Opinion
D041581.
7-17-2003
In re HECTOR N., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. Y. N., Defendant and Appellant.
Y. N. (Mother) appeals an order under the Welfare and Institutions Code placing her son, Hector N., with his father, Jose N., in Utah. (All statutory references are to the Welfare and Institutions Code unless otherwise specified.) She contends the court abused its discretion and denied her due process when it denied her request for a bonding study. She also contends placing Hector with Jose (1) violated section 361.4; (2) violated the Interstate Compact for the Protection of Children (ICPC) and Utah law; and (3) was an abuse of discretion because Jose had a history of domestic violence, had criminal convictions, and lived far away from Mother. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Jose married in 1995 when Mother was 16. Hector was born two years later. Mother and Jose ended their relationship in 2000. At some point not clear from the record, Jose moved to Utah.
In January 2002, the San Diego County Health and Human Services Agency (the Agency) removed Hector and his siblings (who are not at issue in this appeal) from Mothers custody and filed a section 300 petition on each childs behalf. The Agency asserted Hector was at risk because a person with whom Hector and Mother were living excessively disciplined him and Mother did not provide him with the necessities of life, including food and clothing. At the time, Joses whereabouts were unknown. In April, the court made a true finding on the petition and ordered reunification services.
In June, Jose contacted the Agency when he learned Hector was in the Agencys custody. Because he sought custody, the Agency began an evaluation of his home under the ICPC.
By November 2002, although the Utah authorities positively evaluated Joses home under the ICPC, the Agency was not recommending placing Hector there because there was one documented incident of domestic violence between Jose and Mother and Hector did not want to go to Utah. However, that month, the court approved an unsupervised visit with Jose over the Christmas holidays.
By January 2003, the Agency recommended placing Hector with Jose in Utah because Hector wanted to live there. The next month, the court placed Hector with Jose in Utah.
DISCUSSION
I
Mother contends the court abused its discretion by not ordering a bonding study in January 2003. She argues the study would have shown Hector should not be placed in Utah with Jose because of his close bond with her and his lack of a bond with Jose. We review a courts denial of a request for a bonding study for an abuse of discretion. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1341.)
Typically, bonding studies aid a court in determining whether the section 366.26, subdivision (c)(1)(A) exception applies. (See, e.g., In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1168.) Here, Mother presumably sought a bonding study to show that Hector would suffer detriment if placed with Jose under sections 361.2, subdivision (a) or 366.21, subdivisions (e) or (f). However, a court is not required to order a bonding study as a condition precedent to terminating parental rights. (In re Lorenzo C. , supra, 54 Cal.App.4th at p. 1339.) Logically, therefore, a court is not required to order a bonding study before placing a child with a nonoffending noncustodial parent, because that placement leaves the other parents rights intact. Mother has cited, and we have located, no authority to the contrary.
Moreover, a court may decline to take evidence that would be cumulative. (Evid. Code, § 352.) There was no dispute that Jose had a bond with Mother. The record shows that Hector bonded with Jose during their first visit in 2002. After that visit, Hector often asked when he would see Jose again and enjoyed talking with him on the telephone. After his visit with Jose in Utah over the Christmas holidays, he said he wanted to stay there. Thus, there was evidence Hector and Jose were bonded. Because a bonding study would have yielded no information not already in the record, the court properly exercised its discretion to deny Mothers request for a bonding study.
Mother also asserts a bonding study would have shown sending Hector to Utah would disrupt their relationship, particularly because she believed he would be placed with her at the April 2003 12-month review hearing. Whether the court would have placed Hector with her at that time is wholly speculative. One expert who evaluated Mother seriously doubted she would ever be able to independently parent. The social worker believed Mother had barely begun her domestic violence program and had been in and out of compliance with her service plan. Because Hector has a nonoffending noncustodial parent who is available and willing to take custody, there was no reason to leave him in foster care on the hope that Mother might make sufficient progress to reunify at some uncertain future date. (See, e.g., In re Marilyn H. (1993) 5 Cal.4th 295, 310, 851 P.2d 826.) Mother has not demonstrated the court abused its discretion by denying her request for a bonding study.
II
A
Mother asserts section 361.4, which prevents placement of a child with a relative who has certain criminal convictions, barred the court from placing Hector with Jose because Jose had been convicted of driving under the influence. The Agency asserts section 361.4 is inapplicable when a child is placed with his or her parent. We agree.
Once a child is removed from the custody of his or her parent under section 361, the court must place the child. Sections 361.2, 361.3, and 361.4 address placement. A court must place a child with a nonoffending noncustodial parent who requests custody unless there is evidence that such a placement would cause detriment to the child. ( § 361.2, subd. (a).) If the child cannot be placed with a nonoffending noncustodial parent, the Agency investigates whether any relatives are willing to take the child. ( §§ 361.2, subd. (e)(2), 361.3, subd. (a).)
Section 361.3 provides that the Agency must give preference to relatives who seek to provide a placement for the child. That section defines relative as: "an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship." ( § 361.3, subd. (c)(2).) If the Agency determines that a relative who seeks placement may be appropriate, it must check whether that person has any criminal convictions. (§ 361.4, subd. (b).) If the relative has certain convictions that preclude placement, the Agency may not place the child with the relative unless it receives an exemption from the county. ( § 361.4, subd. (d)(2).)
Mother asserts the word "relative" in section 361.4 includes parents. We disagree. Although a strict dictionary definition of the word "relative" would include the word "parent" because a parent is related to a child by blood or adoption, there is no indication the Legislature intended the term "relative" to encompass "parent" in section 361.4. When one part of a statute contains a term, the omission of that term in another part of the statute indicates the Legislature intended to convey a different meaning. (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 73.) We may not rewrite a statute by inserting language to make it conform to any intent that is not expressed. (Id. at pp. 73-74.) We also do not imply a missing term in the part of the statute from which the Legislature has excluded it. (Wilshire-Doheny Associastes, Ltd. v. Shaprio (2000) 83 Cal.App.4th 1380, 1393.) Sections 361.3 and 361.4 address placement after a child has been removed from a custodial parent and there is no nonoffending noncustodial parent with whom the child can be placed. It would be absurd to conclude that a placement choice under those statutes after removal from a parent could include a parent. Indeed, such a placement is an act in excess of the courts jurisdiction. (In re Andres G. (1988) 64 Cal.App.4th 476, 483.) Section 361.4 applies only to relatives who are not parents.
Mother also asserts the court could not place Hector with Jose under section 361.2 because that statute applies only immediately after the court removes a child from his or her custodial parent. As a result, she argues the court had to place him under section 361.4. However, she cites no authority for this proposition. Although section 361.2 is typically used at the disposition hearing, there is nothing in its language preventing the court from considering placement with a nonoffending noncustodial parent who was not located by the time of the disposition hearing, but who subsequently contacted the Agency seeking custody. The court was not required to consider section 361.4 before placing Hector with Jose.
B
Mother asserts placing Hector with Jose violated the ICPC and Utah law because Jose has criminal convictions. The purpose of the ICPC is for states to cooperate with each other in the interstate placement of children so that (1) each child may be placed in a suitable environment, (2) the appropriate authorities in the receiving state will have an opportunity to investigate the proposed placement, (3) the proper authorities in the sending state will obtain the most complete information to evaluate the potential placement. (Fam. Code, § 7901, art. 1, subds. (a)-(c).) For purposes of this appeal, we assume, but do not decide, that an ICPC evaluation was required before placing Hector with Jose in Utah.
Under the ICPC, the Agency may not place a child in another state unless it has complied with the applicable laws of the receiving state for placement of children. (Fam. Code, § 7901, art. 3, subd. (a).) Like California, Utah provides that a court must place a child with his or her nonoffending noncustodial parent unless the court finds the placement would be detrimental to the child. (Utah Code Ann., § 78— 3a-307(1)(a).) However, unlike California, Utah courts are required by statute to order the investigating body to perform criminal background checks on a nonoffending noncustodial parent. (Utah Code Ann., § 78-3a-307(c)(ii).) Background checks are governed by Utah Code sections 78-3a— 307.1 and 62A-4a-202.4, which give the investigating agency access to criminal records, compel those under investigation to submit fingerprints, and address the issue of payment of the cost of the investigation. The investigating agency must report its findings in writing to the court and the court must make specific findings regarding fitness of the parent to assume custody and the safety and appropriateness of the placement. (Utah Code Ann., § 78-3a-307(c)(i), (iii).)
Here, the Utah authorities knew Jose had convictions for driving under the influence and for possessing counterfeit government documents. Because they were aware of these convictions, we assume the Utah authorities properly performed their duties (Evid. Code, § 664), investigated these convictions, and concluded that placing Hector with Jose would not be detrimental even though he had criminal convictions.
Mother asserts Utah Code section 62A-2-120 prohibited placing Hector with Jose. However, that section addresses criminal background checks for applicants for licenses for day-care and elder care and does not address placement with a nonoffending noncustodial parent. (Utah Code Ann., § 62A-2-120.) Mother asserts Utah Code section 62A-4a-209 requires a nonoffending noncustodial parent to undergo a criminal background check. However, that section addresses emergency kinship placements and does not apply to parents. At most, the section states that before making an emergency kinship placement, the court must determine whether there is a nonoffending noncustodial parent who seeks custody. (Utah Code Ann., § 62A-4a-209(1)(b).)
Simply stated, Utah Code Annotated section 78-3a-307 requires the court to order the appropriate authorities to evaluate whether a nonoffending noncustodial parent has a criminal record and if so, whether placement is appropriate. Mother cites no authority, and we have located none, that bars a childs placement with a nonoffending noncustodial parent in Utah because that parent has a criminal conviction.
Mother also incorrectly asserts there is no evidence that Utah authorities investigated Joses live-in girlfriend, Kathy V. The ICPC shows Utah authorities were aware Jose and Kathy lived together. Because they positively evaluated their home and recommended placement, we infer the Utah authorities believed Kathys presence in the home was not detrimental to Hector, particularly because they were aware she would be Hectors care provider. The record also shows the Utah authorities investigated whether Kathy had a criminal record because they conducted a criminal record and child protective services search. They discovered Jose had a record. Because the report is silent as to Kathy, we infer they found she had no record. In any event, even if we assume the Utah authorities did not check whether Kathy had a criminal record, the California social worker fingerprinted her and found she had no criminal history, making any failure by Utah authorities to do so harmless. The record demonstrates Kathy was suitably evaluated. Mother has not shown the ICPC was inadequate or violated Utah law.
C
Mother asserts Hector should not have been placed with Jose because Jose was a domestic abuser, had been convicted of driving under the influence, and the placement was too far away from her.
Mother contends the placement order was made under section 366. Consequently, she asserts the proper standard of review is abuse of discretion. The record is silent as to which code section the court considered in making its placement order. However, we disagree with Mother that the order was made under section 366 because that section provides no authority to place a child with a parent. Section 366 provides that the status of every dependent child in foster care shall be reviewed periodically by the court until a section 366.26 hearing is conducted. ( § 366, subd. (a)(1).) The sections that address placement with parents are sections 361.2 and 366.21. Section 361.2 provides that once a court declares a child is a dependent and removes the child from his or her custodian, the court must determine whether a nonoffending noncustodial parent wants custody of the child. ( § 361.2, subd. (a).) Section 366.21 provides that at the six— and 12-month review hearings, the court shall order the childs return to the physical custody of his or her parent unless doing so creates a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. ( § 366.21, subds. (e), (f).) In either case, we review the courts finding of detriment in the light most favorable to the order to see if substantial evidence supports it. (In re Shelly J. (1998) 68 Cal.App.4th 322, 329; In re Brian R. (1992) 2 Cal.App.4th 904, 914.) In any event, even if Mother is correct and the abuse of discretion standard of review is proper, she has not shown reversible error.
Mother asserts the court could not place Hector with Jose because Jose physically abused Mother. However, Jose denied physically abusing Mother or Kathy. Both he and Kathy said there was no domestic violence in their relationship. He had no arrests for domestic violence. A therapist who evaluated him in December 2002 concluded he did not fit the profile of a domestic violence perpetrator. Mother said Jose physically abused her, but her allegations of abuse were inconsistent. She claimed she left him because he was abusive, but also because she got bored and was not able to go out and have fun. In April 1999, she filed a police report stating Jose had "snatched Hector" during a routine visit, but did not report that he struck her. Later, she alleged he hit her, which led to the issuance of a restraining order. This order is the only evidence other than her statements showing Jose engaged in domestic violence. However, Jose believed she got the restraining order against him because he found out she had left him for another man. Because the court approved placement with Jose, we infer that the court found Mother was not credible on the issue of domestic violence. We do not reweigh the courts credibility determinations. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
Mother also contends Jose had convictions that precluded him from taking Hector into his home. Although no California statute specifically requires the court to consider a nonoffending noncustodial parents criminal convictions before placing a child with that person, the court may do so because convictions are relevant to whether a child would suffer detriment if placed with that parent. ( § 361.2, subd. (a); 366.21, subds. (e), (f).) However, the court may also consider the circumstances. Here, Jose was convicted of driving under the influence in June 2001. He was pulled over because one of his lights was burned out and he later failed a breathalyzer test. He admitted he drank too much one evening while celebrating a special event and should not have driven that night. He was paying the fine and attending the court-ordered classes. He believed he has learned his lesson and did not believe he had a drinking problem. Moreover, when the social worker randomly checked him for substances, he did not have alcohol or drugs in his system. Because Jose had only one arrest leading to one conviction for driving under the influence, which occurred 20 months before Hectors placement, the court could reasonably conclude Jose did not have a drinking problem that placed Hector in jeopardy.
Further, Jose was working full-time and was capable of financially providing for Hector. He and Kathy wanted Hector to live with them. He was remorseful for not contacting Hector before learning of the current situation. He enrolled in parenting classes to help understand child development. Further, unlike Mother, who was attempting to influence Hector by telling him Jose was crazy and he would not see her again if he moved to Utah, Jose was willing to share custody of Hector and ensure he maintained contact with Mother .
Mother argues Hector wanted to stay in California with her. However, by January 2003, Hector said he wanted to live with Jose in Utah. The social worker believed he was comfortable and happy with Jose. The December visit went well. She believed placing Hector in Utah was appropriate because he reacted positively to the visit.
Moreover, contrary to Mothers assertions, the social worker did not believe Jose drank, used drugs, or intended to take Hector to Mexico. He cooperated with the social worker throughout the case and complied with her requests. She was not concerned about his conviction for driving under the influence because he was complying with court orders in that case and had only one such offense. She was not concerned about him going to Mexico with Hector because his and Kathys families lived in Utah. The therapist who evaluated Jose believed he would provide a safe and loving environment for Hector. Mother introduced no contrary expert evidence.
Mother also asserts the court could not place Hector in Utah because such a placement was too far away from her. However, the authorities she cites for this proposition ( § 361.3, subd. (a); In re Luke L. (1996) 44 Cal.App.4th 670) address placement of a child with persons other than parents and are thus irrelevant. Placing Hector with Jose serves the two-fold purpose of the dependency law — it protects him and preserves his family. ( § 300.2.) When, as here, a nonoffending noncustodial parent seeks custody, there is no reason to leave that child in foster care even if the placement is in another state.
Mother also asserts the order placing Hector in Utah violates her right to reunification services, including visitation. However, she has cited no authority, and we have located none, that requires her to receive reunification services once Hector has been placed with a parent. To the contrary, once a child has been placed with his or her other parent, the court has discretion whether to offer services to the parent from whom the child has been removed. ( § 361.2, subd. (b)(2).) Moreover, contrary to Mothers assertions, section 362.1 does not compel the court to offer her visitation, because that section applies only when a child is in foster care, which Hector is not. ( § 362.1, subd. (a).) Here, the court exercised its discretion under California Rules of Court, rule 1457(b) to give her visitation in April 2003. We presume other visits will be arranged as Hectors school schedule permits. To the extent Mother believes the amount of visitation is inadequate, she may petition the court for more visits under section 388. Substantial evidence supports the placement of Hector with Jose in Utah.
DISPOSITION
The order is affirmed.
WE CONCUR: BENKE, Acting P.J., and NARES, J.