Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County No. DP017150, Caryl Lee, Judge.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant, Sandra C.
Kazoua Cha, under appointment by the Court of Appeal, for Defendant and Appellant, Angela Z.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen, Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
O’LEARY, J.
After his birth, E.Z. tested positive for amphetamine and methamphetamine. His parents had extensive criminal and drug addiction histories. E.Z. was taken into protective custody and placed with his maternal grandmother, Sandra C. (hereafter Grandmother). Six months later, E.Z. was removed from Grandmother’s home based on her past record of child abuse. Grandmother filed this appeal claiming: she was not afforded preferential consideration as a relative pursuant to Welfare and Institutions Code section 361.3; the removal was an abuse of discretion; and she was not given proper notice of the impending change of placement. On appeal, E.Z.’s mother (hereafter Mother) joined in Grandmother’s arguments, but his father did not. We find no reversible error and affirm the juvenile court’s orders.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
I
In June 2008, E.Z. was taken into protective custody after his birth. The petition alleged Mother placed her son’s health and well-being at risk by using methamphetamine and marijuana during her pregnancy. She had a history of substance abuse, evidenced by her drug-related criminal history. E.Z.’s father (hereafter Father) was in prison for possessing a controlled substance, and he also had an unresolved substance abuse problem. Mother had failed to benefit from prior services and had lost custody of E.Z.’s three half siblings in 2001.
When E.Z. was only a few days old, he was placed with Grandmother. On June 16, the court detained E.Z. and vested temporary placement with Orange County Social Services Agency (SSA). It authorized SSA to use its discretion to decide whether to release the child to a parent, relative, or suitable adult.
At the end of August 2008, the social worker reported Mother was failing miserably with her reunification plan. She was in jail after being arrested for stealing a car and possessing drugs. She admitted to the social worker she was still using drugs daily, she had not been drug testing, and she had not enrolled in a residential drug treatment program. She missed scheduled visits with E.Z.
Grandmother reported E.Z. was doing well. Grandmother’s niece was fingerprinted because she was providing daycare while Grandmother worked. Grandmother took E.Z. to the pediatrician for his childhood immunizations. The social worker observed he was dressed appropriately for the weather, and was responding well to lactose free formula. After Mother’s arrest, Grandmother told the social worker she was willing to adopt E.Z., and she filled out the paperwork to begin the adoption home study.
The following month (September 2008) the social worker visited E.Z. and reported he was developing normally and appeared healthy. However, she informed the court that the Adoptions Department conducting Grandmother’s home study discovered she has an extensive history of Child Abuse Reports (CARs), including substantiated CARs. Children had been removed from Grandmother’s care in the past. The social worker stated Grandmother must participate in services to address this history of CARs. Grandmother stated she was willing to cooperate with services.
In mid-October 2008, SSA reported Grandmother was looking for a licensed daycare facility in Orange and a job closer to home. She was also moving to another apartment after finding a scorpion. The adoptions social worker arranged for Grandmother to receive counseling in her home on Saturdays for six weeks. Grandmother was reportedly happy with this plan.
At the disposition hearing, in October 2008, E.Z.’s counsel requested to cross-examine the social worker assigned to the case, Sabrina Joseph. Joseph testified there were 26 CARs “in which [Grandmother had] been referenced” directly or indirectly. She stated the Adoptions Department had expressed concern about whether Grandmother would be approved as an adoptive parent. The Department had not indicated whether completion of their recommended counseling classes and remediation would be enough to approve an adoption. Joseph admitted Grandmother currently provided excellent care to E.Z., but she was concerned about how Grandmother’s CARs would affect E.Z. in the future given that reunification with his parents was unlikely. In addition, Joseph was concerned about Grandmother’s past history of being uncooperative and resistant to disclosing information in a prior dependency case involving E.Z.’s half siblings. She noted Grandmother was currently setting appropriate boundaries with Mother but had not done so in the past. However, Joseph stated she did not recommend removing E.Z. from Grandmother’s home.
E.Z.’s counsel requested the juvenile court remove the child from Grandmother’s care to find a more suitable placement. Counsel acknowledged Grandmother was providing good care, and she was the only caretaker three-month-old E.Z. has known. However, counsel argued the problem was Grandmother’s past history of losing focus of her grandchildren’s best interests. She noted 26 CARs was an unusually high number, and she was having difficulty understanding why the agency released the child to grandmother “on a waiver” in the first instance given her questionable history.
The juvenile court agreed the initial placement with Grandmother was questionable, but it was “on the fence” as to what to do. It stated, “I’m happy to see Grandma doing well and you only can hope that people can make changes and do the right thing. I’m hopeful. But I’ve also got a really young child who is in a home that... perhaps wouldn’t have been the first choice.... [¶] But it’s very difficult to make a decision to remove him... when I’m not seeing this danger zone right now.... I’m also trying to look at permanency and I just don’t know... if Grandma is going to finish these [classes or], if the home study is going to be approved.” Recognizing the poor prognosis for reunification with Mother and Father, the court noted, “The issues of attachment obviously become more complicated and significant once the child gets older, and the need for permanency is impending in this case.”
The court ordered the Adoption Department to evaluate Grandmother’s ability to provide E.Z. with permanency. It scheduled a review hearing in December 2008 to further discuss and evaluate the issue. The court also declared E.Z. a dependent child and ordered custody be vested with SSA for suitable placement. It ordered no reunification services for Mother or Father. It scheduled a permanency hearing for February 2009.
SSA submitted a report on December 18, 2008. Social worker, Anita Schultz, stated E.Z. was a happy, healthy baby, who was thriving developmentally while in Grandmother’s care. She submitted a placement review report prepared by social worker, Erin Hartigan, who evaluated the past CARs, spoke to Grandmother, and conferred with several therapists about the case.
As for the CARs, Hartigan noted they include substantiated allegations of emotional abuse, physical abuse, caretaker absence, and general neglect. Grandmother’s “CAR history shows patterns of her children being placed in situations where they were not protected. In addition, there are numerous reports involving sexual abuse towards [Grandmother’s] children, some by family members and others by transients/strangers.” Grandmother had several adult children with substance abuse issues, and who have lost their parental rights to their children. “The family’s child abuse history indicates generational patterns of the Grandmother’s children being victims as well as being abusers themselves.”
At the end of September 2008, Hartigan spoke with Grandmother, who was open to referrals for services and indicated she would do what was being asked from her. Grandmother submitted numerous documents required for adoption, including personal and school references, medical test results, and divorce certificates.
Hartigan next met with therapist, Alison Maxon-Davis, who reviewed the case file. She opined “it appeared [Grandmother’s] extensive history indicated a ‘family systems issue’ and a chronic pattern of perpetrating abuse or allowing the children to be at risk. She also noted that the history described indicated a chronic systemic issue that couldn’t be ‘isolated,’ indicating that short term therapy could not adequately address the concerns.”
The in-home therapist, Kathy Ramos, told Hartigan that after two intake sessions “she was glad she was informed about [Grandmother’s] history prior to the initial intake because... [Grandmother] minimized her CAR history stating that ‘people in the family kept calling in reports against [her] that weren’t true and eventually [she] gave up and let them take the children.’” Ramos’s report the following month stated Grandmother had met several goals in therapy. Grandmother was making a positive start, reevaluating previous choices, and increasing her ability to protect and parent her 14-year-old daughter. Grandmother and her teenage daughter were starting to address the issues caused by Grandmother’s previous boyfriend’s alcohol and drug problems. They talked about beginning Ala-Anon as a support group, as well as Alateen for her daughter.
Hartigan met with Grandmother again in November 2008. She reported E.Z. appeared healthy and well cared for. Grandmother described what she had been learning in therapy and how she planned to do things differently in the future.
Hartigan concluded her report with the following statement: “Overall it can be noted that at this point in time the caretaker appears to be motivated and willing to take steps to improve. However, after reviewing the extensive child abuse history which shows patterns that expand through generations, as well as the professional opinion of the individual therapists about the ability to change these patterns, it is unlikely that [Grandmother] will make the necessary deep and long term changes within a reasonable time frame for permanency that would be required for her home study to be submitted for approval.”
At the review hearing, E.Z.’s counsel again requested the juvenile court order the child be removed from Grandmother’s home. Referring to SSA’s report, counsel argued “it’s clear that not only will she not be a suitable adoptive parent, but frankly, based on the history of child abuse reports and her involvement in them, it’s clear that she really would not be an appropriate parent for this child or, in my view, any other child.” Counsel noted SSA was already looking for additional placements, “but I believe that this child should be removed sooner rather than later, as it would be highly inappropriate for him to become attached to this woman who would not be a suitable parent.”
Mother objected to the requested removal stating “Grandmother can provide a safe, secure[,] and stable home for [E.Z.]....” Nevertheless, she recognized SSA’s “authority to place the minor with whomever they see fit at this point,” and Mother provided information about a maternal aunt and maternal cousin. Father agreed E.Z. should be removed from Grandmother’s care, and he provided several names of relatives who may be willing to care for his son.
The court ordered E.Z. be removed from Grandmother’s care. It questioned why the child was placed with Grandmother “in the first place.” It stated, [E.Z.] is a very young child and I would like to make sure that we don’t have very strong, strong attachments that are formed so that removal at a later date would be even more traumatic. But the court is going to order that he be removed at this point and that the agency continue the diligent efforts to follow up and evaluate the names that parents have provided for possible placement.” Mother and Grandmother filed notices of appeal.
II
Grandmother contends (and Mother joins in her argument) the following: she did not receive the preferential relative consideration required by section 361.3; the juvenile court abused its discretion in removing E.Z. from her home; she did not receive notice of the placement hearing; and she was denied her due process right to be heard and refute the evidence against her. We conclude Grandmother was appropriately considered and rejected as a caretaker. As a nonparty, she was not entitled to notice of the hearing, but she could have filed a section 388 petition to bring her concerns about E.Z.’s placement before the court.
A. The Preferential Relative Consideration
“Section 361.3 gives ‘preferential consideration’ to a relative request for placement, which means ‘that the relative seeking placement shall be the first placement to be considered and investigated.’ (§ 361.3, subd. (c)(1).) The assessment of the relative shall involve the consideration of eight factors set out in the statute, including ‘[t]he 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’; and ‘[t]he safety of the relative’s home. For purposes of this paragraph, the county social worker shall conduct a direct assessment of the safety of the relative’s home. The information obtained as a result of this assessment shall be documented by the county social worker in the child’s case record.’ (§ 361.3, subd. (a)(5) & (8).) The statute reiterates: ‘The county social worker shall document these efforts [to assess the relative according to the statutory factors] in the social study prepared pursuant to [s]ection 358.1.’ (§ 361.3, subd. (a)(8).)” (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033 (Cesar V.).)
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 [s]ection 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. 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 [s]ection 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 [s]ection 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 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. [¶] 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.”
“[T]he statute express[es] a command that relatives 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. [Citations.] Section 361.3 promotes a preference for foster placement with relative caregivers as set forth in Family Code section 7950 and helps meet the statutory requirement of... [s]ection 16000 that a child live in the least restrictive and most family like setting possible. [Citation.]” (In re Antonio G. (2007) 159 Cal.App.4th 369, 377, internal quotation marks omitted.)
“[T]he juvenile court must exercise its independent judgment rather than merely review SSA’s placement decision for an abuse of discretion. The statute itself directs both the ‘county social worker and court’ to consider the propriety of relative placement. (§ 361.3, subd. (a).)” (Cesar V., supra, 91 Cal.App.4th at p. 1033.)
Section 361.3 governs in two situations. The first is at the dispositional hearing when the child is removed from parental custody (§ 361.3, subd. (a)). The second, relevant to this case, is when “a new placement... must be made....” (§ 361.3, subd. (d); see also Cesar V., supra, 91 Cal.App.4th at p. 1032.) The second situation is not just limited to when reunification services are being offered. “[T]he relative placement preference also applies when a new placement becomes necessary after reunification services are terminated but before parental rights are terminated and adoptive placement becomes an issue.” (Cesar V., supra, 91 Cal.App.4th at p. 1032.)
Here, at the June 2008 detention hearing, the court ordered “[t]emporary placement and care... vested in [SSA].” At the August 25 disposition hearing, the relative placement was triggered because Grandmother had expressed a desire to adopt, but a section 361.3 assessment was not specifically requested. Perhaps this was because SSA already seemed to support Grandmother’s efforts to obtain permanent custody of E.Z. The social worker had turned the matter over to the Adoption Department for a home assessment. Only E.Z.’s counsel questioned the plan, and appropriately raised her concerns at the disposition hearing. She cross-examined the social worker about Grandmother’s multiple CARs and questioned if it was realistic to assume Grandmother would be cleared to adopt E.Z. given her past extensive child abuse history. It was uncovered that SSA really did not know if Grandmother would be approved, even if she completed the suggested parenting classes. Accordingly, the court scheduled a hearing to allow SSA’s Adoption Department two months more to “evaluate the appropriateness of Grandmother’s home as to her ability to provide permanency for this child.” It ordered SSA to evaluate Grandmother’s progress in her parenting courses. Although it did not specifically order SSA to conduct a section 361.3 placement assessment, this was essentially what occurred.
The social worker submitted a detailed report regarding Grandmother’s history and current status as a caregiver. She reviewed the many CARs. She visited Grandmother’s home twice. She spoke to three different therapists about the case. As acknowledged by Grandmother in her opening brief, the report discussed many of the factors listed in section 361.3. We conclude Grandmother was given the preferential consideration contemplated by section 361.3. She was the first relative placement to be considered and investigated.
B. The Decision to Change E.Z.’s Placement
In arguing the court abused its discretion in removing E.Z. from her home, Grandmother focuses only on the section 361.3 factors favorable to her. No one disputes she was highly motivated and willing to adopt E.Z. and his parents supported this plan. Grandmother had provided the infant excellent care since his birth, and he was thriving. She was exercising proper care and control, and she had already reached several therapy goals. Grandmother attempts to minimize the CARs as relating to events “likely” occurring “many years in the past.” But she does not claim the CARs were inaccurate. Rather, she asserts the court should have focused on her current good care, choices, and motivation to adopt E.Z. Grandmother concludes the above favorable factors prove it would be in E.Z.’s best interest to be placed with her. She forgets we do not reweigh the evidence but rather apply the abuse of discretion standard of review. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067-1068.)
It was entirely reasonable for the juvenile court to give a great deal of weight to the seriousness and large number of prior CARs describing a vicious pattern of physical and sexual abuse spanning several generations. Two therapists stated, based on their professional experience and training, Grandmother would need a great deal of time to make the deep and long terms changes necessary before her adoption home study would be approved. And although Grandmother was taking excellent care of an infant, it was uncovered during therapy there were unresolved issues regarding her 14-year-old daughter that also required her immediate attention. Grandmother agreed the teenager would benefit from therapy after the havoc caused by living with her alcohol/drug-abusing ex-boyfriend. The court also reasonably took into consideration E.Z. was not likely going to reunify with his parents, and his best interests as an infant would be adoption. He should be given the earliest opportunity to bond with the caretaker able to adopt him. We note, there is no relative placement preference for adoption. (In re Lauren R. (2007) 148 Cal.App.4th 841, 854-855; In re Sarah S. (1996) 43 Cal.App.4th 274, 284-286.) Given the record, it cannot be said the court abused its discretion in determining E.Z.’s best interests at this time required a different placement.
C. Proper Notice?
Grandmother asserts that pursuant to section 387, subdivision (a), “an order for removal from custody or placement with a relative shall be made only after a noticed hearing upon a supplemental petition filed by [SSA].” She also contends California Rules of Court, rule 5.534 (hereafter referred to as rule 5.534), provides for relatives to be present at the hearing and to address the court. She concludes there was no evidence in the record indicating she was given notice of the disposition hearing or the placement review hearing.
The first argument fails because section 387, subdivision (a), governs situations involving a court-ordered custody placement which SSA later considers to be ineffective. (See In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1489-1490.) Here, the court ordered placement with SSA, who retained the discretion to change the placement at anytime. (Ibid.) Indeed, Mother’s counsel acknowledged SSA’s authority to change the placement during the hearing. There was no objection or argument made that changing E.Z.’s caretaker required a noticed motion.
Rule 5.534 relates generally to the conduct of juvenile court proceedings. Rule 5.534(f), provides, “On a sufficient showing the court may permit relatives of the child to: (1) Be present at the hearing; and (2) Address the court.” In the case before us, no “showing” was made by the parties or Grandmother that she desired to be present at the hearing or to be heard. There is no evidence suggesting she tried to make an appearance but was turned away. In short, nobody invoked this rule.
Rule 5.534(n), relates to the rights of a caregiver to notice and opportunity to be heard at certain hearings. Specifically, rule 5.534(n)(1), provides: “For any child who has been removed from the home, the court must ensure that notice of statutory review hearings, permanency hearings, and section 366.26 hearings has been provided to the current caregiver of the child, including foster parents, preadoptive parents, relative caregivers, and nonrelative extended family members. Notice of dispositional hearings also must be provided to these individuals when the dispositional hearing is serving as a permanency hearing under section 361.5 [subdivision] (f) [no reunification services are offered].”
In this case, the October 16, 2008, dispositional hearing served as a permanency hearing because both parents were denied reunification services, and a section 366.26 hearing was scheduled. Thus, the caretaker, Grandmother, should have received notice of this hearing, SSA’s report, SSA’s recommendations regarding placement, and notice she may have a right to be heard. (Rule 5.534(n)(2) & (3).) The failure to provide Grandmother timely notice of the October dispositional hearing was error.
“Errors in notice of dependency proceedings do not automatically require reversal; instead, we assess such errors to determine whether they are harmless beyond a reasonable doubt. [Citations.]” (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1419.) Grandmother has failed to demonstrate she was prejudiced by SSA’s failure to comply with rule 5.534(n). Before the October dispositional hearing, SSA was not recommending a change in placement. It was E.Z.’s counsel who requested a placement review during the hearing. Grandmother does not suggest what she would have submitted in her support at the hearing beyond those arguments raised by Mother, Father, and SSA. More importantly, proper notice would not have changed the outcome, i.e., the court simply ordered SSA to investigate the matter further and scheduled a hearing for resolution of the issue. The error was harmless beyond a reasonable doubt.
E.Z. was removed at a subsequent nonstatutory review hearing (two months later). The caretaker notice requirements delineated under rule 5.534 were not triggered by this kind of hearing. As a nonparty, Grandmother did not have the right to contest a change in placement, present evidence, or argue on her behalf. But Grandmother could have, and still can, file a section 388 petition to modify the order stating her side of the story, present evidence she has successfully reached her therapy goals and can break the pattern of abuse, or submit evidence to refute the many child abuse reports. A nonparty’s right to be heard in these delicate and time-sensitive proceedings is understandably limited to the avenues expressly permitted by the Legislature. In short, Grandmother’s remedy to her due process concerns is to file a section 388 petition to modify the court’s order.
It would be absurd to presume Grandmother was caught completely unaware there were concerns about her fitness as a parent. At the beginning of these proceedings, Grandmother had to obtain a waiver from SSA to care for E.Z. in light of her history of multiple substantiated CARs. She was asked by the Adoption Department to enroll in parenting classes and participate in counseling due to questions the agency had about her parenting abilities and past issues with child abuse. She happily agreed to anything that was asked of her, apparently understanding she had a tremendous hurdle to jump before qualifying to adopt E.Z. She received notice the section 366.26 hearing had been scheduled, meaning termination of parental rights would be sooner rather than later. Knowing her tenuous situation, Grandmother could not afford to sit back and wait on the sidelines.
III
The placement orders are affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.