Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK 78284, Jacqueline Lewis, Commissioner.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant N.A.
Joseph D. Mackenzie, under appointment by the Court of Appeal, for Defendant and Appellant N.R.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
FLIER, J.
Mother, N.A., and father, N.R., appeal from the dependency court’s findings and orders respecting their three children, Nh.R., Ne.R., and Ni.R. At the time they were detained, Nh.R. was 13 months old and her siblings, twins Ne.R. and Ni.R., were five months old. Mother appeals the court’s findings and orders adjudicating the children dependents of the court and removing them from parental custody. Father, with whom mother joins, appeals from the court’s order refusing to place the children in the care of a relative. We affirm in part and reverse in part.
FACTS
Respondent Los Angeles County Department of Children and Family Services (DCFS) became involved with the family in July 2009, after an emergency room physician examined Ni.R. and found he had a fractured left femur. The emergency room physician reported that father’s explanation of how the injury occurred was inconsistent with the nature of the injury. Ni.R.’s attending physician indicated a femur fracture to an infant of that age would require “a decent amount of force.” At the time of the injury, the children and their parents lived in a room in the paternal great-grandparents’ home, in which other family members also resided.
Father told the emergency room physician he and the children were napping in the same bed, and he believed 13-month-old Nh.R. may have awakened, started jumping on the bed as she often did and accidentally fell on her brother. Father stated he was not aware anything was wrong until after awakening from his nap, when he attempted to change Ni.R.’s diaper and the child cried harder when his leg was touched.
Father denied being under the influence of any illegal drug at the time. He disclosed that marijuana was his drug of choice but asserted he had not used it for the last two or three days.
When interviewed, mother stated she was visiting her own mother when Ni.R. was injured, and Ni.R. was fine that afternoon when she left home. Mother admitted she was a drug user and that her drug of choice was marijuana. She stated she last had consumed marijuana the week before, and she denied doing drugs in her children’s presence.
Upon observation, the child’s siblings appeared happy, well fed and free of suspicious marks or bruises. Aside from his injuries, Ni.R. too appeared to be a well fed child.
Nh.R. and Ne.R. were removed from the family home and detained while Ni.R. remained hospitalized.
PROCEDURAL HISTORY
1. Petition and Detention
DCFS filed a petition under Welfare and Institutions Code section 300 alleging that Ni.R. had been medically examined and found to be suffering a detrimental condition a fractured femur that was not consistent with father’s explanation of the manner in which the child sustained an injury. The petition sought relief pursuant to section 300, subdivisions (a) (serious physical harm) and (b) (failure to protect) as to the three children, subdivision (e) (severe physical abuse to a child under five years) as to Ni.R. and subdivision (j) (abuse of sibling) as to his siblings.
All further statutory references are to the Welfare and Institutions Code.
The dependency court ordered the children detained in the home of any appropriate relative or nonrelated extended family member. The parents were granted reunification services and DCFS was directed to provide them with referrals for parenting, individual counseling and drug rehabilitation with random testing.
The twins, Ni.R. and Ne.R., were placed together in one foster home, with Nh.R. placed in another. DCFS investigated the possibility of placing the children together in a relative’s home, but it was unable to find a suitable relative placement. The court ordered the children to remain detained in foster care pending the jurisdictional and dispositional hearing.
2. Jurisdictional and Dispositional Report
For the jurisdictional and dispositional hearing, DCFS reported that an examination of Ne.R. noted no physical problems or complaints. Nh.R.’s examination indicated she was developing normally and on target with developmental milestones. Although twins Ni.R. and Ne.R. were chronologically six months old at the time of examination, they had an adjusted age of three and a half months due to their gestational age. They were expected to be slightly delayed developmentally during infancy but to be on target as toddlers.
Ni.R.’s attending physician at Memorial Care reported the mechanism of Ni.R.’s injury was not known, and she recommended the child undergo a skeletal survey and an evaluation by child protective services to determine whether the trauma was accidental or nonaccidental. She stated that if the older sibling jumped on the bed and landed on Ni.R.’s leg, “it is possible for blunt trauma to cause a transverse femur fracture.”
After reviewing the attending physician’s report, a special victims bureau detective concluded it was possible for Ni.R.’s injury to be caused in the manner described by father.
About this time, Ni.R. was found to have suffered a fracture to his right posterior parietal skull in addition to a broken left femur. The child was referred to neurosurgery for skull fracture management and to orthopedics for femur fracture management. He was also referred to Regional Center services for monitoring due to concerns about autistic-like behaviors.
DCFS requested and obtained additional time from the dependency court to complete assessments, including skeletal surveys, for Ni.R. and Ne.R.
The matter proceeded to mediation on September 15, 2009, and to trial setting after the matter did not settle.
3. Relative Placement and Skeletal Report
On October 26, 2009, the dependency court ordered DCFS to prepare a supplemental report to address the children’s skeletal exams and possible placement with their paternal grandmother.
DCFS informed the court in a “Last Minute Information” that the paternal grandmother’s home was undergoing an ASFA (Adoption Safe Family Act) evaluation and she had enrolled in an “F-Rate” class to ensure she could properly care for the children in light of the twins’ developmental delays.
The department also reported it had received a skeletal study report on Ni.R. from Dr. Sara Stewart of the University of California, Los Angeles, Harbor-UCLA Child Crisis Center. Dr. Stewart conducted an examination of Ni.R. on September 9, 2009, and reviewed his medical and dependency records.
Dr. Stewart opined: “There is little data... to estimate the degree of force that would be required to cause a fracture in an infant such as [Ni.R.], ” who was “an infant less than one year of age with a history of osteopenia who has been on appropriate therapy for several months.” The doctor opined, however, that “[g]iven the radiographic appearance of [Ni.R.’s] bones and the fact that his alkaline phosphatase and calcium level were normal at the time of his fracture diagnosis, it seems unlikely that he sustained these fractures in the course of routine infant care. I do not feel that I can estimate the amount of force that would be required to cause the skull and femur fractures in [Ni.R.], but given that he had limited independent mobility at that age, and given the absence of any history of known accidental trauma to explain the presence of the fractures, it seems likely that his fractures were inflicted in nature.” (Italics added.)
Dr. Stewart concluded there was no radiographic or physical evidence that Ne.R. had suffered any inflicted trauma.
4. Amended Petition
Following receipt of Dr. Stewart’s report, the dependency court set a trial date two months ahead so that father could retain an expert of his own. Meanwhile, the court granted DCFS discretion to detain the children in the home of an appropriate relative or extended family member. The department also received the authority to release the children to mother or to allow mother to live in the paternal grandparents’ home on condition that father not reside there and she was testing clean.
On January 13, 2010, DCFS filed an amended petition alleging, in addition to a fractured left femur, Ni.R. sustained a right posterior parietal skull fracture.
DCFS submitted a supplemental report in support of the amended petition, indicating all three children were now placed in the same foster home. The social worker reported that both mother and father had stated that they, as well as the paternal grandmother, were the children’s primary care providers.
According to mother, the paternal grandmother visited the home about two to three hours daily to care for the children; father stated his mother came by every day for to one to two hours to visit the children. Although the family lived in the paternal great-grandparents’ home, they asserted that the great-grandparents provided no care for the children. And although father’s teenage sister also lived in the great-grandparents’ home on weekdays to attend school, she only played with the children providing no care.
Contrary to the parents’ statements, the paternal grandmother denied being a caretaker for the three children. She told the social worker she went to her parents’ home daily for a few hours to take care of her parents and only visited with the children. She said she did not believe either parent would do anything to their children and did not know how the injury to Ni.R. occurred. She believed both parents had stopped smoking marijuana and each was attending alcohol, drug and parenting classes.
5. Jurisdictional and Dispositional Hearing
The jurisdictional and dispositional hearing was delayed for a number of reasons, including the need to complete studies of the children and illness of court and counsel. The jurisdictional hearing extended over several days, during which the dependency court heard testimony from mother and father.
During trial, mother’s counsel requested that the dependency court place the children in the home of the paternal grandmother, stating she had attended every court session and her home had received ASFA approval for placement of the three children. The paternal grandmother was willing to serve as the children’s permanent caretaker, legal guardian or adoptive parent, whichever was required. She also supported reunification for the parents. Counsel said it was his understanding DCFS was unwilling to move forward on placing the children with their grandmother due solely to the nature of the injury and “speculation” that she was a possible cause of the injury.
The ASFA evaluation in November 2009 found the paternal grandmother’s home to be “clean, safe and in good repair, ” and live scan results showed she had no criminal history.
The dependency court observed there were inconsistent statements on whether the paternal grandmother was in the home at the time Ni.R. was injured. However, the court reserved this issue for the conclusion of trial, noting a contested disposition would be held if necessary.
6. Jurisdictional and Dispositional Orders
A. Jurisdictional Findings and Order
On May 12, 2010, the dependency court sustained the amended allegations under section 300, subdivisions (a), (b) and (j) and otherwise dismissed the amended petition.
The court found uncontroverted medical evidence that Ni.R. had suffered two “acute” fractures, fractures it determined occurred “within the last 72 hours” before the child was examined at the hospital.
While acknowledging it had no reason to know the cause of Ni.R.’s injuries, the court stated it did not find the parents’ testimony “particularly credible, ” saying, “I know that the injuries happened within 72 hours. And during that 72 hours [Ni.R.] was in the care and custody of one of his parents. [¶] The parties would have [the court] believe that while father was in just a normal nap sleep, after a full night of sleep the night before, that [Nh.R.], who is 18-months-old [sic][, ] jumped on her brother hard enough to break his leg and fracture his skull, but didn’t wake the father up. And the court does not believe that.” The court rejected counsel’s invitation to draw an inference that only a little force was necessary to cause the breaks due to Ni.R.’s premature birth, observing that the child had suffered no additional breaks or fractures after he was removed from his parents’ care and custody.
Regarding allegations concerning the parents’ substance abuse history, the dependency court found that although the parents’ tests since the incident had been clean, “the substance abuse issues were likely to have contributed to” the child’s injuries.
B. Dispositional Findings and Order
After making the jurisdictional order, the dependency court immediately proceeded to the dispositional hearing.
Both parents presented certificates of completion of a substance abuse program, with an indication they were making an effort to change their life and social skills, and of a parenting skills course. Mother participated in a drug rehabilitation program that included education, group and individual counseling; she stated she learned in the program that marijuana use adversely affects parenting practices and parenting. Father testified he learned in individual counseling that marijuana use alters the brain and “messe[s] up your lungs.” He recalled learning that marijuana alters the brain by slowing down the thinking process, so that “you can’t pay too much attention to the kids.”
Mother renewed her request that the children be placed with the paternal grandmother if they could not be returned to mother. Counsel noted the grandmother had a bond with the children, consistently visited them and had a home for them. Father joined in mother’s request.
The dependency court ordered the children to remain in foster care. “[T]he reality is, ” the court found, “in spite of the parents, the counseling that they have had, they both continue to be... in complete denial in regards to how [Ni.R.] got injured.” Pursuant to sections 361.3, 361.4 and 309, the dependency court denied placement of the children with the paternal grandmother, noting it was doing so even though she had obtained ASFA approval.
Without providing any particulars, the dependency court inexplicably declared that based on the “grandparents’ statements in the detention report” it was clear they were unwilling to cooperate with the department to assist in reunification. The detention report, however, contains no statements claimed to have been made by the children’s grandparent. Apparently, during an attempt to assess the great-grandparents’ home, the social worker encountered hostility and racist remarks from unknown relatives.
Mother and father timely appealed from the dependency court’s jurisdictional and dispositional findings and orders.
STANDARD OF REVIEW
To declare a child a dependent under section 300, the dependency court must find by a preponderance of the evidence the allegations of the petition are true. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318-1319.) We review the dependency court’s decision to sustain a petition on a child’s behalf for substantial evidence. (Ibid.; In re David M. (2005) 134 Cal.App.4th 822, 828.) For removal of a child from the parents’ custody, the standard of proof for the dependency court is clear and convincing evidence. (§ 361, subd. (c); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) On an appeal from an order based upon clear and convincing evidence, the clear and convincing standard disappears and the customary rule of conflicting evidence applies, i.e., the reviewing court gives full weight to respondent’s evidence, however slight, and disregards appellant’s evidence, however strong. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) Dispositional orders are reviewed for abuse of discretion. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) We have no power to pass on the credibility of witnesses, to attempt to resolve conflicts in the evidence or to decide where the weight of the evidence lies. (In re A.M. (2010) 187 Cal.App.4th 1380, 1390.)
DISCUSSION
Mother’s Appeal
1. Jurisdictional Finding
Section 300 provides that any child described in one or more of its subdivisions may be adjudged a dependent child of the court. Mother contends DCFS failed to prove she was responsible for any neglectful or willful act that caused Ni.R.’s injury, nor did DCFS show any nexus between the child’s injuries and any parental neglect or misconduct. (See § 355, subd. (a).) We disagree.
As amended, the sustained portions of the petition alleged under section 300, subdivisions (a) (serious physical harm) and (b) (failure to protect) that: (1) five-month-old Ni.R. was medically examined and found to be suffering from detrimental conditions, namely, a fracture to the left femur and to the right posterior parietal skull; (2) father’s explanation of the child’s leg injury was not consistent with the injury, and mother gave no explanation; (3) Ni.R.’s injuries would not ordinarily occur except as the result of deliberate, unreasonable and neglectful acts by the child’s parents, who had him in their care and custody; and (4) the nature of the injuries placed all three children at risk of physical and emotional harm. The court also found true under subdivision (b) of section 300 the allegation that both parents had a history of substance abuse that periodically rendered them incapable of providing regular care for the children, thus placing them at risk. The dependency court further sustained allegations that the injuries to Ni.R. placed his siblings at risk pursuant to subdivision (j) of section 300.
The dependency court dismissed the remaining allegations of the amended petition, including allegations that the parents “knew[, ] or reasonably should have known[, ]” that Ni.R. was being physically abused and failed to take action to protect the child.
This court must affirm the dependency court’s exercise of jurisdiction under any theory supported by the record. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876.) Once we have established the evidence is sufficient on any ground, we need not examine the sufficiency of any other ground. (Ibid.; see also In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
Mother does not contest the dependency court’s exercise of jurisdiction based upon the allegations relating to father, which the court found true. She thus implicitly concedes that dependency court jurisdiction was properly assumed over her children with respect to father. In light of that concession, her contention that the DCFS did not meet its burden of showing the children were dependents within the meaning of section 300 is without merit. The court may assume jurisdiction over a child even if only one of the parents is unsuitable. (In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1554 [social services department is not obliged to “‘prove two petitions, one against the mother and one against the father, in order for the court to properly sustain a petition’”]; see also In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [because dependency court takes jurisdiction of child, “a jurisdictional finding good against one parent is good against both”].) Therefore, the court properly assumed jurisdiction over the children.
Even besides mother’s concession as to father, substantial evidence exists in the record to support dependency court jurisdiction over the children as to her. Mother asserts DCFS failed to show inflicted trauma was more likely than not the cause of Ni.R.’s injuries, that the children were at risk of future inflicted harm or that mother’s marijuana use contributed to Ni.R.’s injuries or prevented her from providing regular care for the children. However, DCFS presented prima facie evidence warranting exercise of jurisdiction under section 300, subdivisions (a) and (b) under the presumption afforded by section 355.1.
Section 355.1 provides, in pertinent part, “(a) Where the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor is of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, the guardian, or other person who has the care or custody of the minor, that finding shall be prima facie evidence that the minor is a person described by subdivision (a), (b), or (d) of Section 300. [¶]... [¶] (c) The presumption created by subdivision (a) constitutes a presumption affecting the burden of producing evidence....”
DCFS proffered medical records and opinions from doctors that Ni.R.’s leg and skull fractures were inflicted trauma that ordinarily would not have occurred but for the unreasonable or neglectful acts of the parents. The emergency room doctor who first examined the child believed father’s explanation of Ni.R.’s leg fracture was inconsistent with the nature of the injury. One of the child’s attending physicians indicated a femur fracture to a five month old necessitated “a decent amount of force.” At the time of injury, both parents had the primary care and custody of the child.
Dr. Stewart, after examining Ni.R. and reviewing his medical and dependency records, rendered an opinion that the child’s injuries were inflicted trauma. Dr. Stewart reached this opinion having taken into consideration Ni.R.’s premature birth and prior osteopenia, which could have predisposed him to fractures. However, in light of the child’s normal enzyme and calcium levels at the time of the fractures, Dr. Steward concluded it was “unlikely” he sustained the fractures in the course of routine care.
The court found no evidence was presented to rebut the presumption that Ni.R. was in the care, custody and control of his parents for the 72-hour period during which he suffered the fractures. (§ 355.1, subd. (c); In re Richard H. (1991) 234 Cal.App.3d 1351, 1363 (Richard H.).) The court did not believe the injuries were caused by Nh.R, and it also found no reason to believe that Ni.R.’s injuries happened while the child was with father alone, because it did not find the parents credible. At the hearing and throughout the proceedings, mother professed a belief in father’s version of the events; she offered no explanation as to the cause of the child’s injuries, and she failed to suggest any other cause despite her admission that she provided care for Ni.R. “every day.” Even if a single attending doctor posited a broken femur could possibly have been caused by a one year old, we may disregard that hypothesis in the face of overwhelming evidence to the contrary. In any case, that doctor rendered her hypothesis apparently without knowledge the child also suffered a skull fracture.
Nor did the court believe little Nh.R. was the cause of the injuries to her infant brother. Even taking into account Ni.R.’s premature birth and past fragility, the child suffered no further fractures after he was removed from the parents’ custody. “Common sense” led the court to conclude the fractures must have been caused by inflicted trauma. This conclusion was sufficient to comprise the prima facie evidence upon which to invoke the presumption under section 355.1. The court found no evidence was presented to rebut this presumption.
Substantial evidence therefore supports the court’s determination that both parents were responsible for the conditions that brought the children under the court’s jurisdiction.
2. Dispositional Orders
Mother contends the evidence was insufficient to justify the removal of the children from her custody and that the reunification plan was inadequate. We disagree.
In accordance with section 362, the court may make “any and all reasonable orders for the care, supervision [or] custody... of the child” and “any and all reasonable orders to the parents or guardians” to ameliorate the conditions that made the child subject to the court’s jurisdiction. (§ 362, subds. (a) & (c); see In re Basilio T. (1992) 4 Cal.App.4th 155, 172, superseded by statute on another point as noted in In re Lucero L. (2000) 22 Cal.4th 1227, 1239-1242.) Such provisions “have been broadly interpreted to authorize a wide variety of remedial orders intended to protect the safety and well-being of dependent children....” (In re Carmen M. (2006) 141 Cal.App.4th 478, 486; see also In re Neil D. (2007) 155 Cal.App.4th 219, 224.)
A. Removal of Children
The dependency court acted well within its discretion in removing the children from mother’s custody.
“Although a parent’s interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect.” (In re Marilyn H. (1993) 5 Cal.4th 295, 307; see also In re R.R. (2010) 187 Cal.App.4th 1264, 1281.)
Here, the dependency court determined the parents’ drug abuse played a substantial role in this case. The dependency court granted DCFS discretion to place the children with mother. However, mother continued to reside with father in the paternal great-grandparents’ home, and both parents continued to deny that drug use had anything to do with the child’s injuries. As the court below noted, at the time of the orders in issue, the parents’ work was “just beginning” rather than completed.
The court found by clear and convincing evidence that the children remained in substantial danger as a result of the parents’ refusal to take responsibility for the injuries that brought the matter to the dependency court. By the time of the disposition hearing, the parents appeared to have addressed their substance abuse. In spite of having a period of nine months before the disposition hearing, however, substance abuse was the only issue the parents addressed. Even after counseling, the parents had no explanation of how their infant was injured and, as the court found, they continued to be in complete denial concerning his injuries.
We need not repeat here the overwhelming evidence that the child’s injuries were inflicted and that the parents inflicted the injuries or were, at the very least, complicit with the perpetrator. In light of the evidence establishing the parents’ responsibility in the matter, the court acted well within its discretion in removing the children from the custody of both parents.
B. Adequacy of Reunification Plan
Nor can we say the court abused its discretion in setting parental goals such as “provide stable and appropriate housing.” Both parents were young and apparently able-bodied, yet neither appears to have or to have sought employment or to have undertaken even a first step into adulthood. Prior to this proceeding, both parents were frequent and habitual users of marijuana. Although mother argues that the family had resided without incident in one room in the great-grandparents’ home for three years before the detention and that the investigating social worker found the room to be “fairly clean and organized, ” the court could have determined that the family’s living conditions contributed to the problems that caused the family to come to DCFS’s notice. Further, the ability to provide stable and appropriate housing for one’s children is a fundamental facet of responsible parenting. The court had broad discretion in formulating a reunification plan, and we cannot say it overstepped its bounds in doing so.
3. Timeliness of Dispositional Hearings
Mother claims that because the disposition hearing was held nine months after the original section 300 petition was filed, the dependency court should have dismissed the case. We disagree.
Section 352, subdivision (b) recognizes the need to minimize delay in a dependency proceeding. The statute provides: “Notwithstanding any other provision of law, if a minor has been removed from the parents’... custody, no continuance shall be granted that would result in the dispositional hearing... being completed longer than 60 days after the [detention] hearing..., unless the court finds that there are exceptional circumstances requiring such a continuance.... In no event shall the court grant continuances that would cause the [dispositional] hearing... to be completed more than six months after the [detention] hearing....” (§ 352, subd. (b).) The interest of the child in attaining a permanent, stable placement is “exceedingly important.” (In re A.R. (2009) 170 Cal.App.4th 733, 743.) Therefore, dependency proceedings must be resolved as quickly as possible. (Ibid.)
Prior to trial, the matter was continued four times. Of the four continuances, mother requested two, joined in requesting one and failed to object to one. During trial, the matter was continued six times. Three of those continuances, totaling about two weeks, were due to illness other than of mother’s counsel. A continuance of one day occurred when the hearing officer fell sick. After that, the matter was continued for more than six weeks because mother’s counsel was on vacation and then became ill. Accordingly, about half the length of the continuances may be attributed to mother, with the other half attributed to other counsel. We observe that section 352, subdivision (c) provides that when a parent is represented by counsel, and no objection is made to an order continuing any dispositional hearing beyond the time limit within which the hearing is otherwise required to be held, the absence of an objection shall be deemed a consent to the continuance. Because mother failed to raise any objection at trial, the presumption is that she consented to the continuances.
Father’s Appeal
Father, with whom mother joins, contends in his appeal that the dependency court abused its discretion in refusing to place the children in the care of their paternal grandmother. We agree.
The Legislature has expressed a preference for keeping children with their families whenever possible. (See, e.g., §§ 309, 361.3, 16000.) If a child cannot be placed with his or her parent, section 361.3 directs that preferential consideration “shall be given to a request by a relative of the child for placement of the child with the relative.” This means the relative should be placed “at the head of the line” when the court is deciding which placement is in the child’s best interests. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033; In re Sarah S. (1996) 43 Cal.App.4th 274, 286.) Under section 361.3, a relative assessment should involve the consideration of a number of factors, including: the best interest of the child; the wishes of the parent, relative and child; the good moral character of the relative and any other adult living in the home; the nature and duration of the relationship between the child and the relative; and the ability of the relative to provide a safe, secure and stable environment for the child.
In the present case, the evidence failed to establish placement of the children in the paternal grandmother’s home would not be in the best interest of the children. Both parents were in favor of the children’s placement with the grandmother. By the time of the dispositional hearing, her home had received ASFA approval. The grandmother had undergone and passed a live scan, and she was the only adult in the home. Moreover, the grandmother had visited the children daily up to the time they were taken into care, and the record suggests she continued to visit the children regularly afterwards. The evidence before the court indicated the grandmother could provide the children with a safe, secure and stable environment.
DCFS points out that the relative placement was not appropriate “due to the nature of [Ni.R.’s] injuries.” Specifically, it argues, the paternal grandmother was a caretaker for the children during the time Ni.R. could have sustained his injuries. Father testified his mother had not visited on the day of the injury, and there was no evidence before the court indicating she knew of, caused or contributed to Ni.R.’s injury before the paramedics were called. Although the hospital records indicate the grandmother was with Ni.R. at the hospital, there was no evidence she was present at the great-grandparents’ home that day.
During trial, in deferring a ruling on the grandmother’s placement request, the dependency court expressed a concern over inconsistent statements as to whether the grandmother was in the home when the child sustained his injuries. Mother’s counsel took issue with the court’s construction of the evidence, noting the lack of any evidence she had ever been “inappropriate” with any child. The court, however, cut counsel off, saying, “I’ve made my finding.”
The record before us indicates that the only inconsistent statements regarding the grandmother involved whether she was a “caretaker” or simply a mere “visitor” of the children at the great-grandparents’ home. The testimony at trial was that she was not present at the home when the child was injured. The grandmother herself told the social worker she was not in the home when the injury occurred.
DCFS points to the dependency court’s concern over “inappropriate” comments made to the social worker by paternal relatives. The social worker’s detention report, however, asserted that father was uncooperative and claimed that unidentified “family members” made “racist comments” to the social worker. The “family members” were never identified, and paternal relatives other than the grandmother resided in the great-grandparents’ home. There was a lack of evidence linking the grandmother to these comments. Nothing in the detention report suggested the grandmother did or would do anything to impede DCFS’s reunification efforts.
The court stated, “Based on the grandparents’ statements in the detention report, which have not been refuted in any manner, it is clear that they are unwilling to cooperate with the department to assist in reunification....”
DCFS made no discernable effort to gather the information mandated by section 361.3, and there appears to us to be no reasonable basis for the dependency court’s determination not to place the children with their grandmother. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067-1068.) It is apparent the court’s ruling was premised on mere speculation the grandmother somehow might obstruct reunification. This is in conformity with neither the spirit nor the letter of the statute.
Accordingly, the order denying placement of the children with their paternal grandmother must be reversed.
DISPOSITION
The order directing that the children be in a suitable placement and denying placement with the children’s paternal grandmother is reversed, and the matter is remanded to the juvenile court for a new order granting such placement. In all other respects, the findings and orders are affirmed.
WE CONCUR: RUBIN, Acting P. J., GRIMES, J.