Opinion
G056345
08-20-2018
RUBEN B. et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
Law Office of Harold LaFlamme and Harold LaFlamme, Donna P. Chirco, and Tina Stevens1 for Petitioners. No appearance for Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel for Real Party in Interest Orange County Social Services Agency. Sharon Petrosino, Public Defender, Kenneth Norelli and Brian Okamoto for Real Party in Interest A.B. No appearance for Real Party in Interest R.L.
ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT
This court hereby orders that the opinion filed herein on August 20, 2018, be modified as follows:
1. On page 1, second full paragraph, second line, footnote 1 is moved and placed after the name of "Donna P. Chirco."
This modification does not change the judgment.
MOORE, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 16DP0163, 16DP0164, 16DP0163A & 16DP0164A) OPINION Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Gary L. Moorhead Judge. Petition denied. Law Office of Harold LaFlamme and Harold LaFlamme, Donna P. Chirco, and Tina Stevens for Petitioners. No appearance for Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel for Real Party in Interest Orange County Social Services Agency. Sharon Petrosino, Public Defender, Kenneth Norelli and Brian Okamoto for Real Party in Interest A.B. No appearance for Real Party in Interest R.L.
This is not the first time counsel has not exhibited candor toward this court. In this case, petitioners filed a notice of intent to file a writ petition pursuant to California Rules of Court, rule 8.450. Based upon that filing and the filing of this petition, this court issued an order to show cause. What counsel filed, however, was a petition for the same relief we denied in May 29, 2018. Assuming there was a decision to change tactics after the notice of intent was filed, and there was not an outright deception on the court, counsel should have notified this court that the planned petition would not be filed, and asked permission to file the brief that was actually filed. "It is the duty of an attorney to do all of the following: "To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law." (Bus. & Prof. Code, § 6068, subd. (d).)
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Petitioners contend the juvenile court abused its discretion in placing minor children with a great aunt and uncle. We find no error and deny the petition.
I
FACTS
The two minors, R.B. #1 and R.B. #2, twins, were born in 2016 with positive meconium screens for opiates. The mother, A.B., tested positive for morphine and admitted she used heroin on and off during the pregnancy, and that she had smoked heroin two to three days prior to giving birth to the minors. She also admitted to a history of using both heroin and methamphetamines. Four months prior to the birth of the minors, the mother also tested positive for morphine. The mother did not finish high school and was not employed.
The whereabouts of the minors' father, R.L., was unknown. The mother and the father are not married. The father did not attend the birth of the minors, although the mother said she had gotten a message to him that she was in labor. The mother said she does not have a telephone number for the father.
The current matter is the mother's first contact with the Orange County Social Services Agency (SSA) as an adult. However, when she was a minor herself, she had a lengthy history with SSA. At first, it was unknown whether or not the father has had previous contacts with SSA. An SSA employee with the absent parent search unit was unable to locate him.
A social worker visited the mother's home. She lives with her mother, the maternal grandmother of the minors. The grandmother told the social worker she is an alcoholic. The two women rent one room with kitchen and bathroom privileges in a home where a third woman lives with her children. The mother and maternal grandmother's one room was described by the social worker: "[T]he bedroom which was filled with boxes, clothing, and assorted items. There was what appeared to be a foam couch/chair which folded out to sleep upon. The grandmother reported that she had been trying to clean up and sort items out and make space. She stated that mother has baby clothing for the children given to her from family members but no crib, stroller, car seats or large items usually needed for an infant."
The juvenile court found there was no reasonable means to protect the minors' health without removing them from the mother's physical custody. The minors were declared dependent children of the juvenile court and were placed at Orangewood Children's Home.
Almost three months after the minors were born, the father presented himself to SSA. Later, he was determined to be the biological father of the minors. SSA discovered the minors have a half sibling, another child by the father. His parental rights to the half sibling were terminated in 2015, and the half sibling was adopted. The father has an unresolved drug abuse problem and a significant criminal history. SSA also discovered an outstanding arrest warrant for the father.
The father said his mother, the paternal grandmother, was suitable for placement of the minors. The paternal grandmother was interested in having the minors placed with her but SSA found both the paternal grandmother and the step-grandfather were not eligible for placement due to their significant criminal histories. On July 27, 2016, the minors were placed in the foster home of Michelle and Peter. Michelle and Peter were willing and able to provide long-term care for the minors.
Meanwhile, the mother was terminated from an outpatient drug treatment program for "no shows." She then entered an inpatient facility. The father was incarcerated.
Plans were made to provide monitored visits with the father upon his release from jail. His first visit with the minors occurred when they were eight months old, although he declined several other earlier opportunities and was inconsistent with later visitation opportunities. After "three no shows, the father's visitation services were terminated." When the minors were a little over a year old, the father requested reinstatement of visitation. A visit was scheduled but the father did not show up. A few months later, the same cycle was repeated; that is, the father was once again granted visitation but failed to show up for his scheduled visit with the minors. After "three no shows," his visitation privileges were once more canceled.
When the minors were eight months old, the mother was permitted unsupervised visitation with them. A social worker found the mother acted appropriately during these visits. When they were about 14 months old, SSA returned the minors to the mother for a 60-day visit. The mother and the minors moved in with a maternal great aunt and uncle in April 2017.
At some point, SSA discovered the mother had permitted the father to have "unauthorized and unsupervised contact with the children." He said the minors ran away from him and he was only able to catch one. The other fell down the stairs and had to be taken to the hospital for suturing of a facial laceration.
In March 2018, when the minors were a little over two years old, the mother tested positive for morphine. Around the same time, the father contacted the social worker to say he was starting a drug program, and that the mother and he "are together now in order to 'go through this together.'"
The minors were removed from the mother and placed in a foster care facility on March 19. Shortly thereafter, they were again placed in the home of foster parents Michelle and Peter. On March 23, 2018, the mother moved out of the home of the great aunt and uncle.
The juvenile court ordered SSA to evaluate relatives for possible placement of the minors. A great aunt and uncle were subjected to a resource family approval process so that SSA could determine their qualifications for permanent placement of the minors in their home. In its April 16, 2018 report to the court, SSA stated that the maternal great aunt and uncle were approved for placement.
On May 21, 2018, the juvenile court found by clear and convincing evidence the parents had exhausted their opportunity for reunification services. The court ordered a termination of parental rights hearing pursuant to Welfare and Institutions Code, section 366.26. (All further statutory references are to this code.) The hearing is set for September 18, 2018. The court further found by clear and convincing evidence that section 361, subdivision (c)(1), applies.
On May 22, 2018, the juvenile court denied the request of Peter and Michelle to be declared the de facto parents of the minors. The court also ordered the minors be placed with the great aunt and uncle, and found them to be de facto parents of the minors.
On May 29, 2018, this court denied the minors' petition for supersedeas. In that writ, the minors asked for an immediate stay of the juvenile court's May 22 order placing the minors with the great aunt and uncle.
There was no pending appeal when the petition was filed. --------
In the present petition, the minors again ask this court to vacate the juvenile court's May 22 order placing the minors with the great aunt and uncle, and to direct that the minors' placement with Peter and Michelle be resumed.
II
DISCUSSION
Petitioners argue the juvenile court erred in ordering the minors placed with the great aunt and uncle. They contend there was no need for a change of placement from Peter and Michelle, and that the placement with the great aunt and uncle is not in the minors' best interest.
In a letter brief, county counsel states: "While SSA recognizes the deferential standard of review under which such placement decisions are evaluated by this Court (see Pet. 19), the record before this Court reflects that continued placement with Peter and Michelle . . . was the best option for Minors at the time of the now challenged order."
"In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement . . . ." (§ 361.3, subd. (a).) The statute lists many factors to be considered by both the social worker and the court.
"When section 361.3 applies to a relative placement request, the juvenile court must exercise its independent judgment rather than merely review SSA's placement decision for an abuse of discretion." (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033.) "[W]hen a court has made a custody determination in a dependency proceeding, '"a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."'" (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
When the juvenile court made its ruling on the matter of the minors' placement, it gave a lengthy statement of its reasoning. The court began its remarks with the following: "I want to express my gratitude and appreciation to both sets of these folks for stepping forward to provide a loving and stable home for these two-year-old twins . . . . I know that requesting de facto parent standing requires a great deal of reflection, consideration, and sacrifice, and it is never taken lightly. Taking on the responsibility to love and protect one child is an unbelieveable sacrifice in and of itself, and doubling that responsibility for two bab[ies] . . . with mild developmental delays is even more admirable. [¶] My decision made today is not a reflection as to which set of parents is better than the other. All four of you are to be congratulated for the love and affection and stability you are willing to provide to these [minors], and you both are great examples for our community."
The juvenile court explained its appreciation of all the foster parents had done for the minors, and continued: "On the other hand, these children have lived their daily lives in the home of their great aunt and uncle and their preteen boys along with their paternal grandmother daily for the last year. Their mother lived with them there until about two months ago and was the [minors'] parent. This does not mean, however, that the aunt and uncle did not assume some parental responsibilities over the last year. [¶] Inasmuch as I find that the [great aunt and uncle] are able and willing to care for the children's now greatly improved and relatively mild developmental needs, it is my opinion that both of the sets of parents would protect the best interests of the children. However, since the legislative preference is to place the children with relatives and that promoting familial relationships outweighs non familial relationships, I find that the placement of these children should be with the [great aunt and uncle]."
Petitioners also argue that "[a]ssuming the need for a new placement was triggered, the evaluation of the relative home statute regarding placement of dependent children with relatives requires according preferential consideration to a relative's request for placement, rather than simply granting the request on a specified showing," and cite In re Luke L. (1996) 44 Cal.App.4th 670, to support their argument. The minors' argument here is not entirely clear, although it appears they place great significance on the fact it was the social worker who first approached the great aunt and uncle about placement of the minors with the relatives rather than vice versa. The record states it was the mother who suggested the great aunt and uncle for placement on March 20, 2018, a day after the minors were again removed from her. The social worker spoke with the maternal great aunt about the investigating process it would make regarding the family's ability to provide the desired permanency. The maternal great aunt was given time to speak with her husband and family members about having the minors in their home on a permanent basis. On March 23, 2018, the same day the mother moved out of the great aunt and uncle's home, the great aunt telephoned the social worker "and stated that she and her husband were interested in being assessed for placement of the children and stated they had plenty of space and resources available to have [the minors] placed in her care."
Here, the juvenile court found the great aunt and uncle satisfied all the section 361.3, subdivision (a), factors but that with regard to one of the factors, the best interests of the minors, both couples were satisfactory. That is, they could both equally provide for the best interests of the minors. But the relative preference tipped the decision in favor of the maternal great aunt and uncle. Under the circumstances that we find in this record, we cannot conclude the juvenile court abused its discretion.
III
DISPOSITION
The petition is denied.
MOORE, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.