gno.law

In re Madison T. CA4/1

California Court of Appeal · D064709 · 2014-04-17 · Unpublished

Proceeding
appeal from an order
Trial court
Superior Court of San Diego County · No. CJ001094
Trial judge
Ronald F. Frazier
Outcome
affirmed — Affirmed.
Area
dependency
Panel
Alex C. McDonald (author), Judith D. McConnell, McINTYRE

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:42Z · confidence high

The trial court denied the mother's Welfare and Institutions Code section 388 petition to modify the child's placement to nonrelative extended family members, finding she failed to prove it was in the child's best interests, and instead ordered placement with the child's paternal aunt. The Court of Appeal affirmed the denial, concluding the trial court did not abuse its discretion in weighing the evidence regarding the safety and stability of the proposed placements.

Ruling reviewedStandardThe courtThe model
Denial of Welfare and Institutions Code section 388 petition for modification of placement
“We conclude the court properly considered all of the relevant factors in determining it was in Madison's best interests to be placed with Suzanne. We also conclude the court did not abuse its discretion in finding Kelly did not meet her burden to prove placement with the NREFMs, rather than Suzanne, was in Madison's best interests.”
abuse of discretioncorrectagree with court
The appellate court correctly applied the abuse of discretion standard to the denial of a section 388 petition. The record contains substantial evidence, including social worker testimony and CASA observations, supporting the trial court's finding that the alternative placement (with the aunt) was safer and more stable than the placement sought by the appellant (with nonrelative extended family members). The appellate court's review of the specific factors weighed by the trial court is consistent with the legal requirement to consider all circumstances in determining the child's best interests.

Authorities

  • relied: In re Shirley K. (2006) 140 Cal.App.4th 65 — Establishes the standard of review for the grant or denial of a petition for modification under section 388 is abuse of discretion.
  • relied: In re Casey D. (1999) 70 Cal.App.4th 38 — Supports the abuse of discretion standard of review for section 388 petitions.
  • relied: In re P. (2004) 123 Cal.App.4th 181 — Defines the burden of proof for a section 388 petition, requiring a showing of changed circumstances and that modification promotes the child's best interests.
  • relied: In re Michael B. (1992) 8 Cal.App.4th 1698 — Supports the requirement that a petitioner must show by a preponderance of the evidence that modification will promote the child's best interests.
  • relied: In re Stephanie M. (1994) 7 Cal.4th 295 — Establishes that the primary goal in determining a child's best interests is to assure stability and continuity for the child.
  • relied: In re Kimberly F. (1997) 56 Cal.App.4th 519 — Notes that the denial of a section 388 motion rarely merits reversal as an abuse of discretion.
  • relied: In re Marriage of Connolly (1979) 23 Cal.3d 590 — States that a court is bound to consider all of the circumstances before it in rendering a judgment or order.

The appellate opinion: sound — The opinion is sound because it correctly applies the abuse of discretion standard to the section 388 petition and thoroughly analyzes the specific evidence regarding the safety and stability of the competing placements. It effectively addresses the appellant's arguments regarding sibling placement and relative preference by noting the trial court's consideration of all relevant factors, including the presence of another sibling in the preferred placement.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The juvenile court denied mother Kelly S.'s Welfare and Institutions Code section 388 petition seeking placement of her daughter Madison with nonrelative extended family members (the B. family), finding changed circumstances but no showing that the move was in Madison's best interests, and instead placed Madison with her paternal aunt Suzanne, terminated reunification services, and set a section 366.26 hearing. The Court of Appeal, reviewing for abuse of discretion, held the juvenile court properly weighed all relevant factors—including the social worker's and CASA's concerns about the NREFMs' boundaries, protectiveness and judgment, and the presence of another half sibling in Suzanne's home—and affirmed.

Ruling reviewedStandardThe courtThe model
Denial of mother's section 388 petition to modify placement from licensed foster care to the home of nonrelative extended family members, on the ground that mother failed to prove the modification was in Madison's best interests
“We also conclude the court did not abuse its discretion in finding Kelly did not meet her burden to prove placement with the NREFMs, rather than Suzanne, was in Madison's best interests.”
abuse of discretioncorrectagree with court
The petitioner bears the burden under section 388 to show by a preponderance both changed circumstances and that modification promotes the child's best interests (Stephanie M.; Michael B.; Casey D.). The record recited in the opinion supplies ample evidence supporting the juvenile court's best-interests finding: the social worker's testimony that the NREFMs could not set boundaries with the parents, had taken Kaylie downtown to search for the homeless father, had a history of domestic-violence and drug referrals and mutual restraining orders with Kelly, and might permit unsupervised contact; the CASA's observations of dirty equipment and lack of interaction by Rosario; and Suzanne's concrete safety plan and affectionate interaction. The sibling-placement factor cut both ways because a different half sibling (K.) lived with Suzanne. Under the deferential standard and Kimberly F.'s observation that denial of a 388 petition rarely warrants reversal, the appellate conclusion is well supported.
Rejection of mother's argument that the section 361.3 relative-placement preference was inapplicable and therefore could not justify preferring the paternal aunt over the NREFMs
“However, the relative status of Suzanne under section 361.3 is not at issue in this case.”
abuse of discretioncorrectagree with court
The court sidestepped the applicability question by holding that the placement decision rested on a full best-interests analysis rather than on any statutory preference for Suzanne as a relative, so whether section 361.3 formally applied did not affect the outcome. The result is defensible: Stephanie M. teaches that after the initial disposition the child's interest in stability and overall best interests govern, and the record shows the court weighed numerous factors beyond relative status. The reasoning is somewhat circular, however, in that the opinion both declares section 361.3 'not at issue' and invokes section 361.3, subdivision (a) as the list of factors the court must consider, and it does not address that Madison was in fact being moved to a new placement, a circumstance in which section 361.3, subdivision (d) would make the relative preference applicable in any event. Because that omission would only have strengthened the placement with Suzanne, it does not undermine the result.
Determination that mother could seek review by appeal rather than by extraordinary writ because the juvenile court failed to orally advise her of the writ requirement when it set the section 366.26 hearing
“Here, the court did not advise Kelly of the writ requirement if she wished to challenge any of the court's findings or orders.”
de novocorrectagree with court
Section 366.26, subdivision (l)(3)(A) and rule 8.450(e)(4)(C) require the court to orally advise a party present when a setting order is made of the need to seek writ review within seven days; where no advisement is given, courts have consistently allowed the party to raise the issues on appeal. The Agency conceded the point and the opinion's conclusion follows directly from the statutory text recited. The holding is procedural and uncontested, so there is little to question.

Authorities

  • relied: In re Stephanie M. (1994) 7 Cal.4th 295 — In ruling on a section 388 petition the child's best interests are the primary consideration, and the goal of assuring stability and continuity for the child is paramount; after the reunification period the relative preference does not override the child's need for stability.
  • relied: In re Kimberly F. (1997) 56 Cal.App.4th 519 — Denial of a section 388 petition is reviewed for abuse of discretion and rarely merits reversal.
  • relied: In re Shirley K. (2006) 140 Cal.App.4th 65 — The grant or denial of a section 388 modification petition is reviewed for abuse of discretion.
  • relied: In re Casey D. (1999) 70 Cal.App.4th 38 — A section 388 ruling is reviewed for abuse of discretion; the petitioner bears the burden of proving changed circumstances and that modification is in the child's best interests.
  • relied: In re Michael B. (1992) 8 Cal.App.4th 1698 — A section 388 petitioner must show by a preponderance of the evidence both a change of circumstances or new evidence and that the proposed modification promotes the child's best interests.
  • relied: In re Marriage of Connolly (1979) 23 Cal.3d 590 — A court must consider all of the circumstances before it in rendering a judgment or order.

The appellate opinion: sound with gaps — The opinion correctly identifies the abuse-of-discretion standard and the two-prong section 388 test, and it marshals specific record evidence—social worker and CASA observations, the NREFMs' history with the parents, Suzanne's safety plan, and the presence of a different half sibling in Suzanne's home—that amply supports the best-interests finding. It is less tidy in handling the section 361.3 argument, declaring the relative preference 'not at issue' while simultaneously relying on section 361.3, subdivision (a) as the governing list of factors and not noting that a new placement was in fact being made, but the gap does not affect the defensible result.

How this analysis was made · dispute it

Opinion

Filed 4/17/14 In re Madison T. CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re MADISON T., a Person Coming Under the Juvenile Court Law. D064709 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. CJ001094) Plaintiff and Respondent, v. KELLY S., Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Ronald F.

Frazier, Judge. Affirmed.

Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minor.

Kelly S. appeals an order denying her Welfare and Institutions Code1 section 388 petition for modification seeking placement of her daughter, Madison S., with nonrelative extended family members. Kelly contends the court abused its discretion in finding that she did not show it was in Madison's best interests to be placed with the nonrelative extended family members. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2012, Madison became a dependent of the juvenile court under section 300, subdivision (b), and was removed from her parents' custody pursuant to section 361, subdivision (c)(1).2 The court placed Madison in licensed foster care and ordered reunification services for Kelly S. (mother).

From September 2012 to March 2013, Kelly participated in case plan services.

However, in March 2013, she was discharged from the residential substance abuse treatment center for not complying with program rules. Kelly relapsed several weeks later while awaiting acceptance into a new residential recovery program.

1 All statutory references are to the Welfare and Institutions Code.

2 Kelly suffered Chronic Paranoid Schizophrenia, was not under the care of a psychiatrist, had been noncompliant with her prescribed medication, and admitted smoking marijuana during her pregnancy. At birth, Madison tested presumptively positive for marijuana and Kelly admitted smoking marijuana during pregnancy. Nine days later, Madison stopped breathing and was admitted to the hospital for treatment. Kelly exposed Madison to domestic violence by her boyfriend in the hospital room when Madison was receiving treatment.

2 In April 2013, the San Diego Health and Human Services Agency (Agency)

reported its intention to evaluate the Victorville home of Madison's paternal aunt, Suzanne T., for placement. Suzanne was also caring for Madison's half sister, K. T.

Kelly stated she did not want Madison placed with Suzanne because Suzanne did not have experience raising children and because Kelly worried she would be unable to visit Madison if she was placed in Victorville.

In May 2013, Kelly was admitted into a new residential substance abuse treatment center, but was discharged on the same day because she did not get along with the other residents. Three days later, the Agency conducted a Team Decision Meeting to determine Madison's placement. The Agency concluded that, in addition to Suzanne's home, it would evaluate the home of nonrelative extended family members (NREFMs)

Stephano and Rosario B., where Madison's other half sibling, Kaylie, resided.

In June 2013, Kelly filed a section 388 petition to modify the court order placing Madison in licensed foster care. The petition alleged, as changed circumstances, there were concerns regarding Madison's care in the foster home, and the home of the NREFMs had subsequently been approved for Madison's placement. In addition, the petition alleged it would be in Madison's best interests to live with the NREFMs because they were prepared to meet her developmental needs and she could reside with her half sister, Kaylie.

The Agency cleared the homes of both the NREFMs and Suzanne for Madison's placement, and both families stated they would like to adopt Madison if reunification with Kelly was unsuccessful. With respect to Suzanne, the Agency was concerned about 3 Kelly's objection to placement with Suzanne and possible visitation issues because of the travel distance to Victorville. However, Suzanne stated she would provide weekly supervised visitation for the parents and they could have additional visits if they traveled to Victorville. Suzanne presented a safety plan for Madison and stated that if the parents arrived at her home unannounced, she would ask them to leave and call the police if they refused to comply.

With respect to the NREFMs, the social worker expressed concern they would not be as protective as Suzanne, be unable to set clear boundaries with the parents regarding visitation with Madison, and put Kelly's needs over Madison's. Stephano admitted he would take Kaylie downtown with him to look for the parents. In addition, there had been prior referrals between Kelly and Rosario for domestic violence and drug use, and Kelly and Stephano had filed dual restraining orders against each other in the past. When asked what he would do if Kelly arrived at the house or acted inappropriately, Stephano stated he would try to calm Kelly down, ask her to leave, and get in his car and drive off if she would not leave.

A Court Appointed Special Advocate (CASA) accompanied Madison on several visits with each family. During Madison's visit with Kelly and the NREFMs, the CASA reported the stroller and toys brought by the NREFMs were dirty and covered in grime.

She also noted Rosario did not hold or talk to Madison, but rather told other people what to do with her. Further, Madison's half sister, Kaylie, was distant and not affectionate with Madison. During the visit, Kelly took Madison away from the group and forcibly picked at Madison's nose until she began crying. When Suzanne visited with Madison, 4 the CASA reported Suzanne was very affectionate with her, brought clean toys and baby equipment for her, and interacted with her throughout the entire visit. The father, Jason T., made no effort to visit Madison.

During the reunification period, Kelly refused to enter residential treatment, did not attend several scheduled visits, and arrived at one visit with visible marks on her body that she alleged occurred when Jason's girlfriend beat her up. Kelly expressed to the social worker that she did not want to reunify with Madison and wanted the NREFMs to adopt her. The Agency recommended reunification services be terminated for both parents and Madison be placed with Suzanne.

On July 30, 2013, the court held an evidentiary hearing on Kelly's section 388 petition. After considering the evidence and arguments of counsel, the court denied Kelly's section 388 petition. The court found a change of circumstances existed, but Kelly did not meet her burden of proof in showing placement with the NREFMs was in Madison's best interests. The court ordered placement of Madison with Suzanne, terminated reunification services for both parents, and scheduled a hearing under section 366.26 to select and implement a permanent plan for Madison.

DISCUSSION

A. Standard of Review We review the grant or denial of a petition for modification under section 388 for abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D.

(1999) 70 Cal.App.4th 38, 47.) To modify an existing court order, the petitioner must show, by a preponderance of the evidence: (1) there is a change of circumstances or new 5 evidence; and (2) the modification will promote the child's best interests. (§ 388; Cal.

Rules of Court, rule 5.570(e)(1); In re Justice P. (2004) 123 Cal.App.4th 181, 188-189;

In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) The primary goal in determining the child's best interests is to assure stability and continuity for the child. (In re Stephanie M.

(1994) 7 Cal.4th 295, 317.) The denial of a section 388 motion rarely merits reversal as an abuse of discretion. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)

B. Analysis Kelly contends the court abused its discretion by denying her section 388 petition to modify the existing court order and place Madison in the home of the NREFMs. She contends evidence showed the proposed modification was in Madison's best interests because it would allow her to reside with her half sister Kaylie, stay connected with her extended family, and maintain her family identity.

Kelly contends the social worker was unable to articulate any legitimate reason for her concerns about placement with the NREFMs. This contention is unpersuasive. At the hearing, the social worker specifically testified as to her concerns about placing Madison with the NREFMs. She testified the NREFMs were not able to set clear boundaries with Kelly and went out of their way to help the parents despite Kelly's refusal to attend substance abuse treatment and her cancellation of visits. The social worker expressed her concern the NREFMs would put the parents' needs before Madison's, as evidenced by their poor judgment in taking Kaylie downtown to search for Madison's homeless father after suspecting he had broken a window at their home. In addition, the social worker testified she was concerned the NREFMs would take Madison 6 downtown with them, allow Madison to have unsupervised contact with Kelly, and would be unable to safely take Madison from her parents if they attempted to take her.

The social worker further testified Suzanne was the preferred placement for Madison because she appeared more protective of Madison, was willing to draw strict boundaries with the parents, and could remove Madison from dangerous situations. The record also shows Suzanne presented a safety plan and visitation schedule for Madison and her parents, evidenced her willingness to remove Madison from any situation if the parents appeared intoxicated, and said she would immediately call the police if Madison's parents showed up to her home unannounced. Moreover, in her report, the CASA observed that, unlike the NREFMs, Suzanne brought clean baby equipment and toys for Madison and interacted with her throughout the entire visit. Considering all observations and factors presented, the social worker testified placement with Suzanne was in Madison's best interests.

Kelly further contends the presence of Kaylie with the NREFMs is a pivotal factor separating their home from Suzanne's home. Although placement with siblings in the same home is one factor considered by the court, the court must consider all factors to determine the best interests of the child. (§ 361.3, subd. (a).) As previously noted, several factors led the social worker to determine it would be in Madison's best interests to be placed with Suzanne. Although Kelly contends Madison and Kaylie have cultivated a relationship through weekly visits during the course of the dependency, the CASA reported Kaylie appeared unaffectionate and distant from Madison. In addition, Kelly disregards the presence of Madison's other half sister, K., in Suzanne's home.

7 The court is bound to consider all of the circumstances before it in rendering a judgment or order. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) Based on the evidence presented, the social worker's testimony, and counsel's arguments, we conclude the court properly considered all of the relevant factors in determining it was in Madison's best interests to be placed with Suzanne. We also conclude the court did not abuse its discretion in finding Kelly did not meet her burden to prove placement with the NREFMs, rather than Suzanne, was in Madison's best interests.

Kelly next contends the relative preference provisions of section 361.3 are not applicable in this case. She argues relative placement is only mandated on the initial removal from parental custody at the dispositional hearing or at a later stage of the dependency action when a new placement must be made. (§ 361.3, subd. (d).) However, the relative status of Suzanne under section 361.3 is not at issue in this case. Although the court gives relatives preferential treatment in the placement of a dependent child, the court must consider all factors enumerated in section 361.3, subdivision (a), to determine the best interests of the child. As previously noted, the court considered all of the evidence and testimony presented at the evidentiary hearing before deciding to place Madison with Suzanne, a decision we conclude was a proper exercise of its discretion.

Finally, Kelly contends, and the Agency concedes, the statutory requirement that review of an order made pursuant to section 366.26 is sought by petition for extraordinary writ is not applicable in this case. The statute provides that if a party is present when the order is made, the court shall orally advise the party of the requirement to file a petition for extraordinary writ review within seven days. (§ 366.26, subd.

8 (l)(3)(A); Cal. Rules of Court, rule 8.450 (e)(4)(C).) Here, the court did not advise Kelly of the writ requirement if she wished to challenge any of the court's findings or orders.

Therefore, the Agency and Kelly agree Kelly has properly sought review in this case by way of appeal.

DISPOSITION

The order is affirmed.

McDONALD, J. WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.

Cites, in this corpus