
hearing thereafter at which the status of the dependent child is at issue." (Cal. Rules of
Court, rule 5.534(e).)
3
Appellant filed another request for de facto parent status on December 17,
2012, then withdrew that request on December 27, 2012. On February 14, 2013, Frankie
was placed with his prospective adoptive parents.4 On February 27, 2013, appellant filed
yet another request for de facto parent status. This time, the court granted the request
over DSS's objection. The court told appellant: "[Y]ou probably are aware that Frankie
currently is in a home that . . . [DSS] has been looking to as . . . the permanent plan, for
Frankie. This does not change that, as you know. But it certainly confirms the
relationship that you had with your grandson in the past and the importance that you want
to continue to have and be involved in this case, and that's what I'm granting by way of
this request."
On March 22, 2013, appellant filed a section 388 modification petition
(form JV-180) requesting that Frankie be immediately placed with her. Appellant also
asked the court to order a bonding study. On April 8, 2013, DSS filed a modification
petition requesting that the court discontinue visitation between Frankie and father while
father was incarcerated. The court granted DSS's petition and suspended Frankie's
visitation with father. Appellant's section 388 petition was set to be heard in conjunction
with the section 366.26 hearing.
At the combined section 388 and section 366.26 hearing, DSS opposed
appellant's request that Frankie be removed from the custody of his prospective adoptive
parents and placed with her. The social worker reported that Frankie was doing well in
his placement. The social worker also indicated that she had reassessed appellant as a
possible permanent placement for Frankie. Appellant had ultimately been ruled out as a
placement option based on prior information, the social worker's recent interactions with
appellant, and the social worker's observations of appellant's relationship with Frankie
during their supervised visits. The social worker noted that father claimed appellant
regularly used marijuana and was "neglectful and abusive" when father was a minor.
Although father "has gone back and forth" with regard to whether he wanted Frankie to
4 The prospective adoptive parents are a NREFM and her husband.
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live with appellant, he most recently told the social worker that he wanted Frankie to
remain in his current placement and did not want appellant to be considered as a
placement option. According to appellant, father had "changed his position" again and
wanted Frankie to be placed with appellant.
The social worker also reported that appellant "has made many conflicting
statements/gestures regarding [father]." Although appellant claimed to be afraid of
father, she and father came to a September 2012 hearing together and were holding
hands. Appellant told the social worker "this is a lie," even though the CASA and DSS
staff had observed it. The social worker also referred to instances when appellant
displayed emotionally unstable behavior with DSS staff and CASA. When the social
worker attempted to discuss the case with appellant on two occasions, appellant "became
immediately defensive, angry, and hostile, yelling at [the] social worker and ultimately
hanging up the phone on both occasions." Appellant had also made several inappropriate
calls to the prospective adoptive parents, vacillating from anger and hostility to "crying,
begging and pleading[.]"
The social worker had supervised three visits between appellant and
Frankie. During the first two visits, which preceded Frankie's placement with his
prospective adoptive parents, he seemed happy to see appellant and gave her a hug.
Appellant and Frankie had very little interaction during any of the visits. When appellant
would tell Frankie that she loved and missed him and he did not respond, appellant asked,
"Don't you miss Grandma, too? Don't you still love Grandma?" Appellant spent a
significant portion of the second visit reading her camera manual while Frankie played.
Immediately after the social worker gave a "five-minute warning" indicating that the
visits were about to end, "Frankie took off toward the car and was ready to leave, not
showing any outward signs of distress about the visit ending."
Frankie's prospective adoptive parents brought him to the third visit and
stayed in the park while the visit took place. While they were driving to the visit, Frankie
repeatedly asked them, "You're not going to leave me, right?" and "You're going to stay
at the park where I can see you, right?" When they arrived, Frankie held on to his
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prospective adoptive mother's hand and shook his head when appellant encouraged him
to run up and hug her. When Frankie's CASA arrived near the end of the visit, Frankie
ran to her and gave her a hug. The prospective adoptive parents reported that Frankie
was "irritable and withdrawn" for several days after the visit.
The prospective adoptive parents were initially amenable to allowing
appellant to continue seeing Frankie. As soon as appellant discovered that Frankie was
having visits with the prospective adoptive parents, she began calling the prospective
adoptive mother and her mother, demanding that they stay away from the child. The
prospective adoptive parents decided to bring Frankie to the third supervised visit
because they were hopeful that she would be put at ease if she met them in person.
Instead, appellant continued to make angry phone calls to the prospective adoptive
parents. After the prospective adoptive mother stopped answering appellant's calls,
appellant began calling her at work and on her cell phone. This social worker sent
appellant a certified letter insisting that she initiate no further contact with the prospective
adoptive parents or their parents. As a result of appellant's behavior, the prospective
adoptive parents were "uncomfortable with ongoing and future contact." If appellant was
willing to accept them as part of Frankie's life and maintain appropriate boundaries, they
would be willing to initiate further contact by letter.
The social worker concluded that "[Frankie's] prospective adoptive parents
have not only raised their own two sons, but raised both of Frankie's half-siblings into
adulthood as well. In his current home, he has the opportunity to form and have a
relationship with his brother and sister. Frankie states that he 'loves' his brother and his
sister and he looks forward to the time he spends with them on weekends. Both his
brother and sister are young adults who provide a positive influence in Frankie's life. . . .
They are developing a healthy and supportive relationship that will continue throughout
the rest of their lives. [¶] . . . During a recent private conversation with his CASA
worker, Frankie stated . . . that he is happy in his current home and would like to remain
where he is. His caregivers report that he asks them when it will be May 10. He is aware
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that a court hearing is happening on this date and tells his care providers 'That's when the
Judge is going to decide that I can live here forever and ever!'"
CASA also opposed the petition, noting that "Frankie is thriving in his
current placement in a loving family, which includes regular and frequent contact with
his half-brother and half-sister . . . . Frankie's sister and brother both stated to me that
they believe they were 'saved' by the parents Frankie is now placed with, and that they
were lovingly shown how to live successful and productive lives away from alcohol,
drugs and gangs." CASA stated: "I strongly believe and agree . . . that it is in Frankie's
best interest to remain with, and be adopted by, the family in which he is currently
placed. I firmly believe it would be detrimental to Frankie on social, emotional, physical,
psychological, intellectual, and educational levels to be placed with others currently
vying for him. From what I have been told and observed, [appellant] appears to have
many issues of her own to contend with. From all that I have seen and heard during the
past year, I do not believe she is a good choice to raise Frankie."
Father, who was incarcerated at the time, testified that he wanted Frankie to
be placed with appellant. R.L. testified that Frankie told him he wanted to live with
appellant during the time he was in R.L.'s custody. A friend of appellant's testified that
appellant had been an excellent caretaker of Frankie, even though she was being treated
for cancer part of the time he was in her custody. Appellant also testified on her own
behalf. She claimed to have a taped phone call from March in which Frankie said he
wanted to live with her. She did not recall telling the social worker that she was afraid of
father or that he had tried to rape her.
The adoption worker opined that continued visitation between Frankie and
appellant was not in the child's best interests due to appellant's emotional instability and
her refusal to support his current placement. The adoption worker's attempts to discuss
her concerns with appellant were unsuccessful. Instead of improving, appellant was
becoming even more emotionally unstable. When the adoption worker called appellant
to discuss Frankie's placement or visitation, appellant "immediately gets very angry, lets
me know she's calling her attorney and slams the phone down."
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At the conclusion of the hearing, the court denied appellant's section 388
petition on its findings that appellant had failed to demonstrate either changed
circumstances or that removing Frankie from his current placement would be in his best
interests. The court proceeded to find that Frankie was adoptable, terminated father's
parental rights, and set the matter for a post-permanency planning review. With regard to
visitation, the court noted there was no prior order for visitation; rather, appellant had
been allowed supervised visits as a matter of courtesy. The court decided to "leave them
as courtesy visits at this time" and declined to order any further visitation.
DISCUSSION
Appellant contends the juvenile court abused its discretion in denying her
section 388 petition. She claims she proved that circumstances had changed and that
removing Frankie from the home of his prospective adoptive parents and placing him
with her would be in the child's best interests. She further contends the court abused its
discretion in declining to order visitation between herself and Frankie.
Section 388, subdivision (a)(1), 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 . . . ."
"At a hearing on a motion for change of placement, the burden of proof is on the moving
party to show by a preponderance of the evidence that there is new evidence or that there
are changed circumstances that make a change of placement in the best interests of the
child. [Citations.]" (In re Stephanie M. (1994) 7 Cal. 4th 295, 317 (Stephanie M.).) "[A]
primary consideration in determining the child's best interests is the goal of assuring
stability and continuity. [Citation.]" (Ibid.)
We review the denial of appellant's section 388 petition for an abuse of
discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.) "'The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason. When two or more
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inferences can reasonably be deduced from the facts, the reviewing court has no authority
to substitute its decision for that of the trial court.' [Citations.]" (Id. at pp. 318–319.)
Appellant contends that circumstances had changed in that Frankie's
dependency had progressed to permanency planning and the child had been moved to the
prospective adoptive parents' home in violation of the relative placement preference
mandate of section 361.3. DSS responds that appellant has forfeited the right to invoke
section 361.3 by failing to do so below. Although appellant argued that the relative
placement preference applied, she did not assert that Frankie had been moved to the
prospective adoptive home in violation of that preference. Appellant has thus forfeited
the latter claim. (In re Lorenzo C. (1997) 54 Cal. App. 4th 1330, 1338.)
In any event, appellant fails to demonstrate that section 361.3 applied here.
Section 361.3, which provides that "preferential consideration shall be given to a request
by a relative of the [removed] child for placement of the child with the relative" (at subd.
(a)), initially comes into play at the dispositional hearing. After that hearing, relatives are
entitled to preferential consideration only when the child's existing placement fails:
"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.” (§ 361.3, subd. (d).)
In the early stages of the proceedings, DSS approved appellant as a
potential placement for Frankie and proceeded on the presumption that he would
"transition to placement with [appellant] permanently." DSS subsequently determined,
however, that placing Frankie with appellant would not be in the child's best interests. As
appellant recognizes, "the court denied [her] early request for placement of Frankie,
finding her behavior concerning and her not showing a parental role." That ruling, in the
form of an order denying appellant's request for de facto parent status, was appealable.
(§ 395.) Appellant did not appeal, however. Once the court determined she was not a
suitable placement for Frankie, the relative placement preference no longer applied to
her. (§ 361.3, subd. (d), italics added ["Subsequent to the [dispositional] hearing
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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"].)
Even if the statute did apply, it would not aid appellant. Section 361.3
makes clear that "preferential consideration" does not guarantee preference in placement.
In fact, the statute specifically defines preferential consideration as merely a requirement
"that the relative seeking placement shall be the first placement to be considered and
investigated." (§ 361.3, subd. (c)(1).) DSS reported that appellant had been reassessed
and once again ruled out as a possible permanent placement for Frankie. Ample evidence
supports that conclusion. "Once reunification services are ordered terminated, the focus
shifts to the needs of dependent children for permanency and stability." (In re A.A.
(2008) 167 Cal. App. 4th 1292, 1320.) Notwithstanding the relative placement preference,
the court's fundamental duty "is to assure the best interests of the child[.]" (Stephanie M.,
supra, 7 Cal.4th at p. 321.)
Appellant's petition sought to have the court remove Frankie from a
permanent placement in which he was thriving, one in which he had the best possible
chance for permanency and stability. The factors the court must consider in determining
whether a relative placement is appropriate plainly weigh against the result appellant
advocates here.5 Given the ongoing concerns about appellant's ability to parent Frankie
and the universal indications that the child is thriving in his placement with his
prospective adoptive parents, the court found that the requested change in Frankie's
placement would not be in his best interests. Nothing about appellant's status as Frankie's
5 In deciding whether to place a minor with a relative, the court considers factors
including "[t]he best interest of the child, including special physical, psychological,
educational, medical, or emotional needs" (§ 361.3, subd. (a)(1)); "[t]he nature and
duration of the relationship between the child and the relative, and the relative's desire to
care for, and to provide legal permanency for, the child if reunification is unsuccessful"
(§ 361.3, subd. (a)(6)); and "[t]he ability of the relative to . . . [¶] . . . [p]rovide a safe,
secure, and stable environment for the child[;] [¶] . . . [e]xercise proper and effective care
and control of the child[;] [¶] . . . [p]rovide a home and the necessities of life for the
child[;] [¶] . . . [and p]rotect the child from his or her parents." (§ 361.3, subd. (a)(7).)
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grandmother or his de facto parent undermines this result. (Stephanie M., supra, 7
Cal.4th at p. 321; see also In re P.L. (2005) 134 Cal. App. 4th 1357, 1361 [de facto
parents' limited rights do not include any rights to reunification services, custody, or
visitation].) Appellant's section 388 petition was fully litigated in conjunction with the
section 366.26 hearing. In light of the evidence presented at that hearing, the court did
not abuse its discretion in finding that neither changed circumstances nor Frankie's best
interests warranted that he be removed from the custody of his prospective adoptive
parents and placed with appellant.
Appellant also fails to demonstrate the court abused its discretion in
declining to order visitation. Because the juvenile court "'. . . has been intimately
involved in the protection of the child, . . .'" it is best situated to make custody and
visitation orders based on the child's best interests. (In re Chantal S. (1996) 13 Cal. 4th
196, 206.) The court's broad discretion in determining a minor's best interests will not be
reversed on appeal unless it is shown the court abused its discretion by making an
arbitrary, capricious or patently absurd determination. (Stephanie M., supra, 7 Cal.4th at
p. 318.)
The facts support the court's decision to continue with visitation on a
courtesy basis. In arguing otherwise, appellant urges us to reject inferences that can
reasonably be deduced from the facts in favor of different inferences that support her
position. This we cannot do. (Stephanie M., supra, 7 Cal.4th at pp. 318-319.) The
juvenile court was in the best position to decide issues of visitation, and appellant offers
nothing to demonstrate that its ruling was outside the broad bounds of its discretion.
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Linda D. Hurst, Judge
Superior Court County of San Luis Obispo
______________________________
M. Elizabeth Handy, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rita L. Neal, County Counsel, Leslie H. Kraut, Deputy County Counsel, for
Plaintiff and Respondent.
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