Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. J515810 D-E, Cynthia Bashant, Judge.
HUFFMAN, J.
Sheena G., the maternal grandmother of Antonio G. and Shakira G., asserts the juvenile court abused its discretion bye denying her request to have the children placed with her under Welfare and Institutions Code section 361.3, which requires that the court give preferential consideration to relatives who request that dependent children be placed with them.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2005 the San Diego County Health and Human Services Agency (Agency) filed petitions on behalf of then seven-year-old Antonio and three-year-old Shakira. The Agency filed petitions under section 300, subdivisions (b) and (j) on behalf of the minors alleging they had been exposed to incidents of domestic violence between their mother, Nina, and her boyfriend, Elijah. The court held a detention hearing and detained the minors with Sheena.
The court granted Nina supervised visitation and ordered her to comply with a case plan. During the next six months, Nina made some progress with her case plan and the court granted her an additional six months of services. The minors remained in Sheena's care.
In May 2006 the Agency filed a section 387 petition on behalf of the minors seeking to remove them from Sheena's care. The petition alleged Sheena was unable to provide the minors with adequate care and protection. Sheena allowed Nina to have unsupervised visits with the minors and had left the minors unsupervised in her own home. Antonio told the social worker he visited Nina every night but denied staying overnight with Nina. Shakira, however, stated she slept with Nina and Antonio at Nina's home. The social worker reported Antonio admitted to sometimes being unsupervised in Sheena's home. He stated he once waited after school for someone to come and take him home. When nobody came, he walked to his older sister's home by himself. He also claimed Sheena did not have beds for him and Shakira to sleep on so they slept on the floor. The court sustained the section 387 petition, removed the minors from Sheena's care, and placed them with Michelle H., a nonrelative extended family member.
At the 18-month review hearing, the court terminated Nina's reunification services and scheduled a section 366.26 selection and implementation hearing.
In April 2007 the Agency filed a second section 387 petition on behalf of the minors seeking to remove them from their current placement because Michelle was unable to continue caring for the minors. Sheena subsequently contacted the Agency and filed a section 388 petition in propria persona formally requesting placement of the minors in her care. The court detained the minors in foster care and scheduled a hearing to address Sheena's petition.
The Agency submitted a section 366.26 report before the hearing on Sheena's section 388 petition took place. The social worker reported Sheena contacted the Agency to request unsupervised visits with the minors. The Agency did not approve of the visits because the minors previously had been removed from Sheena's custody and Sheena had not been able to provide the minors with a safe environment.
In a June 2007 addendum report, the Agency noted Nina appeared to have been living with Sheena on a part-time basis throughout the dependency. The social worker reiterated Sheena was unable to provide a safe home for the minors and did not comply with Agency expectations. Her past actions contributed to the minors' removal from her home.
The court held a contested hearing to address Sheena's section 388 petition. After hearing the evidence, the court denied the section 388 petition finding there was an absence of changed circumstances that would warrant placing the minors in Sheena's care. The court also found Sheena allowed Nina to have unsupervised contact with the minors when the minors were under Sheena's care and therefore, Sheena would not be able to provide a safe home for the minors. The court ordered the minors remain in foster care. Sheena filed a notice of appeal.
In July 2007 the Agency reported that Sheena refused to comply with Agency requests concerning supervised visitation with the minors. She did not cooperate with the social worker's efforts to schedule visits and instead wanted to meet with the children on her own terms. Sheena repeatedly called the minors' caregiver and behaved inappropriately. When asked not to contact the caregiver, she refused to comply.
In December 2007 this court reversed the trial court's disposition order for the section 387 petition removing the minors from Sheena's home. This court concluded the trial court did not review Sheena's request for placement under section 361.3. Following the submission of a section 361.3 assessment report to be prepared by the Agency, the trial court was to hold a new hearing addressing Sheena's request for placement.
The trial court ordered the Agency to file a section 361.3 report which social worker David Smith submitted in January 2008. Sheena met with Mr. Smith and repeatedly emphasized she did not have a relationship with Nina and further, Nina was not allowed inside of Sheena's home to see the minors. Mr. Smith noted one month before, however, Sheena indicated she had regular contact with Nina. Specifically in December 2007 Sheena contacted Mr. Smith to schedule a visit with the minors. Mr. Smith asked Sheena how Nina was doing and Sheena responded Nina was doing very well and wanted to get the minors back in her custody. Sheena stated she saw Nina often.
Mr. Smith discussed the factors listed under section 361.3 to determine whether placement with Sheena would be appropriate for the minors. He first considered whether placement with Sheena would be in the best interests of the minors. He believed there was a strong possibility Sheena would allow Nina to have access to the minors, thus confusing the minors and placing them at risk for physical and emotional harm. Sheena previously lost custody of the minors because she did not protect them and allowed them to have contact with Nina. Mr. Smith concluded it would not be in the minors' best interests to be placed in Sheena's care.
Mr. Smith also considered whether Sheena would be able to protect the minors from Nina. He reiterated the minors had been removed from Sheena's care after Sheena allowed unsupervised contact with Nina and believed it would happen again because Sheena was not truthful about her relationship with Nina.
The report also noted Sheena made few efforts to see the minors during the two years after their removal from her home. When visits did take place, Mr. Smith observed Antonio seemed to be somewhat cold and unresponsive toward Sheena during visits. Shakira appeared to be happy when she saw Sheena but the minors did not show strong emotions when visits with Sheena ended.
Mr. Smith concluded placing the minors with Sheena would not provide them with a safe and secure placement. Sheena was not truthful regarding her relationship with Nina and Sheena did not have strong, secure attachments to the minors. The minors instead deserved stability in their lives that a permanent plan of adoption would provide.
In April 2008 the court held a hearing regarding the minors' placement. The court heard testimony from several individuals including Sheena and Mr. Smith. Sheena testified she visited the minors once a month since May 2007. She denied having a good relationship with Nina and denied telling Mr. Smith in December 2007 that she regularly saw Nina. When questioned about the initial removal of the minors from her home, Sheena testified she had been deceived by Nina and blamed the social workers for not doing more to prevent Nina from contacting the minors. She stated in the future she would contact the police if Nina came to her house to see the children. Sheena continued to deny that she permitted Nina to visit her at home and stated Nina had not been to any of her apartments in the last 20 years. Sheena testified she attempted to visit the minors after their removal but the social workers and foster parent would not allow it. She stated she loved the minors but did not believe they should be sent to the prospective adoptive home located out of state.
Mr. Smith testified that an adoptive home out of state had been found for the minors in October 2007 but the minors had not been moved because of the status of the dependency proceedings. The prospective adoptive parent had met with the minors and remained interested in adopting them.
Mr. Smith's primary concern continued to be Sheena's inability to protect the minors. Sheena had not been truthful concerning her relationship with Nina. In December 2007 Sheena told Mr. Smith she believed the minors should be returned to the mother. Later that month, Sheena denied having a good relationship with Nina. Mr. Smith also expressed concerns about the relationship shared between the minors and Sheena. During visits, the minors played well with one another but did not interact with Sheena very much. Concerning the possible out of state placement of the minors, Mr. Smith acknowledged the minors had some concerns about moving to a new home.
The parties stipulated if Antonio were to testify, he would say his first preference would be to live with Nina and the second choice would be Sheena. He would testify that he would rather live with family and would be sad and mad if that did not happen. The parties also stipulated as to Shakira's testimony. She would state her first choice would be to live with the prospective adoptive parent and her second choice would be Nina or Sheena.
After considering the evidence, the court found Sheena's representations that she would keep the minors separate from Nina were not credible. It noted Sheena's testimony minimized her relationship with Nina and the court did not believe Sheena would be able to protect the minors from Nina. The court denied Sheena's request for placement under section 361.3. Sheena timely filed a notice of appeal.
DISCUSSION
I Preferential Consideration of Placement with Relatives Under Section 361.3
Sheena asserts the court erred by failing to apply the relative placement preference under section 361.3. Specifically, Sheena claims the trial court did not consider all the criteria set forth under section 361.3, and if it had, it would have placed the minors in her care.
A.
Section 361.3 requires the court to give "preferential consideration" to a relative's request for placement when a child is removed from the physical custody of his or her parents under section 361 or whenever a new placement of the child after disposition is necessary. (§ 361.3, subds. (a) & (d).) In the second situation, the overriding inquiry is whether the change in placement is in the child's best interests. (See In re Stephanie M. (1994)7 Cal.4th 295, 320-321.)
Section 361.3, subdivision (a)(3) refers to Family Code section 7950, subdivision (a)(1), which requires the court to consider placing a dependent minor with a relative unless the placement would not be in the minor's best interests.
" 'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) Thus, the relative placement preference does not create an evidentiary presumption in favor of relatives, but merely puts them " 'at the head of the line' " when the court determines which placement is in a minor's best interests. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.)
To determine whether placement with a relative is appropriate, "the county social worker and the court shall consider, but shall not be limited to consideration," of eight listed factors. (§ 361.3, subd. (a).) "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, supra, 116 Cal.App.4th at p. 863.) "The overriding concern . . . is not the interest of extended family members but the interest of the child. '[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child. . . .' " (In re Lauren R. (2007) 148 Cal.App.4th 841, 855.)
Those factors are: "(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 relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. [¶] (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 child's other relatives. [¶] (G) Facilitate implementation of all elements of the case plan. [¶] (H) Provide legal permanence for the child if reunification fails. [¶] . . . [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8) The safety of the relative's home. . . ." (§ 361.3, subd. (a).)
"We review a juvenile court's custody placement orders under the abuse of discretion standard of review; the court is given wide discretion and its determination will not be disturbed absent a manifest showing of abuse. [Citations.] 'Broad deference must be shown to the trial judge. The reviewing court should interfere only " ' if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did.' " ' " (Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 863, fn. omitted.)
B
The trial court did not abuse its discretion when it declined to place the minors in Sheena's care because the placement was not in the minors' best interests. The evidence showed Sheena's ability to protect the minors from future harm was questionable. Sheena had not acknowledged the risk Nina posed to the minors. Two years after the minors' removal from her home, Sheena had yet to accept responsibility as to why the minors had been removed from her custody. The record shows she permitted Nina to have unsupervised visits with the minors. Further, Sheena left Antonio unattended at home and after school. She testified that she blamed the social workers and the school for not looking after the minors. The evidence also showed she minimized her relationship with Nina. Sheena testified she had not allowed Nina to visit her at her home in the last 20 years, yet admitted to Mr. Smith just months before the trial that she had seen Nina and stated she saw Nina often. Sheena's ongoing relationship with Nina raises a concern about her ability to distance herself and the minors from Nina.
Moreover, the court considered the nature and duration of the relationship between Sheena and the minors in determining whether the placement was appropriate. (§ 361.3, subd. (a)(6).) After the minors' removal from her custody, Sheena made little effort to visit the minors for about 18 months. The Agency reported that Sheena refused to visit the minors at the social worker's office and did not want to visit the minors unless the Agency allowed visits at a location of her choice. When Sheena did visit the minors, Mr. Smith noted the minors did not show signs of distress when visits ended, and at times Antonio seemed unresponsive toward Sheena. The social worker believed a strong, secure attachment between Sheena and the minors had not been secured. We acknowledge Sheena's love for the children and strong interest in wanting custody of the minors. However, given the circumstances and credibility issues surrounding Sheena's testimony, it was reasonable for the court to conclude Sheena would not be able to protect the minors.
The court, after considering testimony and the Agency's reports, found the minors' best interests would not be served by placing them with Sheena. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Zachary G. (1999) 77 Cal.App.4th 799, 812.) We conclude that the juvenile court fulfilled its fundamental duty to assure the minors' best interests when it denied Sheena's request. (See In re Stephanie M., supra, 7 Cal.4th at p. 321; Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 864.)
DISPOSITION
The order is affirmed.
WE CONCUR: BENKE, Acting P. J., AARON, J.