Opinion
A131316
11-29-2011
In re A.L., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. P.T., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. OJ10015878)
The juvenile court found that the mother of minor A.L.—appellant P.T.—had failed to protect him for various reasons, including her mental instability. (Welf. & Inst. Code, § 300, subds. (b), (g).) It removed A.L. from her custody and approved his continued placement with nonrelative extended family members who had obtained de facto parent status. On appeal, P.T. challenges the sufficiency of evidence of both (1) the jurisdictional findings and (2) the removal order. She also contends that (3) the juvenile court erred by failing to make a finding about whether the agency used due diligence in identifying a possible relative placement. We affirm the jurisdiction and disposition orders.
All further unspecified statutory references are to the Welfare and Institutions Code.
I. FACTS
In July 2009, A.L. was born to mother P.T. and father M.L. A.L. had two younger siblings who had been born in 2007 and 2008. P.T.'s three oldest children were being cared for by members of her extended family. P.T., M.L. and their three youngest children lived in a homeless shelter for a brief time. Then, P.T. found employment providing hospice services to a dying woman who lived in the home of J.S. In November 2009, the woman died and P.T. began working for an agency that J.S. ran, working with developmentally disabled people. M.L. left the family and by December 2009, P.T.'s mother took the children to her home out of state. In January 2010, P.T. was living in Pittsburg with her three youngest children. In February 2010, M.L. was arrested and placed in custody. By March 2010, J.S. and her partner S.K. agreed to P.T.'s request that A.L. be allowed to live with them.
By April 2010, P.T. lived in Hayward with her two young children. When she took A.L. to her home for a visit, she and M.L. were involved in an incident of domestic violence. The father was jailed, found guilty of domestic violence and ultimately deported. About this time, P.T. told J.S. and S.K. that she was pregnant. She asked them to adopt her newborn. After considering the matter, they agreed. In July 2010, J.S. drove P.T. and A.L. to Seattle to visit P.T.'s mother. J.S. assisted P.T. with bills and rent on her Hayward house totaling $5,000 during the summer of 2010.
The agency later reported that P.T. made a similar arrangement with a member of M.L.'s family, accepting a place to live and support in exchange for an agreement to adopt her unborn child. At the end of the pregnancy term, P.T. and M.L. disappeared, along with a significant amount of property taken from the family member.
In October 2010, P.T. told them that she had given birth. She signed adoption papers and signed a declaration under penalty of perjury saying that she had given birth to a girl earlier that month, but she had not. Unwilling to admit the truth to J.S. and S.K., P.T. reported to Oakland police that her newborn had been kidnapped. Police later determined that P.T. had not given birth to a child. P.T. was arrested for misdemeanor making a false report. (Pen. Code, § 148.5, subd. (b).) P.T. also told police that she had used drugs.
At the time of her October 20, 2010 arrest, P.T. was on felony probation for elder financial abuse—an offense that had resulted in her incarceration in 2008-2009, while she was pregnant with A.L. By October 2010, A.L. had been living with J.S. and S.K. for seven or eight months. By then, the father's whereabouts were unknown. Authorities were unable to reach P.T. after her release from jail on October 22, 2010. Unable to contact either parent, authorities took 15-month-old A.L. into protective custody on October 27, 2010, and placed him in a foster home.
Later, the court learned that the father had been deported. He is not a party to this appeal. The facts related to his part of the proceedings are mentioned only as relevant to determine the issues posed in the mother's appeal.
By November 2010, all five of A.L.'s older siblings were living with members of P.T.'s family.
On October 29, 2010, respondent Alameda County Social Services Agency filed a petition asking the juvenile court to declare A.L. to be a dependent child. It alleged that P.T. had failed to protect and provide support for him. The petition alleged that she was mentally unstable and abused alcohol and/or drugs, rendering her unable to care for the minor and keep him safe. It also alleged that she had left A.L. with a friend for several months and failed to return to take over responsibility for him. (§ 300, subds. (b), (g).) At the detention hearing, the juvenile court approved A.L.'s removal and detention.
In advance of the November 2010 jurisdiction hearing, the agency reported that P.T. was homeless. Two homes were being assessed for possible placement of A.L.— that of his maternal grandmother out of state and the home of J.S. and S.K. The agency noted that P.T.'s family had been referred several times to child welfare authorities, including twice since A.L. was born. The agency indicated that it planned to amend the petition's allegations to add that P.T. lacked stable housing and that she had twice obtained illegal employment as a caretaker in order to obtain compensation from her employers.
By mid-November 2010, A.L. had been placed back in the home of nonrelative extended family members J.S. and S.K. M.L. was pleased with this arrangement. P.T. was not—she wanted the minor placed with her mother. A visit with the grandmother and A.L. was arranged, but the grandmother failed to appear. The agency received a report that P.T. had been arrested when she came to court on November 29, 2010.
At the jurisdiction hearing, his attorney stated that he was content to have A.L. placed when J.S. and S.K., but preferred a family placement.
In December 2010, J.S. and S.K. applied for de facto parent status. In their application, they stated that they initially expected to provide temporary care for A.L. In the first weeks that he was with them, P.T. provided some formula and baby food for him, but J.S. and S.K. provided most of his needs. They had hoped that P.T. would "step up" as his mother, but she did not. Several times, P.T. asked them to raise A.L., although she made it clear that she did not want them to adopt him. The request for de facto parent status was granted, to begin at disposition.
Several of P.T.'s relatives contacted the agency about A.L. P.T.'s mother asked to have the minor placed in her home. The agency arranged to have an out-of-state assessment of the suitability of her home. That assessment was not complete at the time of the disposition hearing in this matter. The agency conducted concurrent planning, seeking to place A.L. with P.T.'s mother if possible, or to place him with J.S. and S.K.
The record on appeal shows that four family members expressed some interest in A.L., but that most of them withdrew their interest, failed to pursue the possibility or were opposed by P.T. During the pendency of this appeal, the social worker testified in August 2011 that only P.T.'s mother and another relative had expressed a willingness to consider placement in their homes. The second relative later stated that she did not want A.L. placed with her.
In January 2011, the agency filed a first amended petition in this matter. It recommended that the juvenile court find A.L. to be a dependent child, that he be placed outside the family home and that reunification services be offered to P.T. The mother opposed the recommendation, seeking dismissal of the petition. P.T. and her mother both contacted J.S. and S.K. to inquire about the possibility of an open adoption.
In February 2011, the juvenile court conducted a contested jurisdiction and disposition hearing. The social worker testified that P.T. had never asked to have A.L. returned to her, and had stated in November 2010 that she was unable to care for her children. P.T. admitted to the social worker that she was depressed. The mother had a tendency to change her version of events frequently, making it difficult to discern truth from fiction. This tendency also raised a concern with the social worker about P.T.'s mental stability and her ability to care for a child. The social worker also testified that the agency had arranged for weekly visitation between A.L. and P.T. Since November 2010, P.T. had only visited him twice—once for an hour, once for only 10 minutes. A.L. appeared to be bonded to J.S., but not to P.T.
J.S. told the juvenile court that several times, P.T. said that while she was supposedly pregnant, she had used alcohol, marijuana and methamphetamine. In June and July 2010, P.T.'s behavior became more erratic, such that J.S. found it difficult to determine what was really happening. After some initial offerings of formula, baby food and diapers, P.T. did not provide any financial support for A.L. P.T. never came to their home to visit A.L. She always came after the minor was in bed and did not spend any time with A.L. J.S. opined that P.T.'s parenting skills were "extremely weak." Sometimes, P.T. was out of contact with J.S. and S.K. for days at a time. At times, P.T. failed to provide J.S. and S.K. with documentation to allow them to obtain routine medical attention for A.L.
P.T. also testified at the hearing, telling the court that she had been pregnant, but had miscarried before the baby reached term. She lied when she said that she had given birth to that child. P.T. told the juvenile court that in October 2010, she called the police to get A.L. back from J.S., who had refused to give him up until P.T. gave J.S. a baby. The police did not give the minor to her. She had lied to J.S. about giving birth to a baby, so she lied to the police, too.
J.S. testified that P.T. did not tell police that she had withheld A.L. from his mother when the October 2010 incident occurred.
P.T. admitted that she had served a jail term in 2008 for embezzling funds from her employer. She also admitted having been arrested for making a false kidnapping report. That case was not yet resolved, but she expected to serve some jail time for that offense. P.T. told the court that J.S. and S.K. had paid her rent for several months and that she was on probation at the time of her false report arrest. P.T. had five other children who were living with relatives out of state. She could not care for them because she was going through "emotional hard times."
Shortly before the hearing ended in February 2011, P.T.'s counsel asked the juvenile court to make a finding about whether the agency used due diligence to locate, identify and notify all adult relatives of the minor. (Cal. Rules of Court, rules 5.637(a), 5.695(f)(2).) The juvenile court ruled that no finding was required and that a request to consider placement with a family member rather than with J.S. and S.K. was premature because a pending investigation of placement with P.T.'s mother had yet to be completed.
At the conclusion of the hearing, the juvenile court found that P.T. had left A.L. her child with others and appeared not to care about how he was doing in their care when she visited them. It also concluded that she had drug and mental health problems. On this basis, it found the jurisdictional allegations of the amended petition to be true and declared A.L. to be a dependent child. (§ 300, subds. (b), (g).) It found by clear and convincing evidence that the welfare of the minor required his removal from P.T.'s custody. Reunification services were ordered for the mother. A.L. was given to the custody of the agency, which was to place him in a suitable home or private institution. Placement of the minor with nonrelative extended family members such as J.S. and S.K. was approved.
P.T. appeals from this jurisdiction and disposition order. During the pendency of this appeal, P.T. failed to obtain a psychological evaluation, although she received at least two referrals from the agency for one. In August 2011, the juvenile court terminated P.T.'s reunification services and set a permanency planning hearing date of December 7, 2011. Counsel for A.L. requested that he be placed in the home of J.S. and S.K. The juvenile court granted this request, over P.T.'s objection. P.T. filed a September 2011 notice of intent to file a petition for an extraordinary writ challenging the termination of reunification services, but never filed a petition. The request for a writ was denied in October 2011 for lack of a petition.
On our own motion, we take judicial notice of the record in P.T.'s September 2011 writ matter. (No. A133184.) (See Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
II. SUFFICIENCY OF EVIDENCE
A. Jurisdictional Finding
1. Standard of Review
First, P.T. contends that the evidence does not support the juvenile court's jurisdictional findings. The juvenile court made several such findings pertaining to P.T., concluding that she failed to protect the minor because she was unable to provide appropriate care for him due to her mental instability, drug abuse and criminal conduct. (§ 300, subd. (b).) It also concluded that P.T. had failed to support A.L., having left him with a friend for several months without returning to take responsibility for his care. (§ 300, subd. (g).)
The juvenile court also found that the father was unable to care for A.L. because he had been deported. (§ 300, subd. (g).)
A child may be adjudged to be a dependent child falling within the jurisdiction of the juvenile court if the parent fails to protect the minor or leaves the child without provision for support. (§ 300, subds. (b), (g).) A juvenile court makes a jurisdictional finding based on a preponderance of evidence. (In re David M. (2005) 134 Cal.App.4th 822, 829.) On appeal, we determine whether substantial evidence supports the juvenile court's jurisdictional finding. (Id. at p. 828; In re Basilio T. (1992) 4 Cal.App.4th 155, 170.) In this review, we consider the evidence in the light most favorable to the juvenile court, giving it the benefit of every reasonable inference and resolving all conflicts in the evidence in support of that order. (In re David M., supra, 134 Cal.App.4th at p. 828; In re J.I. (2003) 108 Cal.App.4th 903, 911.) Any inferences must be based on evidence and must be the product of reason and logic. Speculation or conjecture cannot support a jurisdictional finding. (In re David M., supra, 134 Cal.App.4th at p. 828; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.)
On appeal, we have no power to judge the credibility of witnesses. Instead, the juvenile court determines this issue, based on its opportunity to observe the appearance and demeanor of the witnesses. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.) Although the agency had the burden in the juvenile court to show that jurisdiction existed, on appeal, P.T. bears the burden of establishing that there is no substantial evidence to support the juvenile court's finding of jurisdiction. (See In re Chantal S. (1996) 13 Cal.4th 196, 210; In re A.M. (2010) 187 Cal.App.4th 1380, 1388.) We need only find substantial evidence to support one basis of jurisdiction to uphold the juvenile court's jurisdiction order. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451; see § 300.) 2. Evidence of Mental Illness
The child of a mentally ill parent may be found to be at substantial risk of harm resulting from the parent's inability to provide regular care because of mental illness. (§ 300, subd. (b).) The juvenile court found that P.T. was mentally unstable, warranting jurisdiction over A.L. P.T. contends that there was insufficient evidence of mental illness, particularly due to the lack of expert evidence that she suffered from any mental disorder. We disagree. P.T.'s testimony that she made a false report of a kidnapping and her inconsistent testimony about her supposed pregnancy could be construed as evidence of mental instability. Her unstable housing, her need for others to care for her children, her criminal history and her pattern of lying could be evidence consistent with a finding of mental illness. J.S.—whose work with developmentally disabled people gives her more expertise than the average layperson about mental issues—characterized P.T.'s conduct as erratic. The social worker also opined that the mother was unstable—and that how P.T. saw the world would affect her child. These two witnesses also offered evidence that tends to support the juvenile court's findings. (See In re Alexis E., supra, 171 Cal.App.4th at pp. 450-451 [evidence from single witness may support juvenile court's findings].)
The juvenile court also had the benefit of its own observations of P.T. during her testimony. It had an opportunity to judge P.T.'s demeanor and appearance during two days of testimony, and to make a determination about her credibility. (See In re Sheila B., supra, 19 Cal.App.4th at pp. 199-200; see In re David M., supra, 134 Cal.App.4th at p. 828 [if parent gives false testimony on material issues, the juvenile court may properly discount that testimony].) It also had evidence that P.T. had twice offered an unborn child in exchange for care of herself and her children—evidence that could also contribute to a finding of mental instability.
P.T. is correct that the record contains no expert diagnosis of mental illness. However, no expert testimony was required if an assessment of mental illness could be made based on ordinary experience. In an appropriate case, a juvenile court may conclude that a parent is mentally ill and poses a danger to a child based on its own observations. (Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 202; see Evid. Code, § 801, subd. (a).) We are satisfied that the bizarre nature of P.T.'s behavior— combined with the evidence offered by witnesses who had had a further opportunity to observe the mother—provided sufficient evidence from which the juvenile court could properly conclude that P.T. suffered from mental illness.
3. Parental Neglect
There are three elements to a jurisdictional finding—parental neglect, causation and a substantial risk of serious future physical harm to the minor. (In re Savannah M., supra, 131 Cal.App.4th at pp. 1395-1396.) P.T. argues that because she left A.L. with other caretakers who provided him with good care, a finding of dependency is unwarranted. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) She ignores the fact that she opposed having A.L. returned to those caretakers, and that the jurisdictional provisions inquire about whether it is safe to return him to her custody and control. A return of A.L. to P.T. might result in her placing him with another caregiver, or might require him to remain in her custody, despite her mental illness. P.T. has been absent for much of A.L.'s life, providing evidence tending to support a finding of neglect. (See id. at p. 820.) Her indifference to him is evident from her failure to visit him, even when she visited his caretakers. On the record before us, we find substantial evidence to support this element of the jurisdictional finding.
4. Causation
Causation is the second element of a jurisdictional finding. (In re Savannah M., supra, 131 Cal.App.4th at pp. 1395-1396.) At the time of the February 2011 jurisdictional finding, A.L. was only 18 months old. If A.L. was returned to P.T.'s care, her mental illness and his youth could combine to render an absence of her adequate supervision and care constituting an inherent risk to his physical health and safety. Thus, there is sufficient evidence of causation. (See In re Rocco M., supra, 1 Cal.App.4th at p. 824.)
5. Risk of Harm
The third element of a jurisdictional finding is that the parent's neglect poses a substantial risk of harm to the child. (In re Savannah M., supra, 131 Cal.App.4th at pp. 1395-1396.) Harm to a child cannot be presumed from the mere fact of a parent's mental illness. The question is whether the mental illness and resulting behavior adversely affects the child or jeopardizes his or her safety. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1079.)
P.T. challenges the sufficiency of evidence of any risk of future harm to A.L. from her past conduct. A finding of a substantial risk requires a showing that, at the time of the jurisdiction hearing, the child is at risk of future harm. (In re Savannah M., supra, 131 Cal.App.4th at p. 1396.) Evidence of past conduct may be relevant to a determination of present circumstances, as long as there is some reason to believe that the conduct may continue in the future. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134; In re Rocco M., supra, 1 Cal.App.4th at p. 824.) To be probative, there must be some evidence that past events will reoccur. (In re David M., supra, 134 Cal.App.4th at pp. 831-832.) In the matter before us, the juvenile court observed P.T. in court and heard her testify only 12 days before making its jurisdictional finding. The ongoing nature of P.T.'s mental illness, her lack of discernment about that issue, and her failure to seek any assistance relating to this issue offer sufficient evidence to support the juvenile court's finding that A.L. would be at substantial risk of harm if returned to his mother's custody. The juvenile court properly took jurisdiction over A.L. B. Removal Order
1. Substantial Danger
P.T. also contends that there is insufficient evidence to support the juvenile court's removal order, on two grounds. First, she argues that there was insufficient evidence that allowing A.L. to return to her care posed a substantial danger to him. A dependent child may not be taken from the custody of a parent with whom the child resided at the time the petition was filed unless the juvenile court makes one of a series of statutory findings, by clear and convincing evidence. (§ 361, subd. (c); In re Heather A. (1996) 52 Cal.App.4th 183, 193.) One basis for removal is if the minor's return to the parent's home would pose a substantial danger to the minor's physical health, safety, protection or physical and emotional well-being and there was no reasonable means of protecting the child's physical health short of removal. (§ 361, subd. (c)(1).) In this matter, the juvenile court found by clear and convincing evidence that A.L.'s welfare required that he be removed from P.T.'s custody and that returning him to her home would cause substantial danger to him.
Preliminarily, we note that the statute assumes that the minor resided with the parent at the time of initial detention. (§ 361, subd. (c).) In fact, A.L. was removed at the time of the October 2010 petition—not from P.T.'s home—but from the home of J.S. and S.K. A.L. was not residing with P.T., but in the home where she left him. We assume arguendo that this provision still limits the state's authority to remove A.L. from P.T.'s custody, despite these circumstances that differ from those set out in the applicable statutory provision.
The removal of a child affects a fundamental right to parent. Thus, to warrant removal, the juvenile court finding must be made by clear and convincing evidence. (In re Basilio T., supra, 4 Cal.App.4th at p. 169; see § 361, subd. (c).) The sufficiency of evidence is primarily a juvenile court determination. On appeal, we do not seek clear and convincing evidence ourselves, but apply the usual substantial evidence rules to a challenge to the finding. We draw all reasonable inferences from the evidence to support the juvenile court's findings, leaving all issues of fact and credibility determinations to that court. If substantial evidence supports the finding, we may not overturn it. (In re J.I., supra, 108 Cal.App.4th at p. 911; In re Heather A., supra, 52 Cal.App.4th at p. 193.)
A removal order is supported by substantial evidence if based on proof of parental inability to provide proper care for the minor and of potential detriment to the child if returned to the parent. The statutory scheme is designed to prevent harm to the minor. Consistent with this goal, actual harm to the minor need not be shown. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another point in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The court may look to P.T.'s past conduct as evidence demonstrating present unfitness. (See In re Troy D. (1989) 215 Cal.App.3d 889, 900 [jurisdictional finding].)
In this matter, we find substantial evidence to support the juvenile court's finding of substantial danger. P.T. suffered from mental instability and failed to appreciate the risk that this posed to A.L. if left in her custody. The evidence of her mental instability was not stale, but was demonstrated by P.T. herself during her testimony days before the removal finding was made. At the time that it made the substantial danger finding, the juvenile court also found that P.T. had made no progress toward mitigating or alleviating the causes of A.L.'s initial detention. A parent's denial about an untreated mental illness can be evidence of a substantial risk. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1657-1658.) At the time of the jurisdiction hearing, P.T. was unable and/or unwilling to care for any of her six children in her own home. She demonstrated a lack of interest in the day-to-day work of parenting. (See id. at p. 1657 [mother made no effort to ensure that child was safe].) When A.L. was in the home of the de facto parents, P.T. failed to provide them with authorization to seek routine medical care for him. P.T.'s arguments that she was a suitable parent would require us to reweigh the credibility of the evidence before the juvenile court, which we have no power to do. (See In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The circumstances of P.T.'s history, combined with the inherent risks to a child of A.L.'s tender age from inadequate parenting, satisfy us that the juvenile court properly found that he would be at risk of substantial harm if returned to her home.
P.T. argues that because she has demonstrated an ability to arrange care for her children, A.L. should not be removed from her custody. The issue before us is not whether P.T. might arrange a suitable home for A.L., but whether he might be at risk if returned to her home. (See § 361, subd. (c).) Thus, the issue of whether she may be able to find someone else to care for A.L. is not relevant to the removal finding.
2. Reasonable Efforts to Prevent Removal
P.T. also challenges the sufficiency of evidence that reasonable efforts were made to prevent the minor's removal. By law, the juvenile court must determine whether reasonable efforts were made to prevent or eliminate the need for the minor's removal from his or her home. It must also state the facts on which the decision to remove the minor is based. (§ 361, subd. (d).) In this matter, the juvenile court found that there were no reasonable alternatives to removal, but it did not specify the facts on which it based this finding.
The juvenile court's failure to specify these facts was error. (See In re Jason L. (1990) 222 Cal.App.3d 1206, 1218 [lack of finding was harmless error].) P.T. argues that the disposition order must be reversed for lack of these factual findings. We disagree, for two reasons. First, case law allows us to imply these facts from the record on appeal, if such a determination can be made. (See In re Corienna G. (1989) 213 Cal.App.3d 73, 83.) Our reading of the record satisfies us that the evidence before the juvenile court allows us to imply that no less than A.L.'s removal from P.T.'s custody was required to protect him.
Second, even if we were unable to make an implied determination from the facts before us, the juvenile court's failure to state specific facts supporting its finding of a lack of reasonable alternatives to removal does not require a remand if that would serve no practical purpose. (See In re Corienna G., supra, 213 Cal.App.3d at pp. 83-84.) Instead, this error may be deemed harmless if it is not reasonably probable that the facts stated would have supported continued parental custody. (See In re Jason L., supra, 222 Cal.App.3d at p. 1218; see also People v. Watson (1956) 46 Cal.2d 818, 836.)
We find the error to be harmless. The jurisdictional finding of mental instability was proper. The juvenile court's finding by clear and convincing evidence of the need for A.L.'s removal from P.T.'s custody was also supported by substantial evidence. (See pt. II.A., B.1., ante.) P.T. was offered services to help avoid the need for continued removal. She was repeatedly encouraged to accept these services, but stated that she did not want them. The juvenile court impliedly found that P.T. did not take advantage of the services offered to her when it concluded that the agency made reasonable efforts to prevent removal, but that P.T. had not made any progress toward mitigating or alleviating the causes of A.L.'s initial detention.
Under these circumstances, it is not reasonably probable that the facts that the juvenile court could have stated in support of its finding that no reasonable alternatives to removal existed would have favored P.T.'s custody of A.L. She was not prejudiced by the lack of specific facts expressly supporting the juvenile court's finding that no reasonable alternatives to removal existed. (See In re Corienna G., supra, 213 Cal.App.3d at pp. 84-85.) Thus, the juvenile court's failure to state specific facts supporting its conclusion that no less drastic alternative than removal from P.T.'s custody existed was harmless error.
P.T. specifically argues that the agency failed to advise her of her right to voluntarily relinquish A.L. A social study must include a report of whether a parent has been advised of the option to participate in adoption planning and to voluntarily relinquish the child for adoption. (§ 358.1, subd. (g).) The agency report states that the mother was cooperating with authorities to assess the possibility of placement with A.L.'s grandmother. The social worker also testified that P.T. was trying to arrange an adoption with various family members. Thus, it appears from the record before us that P.T. was well aware of the possibility of voluntary relinquishment.
III. RELATIVE PLACEMENT
Finally, P.T. contends that the juvenile court failed to make required findings about whether the agency used due diligence in identifying A.L.'s adult relatives. In January 2010, subdivision (e) of section 309 became effective. (See Stats. 2009, ch. 261, § 1; Stats. 2008, ch. 701, § 11; see also Gov. Code, § 9600, subd. (a) [eff. date of non-urgency legislation].) This statute requires that within 30 days of a child's removal, the social worker must conduct an investigation to identify and locate all grandparents, adult siblings and other adult relatives of the parent. These family members are to be notified of the fact of the child's removal and of the option to participate in the care and placement of the child. (§ 309, subd. (e)(1)(A), (B).) The social worker is required to use due diligence when conducting this investigation. (Id., subd. (e)(3).) A.L. was removed from the home of J.S. and S.K. in October 2010, after the effective date of section 309, subdivision (e). By January 2011, the Rules of Court also required that the social worker exercise due diligence to conduct an investigation to identify, locate and notify all adult relatives of child. (Cal. Rules of Court, rule 5.637(a).)
At disposition, the juvenile court must make a finding about whether the social worker used due diligence to conduct this investigation. (Cal. Rules of Court, rule 5.695(f)(2)(A).) If the juvenile court finds that the social worker has not used due diligence in identifying, locating and notifying the minor's relatives, it may order the social worker to do so and may require a report to the court about this matter at a later time. (Id., rule 5.695(f)(2)(B).) The rule of court requiring this dispositional finding was in effect at the time of the February 2011 dispositional order. (See id., rule 5.695.) However, the juvenile court concluded that it was not required to make this finding.
On appeal, P.T. argues that the applicable statute and Rules of Court required that at the disposition hearing, the juvenile court was obligated to make a finding about whether the agency had used due diligence to contact family members and advise them of the possibility of accepting placement of the minor. The agency concedes that the juvenile court did not make the required finding, but argues inter alia that this error is harmless. The juvenile court's failure to make this finding may be harmless error if it is not reasonably probable that the omitted finding would have supported the outcome that P.T. sought—that is, early placement with a relative rather than with nonrelative extended family members J.S. and S.K. (See In re Jason L., supra, 222 Cal.App.3d at p. 1218.)
We have found no case law interpreting section 309, subdivision (e), nor have the parties cited any specifically applicable cases.
The goal at disposition is to find a temporary caretaker who will meet the child's physical and emotional needs and will cooperate with reunification efforts. (In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1493.) Thus, a dispositional placement with family members could facilitate the ultimate goal of the reunification of P.T. and A.L. However, P.T. did not want reunification services. The juvenile court impliedly found that P.T. did not take advantage of the services offered to her when it concluded that the agency made reasonable efforts to prevent removal, but that P.T. had not made any progress toward mitigating or alleviating the causes of A.L.'s initial detention. Since the time of disposition, P.T.'s reunification services have been terminated, in part because she made only minimal attempts to use them. As P.T. did not wish to reunify with A.L. and eventually failed to do so, any error resulting from the juvenile court's failure to make the required disposition finding was necessarily harmless. (See ibid.)
We recognize that the failure to make a relative placement at an earlier stage of this case might have contributed to P.T.'s failure to take advantage of reunification services. Still, we are satisfied that this error was harmless for another reason. The Rules of Court provide that if the juvenile court finds that the social worker has not used due diligence, it may require a report from the agency at a later time. (Cal. Rules of Court, rule 5.695(f)(2)(B).) In the matter before us, the juvenile court made it clear that while it was approving the continuation of A.L.'s placement in the home of J.S. and S.K., it was still awaiting the results of a report about the appropriateness of family placement with P.T.'s mother. It did not preclude the possibility of a family placement, but deferred that determination until it had sufficient information to make an informed decision about that issue. In the interim, it ordered A.L. to remain with J.S. and S.K., who were his de facto parents. If the juvenile court had understood its obligation to make a due diligence finding at disposition, we are convinced that it would have asked the agency to provide a report at a later time. Deferral of the matter until the ongoing investigation was complete—in essence, the path that the juvenile court chose—was within its authority. (Ibid.) Thus, P.T. cannot demonstrate any prejudice resulting from this error.
P.T. also asserts that her counsel was prevented from questioning the social worker at the disposition hearing about due diligence. At the hearing, her counsel asserted that he only questioned the social worker about jurisdictional issues, because he believed that the hearing was not one for dispositional issues, as well. The hearing was clearly noticed as a hearing on both jurisdiction and disposition issues. Thus, P.T.'s counsel was not deprived of the opportunity to conduct a due diligence inquiry, but failed to ask the appropriate questions when that opportunity was presented.
The jurisdiction and disposition orders are affirmed.
Reardon, J. We concur: Ruvolo, P.J. Sepulveda, J.