From Casetext: Smarter Legal Research

In re Anthony

Court of Appeals of California, Sixth Appellate District.
Nov 24, 2003
No. H026014 (Cal. Ct. App. Nov. 24, 2003)

Opinion

H026014.

11-24-2003

In re ANTHONY G., a Person Coming Under the Juvenile Court Law. DEPARTMENT OF FAMILY AND CHILDRENS SERVICES, Plaintiff and Respondent, v. THELMA G., et al, Defendants and Appellants.


Jose G. and Thelma G. appeal from an order of the juvenile court permitting their child Anthony G. to be placed in an out-of-county foster home. They contend that the court failed to hold a timely hearing on the request for a change in placement, that the court abused its discretion in finding there was no suitable relative placement, that there was insufficient evidence to support the order, that the prospective adoptive parents impliedly refused to comply with the visitation order, and that the out-of-county placement will erode the parent-child bond. We affirm.

Proceedings Below

Anthony was born addicted to methadone on January 2002. After a period of hospitalization, Anthony resided with his mother, who was receiving family maintenance services, his three siblings, and his paternal grandmother. On November 16, 2002, Anthony and his brother Angel were placed in protective custody "because they were passengers in the car with their parents and both the mother and the father were under the influence of heroin." The children "were dirty, wearing adult diapers, and not in car seats." The same day, during a probation search, the police found that the home was dirty and that several hypodermic syringes were within reach of the children. Anthonys two other siblings were taken into protective custody.

On November 21, 2002, the Santa Clara County Social Services Agency (Agency) filed a detention report stating that Thelma and Jose had not identified any relatives as able and willing to care for Anthony and that none had offered to care for him. However, the "screener narrative" states that after Anthony and his siblings were admitted to the Childrens Shelter the social worker "received telephone calls from the maternal grandmother and the paternal grandmother, Maria G[.] and Celia G[.]. Maria G[.] stated that she is on probation for drug-related convictions; that she lives in a two-bedroom apartment with just her five-year old son, not with the father of the minors in question; that she would like to be considered for placement of the minors. Celia G[.] also asked that the children be returned to her residence which is, according to Celia G[.]s sister, also that of both parents and the paternal great-grandmother, Ramona G[.]." The court ordered Anthony detained with supervised visitation for Jose and Thelma for a minimum of one hour two times per week.

The combined jurisdiction and disposition report, dated December 20, 2002, recommended a by-pass of reunification services for Jose and Thelma and the setting of a section 366.26 hearing. The report said, "The mother and father have stated that they would like for their child to be placed with family members, Celia G[.], paternal grandmother and Veronica C[.], paternal cousin." Under the heading "Consideration of Relative Placement" the social worker stated that Celia G. was not a "suitable placement as she lives in the current home with the parents who were using illegal drugs and [in which] the paraphernalia . . . was found." The report said Veronica C. could not be recommended as a relative placement "as approximately 9 people live in a 3 bedroom 1 bath home. The family wishes to care for the child and siblings but the home can not be approved." Placement with Maria G. could not be recommended because she "is currently on probation due to drug related charges."

On January 28, 2003, Celia G. filed an application for de facto parent status that was continued several times and decided by the court after the orders challenged here.

The courts order on that application is challenged in In re Anthony G., H026065.

In an addendum report dated February 10, 2003, the social worker reported that Anthony was in an emergency satellite home and that there was "a search for an adoptive home" underway. Under the heading "relative placement" the report stated: "On 12/8/02 a relative home assessment was completed on Mrs. Veronica C[.] and this home did not meet the standards because there are 7 adults and 3 children living in a 3 bedroom home. Further, Mrs. C[.] did not understand the implications and responsibilities of caring for Anthony for long term. The relative believed that [the] child will be returning to the parents care and feels that the parents can help and visit the child as they wish in the family home. Furthermore, Mrs. C[.] uses spanking as a form of discipline for her 3 year old daughter and does not feel that it is inappropriate." The report excluded the maternal grandmother as a relative placement because she "has a criminal history involving convictions of possession of controlled substance, petty theft, under the influence and is currently on probation." The report stated that the paternal grandmother was not a suitable placement because, among other reasons, "she did not protect the child and siblings from further abuse due to the parents continued illegal drug use in the family home."

On February 10, 2003, the court sustained a Welfare and Institutions Code section 300 petition filed on behalf of Anthony alleging the circumstances under which he had been placed in protective custody and further alleging that Anthony was born under the influence of methadone, that Thelma had participated in drug treatment programs but had relapsed several times, that Thelma and Jose had a history of drug abuse, that Anthony and his siblings were at risk as shown by one sibling having ingested methadone, and that the family had been offered child welfare services in the past including voluntary services, family maintenance for Thelma, and reunification services for Jose. The court denied reunification services for Thelma and Jose because of their prior history of resistance to drug treatment and Joses failure to reunify with Anthonys siblings. The court ordered Anthony placed in a foster home with supervised visitation for Thelma and Jose. The court set a date for a section 366.26 hearing.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

On April 4, 2003, the social worker notified appellants that it was necessary to place Anthony outside of Santa Clara County because "a more permanent placement has been located. [¶] The type of placement being considered is a fost/adopt home out of County." A hearing was set for April 21 on this proposed placement. Both Thelma and Jose objected in writing to the out-of-county placement.

In a report dated April 21, 2003, the social worker stated the names of 11 people that the Agency had "ruled out" for placement. Reasons regarding the unsuitability of three of them, the paternal grandmother, the paternal cousin, and the maternal grandmother, had already been given. The report listed the names of eight other people, but did not detail how these people were related to Anthony or why they were considered inappropriate for placement. The report stated that after two months of looking, a non-relative out of county prospective adoptive home was located for Anthony. The report stated, "During the two months the birth parents have made no attempts to identify any other family or friends. . . . The birth parents believe that friends or family are available but the previous social worker ignored these placements. The birth parents did not list the names of any friends or family that they wanted to be considered for placement, but a considerable amount of friends and family have been assessed and ruled out for placement." The social worker recommended placing Anthony with the prospective adoptive family "due to the fact that the birth parents have not been actively working [with] the undersigned worker to find a relative or friend who is appropriate."

On April 21, 2003, Jose and Thelma were present with counsel. The court asked for a time estimate on the hearing for the out-of-county placement. Counsel for Thelma said, "I dont know if theres a necessity to set it necessarily for contest. All Im asking is to be given the opportunity to make phone contact with one of the people listed in the social workers report. That would be Maria A[.]. Because the social worker tells me one thing about a conversation with Maria A[.], and my client, who knows Maria A[.], tells me, that Maria A[.] has a different feeling about all of this, the social worker indicated that Maria A[.] would be an alternate placement in the county, and I just want an opportunity to look into that. And if it comes to a trial, it comes to a trial. It may not." Counsel requested a "couple weeks" noting, "[a] lot of it depends on — depending on what I find out and depending if I find out something different than the social worker is telling me or the social workers attitude toward that." Counsel for Jose did not object to the continuance.

On May 6, 2003, the court heard the request for the out-of-county placement. Anthonys paternal grandmother was present, but Thelma and Jose were not. Joses trial counsel said, "I had a chance to talk to my client today, and he is still opposed to the out-of-county placement. He still believes there are relatives available and willing to take care of this child, that would meet with the countys approval. However, our office has not had contact with any other individual, and I dont believe that the social worker has received any contact from any individual yet."

Counsel for Thelma said, "We did have contact with one relative that, I guess, was a guardian and could have been okay, but she indicated to us that she was working at the Sheriffs Department and couldnt take the minor anymore. [¶] The mother gave us a name of another placement which was a Godparent. She happens to be out of county also. She was in Modesto, and she wanted us to contact her and we have tried to do that without any success. But she would like the minor placed in-county, if possible." The trial court approved the out-of-county placement, saying, "There has been an exhaustive attempt to place with a relative which has been unsuccessful."

Discussion

Appellants contend, "The trial courts order allowing for the placement of Anthony out-of-county violated section 361.2, subdivision (g)."

Respondents argue that Jose and Thelma waived any objection to the order by not appearing in court and by not requiring the court to hold a contested hearing on the request for the out-of-county placement. By objecting in writing to the out-of-county placement, and appearing through their attorneys who argued against the placement, Jose and Thelma preserved the right to challenge the order on appeal.

Section 361.2, subdivision (g) provides: "Whenever the social worker must change the placement of the child and is unable to find a suitable placement within the county and must place the child outside the county, the placement shall not be made until he or she has served written notice on the parent or guardian at least 14 days prior to the placement . . . . The parent or guardian may object to the placement not later than seven days after receipt of the notice and, upon objection, the court shall hold a hearing not later than five days after the objection and prior to the placement. The court shall order out-of-county placement if it finds that the childs particular needs require placement outside the county."

Timely Hearing

Appellants contend, "the juvenile court violated the statute by failing to hold a timely hearing after the parents properly objected to the proposed out-of-county placement of their child." Here, the social worker received the parents objections to the out-of county placement on April 10 and the hearing was set for April 21. This setting was not within the five days mandated by section 361.2, subdivision (g). Neither appellant objected to the timing of this setting, and on April 21 counsel for Thelma requested a continuance of the hearing. Counsel for Jose did not object. Although the trial court should have set the hearing to comply with the time limits of section 361.2, subdivision (g), by failing to object in the juvenile court and requesting that the trial court continue the hearing appellants have demonstrated there was no prejudice from the delay and waived any claim on appeal.

Relative Placement

Appellants contend, "The out-of-county placement order must be reversed because the trial court abused its discretion in finding that there was no suitable relative placement." We apply the abuse of discretion standard. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067 superseded on other grounds by statute, as stated in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.)

Appellants argue, "Before the trial court could consider an out-of-county placement, it first needed to find that there were no appropriate relatives and friends within the county with whom the minor could have been placed on a permanent basis. Since the trial court could not reasonably have made this finding, the court erred in moving to the next step and authorizing an out-of-county placement for the minor with non-relatives."

Section 361.3 provides in part: "(a) 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 of the child with the relative. . . . [¶] (c)(1) Preferential consideration means that the relative seeking placement shall be the first placement to be considered and investigated. . . . [¶] [W]henever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives . . . who will fulfill the childs . . . permanent plan requirements." The statue lists several factors for the social worker and the court to assess and consider in determining whether the relative placement is appropriate.

Section 361.3 provides in pertinent part as follows: " . . . In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors: [¶] (1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. [¶] (4) Placement of siblings and half-siblings in the same home, if that placement is found to be in the best interest of each of the children as provided in Section 16002. [¶] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [¶] (6) The nature and duration of the relationship between the child and the relative, and the relatives desire to care for the child. [¶] (7) The ability of the relative to do the following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶] (B) Exercise proper and effective care and control of the child. [¶] (C) Provide a home and the necessities of life for the child. [¶] (D) Protect the child from his or her parents. [¶] (E) Facilitate court-ordered reunification efforts with the parents. [¶] (F) Facilitate visitation with the childs other relatives. [¶] (G) Facilitate implementation of all elements of the case plan. [¶] (H) Provide legal permanence for the child if reunification fails. [¶] However, any finding made with respect to the factor considered pursuant to this subparagraph and pursuant to subparagraph (G) shall not be the sole basis for precluding preferential placement with a relative. [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8) The safety of the relatives home. For a relative to be considered appropriate to receive placement of a child under this section, the relatives home shall first be approved pursuant to the process and standards described in subdivision (d) of Section 309. [¶] . . . The court shall order the parent to disclose to the county social worker the names, residences, and any other known identifying information of any maternal or paternal relatives of the child. This inquiry shall not be construed, however, to guarantee that the child will be placed with any person so identified. The county social worker shall initially contact the relatives given preferential consideration for placement to determine if they desire the child to be placed with them. Those desiring placement shall be assessed according to the factors enumerated in this subdivision. The county social worker shall document these efforts in the social study prepared pursuant to Section 358.1. The court shall authorize the county social worker, while assessing these relatives for the possibility of placement, to disclose to the relative, as appropriate, the fact that the child is in custody, the alleged reasons for the custody, and the projected likely date for the childs return home or placement for adoption or legal guardianship. However, this investigation shall not be construed as good cause for continuance of the dispositional hearing conducted pursuant to Section 358."

Appellants rely on Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023. In Cesar V., the minors father had stipulated to termination of reunification services after the minors had been adjudged dependents and placed in a foster home. When a change in placement became necessary, the father sought placement of the minors with his mother. The social worker initiated an assessment of the grandmothers home, but terminated that process and began looking for another foster family before making significant efforts to obtain necessary information from the grandmother. At a subsequent permanency hearing, the juvenile court reviewed and upheld the action of the social services agency, finding that it had not abused its discretion under section 361.3 in denying placement with the grandmother.

The court found that section 361.3 required the agency to give a relative seeking placement a "fair chance" and that the agency had not done so. (Cesar V., supra, 91 Cal.App.4th at p. 1033.) It further held that "[w]hen section 361.3 applies to a relative placement request, the juvenile court must exercise its independent judgment rather than merely review [the agencys] placement decision for an abuse of discretion." (Ibid .) The court returned the matter to the juvenile court to order completion of the grandmothers assessment and to hold a new hearing with the court exercising its independent judgment. (Id. at p. 1036.)

Appellant complains that there was no showing that the social worker performed a proper statutory assessment using the very specific criteria for determining placement for each of the people Jose and Thelma named as possible placements for Anthony. Although the statute requires the court to order the parents to disclose to the social worker information about relatives, the statute mandates an assessment only when there is a "request by a relative" and states that preferential consideration should be given to the "relative seeking placement." (§ 361.3.) The record shows that Anthonys grandmothers called the social worker and requested placement with them. The social worker considered one inappropriate because she lived with Anthony at the time of the circumstances leading to his dependency. The other grandmother was considered inappropriate because she had criminal convictions and was on probation for drug charges. These disqualifying circumstances are sufficiently serious to relieve the social worker of any duty to assess these placements further. The record does not indicate whether Veronica C. contacted the social worker to request placement or whether her name was given to the social worker by Jose and Thelma. In any event, the social worker did assess this placement, including her living arrangements, her discipline methods, and her view of what the placement would entail. The social worker provided sufficient information about each of these three possible relative placements to permit the court to determine whether or not they were appropriate.

As for the remaining eight people named in the report, there is no indication in the record whether or not they are related to Anthony, and it appears that Jose and Thelma simply gave these names to the social worker. Although appellant criticizes the social workers cursory statement that she had "ruled out" these people as possible placements, we do not consider the statute to mandate a full-blown assessment of any friend or relative whose name the parents disclose to the social worker. Rather, the statute only requires assessment of those relatives desiring placement, who come forward actively seeking placement of the minor with them, such as the grandmother in Cesar V. Counsel for Thelma asked for and received additional time to explore a possible placement, and that person turned out to be unavailable to take Anthony. Neither counsel for Thelma nor counsel for Jose advocated for any of the excluded placements, and counsel for Thelma candidly admitted, "our office has not had contact with any other individual, and I dont believe that the social worker has received any contact from any individual yet." Considering that Anthony was detained in November 2002, and, by April 2003, no suitable relative had come forward seeking placement, the trial court did not abuse its discretion in determining that there was no appropriate relative placement available for Anthony at the time the change of placement because necessary.

Necessity of Out-of-County Placement

Appellants contend, "The trial court erred by placing the minor outside of Santa Clara County since the showing was insufficient that there was not a suitable placement for the minor within the county." They argue, "The department failed to show that Anthony had to be moved." At the time the social worker requested the change of placement, Jose and Thelma had been bypassed for reunification services and, although parental rights had not been terminated, adoption was now an issue, and Anthony was in a foster home. In arguing that there was an insufficient showing that Anthonys placement needed to be changed, Thelma complains, "the social worker never indicated whether these foster parents were considering the option of providing the minor with a permanent home." The record does show that the foster parents had "other foster children (2 one-year-olds and 1 three-year-old) [and] two of their own children, ages 4 and 11." This, along with the fact that the social worker began a search for an adoptive home, would indicate that this placement was not intended to be a permanent one for Anthony.

After two months of searching, the social worker found an adoptive home for Anthony, but that home was outside of the county. Appellants complain that the social worker "never explained where she had looked and whether she had exhausted possible adoptive placements within Santa Clara County." In February 2003, the social worker reported that "a child card has been submitted and there is a search for an adoptive home." In April, the social worker reported, "After two months a non-relative out of county prospective adoptive home was located." This provides a sufficient basis for this court to uphold the juvenile courts conclusion that the social worker had been "unable to find a suitable placement within the county." (§ 361.2, subd. (g).)

Compliance with Visitation Order/Parent-Child Bond

Appellants contend, "The prospective adoptive parents impliedly refused to abide by the court-ordered visitation between the parents and child pending the permanency planning hearing." This argument is based on the social workers statement in the April 2003 report that "The non-relative prospective adoptive placement is willing to continue sibling and relative visits." From this, appellants speculate that the placement familys willingness to continue sibling and relative visits indicated an unwillingness to continue the court-ordered regular visitation for the parents. There is simply no basis for this claim. The court specifically ordered, "Previous orders are to remain in full force and effect." This would necessarily include the prior order concerning visitation by Thelma and Jose.

Appellants contend, "Placement out-of-county will erode the parent/child bond." This argument is based on the speculation that the prospective adoptive parents impliedly refused to abide by the court-ordered visitation between the appellants and Anthony, and that the change will prevent Anthony from traveling to the place of his supervised visits with appellants. We reject this speculation and find nothing in the record to indicate that Anthonys move to an out-of-county prospective adoptive home will mean that his regular supervised visits with appellants will not be maintained.

Disposition

The orders of the juvenile court are affirmed.

WE CONCUR: RUSHING, P. J., PREMO, J.


Summaries of

In re Anthony

Court of Appeals of California, Sixth Appellate District.
Nov 24, 2003
No. H026014 (Cal. Ct. App. Nov. 24, 2003)
Case details for

In re Anthony

Case Details

Full title:In re ANTHONY G., a Person Coming Under the Juvenile Court Law. DEPARTMENT…

Court:Court of Appeals of California, Sixth Appellate District.

Date published: Nov 24, 2003

Citations

No. H026014 (Cal. Ct. App. Nov. 24, 2003)