Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County No. DP012325, Caryl Lee, Judge.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant, Erica M.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant, Diana Sue V.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Paula A. Whaley, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
O’LEARY, J.
Jeremiah M.’s mother, Erica M., and maternal grandmother, Diana Sue V., appeal from the denial of Diana’s Welfare and Institutions Code section 361.3 request for relative placement. Although Jeremiah’s older brother has lived with Diana for several years, the Orange County Social Services Agency (SSA) would not recommend placement with her for Jeremiah. With minimal investigation, Diana was rejected due to the existence of prior Child Abuse Reports (CARs) filed against Diana when Erica was a teenager. On appeal, Diana complains she was denied due process because the court refused to let her see the CARs, the social worker cut and pasted only portions of the information into her reports, and consequently, at the hearing, Diana was unable to adequately rebut the social worker’s reports. She asserts the court’s refusal to grant her relative placement motion was erroneous because she never abused her children, and most of the CARs relate to incidents caused by Erica’s lifetime of mental health issues. We find there were serious lapses by SSA in this case, but nevertheless it cannot be said the court abused its discretion in denying the relative placement motion at this time. The orders are affirmed.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
I Facts
Jeremiah weighed only two pounds when he was born at 27 weeks gestation. After two months of treatment in the hospital, he was ready to be discharged, and SSA filed a child dependency petition alleging Erica could not care for her baby because she had a history of mental illness, involving involuntary psychiatric holds. She also had unresolved substance abuse problems. The petition stated the identity of Jeremiah’s father was unknown.
In the detention report, filed on September 27, 2005, social worker Barbara Mautino wrote Erica conceded she was unable to care for Jeremiah and desired her mother, Diana, to become his legal guardian. Erica signed medical release papers to Diana, which were forwarded to SSA. Soon thereafter, Erica was admitted to the psychiatric ward at the hospital due to severe depression. Diana told the social worker she had applied for legal guardianship in probate court and the matter was being trailed. She was already the legal guardian of Jeremiah’s four-year-old brother, Eric M.
Mautino acknowledged in her report that there were relatives to consider for placement. However, she noted, “On September 23, 2005, Orangewood Diversion Senior Social Worker, Yvette Cole, contacted Emergency Response Senior Social Worker [Carole] Chen by telephone stating the child’s maternal grandmother would not be considered for relative home evaluation based on her prior history of substantiated child abuse reports.” Mautino stated there were 16 reports of SSA contacts with the family, and four had been substantiated. Consequently, SSA did not conduct a relative home placement to assess if Jeremiah should be placed with his brother and grandmother.
In Mautino’s report, she advised the court that the probate court had not yet ruled on Diana’s legal guardianship request. Mautino had spoken with a probate attorney (no name was specified) who stated the probate court did not have enough information to grant or deny legal guardianship, and the court wanted to first conduct an investigation of Diana’s living situation. The attorney expressed concerns about granting legal guardianship in light of the lengthy SSA file on the family and a premature baby with special medical needs.
The Detention Hearing – September 2005
At the detention hearing, Erica asserted Jeremiah may be an American Indian child. The court ordered visitation for Erica and Diana. It stated, “I would like [Diana’s] home physically inspected and evaluated and [Diana] interviewed again. If the social worker is basing her report entirely on the CAR reports, I would like her to . . . interview [Diana] independently and review her home.” It added, any information gathered from this independent evaluation “will be contained in the report prepared for the next hearing.” SSA was authorized to release the minor to Diana “if deemed appropriate.”
The Jurisdiction/Disposition Report -- October 19, 2005
This report was prepared by social worker Michael Manchester, who informed the court Jeremiah was placed in a foster home and was receiving appropriate medical treatment typically given to premature babies. Erica was still hospitalized for severe depression.
In response to the court’s order to provide the reasons why Jeremiah could not be placed with Diana, the social worker simply listed the dates of the prior CARs (both unsubstantiated and substantiated). She opined these reports provided a “summary of the reasons why the child cannot be placed with the paternal grandmother[.]” No further details about the incidents were disclosed. Moreover, no additional information or explanation was offered as to why Diana was a suitable placement for Eric, but not Jeremiah. At the end of her report, Manchester concluded, “The undersigned has some concerns about placing the child with the maternal grandmother due to the four substantiated [CARs] that were received by [SSA] in the past.”
The Hearing – October 19, 2005
SSA requested a continuance due to its failure to comply with the Indian Child Welfare Act (ICWA) notice requirements. Erica objected and answered ready for trial. She set the matter for a no time waiver trial. She requested the court dismiss the petition or alternatively, place Jeremiah with Diana. She informed the court that despite the court’s order, Diana had not yet been evaluated for relative placement. County counsel responded by asking that “this issue be reserved for [a] litigated hearing. At this point in time the Agency has many concerns about placing in [Diana’s] home. The court did order us to evaluate. We have done so and are continuing to do so. It’s my understanding [Diana is] already voluntarily attending parenting classes.” County counsel conceded there was an order to re-evaluate Diana and “present our concerns in the court report, so we can have it done before the court legally in issue. I don’t think it’s best to proceed at this time.” The court stated it would address the issue at the next hearing set for November 2, 2005.
Addendum Report – November 2, 2005
Manchester reported three-month-old Jeremiah was still residing in foster care. It had been determined he was not an Indian child. The foster mother reported Jeremiah was having difficulty breathing, and was prescribed breathing treatments. Shawn H. was identified as the child’s alleged father, and he had a lengthy criminal record. Another alleged father, Steven V., refused to give SSA information needed for a clearance check. Erica was making a valiant effort to comply with the reunification plan. Diana was supportive of her daughter’s efforts, but reported they had some arguments when Diana would not let Erica see her son “Eric when she’s aggressive and anxious.” Diana reported Erica was benefiting from the prayers and support she received from her church friends, but opined, “What she has now are mostly mental health issues. . . .”
In addition to caring for Eric, Diana supported her 18-year-old daughter, Karina, and eight-year-old daughter, Teresa. Karina was pregnant. They rented a three bedroom house from a family who occupied one of the bedrooms. Manchester stated she “forwarded a Relative/NREFM Clearance and Assessment Referral including [Diana], the [18]-old maternal aunt, and the two landlord homeowners that live in the home. . . . [¶] The undersigned is waiting for the assessment to be completed.”
In this report, Manchester submitted a more detailed description of the incidents underlying the CARs. The first CAR, written 17 years ago, concerned inconclusive evidence of physical abuse by a grandfather. In the second report, dating back to 1993, it was alleged Diana ignored a recommendation from Erica’s school that Erica attend counseling because the child was exhibiting violent behavior in school and at home. This report was found inconclusive for general neglect. The following year (1994), Erica’s junior high school reported she was having extreme difficulties socializing with her peers, siblings, and parent. Erica exhibited “physical abuse” towards her mother. Erica stated she wanted to die. This report was also inconclusive for general neglect.
The first substantiated report is dated August 11, 1995: “[Erica] disclosed while staying at a shelter that [Diana] had hit her with a hanger and left linear bruise marks all over arms and legs. [Erica] reported [Diana] also hits [her] younger siblings and leaves marks.” The social worker did not specify how these allegations made by a mentally ill teenager were substantiated. The following month, on September 16, 1995, Erica reported a sexual assault by four boys. The social worker stated, “This report was unknown at conversion for sexual abuse.”
Several reports were made in 1996 which all indicate Erica was suffering from mental illness. At the beginning of the year, on February 26, 1996, Erica was admitted to the hospital for a 72-hour evaluation. Erica alleged Diana was physically abusing her and her siblings. However, Erica’s siblings denied the allegations. When Erica was released from the hospital, she stated Diana had abused her in the past, but she was not currently hurting her. This report was deemed inconclusive for physical abuse. Within four months, on June 19, 1996, Erica returned to the hospital pursuant to Penal Code section 5150 after she broke all the dishes in Diana’s home. Erica alleged physical abuse and inappropriate touching by Diana’s boyfriend. This account was found inconclusive for sexual abuse. On June 27, 1996, Erica reported multiple sexual abuse allegations. There was no investigation and “[t]his report was unknown at time of conversion for physical abuse.” The following month, on July 28, 1996, Erica once again was placed “on hold” at the hospital as she was deemed a danger to others. Erica had a physical altercation with a “great aunt” and sustained bruises on her upper arm. This report was deemed inconclusive for physical abuse. Two days later, a report was filed stating Diana refused to pick up Erica from the hospital after she was discharged. Erica was dropped off at the residence where she fought with family members and broke down Diana’s door. The social worker stated this report was “inconclusive for caretaker incapacitated.”
There were three reports in 1999, and two of them were substantiated. In January, Diana was involved in a domestic violence dispute outside of the home with an ex-boyfriend. Erica, her sister, and Diana all reported a history of domestic violence. This report was substantiated for emotional abuse, but inconclusive for general neglect. On December 3, 1999, a medical worker mailed in a report stating Diana had called the medical facility and alleged Erica’s brother was being physically abusive to his sisters. Manchester stated she was “only able to determine that this report was closed.” Manchester stated she could not locate the next report dated December 10, 1999, which was purportedly substantiated for general neglect, but inconclusive for sexual abuse by Diana’s ex-boyfriend.
In the 2002 CAR, it was reported Eric was admitted to the hospital with a skull fracture. The injury was caused by the babysitter’s daughter dropping Eric on the floor. This report was deemed inconclusive for physical abuse or general neglect by his guardian Diana. In 2003, there was a CAR substantiated for general neglect, but unfounded for physical abuse based on an incident of domestic violence between Erica and her sister at Diana’s home. It was reported Erica went to visit Eric at Diana’s home where she was involved in a physical altercation with her 15-year-old sister. The fight was witnessed by their six-year-old sister. Diana was able to separate the siblings.
In light of the above history, the social worker concluded, “[Diana] has a long-standing history of failing to protect her children from abusive relationships resulting in [SSA] intervention. Despite social services intervention, [Diana] continued to engage in abusive relationships. Additionally, in the past [Diana] refused services designed to protect her children from continued abuse and neglect.”
Hearing – November 2, 2005
County counsel requested the matter trail until the afternoon because counsel was “going through the discovery” to give it to Erica. Alternatively, county counsel requested the matter be continued until after SSA had an opportunity to interview Shawn H., who was to be named an alleged father. Erica’s counsel objected, stating Erica was unwilling to waive time to her statutory hearing because she wanted Jeremiah to bond with his family. Counsel was concerned with the delay in placing Jeremiah with Diana, arguing Diana had been providing adequate care to Jeremiah’s brother for many years.
The court asked what was the problem with Diana, stating: “It would appear that if maternal grandmother has one child, what is preventing [her] from caring for this child?” County counsel responded the “problem” was Diana’s four substantiated child abuse reports. The court answered: “I keep saying that [Diana] has one
four-year-old sibling [of Jeremiah].” Jeremiah’s attorney stated the probate court was unwilling to support Diana’s request for placement until Jeremiah’s attorney “had an opportunity to read that 52 page [SSA] report.”
In addition, Jeremiah’s attorney informed the court the foster mother was claiming it was Diana’s intention to keep Jeremiah in child care while she worked and counsel believed this would be detrimental to the child. Erica’s counsel replied she knew Diana was no longer working and she planned to care for Jeremiah. Erica’s counsel requested “the court independently assess whether this child should be placed with the maternal grandmother.” She argued continuing the matter another six weeks was going to significantly delay Jeremiah’s need to bond with his family members.
The court continued the jurisdiction hearing to November 17. Erica’s counsel requested increased visits for Erica and Diana. Jeremiah’s attorney expressed concern the increased visits may “overwhelm” the foster mother. The court granted additional visits for Erica, but not Diana. Erica made an informal discovery request to determine the reasons why Diana was being denied relative placement. The court ordered the “discovery due on or before” November 15, 2005.
The Hearing – November 15, 2005
The minute order reflects Erica’s counsel requested this hearing after she failed to obtain the requested discovery. County counsel acknowledged there was a discovery request to disclose why Diana was denied placement. County counsel stated two written requests for documents had been forwarded by SSA’s custodian of records, but none of the requested documents had been delivered.
The court inquired when the discovery would be available because Erica “probably relied on the court order” that the reasons why Diana was denied placement would be revealed. The court noted the reports were confidential, but the investigative narratives indicating the actions taken by the social worker to substantiate the allegations could be disclosed. Erica’s counsel asked the court to examine the CARs in camera to determine if SSA’s reliance on them to deny placement was legitimate. The court trailed the matter to November 17.
Addendum Report – Filed November 16, 2005
Manchester reported Jeremiah was still placed with a foster mother. Erica was continuing to make progress in her reunification plan. Manchester said she met with Erica on November 7 and she “expressed dissatisfaction with what was written” in the November 2 report. Manchester said she explained, “the child’s safety and welfare was of the utmost concern[]” and “she did not believe, because of the fragile condition of the child, a placement with [Diana] was in the best interest of the child.” Manchester told Erica that SSA would continue to recommend to the court that Jeremiah should not be placed with Diana.
Manchester also reported she had met with the foster mother. The foster mother expressed concerns about the way in which Diana “‘handled the baby during visitation.’” She explained, “‘The baby is always agitated by these visits with [Diana] because [Diana] and [Erica’s sister, the maternal aunt] compete with each other to hold the baby . . . saying “Mom, you’ve had him for [10] minutes, it’s my turn now.”‘“ The foster mother said she had to tell Diana not to kiss the baby on the lips. She did not like it when Diana said things like “kissy, kissy, kissy, huggy, huggy, and moves him around.” The foster mother opined the visits were “really hard on the baby because it’s not calm and quiet. Erica is just the opposite. She is calm and quiet with the baby and doesn’t move him around.”
Finally, Manchester stated she spoke on November 9 with Holly Wookey, a placement social worker, who reported “she has left messages for [Diana] to contact Wookey” and make arrangement for a home assessment. Diana had not contacted Wookey “to date.” The report was signed November 10, but not filed until November 16. Therefore, in essence, Manchester was reporting Diana had not contacted Wookey within 24 hours.
The Hearing — November 17, 2005
The minute order reflects counsel and the court conferred regarding discovery issues. The court ordered SSA to redact all information in the CARs referring to the reporting party and give it to counsel. SSA was to give an unredacted copy of the CARs to the court to be sealed. The jurisdiction hearing was set for December 8, 2005.
Addendum Report – Filed November 29, 2005
Manchester reported Erica was continuing to make progress. The social worker informed Diana that Jeremiah’s maternal aunts could no longer visit due to his fragile condition. Diana stated she would abide by the new visitation parameters.
Jurisdiction Hearing December 8 – Jeremiah is four months old
Manchester’s report filed on this hearing date contained no new information. The court determined Jeremiah was a dependent child. It granted county counsel’s request for access to Erica’s mental health records, and granted a continuance for time to read the records. Erica objected to the continuance, arguing the case was set for a no time waiver trial which was already two months late. Erica requested return of the minor on a [conditional release to intense supervision program] CRISP. The court trailed the hearing to December 9. On that day, it trailed the matter again to December 12.
Hearing – December 12
The minute order reflects county counsel moved to have Erica’s mental heath records received into evidence. Erica objected. The court questioned Manchester about whether Erica’s confidential records had been disclosed to counsel. Manchester asserted counsel had not received the documents. Erica asked the court to keep the records under seal and remove the social worker from the case. The court decided to return the records to Manchester and ordered her to work overtime and “to exclude [the] medical records and 60 [percent] of other documents she could not read.” It also ordered Manchester not to discuss the contents of the subpoenaed records with other social workers or any other person in the agency. The court continued the hearing to the next day and it was subsequently trailed to December 19.
Hearing – December 19
The minute order states the social worker was ill and could not attend the hearing. Erica requested the petition be dismissed because the matter was set for a no time waiver trial. SSA agreed the original trial date was October 19, but argued the delays were not unreasonable. The court agreed and denied the motion to dismiss.
Amended Petition December 20 – Jeremiah is five months old
SSA filed an amended petition adding Erica’s depression and mental health problems as additional reasons why she was unable to care for Jeremiah. In addition, the petition alleged, “On or about September 20, 2005, Linda Martinez of Orange County Superior Court declined to appoint the child’s maternal grandmother as the child’s legal guardian pending further proceedings, and the family was referred to [SSA] for emergency response.”
Addendum Report – filed January 4, 2006
Jeremiah was placed in a different foster home on December 15. SSA recommended a CRISP release to Erica. Manchester completed a home assessment of Erica’s rented bedroom in a condominium shared with another family. She also spoke with Erica’s doctor who reported, “I think [Erica] is not stable enough to have the child returned to her. I need a couple more months to stabilize her. Her affect is very labile.” He stated Erica was going to try a new anti-psychotic drug. When Manchester asked if he thought the child would be at imminent risk if placed with Ericka, he replied, “I said she would not be able to care for the kid at this time. She is not stable. She is having manic symptoms. I can’t say there would be imminent risk because I don’t know that.” When the social worker attempted to explain CRISP, the doctor “abruptly ended the conversation, saying he had other clients waiting[.]”
Hearing — January 9 and 10
On January 5, Erica entered into a CRISP agreement. On January 10, the court found true the amended petition. It also approved the CRISP, authorizing funding for Erica’s medication over SSA’s objection.
Addendum Report – filed January 23, 2006
On January 12, Manchester went to Erica’s residence to discuss the CRISP agreement and she noticed Erica’s speech was slurred. The next day, Erica revealed her primary care physician and her psychiatrist had cancelled her appointments due to insurance problems. Manchester began searching for a psychiatrist who would accept Erica’s insurance. She used SSA’s petty cash to pay for one more week of prescriptions. Nevertheless, on January 16, Erica called Manchester in the morning, leaving the message, “I’m sorry, I can’t do it. I want you to come and get the baby.” Erica spent the day with her Alcoholic Anonymous (AA) sponsor to insure her safety.
Hearing and Addendum Report — filed February 23, 2006
The court removed custody of seven-month-old Jeremiah from Erica, and he was returned to his previous foster family. The court approved a family reunification plan and authorized an Evidence Code section 730 evaluation for Erica. Soon thereafter, Erica stopped participating in all services being offered. She was dropped from the Olive Crest program after she missed three appointments. She stopped visiting Jeremiah because she was using drugs and not testing.
Review Report Filed April 5, 2006 – Jeremiah is nine months old
On March 3, the case was assigned to social worker Patricia Berens-McCall (McCall). Erica had not appeared at any scheduled appointments and was not participating in any services. As for her psychological evaluation, Donald Smith reported Erica had missed the first three scheduled appointments. He stated Erica admitted she was addicted to a number of drugs and would require drug rehabilitation, parenting classes, anger management, and a psychiatric consult therapy. He added, “Developmentally, there appears no question [Erica] presents with multiple psychiatric dysfunctions and additions, which would interfere with her parenting capacity, at this time.” McCall offered the court a revised service plan to address Erica’s unique needs.
Report Prepared for the Six-Month Review – filed May 11 and June 7, 2006
It was reported Jeremiah appeared to be well adjusted in the care of his foster family. He was described as a happy baby. Erica was missing visits with her son, claiming to be ill or feeling tired. McCall noted Diana had visited Jeremiah three times. Erica was no longer drug testing or participating in any offered services. Erica admitted she was very unstable. Nevertheless, McCall recommended Erica receive additional reunification services to comply with her case plan and address the issue raised in her psychological evaluation. The court agreed and set the matter for a 12-month review hearing.
Addendum Reports – filed June 15 and July 18, 2006
McCall changed her recommendation, stating: “The undersigned believes that [Erica] does not realize the seriousness of her drug problem and mental health issues and has now been provided with ample time and resources to address these issues in therapy and a drug and alcohol program. [Erica] has not made substantial progress in her case plan since the beginning of the case, which indicates . . . [she] lacks motivation for the return of her son.” The social worker noted Erica had a habit of canceling visits with Jeremiah after confirming the evening before that she will visit. It was recommended services be terminated and a permanency hearing scheduled.
At the end of June, Erica was admitted to Western Medical Center for attempting suicide. Erica overdosed on her prescription medication, eating a handful of pills in front of her boyfriend. Jeremiah’s caretaker reported she believed Diana was trying to set up Karina into her own residence before the next court hearing so Karina could be considered as a relative placement option. Karina had an infant daughter, and the caretaker believed it was Diana’s plan to financially support Karina, her baby, and Jeremiah. Erica added she believed Diana would care for Jeremiah while Karina was at work.
McCall reminded the court that Diana was not an appropriate placement. She restated two snippets of information found in prior reports: (1) In 2005, the probate court expressed concerns about granting legal guardianship to Diana; and (2) Cole, a prior social worker, had already decided Diana would not be considered for relative placement based on her prior history of substantiated child abuse reports. It was noted Diana had been visiting Jeremiah.
Six-Month Review Hearing July 19, 2006 – Jeremiah is one year old
The court terminated family reunification services and set a permanency hearing for the beginning of November. On November 6, McCall submitted a report which revealed that on October 3, Jeremiah’s placement had changed. McCall reported Jeremiah still appeared to be well adjusted to his new home. In just one month, the new foster parents had grown to love Jeremiah and wanted to adopt him.
In McCall’s analysis of whether it was likely Jeremiah would be adopted, she noted he was a delightful and happy 15-month-old child who appears to be developing at an appropriate adjusted age level. She added, “The child has a half-sibling that has not been in the [SSA] system and lives with [Diana]. It is appropriate for Jeremiah to be placed apart from his half-sibling since he has not developed a close relationship with [him].” McCall acknowledged Diana continued to have weekly visits with Jeremiah.
Diana’s Motion for an Independent Assessment of Relative Placement – November 27
After the permanency hearing was continued to the end of November, Diana filed a motion asking the court to independently evaluate her as a placement resource under section 361.3 and Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023 (Cesar V.). Diana reminded the court that since the inception of this case, she and Erica have wanted Jeremiah to live with her and Eric. She asserted the probate court never denied her petition for legal guardianship, but only held further investigation was needed. Diana explained she was financially unable to obtain legal assistance to pursue the guardianship.
Diana stated she is a registered nurse and she possessed skills that would be beneficial to raising a premature baby. For the past five years, Diana had served as Eric’s legal guardian. Diana noted she had received some of the prior abuse reports SSA relied upon, but she had never been given an opportunity to respond.
Addendum report – filed November 30, 2006
McCall cut and pasted the same information regarding Diana that had been written in prior reports. She offered no opinion on whether Diana’s motion had merit. She reported the prospective adoptive parents are anxious to adopt Jeremiah. They were participating in services to address the child’s developmental delays.
Addendum Reports – filed January 3 and January 29, 2007
McCall reported Erica and Diana were visiting Jeremiah together. Erica was pregnant and experiencing health problems. On January 5, McCall prepared a referral she planned to “send to the Relative Assessment Unit upon receipt of completed Live Scan Forms.” However, several people in Diana’s residence refused to be “Live Scanned,” and Diana immediately started looking for a different residence. On January 23, Diana had found a new place to live and contacted the social worker. Diana was now renting an apartment and living with Eric, her daughter Karina, and Karina’s 10-month-old daughter.
In the rest of her report, McCall addressed each of the factors to be considered by the court in Diana’s motion under section 361.3. First, she cut and pasted the letter sent by Jeremiah’s first foster mother, who did not approve of the way Diana kissed and handled her grandson. This caretaker reported Diana was hostile and argumentative and she would question the level of care the child was receiving. This caretaker also did not like how Diana would allow other family members, including children, to interact with and hold Jeremiah.
Next, the social worker copied a letter from Jeremiah’s occupational therapist, who stated the child continues to deal with developmental delays. The therapist wrote Jeremiah’s “prospective adoptive parents have consistently taken a strong interest in his development. They follow through with all recommendations . . . . More importantly, they give Jeremiah love and emotional support and he obviously views them as his parents. He has made excellent progress while in their care. . . . In my opinion, it would be detrimental for his overall development if he were forced to adjust to yet another new environment.” McCall noted the treatment is essential to Jeremiah’s development and Diana “does not have the knowledge of the child’s treatments.”
McCall also copied for the court a heartfelt letter written by the prospective adoptive parents, stating all the ways in which they have been caring and working with Jeremiah to help him thrive and be happy. These parents asserted they have a lot to offer Jeremiah, who “is a very special little boy who has won our hearts!”
The report included the contents of a letter written by Jeremiah’s second foster care mother, who monitored visitation between Jeremiah and Diana. This caregiver stated she felt “it necessary to share with the court [her] observations during this visitation.” She explained, Jeremiah was a “fragile infant.” He was very jittery and startled violently at loud noises. This caretaker observed Diana was very aggressive and acted inappropriately around the baby. She gave the following examples: (1) Diana would “frequently, forcefully and aggressively kiss his cheeks, one after the other repeatedly, whether or not he was ‘ready’ for it or enjoying it. . . . [He] appeared to be very bewildered with the way he was being handled[]”; (2) Diana did not appear to care that she had scared Jeremiah, but rather would take pictures of his startled face with her cell phone camera; (3) On one occasion, Diana forcefully and roughly wiped Jeremiah’s chin and neck with a burp rag causing the foster mother to become “alarmed and almost got up to take him away from her[]”; and (4) When Jeremiah was a little older, Diana would play a game with him that was physically rough. She would hold him under his arms and swing forward his legs to kick a small ball around the floor. “The behavior of her handling of him was inappropriate and seemed very unnerving to him.”
McCall questioned Diana’s ability to provide Jeremiah with the appropriate specialized care. She conceded Diana had stated she was willing to give Jeremiah his treatments, but she “has not stated her total commitment to this child. [Diana] has other small children in the home that require attention.” McCall reported Erica believed Diana should care for Jeremiah because she is Eric’s guardian. Diana also stated she believed it would be better for Jeremiah to be placed with his brother. She said Eric would also benefit. However, McCall believed Diana had shown poor judgment in caring for Jeremiah. She referred to a recent report by Jeremiah’s caretaker, who stated Diana often spends the entire visitation time feeding the child, even after being told the child recently ate and should be full. McCall did not approve of Diana’s plan to have Karina care for Jeremiah while she was at work. McCall expressed concern about the level of care Karina could provide while also looking after her own 10-month-old daughter who has learning disabilities.
Diana told the social worker she feels “she can provide a safe, secure, and stable environment for the child.” To rebut Diana’s contention, McCall cited to the CARs concerning sexual abuse by Diana’s ex-boyfriend. McCall stated that based on Diana’s history of being unable to protect her children from her ex-boyfriend, she questioned whether Diana could protect Jeremiah from Erica in the future.
McCall concluded Diana was an inappropriate placement, stating, “Although [Diana] has moved into her own apartment and has a stable job, the undersigned has concerns regarding the home environment the child would be placed in. The child is currently placed in an adoptive placement with two parents that are loving and nurturing. [Diana] is single with her daughter and granddaughter living with her as well as . . . Jeremiah’s half-sibling. [Diana] should be commended for taking . . . Eric under legal guardianship. [¶] . . . Jeremiah has no relationship or attachment to [Diana] and it would not be in the best interest to move the child into a new environment. The child is currently in a structured environment and receiving a lot of needed attention for his therapy and mental/physical development.”
Motion by Foster parents for De Facto Parent Standing – February 8, 2007
The foster family’s application included much of the same information used by McCall in her report. The family recounted all the activities they like to do together. They have learned Jeremiah’s likes and dislikes, how he communicates, and what things interest him. “We have come up with a daily routine that we feel has helped him to adapt to his new environment and has given him structure in his life.” The court granted the foster family de facto parent status.
Addendum Report – filed February 8, 2007
McCall begins by stating the reason for this report is to provide the court updated information “with the goal of ruling out [Diana] . . . for placement of [the] child.” She listed the same prior CARs, but this time added additional bits of information she summarized from some, but not all, of the original report narratives. For example, the March 1994 report was deemed inconclusive for general neglect. McCall noted that according to the report narrative Diana expressed frustration about Erica’s behavior, but refused services by indicating she was too busy working.
The substantiated report for physical abuse dated August 1995 was based on Erica’s statements to a worker at a shelter. Erica claimed Diana struck her with a coat hanger, but the marks were no longer visible. She also said her father physically abused her prior to her parents’ divorce. Diana admitted she hit Erica with a hanger, but denied leaving any marks. Diana’s other children said their mother would sometimes hit them with her hand, but that she never left marks or bruises.
The February 1996 report was found inconclusive for physical abuse. McCall summarized from the narrative that during a hospital evaluation Erica claimed she was physically abused with brooms, plastic hangers, and keys. Karina had confirmed Diana hit with plastic hangers in the past, but she no longer used them. Diana denied abusing the children. She admitted a prior incident of domestic violence involving her ex-boyfriend, but claimed there were no more problems.
The July 28, 1996 report “was unknown at conversion for physical abuse.” The report narrative indicated a “slight bruise” was found on Erica’s arm while she was on hold at the hospital. She said Karina hit her 20 times during a physical altercation and Karina told Erica she would kill her. A few days later, a report for caretaker absence was deemed inconclusive. The narrative revealed Diana refused to pick up Erica or arrange for relative placement for Erica after her release from a hospital hold. Erica was hospitalized after breaking every dish in Diana’s home and for fighting with Karina. Diana “agreed to receive [f]amily [m]aintenance non-court services, but never followed through.”
In 1999, there were several reports relating to abuse and domestic violence regarding Diana’s ex-boyfriend. Diana obtained a restraining order. Karina and her brother Gustavo were diagnosed with depression, took medication, and they were attending counseling. The medical center recommended the children be separated, but Diana did not comply.
In 2002, there was an inconclusive report of abuse regarding Eric. He was dropped by a babysitter. Also in the narrative, Diana’s children confirmed they were disciplined by receiving a time out or being hit by a belt. It was reported Teresa had been hit by the belt because “she can get so out of control and has difficulty listening.” Diana admitted using a belt in the past, but denied causing any injury. In 2003, Erica and Karina were involved in a physical altercation, leaving bruises. “They have both pulled knives on each other.” Diana admitted she had no control over Karina’s behavior.
Hearing on Motion for Relative Placement – March 6, April 3, 4, 5, and 6, 2007
The court started the trial by considering Diana’s relative placement motion. Erica raised a hearsay objection when county counsel moved to introduce McCall’s recent reports. Diana’s attorney also objected, arguing she did not have the original CARs referred to extensively in McCall’s reports. County counsel argued Diana was not a party and, therefore, could not see the reports. Erica’s counsel argued Diana was a party on the motion she filed. The court asked whether Diana needed to file a section 827 request before accessing the records. Diana’s counsel replied this motion would be futile because the reports were not part of the record. The court decided Diana could cross-examine the social worker, but she did not “qualify as an individual who can receive the contents of those reports.” The court told the parties they could not share their copies of the reports with Diana or her counsel.
Diana started the hearing by cross-examining McCall, who admitted she only copied certain portions of the CARs in her reports. McCall conceded she never visited Diana’s home, and she did not speak to any family members other than Erica. Diana’s counsel attempted to cross-examine the social worker about the 1995 CAR, but county counsel objected to every hypothetical question that was asked. The court sustained the objections, reasoning the hypotheticals were incomplete because there were “too many unknowns within that set of facts . . . .” Diana’s counsel noted that she did not know any additional facts because she was precluded from viewing the reports. She opined she would be unable to effectively cross-examine the social worker.
Over county counsel’s objection, the court allowed Erica’s counsel (who was privy to the contents of the reports) to continue McCall’s cross-examination. McCall testified she was assigned to the case in April 2006, when Jeremiah was eight months old. She claimed she did not initially know Diana or Karina wanted placement of Jeremiah. She did not know if any other social workers had ever visited Diana’s home. McCall said she did not consider Diana for placement because she believed Diana had previously been rejected by the dependency and the probate court. When counsel showed McCall an earlier SSA report stating the probate court had not ruled on the matter, McCall could not remember reading that statement. She did not know the probate court had lost jurisdiction over the case after the dependency case was filed.
McCall opined Jeremiah did not have “a real relationship” with Diana, but she believed the child was bonded with his present caretakers over the past five months. McCall reasoned a placement change was not appropriate because Diana wanted only legal guardianship and the caretakers were committed to adopting Jeremiah. However, upon further cross-examination, McCall admitted she never asked Diana if she wanted to adopt Jeremiah if the child had to be adopted by someone. McCall stated Diana had not visited Jeremiah consistently his entire life. She said Diana did not visit him in the beginning, but she couldn’t recall which months. Later in the hearing, McCall stated Diana had missed approximately half of the time she was scheduled to visit. However, after closer examination of her notes, McCall conceded Diana actually only missed three scheduled visits.
The cross-examination concerning the CARs revealed McCall’s summaries of these past incidents often left out information or included information from sources other than the official reports. For example, when being questioned about the CAR dated March 1994, McCall stated Diana refused services from SSA because she was too busy working. However, this information was not contained in the CAR, but rather it revealed Diana requested SSA’s assistance after indicating she could not afford counseling. McCall indicated she may have copied the “too busy” statement from Manchester’s prior summary of that CAR. When asked why she failed to include information from the official report showing Diana had in fact requested counseling, McCall replied, “Because I just summarized it.” She explained she had cut and pasted from “so many different documents,” she could not remember where specifically each fact came from. McCall believed the record overall showed Diana had refused services.
Another example of misleading reporting was with respect to the CAR dated April 17, 2003. McCall reported the argument between Erica and her sister involved knives. This information is not contained in the CAR. When McCall was shown the CAR regarding this incident, she said she had never seen that particular report before. She explained her account of the incident included facts not found in the reports but may have been based on information she gathered from conversations with Diana.
We need not repeat every fact uncovered during cross-examination, because suffice it to say Erica’s counsel’s cross-examination was very thorough and uncovered many incorrectly reported facts. It was also revealed that the January 26 and February 3 CARs were identical reports and erroneously counted as two separate incidents.
McCall admitted she sometimes cut and pasted the descriptions of the CARs used by a previous social worker, rather than copying information from the original source. She also conceded Erica’s mental illnesses could have been contributing factors in many of the CARs filed against Diana. She recognized the occupational therapist, who clearly supported the foster family, had never actually spoken to or seen Diana. McCall clarified her statement Diana did not have knowledge of Jeremiah’s treatments was based on McCall’s and the therapist’s failure to provide that information to Diana. Finally, McCall conceded she had no reason to believe Diana could not implement the instructions if she had been given the information.
Next Diana testified. She confirmed the information contained in her motion. She had sought placement of Jeremiah since his birth. She had come to juvenile court many times, but was not permitted inside the courtroom. She verified her occupation as a licensed vocational nurse, and she added she worked previously as a medical assistant in a pediatric office for 16 years. She denied abusing or assaulting her children. Diana said Erica had been hospitalized many times throughout her life, and each time Erica was in a psychiatric facility they together participated in counseling.
Diana said she missed two visits with Jeremiah because she became lost in Los Angeles, and six visits were cancelled because Jeremiah was sick. Jeremiah’s brother was not permitted to visit him, and Diana’s requests for additional visits were denied. Because Manchester had wanted to reduce her visitation time, Diana decided it was better not “to push it.”
When Diana said she could not remember the alleged child abuse incidents, the court permitted her to look at the CARs to refresh her recollection. After some discussion on the record, Diana’s counsel was given copies of the reports to review and use.
Diana’s 22-year-old son, Gustovo testified she was never abusive to him or his siblings. He lived at home until he was 18, and now attended college. He recalled Diana tried to get Erica help for her problems by taking her to institutes, doctors, psychologists, and psychiatrists.
Diana’s 19-year-old daughter, Karina, testified she and her baby live with Diana. Karina reported Diana never neglected or abused her children. She said Diana was taking good care of Eric, who was now five years old. She recalled Erica was very rebellious growing up, but Diana handled the situations well.
Before giving its ruling the court noted, “[C]ertainly an issue that has popped up is what I’m going to call the trigger issue and that is considering the issue of relative placement. . . . There is a large amount of discussion centered around this issue of trigger. Should [Diana] have done more? Should the agency have done more? What is the trigger? . . . [¶] And obviously, the most easy issue of the trigger is the motion that was filed by [Diana]. So there is a dispute as to should this have been raised earlier at disposition? Was there the opportunity? Certainly . . . at the six-month review [hearing there was] an opportunity, yes. Is it waived? Very possibly, [a]nd certainly an argument could be made that [Diana] just wasn’t able to make that argument adequately for a multitude of reasons. In any event, the issue is certainly triggered by the motion [for an independent assessment of relative placement] that was filed in 2006.” The court stated it would “make that independent assessment” and would “comment on whether or not that is necessary or not. But in any event, I’m going to make that determination.”
The court noted SSA relied on the prior CARs to reach the conclusion Diana would be an inappropriate placement “when the triggers were there for that consideration.” It stated it was making an independent assessment based on the testimony in court. It found troubling Diana’s failure to provide explanations for the incidents described in the CARs or her denial certain events took place. The court stated Diana, Gustavo and Karina were “poor historians.”
The court concluded Jeremiah was in a stable environment and he was thriving in a loving home. It reasoned, “The difficulty is that [Diana’s] equating best interest with the fact that [Jeremiah] is merely family. It certainly is a component of considering this, but I would have to remove this child to put him in a placement that the court finds to be inappropriate based upon the factors that I’ve outlined in my independent assessment. I based it on the CARs and the behavior that was observed and chronicled within the reports, as well as the testimony that I received. [¶] I found issues of credibility with respect to the testimony that I received on the information surrounding the CARs and the comments that were noted in the reports with respect to the behavior exhibited during the visits and such. So [it would be an] inappropriate placement. But even if it was an appropriate location, the interests of the child are not served by changing his placement. And as a result, the court is denying [Diana’s] request for placement.”
II Legal Analysis
A. Relative Placement Preference General Rules
“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 . . . .” (Cesar V., supra, 91 Cal.App.4th at p. 1033.)
Specifically, the court and the social workers are required to consider: “(1) The best interest of the child. . . . [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] (3) [T]he Family Code regarding relative placement. (Fam. Code, § 7950,)] [¶] (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. . . . [¶] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [¶] (6) The nature and duration of the relationship between the child and the relative, and the relative’s desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. [¶] (7) The ability of the relative to do the following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶] (B) Exercise proper and effective care and control of the child. [¶] (C) Provide a home and the necessities of life for the child. [¶] (D) Protect the child from his or her parents. . . . [¶] . . . [¶] (8) . . . [¶] In this regard, the Legislature declares that a physical disability . . . is no bar to the raising of children, and a county social worker’s determination as to the ability of a disabled relative to exercise care and control should center upon whether the relative’s disability prevents him or her from exercising care and control.” (§ 361.3, subd. (a)(1)-(8).)
“[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 Welfare and Institutions Code section 16000 that a child live in the least restrictive and most family [] like setting possible.” (In re Antonio G. (2007) 159 Cal.App.4th 369, 377, internal quotation marks omitted.)
When considering the relative placement factors, “‘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 section 358.1.’ (§ 361.3, subd. (a)(8).)” (Cesar V., supra, 91 Cal.App.4th at p. 1033 .) “[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.)
Finally, we note the “preferential consideration” articulated in section 361.3 “does not create an evidentiary presumption in favor of a relative, but merely places the relative at the head of the line when the court is determining which placement is in the child’s best interests[.]” (In re Sarah S. (1996) 43 Cal.App.4th 274, 286, citing In re Stephanie M. (1994) 7 Cal.4th 295, 320-321 (Stephanie M.) We review a juvenile court’s custody placement orders under the abuse of discretion standard of review; the court is given wide discretion and its determination will not be disturbed absent a manifest showing of abuse. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, superseded by statute on another ground as stated in Cesar V., supra, 91 Cal.App.4th at p. 1032.).) “Broad deference must be shown to the trial judge. The reviewing court should interfere only ‘“if we find that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.” [Citations.]’ [Citation.]” (Ibid.)
B. Jeremiah’s Best Interests
As discussed above, in assessing a relative’s request for placement, the court considers not only the relative’s home but also the best interests of the child. (In re Antonio G., supra, 159 Cal.App.4th at p. 377.) “The overriding concern . . . is not the interest of extended family members but the interest of the child. ‘[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected.’ [Citation.] Section 361.3 does not create an evidentiary presumption that relative placement is in a child’s best interests. [Citation.] The passage of time is a significant factor in a child’s life; the longer a successful placement continues, the more important the child’s need for continuity and stability becomes in the evaluation of [his] best interests. [Citation.]” (In re Lauren R. (2007) 148 Cal.App.4th 841, 855.)
From our review of the record, we find that the juvenile court’s decision denying placement of Jeremiah with Diana was well within the court’s discretion. Jeremiah was removed from his mother’s custody at birth. At the time of the hearing, he was 20 months old, and had been in three different placements. For the proceeding six months, Jeremiah had been living with foster parents who had grown to love him and wanted to adopt him. It was undisputed Jeremiah is happy and thriving in this environment. He exhibited a strong attachment to his prospective adoptive parents. His occupational therapists opined it would be detrimental for him to endure another placement change. The court could reasonably find it was in Jeremiah’s best interests to remain in his stable placement at this point in time. “[T]he fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected.” (Stephanie M., supra, 7 Cal.4th at p. 321.) It cannot be said the court abused its discretion by concluding that even if Diana was an appropriate placement, Jeremiah’s best interests would not be served by changing his placement.
We recognize the focus of the appellants’ briefing attacks the court’s determination Diana was an inappropriate placement. Diana focuses on the evidence supporting placement with her and criticizes the weight and character of the other evidence. We agree Diana proved she loves Jeremiah and presented evidence to show she is likely capable of caring for him and his brother. But there were two other important factors for the court to consider: (1) “[t]he nature and duration of the relationship between the child and the relative” (§ 361.3, subd. (a)(6)); and (2) the ability of the relative to “[p]rotect the child from his or her parents” (id., subd. (a)(7)(D)). Neither of these factors favored placement with Diana.
Due to his young age, Jeremiah experienced limited interactions with Diana. She has been a friendly weekly visitor, but under the circumstances there is no evidence they established a more meaningful relationship. The court reasonably considered the opinions of two former caregivers who believed Diana failed to calmly and carefully handle Jeremiah when he was a fragile premature baby, calling into question whether the nature of the relationship was positive for Jeremiah. (§ 361.3. subd. (a)(6).)
As for the second factor (§ 361.3, subd. (a)(7)(D)), Diana asserts she can protect Jeremiah from his mentally ill and “aggressive” mother. However, we find the court reasonably could question her ability to do so in light of the 2003 CAR which was substantiated for general neglect. The CAR reported violence occurring while Erica was visiting Eric at Diana’s home. Erica and her sister were involved in a physical altercation, and although Diana was eventually able to separate them, the court reasonably gave considerable weight to the findings of that social worker. It also considered Diana’s testimony that Eric has witnessed violent arguments “a couple [of] times” between Erica and Karina. Diana said she stopped Erica’s visits for awhile because “Erica was always upset or throwing her tantrums or getting aggressive . . . . I think it was when she was on drugs she would become more aggressive.” Diana explained she tried to make sure Erica was “in a good state” before coming to visit and “she doesn’t come to the house unless I give her permission.” But there was evidence that raised a doubt as to Diana’s capacity to detect when Erica is unstable, and consequently her ability to protect Jeremiah from his mother’s violent outbursts.
Finally, Diana challenges the court’s conclusion that she, Karina, and Gustavo proved to be “poor historians.” In particular, the court questioned Diana’s credibility due to her inability to remember or discuss, in any detail, her past interactions with SSA and the incidents underlying the various CARs. The court recognized Erica’s mental illness was at the root of many of the reports, but was concerned about the family’s apparent unwillingness to provide details to the court about what exactly happened. “Our job is not to reweigh the evidence. The juvenile court, sitting as trier of fact, heard the witnesses testifying and was in a better position than we are to adjudge their testimony.” (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 864.)
We commend Diana for her efforts to raise her grandchildren and we appreciate her strong interest in raising Jeremiah with his brother Eric. But given the above circumstance, including the late stage of these dependency proceedings, it was reasonable for the court to find removing Jeremiah from his prospective adoptive parents would not be in his best interests. We conclude that the juvenile court did not abuse its discretion in denying the relative placement preference motion.
C. Due Process Concerns
Erica and Diana both argue the court’s failure to provide Diana with copies of the CARs violated her due process rights because she was not given an opportunity to be heard in a meaningful manner. We find any error was harmless.
County counsel asserts any due process violation was harmless because Diana’s motion was untimely. They argue the request was made when no placement change was necessary and she “exceeded the procedures to which she was entitled.” The simple answer to this contention is found in the court’s concluding remarks. In light of the history of the case and the recent change of placement, the court decided to consider Diana’s relative placement motion. And because the juvenile court chose to conduct a full hearing on the matter, the moving party (Diana) would necessarily be entitled to due process and a fair proceeding.
The parties dispute whether Diana had a right to receive copies of the CARs. While the parties agree Penal Code section 11167.5, subdivision (b)(11), allows for disclosure of CARs to persons named in the reports, county counsel argues this issue was waived because Diana failed to make her request under this statutory provision. The parties dispute whether it was necessary for Diana to make her discovery request under section 827. However, we need not decide this issue in the case before us. Assuming, for the sake of argument, the court erroneously failed to provide Diana copies of the CARs before trial, any error was harmless in light of what occurred at the hearing and the basis for the court’s ruling.
First, any difficulty Diana’s counsel encountered in cross-examining the social worker about the CARs was essentially cured by the subsequent cross-examination by Erica’s counsel (who possessed copies of the reports). We have reviewed her thorough cross-examination spanning two days and over 80 pages of the reporters’ transcript. Erica’s counsel brought to light the inconsistencies and errors in the reports. On appeal, the parties do not claim anything was missed or that a relevant question was not asked. In addition, Diana’s testimony was not compromised by not having the CARs. Diana received a summary of the CARs from the social worker’s report before the hearing. And the court permitted Diana to view the CARs while she was testifying, to help refresh her recollection. Her counsel was provided copies of the CARs. Diana testified about each CAR, and her children were also permitted to give their version of each incident. She offers no explanation as to how her testimony or presentation of the evidence would have been different if she had been given the CARs earlier.
Second, the court specifically concluded that even if Diana were an appropriate placement, it would not be in Jeremiah’s best interest to change his placement. Thus, even if the best case scenario had occurred and Diana had been given the reports before the hearing and successfully proved she was an appropriate placement, we would not disturb the court’s ruling. As discussed in some detail above, Jeremiah had bonded with a loving adoptive family who were committed to protecting him and addressing his special needs.
D. Standing
In a footnote, county counsel argues that while Diana undoubtedly has standing to appeal the court’s order, Erica does not. It cites the Cesar V. case. True, in Cesar V., supra, 91 Cal.App.4th at p. 1035, the court determined a parent lacks standing to appeal the relative placement issue. However, county counsel apparently failed to finish reading the court’s entire analysis of the issue. It determined the father, Cesar, could not “‘urge errors which affect only another party who does not appeal’ [Citations.] But [the paternal grandmother seeking relative placement] properly placed the issue before us, and Cesar has formally joined in her arguments; furthermore, by stipulation of the parties and with the juvenile court’s acquiescence, Cesar extensively litigated the issue below. Under these circumstances, Cesar will be permitted to support [the paternal grandmother’s] position with arguments of his own. [Citation.]” (Ibid.) Similarly here, Diana properly placed the issue before us, and Erica has requested in her brief permission to support Diana’s position with arguments of her own. Like Cesar, Erica extensively litigated the issue below. We will consider her arguments in this appeal.
E. The Doctrine of Disentitlement
Diana argues the doctrine of disentitlement should have prohibited SSA from participating in this appeal. “The disentitlement doctrine is based on the equitable notion that a party to an action cannot seek the assistance of a court while the party ‘stands in an attitude of contempt to legal orders and processes of the courts of this state. [Citations.]’ (MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277 . . .) A formal judgment of contempt, however, is not a prerequisite to exercising our power to dismiss; rather, we may dismiss an appeal where there has been willful disobedience or obstructive tactics. [Citation.]” (In re Claudia S. (2005) 131 Cal.App.4th 236, 244.)
The doctrine has been applied in dependency cases involving children abducted by the party seeking to appeal the juvenile court orders. (E.g., In re Kamelia S. (2000) 82 Cal.App.4th 1224 [a father absconded with his daughter, a dependent child whom the juvenile court had placed in a foster home].) The doctrine also has been applied when a party frustrates the ability of another party to obtain information it needs to protect its rights. (E.g., In re C.C. (2003) 111 Cal.App.4th 76, 85-86, [mother’s refusal to participate in a psychological evaluation interfered with the child’s legal right to have her case proceed to the permanency planning stage].)
In this case, Diana seeks to have the doctrine applied against SSA due to the social workers’ failure to perform their “professional, ethical duties” to prepare reliable reports. We agree, McCall’s decision to cut and past from prior reports, rather than evaluating the original documents, and her failure to recall where she found certain information is certainly not the gold standard. Diana also correctly points out the social workers in this case failed to comply with the spirit of section 361.3 by refusing to immediately evaluate her or give her “preferential consideration” for relative placement and subsequently ignoring the court’s order to conduct an independent evaluation of her. Nowhere does the statute authorize SSA to automatically reject a relative having a prior substantiated CAR. (See In re Antonio G., supra, 159 Cal.App.4th at p. 378 [agency’s automatic rejection of relative “was not only legally incorrect, it also deprived [the relative] of a ‘fair chance’ to be the children’s caretaker”].) Here, SSA’s initial decision to ignore a relative who had been the legal guardian of Jeremiah’s sibling for four years concerns us greatly.
Needless to say, we are disappointed with SSA’s overall performance in this case. The record reflects the court first ordered SSA to independently interview Diana and review her home at the detention hearing in September 2005. SSA essentially ignored this order, despite being reminded of it by the court on at least two occasions. We strongly urge courts to take effective action when it appears SSA is ignoring its duties under section 361.3 (or any statutory provision). However, we will not apply the doctrine of disentitlement because our purpose in reviewing this case is not to punish SSA, but to ensure Jeremiah’s best interests are protected. Despite SSA’s substandard performance, we affirm the orders made in this case because the record support’s the court’s ruling a change in placement at this time would not be in Jeremiah’s best interests.
III Disposition
The orders are affirmed.
I CONCUR: SILLS, P. J.
Aronson, J., Concurring.
I concur with the majority opinion’s best interests analysis concerning Jeremiah’s current placement and, in my view, we need proceed no further. Specifically, I would not reach, for two reasons, the question whether Diana’s home might also have proven safe and appropriate. (Maj. opn. ante,at pp. 26-28.) First, Orange County Social Services Agency’s (SSA) recalcitrance in evaluating Diana for placement, including failure to perform a home study, compromises any reliance we might place in (1) the “nature and duration” of the relationship that evolved between Diana and her grandson or (2) her ability to “protect the child” from Erica, Karina, or others. (Welf. & Inst. Code, § 361.3, subd. (a)(6) & (7)(D); all further undesignated section references are to this code.)
Second and more fundamentally, despite SSA’s failings, the procedural posture on appeal calls for deferential review of the juvenile court’s best interest determination and not a more searching inquiry, however tempted we might be to engage in one. Diana’s motion amounted to a petition to modify placement. (§ 388.) On appeal from denial of a modification petition, the “‘“reviewing court will not disturb the decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].”’” (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).) The standard governing the juvenile court’s evaluation of a modification petition is simply the child’s best interests. (See In re Alexis W. (1999) 71 Cal.App.4th 28, 36 [party seeking modification “has the burden of showing not only that circumstances have changed, but that [proposed change] would be in the child’s best interests”].) “[A] primary consideration in determining the child’s best interests is the goal of assuring stability and continuity. [Citation.]” (Stephanie M., at p. 317.)
Notably, Diana made her relative placement motion in November 2006, well after the juvenile court terminated reunification services. Once the juvenile court terminates reunification services, as it did here in July 2006, “the child’s interest in stability is the court’s foremost concern,” outweighing the family interest in reunification. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348; see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419 [dependent children entitled to permanency “to get on with the task of growing up”].) Stated differently, in the postreunification period, the child’s best interests no longer necessarily coincide with family interests in returning the child home. Instead, despite family interest in reunification, the child’s need for continuity and stability, as here, will “often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.’ [Citations.]” (Stephanie M., supra, 7 Cal.4th at p. 317.)
True, the juvenile court ordered SSA to interview Diana and physically inspect her home back in September 2005 before the first jurisdiction and disposition hearing. SSA made only minimal effort to comply with that order, initiating a referral for a home study in November 2005 but letting the matter sit until January 2007, when Diana notified the agency two of her housemates refused a background check. In the interim, SSA had satisfied its reunification obligation by returning Jeremiah to Erica’s care under a conditional release to intense supervision program (CRISP) agreement in January 2006.
The record does not suggest Diana stepped forward to request placement when the CRISP failed in mid-January 2006. Nor did Erica or Diana protest Jeremiah’s placement with a foster family. Neither Erica nor Diana sought to modify Jeremiah’s placement during the ensuing reunification period. A social worker reminded the juvenile court in an interim report that SSA continued to view Diana as an inappropriate placement, but neither Erica nor Diana challenged Jeremiah’s ongoing foster placement or the reasonableness of SSA’s actions with a writ petition following the court’s termination of reunification service in July 2006. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150-1151.)
The social worker believed, based on a report from the foster mother, that Diana planned to find a residence for Karina and propose her for relative placement, but no such request materialized. By the time Diana filed her motion for relative placement in November 2006, 16-month-old Jeremiah had already spent the first two months of his life in the hospital and the remaining period moving among several different foster families. The juvenile court could reasonably conclude the continuity and stability Jeremiah finally obtained with his prospective adoptive parents served his best interests, outweighing the upheaval that would result from another trial family placement, this time postreunification. I therefore concur we should affirm the juvenile court’s order denying Diana’s motion for relative placement.