In re H.C. CA4/2 ( 2013 )

Filed 3/8/13 In re H.C. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re H.C. et al., Persons Coming Under
the Juvenile Court Law.
L.C.,
E056350
Plaintiff and Appellant,
(Super.Ct.No. INJ016246)
v.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,
Defendant and Respondent.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E056552
Plaintiff and Respondent, (Super.Ct.No. INJ016246)
v. OPINION
T.C.,
Defendant and Appellant.
1
APPEAL from the Superior Court of Riverside County. Charles Everett
Stafford, Jr., Judge. Affirmed.
Lauren K. Johnson, under appointment by the Court of Appeal, for Plaintiff and
Appellant L.C.
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant
and Appellant TC
Pamela J. Walls, County Counsel, Anna M. Deckert, Deputy County Counsel,
for Plaintiff, Defendant, and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minors.
This opinion addresses two appeals that have been consolidated. The first appeal
is brought by T.C. (Mother), who is the mother of H.C. and A.C. (collectively “the
children”). The second appeal is brought by L.C. (Cousin), who is Mother‟s cousin—
the children‟s second cousin. The juvenile court terminated Mother‟s parental rights to
the children. (Welf. & Inst. Code, § 366.26, subd. (b)(1).)1 Additionally, the juvenile
court (1) suspended visitation between Cousin and the children, (2) ordered the
children‟s permanent plans to be adoption by their caregivers, and (3) denied Cousin‟s
request to place the children with Cousin (§ 388).
Cousin contends the juvenile court erred because (1) it failed to follow the
statutory requirements concerning relative placement (§ 361.3), and (2) it was in the
children‟s best interests to be placed together, in order to preserve their sibling bond.
1All subsequent statutory references will be to the Welfare and Institutions
Code, unless otherwise indicated.
2
Mother contends the juvenile court erred because it “did not adequately assess and
evaluate the suitable and available relative placement with maternal cousin.” We affirm
the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. BACKGROUND
Mother had six children: T.C., L.W., M.W.1, M.W.2, H.C., and A.C. In August
2004, after giving birth to M.W.1, Mother tested positive for methamphetamine. In
2005, Mother‟s parental rights to M.W.1 were terminated. M.W.1 lived in a prospective
adoptive home. In January 2006, Mother‟s reunification services for L.W. were
terminated, and L.W. was placed in his father‟s custody. In September 2006, Mother‟s
parental rights to M.W.2 were terminated. Cousin adopted M.W.2. In April 2007,
Mother‟s reunification services for T.C. were terminated, and T.C. was placed in the
custody of her father.
H.C. is female and was born in December 2009. Mother was unable to provide
any identifying information for H.C.‟s father. A.C. is male and was born in July 2011.
A.C.‟s alleged father asked the Riverside County Department of Public Social Services
(the Department) for a paternity test because Mother “dated several people at the same
time” she was dating him.
B. DETENTION
On July 21 and 22, 2011, the Department received referrals concerning A.C.
Mother had given birth to A.C.; who was in respiratory distress and placed in neonatal
intensive care. Mother did not know she was pregnant and had not received prenatal
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care. Mother admitted using methamphetamines during the pregnancy and stated she
had been homeless at one point. Mother and A.C. tested positive for methamphetamine.
Mother wanted A.C.‟s father to have custody of A.C. A.C.‟s father did not come to the
hospital for the birth, or to visit A.C.
Mother told a Department social worker, “„I drink meth, but I don‟t use
every[]day.‟” Mother refused to tell the Department where H.C. was located; she feared
the Department would take custody of H.C. After an Indio police officer spoke to
Mother, Mother told the Department H.C. was with a friend. H.C. was eventually
located with a different friend, and taken into the Department‟s custody. A.C.‟s alleged
father was not willing to care for A.C. until the paternity test was completed. The
Department took custody of the children.
The Department filed a petition alleging the children were at substantial risk of
suffering harm due to Mother neglecting the children as a result of her substance abuse.
(§ 300, subd. (b).) The Department further alleged the children‟s fathers left them
without any provision for support. (§ 300, subd. (g).) The juvenile court found the
children came within section 300, in that the children needed to be removed from
Mother‟s care to protect them from a risk of substantial harm. The court ordered the
children be detained and placed with a relative or in foster care. Additionally, the court
ordered supervised visitation between Mother and the children to occur a minimum of
once per week.
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C. JURISDICTION/DISPOSITION
H.C. was placed in a foster home in the San Gorgonio Pass area. H.C. appeared
fearful when her foster parent would attempt to wash H.C.‟s genitals. A.C. was placed
in a foster home in the Coachella Valley. A.C. appeared healthy and was doing well in
his placement. In August 2011, the Department tried to contact Cousin to inquire about
her interest in taking custody of H.C., since Cousin adopted M.W.2; however, the
Department did not have a current telephone number for Cousin.
The Department interviewed Mother. Mother explained she did not receive
prenatal care for A.C. because “she had been living on the streets at the time and she did
not have any income or insurance.” Mother stated she had been unemployed for “a
couple of years” and was currently unemployed. Mother received food stamps, but no
other types of assistance. No visits took place between Mother and the children due to
Mother missing a scheduled visit and not making another appointment. A.C.‟s alleged
father missed three paternity testing appointments.
Mother requested the children be placed with (1) a paternal great-aunt; (2) a
paternal cousin; or (3) a maternal great-aunt. The Department submitted a referral for
the paternal grandmother, to be assessed for placement of A.C., but the assessment
ended when she decided she did not want to be considered for placement.
The juvenile court found the allegations in the petition to be true. The court
sustained the petition and adjudged the children wards of the court. The juvenile court
denied Mother reunification services due to Mother failing to reunify with the children‟s
siblings and/or half-siblings, and Mother‟s parental rights being terminated to two of her
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children. (Former § 361.5, subds. (b)(10) & (11) [eff. Jan. 1, 2011].) The court found
A.C.‟s father, to be an alleged father; he was dismissed from the case.
The juvenile court found H.C. and A.C. were a sibling group with their siblings,
who were still under the juvenile court‟s jurisdiction. The court reasoned the children
were a sibling group because “at least one child in the group was under the age of three
at the time of the initial removal and all of the children were removed from parental
custody at the same time”—given the juvenile court‟s last remark, it appears the court
considered H.C. and A.C. to be a sibling set by themselves, without Mother‟s other
children, who were wards of the court. The court found efforts were being made to
place the children together.
D. MOTIONS
On October 28, 2011, the Department moved for the juvenile court to order
weekend and holiday visits between Cousin and the children. The Department felt it
was in the children‟s best interests to be placed with family, and Cousin wanted to get to
know the children in order to determine if she was interested in adopting them. The
court granted the Department‟s motion.
Two weeks later, on November 14, A.C.‟s foster parents moved for de facto
parent status. One week later, on November 21, A.C.‟s foster parents moved to be
designated prospective adoptive parents. On December 5, the children‟s attorney (Cote)
moved the juvenile court to suspend visitation between Cousin and the children. Cote
explained that she initially supported the Department‟s motion for visitation, but came
to realize the motion was based on information that was no longer correct. Specifically,
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Cousin was only interested in adopting A.C., but Cousin had initially indicated she
would be interested in adopting both. Cote explained A.C.‟s foster family was
interested in adopting both children, if their home could be approved for both.
Further, Cote stated H.C. was not visiting Cousin; and when H.C. had recently
been removed from her placement Cousin was unwilling to take H.C. Cote argued the
visitation between Cousin and the children was unnecessary because (1) Cousin does
not fall within the statutory category of relatives who should receive preferential
treatment (former § 361.3, subd. (c)(2)); (2) the children have “no connection with
[Cousin] other than some remote biological relationship”; (3) there is no relationship
between H.C. and AC; (4) there is no relationship between the children and M.W.2; and
(5) A.C.‟s foster parents had various motions pending in the juvenile court (described
ante).
Mother‟s attorney made no comment in response to Cote‟s argument. The
Department did not join in Cote‟s request because it did not appear anything detrimental
was taking place during the visits. The court denied without prejudice the motion to
suspend visitation because the court was “not hearing that there is any detriment.” On
December 14, the juvenile court granted A.C.‟s foster parents‟ request for de facto
parent status.
E. OBJECTIONS TO PLACEMENT WITH COUSIN
AC was doing well in his foster placement. H.C. was adjusting well in her new
foster placement. Mother did not visit the children. The children visited Cousin every
other weekend. Cousin requested, through the Department, that A.C. be placed in her
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custody. Cousin felt H.C. was “too much for her to handle.” In January 2012, the
Department informed Cote of its intent to remove the children from their foster homes
and place them in Cousin‟s home.
Cote filed an objection to A.C.‟s removal. Cote argued it was not in A.C.‟s best
interests to be removed from his foster parents‟ home because (1) they were the only
family A.C. knows, (2) A.C. was bonded to his foster family, (3) the foster parents had
de facto parent status and were waiting for prospective adoptive parent status, (4) the
foster parents had always expressed a willingness to adopt A.C., (5) Cousin only visited
A.C. two times, (6) A.C. had no bond with Cousin, and (7) A.C. did not have a bond
with H.C.
Cote filed a separate objection to H.C.‟s removal from her foster family‟s home.
Cote argued it was not in H.C.‟s best interests to be removed from her foster placement
because (1) H.C. “suffered greatly” in her prior placement and was just beginning to
show improvements in the current placement, (2) Cousin had “steadfastly indicated” she
was not interested in adopting H.C., (3) Cousin did not take custody of H.C. when H.C.
had to be removed from her prior foster placement due to an emergency, (4) there was
no bond between Cousin and H.C., and (5) there was no bond between A.C. and H.C.
AC‟s de facto parents also filed an objection to A.C.‟s removal from their home.
The de facto parents asserted A.C. had been in their home since he was 17 days old,
there was no basis for removal, and Cousin was a “virtual stranger” to A.C. and “a
distant relative.”
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The Department argued the children should be placed with Cousin. The
Department argued Cousin‟s home was the best placement for the children because they
could be placed together with their half-sibling, M.W.2. The Department asserted
Cousin was “fully committed” to both children and understood the placement was a
“lifetime commitment.”
On January 17, 2012, the juvenile court held a hearing on the issue of removing
the children from their placements. At the hearing, Cote argued H.C. had “special
emotional needs.” Cote asserted H.C. was improving in her new placement, and the
switch to living with Cousin might cause a setback in H.C.‟s progress. Cote argued
Cousin only visited with H.C. one time, and with A.C. two times—Cousin had
contacted the Department and requested H.C. not be at the second visit. Cote further
argued there had not been visits occurring between H.C. and A.C.
The Department confirmed Cote was correct about the number of visits; it argued
it was the Department‟s prerogative to make placement changes, and that it was not a
decision to be made by the court. The Department stated it was its intention to move the
children into Cousin‟s home. The Department again stressed placement transfers were
within the Department‟s discretion, and the standard for reviewing the Department‟s
transfer decisions is abuse of discretion. The Department asserted there was no
evidence indicating it was abusing its discretion.
The juvenile court found it was not in the children‟s best interests to be removed
from their placements; it did not state the reasons for its decision. The court ordered
visitation between Cousin and the children could continue.
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F. REQUESTS TO CHANGE A COURT ORDER
On February 21, 2012, Cote filed a request to change the court‟s order
concerning visitation between Cousin and the children. (§ 388.) Cote argued the visits
were harming the children because (1) the children were confused by the visits, and (2)
the visits disrupted the children‟s regular routines. For example, H.C. was angry and
emotionally detached when she returned to her foster parents after a four-day visit with
Cousin. H.C. also smelled foul after the four-day visit and was dirty. The clothes the
foster parents sent with H.C. were returned in a plastic bag and it appeared they were
soaked with urine. H.C. had trouble sleeping after she returned to her foster parents‟
house; she woke twice during the night crying, like she had when she initially arrived at
their home three months prior. At daycare, H.C.‟s naps were disturbed by “„day
terrors.‟” H.C. appeared to stabilize after being back with her foster parents.
As to A.C., it was asserted the visits were detrimental because he was not given
his regular naps while with Cousin, so he had difficulties sleeping and eating upon his
return to his foster parents, which caused him to wake up during the night. A.C.
returned from the visits with colds—after the first visit, A.C. had a cold that lasted for
three weeks.
The juvenile court ordered a hearing on the request to change the court‟s order.
On February 23, 2012, the court suspended the visits between Cousin and the children
pending the outcome of the hearing.
On March 5, 2012, Cousin filed a request to change a court order. (§ 388.)
Cousin asserted she wanted A.C. and H.C. placed with her. Cousin explained she did
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not have many visits with the children due to the children‟s foster parents cancelling the
appointments. Cousin argued the children should be placed with her because (1) Cousin
is the children‟s relative, and (2) the children‟s half-sibling is in Cousin‟s care.
AC‟s de facto parents filed an objection to Cousin‟s request to change a court
order. The de facto parents asserted there was no longer a preference for relative
placement because the case was in the permanency planning stage. The de facto parents
further argued it was not in A.C.‟s best interests to be placed with Cousin. The de facto
parents denied hindering the visits between A.C. and Cousin. The de facto parents
explained there were communication problems with the social worker that led to missed
visits and visits taking place on short notice. The Department‟s report reflected a new
social worker was assigned to the case on February 28, 2012.
After a different social worker took over the case, the Department changed its
position and supported the children‟s requests to stay in their placements. The
Department argued Cousin‟s request for placement should be denied because Cousin
had been “hesitant from the beginning” in taking custody of H.C. due to H.C.‟s tantrums
and the financial expenses related to daycare. The Department also asked the court to
designate A.C.‟s de facto parents as prospective adoptive parents.
The juvenile court remarked that the children were both under the age of three
years old. A.C. was seven months old, and H.C. was two years old. The court found
the children had bonded with their foster parents, but that the children had not
connected with their various older siblings. The juvenile court explained that it was a
goal to keep siblings together and place children with relatives, “[b]ut sometimes the
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situations are presented that we get to a point in time that that‟s not always possible and
doesn‟t serve the interests of the children. And this is one of those occasions.” The
court found it would be detrimental to the children to remove them from their foster
placements, because the children were in stable environments and removal would
require the children to “start the bonding process all over again.” The court observed
that removing the children to Cousin‟s house might be in the best interests of Cousin,
but it would not be in the children‟s best interests.
The court denied Cousin‟s request to change a court order on the basis that there
were not changed circumstances and the requested change was not in the children‟s best
interests. (§ 388.) Further, the court designated A.C.‟s de facto parents as prospective
adoptive parents because the designation was in A.C.‟s best interests. The court ordered
the children‟s permanent plan to be adoption by their caregivers. The court suspended
visitation between Cousin and the children, but denied, without prejudice, Cote‟s
motion to terminate visitation with Cousin.
G. TERMINATION
The children were doing well in their placements. The Department
recommended Mother‟s parental rights be terminated. The juvenile court terminated
Mother‟s parental rights to the children, A.C.‟s alleged father‟s parental rights, and
H.C.‟s unknown father‟s parental rights. The court found adoption was in the children‟s
best interests.
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DISCUSSION
A. SECTION 361.3: COUSIN‟S APPEAL
Cousin contends the trial court erred by failing to apply the relative placement
preference (§ 361.3) during the hearing on Cousin‟s request to change a court order
(§ 388).2 We disagree.
Former section 361.3, subdivision (a), provided: “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. In determining whether placement with a
relative is appropriate, the county social worker and court shall consider, but shall not
be limited to, consideration of all the following factors[.]” (Eff. Jan. 2008.)
Former section 361.3, subdivision (d), sets forth: “Subsequent to the hearing
conducted pursuant to Section 358 [(the disposition hearing)], whenever a new
placement of the child must be made, consideration for placement shall again be given
as described in this section to relatives who have not been found to be unsuitable and
who will fulfill the child‟s reunification or permanent plan requirements.” A juvenile
court‟s alleged legal errors, such as failing to follow proper legal procedures, are
reviewed de novo. (In re Charlisse C. (2008) 45 Cal.4th 145, 159.)
2 Within this argument, Cousin also devotes one sentence to the assertion that
the juvenile court erred by denying placement with Cousin “without substantial
evidence that an appropriate investigation of the placement with [Cousin] was ever
conducted.” This argument appears to be an afterthought, as it is only one sentence
mixed into the separate contention concerning the juvenile court failing to apply the law
of section 361.3. Accordingly, we do not address this issue.
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The disposition hearing in this case took place on September 19, 2011. Cousin
filed her request to change a court order on March 5, 2012. The hearing on the request
took place on March 20, 2012. At the time of the March 20, 2012 hearing, A.C.
continued to reside with the same foster family he had been with since he was 17 days
old, and H.C. continued to reside with her second foster family. In other words, at the
March 20 hearing, the children had not been removed from their homes. As a result, the
March 20 hearing was not one in which a new placement of the children needed to be
made. (§ 361.3, subd. (d) [“whenever a new placement of the child must be made”].)
Accordingly, since the section 388 hearing took place after the disposition hearing and
the children were still residing in there foster placements, section 361.3 did not apply to
the March 20 section 388 hearing. Thus, we conclude the juvenile court did not err.
In a mixed argument, Cousin asserts the juvenile court erred because it failed to
apply section 361.3 and it made a decision about the children‟s placement without
evidence of the Department assessing Cousin‟s home. Cousin does not explain why the
juvenile court was legally required to apply section 361.3 during a postdisposition
hearing where the children had not been removed from their placements. Thus, we find
Cousin‟s argument to be unpersuasive.
B. SECTION 361.5: MOTHER‟S APPEAL
Mother asserts the juvenile court erred because it “did not adequately assess and
evaluate the suitable and available relative placement with maternal cousin in deciding
that the best interest of the children was to remain in their separate foster home
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placements.” Mother appears to concede that section 361.3 does not apply in this case,
and therefore her argument relies on section 361.5.3
Mother specifically relies on former section 361.5, subdivision (g)(1)(D), which
provided: “Whenever a court orders that a hearing shall be held pursuant to Section
366.26 . . . it shall direct the agency supervising the child and the licensed county
adoption agency . . . to prepare an assessment that shall include: . . . [¶] . . . [¶] (D) A
preliminary assessment of the eligibility and commitment of any identified prospective
adoptive parent or guardian . . . . If a proposed guardian is a relative of the minor, the
assessment shall also consider, but need not be limited to, all of the factors specified in
subdivision (a) of Section 361.3 and in Section 361.4.” (Eff. Jan. 2011.) Given this
law, Mother asserts the juvenile court erred in making a placement decision for the
children without an assessment of Cousin‟s home having been conducted by the
Department.
“Prospective Adoptive Parent” is a defined term in former section 366.26,
subdivision (n)(1), which provides that a juvenile court “may designate a current
caretaker as a prospective adoptive parent if the child has lived with the caretaker for at
least six months, the caretaker currently expresses a commitment to adopt the child, and
the caretaker has taken at least one step to facilitate the adoption process.”
3 In a section of Mother‟s opening brief she seems to change positions and assert
section 361.3 does apply in the instant case. To the extent Mother is asserting the
juvenile court should have applied section 361.3, we have addressed that issue ante.
15
The children did not live with Cousin for six months, so Cousin could not be a
prospective adoptive parent. (Welf. & Inst. Code, §366.26, subd. (n)(1); see also Fam.
Code, § 8731 [six-month requirement for prospective adoptive parent].) Additionally,
there is nothing in the record indicating Cousin is the children‟s guardian. Accordingly,
Cousin does not qualify as an “identified prospective adoptive parent or guardian,” such
that a home study of Cousin‟s house needed to be conducted. (Welf. & Inst. Code,
§ 361.5, subd. (g)(1)(D)). In other words, the juvenile court did not err.
Mother discusses the Department‟s failure to initially contact Cousin when the
children were removed from Mother‟s care. Mother seems to assert the children could
have been placed with Cousin if the Department had tried harder to contact Cousin. The
record reflects the Department tried to contact Cousin prior to the
Jurisdiction/Disposition hearing, but the telephone number it had for Cousin was not in
service. When the Department interviewed Mother prior to the Jurisdiction/Disposition
hearing, Mother suggested three different relatives for placement of the children—
Cousin was not among them. Given that Mother did not attempt to have the children
placed with Cousin earlier in the case, we are not persuaded by her current complaint
that the Department did not try hard enough to have the children placed with Cousin
prior to the Jurisdiction/Disposition hearing.
Moreover, we note the Department tried to place H.C. with Cousin in November
2012, after the Jurisdiction/Disposition hearing, but Cousin declined the placement
explaining that H.C. was “too much for her to handle.” Thus, the Department made an
16
effort to place H.C. with Cousin; as a result, Mother‟s arguments concerning the
Department‟s lack of effort are unavailing.
C. SECTION 388: COUSIN‟S APPEAL
Cousin asserts the juvenile court‟s ruling on her section 388 petition should be
reversed because it was in the children‟s best interests to be placed together, with
M.W.2, in Cousin‟s home. Cousin‟s best interest argument is moot because she does
not address the “change circumstances” prong of the section 388 analysis.
“When no effective relief can be granted, an appeal is moot . . . .” (In re Jessica
K. (2000) 79 Cal.App.4th 1313, 1315-1316.) “A juvenile court order may be changed,
modified or set aside under section 388 if the petitioner establishes by a preponderance
of the evidence that (1) new evidence or changed circumstances exist and (2) the
proposed change would promote the best interests of the child. [Citation.]” (In re
Zachary G. (1999) 77 Cal.App.4th 799, 806.)
In denying Cousin‟s section 388 request, the juvenile court said, “And it‟s denied
because there is not a change of circumstance sufficient to warrant the granting and the
granting of that [JV-]180 petition would not be in the best interest of either one of these
children.” Cousin‟s appeal only addresses the best interest prong of the analysis.
Therefore, even if Cousin were correct in her contention, this court could not provide
her the relief she seeks because the “changed circumstances” prong would prevent
reversal of the juvenile court‟s decision. In other words, the juvenile court would have
needed to have erred as to both prongs in order for its decision to be reversed. Since
Cousin is only asserting an error with the “best interests” prong, this court cannot
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reverse the juvenile court‟s decision even if Cousin‟s contention is correct. Thus, the
issue is moot.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RICHLI
Acting P. J.
KING
J.
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