Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County Super. Ct. No. J516684A-B, Laura J. Birkmeyer, Judge.
McDONALD, J.
Andres C., Sr., appeals orders sustaining supplemental petitions under Welfare and Institutions Code section 387 and removing his sons, Andres C., Jr., and G.C. (together the children), from their maternal grandmother's care in Mexico and placing them in foster care in the United States. He argues the evidence was insufficient to support the petitions or the order of removal, and the court violated the children's rights to maintain family relationships. We hold substantial evidence supports the jurisdictional orders, and the court did not err by removing the children from the maternal grandmother and not placing them with the paternal grandparents. We also hold, because the children are now living with relatives who have become their legal guardians, Andres, Sr.'s, argument concerning their rights to maintain family relationships is moot.
Statutory references are to the Welfare and Institutions Code.
We grant the unopposed motion for judicial notice of the San Diego County Health and Human Services Agency (the Agency) of juvenile court minute orders evidencing placement of the children with relatives, the social worker's report relating to these orders and the related letters of guardianship.
FACTUAL AND PROCEDURAL BACKGROUND
Andres, Jr., was seven years old and G.C. was four years old in May 2007 when they were removed from the custody of their parents, Patricia M. and Andres, Sr. Drug Enforcement Administration (DEA) investigations reported Andres, Sr., was the leader of a methamphetamine trafficking group, and three of his brothers, his nephew and Patricia were also involved in drug trafficking. Andres, Sr., and Patricia were arrested. In 2008 Patricia pleaded guilty to money laundering. In March 2009 she was released from custody and deported to Mexico. Andres, Sr., pleaded guilty to conspiracy to distribute methamphetamine and was sentenced to federal prison.
On May 21, 2007, the Agency petitioned on behalf of the children under section 300, subdivisions (b) and (g), and the juvenile court ordered them detained. By July 2007 they were placed with their maternal grandmother in Michoacán, Mexico. The court ordered the parents to participate in reunification services, but few services were available at the federal facilities where they were housed, and in October 2008, because neither parent had made substantive progress towards reunification, the court terminated services and set a section 366.26 hearing.
While in prison, Patricia gave birth to Alexa M. Alexa did not become a dependent child of the court but went to live with Andres, Jr., and G.C. in the maternal grandmother's home in Michoacán.
On December 3, 2008, five masked men carrying assault rifles broke into the maternal grandmother's home, shot their guns into the air, and, in the presence of the children, abducted the maternal grandfather and a maternal uncle. The maternal grandmother took the children a few blocks away to the paternal grandparents' home. One month later, she told the Agency social worker what had happened. The social worker was concerned the children were in danger and requested permission from the Mexican social services agency, Desarollo Integral de la Familia (DIF), to pick them up. The paternal grandmother then brought them to Tijuana and transferred them to the Agency's custody. The juvenile court ordered them detained, and they were placed in foster care in the United States.
In addition to danger from the kidnappers, the social worker expressed concern that a paternal uncle who lived in the paternal grandparents' home had served a prison term in the United States for selling cocaine. Also, the paternal grandmother minimized Andres's and her other sons' criminal drug involvement, and the maternal grandmother's brother previously had been kidnapped.
In January 2009 the Agency petitioned on behalf of the children under section 387, alleging the maternal grandmother was no longer able to provide adequate supervision and control following the armed kidnapping in her home.
The petitions stated, "The previous disposition has not been effective in the protection or rehabilitation of the child. Count 1: On or about December 3, 2008, the relative, with whom said child was placed by this Court is no longer able to provide adequate care and supervision for said child in that: the family was involved in a kidnapping and home invasion where firearms were discharged; the kidnapped relatives are missing and the children were exposed to the entire event."
The maternal grandmother, paternal grandmother and a paternal aunt, M.C., requested placement of the children. The maternal grandmother said the children's one-year-old sister, Alexa, was living with Patricia and with maternal aunts in Tijuana, where the aunts had moved from Michoacán for their own safety. DIF completed an approved home evaluation of the paternal grandparents' home and criminal clearances were provided for the adults living there. Meanwhile, Andres, Jr., and G.C. were adjusting well to their foster home.
At the hearing in June 2009 on the section 387 petitions and placement, the social worker testified that, in her opinion, the children should not be placed with the paternal grandparents because a paternal uncle with a criminal background lived in the home; all of the paternal grandparents' sons had been involved in drug trafficking; the paternal grandmother minimized their criminal activities; the abductions and other problems in that part of Mexico posed a risk to the children; and DIF would monitor a placement only once every six months. She said the maternal grandfather and maternal uncle were still missing, and the reasons for their kidnappings remained unknown. She testified placement with M.C. had been denied because other people in her home had criminal histories. Also, when G.C. was returned to San Diego he was anemic and had severe dental decay, yet the paternal grandparents did not appear to be concerned. The social worker testified she had asked the DIF social worker to provide an update about the abduction, but the DIF social worker said that for their own safety, people in the town did not talk about it. He stated, however, that the children would be better off with the paternal grandparents than in the United States.
M.C. testified she had not known Andres, Sr., was engaged in drug trafficking. She said both sets of grandparents lived in the same small town in Michoacán, the paternal grandfather is a farmer and they are law-abiding people.
A DIF social worker testified the paternal grandparents' home would be a safe placement for the children. She stated the kidnappings did not pose a safety risk because the problems were with the maternal family, not with the paternal family. She said if the children were placed with the paternal grandparents, DIF would check on them at least once each month. DIF had been monitoring another child in the home, and there were no concerns with the care this child was receiving.
It was stipulated that an investigator reported that Andres, Jr., told her in April 2009 that he had lived with the maternal grandmother until bad men took the maternal grandfather. He said that nothing bad happened to him at the paternal grandmother's home, and he wanted to return to live with her. The investigator reported G.C. said he wanted to live with the maternal grandmother. Both children said they did not remember this conversation.
The parties stipulated that were G.C. to testify, he would say he liked living with the paternal grandparents, but would prefer to live with Patricia. His second choice would be with M.C.; his third choice would be the foster home. Andres, Jr., would say he preferred to stay in the United States. His first choice would be to live with Patricia. His second choice would be with M.C; and his third choice would be the foster home.
The parties stipulated that if Andres, Sr., were to testify, he would state his first preference was for the children to live with the paternal grandparents, then with M.C. or with Patricia if she had a suitable home. If the paternal grandmother were to testify, she would state she had cooperated with the Agency by bringing the children to Tijuana, she did not know of any risk to her family from the abductions, and neither she nor the paternal grandfather were involved in any illegal activities.
After considering the evidence and argument, the court found the allegations of the section 387 petitions were true and the grandparents' homes were not appropriate for placement because of concerns for the children's safety. The court ordered placement in foster care and in relative care with concurrence of the children's counsel.
DISCUSSION
I
Andres, Sr., contends the evidence was insufficient to support the supplemental petitions. He argues the evidence did not show the children were at risk in the grandparents' homes or that they could not protect the children. We conclude substantial evidence supports the findings that the allegations of the petitions were true.
When a social services agency seeks to change the placement of a dependent child from relative care to a more restrictive level of placement it must file a supplemental petition under section 387. The petition "shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3." (§ 387, subd. (b).) Criteria in section 361.3 include considering the best interest of the child (§ 361.3, subd. (a)(1)), and the ability of the relative to provide a safe, secure and stable environment (§ 361.3, subd. (a)(6)(A)), and exercise proper and effective care (§ 361.3, subd. (a)(6)(B)).
The Agency has the burden to show by a preponderance of the evidence that the factual allegations of the petition are true. If the court finds the allegations true, it must then determine whether the previous disposition is no longer effective in protecting the child or whether placement with the relative is not appropriate, considering the criteria in section 361.3. (§ 387; In re Miguel E. (2004) 120 Cal.App.4th 521, 542; Cal. Rules of Court, rule 5.560(c) .) The petition is not required to allege abuse, but must contain a factual statement that the placement is not appropriate under the criteria listed in section 361.3. (§ 387, subd. (b); rule 5.565.)
Rule references are to the California Rules of Court.
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge all reasonable inferences to support the findings of the juvenile court [citation], and we must also '... view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Substantial evidence supports the court's finding that because of the abductions from the maternal grandmother's home, the maternal grandmother was no longer able to provide adequate care for, and supervision of, the children. The court could reasonably infer that the kidnappings were connected to drug trafficking. The maternal grandmother said she believed the maternal grandfather had been taken because drug lords believed he had told authorities about the drug lords' activities, and she said Alexa and the maternal aunts had gone to Tijuana for their own safety. Two years earlier the maternal grandmother's brother also had been kidnapped, and this crime was also connected to drug trafficking. In addition, the brother's wife allegedly attempted to retaliate by having others assault her husband's kidnappers.
The paternal grandparents lived only a short distance from the maternal grandparents, and the paternal grandparents' sons all had been involved in drug trafficking. The DIF social worker said he and the other people in the town were very careful, and he did not have anything to say about the abductions. The Agency social worker was reasonably concerned that the children remained at risk in the paternal grandmother's home and asked her to bring them to Tijuana so they could return to San Diego. Substantial evidence supports the court's finding that the allegations of the supplemental petitions were true.
II
The court did not err by removing the children from the maternal grandmother's care and not placing them with the paternal grandparents.
"When the petitions are filed to remove children from the custody of a relative, the court uses the preponderance of the evidence burden of proof and need not look at less restrictive alternatives." (In re A.O. (2004) 120 Cal.App.4th 1054, 1061.) We thus reject Andres, Sr.'s, argument the court erred by not using a clear and convincing evidence standard of proof and by not looking for less restrictive alternatives.
There is a difference of opinion as to the standard of review for removing a child from a relative's home under a supplemental petition. In In re A.O., supra, 120 Cal.App.4th at page 1061 and In re H.G. (2006) 146 Cal.App.4th 1, 11, the court used the substantial evidence standard. In In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, the court determined the abuse of discretion standard should be used to review the court's determination regarding relative placement under section 361.3. Here, under either standard, the court did not err by removing Andres, Jr., and G.C. from the maternal grandmother and not placing them with the paternal grandparents.
Section 361.3 lists numerous factors for a court and the social services agency to consider when determining whether placement with a relative is appropriate. The "linchpin of a section 361.3 analysis is whether placement with a relative is in the best interests of the minor." (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 862-863.) Here, evidence that members of both families had been involved in drug trafficking showed the children would be at substantial risk in the homes of the maternal and the paternal grandparents. The maternal grandfather and a maternal uncle were violently abducted at gunpoint in the children's presence. G.C. had nightmares about the incident, and Andres, Jr., had cried in his sleep. He said he was afraid the kidnappers might return and he feared for the safety of his grandfather and uncle. The maternal grandmother's brother also had been involved in the drug trade and had been kidnapped. He was returned to his family after a ransom was paid, and his wife then attempted to retaliate by having someone assault the kidnappers. The paternal grandparents' sons all had been convicted of crimes involving drug trafficking, but the paternal grandmother denied knowing about their activities. The maternal and paternal grandparents lived in the same town in Michoacán, just a few blocks from each other, and the children's maternal aunts left the area with the children's sister to go to Tijuana for their own safety. The DEA officer who was conducting investigations regarding Andres, Sr., and Patricia's involvement in drug trafficking told the social worker she was correct to assume the children would be at risk in Michoacán.
The DIF's positive home evaluation of the paternal grandparents' home was basic and did not contain a recommendation of where the children should live. Further, by the time of the hearing, neither Andres, Jr., nor G.C. wanted to return to live with any of the grandparents.
The court's decision to remove the children from the maternal grandmother and not place them with the paternal grandparents does not show a lack of respect for or bias against Mexico or the DIF as Andres, Sr.'s, counsel alleges. Andres, Sr., has not shown juvenile court error.
DISPOSITION
The orders are affirmed.
WE CONCUR: McCONNELL, P. J.HALLER, J.