IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
April 21, 2011
IN RE L.S., A PERSON COMING UNDER THE JUVENILE COURT LAW.
BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
C.S., DEFENDANT AND APPELLANT; P.S., APPELLANT.
(Super. Ct. No. J34645)
The opinion of the court was delivered by: Butz , J.
In re L.S.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
P.S., maternal grandmother of the minor, and C.S., mother of the minor, appeal from orders of the juvenile court denying P.S.'s petition for modification of the minor's placement from foster care to relative care.*fn1 (Welf. & Inst. Code, §§ 388, 395.)*fn2 Appellant contends the juvenile court's denial of her petition was an abuse of discretion. We shall affirm.
The Butte County Department of Employment and Social Services (the Department) filed a petition to remove the two-year-old minor from parental care in March 2009 due to the father's neglect and arrest on drug-related charges and mother's ongoing incarceration on child endangerment charges. The parents were participating in voluntary services prior to the removal. The court detained the minor and, at disposition, the parents were offered reunification services. Subsequently, both were sentenced to state prison and the Department filed a petition for early termination of services. The petition was granted in January 2010.
Appellant is the guardian for four of the minor's half siblings. Following the mother's arrest, appellant sought placement of this minor as well. The Department considered guardianship for all five children. However, the family law investigation on a request for modification of custody orders recommended against placing another child with appellant because the four children in her custody had severe special needs and behavioral issues and placing the minor there could put the minor at risk for injury.
After the minor was removed from parental custody, appellant again sought placement of the minor. At that time, one of the persons living in her home had a non-waivable felony conviction which prevented appellant from being considered for placement. Further, there was continued concern that, since the other four minors in her care had special needs, adding a fifth child would have a negative impact on the care of all the minors, particularly since this minor is a client of Far Northern Regional Center and receiving services three days a week.
Appellant sought review of the denial of approval for placement. In June 2009 the Department reconsidered and approved appellant for placement with specific conditions. Appellant reapplied for placement. However, in August 2009 the Department decided against placement. The written decision cited the best interests of the minor, noting that the minor had substantial developmental deficits and was a Far Northern Regional Center client participating in extensive services. The Department was concerned that appellant would be unable to meet the minor's needs in addition to continuing to address the substantial needs of the four children already living with her. Additionally, the Department had recently substantiated allegations of appellant's neglect of the four minors living with her and, while the home was currently more stable as the result of outside support services, the allegations had been substantiated. In connection with this ground, the Department was concerned about appellant's denial and minimization of the criminal activities of close family members. The Department also questioned whether appellant had the present ability to protect the minor from her parents. Appellant was directed to seek review from the juvenile court.
In December 2009, appellant filed a petition for modification seeking placement of the minor, alleging it was in the best interest of the minor to be with her half siblings. In support of the petition, appellant provided letters attesting to her care of the minors who lived with her.
The court held a hearing on the modification request in March 2010. Appellant testified mother and the five minors had lived with her for a time prior to mother's arrest and she was close to the minor. Appellant said her request for placement after detention was denied because the Department believed caring for one more child would be too much for her. Since her earlier request, she had moved to a larger residence. The four children living with her are all in different schools, two are in separate community day schools and one is in a day treatment school. Some are in counseling, one is on medication, and one has learning disabilities and speech delays; however, all are doing better than they were when placement was first denied, although one child was recently suspended from school. Appellant spends her time caring for the children and helping out at their schools. Appellant visited the minor weekly, sometimes bringing the minor's half siblings. She was not aware that the minor had problems beyond speech delays. Appellant believed she could meet the minor's needs as well as those of the four children she currently cared for.
The court found appellant had not met her burden to show the proposed order would be in the minor's best interests. The court referred to the minor's special needs and the fact that appellant already had four older children in the home with special needs and concluded it would be overwhelming to add yet another special needs child to the home. The court denied the petition as not in the minor's best interests.
Appellant contends the juvenile court abused its discretion in denying the petition for modification because appellant established she provided excellent care for the children in her custody and had a long relationship with the minor. Appellant contends it is mere speculation that she would be unable to care for another child.
A person who has an interest in a child who is a dependent child of the juvenile court may bring a petition for modification of any order of the juvenile court pursuant section 388 based on new evidence or a showing of changed circumstances.*fn3 "The [person] requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is preponderance of the evidence." (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
"In any custody determination, a primary consideration in determining the child's best interests is the goal of assuring stability and continuity." (In re Stephanie M., supra, 7 Cal.4th at p. 317.) The need for stability will often mean that continuing the current custody is in the best interests of the child. (Ibid.) The party seeking the change of placement must show changed circumstances that make a change of placement in the best interests of the child. (Ibid.)
Appellant presented evidence that she was meeting the challenges presented by the four children in her care and that they were showing improvement over time. Nonetheless, it was clear that the four children continued to have serious problems and each required significant support. When the children were first placed with appellant, she had difficulty meeting their needs as evidenced by the substantiated allegation of general neglect. This was ameliorated by provision of support services, which made it possible for appellant to continue the children's care. However, while the minor had lived with appellant for a time and appellant continued to visit the minor after she was placed in foster care, appellant did not recognize the severe delays, with the exception of speech delays, the minor suffered. Even when told of the minor's severe delays, appellant did not grasp the level of care the minor needed and the amount of intensive services necessary for her care. While appellant believes that caring for yet another child with serious problems would not overtax her personal resources or destabilize the progress the other children in her care have made, we cannot find that the juvenile court abused its discretion in declining to take a chance with the minor's current stable placement, which was meeting her needs, by moving her to a potentially chaotic home.
The orders of the juvenile court are affirmed.
We concur: RAYE, P. J. MURRAY , J.