Opinion
B230990
12-21-2011
In re D.C. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MARIA R., Defendant and Appellant.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK67077
APPEAL from orders of the Superior Court of Los Angeles County, Marilyn H. Mackel, Court Commissioner. Affirmed.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
Appellant Maria R. (Grandmother) is the maternal grandmother of D.C. (born March 2002), J.G. (born July 2004), T.V. (born June 2005), and Ja.G. (born April 2006) (collectively referred to as the children). Neither the children's mother, Yesenia R. (Mother), nor any of their fathers are parties to this appeal. Grandmother appeals the juvenile court's orders sustaining the petition filed by the Department of Children and Family Services (the Department) pursuant to Welfare and Institutions Code section 387and removing the children from her care. We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In the summer of 2008, the Department received three referrals alleging that Mother was using drugs and that the children were the subjects of physical abuse, emotional abuse, and general neglect. On October 10, 2008, the social worker assigned to the case located Mother and the children, who were living with Grandmother, a maternal aunt, and Mother's significant other. After Mother admitted to the social worker that she was currently abusing drugs, the children were detained and placed in foster care.
On October 16, the Department filed a petition pursuant to section 300, subdivisions (b) and (g). While the petition was pending, Mother stated she wanted the children placed with Grandmother. The court ordered the Department to assess the suitability of such a placement.
On March 10, 2009, Mother agreed to submit on the petition and the court sustained the allegations. The Department was ordered to provide reunification services and Mother was granted monitored visitation. The children remained in foster care until May 15, when they were placed with Grandmother.
In August 2009, the Department reported that it had concerns with the living environment in Grandmother's home. According to the social worker, the children appeared to have infections due to the home's unsanitary conditions. At an unannounced visit, the social worker observed dirt and food on the floor, the children's faces, and their clothing. The trashcan in the bathroom was overflowing and there were about a dozen empty beer cans in Grandmother's bedroom. The floor was littered with trash and the social worker advised Grandmother she should purchase a vacuum cleaner. At a later visit, the social worker noted that Grandmother had obtained one.
The Department also was concerned because Grandmother left the children in Mother's care without a monitor in violation of the court's visitation order. The Department was aware that one of Grandmother's sons and a daughter were currently incarcerated. Another son, Jonathan, had recently been released from custody. Grandmother was told the children could not have contact with members of the family who had criminal histories. She also was warned that people who were not approved by the Department could not reside in the home.
Notwithstanding the Department's warning, during an unannounced visit the social worker discovered that Grandmother's daughter, Jazmin, and Jazmin's two children were living in the home. Initially, Grandmother said she was merely caring for the two children while Jazmin was away. However, Jazmin later confessed to the social worker that she and her children had been residing with Grandmother for the past week. The social worker confronted Grandmother and asked why she had lied. Grandmother did not answer. The social worker reminded Grandmother of her responsibility to follow the Department's rules concerning nonapproved residents.
Also during this visit, the social worker suspected that an unknown male was living in the home because she observed male deodorant, cologne, and clothing at the location. When questioned, Grandmother claimed the items belonged to her youngest daughter, Angie, and the son who was in custody. The social worker reiterated to Grandmother that it was her responsibility to keep the children safe.
Approximately a week later, during another visit, the social worker had a conversation with Angie, during which the worker asked about the male items found in the home. Angie claimed that the male deodorant and boxer shorts were hers. She stated the male cologne might belong to her sister. When the worker asked why the sister would leave cologne at the home when she lived elsewhere, Angie did not answer.
During an unannounced visit in November 2009, Jonathan was discovered in the home taking a shower. Grandmother said her son was forced to shower in her home because his residence had no hot water. Jonathan claimed that he was living with his sister Angie.
At a team decision meeting two weeks later, Grandmother was informed once again that her sons were not allowed to have contact with the children due to their criminal records. The social worker and her supervisor stressed to Grandmother that Jonathan could not shower at the home or leave his belongings there, as it would leave the impression that he had unlimited contact with the children. The social worker repeated that the children might have to be removed from the home if Grandmother continued to ignore Department regulations. Grandmother replied that she understood. She signed a "safety plan," in which she agreed to enroll the children in counseling, participate in parenting classes, remove all of her sons' belongings from the home, and allow in her home only individuals who had Department authorization.
In January 2010, the social worker interviewed D.C. at her school. D.C. told her that Jonathan used to be in jail and that she and her sibling went to visit him. She said that Jonathan lived with Jazmin; however, he came to Grandmother's house to shower and wash his clothes. She reported that Jonathan had showered at the home the previous day. The social worker asked Grandmother about D.C.'s statements. Grandmother said she no longer allowed Jonathan to shower at her home and she did not know where he did his laundry. When told the children had reported seeing Jonathan in the home recently taking a shower and washing clothes, Grandmother said the children were liars.
On February 3, 2010, when the social worker visited the children and Grandmother at their home, D.C. denied that Jonathan had visited them and claimed she had not seen him in a long time. When reminded that she had said earlier that Jonathan had given her a candy bar that day, D.C. acknowledged that had occurred when he came to pick them up at school. She also said Jonathan borrowed Grandmother's car and returned the keys to her.
On February 4, the social worker learned that three different people had picked the children up from school: an older lady, a young woman, and a young man. The next day, the children were removed from Grandmother's custody and placed in foster care.
On February 10, 2010, the Department filed a section 387 petition as to all four children, alleging that Grandmother had allowed Mother to have unmonitored contact with the children, had medically neglected Ja.C., and had allowed the children to have unauthorized contact with Jonathan, who had a criminal history.
In a "Last Minute Information" report filed with the court on the same day, the social worker stated that the foster mother had reported that D.C. told her that Jonathan had given the children beer and that Grandmother had locked the children in the bathroom as a form of discipline. D.C. also said Mother had a spider that is "black and hairy," which she placed on T.V.'s leg. The spider bit T.V. Grandmother did not take T.V. to the hospital because she did not want the social worker to know about the incident. The foster mother observed a wound on T.V.'s leg. The foster mother reported Ja.C. had a medical exam and the doctor found she was anemic and had a rash throughout her body due to infection.
After the children were removed from Grandmother's home, she visited them on an inconsistent basis. The October 2010 report prepared for the adjudication on the section 387 petition noted the foster mother's statement that Grandmother had not visited the children for the past month. The foster mother also reported that Grandmother made the following statement to her regarding the children: "'My son told me that if anything happens to these girls, that he would kill the person who harms them and he will not care if he is imprisoned for life as a result.'" The foster mother took that as a threat. Grandmother, who did not believe the statement was threatening, told the social worker that Jonathan was living with her; however, she claimed she told him that he would have to move if the children were returned to her.
At the November 17, 2010 hearing on the section 387 petition, Grandmother denied she had allowed Mother to have unmonitored access to the children. She claimed she allowed Jonathan to use her home to take a bath on one occasion. She said she did not think it would be a problem even though she knew her son was not supposed to be around the children. Grandmother stated the only person who lived in the home in addition to the children was her 17-year-old daughter, Angela. When asked to whom the men's clothing in the home belonged, Grandmother replied they were Angela's. She denied that any of the clothing was Jonathan's. She said she was willing to obey all court orders in the future.
The court sustained the allegation that Grandmother allowed Jonathan to have unauthorized contact with the children. Finding Grandmother's testimony unbelievable, the court was concerned that she would not protect the children from Jonathan and his brother, both of whom had criminal histories. The court deferred issuing its dispositional order and the matter was eventually concluded on January 25, 2011.
Prior to the January 25 hearing, the court was advised that Grandmother had brought unauthorized people to visit the children at the foster mother's home. Grandmother acknowledged to the social worker that she had done so and said she was sorry. The social worker concluded that Grandmother's "inability to inform [the social worker] about [others] visiting the children reflects a pattern on her behalf that she cannot follow [Department] directives. Once again, had [the social worker] been informed by Grandmother and Mother that other individuals would be visiting the children, [the social worker] would not have had a problem authorizing the visitation. The problem is with [Grandmother] and mother's communication style."
At the January 25 disposition hearing, counsel for the children argued that placement with Grandmother was not in the children's best interest. She referred to Grandmother's repeated lack of common sense demonstrated by her allowing her sons and Mother to be around the children.
The court found by clear and convincing evidence that return of the children to the care and custody of Grandmother posed a substantial risk and detriment to them. It ordered the children to remain suitably placed in the custody of the Department, with the Department to make every effort to maintain the children as a sibling group. It continued the section 366.26 hearing until May 27, 2011. The court also ordered that visits with Grandmother be monitored.
DISCUSSION
"[A] hearing under section 387 must be bifurcated into (1) an adjudicatory hearing on the merits of the allegations in the petition and (2) a disposition hearing on the need for the removal of the [children] from [their] current level of placement." (In re Javier G. (2006) 137 Cal.App.4th 453, 460.) The Department "has the burden to show by a preponderance of the evidence that the factual allegations alleged in the petition are true. If the court finds the factual allegations are true, then the court determines whether the previous disposition is no longer effective in protecting the [children] or whether placement with the relative is not appropriate in view of the criteria in section 361.3." (In re H.G. (2006) 146 Cal.App.4th 1, 11.)
Grandmother contends the Department failed to sustain its burden of proving that the children were at substantial risk in her care. She argues (1) the children were happy and well-adjusted in her home, (2) it had been over one year since Jonathan had been in her home, and (3) she had promised not to allow him in the home in the future. Alternatively, she contends that even if the petition was properly sustained, the court erred in removing the children from her custody because there was no clear and convincing evidence that their placement with her created a substantial danger to their physical health, safety, protection, or physical or emotional well-being. Finally, she argues the court erroneously ordered monitored visits with the children.
In reviewing an order sustaining a section 387 petition, we determine whether substantial evidence supports the ruling. (In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.) We examine the record in a light most favorable to the findings and conclusions of the juvenile court and defer to its rulings on credibility. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427.)
At the adjudication on the petition, the court found that Grandmother allowed the children to have contact with her son Jonathan. The court did not find Grandmother to be believable when she insisted that contact between her son and the children was minimal. We must accept the juvenile court's determination of the credibility of witnesses. (In re S.C. (2006) 138 Cal.App.4th 396, 415.)
Although Grandmother insists that Jonathan was present in her home on only one occasion, there was evidence that he had substantial contact with the children. D.C. told the social worker that Jonathan came to the home to do his laundry and picked up the children from school. This latter fact was corroborated by school personnel who informed the social worker that a young man retrieved the children after school. There was no indication in the record that this was a one-time occurrence. In fact, D.C. said Jonathan would borrow Grandmother's car and return the keys. The court's concern with Jonathan having contact with the children was validated when it learned he gave them beer. Grandmother knew that Jonathan's presence in the home was a problem and she attempted to ameliorate the problem by fabricating a story that the male toiletries and clothing belonged to her 17-year-old daughter. She also accused the children of being liars when they reported that Jonathan had recently been in the home, contradicting her claim that he had not been there in quite some time. Grandmother had demonstrated on a number of occasions that she was willing to allow unauthorized people into her home, notwithstanding the social worker's many warnings that Department approval was required. Most telling is that after Grandmother assured the social worker that she understood the need for Department approval with respect to those who had contact with the children, she brought unauthorized individuals to the foster mother's home to visit just days before the January disposition hearing. Grandmother's pattern of ignoring Departmental rules and court orders understandably concerned the court.
We conclude that the juvenile court's order sustaining one of the allegations in the petition was supported by substantial evidence. We turn to the questions whether the initial placement with Grandmother was effective and if continued placement with her was appropriate.
Section 361.3 provides that: "(a) In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors: [¶] (1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] (3) The provisions of . . . the Family Code regarding relative placement. [¶] (4) Placement of siblings and half siblings in the same home . . . . [¶] (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. [¶] . . . [¶] (G) Facilitate implementation of all elements of the case plan. [¶] (H) Provide legal permanence for the child if reunification fails. . . . [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8) The safety of the relative's home. . . ."
The court must consider all the criteria in section 361.3 and exercise its independent discretion in determining whether the children's placement with the relative is appropriate. (In re Miguel E. (2004) 120 Cal.App.4th 521, 547-548.)
Utilizing these factors, we cannot conclude that placement of the children with Grandmother was effective. Grandmother was not providing a safe and secure environment for the children, nor was she facilitating implementation of the case plan. She demonstrated little regard for the Department's repeated admonitions and court orders and she allowed the children to have regular contact with Jonathan, who had a long history of criminal activity. Thus, the juvenile court had ample evidence to conclude that placement with Grandmother was not appropriate and posed a substantial risk of harm to the children.
The standard for removal on a section 387 petition is the same as for an original petition. There must be clear and convincing evidence of substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor, and no reasonable means by which the minor's physical health can be protected without removal. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1077.)
"We review a decision to remove a child from a relative caretaker under the substantial evidence test. [Citation.] We review the evidence in the light most favorable to the trial court's determinations, resolve all evidentiary conflicts in favor of the prevailing party, and indulge in all reasonable inferences to uphold the trial court's findings. [Citation.] We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The burden is on the party or parties challenging the findings and orders of the trial court to show there is no evidence of a substantial nature to support the finding or order. [Citation.]" (In re H.G., supra, 146 Cal.App.4th at pp. 12-13.)
Grandmother argues that although she had allowed unauthorized persons in her home, there was no significant risk posed to the children. She is incorrect. She fails to understand that Jonathan's presence places the children at risk. Given his criminal history, his unsupervised access to the children alone supports a finding of potential harm. An example of the danger is his willingness to give the children an alcoholic beverage. And, as we have stated, Grandmother's refusal to recognize the danger and to accept the Department's rules means the risk to the children will continue.
Finally, we examine the court's visitation order. In a dependency proceeding, the juvenile court has the power and responsibility to define a noncustodial parent's right to visit with his or her child after the minor has been adjudged a dependent child of the court and has been removed from parental custody. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373.) We conclude the removal of the children from Grandmother's care gave her the same visitation rights as a noncustodial parent.
Based on Grandmother's failure to accurately report to the Department and her previous disregard of court orders, we find that the order for monitored visitation was justified. Grandmother admitted that she had brought unauthorized persons with her on a past visit. She was not truthful about allowing others, including Mother, to be alone with the children. The school had reported that three different people were picking up the children from school. Thus, it was clear that the children's safety could not be ensured while they were in Grandmother's care and monitored visitation was necessary.
DISPOSITION
The orders of the juvenile court are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
WILLHITE, Acting P. J.
MANELLA, J.