Opinion
B231856
08-23-2011
In re P.Y. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. SUSIE Y. et al., Defendants and Appellants.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Susie Y. Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant Sammy C. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK78429)
APPEAL from a judgment of the Superior Court of Los Angeles County. Marilyn Kading Martinez, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Susie Y.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant Sammy C.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
Susie Y. (Mother) and Sammy C. (Father) appeal an order from the dependency court terminating their parental rights. Mother and Father requested a continuance of the permanency planning hearing so that the maternal grandmother could be assessed for placement and as a potential adoptive parent. We find that the dependency court did not abuse its discretion when it ordered adoption by the foster parents as the permanent plan and terminated Mother's and Father's parental rights. Accordingly, we affirm.
FACTS
On August 9, 2009, Mother was seen acting erratically and trying to wave down passing cars in Los Angeles. She had her two-year-old, P.Y., and her one-month-old, Ginger Y., with her. Police officers stopped to question her, and arrested her for an outstanding warrant.
Mother was incarcerated and the Department of Children and Family Services (Department or DCFS) detained the children. Mother said she had a relative, Sabrina, who could possibly care for the children, but she did not have Sabrina's contact information. Mother told DCFS that her own mother lived in motels in San Francisco. DCFS placed the children, who appeared well-nourished, in the foster home of Jose and Bertha F.
Mother was released from jail on August 11, 2009. The dentition hearing was held on August 12, 2009. Father appeared at the hearing and was declared the children's presumed father. DCFS filed a Welfare and Institutions Code section 300 petitionalleging that Mother had a history of substance abuse and that she and father had a history of engaging in domestic violence. The dependency court found a prima facie case for detaining the children. Family reunification services were ordered and both parents were urged to have frequent visits with the children.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
Father had an extensive criminal history, and Mother had a criminal history of driving while under the influence and possession of marijuana. Mother had obtained a series of prescriptions for Vicodin and admitted to purposely diluting a drug test because she did not want the results to return positive.
DCFS investigated the relative Sabrina for possible placement, but determined that the children could not be placed with her. Sabrina had a recent open referral with DCFS due to two of her children suffering burns. Further, she and her children's father were observed to be very evasive and secretive. The father would not submit to fingerprinting.
A DCFS report stated that Father and Mother were living in an RV in September 2009. The parents had prior DCFS referrals, and it was noted in one of them that they used the RV to evade police and social workers. Mother and Father had lied about Father's prior arrest for domestic violence, and were found to be dishonest or evasive when discussing other topics as well. DCFS was concerned that if P. and Ginger were returned to their parents, the family would flee. Father had a habit of using numerous aliases, and Mother could not reasonably explain why she had a Nevada driver's license. Meanwhile, both P. and Ginger were generally doing well in the foster parents' care.
At an October 2009 contested hearing, the dependency court sustained two counts of the amended petition. The court ordered the parents to receive family reunification services, including monitored visits.
Mother and Father both completed parenting classes by December 2009. They were participating in domestic violence counseling and submitting to random drug testing. While Father tested clean, Mother tested positive for opiates on a number of occasions, though she claimed to have a prescription for the drugs. The parents struggled financially, and Mother was arrested for theft in March 2010. The children continued to be well cared for by the foster parents, and Mother and Father requested that the children not be re-placed, even though the foster parents lived 70 to 80 miles away.
On April 27, 2010, Mother was admitted to a domestic violence shelter. She stated that Father hit had her several times, punching her in the ribs, and threw a shoe at her head. Mother was reported to be under the influence of drugs when she went to her counseling program. She stated she did not want to return to Father.
The dependency court conducted a six-month review hearing for Mother on May 11, 2010. Mother produced a prescription for Vicodin prior to the hearing, which was reported to be consistent with the positive tests for opiates. Her family reunification services were continued.
Father's six-month review hearing was held on June 1, 2010. He had been incarcerated in May for parking ticket violations and making threats. The court continued his reunification services as well.
An October 2010 status review report stated that about six months prior, the maternal grandmother requested that she be considered for placement of the children. She was 45 years old, and lived in a one-bedroom apartment with her 13-year-old son and 10-year-old grandson. A waiver had been requested for the grandmother's criminal history, which had to be approved before a home assessment could occur. As for Mother, the report stated that she consistently visited with her children, but she refused to disclose her address to the caseworker and had stopped participating in court-ordered programs. Father's whereabouts were unknown, he had stopped visiting the children, and when he telephoned the caseworker, he also refused to disclose his address. The children continued to do well in the care of their foster parents, and the foster parents indicated they were interested in adoption. Mother and Father, however, told the social worker that the children should be placed with relatives.
Prior to a contested hearing on November 16, 2010, DCFS submitted last-minute information stating that the maternal grandmother wished to be considered the primary adoptive parent for the children. But the approval of her home was still in process, and the grandmother needed to obtain waivers for some offenses in her criminal history.
Both Mother and Father appeared at the contested hearing. Among other things, Mother testified that she had been homeless for five to six months. Counsel for DCFS and the children asked the dependency court to terminate family reunification services. Finding that the parents only partially complied with their case plan and made very limited progress addressing their issues, the court terminated reunification services and set the matter for a permanency planning hearing. Father's counsel requested that the maternal grandmother be assessed for placement and that the children be placed with her. The court ordered DCFS to complete the evaluation and stated that, although the children were suitably placed, they should reside with the maternal grandmother if and when she was approved.
A March 1, 2011, DCFS report stated that the maternal grandmother's Adoption and Safe Families Act (ASFA) referral was denied because a criminal waiver was needed, and the police reports necessary to consider the waiver had not been obtained. The police department had provided one set of reports but had not provided the other two. DCFS further reported that the grandmother's referral was also denied because she had moved several months prior, and there was a lack of space in her home and other adults in the home had not submitted to Live Scans.
The Department stated that even if the referral were approved, placement with the grandmother did not appear to be in the best interests of the children, who were stable and flourishing in their current placement. The foster mother, Bertha F., planned with her adult daughter, Ms. F., to co-adopt the children. According to the Department, the children considered the caregivers to be their parents. The Department noted that, even if the maternal grandmother's home were eventually approved under the ASFA, the adoption home study, which had more stringent requirements, would still have to occur.
At the March 1, 2011, permanency planning hearing, counsel for Mother and Father both requested a continuance, arguing additional time was necessary for the maternal grandmother's home to be assessed. The dependency court denied the request, stating, "There is no longer a preference for relative placement. There's no need to replace these children, and because there is no need to re-place the children, then there is no basis to continue the matter . . . for further evaluation of a relative." The court also denied a request to continue the matter for a contested section 366.26 hearing. Adoption was ordered as the permanent plan and Mother's and Father's parental rights were terminated.
DISCUSSION
Mother and Father both appeal. Mother contends that the dependency court erred by failing to independently assess the maternal grandmother's qualifications for relative placement under section 361.3, and because it did not properly consider relative placement before terminating parental rights. Father joins in Mother's appeal. Both parents contend that the order terminating parental rights must be reversed due to the claimed errors.
The issue of the parents' standing to appeal and the potential impact of the recent case In re K.C. (2011) 52 Cal.4th 231 was not addressed by respondent DCFS.
The placement of P. and Ginger was a matter soundly committed to the trial court's discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) A decision in the context of a custody determination must be arbitrary, capricious, or patently absurd to compel reversal. (Ibid.)
Section 361.3 provides that "preferential consideration" shall be given to a request by a relative for placement of the child when the child is removed from the physical custody of the parents at a dispositional hearing. (§ 361.3, subd. (a); see e.g., In re N.V. (2010) 189 Cal.App.4th 25, 30.) "Preferential consideration" means that the relative seeking placement shall be the first investigated and considered. (§ 361.3, subd. (c)(1).) In determining whether placement with the relative is appropriate, the social worker is to consider various factors, including the best interest of the child; the good moral character of the relative and other adults in the home; the nature 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. (§ 361.3, subds. (a)(1), (5), (6), (7)(A).) After the dispositional hearing, preferential consideration must again be given to a relative "whenever a new placement of the child must be made." (§ 361.3, subd. (d).)
Mother and Father contend that the dependency court violated these requirements by failing to independently assess the maternal grandmother's qualifications for relative placement. Relying on Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033- 1034, they argue that DCFS performed an inadequate investigation of the grandmother, and that the court failed to exercise its independent judgment in determining the proper placement of the children.
We find that Father and Mother have not met their burden of showing reversible error. Although the relevant cases evince some differences of opinion on the application of the relative placement preference, the cases are in accord that the preference does not apply after reunification services have been terminated, unless a new placement becomes necessary. (See In re N.V., supra, 189 Cal.App.4th at p. 30; In re Lauren R. (2007) 148 Cal.App.4th 841, 854-855; In re Joseph T. (2008) 163 Cal.App.4th 787, 795; Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1032.)
The order appealed from here was issued well after reunification services had been terminated. A new placement was not necessary, as the caregivers intended to adopt P. and Ginger, and this was the permanent plan. Section 361.3 does not apply to adoptions. (In re Sarah S. (1996) 43 Cal.App.4th 274, 284.) Instead, "subdivision (k) of section 366.26 overrides section 361.3 when it comes to placements for adoption." (In re Sarah S. at p. 285.) Subdivision (k) of section 366.26 only provides that a relative caretaker (or a foster parent) may receive a preference for adoption. Thus, at the time of the permanency planning hearing in this case, the only people who could be granted a preference were the foster parents.
The fact that the court ordered DCFS to evaluate the grandmother for placement in November does not cause us to change our opinion. At the time the court made this order, reunification services had been terminated, so no relative placement preference applied. Furthermore, the order was conditional, since the children were to reside with the grandmother only if and when she was approved. DCFS conducted a background check on the grandmother, requested appropriate waivers, and assessed her home. It was unable to obtain information that may (or may not) have resulted in waivers of relevant criminal offenses. Furthermore, according to DCFS, she was living in a location that did not provide adequate space for the children, and adults living with her at her new home had not submitted to background checks.
The dependency court was not obligated to wait until the maternal grandmother was finally (if ever) approved to decide on a permanent plan for the children. While it was unfortunate that the evaluation of the grandmother progressed so slowly, the paramount focus had to remain on the well-being of the children. "[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." (In re Stephanie M., supra, 7 Cal.4th at p. 321.) As noted by DCFS, the children had "flourished" in the care of their prospective adoptive parents, who they viewed as their parents. The passage of time is of great significance in a child's short life, and the longer a successful placement continues, the more important the emphasis on continuity and stability becomes in the evaluation of the child's best interests. (In re Lauren R., supra, 148 Cal.App.4th at p. 855.) The court's order maintained the children's successful placement and promoted continuity and stability, and it did not "'exceed[] the bounds of reason. '" (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319). Therefore, we will not reverse.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J. We concur:
DOI TODD, J.
CHAVEZ, J.