Filed 4/19/13 In re Michael H. CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


In re MICHAEL H., a Person Coming
Under the Juvenile Court Law.


KERN COUNTY DEPARTMENT OF                                                              F065926
HUMAN SERVICES,
                                                                        (Super. Ct. No. JD128268-00)
         Plaintiff and Respondent,
                   v.
                                                                                   OPINION
SCOTT H.,
         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from an order of the Superior Court of Kern County. Louie L. Vega,
Judge.
         Roni Keller, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Theresa A. Goldner, County Counsel, and Paul E. Blackhurst, Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Wiseman, Acting P.J., Levy, J., and Poochigian, J.
       Appellant, Scott H., is the father of 17-month-old Michael, the subject of this
dependency appeal, who was detained and placed in foster care. After the dispositional
hearing in April 2012, Michael‟s maternal grandmother filed a Welfare and Institutions
Code section 3881 petition asking the juvenile court to place Michael with her. The
juvenile court denied the petition and subsequently terminated reunification services and
set a section 366.26 hearing.
       Scott appeals from the juvenile court‟s denial of the maternal grandmother‟s
section 388 petition. We affirm. The juvenile court properly exercised its discretion in
determining that Michael‟s best interest would not be served by a change of placement.
                    PROCEDURAL AND FACTUAL SUMMARY
       In February 2012, the Kern County Department of Human Services (department)
took then three-month-old Michael into protective custody because Scott and Nichole,
Michael‟s mother, were caring for him while under the influence of methamphetamine.
At the time, Scott, Nichole, and Michael were living with Nichole‟s mother, Michelle,
and Michelle‟s live-in boyfriend, Rex. Michelle and Rex are both drug addicts in
recovery. The department placed Michael in foster care.
       Nichole told the investigating social worker that she smoked methamphetamine on
and off over the prior five years and that she relapsed after Michael was born. She said
she did not use methamphetamine at Michelle‟s house because it was not allowed.
However, she helped Michelle take care of Michael while she (Nichole) was under the
influence of methamphetamine.
       Scott told the social worker that he had been using methamphetamine periodically
for approximately seven or eight years. In February 2011, he completed a drug diversion
program but relapsed the following May. He said his relapses consisted of a one-time

1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.



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use. Following his relapse in May 2011, he smoked methamphetamine several more
times but not in Michelle‟s house.
       Michelle stated that Scott and Nichole had been living with her for approximately
a month and a half before Michael was born. She did not know that Scott and Nichole
were using drugs until Nichole overdosed in her home in November 2011, six days after
Michael‟s birth. Nichole was transferred to the hospital where she remained for
approximately three days. During Nichole‟s hospitalization, Michelle was informed that
the department would be notified. She said she welcomed the department‟s involvement.
However, the department closed the case after a social worker visited Scott, Nichole, and
Michael several times in Michelle‟s home. Michelle told the social worker that she was
concerned about Scott and Nichole‟s drug use and tried to persuade the department to
provide them drug treatment and leave Michael in her care.
       Michelle also stated that she enlisted the help of a friend who worked for the
health department. Her friend visited her home every two to three weeks from December
2011 to February 2012 to make sure Scott and Nichole were taking care of Michael while
Michelle was working. She also said that she called the child abuse hotline in January
2012 but did not get a response. She called the hotline again several weeks later and
again got no response.
       The department filed a dependency petition on Michael‟s behalf alleging under
section 300, subdivision (b) that Scott and Nichole‟s drug use placed him at a substantial
risk of harm. The juvenile court ordered Michael detained pursuant to the petition and, at
an uncontested jurisdictional hearing, adjudged him a dependent of the court. The court
set the dispositional hearing for April 2012.
       Michelle retained an attorney who filed a section 388 petition several days before
the dispositional hearing asking the juvenile court to place Michael with Michelle. At the
time, the department was evaluating Michelle‟s home for placement.



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       In April 2012, the juvenile court conducted the dispositional hearing, ordered
Michael removed from parental custody, and ordered six months of reunification services
for Scott and Nichole. The juvenile court also ordered the department to arrange weekly
supervised visitation for Scott and Nichole and ordered visitation for Michelle to occur
concurrently with Nichole‟s. The juvenile court set a hearing on the section 388 petition
in May 2012 and a six-month review hearing in October 2012.
       The juvenile court continued the section 388 hearing and it was ultimately
conducted in August 2012. Meanwhile, in June 2012, the department completed its
inspection of Michelle‟s home for placement and approved her home. However, the
department denied Michelle‟s request for placement because she failed to protect Michael
from Scott and Nichole‟s drug use while Michael was living in her home.
       In its report for the section 388 hearing, the department informed the juvenile
court that Michael was placed with a foster family in March 2012 and was doing very
well. Michael‟s foster parents wanted to adopt him.
       In August 2012, the juvenile court conducted a contested hearing on Michelle‟s
section 388 petition. Michelle testified about her efforts to protect Michael while he was
in her home. Aside from contacting the department, she tried to minimize the time
Michael was left alone with Scott and Nichole. She estimated that he was only with them
three or four hours on a typical day. She said she considered forcing Scott and Nichole to
leave her house but was afraid they would take Michael with them. She thought she
could better protect Michael by allowing them to live with her. She also considered
pursuing a legal guardianship but Scott and Nichole would not consent to it. In addition,
Michelle did not have the resources to obtain legal assistance.
       Michelle further testified that she regularly visited Michael after he was removed
and that he displayed love and affection for her during their visits. She said she had the
financial means to support Michael and would take care of him full time if he were
placed in her care.

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       On cross-examination, Michelle testified about her own drug history. She said
that, at one time, she used methamphetamine “quite a lot” but she had not used it in eight
years. She suspected that Nichole was using drugs while pregnant with Michael because
Nichole was agitated and slept all day and was up all night. However, she never saw
Nichole and Scott use drugs or found drugs or drug paraphernalia in her home. She said
her suspicions were confirmed after Nichole overdosed. She begged Nichole and Scott to
get drug treatment and attend Narcotics Anonymous meetings, however, she could not
bring herself to report their drug use to the police.
       Michelle further testified on cross-examination that in February 2012,
approximately a week before Michael was taken into protective custody, Michelle saw
Nichole and Scott passed out on the bed with a methamphetamine pipe nearby. Michelle
said she did not call the police and regretted it.
       At the conclusion of the hearing, the juvenile court determined that a change in
Michael‟s placement was not in his best interest and denied Michelle‟s section 388
petition. Michelle filed a notice of appeal (F065673) challenging the juvenile court‟s
denial of her section 388 petition. The appeal was dismissed after she failed to file an
opening brief. Scott subsequently filed a notice of appeal from which this case arises.
       In October 2012, the juvenile court conducted the six-month review hearing.2
Neither Nichole nor Scott personally appeared. Their whereabouts were unknown and
they had not completed any of their reunification services, nor were they drug testing.
The juvenile court terminated their reunification services and set a section 366.26 hearing



2      Scott requested through his attorney that this court take judicial notice of the
department‟s social study report for the six-month review hearing filed in the juvenile
court on October 4, 2012, and the minute order of that hearing. We grant his request.
The report and the minute order are contained in the clerk‟s transcript and are relevant to
our analysis.



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in February 2013 to select a permanent plan. Neither Nichole nor Scott filed a writ
petition challenging the setting order.
                                      DISCUSSION
       Scott contends the juvenile court erred in denying Michelle‟s section 388 petition
on two grounds: (1) as Michael‟s grandmother, Michelle was entitled to the relative
placement preference pursuant to section 361.3; and (2) it was in Michael‟s best interest
to be placed with Michelle. Thus, he further contends, section 388 compelled the
juvenile court to issue an order placing Michael in Michelle‟s care.
       We conclude Scott failed to preserve the issue of relative placement by not
challenging the setting hearing by writ petition. We further conclude the juvenile court
did not abuse its discretion in deciding, under section 388, that Michael‟s best interest
would not be served by placing him with Michelle.
Section 388
       Under section 388, subdivision (a), a party may petition the juvenile court to
change, modify or set aside a previous court order. The petitioning party has the burden
of showing, by a preponderance of the evidence, there is a change of circumstances or
new evidence, and the proposed modification is in the child‟s best interest. (§ 388, subd.
(a); In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
       We review the denial of a section 388 petition for abuse of discretion. (In re
Jasmon O. (1994) 8 Cal.4th 398, 415.) Thus, we will not reverse unless the juvenile
court‟s decision was “„“arbitrary, capricious, or patently absurd”‟” (In re Stephanie M.
(1994) 7 Cal.4th 295, 318 (Stephanie M.)) and “„exceeded the bounds of reason‟” (id. at
pp. 318-319.)
       In Michelle‟s section 388 petition, she identified the change of circumstances as a
favorable evaluation of her home. As the record reflects, the department in fact approved
her home for placement and there is no dispute that the approval constitutes a change of
circumstances for purposes of section 388. Thus, the issue is whether the juvenile court

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abused its discretion in determining that removal of Michael from his foster home and
placing him with Michelle was not in his best interest.
       In Michelle‟s section 388 petition, she asserted the relative placement preference
under section 361.3 and the permanence and stability she could provide Michael as
reasons why it would serve his best interests to be placed with her. In his appeal, Scott
argues that Michelle was entitled to placement under section 361.3 once the department
approved her home. As we now explain, Michelle was not entitled to relative placement
preference and Scott forfeited the issue by not filing a writ petition. Nevertheless, the
ultimate consideration under sections 361.3 and 388 is the same; i.e., the best interest of
the child. Further, a party may seek to modify a placement order on a section 388
petition until such time as parental rights have been terminated. (In re Ronald V. (1993)
13 Cal.App.4th 1803, 1805.) Consequently, though we do not reach the issue of
Michael‟s best interest under section 361.3, we review it in the context of Michelle‟s
section 388 petition since Scott‟s parental rights are still intact.3
Relative Placement
       The relative placement preference is set out in section 361.3. It gives “preferential
consideration” to a request by a relative of a child who has been removed from parental
custody for placement of that child. “„Preferential consideration‟ means that the relative
seeking placement shall be the first placement to be considered and investigated.”
(§ 361.3, subd. (c)(1).) However, contrary to Scott‟s assertion, the relative placement
preference established by section 361.3 does not constitute “a relative placement
guarantee.” (In re Joseph T. (2008) 163 Cal.App.4th 787, 798, original italics.)
Nevertheless, it does “express[ ] a command that relatives be assessed and considered

3      We are informed that the section 366.26 hearing originally set for February 6,
2013, was continued until April 8, 2013. Even assuming the juvenile court terminated
Scott‟s parental rights at the continued hearing, his parental rights are intact until the
juvenile court‟s order is final.



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favorably, subject to the juvenile court‟s consideration of the suitability of the relative‟s
home and the best interest of the child.” (Stephanie M., supra, 7 Cal.4th at p. 320,
original italics.)
       The relative placement preference applies at the dispositional hearing and
thereafter “whenever a new placement of the child must be made....” (§ 361.3, subd. (d).)
However, relative placement no longer applies once the juvenile court terminates
reunification services. (In re Sarah S. (1996) 43 Cal.App.4th 274, 285-286.)
       In this case, Michelle raised the relative placement preference in her section 388
petition and Scott preserved it by challenging the juvenile court‟s denial of it by direct
appeal. However, the juvenile court terminated Scott and Nichole‟s reunification
services and set a section 366.26 hearing at the six-month review hearing in October
2012. The juvenile court‟s findings and orders issued at the setting hearing must be
challenged by writ petition (Cal. Rules of Court, rules 8.450 and 8.452) or they are
forfeited. Since Scott did not challenge the juvenile court‟s order terminating
reunification services, he failed to preserve the relative placement issue. Thus, it no
longer applies to Michelle and we are precluded from reviewing it as a factor in the
juvenile court‟s best interest analysis.4
Best Interests
       The question before the juvenile court at the section 388 hearing was whether a
change in placement was in Michael‟s best interest. In deciding that it was not, the
juvenile court stated it did not believe Michelle did not know that Nichole and Scott were
using methamphetamine while in her home given her own use of the drug and ability to
recognize someone who was using. In addition, the juvenile court noted that Michael had

4     In his reply brief, Scott asked this court to strike that portion of respondent‟s brief
addressing relative placement as not in conformance with California Rules of Court, rule
8.204(a)(1)(C) [citation to the record]. Since we are precluded from reviewing the issue,
we deny his request as moot.



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been in the same foster home for six months (March through August 2012), which it
considered a long-term placement. Under the circumstances, the juvenile court
determined that Michelle had not met her burden of proof under section 388 and that
placing Michael with her would not serve his best interest.
       We concur with the juvenile court‟s decision. Scott and Nichole were using
methamphetamine while caring for Michael. Michelle knew it and failed to take
appropriate measures to protect Michael. In addition, Nichole‟s methamphetamine use
was sufficiently severe that she overdosed. Under the circumstances, Michael could have
been seriously hurt while in her care. Further, the record does not support Scott‟s
contention on appeal that Michael was bonded to Michelle. Even if that were true, it
would not undermine the juvenile court‟s placement decision in this case.
       We conclude the juvenile court did not abuse its discretion in denying Michelle‟s
section 388 petition and affirm.
                                     DISPOSITION
       The juvenile court‟s order issued on August 14, 2012, denying Michelle‟s section
388 petition, is affirmed.




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