Opinion
D076446
03-13-2020
In re A.N. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Appellant, v. F.E. et al., Defendants and Respondents.
Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Appellant. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Respondent F.E. Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Respondent S.N. Neale B. Gold, under appointment by the Court of Appeal, for Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J519962A-B) APPEAL from orders of the Superior Court of San Diego County, Kimberlee Lagotta and Edlene C. McKenzie-Clay, Judges. Affirmed. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Appellant. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Respondent F.E. Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Respondent S.N. Neale B. Gold, under appointment by the Court of Appeal, for Minors.
I
INTRODUCTION
The San Diego County Health and Human Services Agency (the Agency) appeals four juvenile court orders concerning the placement of A.N. and N.N. (together, the minors), who are siblings and dependents of the juvenile court. The first pair of orders placed the minors with K.S. (Ms. S.), a significant other to the minors' maternal grandfather (Grandfather) and a nonrelative extended family member (NREFM) to the minors. The second pair of orders dismissed supplemental petitions filed by the Agency under Welfare and Institutions Code section 387. The supplemental petitions sought removal of the minors from the custody of Ms. S. and placement with a licensed foster caregiver.
All further statutory references are to the Welfare and Institutions Code.
The Agency contends the juvenile court erred in placing the minors with Ms. S. because the court failed to satisfy the relative placement preference codified in section 361.3. The Agency further claims the court erred in dismissing its supplemental petitions at a detention hearing without setting a separate adjudicatory hearing to resolve contested factual issues. We conclude the Agency forfeited both arguments. The Agency also has failed to establish a violation of the relative placement preference and has not demonstrated prejudice arising from the court's failure to set a separate adjudicatory hearing for the supplemental petitions. Therefore, we affirm.
II
BACKGROUND
A
The Dependency Petitions
In January 2019, the Agency filed petitions under section 300, subdivision (a), alleging the minors suffered, or were at a substantial risk of suffering, serious physical harm inflicted nonaccidentally by their parents, F.E. (Mother) and S.N. (Father). The petitions alleged the parents had a history of domestic violence, including an incident in which Father threw boiling soup on Mother and the minors. In connection with the soup-throwing incident, Father was arrested and prohibited from contacting Mother or the minors. At the jurisdictional and dispositional hearing, the juvenile court sustained the dependency petitions, ordered family maintenance services for Mother and family reunification services for Father, and placed the minors with Mother.
B
The First Set of Supplemental Petitions
In May 2019, the Agency filed supplemental petitions under section 387, alleging the previous disposition was not effective in the rehabilitation or protection of the minors. They alleged Mother exhibited signs of substance abuse, failed to regularly participate in family maintenance services or drug testing, left the minors unsupervised, and left the minors for weeks in the care of relatives. They further alleged Father failed to make substantial progress in a drug treatment program and failed or was unable to protect the minors from Mother.
In its detention report, the Agency reported Mother left the minors for weeks in the care of the Grandfather and Ms. S., who the Agency variously referred to as the maternal grandmother or the maternal stepgrandmother. Mother left the minors with Grandfather and Ms. S. pursuant to a safety plan prepared in collaboration with the Agency. At the time the Agency filed its detention report, it was in the process of trying to clear the home of Grandfather and Ms. S. for emergency placement under the Resource Family Approval (RFA) program. However, unless and until such clearance occurred, the Agency recommended the minors be detained in the Polinsky Children's Center (Polinsky), a Polinsky adjunct, or a licensed foster home.
As discussed below, Ms. S. was not the maternal grandmother or maternal stepgrandmother because she was not married to Grandfather. For purposes of this opinion, we will adopt the parties' nomenclature and refer to her as Ms. S.
At the detention hearing on May 29, 2019, the Agency informed the juvenile court it had not cleared the home of Grandfather and Ms. S. for emergency RFA placement, but intended to assess the home for standard RFA placement. The court found the Agency made a prima facie showing and ordered the minors temporarily detained in accordance with the Agency's recommendations. Further, it continued the detention hearing to permit the minors' counsel to evaluate possible detention options.
At the continued detention hearing on May 30, 2019, a discussion ensued regarding the Agency's ongoing placement assessments and whether the home of Grandfather and Ms. S. was suitable for placement. Grandfather spoke at the hearing and stated he had a "criminal record," but would be willing to move out of the home to the extent his presence prevented placement there. The Agency did not support or oppose the proposal and instead responded that it was continuing to evaluate the home of Grandfather and Ms. S. for placement. The court opined it had concerns about the lack of an approved placement and confirmed its orders from the prior detention hearing.
Despite the Agency's best efforts to identify suitable placement options, the minors remained in detention at Polinsky for three weeks following the continued detention hearing. At the jurisdictional and dispositional hearing on June 20, 2019, the court opined it was "very concerned" about the minors' detention at Polinsky and stated it was "absolutely outrageous" that a placement with a relative had not been identified. Given these concerns, the court scheduled a special hearing to address the placement of the minors. The court also set the matter for trial at the request of the parents.
During the special hearing on June 21, 2019, the Agency stated it had worked diligently to identify placement options. It contacted 27 foster homes, without success. It also evaluated the home of Grandfather and Ms. S. for emergency placement, but denied approval based on the outcome of a background check. Further, it had not received a completed application from Grandfather and Ms. S. to evaluate the home for standard placement. The Agency conceded Polinsky was the "worst possible scenario," but argued the minors had to remain there in the absence of an approved placement. The court disagreed, however, and entered an interim detention order detaining the minors with Ms. S. on the condition Grandfather not reside in the home. The court opined that detention with Ms. S. was proper because Grandfather was willing to move out of the home and he—not Ms. S.—suffered from the criminal conviction. In accordance with this order, Grandfather moved out of the home and the minors were detained with Ms. S.
At the contested adjudication hearing on July 15, 2019, the juvenile court found the allegations of the supplemental petitions true and, over the Agency's objection, placed the minors with Ms. S. on the condition Grandfather not be in the home. Throughout the hearing, the parties and the court apparently believed Grandfather and Ms. S. were married. In particular, the court asked the Agency whether Ms. S. was a relative or an NREFM and the Agency incorrectly stated she was "a relative by marriage."
C
The Special Hearing Regarding Placement
After the contested adjudication hearing, the Agency received fingerprint results confirming that Grandfather had a prior criminal conviction. According to the Agency, the conviction was nonexemptible, meaning the minors could not be placed with him.
"Convictions generally fall into two categories: exemptible and nonexemptible. [Citations.] If an offense is exemptible, a designated county agency has the authority to grant an exemption where there is 'substantial and convincing evidence to support a reasonable belief that the person with the criminal conviction is of such good character as to justify the placement and not present a risk of harm to the child ....' [Citation.] If an offense is nonexemptible, the child cannot be placed in that home." (In re Autumn K. (2013) 221 Cal.App.4th 674, 707.)
On July 29, 2019, the juvenile court held a special hearing regarding the minors' placement. The Agency urged the court to place the minors in a foster home and argued placement with Ms. S. was improper for two reasons: (1) Ms. S. sought RFA approval jointly with Grandfather, not on her own behalf; and (2) the Agency believed Grandfather would have significant contact with the minors if they were placed with Ms. S.
During the special hearing, the juvenile court questioned Ms. S. directly regarding whether Grandfather lived in the home. She responded that he did not live in or own the home. She also disclosed that she and Grandfather were not married. Grandfather spoke at the hearing as well and stated he would stay out of the home "[a]s long as it takes ...." At the close of the hearing, the court denied the Agency's recommendation to place the minors in a foster home and ordered they remain placed with Ms. S., on the condition Grandfather not be in the home.
D
The Second Set of Supplemental Petitions
On August 8, 2019, the Agency filed a second set of supplemental petitions under section 387. They alleged continued placement with Ms. S. was improper because Grandfather was convicted of a nonexemptible criminal offense and Ms. S.'s home had not received RFA approval. The Agency recommended placement in a foster home.
At the detention hearing on August 9, 2019, Father—joined by the minors—asked the juvenile court to dismiss the supplemental petitions immediately on grounds there had been no change in circumstances since the last time the court placed the minors with Ms. S. Mother did not join Father's dismissal request, but generally denied the supplemental petitions.
During the hearing, the court swore Ms. S. in as a witness and questioned her directly. It asked her whether she intended to seek RFA approval solely on her own or, alternatively, with Grandfather. Ms. S. replied, "Solely." At the Agency's request, the court questioned Ms. S. whether she understood Grandfather would not be allowed to return to the family home, even if she were approved for placement. Ms. S. replied, "I understand that." Next, the court questioned the Agency whether it had information or evidence indicating the minors received "less-than-good care" with Ms. S. The Agency replied, "No, your Honor." Finally, the court questioned the Agency whether it had information or evidence suggesting Grandfather had returned to the home, other than one occasion during which he returned to the home to meet with an RFA representative when the minors were not present. The Agency replied, "No."
Following this colloquy, the court dismissed the supplemental petitions. It opined as follows: "Based on the four corners of the 387 petition[s] it doesn't appear that there's been changed circumstances since the last court order[s] on July 15th and July 29th. According to the testimony of Ms. [S.,] she intends to go forward solely under the R.F.A. process. [¶] ... [¶] So the court doesn't find that there's been any substantial changed circumstances since the last hearing, and it appears from every indication that the children are receiving very good care in the home of Ms. [S.]. This is their family, this is the family that they know that's participated in their lives, and so the court is going to respectfully dismiss the 387 petition[s].... I'll deny the prima facie and dismiss."
The Agency appeals: (1) the July 29, 2019 placement orders; and (2) the August 9, 2019 orders dismissing the supplemental petitions.
III
DISCUSSION
A
Standing
Mother, Father, and the minors argue the Agency was not aggrieved by the juvenile court's orders. They claim the Agency thus lacks standing to appeal the orders.
" ' "In juvenile dependency proceedings, as in civil actions generally [citation], only a party aggrieved by the [order or] judgment has standing to appeal. [Citations.]" ' [Citations.] 'To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the court's decision.' " (In re D.M. (2012) 205 Cal.App.4th 283, 293, 294.) To determine whether the Agency was aggrieved by the juvenile court's orders, we must first examine the role of the Agency in dependency cases like this one.
" 'The county's social services agency plays a "hybrid" role in dependency proceedings, exercising both executive and judicial functions.' " (In re M.C. (2011) 199 Cal.App.4th 784, 809.) In its role as an arm of the court, the county social services agency "provides essential information to the court." (In re Ashley M. (2003) 114 Cal.App.4th 1, 7.) In particular, it "prepare[s] social study reports and make[s] recommendations to assist the court," (M.C., at p. 810), including recommendations regarding the appropriateness of relative placements (§ 358.1, subd. (h)).
At other times, the county social services agency "assumes a role akin to the prosecutor in ... a juvenile delinquency proceeding. [Citations.] In that role, the social services agency generally is responsible for initiating dependency proceedings on a minor's behalf." (In re G.B. (2018) 28 Cal.App.5th 475, 487.) It also has authority to "seek to change a child's placement either because the existing placement is no longer effective in protecting the child or the relative with whom the child had been placed no longer meets the criteria in section 361.3." (In re A.O. (2004) 120 Cal.App.4th 1054, 1061 (A.O.); § 387, subd. (b).) In exercising its duties, the county social services agency " ' "stands in loco parentis to the minor in a proceeding whose primary consideration is the minor's welfare." ' " (In re Jennifer G. (1990) 221 Cal.App.3d 752, 759.)
Given the Agency's statutory duty to make recommendations to the juvenile court regarding placement, its statutory authority to seek changes of placement, and its status in relation to the minors, we conclude the Agency had a cognizable interest that was injuriously affected by the orders in this case. In short, the Agency was aggrieved when the juvenile court declined to accept the Agency's placement recommendation and dismissed the Agency's supplemental petitions, which the Agency filed while standing in loco parentis to the minors. (See In re D.R. (2010) 185 Cal.App.4th 852, 859 [social services agency had cognizable legal interest that was injuriously affected when juvenile court denied agency's motion to terminate de facto parent status].) On these grounds, we conclude the Agency has standing to challenge the juvenile court's orders.
B
Relative Placement Preference
The juvenile court initially placed the minors with Ms. S. at the July 15, 2019 adjudication hearing, when all indications were that Ms. S. was married to Grandfather and therefore a relative of the minors. However, at the special hearing on July 29, 2019, Ms. S. disclosed that she and Grandfather were not married. Thus, Ms. S. is—as Mother, Father, and the Agency all agree—an NREFM as defined by section 362.7. On appeal, the Agency contends the court violated the placement preference for relatives codified in section 361.3 when it permitted the minors to remain placed with Ms. S. after it became apparent she was an NREFM and not a relative.
The minors claim Ms. S. is "arguably" a relative of the minors because she adopted the minors' first cousins. Under section 361.3, subdivision (c)(2), a relative is defined as "an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words 'great,' 'great-great,' or 'grand,' or the spouse of any of these persons even if the marriage was terminated by death or dissolution." Given that a person qualifies as a relative only if he or she is related "to the child," not merely related to the child's relative(s), we have doubts that Ms. S. qualifies as a relative to the minors. Apparently, the minors share these doubts, as shown by their equivocal claim that she is "arguably" a relative to the minors. However, we do not address this question of statutory interpretation because we affirm the juvenile court's orders on other grounds.
When a child is adjudged a dependent and removed from his or her parents' custody, section 361.3 requires "preferential consideration ... be given to a request by a relative of the child for placement of the child with the relative ...." (Id., subd. (a).) " ' "Preferential consideration" means that [a] relative seeking placement shall be the first placement to be considered and investigated.' [Citation.] 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. [Citation.] '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." [Citation.]' " (In re R.T. (2015) 232 Cal.App.4th 1284, 1295-1296.)
Although the Agency argues on appeal that the juvenile court violated the relative placement preference, it did not assert a relative placement preference objection in the proceedings below. "A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.] Forfeiture ... applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222; In re S.B. (2004) 32 Cal.4th 1287, 1293 ["Dependency matters are not exempt from this rule."], superseded by statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 961-962.) Because the Agency did not interpose a relative placement preference objection below, we conclude it has forfeited the argument on appeal. (See In re Cody R. (2018) 30 Cal.App.5th 381, 391 [parent forfeited relative placement argument]; In re A.K. (2017) 12 Cal.App.5th 492, 501 [same].)
Even if the Agency had preserved its relative placement preference argument, it has not established a violation of section 361.3. The relative placement preference applies only when there has been "a request by a relative of the child for placement of the child with the relative ...." (§ 361.3, subd. (a), italics added.) While the Agency identified certain relatives for RFA assessments, there is no indication these relatives requested placement. On the contrary, the Agency asked the juvenile court to find there was "not a relative available who [was] able and willing to care for the [minors]." Because the record does not disclose a relative who requested and was denied preferential placement consideration, the Agency has failed to establish a violation of section 361.3.
C
Dismissal of the Supplemental Petitions
On August 8, 2019, the Agency filed a second set of supplemental petitions under section 387, which requested that the juvenile court remove the minors from the custody of Ms. S. and place them with a foster caregiver. The following day, the court conducted a hearing during which it questioned Ms. S. whether she intended to seek RFA approval individually or jointly with Grandfather. After Ms. S. stated she intended to seek approval individually, the court "den[ied] the prima facie" and dismissed the supplemental petitions.
When an agency seeks to change the placement of a dependent child from the care of a parent, guardian, relative, or friend to a more restrictive placement such as a foster home, the agency must file a supplemental petition under section 387. (Id., subd. (a); see Cal. Rules of Court, rule 5.560(c).) The petition must allege "facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child ...." (§ 387, subd. (b).) "Upon the filing of the supplemental petition, the clerk of the juvenile court shall immediately set the same for hearing within 30 days ...." (Id., subd. (d).)
The California Rules of Court shall herein be referred to as the Rules. --------
A supplemental petition under section 387 requires a bifurcated proceeding. (In re Jessica C. (2007) 151 Cal.App.4th 474, 481; Rule 5.565(e).) In the first phase, "the court must follow the procedures relating to a jurisdictional hearing on a section 300 petition ...." (In re Jonique W. (1994) 26 Cal.App.4th 685, 691.) "At the conclusion of this so-called jurisdictional phase' of the section 387 hearing [citation], the juvenile court is required to make findings whether: (1) the factual allegations of the supplemental petition are or are not true; and (2) the allegation that the previous disposition has not been effective in protecting the child is, or is not, true." (Ibid.; Rule 5.565(e).) "The department must prove the jurisdictional facts by a preponderance of legally admissible evidence." (Jonique W., at p. 691.)
If the court finds the jurisdictional facts true, it must make an appropriate disposition in the second phase of the proceeding. During the second phase, the court must conduct a dispositional hearing "on the need to remove the child from his or her current level of placement." (In re Javier G. (2006) 137 Cal.App.4th 453, 460.) At the dispositional hearing, the court applies the same procedures governing a dispositional hearing under section 300. (In re A.O. (2010) 185 Cal.App.4th 103, 110; Rule 5.565(e)(2).)
The Agency argues the juvenile court erred in dismissing the supplemental petitions at the August 9, 2019 detention hearing, rather than setting a separate jurisdictional hearing for the resolution of contested factual issues. In support of this claim, the Agency cites section 387, subdivision (e), which states as follows: "An order for the detention of the child pending adjudication of the petition may be made only after a hearing is conducted ...." (Italics added.) According to the Agency, this provision impliedly requires the court to conduct a detention hearing separate from, and prior to, adjudication of the supplemental petition at the jurisdictional hearing.
There is some authority suggesting that a juvenile court should not decide a contested petition filed by a social services agency without setting a separate adjudication hearing. (See In re Justin O. (Mar. 2, 2020, No. B287406) ___ Cal.App.5th ___ [2020 Cal.App. Lexis 176, *17-20] [juvenile court erred in sustaining supplemental petition without permitting relative to contest petition at hearing with evidence and argument]; accord Los Angeles County Dept. of Children & Family Services v. Superior Court (2008) 162 Cal.App.4th 1408, 1416 [for original dependency petitions, "the statutory scheme appears to envision that the sufficiency of the dependency petition will be addressed at the adjudication, not at the detention hearing"].)
However, we need not reach the merits of the Agency's argument because the Agency did not raise its argument in the proceedings below. Nor did it request a separate adjudicatory hearing for the supplemental petitions or the opportunity to submit additional evidence. By failing to object to the juvenile court's purported error and not requesting an adjudicatory hearing, the Agency has forfeited its argument on appeal. (A.O., supra, 120 Cal.App.4th at p. 1061, fn. 4 [appellant forfeited argument that juvenile court erroneously failed to conduct bifurcated jurisdictional and dispositional hearings by failing to object]; In re Miguel E. (2004) 120 Cal.App.4th 521, 542 [same].)
Even if we were to assume the juvenile court erred, we would affirm the dismissal orders because the Agency has not articulated any discernable prejudice. Counsel for the Agency conceded during the detention hearing that it had no information or evidence indicating Grandfather had returned to the family home since his departure, except for a single instance in which he went to the home to discuss the RFA process with the Agency. The Agency also conceded it had no information or evidence calling into question the quality of care that Ms. S. provided the minors. Moreover, under questioning by the juvenile court, Ms. S. testified under oath that she intended to proceed with the RFA approval process on her own. Further, the Agency asked the court to question Ms. S. regarding whether she understood that Grandfather would not be allowed to return to the home—and the court obliged. Though perhaps not a separate adjudicatory hearing, the court's questioning of Ms. S., with the input of the Agency, cuts against any notion that the dismissal order prejudiced the Agency.
The Agency contends that it was deprived of the opportunity to present witnesses, but does not identify the witnesses it would have presented or the testimony it might have elicited. Similarly, the Agency claims a separate adjudicatory hearing would have enabled it to cross-examine Ms. S. regarding her relationship with Grandfather, but does not articulate what it thinks such cross-examination might have revealed. The Agency's failure to supply such information, coupled with its concessions below, lead us to conclude the asserted error was harmless. (In re G.B. (2014) 227 Cal.App.4th 1147, 1162, 1164-1165 [juvenile court's failure to set a contested hearing regarding mother's request to modify prior order was harmless because mother identified "no additional evidence" she would have presented at contested hearing]; In re Brian W. (1996) 48 Cal.App.4th 429, 432-433 [asserted error in referee's rendering of jurisdictional findings without a full jurisdictional hearing harmless beyond a reasonable doubt].)
We base our decision today, in part, on the absence of any indication in the record that the minors have relatives who requested and were denied preferential consideration for placement, as well as the Agency's concessions that Ms. S. has provided suitable care for the minors and that Grandfather has not returned to the family home. In the event these circumstances change or placement with Ms. S. is otherwise no longer effective in the rehabilitation or protection of the minors, the Agency is not foreclosed from filing new supplemental petitions in the juvenile court or seeking other appropriate relief pertaining to the minors' placement.
IV
DISPOSITION
The orders are affirmed.
McCONNELL, P. J. WE CONCUR: DATO, J. GUERRERO, J.