Opinion
A156956 A157053
03-23-2020
In re W.B., a Person Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. E.J., Defendant and Appellant; R.R., Intervener and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. JV180134)
The Humboldt County Department of Health & Human Services (Department) removed minor W.B. from her then-current placement in the home of nonrelative extended family member (NREFM) R.R. and filed a petition under Welfare and Institutions Code section 387 (387 petition). E.J. (Mother) and R.R. opposed the 387 petition, and R.R. filed a petition for modification under section 388 (388 petition) and a request for de facto parent status. The juvenile court sustained the 387 petition and denied the 388 petition and R.R.'s request for de facto parent status.
All further statutory references are to the Welfare and Institutions Code.
On appeal, Mother and R.R. challenge the sufficiency of the evidence supporting the 387 petition and removal of W.B. from R.R.'s custody. Mother and R.R. further contend the juvenile court abused its discretion when it denied the 388 petition and R.R.'s request for de facto parent status. We conclude sufficient evidence supported the 387 petition, and the Department was not required to make reasonable efforts to avoid removal. We further conclude Mother lacked standing to challenge the order denying the 388 petition and, in any event, the juvenile court did not abuse its discretion in finding placement with W.B.'s sibling's grandmother to be in her best interests. While we find the juvenile court erred in denying R.R. de facto parent status, such error was harmless. Accordingly, we affirm the orders.
I. BACKGROUND
Mother has an extensive child welfare history, with 18 referrals and 11 investigations, many of which relate to substance abuse and which resulted in the removal of three of her children. In January 2018, while pregnant with W.B., Mother tested positive for methamphetamine at a prenatal appointment. Mother did not attend any subsequent appointments after the healthcare provider informed Mother she would be drug tested at future appointments. Following W.B.'s birth, Mother informed the hospital staff she had not used drugs since January 2018, but acknowledged a hair follicle test would " 'be dirty.' " W.B. tested positive for methamphetamine and amphetamine at birth. The Department took W.B. into protective custody based on concerns regarding the parents' unaddressed drug use.
The father also has a history of substance abuse. However, we focus on the allegations regarding Mother because the father is not a party to this appeal.
The Department filed a section 300 petition on W.B.'s behalf. The petition alleged the parents were aware of each other's drug use, they failed to protect W.B. from exposure to methamphetamine in utero, and W.B. tested positive for methamphetamine and amphetamine at her birth. The petition also alleged Mother had her parental rights terminated as to two of her older children, A.M. and J.D., due to homelessness, substance abuse, and mental health issues, and Mother has not made progress in addressing the issues that led to A.M. and J.D.'s dependency case.
At the detention hearing, the court found the father's sister not suitable for placement, and vested the Department with authority over W.B.'s placement. The Department placed W.B., at Mother's request, with one of her close friends, R.R.
The Department filed a jurisdiction report asserting the parents will continue to use, and expose the minor to, methamphetamine and be unable to provide adequate supervision. The report also outlined Mother's extensive child welfare history, noting the past allegations of general neglect, substance abuse, and sexual abuse allegations, and Mother's failure to reunify and the termination of her parental rights as to J.D. and A.M. Following a contested hearing, the court sustained the petition and set the matter for a dispositional hearing.
The Department subsequently submitted a disposition report in advance of the hearing. At the time of the report, W.B. was still residing with R.R. The report noted Mother loves W.B., had community support, obtained employment, and expressed a willingness to complete inpatient treatment. Because Mother was required to have supervised visits and was waitlisted for visits at the Family Connection Center, the Department agreed R.R. could supervise visits. R.R. represented she would be comfortable ending visits if Mother was unsafe or under the influence, and the Department requested a log of all visits documenting date, time, and length of visit, and recommended a set schedule of two hours twice per week. While the report explained the court is not required to offer reunification services to Mother based on the termination of her parental rights to J.D. and A.M., the Department recommended reunification services be provided.
Following a contested dispositional hearing, the court adopted the recommendations of the Department. Specifically, the court ordered "the care, custody, and control of the minor to be vested" with the Department and authorized placement in the home of a suitable relative or NREFM. It also ordered visitation "[a]s stated in the case plan." The case plan stated Mother "will be offered a minimum of two visits per week for two hours with [W.B.]. Time, manner and place of the visits will be at the discretion of the social worker." A. The 387 Petition
Prior to the six-month review hearing, the Department filed the 387 petition to remove W.B. from R.R.'s care. The 387 petition alleged W.B.'s placement with R.R. was "n[o] longer effective in providing for the protection and safety of the child" because R.R. "allowed [Mother] unauthorized access to the child . . . and state[d] she is not able to have any boundaries with [Mother] and is unable or unwilling to protect the child from [Mother]." The Department's report in support of its petition asserted R.R. "had been allowing [Mother] to visit at [R.R.'s] home for long periods of time. This visitation was not approved by the social worker. . . . [Mother] admitted to sleeping on the couch at the home of [R.R.] and being there in the morning to help get the children ready for school. [R.R.] indicated that she had difficulty in establishing and maintaining boundaries with [Mother]." At the time of the report, Mother had relapsed and stopped participating in substance abuse services. Mother acknowledged using methamphetamine and drinking alcohol, and gave positive drug tests on multiple occasions. The report also noted Mother had been arrested after an incident of domestic violence with the father, during which she had been consuming alcohol.
All parties submitted on the petition, and the court found continued residency with R.R. was contrary to W.B.'s welfare and reasonable efforts were made to prevent such removal. The court again ordered "placement, care, custody, and control" of W.B. to be vested with the Department. The Department placed W.B. with a local resource family home because no other relative or NREFM homes were available.
It is unclear whether R.R. was informed of this hearing. In any event, we note R.R. neither attended nor participated in the hearing personally or through counsel.
The Department's jurisdiction/disposition report in connection with the 387 petition and a six-month status review report detailed the grounds for removing W.B. from R.R.'s care. Those reports noted, beginning in late October 2018, the visitation supervisor often picked up W.B., Mother, and the father together from R.R.'s home. Following an incident of domestic violence between the parents, a social worker met with R.R. R.R. informed the social worker she "had been relying on [Mother] as a support in parenting the children" and "she believed that she and [Mother] were co-dependent." R.R. also stated she had allowed Mother to use her vehicle, which resulted in it being impounded because Mother did not have a valid driver's license.
Following that conversation, the social worker instructed R.R. to stop supervising Mother's visitation because of Mother's relapse and the domestic violence incident. R.R. agreed to do so. However, R.R. then allowed Mother to visit W.B. and spend the night at her house. The day after the social worker's conversation with R.R., Mother informed the social worker she was at R.R.'s house, she had been there all day, and acknowledged spending the night at R.R.'s house. Mother reported she had been going over to R.R.'s house three or four times per week to assist R.R. in getting Mother's older children ready for school. She stated R.R. enjoys her presence as a parent to provide support for the older children. The six-month status report noted R.R., when interviewed about the allegations, stated she was ill, "did not know that [Mother] was in her home and that [Mother] had slept on her couch," and "could not recall for certain who turned over the care of the baby to her on the night in question." The Department concluded R.R. "violated the written directive of being Responsible for Providing Care and Supervision and she violated the written directive of Cooperation and Compliance."
The Department concluded Mother presented a risk to the physical health of W.B. because of the unsupervised visitation. The Department further determined R.R. was not a "safe and suitable placement" because of R.R.'s "lack of boundaries with [Mother], her admitted co-dependent relationship with [Mother], and her choice to violate orders of the Court and directions from the social worker by allowing [Mother] unsupervised access to the child." Accordingly, the Department explained, it removed W.B.
Shortly before the section 387 jurisdiction/disposition hearing, Mother filed an "At Issue Memo" asserting her unauthorized contact with W.B. was insufficient to sustain the 387 petition and requested that it be denied.
The Department filed a response to Mother's at issue memo. It argued R.R., as part of the resource family approval (RFA) process, "took several classes and signed an agreement that she would not provide unauthorized contact with the child to either parent." Based on R.R.'s actions, the Department indicated it is taking steps to revoke R.R.'s RFA certification. The Department thus argued R.R. would no longer qualify as an RFA caretaker, so R.R. would need to seek another form of benefits for W.B.'s care.
At the contested jurisdiction hearing, R.R. testified she has cared for W.B. since the minor was two days old, and Mother is one of her best friends and someone she considers a "sister." R.R. testified she was originally authorized to supervise visits, which would occur two to three times per week and last anywhere from a few hours to the full day. R.R. acknowledged she was asked to stop supervising visits following the parents' domestic violence incident, but allowed Mother to come to her house, spend the night, and assist with the children in the morning. In doing so, however, R.R. denied she placed Mother's issues above the needs of W.B. When asked about her codependent tendencies, R.R. stated, "I love this woman, and I have gone above and beyond to make sure that she's okay. And I have further seen that I have maybe hindered her road to recovery by being too helpful." R.R. stated she no longer has a codependent relationship with Mother because she has stopped being overly helpful, and has been involved in Al-Anon, grief support, therapy, and church. R.R. stated she would be willing to deny Mother access to the children if necessary.
Mother also testified at the hearing regarding R.R.'s bond with W.B. and the impact on W.B. following her removal. Mother stated W.B. had become more sullen and withdrawn since being removed from R.R.'s home. Mother testified she only slept at R.R.'s house once and would follow any limitations imposed by the Department.
R.R. also called a witness, who testified regarding R.R.'s skills as a mother. The witness stated R.R. was compassionate, understanding, and patient with the children. The witness further testified R.R. would never allow a dangerous person around her children.
Following argument of counsel, the court found the 387 petition true by clear and convincing evidence. The court also expressed concern that R.R.'s conduct was detrimental to both W.B. and Mother because Mother did not feel the need to engage in services because she had "backdoor" access to W.B. The court continued disposition on the 387 petition so the parties could submit additional information regarding placement options.
The Department subsequently submitted an addendum report to address placement. The Department noted its RFA unit determined R.R. "violated written directives" and was taking legal steps to revoke her certification. Once the RFA certificate is revoked, R.R. would not eligible to receive funding through the State Department of Social Services. Accordingly, the Department supported a permanent plan of adoption in the home of W.B.'s half siblings so they could grow up together. The Department further stated it was against visitation with R.R. because W.B. had made a smooth transition to her current foster placement and, as the Department did not intend to return W.B. to R.R., visitation would create confusion for W.B. B. The 388 Petition and De Facto Parent Request
Prior to the section 387 jurisdiction/disposition hearing, R.R. filed the 388 petition seeking to return W.B. to her custody. R.R. acknowledged her mistake and that she "blurred the lines a bit when it came to [Mother] helping me with the kids" and had "co-dependent tendencies." However, R.R. asserted, "The source of the problem has been removed and I have set safeguards to ensure that it doesn't happen in the future. . . . I am standing up and making positive changes, such as therapy and rededicating myself to the 12 steps of Alanon." R.R. discussed her love for W.B. and provided numerous letters in support of her petition. R.R. also requested the court designate her as W.B.'s de facto parent.
The Department filed a response to the 388 petition. It discussed its subsequent conversations with R.R. regarding W.B.'s removal, including R.R.'s acknowledgement of her error and her comment "that she 'expected to get a warning' for allowing [Mother] unapproved access to the child and did not 'realize that the consequences would be so severe.' " The response also repeated the information contained in the Department's jurisdiction/hearing report for the 387 petition and its six-month status review report. C. Addendum Reports to the Six-month Status Review Report
The Department filed two addendum reports to its prior six-month status review report. Both reports provided an update on Mother's substance abuse treatment. Mother's attendance at group sessions initially had been sporadic, and she tested positive for methamphetamines on an oral swab, a hair follicle test, and one urinalysis. However, Mother tested negative on her other urinalysis tests, her attendance at group sessions had improved after the initial few months, and the counselor indicated Mother was compliant in all areas of treatment.
The second addendum report also updated the court on W.B.'s placement status. The report noted a few steps remained before the substitute care provider for W.B.'s half siblings would be approved as a placement for W.B. But, once those steps were completed, W.B. would be transitioned to that home as her concurrent placement so she could be raised with her siblings. D. Joint Hearing on Disposition for the 387 Petition , the 388 Petition , the De Facto Parent Request , and the Six-month Status Review
The juvenile court conducted a three-day joint hearing on the disposition of the 387 petition, the 388 petition, the de facto parent request, and the six-month status review. The parties, as well as R.R., presented multiple witnesses and argument to the court.
R.R. testified the Department provided only one-hour advanced warning before removing W.B., and the Department did not conduct any family team meetings or discuss placement preservation strategies prior to removal. R.R. again testified regarding her relationship with Mother and the steps she has taken to address any codependency. She testified the Department had not given her any guidelines on how to conduct visitation, so she simply had Mother participate in W.B.'s daily life. She acknowledged violating the Department's instruction to cease visitation, but stated she never received advice about the instruction and only now understands why certain conditions are imposed. R.R. testified she believed the Department "completely overreacted" and "failed" her. She stated she felt overwhelmed and asked the Department to schedule a family meeting, but they did not do so.
Mother testified she wanted W.B. placed with R.R., and she restated her belief that R.R. is the best placement for W.B. Mother also questioned the moral character of the proposed caregiver, a half sibling's grandmother. Mother contended the grandmother had previously isolated the half sibling from family members and had a substance abuse issue. Mother asserted the grandmother did not want the baby and would not allow contact with Mother or her family. Mother further stated the grandmother acted frustrated and short with W.B.'s older siblings. She acknowledged the "very close" bond between W.B. and her half siblings, yet believed placing W.B. with R.R.—even if the siblings were separated as a result—was in W.B.'s best interests. Mother also testified that, during the visit resulting in W.B.'s removal, R.R. informed her the Department did not want R.R. to supervise visits. Mother testified she did not leave after learning that information but instead stayed the night.
C.J., the minor's adult half sibling, also testified. C.J. testified R.R. was a great parent and he believed she was the best placement option for W.B. He also testified, however, he "definitely" wanted his siblings to grow up together. C.J. stated his "main concern" was being able to visit with W.B., and he was able to do so about once a week while W.B. was placed with R.R. C.J. testified he feels the grandmother is not allowing him to see his siblings but could not identify any "active steps" by the grandmother to prevent such contact. C.J. also testified he did not have safety concerns about R.R., and believes R.R. is able to set boundaries with Mother.
Two friends of R.R. testified regarding R.R.'s parenting. They described R.R. as an excellent mother with strong parenting skills. R.R.'s father also testified and described R.R. as "[t]he best" mother and someone who would never place her children in jeopardy.
Following argument by counsel, the court denied R.R.'s 388 petition and her request for de facto parent status. The court also adopted the Department's recommended findings and orders as to the 387 petition. Mother and R.R. both timely appealed.
The court did not issue its findings and orders on the six-month review at this time, but instead did so after a later hearing.
II. DISCUSSION
On appeal, R.R. and Mother argue the juvenile court erred in sustaining the Department's 387 petition, in denying R.R.'s request for de facto parent status, and in denying R.R.'s 388 petition. We address each argument in turn. A. The 387 Petition
Appellants contend the Department's removal of W.B. was governed by the procedures set forth in section 387 and California Rules of Court, rules 5.560 and 5.565. Appellants further assert the Department failed to establish the previous disposition order had not effectively protected W.B., insufficient evidence supported removal, and reasonable efforts were not made to prevent W.B.'s removal.
1. Jurisdiction
A supplemental petition under section 387 is authorized when the Department seeks "[a]n order changing or modifying a previous order by removing a child from the physical custody of a . . . friend and directing placement in a foster home . . . ." (§ 387, subd. (a).) The Department " 'has the burden to show by a preponderance of the evidence that the factual allegations alleged in the petition are true. If the court finds the factual allegations are true, then the court determines whether the previous disposition is no longer effective in protecting the child . . . .' " (In re A.O. (2010) 185 Cal.App.4th 103, 109-110.) "We review an order sustaining a section 387 petition for substantial evidence." (Id. at p. 109.) "Evidence is ' "[s]ubstantial" ' if it is ' " 'reasonable, credible, and of solid value.' " ' [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record in favor of the juvenile court's order and affirm the order even if other evidence supports a contrary finding. [Citations.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order." (In re T.W. (2013) 214 Cal.App.4th 1154, 1161-1162.)
Appellants do not contest the factual allegations in the 387 petition. Rather, they argue there is insufficient evidence of actual harm to W.B. to support removal. They further assert Mother's presence in R.R.'s home did not place W.B. at risk of harm because Mother had previously been allowed in the home with R.R.'s supervision.
Mother also contends she has standing to challenge the order sustaining the 387 petition. Because the Department does not challenge Mother's standing on this issue, we will assume Mother has standing to challenge the order sustaining the 387 petition for purposes of this appeal.
The 387 petition alleges W.B. was at risk of ongoing harm because R.R. was unable or unwilling to protect W.B. from Mother. As set forth in the record, throughout the course of this dependency the court's visitation order only provided Mother with supervised visitation. The record also indicates why such supervision was necessary for W.B.'s safety. Mother has a history of chronic substance abuse, she previously failed to comply with court-ordered treatment, and, after W.B.'s removal, Mother continued to have positive drug tests, consume alcohol, and engage in incidents of domestic violence with the father. Mother also has consistently denied or attempted to hide such substance abuse. For example, Mother denied using drugs during the second half of her pregnancy. However, W.B. tested positive for methamphetamine and amphetamine at birth, and Mother admitted a hair follicle test would come back " 'dirty.' " The record further suggests Mother sought to hide her drug use by not attending prenatal appointments after learning she would be drug tested at them. Mother also denied using drugs during the reunification period for W.B., despite multiple positive drug tests.
After Mother was arrested because of a domestic violence incident with the father, during which Mother admitted to consuming alcohol, the Department instructed R.R. to cease Mother's visitation with W.B. Appellants do not dispute the Department gave this instruction to R.R., and she understood she was not supposed to allow Mother to visit. However, R.R., who described her relationship with Mother as codependent, violated this direct instruction. R.R. did not turn Mother away when Mother asked to come over. R.R. allowed Mother into her house and informed her about the rescinded visitation. Mother did not leave, and R.R. did not ask Mother to leave. Instead, Mother spent the night, remained at R.R.'s house the following day, and ate dinner with the family. While R.R. stated she did not believe Mother was a risk to W.B., she was aware Mother had recently been arrested and the Department was sufficiently concerned to cease visitation.
The codependent relationship between R.R. and Mother at the time of removal finds additional support in the record. For example, R.R. lent her vehicle to Mother, despite knowing Mother did not have a valid driver's license and the vehicle had suspended and expired registration and malfunctioning brake lights. Mother was stopped by a police officer while driving the vehicle, it was subsequently impounded, and R.R. had to pay $500 to recover the vehicle, which created a financial burden for R.R.
R.R. attempts to justify her conduct by testifying that Mother had never come to her house under the influence and, if Mother had done so, she would have asked Mother to leave. But the record does not support such a conclusion. We are unaware of any example in the record of R.R. setting such boundaries with Mother, whether in connection with visitation or otherwise. Rather, the record indicates Mother would have hidden or denied her drug use, and R.R. would have struggled to set appropriate boundaries.
R.R. also contends she "never technically violated a court order" by allowing Mother to come to her house and spend the night. We disagree. The court ordered visitation "[a]s stated in the case plan." The case plan provides for a minimum of two visits per week for two hours, but then states, "Time, manner, and place of the visits will be at the discretion of the social worker." Moreover, the significance of this series of events, is not that R.R. violated court orders, but that she knowingly enabled Mother's access to W.B. without the Department's supervision, contrary to the Department's concerns for W.B.'s safety, and contrary to the explicit direction of the Department. And, we note, while R.R. acknowledges her mistake, she continues to deflect her liability. R.R. stated she allowed Mother to spend the night because she felt ill and "didn't mean to purposefully disobey [the social worker's] instructions." But that ignores the fact that R.R. allowed Mother to come over to the house prior to falling ill. Through these series of events, R.R. placed her relationship with Mother over W.B.'s well-being. R.R. ignored the court's vesting of the "care, custody, and control" of W.B. with the Department, and instead unilaterally determined how to manage W.B.'s care.
Appellants primarily rely on In re Joel H. (1993) 19 Cal.App.4th 1185, In re H.G. (2006) 146 Cal.App.4th 1, and In re C.M. (2017) 15 Cal.App.5th 376 to support their position. We do not find those cases persuasive.
In Joel H., the juvenile court removed a dependent child from relatives with whom he had been placed, based on its finding that they "had physically and emotionally abused" him. (In re Joel H., supra, 19 Cal.App.4th at p. 1192.) Another relative had testified that he saw the caregivers discipline the child by spanking him but was unaware of the circumstances leading to the spanking. (Id. at p. 1191.) The appellate court found insufficient evidence to support removal. (Id. at pp. 1199-1203.) It explained, "There was no evidence that these acts resulted in actual physical harm or posed a danger of such harm . . . . Nor was there proof that the spankings . . . w[ere] outside the realm of legally acceptable and age-appropriate corporal punishment, let alone cruel or abusive conduct. While some might well debate the need for or value of these acts as forms of discipline or effective parenting, they did not appear to exceed legally acceptable behavior for a care provider." (Id. at p. 1202.) Questions regarding the appropriateness of physical discipline are distinctly different than those presented in the instant matter.
We also find In re A.E. (2014) 228 Cal.App.4th 820 distinguishable on this same basis. In that case, the appellate court reversed an order removing a child from her father's custody after he spanked her with a belt on a single occasion, an incident which the court found was unlikely to reoccur. (Id. at p. 826.)
Next, appellants cite In re H.G., supra, 146 Cal.App.4th 1. While that case presents a more similar fact pattern, we note the reversal was based on issues not present here. There, the juvenile court ordered removal of a minor from the grandmother's home because she allowed the father to have unauthorized contact with the minor. (Id. at p. 13.) On appeal, the court upheld the juvenile court's finding of unauthorized contact between the father and the minor. (Id. at p. 14.) However, the appellate court noted the agency's disapproval of the placement did not constitute substantial evidence that the prior disposition was not effective or appropriate. (Id. at pp. 14-15.) The appellate court noted the agency did not allege, nor did the court find, that any of the other criteria in section 361.3 had changed from the initial determination that the grandparents were appropriate custodians. (H.G., at p. 16.) Nor did the juvenile court conduct a dispositional hearing as to the section 387 petition. (H.G., at p. 17.) It was these errors that warranted reversal. In re H.G. does not stand for the proposition that an order sustaining a section 387 petition must be reversed merely because it was based on a caretaker allowing unauthorized contact with a parent. (See In re T.W., supra, 214 Cal.App.4th at p. 1162 [mother allowed father to have unauthorized contact after father had sexually abused T.W.'s sister, warranting removal].)
The criteria set forth in section 361.3 regarding relative placement is not applicable here because W.B. was placed with an NREFM.
Finally, in In re C.M., the juvenile court issued a restraining order prohibiting contact between the minor and his stepfather, as well as an order directing the agency to immediately remove the minor from the mother's care if the minor is exposed to his stepfather. (In re C.M., supra, 15 Cal.App.5th at p. 380.) On appeal, the mother argued the restraining order improperly changed the legal basis for removal. In discussing the validity of the order, the appellate court emphasized, "At the outset, we may eliminate the idea that any exposure to [the stepfather] by itself will justify [the minor's] removal from the home." (Id. at p. 388.) Rather, the court explained, the agency must comply with the statutory requirements for detaining or removing the minor from his mother's custody. (Id. at p. 389.) It concluded the juvenile court erred in issuing a conditional removal order because it "contravenes specific statutory requirements for notice and the opportunity to be heard [citations], the burden and standard of proof [citation], and the factual findings required to remove a dependent child from the custody of his or her parent [citations]." (Ibid.) The problem that arose in In re C.M.—immediate removal without due process—did not occur in the present matter. To the contrary, the juvenile court followed the statutory scheme and held an extensive hearing before ruling on the 387 petition.
Based on the evidence presented at the combined hearing, the juvenile court could reasonably conclude W.B. was at risk of harm due to Mother's ongoing substance abuse, and R.R.'s apparent inability to provide W.B. with the level of protection from Mother as determined by the Department. Accordingly, substantial evidence supports the court's jurisdictional findings on the 387 petition.
2. Disposition
Appellants next argue insufficient evidence supported removal of W.B. from R.R.'s custody. Specifically, R.R. contends Mother's visit was an isolated incident and does not indicate ongoing or future danger to W.B. Appellants further argue the Department was required, and failed, to make reasonable efforts to avoid the need for removal.
a. Removal
When a section 387 petition seeks to remove a minor from a parent or guardian, "the court applies the procedures and protections of section 361." (In re T.W., supra, 214 Cal.App.4th at p. 1163.) Before removing a minor from a guardian's custody, the court must find, by a preponderance of the evidence, " '[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's [or guardian's] . . . physical custody.' " (Ibid.; In re A.O. (2004) 120 Cal.App.4th 1054, 1061 [court uses preponderance of the evidence standard when removing minor from nonparent].) Removal is proper if it is based on proof of (1) "inability to provide proper care for the minor and (2) potential detriment to the minor if he or she remains with the parent [or guardian]. [Citation.] The parent [or guardian] need not be dangerous and the minor need not have been harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (T.W., at p. 1163.)
Here, W.B. was at risk in R.R.'s home. As discussed above, Mother has an extensive history of substance abuse and a tendency to hide her usage. Despite this history, R.R. was unwilling to deny Mother access to W.B. even when directly instructed by the Department to do so. R.R. allowed Mother to stay in her house for approximately a full day and made no effort to comply with the Department's instructions.
R.R. argues she has taken various steps to address the issues that led to W.B.'s removal, such as attending therapy and Al-Anon and "taking a 'giant step back' " from assisting Mother. While these are certainly positive steps, the record also indicates a long-term, codependent relationship between R.R. and Mother, during which R.R. made various poor decisions in order to benefit Mother. While R.R. now states she will not place Mother's needs before those of W.B., we are left to speculate as to whether R.R. will, in fact, do so. Ultimately, this is a credibility issue best left for the juvenile court. (In re T.W., supra, 214 Cal.App.4th at p. 1161 ["We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence."].) A caretaker "need not be dangerous and the minor need not have been harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (Id. at p. 1163.) We cannot conclude the juvenile court erred in ordering removal.
b. Reasonable Efforts to Prevent or Eliminate Need for Removal
Appellants contend no substantial evidence supports the juvenile court's finding that the Department made reasonable efforts to prevent the need for removal. Mother further contends the court was required to make such a finding based on the procedural requirements in division 3, chapter 4 and division 3, chapter 12, article 3 of title 5 of the California Rules of Court, as well as section 361, subdivision (c). In response, the Department argues it was not required to make reasonable efforts to avoid removal because R.R., as an NREFM, is not entitled to the same custodial rights as a parent or guardian.
The Department argues appellants forfeited this issue because they did not cite certain statutory provisions to the juvenile court and, at the detention hearing, Mother submitted to the court's finding that reasonable efforts were made to avoid removal. We disagree. Appellants contested W.B.'s removal both at the hearing and in Mother's at issue memo. Accordingly, we decline to find appellants waived these issues.
" ' "If the statutory language is unambiguous, we presume the Legislature meant what it said, and the plain meaning of the statute controls." ' " (In re A.G. (2011) 193 Cal.App.4th 791, 803.) "In construing a statute, 'We do not examine [its] language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment.' " (Lopez v. Friant & Associates, LLC (2017) 15 Cal.App.5th 773, 780.)
As relevant to this appeal, California Rules of Court, title 5, division 3, chapter 4, entitled "Subsequent Petitions and Modifications," contains California Rules of Court, rule 5.565. Rule 5.565(e)(2) provides: "The procedures relating to disposition hearings prescribed in chapter 12, article 3 apply to the determination of disposition on a subsequent or supplemental petition." Chapter 12, article 3 of California Rules of Court, title 5, division 3 (hereafter chapter 12, article 3), is entitled "Disposition" and contains rules 5.690 and 5.695. California Rules of Court, rule 5.695(d) expressly requires courts to "consider whether reasonable efforts to prevent or eliminate the need for removal have been made" and issue a finding as to whether such efforts have been made. But this rule is silent as to how the court's finding impacts removal of a minor. Accordingly, rule 5.695(d) must be interpreted in connection with 5.695(c), which provides how reasonable efforts may impact removal. Specifically, that subdivision states: "The court may not order a dependent removed from the physical custody of a parent or guardian with whom the child resided at the time the petition was filed, unless the court makes one or more of the findings in section 361[, subdivision] (c) by clear and convincing evidence." (Cal. Rules of Court, rule 5.695(c).) Section 361, subdivision (c) then provides in relevant part: "A dependent child shall not be taken from the physical custody of his or her parents, guardian or guardians, or Indian custodian with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . . [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's, guardian's, or Indian custodian's physical custody." (Italics added.)
Both California Rules of Court, rule 5.695(c) and section 361, subdivision (c) discuss reasonable efforts to avoid removal in connection with removal from a parent or guardian. Other provisions of chapter 12, article 3 are likewise narrowly tailored to apply to limited situations. For example, a timing requirement is only triggered if a minor has been "removed from the custody of the parents or Indian custodians or guardians." (Cal. Rules of Court, rule 5.690(d).) Conversely, other provisions of chapter 12, article 3 are broadly drafted to apply to any disposition proceedings. (See, e.g., Cal. Rules of Court, rule 5.690(c) ["Whenever child welfare services are provided, the social worker must prepare a case plan."]; id., rule 5.695(e)(1) ["If the child is removed, the court must consider and determine whether the social worker has exercised due diligence in conducting the required investigation to identify, locate, and notify the child's relatives."].)
This distinction is meaningful. (People v. Molina (2004) 120 Cal.App.4th 507, 513 [" ' "In analyzing statutory language, we seek to give meaning to every word and phrase in the statute to accomplish a result consistent with the legislative purpose" ' "].) It mirrors a similar approach adopted by the Legislature as to detention proceedings. Prior to taking a child into custody from a "parent, guardian, [or] caretaker" social workers "shall consider whether the child may remain safely in his or her residence" based on various factors including "[w]hether there are any reasonable services available . . . which . . . would eliminate the need to remove the child." (§ 306, subd. (f), italics added.) The reasonable services are not a required element, but merely one factor of consideration. (Ibid.) But a detained minor must be released to "the child's parent, guardian, Indian custodian, or relative" unless certain conditions exist, including that "[c]ontinued detention of the child is a matter of immediate and urgent necessity for the protection of the child and there are no reasonable means by which the child can be protected in his or her home or the home of a relative." (§ 309, subd. (a).) Notably absent from section 309 is the "caretaker" language used in section 306. In other words, a detained minor need not be returned to a caretaker—as compared to his or her parents or guardians—even if reasonable services are available to protect the minor.
Section 387, which utilizes the phrase "parent, guardian, relative, or friend," and section 306, which uses the phrase "parent, guardian, caretaker," demonstrates the Legislature understood the limited scope of the phrase "parents and guardians." Its decision to limit section 361 and California Rules of Court, rule 5.695 to "parents and guardians" demonstrates the Legislature did not intend broader application. (In re Jennings (2004) 34 Cal.4th 254, 273 [" 'It is a settled rule of statutory construction that where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different legislative intent existed with reference to different statutes.' "].)
Appellants argue the reference to parent or guardian in California Rules of Court, rule 5.695(c) and section 361, subdivision (c) must be interpreted to include relatives and friends, including NREFM's, based on In re Jonique W. (1994) 26 Cal.App.4th 685 (Jonique W.). In that case, the juvenile court ruled a relative with de facto parent status lacked standing to contest the supplemental petition at the section 387 hearing. (Jonique W., at p. 690.) The appellate court disagreed. In connection with the jurisdictional phase of the section 387 hearing, which "is a factfinding proceeding," the court explained "[California Rules of Court former] rule 1450 must be construed as applying not only to the 'parent or guardian' mentioned on the face of that rule, but also to the custodial 'relative or friend' who is in a position to deny factual allegations about a failure adequately to protect the child while in his or her custody." (Jonique W., at pp. 691, 692.) The court thus concluded section 387 "provides a custodial relative with standing to contest a supplemental petition in the hearing required by that provision, at least where the relative's conduct and the removal of the minor(s) from the relative's physical custody are at issue." (Jonique W., at p. 693.)
When a caregiver's conduct is the basis for a section 387 petition, it makes sense—as Jonique W. determined—to allow full participation by that caregiver in the factfinding portion of the hearing. Not only would the caregiver have relevant information that may not be available from other sources, but adjudication of the section 387 petition may cause the caregiver to "suffer adverse consequences" if the factual allegations are found true. (Jonique W., supra, 26 Cal.App.4th at p. 692.) Here, however, R.R. was not prevented from participating in the hearing on the 387 petition. To the contrary, the court identified R.R. as "a party" and allowed her to present evidence, examine witnesses, and argue her position. At issue is a different question: namely, whether the Department was required to make reasonable efforts to prevent or eliminate the need for removal of W.B. from R.R.'s custody.
The record clearly demonstrates the Department did not take any steps to avoid removal. The incident leading to removal was R.R.'s first known violation of the visitation order, and the Department removed W.B. immediately following the incident. However, neither Mother nor R.R. cites any authority requiring the Department to do so or requiring the court to make such a finding of reasonable efforts when removal is from an NREFM. Nor are we aware of any such authority. While appellants argue "[l]ogic and reason" support requiring such a finding to maintain connections and prevent minors from being "passed around," we do not share their concern. The juvenile court's assessment inherently includes consideration of the child's best interests. (§ 202, subd. (b) ["Minors under the jurisdiction of the juvenile court . . . shall receive care, treatment and guidance consistent with their best interest"]; In re Robert A. (1992) 4 Cal.App.4th 174, 188-189.) The court in this instance heard three days of testimony regarding the grounds for removal, R.R.'s parenting and bond with W.B., as well as other evidence regarding W.B.'s transition out of R.R.'s house and the potential to be placed with her half siblings. We see no basis for replacing the juvenile court's assessment with our own. (In re L.M. (2019) 39 Cal.App.5th 898, 914 ["We may not reweigh or express an independent judgment on the evidence."].)
Moreover, requiring the Department to take reasonable steps to avoid removal runs contrary to the limited rights granted to de facto parents. Courts have uniformly acknowledged de facto parents are not afforded the same rights as parents or legal guardians. (In re B.F. (2010) 190 Cal.App.4th 811, 817 [de facto parents "do not enjoy the same due process rights as parents" and "are not part of any adversarial aspect of a dependency case"].) Nor are they entitled to custody of a minor. (See, e.g., In re P.L. (2005) 134 Cal.App.4th 1357, 1361 [de facto parents "do not have the right to reunification services, custody, or visitation" (italics omitted)]; In re A.F. (2014) 227 Cal.App.4th 692, 700 ["De facto parents have no right to reunification services, visitation, custody, continued placement of the child [citation], 'or to any degree of independent control over the child's destiny whatsoever' "]; Ed H. v. Ashley C. (2017) 14 Cal.App.5th 899, 915 [same].)
As discussed in part II.B., post, we conclude the juvenile court erred in denying R.R. de facto parent status.
R.R. has no basis to compel either the Department or the juvenile court to provide reasonable efforts to avoid removal because she "has no right to custody or continued placement." (In re P.L., supra, 134 Cal.App.4th at p. 1361.) Neither the relevant statutes nor case law impose such a requirement when removal is from an NREFM. Accordingly, we conclude the Department was not required to make reasonable efforts to avoid removing W.B. from R.R.'s home. B. De Facto Parent Status
Some courts have recognized section 387 only applies to an "ordered placement" and not one made by the social services agency pursuant to a general placement order which vests the agency with custody of the child and the discretion to select a suitable placement. (See, e.g., In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1489-1490.) Pursuant to a general placement order, the agency may change the placement without filing a petition and without further court order. (Ibid.) Here, following the detention hearing the court entered a general placement order, requiring the "care, custody, and control" of W.B. vested with the Department for further detention of the minor in a foster care, relative, or NREFM placement. Following the disposition hearing, the court again ordered "the care, custody, and control of the minor to be vested with the [Department]." That order authorized placement with a relative or an NREFM, but not a foster family. While appellants argue the Department was required to file a section 387 petition in order to remove W.B., we do not opine on this issue because the Department has not alleged otherwise.
R.R. contends the juvenile court abused its discretion in denying her request for de facto parent status. She contends neither the lapse since W.B.'s removal nor the event leading to removal justify denial of de facto parent status. We agree but find the error harmless.
"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 a parent, fulfilling both the child's physical and psychological needs for care and affection, and who has assumed that role for a substantial period.' [Citations.] De facto parent status gives the child's present or previous caretaker standing to participate as a party in disposition hearings and subsequent hearings in which the status of the dependent child is at issue. [Citation.] A de facto parent has the right to be present at the hearing, be represented by retained counsel, and present evidence. [Citation.] The purpose of conferring de facto parent status is to 'ensure that all legitimate views, evidence and interests are considered in dispositional proceedings involving a dependent minor.' " (In re Merrick V. (2004) 122 Cal.App.4th 235, 256, fn. omitted.)
"Relevant factors the court should consider in determining whether to grant a de facto parent request include whether the child is psychologically bonded to the adult, whether the adult has assumed the role of a parent on a day-to-day basis for a substantial period, whether the adult possesses information about the child that other participants do not possess, whether the adult has regularly attended juvenile court hearings, and whether a future proceeding may result in an order permanently foreclosing any future contact with the adult." (In re A.F., supra, 227 Cal.App.4th at p. 700.)
"The denial of a petition for de facto parent status is reviewed for abuse of discretion. [Citation.] 'In most cases, the lower court does not abuse its discretion if substantial evidence supports its determination to grant or deny de facto parent status.' " (In re Jacob E. (2004) 121 Cal.App.4th 909, 919.)
Here, R.R. acted as W.B.'s parent for approximately six months, from when she was born until she was six months old. They had bonded. R.R. would have information about W.B. that a social worker or the parents, visiting only occasionally, would not have. And the juvenile court's decision on the 387 petition, the 388 petition, and permanency planning could significantly impact R.R.'s future contact with W.B. The Department does not contest these facts. Instead, the Department contends R.R.'s decision to allow Mother to remain overnight justified denial of de facto parent status.
In In re Kieshia E. (1993) 6 Cal.4th 68 (Kieshia E.), the Supreme Court held "a nonparent who commits sexual or other serious physical abuse upon a child in his or her charge thereby abandons the function of care, affection, and psychological fulfillment essential to the role of a de facto parent. When a juvenile court has found that the nonparent committed such abuse, and has therefore deemed it necessary to make the victim a dependent of the court, the abuser is barred from intervening in the same proceeding under the de facto parenthood doctrine." (Id. at pp. 79-80.) While subsequent cases have extended Kieshia E.'s analysis to conduct other than sexual or physical abuse, those cases still concern serious and substantial harms to the children involved. (See, e.g., In re Michael R. (1998) 67 Cal.App.4th 150, 157-158 [grandmother allowed physically abusive father unsupervised access and, when discovered, she abducted the children and fled the state]; In re Merrick V., supra, 122 Cal.App.4th at pp. 241-243 [grandmother left children with drug addict mother, and two of the children were found wandering in the street in dirty diapers and tested positive for illegal drugs]; In re Leticia S. (2001) 92 Cal.App.4th 378, 382-383 [caregiver hit the child and left narcotics within the minor's reach].)
While R.R. undoubtedly engaged in misconduct by allowing Mother unauthorized access to W.B., in contrast to the above cases R.R.'s conduct does not justify denial of de facto parent status. A caregiver can qualify as a de facto parent, despite misconduct requiring removal, where the misconduct does not rise to the level of sexual or serious physical abuse. (In re Bryan D. (2011) 199 Cal.App.4th 127, 144-147 (Bryan D.).) In Bryan D., a 12-year-old child was removed from his grandmother's home because she left him home alone three times—once for 3 days, once for about 10 days, and once for about 12 days. (Id. at pp. 131-132, 134.) The juvenile court denied her request for de facto parent status, which the appellate court reversed as an abuse of discretion. (Id. at pp. 137, 144-147.) The court explained, "[I]n our view, Kieshia E. does not stand for the proposition that any time the conduct of a person who would otherwise qualify as a de facto parent directly or indirectly causes the initiation of dependency proceedings, that person is automatically ineligible for de facto parent status, regardless of the nature of the conduct." (Id. at p. 143.) It further explained, "[W]e cannot say that grandmother is entirely blameless. Her conduct was a cause of the dependency proceedings. But, under Kieshia E., there must be evidence that the 'nonparental caretaker committed a substantial harm, such as sexual or other serious physical abuse, which is fundamentally at odds with "the role of parent" . . . . ' [Citation.] . . . Grandmother's failure to make more appropriate short-term childcare arrangements for Bryan was not an abandonment or betrayal of the role of parent in the way sexually or physically abusing a child is a complete rejection of the role of parent. [Citation.] Grandmother demonstrated poor judgment that placed Bryan at risk of harm, but her failures were not fundamentally at odds with the role of parent . . . ." (Id. at p. 146.)
Here, as in Bryan D., R.R.'s misconduct, while sufficient to support removal, was not fundamentally at odds with the role of a parent. She allowed Mother into her house and provided Mother unauthorized access to W.B. But there is no evidence Mother brought or used drugs at that time. W.B. was healthy and generally appeared well cared for when the Department arrived to remove her. Accordingly, we conclude that under the circumstances of this case, the juvenile court abused its discretion in denying R.R. de facto parent status because there was no substantial evidence that she had betrayed or abandoned the parental role such that she lost the privilege of participating in proceedings concerning W.B.
However, we conclude this error was harmless. As discussed in parts II.A.2.b., ante, and II.C.3., post, the juvenile court's denial of R.R.'s de facto parent request did not negatively impact the outcomes of the 387 petition and 388 petition. Nor did it hinder R.R.'s ability to represent her interests at the hearing on the 387 petition and the 388 petition. The court treated R.R. as a party, and it allowed her to offer evidence, examine witnesses, and argue her position. C. Section 388 Petition
1. Mother's Standing
"To have standing, a person must have rights that may suffer actual or threatened injury." (In re D.R. (2010) 185 Cal.App.4th 852, 859; see In re Jayden M. (2014) 228 Cal.App.4th 1452, 1459 [" 'only a person aggrieved by a decision may appeal' "]; Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034 [" '[W]hether one has standing in a particular case generally revolves around the question whether that person has rights that may suffer some injury, actual or threatened.' "].) In dependency proceedings, a parent has no standing to raise issues affecting the child's or a guardian's rights, and can only raise issues affecting his or her rights. (In re Jayden M., at p. 1459; see In re J.T. (2011) 195 Cal.App.4th 707, 719 ["a parent lacks standing to raise an issue [where] the parent's personal interests were not affected"].)
" 'For purposes of appellate standing in dependency cases, . . . . "[t]he parent's primary interest in dependency is usually reunification." ' " (In re T.G. (2010) 188 Cal.App.4th 687, 692.) Where, as here, the juvenile court has terminated reunification services, a parent generally has no standing to raise issues relating to the child's placement, because resolution of those issues will have no effect on reunification. (In re Jayden M., supra, 228 Cal.App.4th at p. 1460 ["Once a parent's reunification services have been terminated, the parent has no standing to appeal relative placement preference issues."]; Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1035 [father stipulated to termination of reunification services and thus lacked standing to appeal court's refusal to place child with a relative].) "This is because decisions concerning placement of the child do not affect the parent's interest in reunification, where the parent is no longer able to reunify with the child." (In re A.K. (2017) 12 Cal.App.5th 492, 499; see also In re K.C. (2011) 52 Cal.4th 231, 236 ["after reunification services are terminated . . . , 'the parents' interest in the care, custody and companionship of the child [is] no longer paramount,' " and instead " 'at this point "the focus shifts to the needs of the child for permanency and stability" ' "].) However, courts have exempted from this rule parental challenges to placement orders if a reversal "advances the parent's argument against terminating parental rights." (In re K.C., at p. 238.)
Following the hearing on the 387 petition, the de facto parent request, and the 388 petition, the court conducted the six-month review. At that hearing, the court terminated reunification services and scheduled a section 366.26 hearing. Mother did not challenge that order. She thus fails to demonstrate how the court's refusal to place W.B. with R.R. impacted the termination of services or her interest in reunification. Mother cannot establish that her "rights and interest in reunification are injuriously affected" by the court's refusal to return W.B. to R.R.'s care. (See In re A.K., supra, 12 Cal.App.5th at p. 499.) For these reasons, we conclude Mother lacks standing on appeal to challenge the juvenile court's order denying the 388 petition.
Mother's brief does not assert she challenged the termination of her reunification services. Rather, Mother simply argues the court should disregard such information because it constitutes "post-judgment matters not before the trial court." But Mother acknowledges courts may properly consider records of another court. Likewise, courts have augmented records with postjudgment reports and orders to "avoid further delay and to promote the finality of the judgement." (In re B.D. (2008) 159 Cal.App.4th 1218, 1240.) We decline to reverse our prior order augmenting the record to include such evidence and consider it for purposes of Mother's standing.
2. R.R.'s Standing
As discussed above, "[n]ot every party has standing to appeal every appealable order." (In re K.C., supra, 52 Cal.4th at p. 236.) Rather, only those people "whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision," may appeal. (Ibid.) In In re P.L., supra, 134 Cal.App.4th at pages 1361-1362, the court determined a de facto parent did not have standing to appeal a placement decision because "they do not have the right to reunification services, custody, or visitation. [Citations.] While de facto parents are given an opportunity to participate in the proceedings, that status does not give them the rights accorded to a parent or legal guardian. [Citations.] Consequently, appellant has no legal standing to complain of the decision to place the child with the new prospective couple since she has no right to custody or continued placement as a mere de facto parent. The order changing physical custody was within the sound discretion of the court from which appellant cannot appeal because her legal rights were not impacted."
R.R. contends she should have standing to appeal the denial of her own 388 petition. To that end, we find In re Aaron R. (2005) 130 Cal.App.4th 697, instructive. In Aaron R., the grandmother sought to appeal the denial of her petition under section 388. (Aaron R., at p. 702.) The court explained the challenge of grandmother's position: "The right of appeal . . . extends by statute only to a 'party aggrieved' by the order appealed from. [Citations.] The peculiar difficulty of the grandmother's appeal is to identify any prejudice that she suffered as a result of the denial of her section 388 petition." (Id. at p. 703.) Because the petition was filed shortly before the permanency hearing, the court noted "[t]he change in custody could give the grandmother only a fleeting status as [the minor's] caretaker before he is placed for adoption pursuant to the juvenile court's order at the permanency hearing." (Ibid.) However, the court concluded granting the section 388 petition would give the grandmother "the protected rights of a 'relative caretaker' under section 366.26, subdivision (k)" and could impact the minor's adoptive placement. (Aaron R., at p. 703.) Likewise, granting R.R.'s 388 petition could arguably qualify R.R. as a foster parent and provide her with preference for any future adoptive placement. (See § 366.26, subd. (k)(1).) Such an interest may be sufficient to afford R.R. standing to appeal the juvenile court's denial of the 388 petition. However, we need not definitely resolve this question because, as we discuss below, the juvenile court properly denied R.R.'s 388 petition.
R.R.'s reliance on In re Matthew P. (1999) 71 Cal.App.4th 841 is misplaced. In that matter, the de facto parents were denied the opportunity to cross-examine the social worker who prepared negative reports at the hearing for their section 388 petition. (Matthew P., at pp. 847-848.) The appellate court noted de facto parents were entitled to participate in the hearings and present evidence, and the parents' inability to cross-examine the social worker violated their due process rights. (Id. at p. 851.) Here, R.R. fully participated at the 388 petition hearing.
3. Denial of the Section 388 Petition
Section 388, subdivision (a)(1) provides in 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 or to terminate the jurisdiction of the court." A section 388 petition may be filed "to change or set aside any order of the juvenile court in the action from the time the child is made a dependent child of the juvenile court." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) "[T]he predominant task of the court [is] to determine the child's best interests . . . ." (In re Stephanie M. (1994) 7 Cal.4th 295, 320.)
A section 388 petition is addressed to the juvenile court's discretion, and its ruling will not be disturbed on appeal absent a showing of a clear abuse of discretion. (In re Jasmon O., supra, 8 Cal.4th at pp. 415-416.) "The denial of a section 388 [petition] rarely merits reversal as an abuse of discretion." (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
R.R. contends changed circumstances justify the 388 petition because she took steps to recognize her codependency and testified she would place W.B. above the interests of Mother. R.R. likewise contends returning W.B. to her home would be in the minor's best interests because W.B. has been "negatively emotionally affected" by the removal. In response, the Department contends pursuing placement with W.B.'s half sibling's grandmother was in W.B.'s best interests because W.B. was comfortable in the home, it allowed placement with her half siblings, and R.R. was not an approved adoptive home which would deprive W.B. of state funding.
Based on the record, we cannot conclude the juvenile court abused its discretion by denying the 388 petition. Competing evidence was presented by the parties. R.R. testified she would ensure W.B. knew her siblings and maintain contact with W.B.'s family. The Department argued W.B. should be able to grow up in the same household as her siblings, and concurrent services planning identified the goal as "Adoption with Siblings." Both Mother and Mother's adult son acknowledged the importance of W.B. being raised with her siblings. And the record shows W.B. has "a loving attachment" to her siblings, and "does very well" with overnight visits with her siblings at the grandmother's house.
Competing evidence also was presented regarding W.B.'s adjustment out of R.R.'s home. Mother testified W.B. was "more withdrawn" and "sullen" since being removed from R.R.'s care. However, after removal, the Department's report described W.B. as "happy and healthy," and stated she "thrives on routine and has a successful eating and sleeping routine" and "does very well with transitions between her current placement and overnight visits at her planned permanent placement, where her older half-siblings are placed." The report indicates W.B. has a connection to the grandmother.
Appellants ask us to reweigh this evidence and reach a contrary result. We decline to do so. (In re T.W., supra, 214 Cal.App.4th at p. 1161 ["We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence."].) In addition, the record indicates R.R. is no longer a certified RFA home and thus would not be approved as an adoptive home and may lose access to certain funding sources. While R.R. questions whether the Department's revocation of her RFA certification is truly meaningful, the juvenile court considered the impact potentially detrimental to W.B. based on the evidence presented. Once again, we will not replace the juvenile court's assessment with our own. (Ibid.)
The importance of placing W.B. with her siblings, the evidence regarding W.B.'s comfort in the grandmother's household, and the potential impact of the Department's decision to revoke R.R.'s RFA certificate, provide sufficient evidence to support the juvenile court's denial of the 388 petition. Accordingly, the juvenile court did not abuse its discretion in doing so.
III. DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Margulies, Acting P. J. We concur: /s/_________
Banke, J. /s/_________
Sanchez, J.