Opinion
E073475
03-26-2020
C.B., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Daniel G. Rooney, under appointment by the Court of Appeal, for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. J278549) OPINION ORIGINAL PROCEEDINGS; petition for writ of mandate. Christopher B. Marshall, Judge. Petition denied. Daniel G. Rooney, under appointment by the Court of Appeal, for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Real Party in Interest.
Petitioner, C.B., is a maternal relative of K.T. (the child). C.B. filed a notice of appeal seeking to challenge the juvenile court's decision not to place the child with her and her husband. She argues she was not provided the benefit of the relative placement preference set forth in section 361.3 of the Welfare and Institutions Code.
All statutory references herein are to the Welfare and Institutions Code unless otherwise indicated.
We treat the appeal as a petition for writ of mandate, which we deny.
BACKGROUND
In their briefs, the parties refer to facts set forth in both the published and unpublished portions of our opinion in an appeal taken by C.B. and her husband in an unrelated juvenile dependency proceeding involving the child's brother. (In re K.T. (2019) 42 Cal.App.5th 15.) That opinion is not properly before us in this case.
The child is the dependent minor who is the subject of this proceeding. She was born on November 3, 2018, and appears to have been taken into protective custody by San Bernardino County Children and Family Services (the Department) on or around November 9, 2018. She was placed with the A family, where her brother is also placed. The child and her brother also have a maternal half brother, C.U., who lives with C.B. and her husband (collectively, the B's). Parental rights as to C.U. were terminated in July 2017.
In March 2019, the Department sent the B's an assessment package and, shortly thereafter, C.B. reported her home had been assessed by a foster family agency for the child's placement and she was waiting for the results.
In late May 2019, when the child was nearly seven months old, C.B. filed a section 388 petition seeking placement of the child. She attached an undated letter stating they had made several calls to the Department asking for placement but had not received an answer. She requested the Department contact the foster family agency. The petition was denied because the court had not yet asserted jurisdiction over the child.
On July 15, 2019, C.B. wrote to the Department's social worker assigned to the child's case, requesting visits with the child and a placement assessment. By then, the Department had discovered that, during a time that a warrant seeking the child's apprehension was outstanding, the B's knew the child's whereabouts and had her in their home.
On August 1, the social worker reported that the B's had not been taking C.U. to the regularly scheduled bimonthly visits with the child and her brother. The B's had neither contacted the foster agency's social worker to explain why they were not taking the half brother to visits nor responded to that social worker's texts.
At the August 5, 2019 combined hearing on jurisdiction and disposition, the juvenile court sustained a section 300 petition filed on the child's behalf and adjudged her a dependent. It ordered bypass of family reunification services, ruled out the B's as a placement for the child, and set the matter for a permanent plan selection hearing pursuant to section 366.26.
On August 16, 2019, C.B. filed a notice of appeal seeking to challenge the court's order excluding her as a relative placement for the child.
DISCUSSION
1. Appealability of the order denying the B's request for placement
Before addressing the merits of appellant's argument, we must determine whether she has taken an appeal from an appealable order. We have a duty to raise any issues concerning our jurisdiction to hear a matter. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126-127.) We must determine whether we have power to act and, to that end, we have jurisdiction to determine our own jurisdiction. (People v. Williams (2005) 35 Cal.4th 817, 824.)
In her notice of appeal, C.B. specified that she was appealing the court's June 17, 2019 order denying a relative assessment and relative placement. In their briefs, C.B. and the Department acknowledge that the order C.B. complains of was made on August 5, 2019, not June 17, 2019. We agree to construe the notice of appeal as a challenge to the August 5 order in keeping with the long-standing law in California that notices of appeal are to be liberally construed to protect the right of appeal so long as it is reasonably clear what the appellant intended to appeal from and it is not possible that the respondent could have been misled or prejudiced. (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882.)
Unmentioned by the parties is that construing the appeal as being taken from the August 5, 2019 hearing raises the question whether the placement denial order is appealable because, at that hearing, the court ordered the setting of a permanent plan selection hearing pursuant to section 366.26.
Subdivision (l) of section 366.26 provides that an order that a section 366.26 hearing be set is not appealable at any time unless (i) a petition for extraordinary writ review was timely filed, (ii) the petition substantively addressed the specific issues to be challenged and supported that challenge with an adequate record, and (iii) the petition was summarily denied or otherwise not decided on the merits. The section 366.26, subdivision (l) writ requirement encompasses all orders made at the setting hearing. (In re Tabitha W. (2006) 143 Cal.App.4th 811, 817.) C.B. did not timely file a petition for an extraordinary writ and, therefore, the order denying her request for placement of the child is not appealable.
We have discretion to treat an unauthorized appeal as a writ of mandate in circumstances like those presented here. (A.M. v. Superior Court (2015) 237 Cal.App.4th 506, 515-516 (A.M.).) C.B. has standing because she was aggrieved by the court's decision not to place the child with her. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035.) She was not present at the August 5, 2019 hearing when the orders were made so she was not entitled to notice of the section 366.26, subdivision (l) writ requirement. (Cal. Rules of Court, rule 5.590(b).) She filed the notice of appeal 11 days after the court's ruling, that is, well within the maximum time limit for filing a notice of intent to file a petition for an extraordinary writ. (Cal. Rules of Court, rule 8.450.) Transcripts were prepared and certified by the juvenile court clerk and the reporter. The relative placement issue has been briefed. And, the Department addressed the merits of C.B.'s arguments without requesting dismissal of the appeal.
Accordingly, we exercise our discretion to treat C.B.'s appeal as a writ petition. (A.M., supra, 237 Cal.App.4th at pp. 513-516; In re Albert B. (1989) 215 Cal.App.3d 361, 372-373, citing Olson v. Cory (1983) 35 Cal.3d 390, 401.) 2. The denial of the C.B.'s placement request
C.B. claims the juvenile court denied her the preferential consideration due her pursuant to section 361.3. We disagree.
When a child is removed from the physical custody of his or her parent pursuant to section 361, section 361.3 requires the juvenile court to give preferential consideration to a request by the child's relative for placement. By enacting that provision, the Legislature intended relatives to be assessed and considered favorably, subject to the juvenile court's consideration of the suitability of the relative's home and the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 320 (Stephanie M.).) The statute specifies factors the county social worker and the court must consider when making the determination whether placement of the child with the relative is appropriate. (§ 361.3, subd. (a).) In a case like the present one in which reunification services are not being offered to the parents, the relevant factors are:
(1) the best interest of the child; (2) the wishes of the parent, relative, and (if appropriate) the child; (3) placement of siblings and half siblings in the same home, unless placement would be contrary to the safety and well-being of any of the siblings; (4) the good moral character of the relative and any other adult living in the home, including prior history of violent criminal acts or acts of child abuse or neglect; (5) the nature and duration of the relationship between the child and the relative, and the relative's desire to provide legal permanency for the child; and, (6) the relative's ability to provide the child with a safe, secure and stable environment for the child, permanence, proper and effective care and control, a home and necessities, protection from parents, appropriate and safe child care if needed, and to facilitate visits with the child's other relatives. (§ 361.3, subd. (a).)
When considering whether to place a dependent child with a particular relative, the court is to exercise its independent judgment in evaluating the statutory factors as well as any other relevant information. (In re A.K. (2017) 12 Cal.App.5th 492, 498.) If the juvenile court decides not to place the child with a relative who has been considered for placement pursuant to section 361.3, then it must state for the record the reasons for its denial. (§ 361.3, subd. (e).)
We review a juvenile court's orders made pursuant to section 361.3 under the abuse of discretion standard of review, which is similar to analyzing the sufficiency of the evidence in support of its decision. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) Under that standard, the juvenile court is accorded broad discretion and its findings and determination will not be disturbed absent a manifest showing of abuse. (In re Sarah S. (1996) 43 Cal.App.4th 274, 286; Stephanie M., supra, 7 Cal.4th at p. 318 [a court's custody determination in a dependency proceeding will not be disturbed unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination].)
Here, we do not find the juvenile court abused its discretion in denying placement with C.B. It specifically stated that it considered the section 361.3 criteria. The child was placed with her brother in a concurrent planning home. The court also found it was not in the child's best interest to be placed with C.B. for reasons set forth in the two "additional information to the court" forms (6.7 form), which were filed by the Department for the August 5 hearing, "along with other information." The 6.7 forms revealed that C.B. knew the child's whereabouts and had her in her home while a warrant issued for the child's apprehension was outstanding. The B's had also stopped bringing C.U. to visits with the child and her brother and had not contacted the foster family agency's social worker to explain their absence or to continue C.U.'s visits with his half siblings. Nor had they responded to that worker's efforts to contact them.
C.B. argues that the Department failed to assess her home pursuant to section 361.3. The record does not support that conclusion. C.B. was provided an assessment packet and shortly thereafter reported to the Department that an assessment had been completed by a foster family agency. Moreover, section 361.3 required the Department to consider the factors set forth in that statute and document its assessment efforts in its report required to be prepared and filed in anticipation of the hearing on disposition. (§§ 358, 358.1, 361.3, subd. (a).) The record reflects that a report prepared for the combined hearing on jurisdiction and disposition was read and considered by the court and entered into evidence.
C.B. also claims the juvenile court relied only upon what she describes as "one sided and distorted negative comments" of the Department that were "biased and incomplete," and failed to exercise its independent judgment. That claim is essentially a request that we reweigh the evidence, which is beyond our authority. (In re G.L. (2014) 222 Cal.App.4th 1153, 1166.)
DISPOSITION
The petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.