as: 130 Cal.App.4th 697, 29 Cal.Rptr.3d 921)
of Appeal, First District, Division 1, California.
re AARON R., a Person Coming Under the Juvenile Court
& County of San Francisco Social Services Department, Plaintiff and
R. Defendant and Appellant;
P., Movant and Appellant.
Denied Sept. 21, 2005.
Mario de Solenni, Esq., First District Appellate Project, for Defendant
M. Jeffrey Speno, Esq., Mitchell S. Griffin, Esq., San Francisco,
Speno Law Offices, for Movant and Appellant.
Dennis J. Herrera, City Attorney, Kimiko Burton-Cruz, Joseph Sandoval, Deputy
City Attorneys, for Plaintiff and Respondent.
In these dependency proceedings, the mother appeals from an order
terminating parental rights and freeing the minor for adoption and
the maternal grandmother appeals an order denying a petition under
Welfare and Institutions Code section 388.
[FN1] We affirm both orders.
All further statutory citations are to the Welfare and Institutions
Code, unless otherwise indicated.
The dependency proceedings concern the three children of Stephanie R.,
a single mother who was alleged to suffer from a
mental illness that impaired her ability to care for the
children and maintain a safe and sanitary home. The youngest
of the children, Aaron R., was three months old when
the dependency petition was filed in San Francisco Superior Court
on October 27, 2000. The initial detention order filed October
30, 2000, placed Aaron in the custody of his maternal
grandmother, Irie P., together with his older siblings, E. R.,
then age 10, and Earl, then age 11. On January
30, 2001, following jurisdictional and dispositional hearings, the court placed
Aaron and E.R. with a foster parent, Michelle R., who
resided in Stockton, California [FN2];
the oldest brother, Earl, was returned to Irie P.'s care
on April 13, 2001.
Since mother and foster parent have the same last initial,
we will hereinafter refer to them, to the grandmother, and
to the three minors by first names or initials only.
The court uses the first names and initials for clarity
and no disrespect is intended.
On May 9, 2002, the court terminated reunification services for
the mother and placed Aaron in the long-term foster care
of Michelle, subject to six-month review. The Department of Human
Services' (DHS) reports submitted for the hearings on October 22,
2002, and April 22, 2003, found that Aaron was thriving
in Michelle's care, but reported problems associated with the mother's
visitation of Aaron and his older brother, E.R. The status
review report for the April hearing mentions that Michelle was
considering adoption and that a home study was then in
On June 20, 2003, the DHS filed an interim review
report that stated that it had received an approved adoption
home study for Michelle and recommended that the court schedule
a section 366.26 implementation hearing to modify the permanent plan
from long-term foster care to adoption. After several continuances, the
court held a contested section 366.26 referral hearing on November
7, 2003, and set the case for a section 366.26
hearing the next year following receipt of a DHS report.
The hearing was rescheduled and continued several times and ultimately
held on August 5 and 13, 2004.
The 366.26 report filed by the DHS gave a highly
favorable evaluation of Michelle as a prospective adoptive parent and
reported that the DHS had suspended visits with the mother,
Stephanie, because of difficulties encountered in past visits. In January
and February 2004, the DHS arranged for Aaron and E.R.
to visit their older brother Earl, who remained in the
custody of Irie P.
In the year 2004, Irie P., became an active participant
in the dependency proceedings. Michelle reported that the grandmother "called
the children infrequently" and "appeared superficial in these contacts." Nevertheless,
on April 27, 2004, Irie P. filed a petition under
section 388 for modification of the previous order to provide
for placement of Aaron and E.R. with her under a
guardianship and **924
"ultimately adoption." The court summarily denied the petition at a
hearing on April 28, 2004.
About this time, E.R. expressed a desire to live with
his grandmother and, acceding to his request, the DHS placed
him with Irie P. at the end of April 2004.
On July 1, 2004, Irie P. filed a second petition
requesting "transition of child [Aaron] from present foster care location
to grandmother's [Irie P.'s] house." [FN3]
The petition relied on the recent change in E. R.'s
custody as a change of circumstances and argued that the
preservation of sibling relationships called for placement of all three
children with her. Shortly thereafter, E. R.'s attorney filed a
388 petition that opposed the proposed adoption of Aaron by
Michelle and requested that Aaron be given the same placement
as E.R. to preserve the sibling relationship.
The petition does not identify a particular order requiring modification,
but we think it can only be reasonably construed as
seeking modification of the order filed May 9, 2002, placing
Aaron in a foster home. In effect, it seeks a
modification of this order so as to place the child
with the grandmother.
Before the scheduled August hearing, Aaron's attorney filed an ex
parte application for affirmation of Michelle's status as de facto
parent of Aaron and suspension of sibling visitation between Aaron
and his older brothers. The application noted that Aaron had
been in Michelle's custody nearly all his life and asked
that the determination of her de facto parent status be
made on an expedited basis so that she could appear
at the hearing. On July 27, 2004, Michelle herself requested
to be declared Aaron's de facto parent. On July 30,
2004, the trial court granted Michelle's request for de facto
parent status and appointed counsel to represent her at the
In the same ex parte application, Aaron's attorney represented that
E.R. and Earl had been arrested twice for robbery since
E.R. joined the home of Irie P. The
application also described an unsuccessful visitation on June 23, 2004,
in which E.R. had treated Aaron with indifference and engaged
in a *702
hurtful teasing behavior. A few days later, Aaron's attorney supplemented
his application with the notes of the social worker regarding
his observation of the sibling visitation. Acting on this information,
the court suspended any further visitation between Aaron and E.R.
until therapeutic visits could be arranged.
At the commencement of the hearing on August 5, 2004,
the court summarily denied Irie P.'s section 388 petition and
the portion of E. R.'s section 388 petition seeking a
change in Aaron's placement. The court granted the portion of
E. R.'s petition asking for permission to participate in the
hearing for the purpose of addressing the significance of the
sibling relationship. With regard to Irie P.'s participation, the court
stated that she could be present at the hearing and
express her views but would not be entitled to cross-examine
witnesses since she was "technically" not a party.
The bulk of the hearing was devoted to cross-examining the
DHS social workers, James Gould and Kossouth Bradford, who had
been assigned to the cases of Aaron and E. R.,
respectively. The direct testimony of both social workers consisted of
an offer of proof to which they expressed agreement. Bradford
was most troubled by disruption of the sibling relationship but,
like Gould, he thought that Aaron would benefit more from
adoption by Michelle than from maintaining his
relationship with E.R. Near the close of the hearing, Marchia
P., the sister of the mother, Stephanie, made a brief
statement to the court. Irie P. then addressed the court
defend her qualifications to parent the boys.
In an order filed August 24, 2004, the trial court
terminated the parental rights of Stephanie to Aaron and referred
him to the DHS for adoption. Irie P. appeals the
denial of her section 388 petition at the hearing on
August 5, 2004. The mother, Stephanie, appeals the order filed
August 24, 2004, terminating her parental rights to Aaron and
ordering adoption as the permanent plan for the minor.
A. Grandmother's Standing
At the outset, we face the perplexing question of the grandmother's standing
to appeal the order denying her petition under section 388. The
right to appeal in dependency cases is governed by section 395, which
provides: "A judgment in a proceeding under Section 300 may
be appealed from in the same manner as any final judgment, and any subsequent
order may be appealed from as from an order after judgment; ..."
The term "judgment" in the statute refers to the dispositional
order in a dependency proceeding. (In
Meranda P. (1997) 56
Cal.App.4th 1143, 1150, 65 Cal.Rptr.2d 913.) Subsequent orders subject
to appeal as "
orders after judgment" include orders denying section 388 petitions
to modify an order of the juvenile court. Such orders are reviewed
for abuse of discretion. (In
re Stephanie M. (1994)
7 Cal.4th 295, 316-318, 27 Cal.Rptr.2d 595, 867 P.2d 706; In
re Josiah S. (2002)
102 Cal.App.4th 403, 419, 125 Cal.Rptr.2d 413.)
The right of appeal, however, extends by statute only to
a "party aggrieved" by the order appealed from. (Code Civ.
Proc., § 902;
re Crystal J.
(2001) 92 Cal.App.4th 186, 190-191, 111 Cal.Rptr.2d 646; 9 Witkin,
Cal. Procedure (4th ed. 1997) Appeal, § 181,
p. 237.) 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. We construe
the petition as being from the order filed May 9,
2002, placing Aaron in long-term foster care. She sought to
change that order so as to place him in her
care during the dependency proceedings, but filed the petition shortly
before the permanency hearing that brought the dependency proceedings to
a close. Whether a child is in the custody of
a foster parent or relative during the dependency proceedings has
no bearing on the issue of the parent's reunification rights
or other parental rights. Hence, the modification of the custody
order filed May 9, 2002, could not affect the order
terminating the mother's reunification rights and setting a permanency hearing
or the outcome of the permanency hearing itself. The change
in custody could give the grandmother only a fleeting
status as Aaron's caretaker before he is placed for adoption
pursuant to the juvenile court's order at the permanency hearing.
Nevertheless, we conclude that
the granting of the section 388 petition would give Irie P. the protected
rights of a "relative caretaker" under section 366.26, subdivision
(k). The subdivision provides: "the application of any
person who, as a relative caretaker or foster parent, has cared for a
dependent child for whom the court has approved a permanent plan for adoption
... shall be given preference with respect to that child over all other
applications for adoptive placement if the agency making the placement
determines that the child has substantial emotional ties to the relative
caretaker or foster parent and removal from the relative caretaker or
foster parent would be seriously detrimental to the child's emotional
well-being." Subdivision (k) is the counterpart **926
of section 361.3, which applies to earlier stages of the dependency proceedings.
Both statutes assure interested relatives that their applications
for the child's custody "will be considered before a stranger's application."
(In re Sarah S.
(1996) 43 Cal.App.4th 274, 285, 50 Cal.Rptr.2d 503; Cesar
V. v. Superior Court
(2001) 91 Cal.App.4th 1023, 1032, 111 Cal.Rptr.2d 243.)
The DHS objects that Irie P.
has no right to appeal under California Rules of Court, rule 1435(b),
which provides: "In proceedings under section *704
300, the petitioner, child, and the parent or guardian each
has the right to appeal from any judgment, order, or decree specified
in section 395." Rule 1412(e), gives a child's custodian the
right to petition for recognition as de facto parent with standing to
participate as a party in dependency hearings. (In
re Patricia L. (1992)
9 Cal.App.4th 61, 67, 11 Cal.Rptr.2d 631.) Irie P. did not seek
recognition as a de facto parent; instead, the court conferred that status
on the long-term foster parent, Michelle.
It is clear, however, that the
Judicial Council does not have power to restrict the statutory right of
appeal in promulgating rules of court. Indeed, we "may not
draw any inference regarding legislative intent from rule 1435(b)."
(In re Joel H.
(1993) 19 Cal.App.4th 1185, 1195, 23 Cal.Rptr.2d 878.) If rule 1435
were construed to define a right of appeal more restrictive than the right
of appeal afforded by section 395 and Code of Civil Procedure section
902, it would be "to that extent void." (In
re Rachael C. (1991)
235 Cal.App.3d 1445, 1455, 1 Cal.Rptr.2d 473.)
We find support for our analysis in Cesar
V. v. Superior Court, supra,
91 Cal.App.4th 1023, 111 Cal.Rptr.2d 243. The case concerned a
writ petition to secure compliance with the relative placement preference
of section 361.3. At a 12-month review hearing, the parties
stipulated to the placement of two minor children with the
paternal grandmother. The social services agency, however, soon determined that
the grandmother was not a suitable placement and placed
the children instead in a prospective adoptive home. When the
trial court ruled that the agency acted within the scope
of its statutory authority, the grandmother filed a petition for
writ of mandate. The appellate court upheld her standing to
seek review of her request for a relative placement: "[The
grandmother], although not a party, has standing to seek appellate
review of the denial of her request for placement under
section 361.3. '[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.' [Citation.] [The
grandmother's] separate interest in her relationship with Anthony, her grandson,
is legally protected in section 361.3, which confers upon a
grandparent the right to preferential consideration for placement. '[A]ny person
having an interest recognized by law in the subject matter
of the judgment, which interest is injuriously affected by the
judgment' is considered a 'party aggrieved' for purposes of appellate
at pp. 1034-1035, 111 Cal.Rptr.2d 243.)
Similarly, the grandmother here can assert an interest in her
relationship with Aaron protected by section 366.26, subdivision (k). Since
this statutory preference applies only to "caretaker relatives," the denial
of her section 388 petition for a change of the
child's custody with a foster parent had the effect of
depriving her of the opportunity of claiming preferential consideration in
the selection of an adoptive parent under this
statute. The case of In
re Miguel E.
(2004) 120 Cal.App.4th 521, 15 Cal.Rptr.3d 530, on which the
relies, is distinguishable. The minors there were removed from the
grandparents' home following a hearing on a section 387 petition.
The grandparents did not apply for de facto parent status
at the hearing. Dismissing their appeal, the court held that
the grandparents could not claim standing to appeal as de
facto parents since they had failed to seek de facto
parent status in the trial court. In contrast, the grandmother
here did file a section 388 petition that would have
given her a claim of preference under section 366.26, subdivision
(k), if it had been granted. She now has standing
to appeal the denial of this petition.
B. Denial of Section 388 Petition
Section 388 sets forth separate
tests relating to a change of circumstance and the best interests of the
child: "(a) 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 ... for
a hearing to change, modify, or set aside any order of court previously
made .... [¶] ... [¶] (c) If it appears that the best interests
of the child may be promoted by the proposed change of order, ... or termination
of jurisdiction, the court shall order that a hearing be held...."
Thus, "[i]t is not enough for a parent to show just
a genuine change of circumstances under the statute. The parent
must show that the undoing of the prior order would be in
the best interests of the child." (In
re Kimberly F. (1997)
56 Cal.App.4th 519, 529, 65 Cal.Rptr.2d 495.)
As stated in California Rules
of Court, rule 1432(a), "[s]uch petitions are to be liberally construed
in favor of granting a hearing to consider the parent's request. [Citations.]
The parent need only make a prima facie showing to trigger the right
to proceed by way of a full hearing." (In
re Marilyn H. (1993)
5 Cal.4th 295, 309-310, 19 Cal.Rptr.2d 544, 851 P.2d 826.) "
'A "prima facie" showing refers to those facts which will sustain
a favorable decision if the evidence submitted in support of the allegations
by the petitioner is credited. [Citation.]' [Citation.]"
(In re Josiah
S., supra, 102 Cal.App.4th
403, 418, 125 Cal.Rptr.2d 413.)
review the juvenile court's summary denial of a section 388 petition for
abuse of discretion." (In
re Anthony W. (2001)
87 Cal.App.4th 246, 250, 104 Cal.Rptr.2d 422.) In general, "when
a court has made a custody determination in a dependency proceeding, '
"a reviewing court will not disturb that decision unless the trial
court has exceeded the limits of legal *706
discretion by making an arbitrary, capricious, or patently absurd determination
[citations]." ' [Citations.]" (In
re Stephanie M., supra,
7 Cal.4th 295, 318, 27 Cal.Rptr.2d 595, 867 P.2d 706.)
agree that the section 388 petition sets forth a change of circumstances
by alleging that the middle sibling, E. R., was transferred to the
grandmother's custody at the end of April 2004. Liberally construing
the petition, we are also obliged to credit the allegation that the younger
siblings had formed a "bond" that would be severed by Aaron's
placement in a separate adoptive home. (See In
re S.M. (2004) 118
Cal.App.4th 1108, 1121, 13 Cal.Rptr.3d 606; § 16002, subd.
(a).) Nevertheless, we hold that the trial court acted within its
discretion in ruling that the grandmother failed to make a prima facie
case that a change in the custody order would be in the best interests
of the child.
The record discloses that Aaron had lived with Irie P.
for three months between the age of three months and
six months. Since this brief period in his **928
infancy, he had spent his entire life in the home
of the prospective adoptive parent, Michelle. The petition contains nothing
to rebut the mass of evidence in the record indicating
that Aaron was thriving under Michelle's care. The DHS reports
indicated that he exceeded normal developmental milestones and was "bonded
emotionally and physically to his foster mother." Again, the petition
fails to make a showing of any significant contacts between
Irie P., and the child. The only evidence of a
relationship between them consisted of Irie P.'s conclusory allegation that
she had "formed a bond with Aaron." Elsewhere the record
disclosed infrequent contact between the grandmother and Aaron in the
three and a half years he had been in Michelle's
care. Finally, the conclusory allegations of the petition contain nothing
Aaron's needs and the comparative advantages of the two homes.
Irie P. criticizes Michelle's conduct on certain occasions but does
not attempt to establish her own superior qualifications to care
In short, we think that the trial court could reasonably
infer that, however liberally construed, the petition fell short of
establishing any realistic likelihood that the transfer of the custody
of a healthy child to an unfamiliar home could be
justified by the preservation of a bond with a sibling
10 years his senior. In reaching this conclusion, we do
not need to rely on other evidence that the sibling
had become directly involved in serious criminal activity shortly after
coming within the care and custody of Irie P.
Since Irie P. appeals only from the denial of her
section 388 petition, our conclusion that the court acted within
its discretion in summarily denying the *707
petition is dispositive of her appeal. We do not need
to consider other issues presented by the record of the
C. Indian Child Welfare Act
The mother, Stephanie, appeals
on the sole ground that the trial court failed to make a determination
as to whether Aaron was an Indian child within the meaning of the Indian
Child Welfare Act of 1978. (25 U.S.C. § 1901 et seq.)
Throughout the dependency proceedings, the DHS reports stated repeatedly
that "the Indian Child Welfare Act does not apply." The
only mention of Indian heritage is found in Irie P.'s statement to the
court at the end of the permanency
hearing. As noted earlier, the grandmother then said, "I am
a member of the Black Native American Association in Fort Point [sic
] Presidio Historical Association." The mother claims that
this statement was enough to trigger an obligation of the court to inquire
as to the child's membership in an Indian tribe.
The Indian Child Welfare Act provides that in dependency proceedings
"where the court knows or has reason to know that
an Indian child is involved, the party seeking the ...
termination of parental rights to ... an Indian child shall
notify ... the Indian child's tribe ... of the pending
proceeding and of their right of intervention." (25 U.S.C. § 1912(a).)
California Rules of Court, rule 1439, which implements ICWA's notice
provisions in California courts, similarly provides for notice "whenever there
is reason to believe the child may be an Indian
child...." (Rule 1439(f)(5).) The rule defines "Indian child" as a
person who "(A) is a member of an Indian tribe,
(B) is eligible for membership in an Indian tribe and
is the biological child of a member of an Indian
tribe." (Rule 1439(a)(1).) The term "Indian tribe" in turn is
defined to mean those organized groups "eligible for services provided
to Indians by the Secretary of the Interior...." (Rule 1439(a)(6);
see also In
re Marinna J.
(2001) 90 Cal.App.4th 731, 738, 109 Cal.Rptr.2d 267.)
We consider that the grandmother's brief allusion to her own
membership in an historical
association falls far short of giving the court reason to
know that Aaron may be an Indian child. The historical
association was not itself a tribe, and the record contains
no information regarding its requirements of membership. We find that
the case comes directly under the precedent of In
(2003) 106 Cal.App.4th 152, 130 Cal.Rptr.2d 276. There, the paternal
grandmother stated at the section 366.26 hearing that " 'the
young man may have Indian in him.' " (In
re O.K., supra,
at p. 155, 130 Cal.Rptr.2d 276.) After a careful review
of the circumstances that may give a juvenile court reason
to believe that a child is an Indian child, the
court held that the grandmother's statement "was too vague and
speculative to give the juvenile court any reason to believe
the minors might be Indian children." (Id.
at p. 157, 130 Cal.Rptr.2d 276.)
We hold that the court had no obligation to make
a further or additional inquiry in the absence of any
evidence supporting a reasonable inference that the child might have
Indian heritage. (In
re Aaliyah G.
(2003) 109 Cal.App.4th 939, 942, 135 Cal.Rptr.2d 680.)
The orders subject to appeal are affirmed.
We concur: STEIN, Acting P.J., and MARGULIES, J.
130 Cal.App.4th 697, 29 Cal.Rptr.3d 921, 05 Cal. Daily Op.
Serv. 5558, 5 Daily Journal D.A.R. 7593