Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jane Cardoza, Judge. Super. Ct. Nos. 92113-2, 92113-3, & 92113-4
Kenneth K. Taniguchi, Public Defender, and Julie Ann Bowler, Deputy Public Defender for Petitioner.
No appearance for Respondent.
Kevin Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.
Before Levy, Acting P.J., Cornell, J., and Kane, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court’s order issued at a contested dispositional hearing denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her children R.N., J.N. and A.N. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Dependency proceedings were initiated in February 2009 after petitioner, a chronic methamphetamine user (over 15 years), tested positive for methamphetamine during A.N.’s delivery. She made plans for then two-year-old R.N. and one-year-old J.N. to stay with their 63-year-old paternal grandmother (grandmother) who had legal guardianship of petitioner’s three other children, all under the age of seven.
The juvenile court ordered R.N., J.N. and A.N. (the children) detained and authorized the Fresno County Department of Children and Family Services (department) to place them with their paternal aunt and uncle. The court ordered petitioner and the children’s father to participate in services. Grandmother filed a motion to be declared the children’s de facto parent, which the court scheduled to be heard along with the jurisdictional hearing scheduled for March 2009.
The father did not file a writ petition.
Meanwhile, in February 2009, the children spent approximately a week in the home of their paternal aunt and uncle before the aunt advised the department she could no longer care for them. Consequently, the children were placed in foster care.
In April 2009, the juvenile court adjudged the children dependents of the court. The court continued the hearing on grandmother’s de facto parent motion and combined it with the dispositional hearing, which it set for May 2009.
In its dispositional report, the department recommended the court deny petitioner reunification services pursuant to section 361.5, subdivision (b)(10), (11) and (13) because of her chronic drug use despite drug treatment in 1998 after removal of a son, A.C.; her failure to reunify with A.C.; and the consequent loss of parental rights to A.C. in 2002. Petitioner objected and a contested hearing was set for July 2009. Meanwhile, the department filed a section 388 petition requesting the juvenile court place the children with their grandmother.
In July 2009, the juvenile court convened to adjudicate the section 388 petition. Minors’ counsel asked the court to continue the matter and order the department to investigate the suitability of grandmother’s home in light of statements R.N. made about possible sexual and physical abuse there. The court ordered the investigation and continued the hearing.
The investigation involved interviews as well as a home evaluation and, while the interviews allayed any concerns that sexual or physical abuse was occurring in grandmother’s home, the space limitations of the house and the number of occupants caused the department concern. Besides grandmother and petitioner’s three other children, grandmother’s 61-year-old brother and 74-year-old developmentally disabled sister live in the home, which had three bedroom areas, a kitchen, living room, dining room, a hallway where the washing machine was located and a bathroom. Grandmother identified her bedroom as an area adjacent to the kitchen but not separated by a door. Her bedroom had a large bed and a crib set up for A.N. Along the hallway were four separate bedrooms, one each for grandmother’s brother and sister and two bedrooms set up for the other five children. Other than limited in space, the house was properly furnished and well stocked with food and the facilities were all operational.
In August 2009, the juvenile court conducted a contested hearing to adjudicate disposition, placement and the de facto parent motion. Petitioner did not argue there was not a factual basis to deny her reunification services under section 361.5, subdivision (b)(10), (11) and (13) as recommended. Rather, she argued the court should offer her services because it would serve the children’s best interests and place them with their grandmother. On the department’s motion, the court withdrew the section 388 petition and the department recommended the children remain in their foster placement. The court proceeded on the issues of placement and disposition.
The social worker testified grandmother’s home was approved by a home evaluation unit as meeting the minimal standards for placement. In addition, the social worker visited grandmother’s home and observed everything running smoothly. However, she became concerned about the physical limitations of the home after she read the investigation report. What concerned her in particular was the fact that grandmother intended to have A.N. sleep in a crib in an alcove of the kitchen by the refrigerator instead of in a room. She was also concerned about grandmother’s ability to accommodate so many people and to control petitioner’s access to the children since petitioner and all six children interacted daily at grandmother’s home.
The social worker also testified petitioner completed a parenting course and inpatient drug treatment but was terminated from aftercare in July 2009 for noncompliance. Petitioner was referred to another aftercare program, Paths, but she did not attend the initial enrollment appointment. Instead, petitioner said she enrolled herself in another program, an assertion the social worker could not verify.
The social worker further testified petitioner tested positive for opiates nine times from mid-June to mid-August 2009, the result of a prescription medication she was taking. She also stated petitioner visited the children regularly and they were attached to her.
Petitioner testified the children loved their grandmother and were attached to their siblings. She knew grandmother would take good care of them and she promised to abide by the court’s visitation orders. Petitioner further testified she had been clean and sober for nearly six years before she relapsed in February 2009. She said Vicodin, prescribed for pain associated with life-threatening heart and lung conditions, caused her to test positive for opiates.
Petitioner explained why she was terminated from the aftercare program and her attempts to reenroll. She said she was discharged from the program for missing too many days to attend court appearances. She spoke to someone at the department about getting a referral back into the program but was told she could not be referred there again because of the status of her dependency case. She was referred to Paths but would not have been able to attend the required five weekly meetings and also attend parenting classes and therapy, drug test, keep her medical appointments, and visit her children. She attempted to contact her social worker about the problem but was unable to reach her. Finally, she located another aftercare program on her own.
At the conclusion of the hearing, the juvenile court ordered the children removed from petitioner and their father’s custody, denied both parents reunification services as recommended, denied petitioner’s request to place the children with grandmother, and denied grandmother’s request for de facto parent status. The court also ordered the department to assess placing the children with their paternal aunt who stated she was prepared to take custody of them again. Finally, the court set a section 366.26 hearing to implement a permanent plan. This petition ensued.
DISCUSSION
I. The juvenile court did not abuse its discretion in denying petitioner reunification services.
Petitioner contends the juvenile court erred in denying her reunification services because she completed the services ordered and because the children are attached to her. We find no error.
The juvenile court “has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order” accordingly. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) Among the permissible dispositional choices is to deny a parent reunification services where, as here, a statutory basis for denial exists under section 361.5, subdivision (b)(10), (11) or (13). (§ 361.5, subd. (c).)
In deciding services would not benefit the children, the juvenile court considered petitioner’s chronic and extensive use of methamphetamine and inability to maintain any significant period of sobriety despite having been provided drug treatment and losing parental rights to one child and custody of six others. Further, the court did not find petitioner’s explanation for not attending her appointment for aftercare credible and from that concluded she lacked insight into the depth of her substance abuse problem. We concur and find no abuse of discretion in the court’s decision not to offer petitioner reunification services.
II. The juvenile court did not abuse its discretion in declining to place the children with their grandmother.
Petitioner contends there was every reason for the court to place the children with their grandmother. Her home met the minimum standards and she was a loving and devoted grandmother willing to take custody of the children. The court’s refusal to do so, she argues, violates the provisions of section 361.3, the relative placement statute, and constitutes error. We disagree.
Section 361.3 provides “In any case in which a child is removed from the physical custody of his or her parents …, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.…” (§ 361.3, subd. (a).) “‘Preferential consideration’” is defined to mean that “the relative seeking placement shall be the first placement to be considered and investigated.” (§ 361.3, subd. (c)(1).) The statute does not by its language presume that a child should be placed with a relative. (In re Stephanie M. (1994) 7 Cal.4th 295, 320.) It only requires the juvenile court to first consider the suitability of relative placement, taking into account the best interest of the child. (Id. at p, 321.) We review the juvenile court’s placements orders under the abuse of discretion standard and will not disturb its determination absent a manifest showing of abuse. (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1420.)
In this case, the juvenile court determined that grandmother’s home did not have adequate space to accommodate the children given the size of the home and the number of people already there. The evidence on this record both by way of physical description of the home and photographs bears out the court’s conclusion. Accordingly, we find no error and will deny the petition.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.