Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County No. CK69516, Steven L. Berman, Juvenile Court Referee.
Merrill Lee Toole, under appointment by the Court of Appeal, for Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Senior Deputy County Counsel, for Respondent.
MALLANO, P. J.
In these consolidated appeals, L.R., a former foster mother of Baby Boy E. (Child), challenges the juvenile court’s denial of two petitions for modification in which she sought visitation or the return of Child to her custody. We affirm the orders because L.R. does not show any error or abuse of discretion.
BACKGROUND
Child was detained from his mother at birth in August 2007 because cocaine was found in his system. When Child was five days old, he was placed in the foster home of L.R., where he remained for eight months, until DCFS removed him on April 16, 2008.
Child’s mother, J.E., and Child’s father, identified by J.E. only as “Junior,” are not parties to this appeal. After Child’s birth, J.E. had two visits with him in December 2007 and then her whereabouts became unknown to the Los Angeles County Department of Children and Family Services (DCFS). DCFS never identified or located Child’s father.
Meanwhile, on October 15, 2007, the juvenile court sustained the petition, declaring Child a dependent of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivision (b) (failure to protect), based on his mother’s drug abuse. Child was removed from parental custody and placed in the care of DCFS for suitable placement.
Unspecified statutory references are to the Welfare and Institutions Code.
After Child’s mother appeared in court in December 2007, the juvenile court afforded her reunification services and visitation, but after two visits in early December 2007, Child’s mother failed to contact DCFS, her whereabouts became unknown to DCFS, and her reunification services were terminated in February 2008.
L.R. was bonded with Child and expressed a desire to adopt him as early as October 2007. L.R. filed an application requesting that she be appointed Child’s de facto parent in November 2007; in December 2007, the attorney for Child’s mother opposed L.R.’s application, and the juvenile court denied the application without prejudice. At a February 13, 2008 hearing, L.R. renewed her application for de facto parent status; all parties stipulated to the granting of the application, and the juvenile court granted it. The juvenile court ordered that “the child not be removed from placement with [L.R.] absent 5 days written notice to all parties and counsel.” A permanent plan hearing was scheduled for June 2008. The February 13, 2008 minute order recited that the “order for suitable placement dated 10/15/07 as to [Child] remains [in full force and effect].”
In early April 2008, a social worker preparing the adoptive home study for L.R. discovered that L.R., as a licensed foster mother, had a history of child neglect referrals in 2000 that she had not disclosed during her adoption interview. L.R. failed to disclose to DCFS that in January 2000 there were substantiated neglect and emotional abuse allegations with respect to an eight-year-old foster child, who claimed that L.R. locked her in her bedroom without use of a bathroom for hours at a time. According to DCFS, a hold was placed on L.R.’s original foster care license because she failed to complete a corrective action plan. DCFS’s Out of Home Care office “made a mistake and lifted the hold.... Therefore, the home was taken off hold prematurely allowing [L.R.] to use her foster care license without completing the final clearance that would have likely discovered the substantiated allegations against [L.R.]” DCFS also asserted that the reporting system would not have contained the foregoing substantiated allegations because emotional abuse and general neglect incidents are not reported to the Child Abuse Central Index.
DCFS held a team decision-making meeting with L.R. on April 9, 2008. An adoptions worker informed L.R. that Child would be removed. DCFS removed Child from L.R.’s custody on April 16, 2008, and placed him in a prospective adoptive home with Mr. and Mrs. F., where he remained for about two months; on May 28, 2008, Child was placed in another foster home with Ms. B. and Ms. V., who had an approved home study and wanted to adopt Child. Child remains placed with Ms. B and Ms. V.
Meanwhile, on April 15, 2008, L.R. filed a petition for modification under section 388, seeking to modify the February 13, 2008 order to include provisions precluding Child’s removal from her home without an evidentiary hearing on the factual and legal bases for any removal. She requested the court address the issues of whether removal is in Child’s best interest, whether she is precluded from adopting Child, and whether a waiver or exception is available to permit Child to remain placed with L.R. as a prospective adoptive parent.
In support of her petition, L.R. declared that she had been a foster parent since 1996 and has had more than 30 children placed in her home. She finalized the adoption of one of her foster children in February 2000, when she was certified as a foster parent by Foster Family Network (FFN). In January 2000, one of three foster children living in her home, eight-year-old L.T., was removed; DCFS told her that L.T. had said that L.R. had locked L.T. in her bedroom. A worker from FFN told L.R. that “everything would be alright if I took a parenting class, ‘Sensible Discipline.’” L.R. completed the parenting class in 2000 and continued to take care of other foster children in her home. In 2002, L.R. wanted to apply to the State of California for a foster family home license, so she requested that FFN decertify her as a foster parent, which it did. In May 2002, the state issued to her a foster family home license for up to three foster children, and she continued to receive foster care placements. After L.R.’s mother died in 2003, L.R. voluntarily gave up her state foster family license. Several years later, L.R. became certified with another foster care agency, Concept 7, but she again requested voluntary decertification when she realized she could obtain another state license. In June 2007, the state issued her a second foster family home license.
According to L.R., she was informed of the January 2000 emotional abuse allegations for the first time during the April 9, 2008 meeting with DCFS. L.R. claimed that she was not given an opportunity to respond to such allegations in 2000 or thereafter. L.R. requested that the juvenile court “conduct an evidentiary hearing forthwith to determine the facts regarding [Child’s] placement with [her], his threatened removal from [her] home, and [her] adoption of him.”
On April 21, 2008, L.R. filed a “walk on request” for a hearing on April 24, 2008, regarding the “completion of her adoptive home study, continued concurrent planning, an administrative review hearing, priority for adoptive placement and planning, and an evidentiary hearing prior to removal of the child.” Attached to the walk-on request was a complaint investigation report by an evaluator from the Community Care Licensing Division of the state Department of Social Services. The report concluded that the complaint by a foster child (L.T.) that L.R. had locked her in her bedroom and that she was being emotionally abused was substantiated.
On April 24, 2008, DCFS filed an unverified “Ex Parte Application and Order,” setting out some details regarding the child abuse allegations reported in January 2000 and additional allegations against L.R. made in October 2000, that DCFS claimed were substantiated. In October 2000, L.R. allegedly gave a seven-year-old foster child only a bag of potato chips for dinner, and on another occasion when he asked for breakfast, L.R. told him that he could get breakfast at school. DCFS also asserted that a hold was mistakenly lifted from L.R.’s license. DCFS requested that Child remain placed with Mr. and Mrs. F.
At a hearing in the juvenile court on April 24, 2008, Child’s attorney argued in favor of a hearing on L.R.’s section 388 petition, claiming that “[t]here appears to be a lot of misinformation back and forth on these issues,” and that it was “merely because there’s this old information that hasn’t been clarified yet that [DCFS] took the steps to remove [Child].” Child’s attorney also requested that the court make a specific placement order pending the administrative appeal of the denial of L.R.’s home study.
The attorney for L.R. also urged the court to grant an evidentiary hearing, claimed that he had first heard of the October 2000 allegations of abuse only that day, and that he would like to call witnesses, including L.R.’s adult daughter, at least one former foster child, and the adoptions worker. L.R.’s attorney also requested the court change Child’s general placement order to a specific placement order with L.R.
The juvenile court denied L.R.’s walk-on request and summarily denied her section 388 petition. The court explained that it did not “see any right whatsoever under any code section to allow a contested hearing on this issue [of the substantiated allegations from 2000].” “The cases are clear on that, the de facto parent has no right to custody. And if there’s no right to custody, then there’s no right to a contest. [¶] The other issue is I have two substantiated claims. One is on 1-18-00, and there was another one October 3rd, 2000. So, assuming we were going under an abuse of discretion theory, I could not find abuse of discretion. I have two substantiated claims; whether they are valid or not... that train left the station seven, eight years ago. I’m not going to start contesting eight-year-old claims.... I don’t see a right to a hearing, and I don’t see a right to custody.”
After the court stated that it had made no previous order that L.R. wanted to change, L.R.’s counsel clarified that L.R. was asking to change the general placement order to a specific placement order. The court responded, “I’ve got two substantiated allegations. I would not make a specific placement order at this stage; so the 388, if that’s what the 388 is asking for, would be denied. There’s remedies through [DCFS], and there may be other remedies, but they are not through a 388, as far as I could tell.” The court further explained, “I’m not saying [L.R.] can never adopt a child. [DCFS] certainly can proceed on the home study. And, whether or not these things have been remedied and the home study is denied, then she has an administrative remedy as to that. If ASFA is withdrawn, she has an administrative remedy as to that. But, pending any state action, I would not order that the child remain [with L.R.] Again, there’s not just one but there’s two substantiated allegations, and they are serious.” “Again, I think [DCFS] has discretion. Unless they’ve abused their discretion in this matter, I’m not going to get involved.”
“The term ‘ASFA’ refers to the Adoption and Safe Families Act of 1997, which establishes the federal guidelines for foster care and relative care placements. [Citation.] The approval process for securing AFDC-FC funds is colloquially called ‘ASFA approval,’ which is required before a caregiver may receive AFDC-FC funds.” (In re Darlene T. (2008) 163 Cal.App.4th 929, 932, fn. 1.)
On May 2, 2008, L.R. applied for a rehearing pursuant to section 252 and attached exhibits showing that investigations of the October 2000 allegations (that L.R. fed a foster child potato chips for a meal) by Community Care Licensing and by the Quality Assurance Foster Care Investigations Unit of DCFS resulted in determinations that the allegations were “unfounded” and “unsubstantiated,” respectively. A rehearing was denied on May 19, 2008.
L.R. appealed from the April 24, 2008 order. (No. B208312.)
On June 3, 2008, L.R. filed a second section 388 petition, seeking to change the previous general placement order. Specifically, she sought the return of Child to her custody or visitation. In support of the petition, L.R. claimed that DCFS’s previous assertions that the October 2000 allegations were substantiated were erroneous. L.R. attached copies of the letters from Community Care Licensing and DCFS stating that the agencies determined that the October 2000 allegations were unfounded and unsubstantiated, respectively.
The juvenile court set L.R.’s petition for a hearing, which was held on August 11, 2008. Admitted into evidence at the hearing was DCFS’s July 9, 2008 interim review report. The report stated that L.R.’s adoption application was denied on June 18, 2008. During the home study process leading to the denial of the application, L.R. “failed to disclose information regarding her history of various Child Abuse Referrals. It was discovered that [she] had 7 referrals that existed that were not disclosed during the adoption process. Also, there was another additional removal of a child from her home which was not addressed in her [section 388 petition].” DCFS listed L.R.’s child abuse referrals, which included a substantiated allegation of abuse of a 13-year-old foster child in March 2002 for failing to administer the child’s prescribed psychotropic medication. The 13-year-old child was removed from L.R.’s home. DCFS pointed out that between January 2000 and April 2002, three foster children were removed from L.R.’s home, including the children who were the subjects of the January and October 2000 referrals. According to DCFS, a services worker from the DCFS regional office concluded that the October 2000 allegations were substantiated, notwithstanding the contrary conclusions of Community Care Licensing and another division of DCFS.
On the day of the hearing, August 11, 2008, L.R. filed a supplemental memorandum of points and authorities and numerous exhibits in support of her petition. L.R. requested that the court admit into evidence “the other documents that are filed in these proceedings which include two [section 388 petitions], as well one or two requests for rehearing and today’s documents [her supplemental memorandum] as well.” The attorneys for DCFS and Child objected to the admission of L.R.’s supplemental memorandum as untimely, and the juvenile court sustained the objections, stating that the “supplemental memorandum of points and authorities dated today will not be admitted. I haven’t even looked at it.” L.R. did not object to the admission of DCFS’s July 9 and July 28, 2008 reports. The court then heard extensive argument by L.R.’s attorney. At no time during the hearing did L.R. offer the testimony of any witness.
One of the exhibits was DCFS’s June 18, 2008 letter informing L.R. that her application to adopt Child was denied, setting out the reasons for the denial, and informing her of her right to appeal the denial of her home study by requesting a grievance review hearing.
The court decided that assuming it could properly review DCFS’s denial of L.R.’s home study for abuse of discretion, “I wouldn’t find abuse of discretion. There’s enough evidence for me to believe that there were issues so that [DCFS] didn’t act arbitrarily or capriciously or without fact.” L.R.’s attorney responded, “What is arbitrary and capricious... is the fact that the substantiated allegations from the year 2000 were addressed at the time by the foster family agency. That is some eight years ago. There is no evidence that this child was harmed or placed in harm’s way or placed at any risk, much less a substantial risk of harm, by [L.R.] or anyone in her home. [¶] And, secondly, the other allegations from — I believe it was 2002 — also are remote in time and have little, if any, bearing whatsoever on any risk of harm to the child who was removed from the petitioner’s home. [¶] Additionally, in the interim, between [2000 and now], [L.R. has had] numerous other children placed in her care and custody by [DCFS] knowingly without any issue of concern whatsoever.” L.R.’s attorney also argued that it was arbitrary and capricious for DCFS not to explore the possibility of a waiver so as to permit placement of Child with L.R.
The court denied L.R.’s section 388 petition, explaining that “in light of the outstanding evidence that there’s been substantiated claims, [and that] the home study has been denied[,] I am not going to make an affirmative [order] ordering [DCFS] to place that child.” The court also denied visitation, remarking, “I’ve heard no evidence either way what effect it’s had on the child or not had on the child not having visits. I can’t say it’s in the best interest of the child because there’s no evidence or that it’s in the best interest of the child. If there was some evidence that the child has reacted in some way, I could find that...,” but “I don’t have any information that it would be in the best interest of the child or that there’s any detriment to the child to not having visits. So it will be denied.”
After a permanency plan hearing on August 13, 2008, parental rights were terminated and adoption was identified as the permanent plan.
L.R. appealed from the August 11, 2008 order denying her section 388 petition. (No. B210587.) We ordered that L.R.’s two appeals be consolidated.
DISCUSSION
A. Appeal from the April 24, 2008 Order (No. B208312)
L.R. contends that DCFS’s April 24, 2008 ex parte application constituted a supplemental petition (§§ 385, 387) for change of an order and the juvenile court erred in failing to afford her an evidentiary hearing on the supplemental petition under sections 387 (supplemental petition) and 361.3 (relative placement preference) because she was a de facto parent and a nonrelative extended family member with a specific placement order.
Section 385 provides: “Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article.”
The record shows that on April 24, 2008, there was no supplemental petition and no specific placement order. Thus, the issues raised by L.R. are not cognizable and therefore without merit.
Where the juvenile court does not make an ordered placement, but instead makes an order vesting custody with the children’s social service agency to select a suitable placement, the agency is “always authorized to exercise its discretion to reassess the suitability of the environment in which it had placed the child and, if deemed unsuitable, move the minor to an improved situation.” (In re Cynthia C., supra, 58 Cal.App.4th at p. 1490.) Accordingly, when a social worker “decided the placement was unstable and potentially dangerous [the agency] had no duty to file a section 387 petition and obtain a court order for [the child’s] removal [from the de facto parent] to a licensed foster care home it deemed safer and more suitable. The matter was within its sound discretion.” (Ibid.)
Here, the juvenile court’s October 15, 2007 dispositional order ordered Child removed from the parents and placed in the care of DCFS for suitable placement. Subsequent orders expressly stated that the order for suitable placement of October 15, 2007, remained in full force and effect. L.R.’s attorney characterized the February 13, 2008 order as a general placement order and urged the court at the April 24, 2008 hearing to change that order to a specific placement order. Accordingly, the juvenile court and all parties, including L.R., proceeded below on the theory that the February 13, 2008 order constituted a general placement order. That part of the February 13, 2008 order requiring five days’ notice to L.R. before removal of Child by DCFS merely affords notice to L.R. as a courtesy and does not purport to limit the discretion of DCFS to remove Child, as asserted by L.R. We conclude that L.R. cites no pertinent authority which supports her claim that the February 13, 2008 order constitutes a specific placement order.
Also, nothing in the record indicates that either the juvenile court or any of the parties construed DCFS’s unverified ex parte application as a supplemental petition. The juvenile court expressly noted at the April 24, 2008 hearing that it had made no specific previous placement order. The parties discussed only the merits of L.R.’s section 388 petition, and the juvenile court’s rulings addressed only that petition and L.R.’s walk-on request.
Because L.R. does not challenge the propriety of the juvenile court’s rulings on her section 388 petition and walk-on request, she fails to show any error or abuse of discretion with respect to the April 24, 2008 order.
B. Appeal from the August 11, 2008 Order (No. B210587)
L.R. contends that the juvenile court abused its discretion with respect to her second section 388 petition by “failing to exercise its discretion to hear evidence....” But the juvenile court granted L.R. a hearing on that petition and received all evidence offered by the parties, except for her supplemental memorandum, which was excluded as untimely. L.R. does not address the issue of the sustaining of the objection to her supplemental memorandum and thus fails to show that the ruling was erroneous.
The record also does not support L.R.’s arguments that the juvenile court “foreclosed any opportunity [she] had to contest the removal of [Child] from her home,” that the court refused “to consider [her] proffered evidence,” and that the court failed to permit her to cross-examine the preparer of DCFS’s reports and to present live testimony. But L.R. did not request to cross-examine the social worker or to present any other live testimony. The juvenile court cannot be faulted for failing to do something it was not asked to do.
As the record belies the factual premises for L.R.’s arguments, she fails to show any error or abuse of discretion with respect to the August 11, 2008 order.
DISPOSITION
The orders of April 24, 2008, and August 11, 2008, are affirmed.
We concur: ROTHSCHILD, J., WEISBERG, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 21 of the California Constitution.
Section 387, subdivision (a) provides in pertinent part: “An order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home,... shall be made only after noticed hearing upon a supplemental petition.”
Subdivision (d) of section 387 requires a hearing on the supplemental petition within 30 days of its filing.
“De facto parents have limited rights that include: (1) the right to an attorney; (2) the right to be present at hearings; and (3) the right to present evidence and be heard. Specifically, they do not have the right to reunification services, custody, or visitation. [Citations.] While de facto parents are given an opportunity to participate in the proceedings, that status does not give them the rights accorded to a parent or legal guardian. (In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1490–1491....) Consequently, appellant has no legal standing to complain of the decision to place the child with the new prospective couple since she has no right to custody or continued placement as a mere de facto parent.” (In re P.L. (2005) 134 Cal.App.4th 1357, 1361.)
A nonrelative extended family member is defined as “any adult caregiver who has an established familial or mentoring relationship with the child.” (§ 362.7.) Section 362.7 provides in part: “When the home of a nonrelative extended family member is being considered for placement of a child, the home shall be evaluated, and approval of that home shall be granted or denied, pursuant to the same standards set forth in the regulations for the licensing of foster family homes which prescribe standards of safety and sanitation for the physical plant and standards for basic personal care, supervision, and services provided by the caregiver.”