In re K.B. CA2/5 ( 2020 )

Filed 11/18/20 In re K.B. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re K.B., a Person Coming Under B305177
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 18CCJP06044A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
V.B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Craig S. Barnes, Judge. Affirmed.
Shaylah Padgett-Weibel, under appointment by the Court
of Appeal, for Defendant and Appellant.
Office of the County Counsel, Mary C. Wickham, County
Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son,
Deputy County Counsel, for Plaintiff and Respondent.
2
V.B. (Grandmother), the paternal grandmother of infant
K.B., appeals from a dependency court parental rights
termination order. Grandmother argues the Los Angeles County
Department of Children and Family Services (the Department)
did not properly assess her as a possible placement for K.B.
Specifically, we are asked to decide whether the Department
should have done more to assess Grandmother when she
expressed conditional interest in taking custody of K.B. and
whether the Department adequately assessed Grandmother after
she later expressed unequivocal interest in having K.B. placed
with her. We also consider whether the juvenile court exercised
independent judgment in applying the relative placement
preference.
I. BACKGROUND
A. Initial Dependency Proceedings
K.B. was born in September 2018. Within days, the
Department received two calls expressing concerns about her
welfare. The first caller reported K.B. and her mother S.B.
(Mother) were ready for discharge from the hospital and Mother
appeared to be emotionally unstable. Both Mother and K.B.
tested positive for marijuana, but K.B. did not exhibit signs of
withdrawal. The second caller reported a domestic violence
incident at the hotel where Mother and K.B. stayed after leaving
the hospital.
The Department temporarily detained K.B. from Mother
and Father and filed a dependency petition alleging K.B. was
subject to the juvenile court’s jurisdiction under Welfare and
3
Institutions Code1 section 300, subdivisions (a) and (b). The five-
count petition alleged domestic violence between Mother and
Father, the parents’ use of marijuana, and Father’s untreated
mental and emotional problems put K.B. at substantial risk of
serious physical harm.
The juvenile court detained K.B. and ordered monitored
visitation for both parents. The court also ordered the
Department to assess all K.B.’s identified relatives as possible
placement options. Later in November 2018, the court sustained
all counts of the dependency petition and ordered family
reunification services for Mother and Father.
B. Consideration of Grandmother as a Placement Option
In July 2019, the juvenile court found Mother and Father
had not substantially complied with their case plans, terminated
reunification services, and set a section 366.26 permanency
planning hearing.
In a report submitted in advance of that hearing, the
Department reported K.B. was “thriv[ing]” in the care of her
foster parents, who were also the prospective adoptive parents.
She had developed a “strong attachment” to them and called
them “mama” and “papa.”
At the section 366.26 hearing in February 2020, Father
argued the juvenile court should not terminate his parental
rights because Grandmother was available to take custody of
K.B. The juvenile court heard testimony from Grandmother and
continued the hearing so it could “take a closer look” at the
1
Undesignated statutory references that follow are to the
Welfare and Institutions Code.
4
Department’s assessment of Grandmother, allow the Department
to gather more information, and call a social worker to testify.
In advance of the continued hearing date, the Department
submitted a report summarizing its communications with
Grandmother.2 As detailed in the report, a dependency
investigator recalled that earlier in the dependency proceedings,
Grandmother was deemed an unsuitable placement because
Mother did not want K.B. placed with Grandmother and
Grandmother had recent criminal history, lacked stable housing,
and avoided contact with the Department. The report further
stated Grandmother remained an unsuitable placement for K.B.
“due to her criminal history (substance abuse, domestic violence),
inconsistent contact, housing, and reported ongoing substance
abuse.”
When parties appeared in court to resume the permanency
planning hearing, Grandmother submitted a section 388 petition
asking the juvenile court to change its previous order placing
K.B. with non-relative caregivers. Grandmother also produced a
notebook in which she had memorialized her communications
with the Department. The juvenile court marked the notebook as
a hearing exhibit.
Grandmother testified a Department social worker first
called her in September 2018 and they played “phone tag” until
they spoke in November 2018. Grandmother told the social
2
The Department’s report explained the social worker
originally assigned to the case no longer worked for the
Department and certain contacts between that social worker and
Grandmother may not have been recorded. Starting in May
2019, social worker Adilene Paque (Paque) had been assigned to
the case and she testified at the continued hearing.
5
worker she was willing to take custody of K.B., but she would
“get back to” the social worker “because [she] was in the process
of finding permanent housing.” Grandmother understood the
social worker was going to “mark . . . down that [she] was
interested” in taking custody of K.B. and “[take] the information
about [Grandmother’s] situation.”
Grandmother testified her next contact with the
Department was in July 2019. When asked about a notebook
entry she made in October 2018 that indicated Mother asked her
(Grandmother) to let Mother and Father “handle this situation,”
Grandmother explained this was one of the reasons she was not
more active in pursuing custody of K.B. Other reasons included
her efforts to move out of transitional housing and to reunite with
K.B.’s paternal uncle. In a note from March 2019, Grandmother
indicated minor repairs to her new apartment “need[ed] to be
addressed b4 reaching out to [the Department].”
The Department’s reporting indicated a criminal
background check on Grandmother was done and the results
discussed with Grandmother in August 2019. Grandmother had
a 2017 arrest for domestic violence, and she said it stemmed from
a relationship she had ended. Grandmother also had a 2017
arrest for possession of a controlled substance, and she claimed it
occurred as a result of her former partner asking her to hold
drugs for him. According to the Department, Grandmother
admitted she struggled with drug and alcohol addiction for years
and had used crack cocaine within the past year. (Grandmother,
during her testimony, disputed this and said she had not used
crack cocaine in the last 30 years.) Grandmother completed a
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substance abuse program in February 2019 and maintained she
had been sober for five months.3
The Department’s reporting also addressed Mother’s
position on placement of K.B. with Grandmother, Grandmother’s
living situation, and Grandmother’s visitation with K.B.
Regarding Mother’s position on placement, she had been
“adamant” that K.B. not be placed with Grandmother due to
substance abuse issues.4 As to housing, Grandmother had been
living in a studio apartment with K.B.’s paternal uncle, and when
the Department assessed Grandmother’s new two-bedroom home
in February 2020, there were no appliances or furniture. (The
next month, Grandmother expressed frustration that social
workers had not reassessed her home.) As for visitation, the
Department reported Grandmother had monthly monitored visits
with K.B. in August 2019, October 2019, November 2019,
January 2020, and February 2020.5
3
Grandmother’s section 388 petition attached letters stating
she submitted to monthly drug tests from November 2019
through February 2020 and participated in therapy and
parenting classes.
4
Mother claimed she saw Grandmother smoking
methamphetamine in or about June or July 2019. Grandmother
denied it, and months later, Mother told a social worker she was
“mistaken” about having seen Grandmother using
methamphetamine.
5
When Grandmother scheduled an extra visit for November
2019, she did not show up and did not call the Department. When
the Department arranged for a video visit in March 2020,
Grandmother did not initiate the visit.
7
Social worker Paque testified at the continued section
366.26 hearing about whether the Department would seek a
criminal record exemption that would be necessary to place K.B.
with her. Paque testified she told Grandmother that the
Department would not seek the exemption because Grandmother
was not a suitable placement option. (Grandmother testified the
Department assured her it would seek the exemption.)
After the presentation of evidence, the juvenile court found
Grandmother initially made a “conditional request” for placement
in which “she indicated, essentially, . . . if all else fails, consider
me.” The court further found Grandmother “stepped out of
consideration and did not press the issue” because of her
uncertain housing situation and K.B.’s parents’ efforts to reunify
with her. The court concluded that, “in terms of [section] 361.3,”
the Department satisfied its placement consideration obligations.
The court remarked the Department “may have stumbled
initially” when Grandmother was equivocating about placement,
but then, when Grandmother indicated she was prepared to take
custody of K.B., the Department appropriately considered the
nature of Grandmother’s relationship with K.B., her housing
situation, her recent criminal history, and the allegations of
recent drug use. The court declined to change K.B.’s placement.6
The juvenile court determined K.B. was likely to be adopted
and ordered her parents’ rights terminated, finding no exception
6
With regard to Grandmother’s section 388 petition to
change the previous placement order, the juvenile court found it
was not in K.B.’s best interest to change her placement when
there had been such limited contact between her and
Grandmother.
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to the termination of parental rights applied. Grandmother
appeals from this termination order.
II. DISCUSSION
Section 361.3 requires the Department and the juvenile
court to assess the suitability of relatives like Grandmother as
placement options for a dependent child like K.B. This relative
placement preference applies only when a relative requests
custody, however, and Grandmother’s equivocal expressions of
interest in custody before July 2019 did not constitute such a
request. The Department adequately assessed Grandmother as a
placement option after July, and the juvenile court did not abuse
its discretion in determining that Grandmother’s housing
situation, missed visits, and reported recent drug use made
placing K.B. with her inappropriate. Additionally,
Grandmother’s contention that the juvenile court was
inappropriately deferential to the Department in assessing her
suitability for placement fails in light of the juvenile court’s
active role in soliciting additional reports and hearing testimony
from both Grandmother and a Department social worker.
A. Grandmother’s Notice of Appeal Authorizes Review of
the Juvenile Court’s Relative Placement
Determination
Grandmother filed her notice of appeal one week after the
March 6, 2020, hearing at which the juvenile court declined to
place K.B. with her under section 361.3, denied Grandmother’s
section 388 petition, and terminated Mother and Father’s
parental rights. The notice of appeal indicates Grandmother is
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appealing the following: “March 6, 2020 – Denial of 388
Petition.”
Grandmother’s arguments on appeal, however, do not
challenge the juvenile court’s findings pertinent to its ruling on
the section 388 petition. (See generally In re J.T. (2014) 228
Cal. App. 4th 953, 965 [“To prevail on a section 388 petition, the
moving party must establish that (1) new evidence or changed
circumstances exist, and (2) the proposed change would promote
the best interests of the child”].) Rather, she argues the
Department and the juvenile court did not properly assess her
and apply the relative placement preference under section 361.3.
The Department accordingly contends Grandmother’s notice of
appeal does not permit review of the juvenile court’s section 361.3
findings.
We conclude we may reach the merits of Grandmother’s
arguments. The juvenile court’s order regarding placement was
rendered on the same date as the order denying Grandmother’s
section 388 petition. The juvenile court attempted to distinguish
its analysis under section 361.3 from its analysis under section
388, but the two were fairly intertwined. Under these
circumstances, we will construe Grandmother’s notice of appeal
liberally to assess the correctness of the juvenile court’s section
361.3 ruling.7 (See In re Daniel Z. (1992) 10 Cal. App. 4th 1009,
1017 [“Liberal construction is particularly appropriate here
7
Alternatively, the Department contends Grandmother’s
appeal is untimely because K.B. was placed with her most recent
caregivers in April 2019. We reject the contention. (See, e.g., In
re Isabella G. (2016) 246 Cal. App. 4th 708, 720, 723; In re Joseph
T. (2008) 163 Cal. App. 4th 787.)
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because the jurisdictional finding and dispositional order were
rendered simultaneously”].)
B. The Juvenile Court’s Finding That the Department’s
Assessment of Grandmother Was Adequate Is Not an
Abuse of Discretion
Section 361.3 provides that when 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,
regardless of the relative’s immigration status.” (§ 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).)
In determining whether a relative placement is
appropriate, the Department and the juvenile court are required
to consider various factors. (§ 361.3, subd. (a).) “The first and
foremost of these factors is ‘[t]he best interest of the child,
including special physical, psychological, educational, medical, or
emotional needs.’ (§ 361.3, subd. (a)(1) . . . .).” (In re Maria Q.
(2018) 28 Cal. App. 5th 577, 592 (Maria Q.).) But there are many
additional factors, including the wishes of the parent, relative,
and child; the “good moral character” of the relative and any
other adult living in the home; the nature and duration of the
relationship between the child and the relative; and the relative’s
desire to care for, and to provide legal permanency for, the child if
reunification is unsuccessful. (§ 361.3, subd. (a).) “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
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such a placement is appropriate” based on the relevant factors.
(In re R.T. (2015) 232 Cal. App. 4th 1284, 1295.)
Grandmother faults the Department for failing to assess
her as a potential placement during two distinct periods: before
and after July 2019. The juvenile court found otherwise, and we
review that finding for abuse of discretion. (In re Robert L. (1993)
21 Cal. App. 4th 1057, 1067 [“the abuse of discretion standard
should be applied to the review on appeal of the juvenile court’s
determination regarding relative placement pursuant to section
361.3”].)
As to the earlier period, Grandmother contends the
Department took no steps to assess her when she expressed
interest in taking custody of K.B. in November 2018.
Grandmother’s own testimony (as well as the contemporaneous
notes in her notebook), however, undermines this argument.
Grandmother told a social worker she would get back to her when
she found permanent housing. Grandmother’s understanding
that the social worker would make a note of her interest as well
as her “situation” is consistent with the Department and the
juvenile court’s conclusion that Grandmother felt she was not
willing or able to take custody of K.B. at that time.
As to the later period, Grandmother argues the
Department should have investigated whether her criminal
history would preclude her taking custody of K.B., physically
inspected her apartment before February 2020, and directed her
to drug test when Mother alleged recent drug use.8 Each point is
8
Grandmother also contends the Department failed to
document its assessment as required under section 361.3,
subdivision (a)(8)(B). This subdivision provides that “[t]hose
desiring placement shall be assessed according to the factors
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unpersuasive. The availability of an exemption would not have
made Grandmother’s criminal history an improper consideration
under section 361.3, subdivision (a). It would only have
established Grandmother’s criminal history was not a dispositive
factor, which the Department already assumed. A thorough
inspection of Grandmother’s housing eventually would have been
required to place K.B. with Grandmother, but this was not
necessary to the Department’s assessment under section 361.3:
Grandmother told the Department she was in transitional
housing in November 2018, she shared a studio apartment with
her adult son in August 2019, and the larger apartment she
leased in February 2020 was not yet furnished when the
Department inspected it. Finally, even if a drug test would have
established Grandmother was not using drugs at the time of the
test, it would neither confirm nor refute Mother’s allegation in
September 2019 that she saw Grandmother using drugs two or
three months earlier.
enumerated in this subdivision. The county social worker shall
document these efforts in the social study prepared pursuant to
Section 358.1.” (§ 361.3, subd. (a)(8)(B).) The Department was
not required to document its assessment during the earlier period
because, for the reasons we have discussed, Grandmother was
not a relative “desiring placement” at that time. And although
the Department was required to assess Grandmother during the
later period, it was not required to document the assessment
pursuant to this subdivision because “the social study prepared
pursuant to Section 358.1” is the social study prepared for the
disposition hearing. The disposition hearing was held in
November 2018, long before Grandmother indicated she was
willing and able to take custody of K.B.
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Focusing on the ultimate issue separate from
Grandmother’s specific contentions, the Department’s conclusion
in February 2020 that Grandmother was not a suitable
placement reflects a fair consideration of the factors listed in
section 361.3, subdivision (a). Her criminal history and alleged
recent drug use are relevant under subdivisions (a)(5), (a)(7)(A),
and (a)(8); her unstable housing situation is relevant under
subdivisions (a)(7)(A) and (a)(7)(C); and “inconsistent contact”
with the Department is relevant under subdivision (a)(7)(G). The
Department facilitated visitation between Grandmother and
K.B., investigated her background and present ability to care for
K.B., and did not treat any of the factors weighing against her as
dispositive. The juvenile court was within its discretion, on this
record, to conclude the Department’s assessment of Grandmother
as a placement option was adequate.
Arguing in the alternative, Grandmother also contends she
is entitled to a “full assessment as required under section 361.3”
in case K.B.’s current placement fails. For the reasons we have
already discussed, however, the Department discharged its duties
under section 361.3. To the extent Grandmother wants to
complete the resource family approval process described in
section 16519.5, that is not an issue encompassed in the appeal
from the order before us.
C. The Juvenile Court Exercised Independent Judgment
“When section 361.3 applies to a relative placement
request, the juvenile court must exercise its independent
judgment rather than merely review [the child welfare agency’s]
placement decision for an abuse of discretion. The statute itself
directs both the ‘county social worker and court’ to consider the
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propriety of relative placement. (§ 361.3, subd. (a).)” (Cesar V. v.
Superior Court (2001) 91 Cal. App. 4th 1023, 1033.)
The court in this case ordered the Department to provide
additional information concerning its assessment of Grandmother
and heard testimony from both Grandmother and a Department
social worker. The court independently reviewed Grandmother’s
notebook and had her resume the witness stand to answer
questions from the court concerning the timing of her requests for
custody of K.B. and her reasons for not contacting the
Department between November 2018 and July 2019. The
juvenile court independently resolved conflicting testimony,
finding, for instance, that although Grandmother denied recent
drug use, “there was enough circumstantial evidence to suggest
that this . . . may have been a persistent problem.”
The juvenile court ultimately concluded Grandmother was
not a suitable placement under section 361.3 based on the nature
of her relationship with K.B., her housing situation, recent
criminal history, and allegations of recent drug use. The
principal factor weighing against this conclusion was
Grandmother and the parents’ wishes, and even that was not a
strong point in favor of a contrary conclusion given Mother’s
“adamant[ ]” opposition to placement with Grandmother before
she later had a change of heart. Under these circumstances, the
juvenile court was not inappropriately deferential to the
Department.
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DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
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