Filed 8/20/20 In re Baby Girl B. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



 In re BABY GIRL B., a Person Coming
 Under the Juvenile Court Law.

 SAN BERNARDINO COUNTY
 CHILDREN AND FAMILY SERVICES,                                           E074308

          Plaintiff and Respondent,                                      (Super.Ct.No. J279036)

 v.                                                                      OPINION

 J.S.,

          Petitioner and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Annemarie G.

Pace, Judge. Affirmed.

         Lelah S. Fisher, under appointment by the Court of Appeal, for Appellant.

         Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County

Counsel, for Plaintiff and Respondent.




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       Petitioner and appellant J.S. (Aunt) is the sister of Baby Girl B.’s (the Child)

mother (Mother). Aunt cared for the Child for nearly 10 months before she voluntarily

relinquished the Child after months of vacillating. Aunt appeals from the court’s denial

of her petition under Welfare and Institutions Code section 3881 asking to have the Child

returned to her care. For the reasons explained below, we affirm.

                                 FACTS AND PROCEDURE

Detention – December 2018

       The Child was born three weeks premature in December 2018. Both she and

Mother tested positive for methamphetamines. Mother was homeless and did not know

who the Child’s father was. Mother became combative shortly after giving birth and was

placed on a section 5150 psychiatric hold.

       Aunt was at the hospital and asked to be assessed for placement when the San

Bernardino County Children and Family Services (CFS) social worker arrived. Aunt

informed the social worker she was a certified nursing assistant, had two children of her

own, and had room in her home for the Child.

       On December 18, 2018, CFS filed a section 300 petition alleging under

subdivision (b)(1) (failure to protect) that Mother had a substance abuse problem, could

not provide the Child with basic necessities, and had untreated mental health issues; CFS

alleged under subdivision (j) (abuse of sibling) that Mother had failed to reunify with two

previous children in 2014 and 2017.

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

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         At the December 19, 2018, detention hearing, the court found a prima facie case to

detain the Child and vested CFS with temporary care and placement. CFS placed the

Child with Aunt that day. At that time, Aunt indicated she was willing to adopt the

Child.

Jurisdiction and Disposition – January 2019

         At the January 9, 2019, jurisdiction and disposition hearing, the court found true

each of the allegations and bypassed services to Mother. The court removed the Child

from Mother and placed Child in the care, custody, and control of CFS. In the report

prepared for that hearing, CFS noted “the child does not have any significant or

immediate needs at this time, however her health and development will need to be closely

monitored due to her exposure to drugs in utero.”

Parental Rights Terminated – June 2019

         At the June 26, 2019, section 366.26 hearing, the court terminated Mother’s

parental rights and set a permanency planning hearing for December 16, 2019.

         In the section 366.26 report, CFS noted that Aunt reported that the Child seemed

to be slow in her development and was not meeting the same milestones as had Aunt’s

biological children. The Child was not sitting up or trying to hold her bottle. In February

2019, CFS had sent a referral for Screening, Assessment, Referral and Treatment

services, but the service provider told Aunt they do not provide services for children the

Child’s age. The social worker followed up on the referral but had received no reply by

early June. Aunt reported the Child was fussy, jittery, and cried often; the pediatrician



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said this could be caused by the drug exposure in utero. The social worker promised to

submit a referral to a neurologist to evaluate the Child. The record does not indicate the

Child ever saw a neurologist.

       The report noted Aunt and the Child were developing a mutual attachment, that

Aunt stated, “I treat her like my daughter,” and Aunt wanted to adopt the Child because

“I don’t want her to go to a foster home or get adopted by other people.” Aunt lived in a

five-bedroom house with a roommate/landlord, the Child, and her own daughters, ages 17

and two. Aunt worked as a nursing assistant.

Relinquishment, Section 388 Petition, Status Review – August to December 2019

       CFS filed a status review report on December 11, 2019. According to the report,

Aunt contacted the social worker on August 23 and asked to have the Child removed

from her care. Aunt stated she was exhausted and burnt out from caring by herself for the

Child and her own two children. Aunt contacted the social worker again on August 24

stating she had changed her mind. Aunt had found a good daycare facility that would

allow her to return to work. Aunt believed this would relieve some of the stress of caring

for the Child. Aunt felt better about keeping the Child because the Child would be

receiving therapy and developmental services, and she believed the Child would grow out

of her behaviors. Aunt stated she had been thinking about having the Child removed for

the past several months but “just couldn’t do it.”

       On October 22, 2019, during a monthly contact with the Child, Aunt told the

social worker she had thought about it and could no longer care for the Child. It appears



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that at that time therapy services had only just begun, and regional center paperwork had

only recently been completed. Aunt reported that the Child continued to whine and cry a

lot. Aunt’s roommate/landlord refused to be Live Scanned, so Aunt could not continue to

live in that house with the Child. Aunt expressed she had thought she would have more

help from family and friends. Aunt stated it was difficult to relinquish the Child, but she

was decided. Aunt was about to move out of the house and stated she would keep the

Child until CFS found another adoptive home.

       On October 26, 2019, Aunt called the CFS “after hours” line and asked that

someone come to pick up the Child. According to the report, “the child is constantly

screaming and crying; medical doctor did not seem concerned.” Aunt brought the Child

in later that evening to relinquish her. CFS placed the child in a foster home the

following day.

       Later, Aunt told the social worker she believed she had made a mistake, regretted

her decision, and “wants her baby back.” After speaking with a supervisor about whether

to hold a child and family meeting, the social worker told Aunt that it would not be in the

best interest of the Child to consider re-placing her with Aunt.

       On November 26, 2019, Aunt filed a section 388 petition asking for the Child to

be placed again in her home. Aunt stated that the placement would be better for the

Child, “[b]ecause I had my niece since birth and my situation has changed for the best of

the baby and myself. I have the support and care I need to care for my niece.” The court




                                             5
set the hearing on the petition for December 16, 2019, the scheduled permanency

planning hearing date.

       On December 12, 2019, the new foster parent filed a Judicial Council Form JV-

295 de facto parent request. The foster mother attached a letter stating the Child had

bonded to her and her family and is now “happy, smart, loving and stabilized in her

crying and emotions.” The foster mother explained that, while the Child cries and whines

a lot, she had been working with the Child and spending one-on-one time together to

create a bond and sense of security, and that the “non-stopping crying has ceased.” The

court set the hearing on the request for December 16.

       At the December 16, 2019 hearing, the court heard from counsel and from Aunt.

Aunt explained that she loved and missed the Child, and that she had been “going

through something” and “needed some assistance.” Counsel for the Child asked the court

to deny the petition without a hearing because Aunt had frequent changes of heart and

was not a stable placement. The court denied Aunt’s section 388 petition on the basis

that the Child needs a stable placement and permanence, and the incidents in August and

October showed that Aunt is not a stable placement. The court denied the foster mother’s

de facto parent request without prejudice.

                                       DISCUSSION

       Aunt argues the trial court abused its discretion when it denied her section 388

petition without an evidentiary hearing. For the reasons stated below, we find no abuse

of discretion.



                                             6
       When the court has ordered the child services agency vested with placement

decisions, as it did here at the detention and jurisdiction/disposition hearings, a section

388 petition is the proper method for requesting the re-placement of a dependent child,

even with no prior court order removing placement. (In re Matthew P. (1999) 71

Cal.App.4th 841, 848-849.)

       “Section 388 permits ‘[a]ny parent or other person having an interest in a child

who is a dependent child of the juvenile court’ to petition ‘for a hearing to change,

modify, or set aside any order of court previously made or to terminate the jurisdiction of

the court’ on grounds of ‘change of circumstance or new evidence.’ (§ 388, subd. (a).)

‘If it appears that the best interests of the child may be promoted by the proposed change

of order, . . . the court shall order that a hearing be held . . . .’ [Citation.] Section 388

thus gives the court two choices: (1) summarily deny the petition or (2) hold a hearing.

[Citations.] In order to avoid summary denial, the petitioner must make a ‘prima facie’

showing of ‘facts which will sustain a favorable decision if the evidence submitted in

support of the allegations by the petitioner is credited.’ [Citations.]” (In re Lesly G.

(2008) 162 Cal.App.4th 904, 912.)

       There are two requirements for a prima facie showing: the petitioner must show

that (1) there is a genuine change of circumstances or new evidence, and (2) a

modification of a previous order would be in the best interests of the child. (In re

Anthony W. (2001) 87 Cal.App.4th 246, 250.) We review a summary denial of a hearing

on a modification petition for abuse of discretion. (In re A.S. (2009) 180 Cal.App.4th



                                                7
351, 358.) “Under this standard of review, we will not disturb the decision of the trial

court unless the trial court exceeded the limits of legal discretion by making an arbitrary,

capricious or patently absurd determination.” (Ibid.)

       The juvenile court’s decision to summarily deny Aunt’s section 388 petition was

not arbitrary, capricious, or patently absurd. Although Aunt argues here that her

difficulties were caused by lack of services and respite care, she did not make a prima

facie showing in her petition or in court that a genuine change in circumstances had

occurred. On the Judicial Council Form JV-180 “Request to Change Court Order,” Aunt

left blank the section asking for new information or circumstances. In the section asking

why the proposed change would be better for the Child, Aunt alleged that she now had

“the support and care I need to care for my niece,” without describing the nature or

source of that support and care and, more important, any reason to suggest that it would

be stable for the foreseeable future. At the hearing on December 16, 2019, Aunt told the

court that she deserved a second chance, stating vaguely that she had been “going

through something” and “needed some assistance.” Again, although she assured the

court that “if I had that chance to bring her back home, it wouldn’t be nothing like this

ever again,” she provided no facts that could buttress or provide context for her

assertions, and thus failed to support a prima facie case that the circumstances genuinely

had changed.

       Neither did Aunt make a prima facie case that returning the Child to her care

would be in the Child’s best interest. In the petition, Aunt alleged: “Because I had my



                                              8
niece since birth and my situation has changed for the best of the baby and myself. I

have the support and care I need to care for my niece.” At the hearing on her petition,

Aunt stressed that the social workers had never faulted her for how she cared for the

Child, that she had been a good parent, and that she loved the Child and wanted her back.

However, this was not a prima facie case that returning the Child to her would be in the

Child’s best interest, given the evidence that she told the social worker in August 2019

that she wanted to relinquish the Child and had been thinking about it for a while, that she

again told the social worker on October 22 that she wanted to relinquish the Child but

could keep her until CFS found an adoptive home, and that just four days later she

dropped off the Child with CFS, stating that the Child was “constantly screaming and

crying.” In contrast, the evidence about the child’s current placement was that the foster

mother’s one-on-one attention had ameliorated the Child’s previously constant crying and

that the Child was happy and acting like “a normal 1 year old.”

       We commend Aunt for stepping up to care for her sister’s child, both at birth and

thereafter. However, we cannot find that the court abused its discretion when it denied

her section 388 petition, as Aunt provided no facts to support her allegation of a change

of circumstance since she relinquished the child, and the court’s finding that she had not

shown she could provide a stable placement and permanence was not an unreasonable

basis for concluding that re-placing the Child with Aunt would not be in the Child’s best

interest.




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                                    DISPOSITION

     The court’s order denying Aunt’s section 388 petition is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                            RAPHAEL
                                                                          J.


We concur:


MILLER
              Acting P. J.


FIELDS
                        J.




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