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In re I. G.

California Court of Appeals, Fourth District, Third Division
Feb 24, 2011
No. G044055 (Cal. Ct. App. Feb. 24, 2011)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County, No. DP018984, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant R.R.

Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant Ivan G.

Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsels for Plaintiff and Respondent.

No appearance for the Minor.


OPINION

O’LEARY, J.

R.R. (Mother) appeals from the juvenile court’s order terminating her parental rights to now one-year-old I. G. At the Welfare and Institutions Code section 366.26 hearing (hereafter the.26 hearing), the court terminated parental rights and then ordered Orange County Social Services Agency (SSA) to reevaluate certain relatives for placement under section 361.3. The court determined SSA had failed in its duty under section 361.3 and should have considered I. G.’s maternal aunt and uncle when the child required a change in placement. Mother’s sole contention on appeal is the relative placement assessment under section 361.3 should have been completed before the court terminated parental rights at the.26 hearing. Ivan G. (Father) asserts that if the order terminating parental rights is reversed as to Mother, it must also be reversed as to him. SSA asserts Mother lacks standing to raise this claim, and alternatively, any error is harmless. We conclude the juvenile court correctly determined SSA needed to reevaluate the relatives under section 361.3, but to remedy SSA’s error, it should have continued the.26 hearing until the relative placement assessment and determination was completed. Once parental rights were terminated, the court lost its authority to consider placement under section 361.3. Accordingly, we reverse the order terminating parental rights and remand the matter.

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

I

This dependency action began in October 2009, when then 15-year-old Mother brought 11-week-old I.G. to the emergency room. The infant had suffered a skull fracture, a healing femur fracture, acute fractures of her tibia and humerus, a fever, a urinary tract infection, abdominal trauma, liver damage, thrush, and blisters in her diaper folds.

Because the issue raised in this appeal is limited in scope to the timing of a relative placement determination, we need not give a detailed account of all the events leading to the.26 hearing. Suffice it to say, the child’s injuries were determined to be non-accidental. Jurisdiction was sustained under section 300, subdivisions (a), (b), and (e) due to allegations I.G. suffered severe physical harm caused by one or both parents. Under section 361.5, the court did not offer the parents reunification services. The court scheduled a.26 hearing. I.G. was placed in the home of her paternal aunt and uncle (the E. family).

The social worker reported Mother lived with her parents (maternal grandparents) and three adult brothers. She was on probation for not attending school and running away from home. There were reports concerning Mother being abused by her parents. Mother associated with gang members, had a history of threatening physical violence on a teacher, and Mother admitted using methamphetamine before and during her pregnancy. Mother initially lied about how I.G. was injured and the identity of I.G.’s father. Twenty-five year old Father shared a room with Mother at the maternal grandparents’ home. He was arrested and incarcerated on charges of child abuse.

In October 2009, SSA conducted a home assessment regarding I.G.’s caretakers, the E family, as well as her maternal great aunt and uncle, Manuel R. (Manuel) and Maria M. (Maria). The relatives were all cleared by criminal and abuse background checks. SSA did not declare Manual and Maria to be unsuitable, but placed I.G. with the E. family. SSA determined they were “the most viable relative placement.”

In March 2010, the social worker described I.G. to be a healthy and adorable seven month old, but she exhibited some delays in motor skills and less ability to use her right arm and leg. She was referred to the Regional Center of Orange County (the Regional Center).

At the end of July 2010, a new social worker was assigned to the case and she prepared a report for the scheduled.26 hearing. I.G. had turned one year old on July 14. I.G. received therapy at the Regional Center for developmental delays and she was on medication for kidney issues, reflux, and highly sensitive skin.

The social worker reported the E. family indicated they were no longer able to pursue adoption due to their financial situation and because they had another child with special needs. The social worker reported due to “no relatives following through with contacting and/or providing their complete information to the undersigned, an adoptive home search was initiated. On June 23, 2010, the child was matched with a prospective adoptive family. On June 30, 2010, after a series of pre-placement visits, the child was placed into the prospective adoptive home. [¶] If maternal relatives contact the undersigned and provide their information, they would be considered for placement if the child were to be moved.... At this time, the child is progressing well in the prospective adoptive home and there are no plans to move the child....”

Later on in the same report, the social worker offered additional information about the maternal relatives. She stated there had “been several maternal relatives who... directly and indirectly requested placement....” She stated maternal great aunt Maria R. (M.R.) declined placement in April 2010 after learning the child had special needs. However, M.R. told the social work her brother Manuel was also interested in adopting I.G. The social worker stated she obtained Manuel’s telephone number from the previously assigned social worker. When she called the number, she was told it was the wrong number.

In May 2010, the social worker again contacted M.R. to ask about Manuel and their sister Maria Elena R. (M.E.R.). M.R indicated Manuel was waiting to call the social worker until his wife returned from Mexico. The social worker asked M.R. to give her Manuel’s telephone number and to tell him to call the social worker the next day.

The following day, the social worker spoke again with M.R., who did not yet have her brother’s telephone number and she had not seen him. However, maternal grandmother was able to provide the social worker with Manuel’s cell phone number. The social worker left a voicemail message on his cell phone. The social worker attempted to call Manuel again on May 18, 2010, but could not reach him. The person who answered the telephone told the social worker they did not know Manuel.

On July 1, 2010, the social worker received a telephone call from Manuel’s wife, Maria, who requested placement of the child. But by this time I.G. had already been placed with the prospective adoptive non-relative family. Nevertheless, the social worker told Maria to call back with information regarding other family members living in the home (dates of birth, social security numbers, etc), and to have Manuel call the social worker to discuss his thoughts and intentions regarding I.G.

On August 5, Maria called the social worker again about adopting I.G. She recognized they had spoken about adoption a month ago, and Maria claimed had told Manuel to call the social worker as instructed. Maria stated Manuel had been very busy working two jobs. Maria admitted she had not yet collected the previously requested information about members of the household for an assessment. The social worker told Maria to call back with the information and to also have Manuel call.

The.26 hearing took place on August 11, 2010. The focus of the hearing was about the relative placement issue. The social worker testified the original caregivers, the E. family, first expressed doubts about adopting I.G. in April 2010. The social worker said she tried to contact Manuel several times to discuss placement, but she could not reach him at the phone numbers she was given. She did not send a letter to the address. Although Maria contacted the social worker in July, she failed to provide all the necessary information for a placement evaluation.

Manuel testified his address and telephone number had not changed since his home was intitially evaluated in November 2009. He requested I.G. be placed with him and Maria, and they were willing to adopt her.

The juvenile court also considered argument from all the parties on the issue of relative placement and what should be the child’s permanent plan. SSA argued the relatives had not been persistent or diligent in seeking placement. SSA asserted it did not abuse its discretion in placing the child with non-relatives, who are willing to adopt and who have begun bonding with the child.

The court asked SSA’s counsel if the social worker ever found Manuel and Maria’s home to be unsuitable and asked if they should have been considered for placement under section 361.3, subdivision (d). Counsel admitted there was no evidence the home was unsuitable, but the relatives failed to contact the agency and request placement. The court was not persuaded by this argument, noting SSA knew Manuel and Maria were interested in placement back in November 2009 and “these folks can’t come forward unless someone says that there’s been a change in placement, right?... Now, the agency’s on notice that these folks are out there. They’ve not previously been found unsuitable, so isn’t there some obligation on the agency to follow that part, give them first consideration, to, at least, give them a call up front and say, you know, we’re moving I.G. Are you still interested in placement?” The court stated if the social worker had trouble reaching Manuel and Maria on the phone, at a minimum she should have sent them a letter or visited their house. The court noted the social worker was aware of the need to change placement in April and she had several months to make contact with I.G.’s relatives before placing her with non-relatives at the end of June. The court questioned why the social worker did not make any reasonable efforts to contact Manuel until after the child was placed with non-relatives. SSA’s counsel admitted it would have been reasonable to write a letter, but he would not concede there had been an abuse of discretion with regard to the relative placement efforts.

Mother’s counsel asked the court to not terminate her parental rights, but order guardianship or long term foster care to provide Mother an opportunity to continue a relationship with her daughter. She requested I.G. be placed with relatives. Father’s counsel stated Father joined in Mother’s arguments. He noted SSA had not fulfilled their responsibility under section 361.3, subdivision (d). Minor’s counsel stated she had no objection to having Manuel and Maria evaluated again. She voiced some concern they had not maintained any relationship with I.G. and did not know her placement was being changed (although Mother and maternal grandmother knew of this development). Minor’s counsel found it “ironic” I.G. was placed on June 30 and Maria called one day later, on July 1, to ask about the child.

At the end of the hearing, the court first ruled I.G. was adoptable and ordered termination of Mother’s and Father’s parental rights. It found none of the exceptions to termination applied. It then turned its focus to the relative placement issue under section 361.3, stating, “the court does believe that the agency was remiss in their failure to use reasonable efforts” and the social worker should have “at [a] minimum” written a letter or visited the home “in April[, ] not in July, after the child has been placed. And so as a result of that, the agency didn’t perform that aspect of the evaluation. It needed to be done. [It] still needs to be done.” The court stated it would not comment on any of the criteria under section 361.3 until after SSA had assessed the home and completed its investigation. In addition, the court noted SSA’s decision to place the child in another home will add “another layer of complexity when we finally do get around to looking into [section 361.3 criteria] because now we have to consider and worry about the effect [the change of placement] it has [had] on the child after this period of time.” The court ordered SSA to “reevaluate [Manual and Maria’s] home pursuant to [section] 361.3 and to provide the court with a full assessment of the home and an evaluation and recommendation as to the appropriate placement for the child.” It gave SSA two weeks to complete the assessment, and scheduled a hearing for August 25. It also scheduled a periodic review hearing for February 10, 2011, and an adoption review hearing for October 13, 2010.

II

In her appeal from the order terminating parental rights and freeing I.G. for adoption, Mother does not challenge the court’s finding I.G. was adoptable or claim one of the statutory exceptions to terminating parental rights applied. Instead, Mother’s sole issue on appeal is the court should have continued the.26 hearing until it had an opportunity to consider SSA’s reevaluation of the relative placement preference under section 361.3. She is right.

Several months before the.26 hearing, SSA learned I.G. needed a new placement. As correctly recognized by the juvenile court, “[W]henever a new placement of the child must be made, consideration for placement shall again be given... to relatives who have not been found to be unsuitable and who will fulfill the child’s reunification or permanent plan requirements.” (§ 361.3, subd. (d); see Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032 (Cesar V.) [relative preference applies “when a new placement becomes necessary after reunification services are terminated but before parental rights are terminated and adoptive placement becomes an issue”].) In this case, the juvenile court determined SSA failed its duty to consider relatives for placement. I.G.’s maternal aunt and uncle were not previously found unsuitable and they clearly had expressed a desire to adopt her. The juvenile court properly sought to remedy this violation of section 361.3 by ordering SSA to reevaluate the relatives for placement and report back in two weeks.

Mother’s appeal concerns the timing of this remedy. She asserts the court should have continued the.26 hearing until the relative placement violation was remedied. We agree the sequencing of events was problematic for several reasons.

First, it is helpful to briefly review the scope and purpose of the relative placement preference code provision. “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).)” (Cesar V., supra, 91 Cal.App.4th at p. 1033.) Indeed, “‘[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, italics omitted.)

The first problem created by the juvenile court’s order is that under the statutory scheme the relative placement preference (section 361.3) does not apply after parental rights have been terminated and the child has been freed for adoption. (In re Cesar V., supra, 91 Cal.App.4th at p. 1031.) As explained by the court in In re Sarah S. (1996) 43 Cal.App.4th 274, 277, section 361.3 “does not apply to a placement made as part of a permanent plan for adoption. Once the juvenile court determines that reunification efforts have failed, the only statutory preference in the adoption process is for a ‘relative caretaker or foster parent’ as provided in subdivision (k) of section 366.26.” Thus only the child’s current caretaker is given preference for processing the adoption application although “other applications will... also be considered.” (In re Harry N. (2001) 93 Cal.App.4th 1378, 1397.)

Section 366.26, subdivision (k), provides: “Notwithstanding any other provision of law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the child’s emotional well-being. [¶] As used in this subdivision, ‘preference’ means that the application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child.”

As applied to this case, we find there is no statutory basis for the court to schedule a hearing to consider 361.3 placement criteria after terminating parental rights. Although well meaning, the juvenile court did not recognize terminating rights changed the focus of these proceedings to who will adopt I.G. and effectively rendered moot the issue of whether certain relatives should be given preference for mere placement. The practical effect of SSA’s failure to comply with section 361.3 before the.26 hearing is that I.G.’s maternal aunt and uncle were deprived of the opportunity of becoming relative caregivers—an important status under the applicable section 366.26, subdivision (k) (the relative caretaker preference after parental rights terminate).

Although no party moved to continue the.26 hearing to allow for a proper evaluation of potential relative placement, the record shows the juvenile court clearly desired to remedy SSA’s blunder. The court had the authority to order such an evaluation before proceeding to the.26 hearing. By failing to do so, the juvenile court unwittingly deprived itself of the authority to interfere with or disapprove of the child’s placement. Before parental rights are terminated, “the juvenile court has the power and the duty to make an independent placement decision under section 361.3, ” but it loses this authority once parental rights are terminated. (In re Cesar V., supra, 91 Cal.App.4th at p. 1034-1035.) Indeed, absent an abuse of discretion, the Legislature has given the power to SSA, not the court, to decide where a child should be placed after parental rights are terminated and pending adoption. (Department of Social Services v. Superior Court (Theodore D.) (1997) 58 Cal.App.4th 721, 733-734 (Theodore D.).) As stated in section 366.28, subdivision (a) regarding writ review of SSA’s placement, “The Legislature recognizes that the juvenile court intervenes in placement decisions after parental rights have been terminated only in exceptional circumstances....”

Thus, if the juvenile court held the section 361.3 hearing after terminating parental rights, and if it disagreed with SSA’s recommendation the child should remain with non-relatives, the court had no authority to “substitute its judgment for [SSA] as this would interfere with [SSA’s] exclusive custody and control of the minor....” (Theodore D., supra, 58 Cal.App.4th at p. 734.) After parental rights are terminated, the juvenile court is burdened with the high hurdle of reviewing SSA’s actions solely for abuse of discretion. Was the child’s placement arbitrary, capricious, “patently absurd or unquestionably not in the minor’s best interests.” (Ibid.) Given the above deferential standard applied to SSA, it does not appear the juvenile court would have any authority to order a different placement under section 361.3, especially since the provision was no longer applicable to the proceedings. SSA would not be held accountable or made to remedy its failure to comply with section 361.3. Obviously, this is not what the juvenile court had in mind when it issued its order.

Another consequence of the timing of the orders, and one maybe not considered by the juvenile court, was that Mother would have lost her standing to challenge anything regarding her daughter once parental rights were terminated. She would have no standing to challenge SSA’s evaluation or the placement decision under section 366.26, subdivision (k). Only an aggrieved party may appeal from a decision of the juvenile court. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1053 (Esperanza C.).) To be aggrieved, the party must have a legally cognizable interest that is injuriously affected by the decision. (Ibid.) A parent has such an interest until their rights are terminated. “Until parental rights are terminated, a parent retains a fundamental interest in his or her child’s companionship, custody, management and care.” (Ibid.)

We recognize the parties devote a large portion of their briefs to the issue of standing. We conclude Mother has standing because she is appealing from the order terminating her parental rights. We need not resolve the dispute raised in the briefs regarding whether a parent generally has standing to challenge the court’s denial of a relative placement when reunification is no longer a goal of the proceedings but before parental rights are terminated. (In re Esperanza C., supra, 165 Cal.App.4th at p. 1042; In re H.G. (2006) 146 Cal.App.4th 1, 9-10; cf. Cesar V., supra, 91 Cal.App.4th 1023.) The court did not deny Mother’s request for relative placement. To the contrary, the court expressly ordered SSA to reevaluate relatives for placement under section 361.3. The only issue with the order concerns its timing (as discussed above).

We took judicial notice of the juvenile court file in anticipation the court’s error would be harmless if in fact it held a hearing to consider SSA’s reevaluation of the relatives and the section 361.3 criteria for relative placement. The hearing was scheduled for August 25, two weeks after the.26 hearing. The record shows that on that day the hearing was attended only by counsel for the minor and SSA. The court admitted into evidence SSA’s reevaluation of the relatives and report recommending no change in placement. It also accepted SSA’s and the minor’s stipulation to continue the “placement” hearing for one month (to September 28, 2010). At the September hearing, also attended by only counsel for SSA and the minor, the matter was placed off calendar.

At the next scheduled hearing for October 13, the court declared the non-relative caretakers de facto parents, appointed them counsel, and waived the adoption filing fees. The parties pressed ahead and scheduled an adoption review for November and a periodic review for February 2011. In short, no hearing was held to address SSA’s relative placement blunder. Neither parents nor their counsel were present at any of the hearings following the.26 hearing.

Thus, for all the reasons stated above, it cannot be said the error was harmless. The court should have continued the.26 hearing until SSA completed its section 361.3 reevaluation of the maternal relatives and after it ruled on the relative placement issue considering the section 361.3 criteria. Under this scenario, the court would still have authority to intervene and Mother would have standing to challenge the decision. Thereafter, parental rights could be terminated and the matter turned over to SSA’s exclusive control to determine who will adopt I.G.

III

As with all dependency cases, we recognize the clock cannot be easily rewound by reversing the juvenile court’s order. At this point, I.G. has been living with her non-relative caretakers (who have now also been deemed her de facto parents) for over six months and this developing relationship will effect evaluation of the child’s best interests under section 361.3. We also recognize placement with Manuel and Maria may not be in the best interest of I.G., but we cannot ignore the error or SSA’s blatant disregard of section 361.3 in this case. The order terminating parental rights is reversed and the matter remanded for a hearing regarding section 361.3 that should have taken place in August 2010.

WE CONCUR: BEDSWORTH, ACTING P. J., FYBEL, J.


Summaries of

In re I. G.

California Court of Appeals, Fourth District, Third Division
Feb 24, 2011
No. G044055 (Cal. Ct. App. Feb. 24, 2011)
Case details for

In re I. G.

Case Details

Full title:In re I. G., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Feb 24, 2011

Citations

No. G044055 (Cal. Ct. App. Feb. 24, 2011)