In re G.H. CA5 ( 2015 )

Filed 10/1/15 In re G.H. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re G.H., a Person Coming Under the Juvenile
Court Law.
KERN COUNTY DEPARTMENT OF HUMAN F070493
SERVICES,
(Super. Ct. No. JD132681-00)
Plaintiff and Respondent,
v. OPINION
LEANNA S.,
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Louie L. Vega,
Judge.
Kristin Bryce Smith, under appointment by the Court of Appeal, for Defendant
and Appellant.
Theresa A. Goldner, County Counsel, and Amanda LeBaron, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Kane, Acting P.J., Detjen, J. and Smith, J.
INTRODUCTION
Appellant Leanna S. (mother), the mother of G.H., was denied reunification
services on the basis of Welfare and Institutions Code section 361.5, subdivisions (b)(10)
and (11), and (e)(1).1 Mother appeals, contending the juvenile court erred in failing to
place G.H. with his maternal grandmother. Mother lacks standing to raise this issue.
Regardless, the contention lacks merit, and we will affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
Prior to the detention of G.H., mother had been residing in various locations, and
G.H. had been in the care of his maternal grandmother on and off during the month prior
to detention. On May 31, 2014, mother had brought G.H. to a motel room where she was
living. He had been crawling around on the floor and then began crying and pulling at
his ear. Mother took him to the emergency room.
It was determined G.H. had ingested methamphetamine; he was hospitalized for
treatment. Mother initially claimed G.H. must have obtained the drugs while crawling
around on the floor. Hospital staff called the local police department. When interviewed
by the police, mother initially denied being under the influence of a stimulant; she later
admitted to having smoked methamphetamine that afternoon. Mother was arrested for
child endangerment and placed in custody. The motel room was searched and a
methamphetamine pipe, baby toys, and food were found in the room.
The Kern County Department of Human Services (Department) filed a petition
pursuant to section 300, subdivisions (b) and (j). The petition alleged that mother had
allowed G.H. to crawl on the floor of a dirty motel room while she was under the
influence of methamphetamine; G.H. subsequently tested positive for amphetamine and
methamphetamine. Consequently, it was alleged G.H. had suffered, or was at substantial
1Allfurther statutory references are to the Welfare and Institutions Code unless
otherwise specified.
2.
risk of suffering, harm due to mother’s substance abuse and mother’s resultant failure to
supervise and protect G.H. adequately.
The petition also alleged that G.H.’s siblings had been neglected while in the care
of mother and there was a substantial risk G.H. would be neglected within the meaning of
section 300, subdivision (j). The oldest sibling had been detained in 2001 when it was
found the child had a serious infection on his foot and penis; mother was charged with
child endangerment. Mother admitted to using marijuana and methamphetamine.
Reunification services were provided to mother, but she failed to reunify and parental
rights were terminated. This minor was adopted in 2003.
Additionally, the petition alleged that another sibling had been detained in 2003.
Mother was denied reunification services in that case pursuant to section 361.5,
subdivision (b)(11). This sibling was adopted in 2004.
The social worker met with mother on June 2, 2014. Mother asked if G.H.’s
maternal grandmother could have custody of G.H. The detention hearing was held on
June 4, at which time the juvenile court made findings that a prima facie showing had
been made that G.H. fell within the scope of section 300 and continuance in the home
would be contrary to G.H.’s welfare. The juvenile court also found that Ga.H. was the
presumed father. Ga.H. was incarcerated at the time of the detention hearing. Mother
was to be provided visitation twice per week for two hours.
The juvenile court ordered the Department to evaluate any interested relative or
nonrelated extended family member for placement. G.H. initially was placed with a
licensed foster family on May 31, 2014. A nonrelated extended family member, Tracey
E., applied for placement on June 2, 2014. On June 16, a maternal aunt and uncle applied
for placement.
On June 30, 2014, the foster family caring for G.H. gave notice that the child
needed to be moved. Mother asked if G.H. could be placed with Tracey. On July 1,
Tracey was approved for placement.
3.
On July 1, 2014, G.H.’s paternal cousins submitted an application for placement,
and G.H. was placed temporarily with the paternal cousins on July 9. Formal placement
with the paternal cousins was made by the Department on July 18, 2014. On August 25,
2014, the paternal cousins indicated they were interested in adopting G.H.
G.H.’s maternal grandmother requested placement on July 11, 2014. She spoke
with a social worker and indicated she was interested in a legal guardianship and would
consider adopting G.H. if she had to do it. The maternal grandmother had not yet
commenced the home study process or attended an adoption and permanent plan
orientation.
The maternal grandmother did not believe her daughter had been using drugs. She
believed mother had been set up by someone who had planted drugs in the hotel room.
The maternal grandmother had a lengthy criminal history.
On October 7, 2014, a continued jurisdictional and dispositional hearing was held.
The juvenile court found that proper notice had been given to all appropriate parties.
Mother had signed a waiver of rights form and the juvenile court verified that mother
understood her rights, had consulted with counsel before executing the form, and was
making a knowing and voluntary waiver of her rights. The juvenile court continued the
dispositional hearing to allow the Department to finish an evaluation of G.H.’s maternal
grandmother for possible placement of G.H.
On November 4, 2014, the Department made the decision to keep G.H. in his
current placement with his paternal cousins and not place him with his maternal
grandmother. The Department cited several reasons: (1) maternal grandmother had
waited until July 2014 to request placement instead of making the request upon initial
detention; (2) the maternal grandmother continued to make excuses for mother’s drug
use; and (3) the current caretakers, the paternal cousins, were committed to adopting
G.H., whereas the maternal grandmother wanted only legal guardianship.
4.
At the November 10, 2014, dispositional hearing, G.H.’s maternal grandmother
testified extensively. She testified she was aware mother’s other children had been
removed from mother’s custody due to mother’s substance abuse. She also was aware
mother had drug charges dating back to January 2013 and April 2014, but she did not
believe mother constituted a risk to G.H.’s well-being. In summation, mother’s counsel
addressed section 361.3’s placement preferences, arguing G.H.’s maternal grandmother
should be the preferred placement; counsel for G.H. argued against placement with the
maternal grandmother and urged continuing placement with the paternal cousins; and the
Department urged continued placement with the paternal cousins as in the best interests
of G.H.
The juvenile court noted that mother had used methamphetamine on the day G.H.
was taken to the hospital and that six or seven months prior to that mother had been
arrested three times for possession of drug paraphernalia. Despite mother’s history of
substance abuse, including the substance abuse that triggered the dependency petition on
behalf of G.H., the maternal grandmother claimed to have never noticed her daughter was
abusing drugs. The juvenile court noted that mother had a long history of substance
abuse; she had not made any significant progress toward ameliorating the substance
abuse issues; and the maternal grandmother “ha[d] still not accepted” mother had a
substance abuse problem that adversely impacted G.H.
The juvenile court ordered that family reunification services be denied mother
based upon section 361.5, subdivisions (b)(10) and (11), and (e)(1). As for G.H.’s
placement, the juvenile court noted that the placement that was in G.H.’s best interests
was to remain with the paternal cousins. The paternal cousins had sought placement
early and had had custody of the minor since July 9, 2014, a period of four months at the
time of disposition.
Mother filed a notice of appeal on November 18, 2014.
5.
DISCUSSION
Mother filed a notice of appeal on November 18, 2014. The notice of appeal
stated mother was appealing denial of reunification services and denial of placement with
the maternal grandmother.
As for the denial of reunification services to mother, this issue was not argued or
briefed in mother’s opening brief. “Issues do not have a life of their own: if they are not
raised … we consider the issues waived.” (Jones v. Superior Court (1994) 26
Cal. App. 4th 92, 99.) Failure to address the issue in the opening brief constitutes a waiver
of the issue. (Moore v. Shaw (2004) 116 Cal. App. 4th 182, 200, fn. 10.)
Regarding mother’s challenge to denial of placement with G.H.’s maternal
grandmother, mother lacks standing to raise this issue. (Cesar V. v. Superior Court
(2001) 91 Cal. App. 4th 1023, 1034-1035 (Cesar V.).) Regardless, mother’s challenge to
the denial of placement with G.H.’s maternal grandmother lacks merit.
When section 361.3 applies to a relative placement request, the juvenile court must
exercise its independent judgment in determining the suitability of the relative’s home
and the best interests of the child. (In re Stephanie M. (1994) 7 Cal. 4th 295, 320.) A
juvenile court’s placement decision under section 361.3 is reviewed for abuse of
discretion. (In re Robert L. (1993) 21 Cal. App. 4th 1057, 1067 (Robert L.), superseded on
other grounds in Cesar V., supra, 91 Cal.App.4th at p. 1032.)
There are several factors that a juvenile court considers in making a placement
determination under section 361.3, including: (1) the minor’s best interests; (2) the
wishes of the parents, relatives, and the child; (3) placement of siblings; (4) good moral
character of the relative and other adults in the home; (5) the nature and duration of the
relationship between the relative and the child; (6) the ability of the relative to provide
proper care in a safe environment and protect the child from his or her parents; and (6)
the safety of the relative’s home. (§ 361.3, subd. (a)(1)-(8).)
6.
The social study set forth several factors for the Department’s recommendation
that placement remain with the paternal cousins: (1) the paternal cousins were committed
to adopting G.H. and G.H. was thriving in their care; (2) G.H.’s maternal grandmother
had waited until July 2014 to seek placement instead of immediately upon detention; and
(3) the Department’s concerns that the maternal grandmother minimized and made
excuses for mother’s substance abuse and its impact upon G.H.
The section 361.3, subdivision (a) factors were addressed at the dispositional
hearing. Although G.H.’s maternal grandmother and mother wanted placement with the
maternal grandmother, counsel for G.H. strenuously argued that placement remain with
the paternal cousins. Even though the maternal grandmother had a criminal record, it was
not asserted as a basis to deny placement. While the maternal grandmother had
established some relationship with G.H. prior to detention, the extent of that relationship
was unclear and G.H., an infant, had been in the continuous care of the paternal cousins
for four months at the time of disposition.
The critical factor of whether G.H.’s maternal grandmother could provide a safe
home and protect G.H. from his mother and the effects of her substance abuse was at the
crux of the juvenile court’s placement determination. The maternal grandmother testified
she was aware mother’s other children had been removed from mother’s custody due to
mother’s substance abuse. The maternal grandmother also was aware mother had drug
charges dating back to January 2013 and April 2014, but she did not believe mother
constituted a risk to G.H.’s well-being.
The juvenile court noted that mother had used methamphetamine on the day G.H.
was taken to the hospital and that six or seven months prior to that mother had been
arrested three times for possession of drug paraphernalia. Despite mother’s history of
substance abuse, including the substance abuse that triggered the dependency petition on
behalf of G.H., the maternal grandmother claimed to have never noticed her daughter was
abusing drugs. The juvenile court noted that mother had a long history of substance
7.
abuse; she had not made any significant progress toward ameliorating the substance
abuse issues; and the maternal grandmother “ha[d] still not accepted” mother had a
substance abuse problem that adversely impacted G.H. The juvenile court found that the
placement that was in G.H.’s best interests was to remain with the paternal cousins.
The minor child’s best interests are the “linchpin” of a juvenile court’s analysis of
the placement factors. (Robert L., supra, 21 Cal.App.4th at p. 1068.) The section 361.3,
subdivision (a) relative placement does not constitute a placement guarantee. (In re
Joseph T. (2008) 163 Cal. App. 4th 787, 798.) Neither does it create an evidentiary
presumption in favor of relative placement. (In re Sarah S. (1996) 43 Cal. App. 4th 274,
286.)
We conclude the trial court did not abuse its discretion in finding the best interests
of G.H. dictated placement remain with the paternal cousins.
DISPOSITION
The dispositional order is affirmed.
8.