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In re M.S.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 5, 2012
No. F062814 (Cal. Ct. App. Jan. 5, 2012)

Opinion

F062814

01-05-2012

In re M.S., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. LOLA H., Defendant and Appellant.

Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 515768)


OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.

Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.

John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.

Appellant Lola H., the mother of M.S., Jr., contends the juvenile court erred when it failed to find that the Stanislaus County Community Services Agency (Agency) abused its discretion in denying a relative placement. We will affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

On June 9, 2010, a search warrant was served at the home Lola shared with her son and mother, M.S.'s maternal grandmother (maternal grandmother). The home had been under surveillance because of gang activity. Officers found Lola and maternal grandmother "smoking dope" and feeding M.S. and two other children at the same time. Lola's bedroom, which she shared with M.S., was decorated in Norteno gang colors and there was drug paraphernalia in the bedroom. There were 25 to 30 marijuana plants growing in the backyard. Lola was arrested and M.S. was placed in protective custody.

On June 11, 2010, a Welfare and Institutions Code section 300 petition was filed on behalf of M.S. The petition set forth the facts surrounding Lola's arrest and M.S.'s detention and alleged that M.S. was at substantial risk because of Lola's substance abuse and her failure to protect and supervise M.S. adequately. The petition further alleged that Lola and M.S.'s father were incarcerated and unable to provide for M.S.'s care and support.

All further statutory references are to the Welfare and Institutions Code.

The detention report noted that Lola and M.S.'s father had criminal records. Lola's criminal record pertained to controlled substances. There was no history of referrals regarding M.S.; Lola and M.S.'s father, however, had been the subject of referrals as children. On June 14, 2010, the juvenile court ordered M.S. detained.

The jurisdiction report noted that M.S. had been placed in foster care. Lola was involved in gang activity and was using illegal drugs, which placed M.S. at risk. The police report reflected that items connected to sales of controlled substances were seized from the home, including Lola's bedroom, as well as bullets.

At the time the social worker first made contact with Lola on the day of her arrest, Lola appeared to be under the influence of a controlled substance. Lola had two black eyes and both eyes were red from broken blood vessels. Lola denied she had done anything wrong.

Maternal grandmother and Lola's brother reported that Lola had been threatening them. Maternal grandmother wanted Lola out of her home, but she wanted custody of M.S. Maternal grandmother explained that she used marijuana and had a medical marijuana card. The social worker and maternal grandmother discussed maternal grandmother's criminal record and her record of referrals for child abuse, neglect, and/or endangerment. The social worker told maternal grandmother that it "did not look hopeful" she would get custody of M.S.

A placement specialist was assessing whether there were any relatives with whom M.S. could be placed. Maternal grandmother had seven felony and seven misdemeanor convictions and did not qualify for placement. On June 17, 2010, placement applications were provided to a paternal aunt (paternal aunt), the paternal grandmother (paternal grandmother), and a family friend. Lola had been asked if she had any siblings over the age of 18 who potentially could be considered for placement; Lola did not provide any specific names or contact information.

A combined jurisdictional and dispositional hearing was set for July 7, 2010. Prior to the hearing, a social worker met with Lola. Lola maintained she had been falsely accused of gang activity and that the drug paraphernalia found in her room did not belong to her, although she acknowledged using marijuana.

On July 7 the juvenile court was asked to continue the hearing. Lola wanted M.S. placed with maternal grandmother; the social worker indicated it was very unlikely maternal grandmother would be approved as a placement. The juvenile court asked the placement specialist to be present at the continued hearing.

At the continued jurisdictional/dispositional hearing on July 21, 2010, Lola signed a waiver of rights and submitted on the petition. The juvenile court found the petition to be true and proceeded to disposition. At disposition, the social worker stated that placement with paternal aunt had been approved and that M.S. had been placed with paternal aunt on July 20. Lola was granted reunification services. Reunification services were denied the alleged father.

On August 17, 2010, paternal aunt reported concerns with maternal grandmother's involvement with gangs and that maternal grandmother was following her. Paternal aunt also expressed concerns about M.S.'s development issues and her inability to handle them. At the request of paternal aunt, M.S. was moved to a foster home on August 20. On August 26, Lola told the social worker she had other relatives who might be interested in being approved for placement, but maternal grandmother would have to be contacted for information about them.

During the week of September 23, 2010, M.S.'s maternal aunt (maternal aunt) asked for custody. The social worker spoke with maternal aunt on September 27. Maternal aunt explained she had been living out of state and recently had returned to California and learned of the section 300 proceeding. Maternal aunt had never met M.S. and the social worker invited her to visit. The social worker sent a letter to maternal aunt stating that M.S. was not in need of a placement at that time but, if a change was needed, maternal aunt would be considered. A placement application and information also were mailed to maternal aunt.

On November 19, 2010, maternal aunt visited M.S. and submitted to a live scan. The social worker received the results of the live scan on December 7, 2010, showing that maternal aunt had a criminal record. The social worker contacted maternal aunt and explained that placement with her was very unlikely because of her husband's and her criminal records. The results of the live scan did not match what maternal aunt and her husband had reported to the Agency.

M.S. remained in the foster home; the foster parents were willing to adopt if reunification with Lola failed and were aware of and attentive to M.S.'s special needs.

Lola continued to deny gang involvement and wanted M.S. placed with maternal grandmother so Lola could reunify upon release from prison. Lola had been charged with residential burglary and robbery. She remained in custody.

The six-month review report recommended terminating reunification services and setting a section 366.26 hearing. The recommendation was for adoption as the permanent plan. The social worker stated that her observations of the visits between maternal aunt and M.S. were that "interaction ... was mostly non-existent."

During the January 6, 2011, six-month review hearing, a contested section 366.21 hearing was requested to address the issue of relative placement. Lola's counsel asked that an expert be allowed to observe the visits between maternal aunt and M.S.; this request was granted.

A bonding assessment and relative placement report was performed on January 28, 2011. Jeffrey Miller, Ph.D., opined that M.S. "did not show any problems with seeing [maternal aunt's family] or separating from them." Miller did note that the limited interaction between maternal aunt's family and M.S. meant that a strong bond had not formed between them. Miller concluded that placement with maternal aunt's family would not cause M.S. any "significant emotional harm or detriment."

The court-appointed special advocate (CASA) filed a report with the juvenile court on March 30, 2011, in which she recommended that the current placement with the foster parents be maintained and the foster parents be allowed to adopt M.S. CASA expressed concern over the criminal history of maternal aunt and her husband, their failure to reveal and explain the criminal convictions accurately, and their past lack of contact with Lola's family and M.S. CASA also noted that M.S. did not exhibit any strong bond with any of Lola's family; his only strong bond was with the foster parents. CASA saw no evidence that M.S. viewed any of Lola's family as his family. CASA expressed concern that separating M.S. from the foster family might lead to M.S.'s developing an attachment disorder.

The Agency refused to place M.S. with maternal aunt and her husband because of their criminal history, which apparently included two controlled substance convictions, possession of drug paraphernalia, welfare fraud, illegal possession of a knife, resisting arrest, and contributing to the delinquency of a minor.

Prior to the contested section 366.21 hearing, Lola filed a section 388 petition and the juvenile court set a hearing on both matters for May 5, 2011. As of April 5, 2011, the social worker had not received the necessary information and documents from maternal aunt to process a request for a criminal records exemption, a necessary prerequisite to being considered for placement. The Agency opposed changing M.S.'s placement.

At the contested section 366.21 and section 388 hearing, the Agency argued that the juvenile court was not empowered to order direct placement of M.S. with maternal aunt and her family; the juvenile court could determine only whether the Agency had abused its discretion in denying placement with M.S.'s relative. The juvenile court agreed and found that the Agency had not abused its discretion in processing the criminal records exemption.

The juvenile court then denied the section 388 petition. It found that the test was the best interests of the child, and M.S.'s best interests were to remain with the foster parents. The juvenile court also found that the Agency had made diligent efforts to make a relative placement. As to the section 366.21 portion of the hearing, the juvenile court disagreed with the Agency and ordered that additional services be provided Lola until a 12-month review hearing.

DISCUSSION

Lola challenges the juvenile court's denial of her section 388 petition, asserting the juvenile court erred when it failed to find that the Agency abused its discretion with respect to relative placement.

Standard of Review

The Agency's denial of a criminal records exemption is reviewed by the juvenile court for an abuse of discretion. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1049.) The juvenile court applied the correct standard of review and concluded the Agency did not abuse its discretion in denying a criminal records exemption.

Lola, as the party filing the section 388 petition, was required to establish by a preponderance of the evidence that there was a change of circumstances or new evidence and that the relief requested in the petition was in the best interests of the minor. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)

Based on the juvenile court's conclusion that the Agency did not abuse its discretion in denying a criminal records exemption, and the best interests of the child were to maintain the current placement, the juvenile court denied the section 388 petition filed by Lola.

This court reviews the juvenile court's decision on the section 388 petition under an abuse of discretion standard. Resolution of a petition pursuant to section 388 is "addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. [Citations.]" (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416 (Jasmon O.).)

Analysis

Section 361.3 gives preferential consideration to placement requests by certain relatives upon a child's removal from his or her parents' home at disposition. (In re Lauren R. (2007) 148 Cal.App.4th 841, 854.) Here, M.S. was placed with a relative at disposition, paternal aunt, who was the only relative who qualified for placement and who was willing to accept M.S.

One month after being placed with paternal aunt, M.S. was removed from that home at paternal aunt's request. M.S. was placed in foster care because there were not any relatives willing and qualified to accept him. Thirty-three days after M.S. was placed in foster care, maternal aunt made her first contact with the Agency and the Agency sent her a placement application.

Before a child may be placed with a relative, the Agency is required to consider the "best interests of the child, including special physical, psychological, educational, medical, or emotional needs," the "good moral character of the relative and any other adult living in the home," and the "nature and duration of the relationship between the child and the relative." (§ 361.3, subd. (a)(1), (5), (6).)

In this case, two months after maternal aunt first contacted the Agency and three months after M.S. had been placed in foster care, maternal aunt submitted to a live scan so the Agency could do a criminal background check. The results of that criminal background check disclosed that maternal aunt and her husband had criminal records. The criminal background check revealed criminal records that were different than those that maternal aunt and her husband had disclosed to the Agency in their placement application.

Subsequently, there were a series of communications from the Agency to maternal aunt requesting copies of police reports for all criminal convictions. When the Agency was told copies of police reports for all convictions were unavailable, the Agency requested maternal aunt to provide a letter from the police departments to that effect.

The Agency spoke with maternal aunt to express its concern that (1) all requested paperwork had not been received as of February 7, 2011; (2) there were discrepancies between what was reported by maternal aunt and her husband and what the criminal records check disclosed; and (3) maternal aunt and her husband needed to explain each of their criminal convictions. Both maternal aunt and her husband had multiple criminal convictions.

In a report filed May 3, 2011, the Agency noted that even if M.S. were in need of a change in placement, the Agency would not place M.S. with maternal aunt and her husband because of the criminal convictions and the failure to report her husband's and her criminal backgrounds accurately. The Agency did not feel it could process a criminal records exemption.

The criminal backgrounds and the failure to be truthful about their criminal history pertains to the "good moral character" of maternal aunt and her husband, which the Agency was required to consider pursuant to section 361.3, subdivision (a)(5).

Maternal aunt acknowledged that she and her immediate family had no preexisting relationship whatsoever with M.S. This is a factor to consider pursuant to section 361.3, subdivision (a)(6).

CASA recommended the current placement with the foster parents be maintained and that the foster parents be allowed to adopt M.S. CASA expressed concern over the criminal history of maternal aunt and her husband, their failure to reveal and explain the criminal convictions accurately, and their past lack of contact with Lola's family and M.S. CASA also noted that M.S. did not exhibit any strong bond with any of Lola's family; his only strong bond was with the foster parents. CASA saw no evidence that M.S. viewed any of Lola's family as his family. CASA expressed concern that separating M.S. from the foster family might lead to M.S.'s developing an attachment disorder. The Agency is required to consider the best interests of the child in making a placement. (§ 361.3, subd. (a)(1).)

Even if we were to assume maternal aunt and her husband provided all requested information regarding their criminal backgrounds on a timely basis, the Agency was not required to grant a criminal records exemption and place M.S. with them. There is no entitlement to placement by a relative, merely a preference if the relative satisfies the statutory requirements. (In re Luke L. (1996) 44 Cal.App.4th 670, 677-681; In re Sarah S. (1996) 43 Cal.App.4th 274, 282.)

Also, even if we were to ignore the criminal histories, there was no preexisting relationship between maternal aunt's family and M.S. and no evidence that M.S. had bonded with maternal aunt and her family. There was evidence, however, that M.S. had established a strong bond with his foster family. CASA opined that it was in M.S.'s best interests to remain placed with his foster family.

The best interests of the child are the primary focus of a section 361.3 analysis. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1068.) The best interests of the child are controlling and may require that a relative placement preference be rejected when a child has developed a strong bond with a foster family. (Stephanie M., supra, 7 Cal.4th at p. 321.)

Lola had the burden of proof on the section 388 petition and she failed to meet that burden. (Stephanie M., supra, 7 Cal.4th at p. 317.) The evidence did not compel a finding in her favor. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528; Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571.)

We conclude the juvenile court did not abuse its discretion in denying Lola's section 388 petition. (Jasmon O., supra, 8 Cal.4th at pp. 415-416.)

DISPOSITION

The denial of the section 388 petition is affirmed.

______________________

CORNELL, J.

WE CONCUR:

______________________

WISEMAN, Acting P.J.

______________________

GOMES, J.


Summaries of

In re M.S.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 5, 2012
No. F062814 (Cal. Ct. App. Jan. 5, 2012)
Case details for

In re M.S.

Case Details

Full title:In re M.S., a Person Coming Under the Juvenile Court Law. STANISLAUS…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 5, 2012

Citations

No. F062814 (Cal. Ct. App. Jan. 5, 2012)