San Diego Cnty. Health & Human Servs. Agency v. G.W. (In re D.D.)

In re D.D. et al., Persons Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. G.W., Defendant and Appellant.

D077360

COURT OF APPEAL, FOUTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

September 18, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. Nos. EJ4016A-B)

APPEAL from orders of the Superior Court of San Diego County, Marian F. Gaston, Judge. Affirmed.

Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff and Respondent.

Five months after the juvenile court terminated the parental rights of the parents of dependents D.D. and A.D. and selected a permanent plan of adoption for them under Welfare and Institutions Code section 366.26,¹ the children's maternal grandmother, G.W., filed a section 388 petition seeking to modify the prior section 366.26 orders and have them placed with her. Her petition alleged that because the San Diego County Health and Human Services Agency (Agency) removed the children from their initial prospective adoptive home and temporarily placed them with the Polinsky Children's Center (PCC), there had been a change of circumstances since the prior orders and also that it was in their best interests to be placed with her. Finding she had not made a prima facie showing of either changed circumstances or that her proposed order was in the children's best interests, the court summarily denied her section 388 petition.

On appeal, she contends the court: (1) erred by summarily denying her section 388 petition because she made a prima facie showing of changed circumstances and that placement with her was in the children's best interests; and (2) should have applied section 361.3's relative placement preference in considering her section 388 petition or concurrent request for placement of the children with her. We affirm the orders denying her petition.

FACTUAL AND PROCEDURAL BACKGROUND

In 2015, A.D. was prematurely born. She had an older brother, D.D., who was born in 2012. Although A.D. and her mother tested negative for drugs at the time of A.D.'s birth, her mother subsequently reported she had used crack cocaine, methamphetamine, and alcohol two days after she gave birth. Her mother also reported that she had been diagnosed with schizoaffective disorder and bipolar disorder and had not taken hermedications for four months. A.D.'s father reported that he lived in a tent and took medications for bipolar disorder and depression. He tested positive for marijuana use. D.D. and A.D.'s mother and father agreed with the Agency that they would participate in voluntary services while their children were cared for out of their home. D.D. was placed with his maternal grandmother and A.D. was placed in a foster home that could meet her special medical needs. However, their parents subsequently failed to engage in reunification services, did not consistently visit the children, and could not be located by the Agency.

In 2016, the Agency filed section 300 dependency petitions for D.D. and A.D., alleging they had suffered, or were at substantial risk of suffering, serious physical harm or illness because of their parents' inability to provide them with regular care due to mental illness or substance abuse. At their detention hearing, the court found prima facie showings on the petitions' allegations had been made by the Agency, detained the children, and granted supervised visits to their parents. The Agency continued D.D.'s placement with his grandmother and A.D.'s placement in her foster home.

At their jurisdiction and disposition hearing, the court found the petitions' allegations to be true, removed the children from their parents' custody, and ordered that they be placed with a relative.² In its six-month status review report, the Agency stated that their mother had not participated in services and it could not locate their father. Although the Agency had considered placing A.D. with a relative, the maternal grandmother stated she was not interested in caring for A.D. and just wanted to see her and be her grandmother. The grandmother was unable to meetA.D.'s special needs and had attended only one of A.D.'s doctor's appointments. The Agency recommended that the court terminate the parents' reunification services and set a section 366.26 hearing. The Agency further recommended that A.D. not be placed with her maternal grandmother and instead be placed in her specialized foster home.

In her report, the children's court appointed special advocate (CASA) stated that although the maternal grandmother did not work, she took D.D. to daycare Monday through Friday from 9:00 a.m. to 6:00 p.m., and he was the first child to be dropped off and the last child to be picked up. Although his maternal aunt organized a birthday party for him, the grandmother arrived very late. From April 2016 to August 2016, D.D. slept on a sofa at his maternal aunt's home. The grandmother told the CASA that she had been sleeping at her boyfriend's home and he did not want any children living in his home. Also, D.D., at four years old, was still wearing pull-up diapers. The grandmother stated that she would prefer not to care for a child at this stage of her life, but did not want D.D. to go to a foster home. She hoped that his mother would become sober and be able to care for him again.

In October 2016, the maternal grandmother filed a section 388 petition, seeking placement of A.D. with her or placement of both D.D. and A.D. with their maternal aunt.

In its December 2016 addendum to its six-month status review report, the Agency stated that the children's maternal aunt had asked that the children be placed with her. The Agency also recommended that the court grant the children's father an additional six months of reunification services. In January 2017, the court granted the grandmother's section 388 petition and ordered that D.D. and A.D. be placed in an approved home of a relative.

At the contested six-month review hearing, the court terminated the mother's reunification services, ordered additional services for the father, ordered that the children be placed with a relative, and set a 12-month review hearing.³

In its 12-month status review report, the Agency stated that the children had been placed in the maternal aunt's home in January 2017 and appeared to be thriving. Because their father had not participated in reunification services, the Agency recommended that the court terminate his services and set a section 366.26 hearing for the children.

At the contested 12-month review hearing, the court terminated the father's reunification services and set a section 366.26 hearing. The court also continued the children's placement in the approved home of a relative (i.e., the maternal aunt).

In its section 366.26 report, the Agency stated that it believed the children were specifically and generally adoptable, and it recommended that the parents' parental rights be terminated and a permanent plan of adoption be selected for the children. It stated that their current caregiver (i.e., the maternal aunt) had expressed a desire to adopt them. In her report, the CASA stated the children were doing well in the maternal aunt's home and recommended that they remain in their current placement.

At the August 2017 section 366.26 hearing, the court terminated the parents' parental rights and selected adoption as the children's permanent plan.

In September 2017, on the mother's and father's appeals from the juvenile court's jurisdictional and dispositional orders for the children, wereversed the orders, concluding that the Agency had not given the father proper notice and had not complied with the notice provisions of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.), and directed the court to provide proper notice on remand. (In re D.D. (D071771, Sept. 18, 2017) [nonpub. opn.].)

On remand, the juvenile court conducted a new contested jurisdiction and disposition hearing in February 2018, found the petitions' allegations to be true, removed custody of the children from their parents, denied the parents reunification services pursuant to section 361.5, subdivision (b)(1), and set a review hearing. The children continued their placement with an approved home of a relative (i.e., the maternal aunt).

At the new contested six-month review hearing in September 2018, the court found that proper ICWA notices had been given, ICWA did not apply, and the parents had made no progress toward reunification with their children and could not be located. The court set a section 366.26 hearing.

In December 2018, the Agency filed section 387 petitions seeking to change the children's placement from the home of a relative, alleging that their current placement was not appropriate and seeking to place them in foster care. In particular, the petitions alleged that the relative caregiver (i.e., the maternal aunt) had exposed the children to domestic violence in their home and was no longer willing or able to provide adequate care and supervision for them. In its detention report in support of its section 387 petitions, the Agency stated, inter alia, that the maternal aunt had allowed a woman to live in her home with the children and with whom she had a physical altercation in the children's presence. That woman also informed the Agency that she cared for the children about 95 percent of the time. The Agency had temporarily placed the children with the maternal grandmotherand sought an emergency clearance of...