Opinion
F076506
07-20-2018
In re K.M. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. ARIANA M., Defendant and Appellant.
Rebekah S. Sass, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 17CEJ300157-1, 17CEJ300157-2)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Brian M. Arax, Judge. Rebekah S. Sass, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
The juvenile court denied appellant Ariana M. (mother) reunification services as to her now three-year-old daughter, K.M., and two-year-old son, Jaden M., after finding K.M. suffered life-threatening injuries while in her care. The court ordered six months of reunification services for the children's father, Daniel M. Mother contends the Fresno County Department of Social Services (department) failed to assess maternal great-grandmother, Norma F., for relative placement under Welfare and Institutions Code section 361.3 and the court erred in not setting a relative placement hearing. We affirm.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Dependency proceedings were initiated in May 2017 after mother took then two-year-old K.M. to the emergency room because she was vomiting brown mucous. K.M. had bruising on the right side of her neck and red marks across her neck and chest. She also had life-threatening internal injuries, including ruptured blood vessels, crushed, perforated and "dying" intestines, a damaged pancreas and a failing left kidney, which required surgery. Her doctor noted the brown mucous she vomited was her own feces and her injuries were consistent with a high speed, severe car crash. The doctors were unable to determine the cause of her injuries but believed they were not accidental.
Mother said she lived with her two children, the maternal grandmother, Katrina T., and mother's 10-year-old brother and 15-year-old sister. She denied anyone spanked her children and, referring to K.M., stated "that little brat does not get disciplined at all." She admitted she and K.M. were not close and that K.M. preferred Katrina over her.
Mother denied physically abusing K.M. and gave various explanations for her injuries, none of which were consistent with them.
She said K.M. fell and hit a wooden table, bruising her eye and hit her abdomen on the edge of a bus seat. She also stated mother's brother kicked K.M. in the stomach two weeks before, after which K.M. had intermittent episodes of vomiting. Finally, she recanted the first three stories and said she struck K.M. with the back bumper of her boyfriend's vehicle while backing it up on the driveway. She "felt a bump," exited the vehicle and saw K.M. standing there. She thought she was uninjured because she was not crying. She was afraid to tell the truth for fear of losing custody of her children. She agreed to drug test and tested positive for marijuana.
Mother's boyfriend noticed K.M. was not feeling well the night before K.M. went to the hospital when she took only a few sips of her Slurpee and refused her french fries. The following morning, she refused a donut and threw up after eating a few bites of a taco. He said mother was upset that K.M. vomited in the car but he was anxious to get her to the hospital. However, according to Norma F., the children's maternal great-grandmother, he tried to dissuade mother from taking K.M. to the hospital. At one point, mother said her boyfriend "must have done something to [K.M.] to cause her injuries." However, she also said he was never alone with her children.
Norma told social worker Ida Ruiz the day after K.M.'s surgery she was interested in taking custody of the children and gave Ruiz her information.
Daniel M., the children's presumed father, claimed mother was involved in prostitution with her boyfriend. He saw pictures of them on Facebook showing large amounts of cash and smoking marijuana in the children's presence. He said Katrina snorted methamphetamine. He had never seen mother abuse the children. He was arrested on June 2, 2017, for five felony counts, including assault with a firearm, shooting at another person from a motor vehicle and shooting at an inhabited dwelling.
The department took then 11-month-old Jaden into protective custody and filed a dependency petition on the children's behalf, alleging they fell within the juvenile court's jurisdiction under section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), (e) (severe physical abuse) and (i) (cruelty). The department placed Jaden in foster care, where K.M. joined him upon her release from the hospital on June 14.
The juvenile court ordered the children detained, offered mother parenting classes and a mental health evaluation and ordered her to participate in a psychological evaluation pending its disposition of the case. The court also ordered supervised visitation.
The department recommended the juvenile court sustain the petition and deny the parents reunification services; mother under section 361.5, subdivision (b)(5) and (6) because of the severity of K.M.'s injuries, and Daniel under section 361.5, subdivision (e)(1) because he was incarcerated. The plan for the children was adoption or legal guardianship with a relative or a risk adopt home. Katrina stated she would adopt the children. The department was also assessing several relatives, including Katrina and Norma, for placement.
In October 2017, the juvenile court conducted a contested hearing on jurisdiction and disposition. Social worker Jennifer Wild testified mother completed a parenting class and tested negative for marijuana on her last drug test. The department's plan for the children remained adoption by Katrina, however, the foster mother also wanted to adopt the children.
Mother testified about striking K.M. with her boyfriend's vehicle. For the first time, she expressed her belief that she ran over K.M.'s abdomen with the tire of the car. She insisted that K.M. was standing after she hit her.
The juvenile court sustained the petition on the section 300, subdivisions (a), (b)(1) and (e) counts only and denied mother reunification services as recommended. The court did not find mother credible as to her explanation for K.M.'s injuries. The court ordered reunification services for Daniel because of the uncertain outcome of his criminal case and set the matter as to him for a six-month review hearing in April 2018. Following the court's rulings, mother's attorney asked the department to facilitate and expedite placement with Katrina if she met the standards and conditions of placement. He stated his understanding that she was going through the process which was nearing its completion. The court explained the policy of placing children with family and stated, "placement is understood and that's in the works."
DISCUSSION
Relative Placement Preference
Section 361.3, often referred to as the relative placement preference, provides in relevant part, "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 ...." (§ 361.3, subd. (a).) " 'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) "The statute does 'not supply an evidentiary presumption that placement with a relative is in the child's best interests' but it does require the social services agency and juvenile court to determine whether such a placement is appropriate, taking into account multiple factors including the best interest of the child, the parents' wishes, and the fitness of the relative." (In re R.T. (2015) 232 Cal.App.4th 1284, 1295, fn. omitted.) "The correct application of the relative placement preference places the relative 'at the head of the line when the court is determining which placement is in the child's best interests.' " (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033.)
"The relative placement provisions in section 361.3 apply when a child is taken from her parents and placed outside the home pending the determination whether reunification is possible. [Citation.] The relative placement preference also applies to placements made after the dispositional hearing, even when reunification efforts are no longer ongoing, whenever a child must be moved." (In re A.K. (2017) 12 Cal.App.5th 492, 498.)
According to the appellate record, the department was in the process of assessing relatives, including Norma and Katrina, at the time of the contested hearing. Mother nevertheless contends her attorney's request for expeditious placement required the juvenile court to set a relative placement hearing. We conclude mother forfeited the issue by failing to raise it in the juvenile court.
We assume, without deciding, that mother has standing to raise this issue on appeal. --------
Forfeiture
It is a general rule, applicable in dependency cases as in others, that an issue not raised at the trial court level is forfeited and may not be raised for the first time on appeal. "The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected." (In re S.B. (2004) 32 Cal.4th 1287, 1293 (S.B.), superceded by statute on other grounds.)
Here, mother did not raise any concerns with regard to the department's compliance with the relative placement statute and made no mention of Norma. Rather, her attorney essentially acknowledged the department was assessing relatives and simply requested that it expedite its assessment of Katrina. If mother was concerned about the department's diligence in assessing her relatives for placement, she had an opportunity to bring the issue to the juvenile court's attention. Having failed to do so, she deprived the court of the opportunity to address her concerns and forfeited any contentions she had regarding the adequacy of the department's assessment or the court's assessment of Norma for placement under the requirements of section 361.3. (In r e A.A. (2012) 203 Cal.App.4th 597, 605.) Further, though we can excuse forfeiture, mother does not persuade us to do so, having failed to show this case presents an important legal issue, constitutional violation or a pure question of law. (S.B., supra, 32 Cal.4th at p. 1293; In re T.G. (2013) 215 Cal.App.4th 1, 13-14; In re Sheena K. (2007) 40 Cal.4th 875, 887.)
DISPOSITION
The orders are affirmed.