In re S.M. CA2/8

Filed 1/19/22 In re S.M. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re S.M., a Person Coming B310976
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 20LJJP00596A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MARIO M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael C. Kelley, Judge. Affirmed.
Patricia K. Saucier, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Melania Vartanian, Deputy
County Counsel, for Plaintiff and Respondent.
**********
Father Mario M., who is serving a life sentence for murder,
appeals the dispositional order removing his then 15-year-old
daughter, S.M. from his custody after she had been removed from
the custody of her legal guardian. The sole contention he asserts
on appeal is that the Los Angeles County Department of Children
and Family Services (Department) failed to investigate and
assess relatives for placement of S.M., including S.M.’s adult
brother, and two other relatives identified by father for
placement. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This family came to the attention of the Department in
July 2020, following a referral that paternal grandmother, who is
S.M.’s legal guardian, slapped and verbally abused S.M., and that
S.M. has a history of mental health issues and self-harm, and a
psychiatric hospitalization for attempting suicide. S.M. had been
diagnosed with major depressive disorder.
During the Department’s investigation, paternal
grandmother decided that she could no longer care for S.M., and
told the Department there were no other family members willing
to care for her. Paternal grandmother wanted S.M. removed
from her home, even if that meant she would be placed in foster
care. According to paternal grandmother, mother and father
resided in Nevada. Father was serving a life sentence in prison
for second degree murder. The Department was attempting to
locate mother and father.
S.M. was placed in foster care on September 17, 2020.
According to her foster mother, S.M. had to be “constantly . . .
monitor[ed]” for her remote learning. She also suffered from
enuresis and encopresis, and low self-esteem. S.M. would tell lies
for attention, and would take things that did not belong to her.
S.M.’s therapist warned the caregiver to monitor her access to
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electronics, because she would watch pornography. The caregiver
also had to ensure S.M. would take her psychotropic medications,
because without close supervision, she would hide the pills and
not take them.
S.M. was detained from mother, father, and paternal
grandmother on September 24, 2020. Neither mother nor father
were present at the detention hearing, and the juvenile court
ordered the Department to conduct a due diligence to locate
them. The court also vested the Department with discretion to
place S.M. with any appropriate relative or nonrelative extended
family member. On September 30, 2020, at the request of S.M.’s
counsel, the court ordered the Department to assess S.M.’s older
brother, X.M. for visitation. The Department left him a voicemail
on October 19, 2020, but X.M. did not respond to the message.
At an October 22, 2020 receipt of report hearing, the
juvenile court asked whether any family members had been
identified by paternal grandmother for placement. Counsel
responded that paternal grandmother did not have that
information but could provide information to the Department at a
later date. The court observed that “the Department
understands its obligation to evaluate any family members for
placement.” That same day, father filed a relative information
sheet identifying paternal cousin, M.W., and providing her
address, e-mail address, and phone number. No other relatives
were identified on the form.
According to the November 2020 jurisdiction/disposition
report, S.M. again told the Department she was interested in
being placed with her adult brother, X.M. According to S.M., he
worked at Ross Warehouse from midnight to noon. She said he
used to take her to the park when paternal grandmother yelled at
her, but he never reported grandmother’s behavior to the police.
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The Department was still unable to reach X.M. so that he could
be assessed.
According to a last minute information, the Department
spoke with father on November 5, 2020. Father asked how S.M.
was doing, and the social worker informed him about her
“current status in the foster home.” The Department’s report
does not state whether relative placement was discussed with
father.
On December 11, 2020, father requested a contested
dispositional hearing, arguing that “there is an issue with the
Department’s original placement of the minor as well as the
requirements that the Department reach out to relatives . . . , it
does not appear that the Department has done so.” The court
stated father could address any issues with relative placement at
the scheduled combined jurisdiction/disposition hearing on
January 6, 2021. The court again ordered the Department to
assess S.M.’s brother for placement.
The Department’s December 31, 2020 last minute
information reported the Department made contact with X.M.,
and that he was willing to be considered as a “possible”
placement for S.M. A CLETS search revealed “no hits,” but CACI
results were pending. Also, the Department was waiting for
information about X.M.’s father, who resided with X.M., so that a
background check could be completed. Mother told the
Department that she wanted S.M. placed with X.M. The
Department was concerned about changing S.M.’s placement, as
S.M. had finally stabilized in her current placement and had
extensive needs related to her education, supervision, and
medication. Mother wanted whatever was best for S.M., even if
that meant remaining in her current foster care placement.
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At the January 29, 2021 combined jurisdiction/disposition
hearing (the hearing had been continued a number of times), the
court sustained the petition, and terminated paternal
grandmother’s legal guardianship over S.M. Father testified that
M.W. was his niece and that, though he had never asked her if
she would be willing to care for S.M., paternal aunt told him that
M.W. was willing to care for her. It had been years since father
had been in touch with M.W. The only other relative father
proposed be considered for placement of S.M. was his adult
daughter, M.M. He admitted the Department had sent him
letters and been in contact with him, but denied that the
Department ever asked him about family members available to
care for S.M.
The dispositional hearing was continued to February 9,
2021. Father’s counsel argued the Department had failed to
assess father’s family members for placement. The Department
argued that because M.W. resided in Nevada, an ICPC was
necessary to evaluate her for placement, which could occur after
disposition. The court removed S.M. from father, and bypassed
reunification services. This timely appeal followed.
DISCUSSION
Father complains the Department and juvenile court failed
to fulfill statutory obligations to investigate potential relative
placements, and to assess those relatives about whom they had
information, including S.M.’s brother, S.M.’s sister, and paternal
cousin M.W. We sent the parties a letter pursuant to
Government Code section 68081 asking whether the appeal was
moot as to the claims regarding paternal cousin M.W., on the
basis that after this appeal was filed, the court ordered an ICPC
to be conducted for M.W. The Department argues the appeal is
moot as to this claim, and father has not responded to our letter.
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The Department has asked us to take judicial notice of a
Department report indicating that M.W. is not interested in
placement of S.M. Therefore, we will not reach the merits of
father’s claim as to M.W. Regarding father’s remaining claims,
we find no error.
When a child is removed from parental custody, social
workers and the juvenile court must investigate and consider the
child’s relatives for potential placement. (See, e.g., Welf. & Inst.
Code, § 361.3, subd. (a) [requiring that “preferential
consideration shall be given to a request by a relative of the child
for placement of the child with the relative”].) “The court shall
order the parent to disclose to the county social worker the
names, residences, and any other known identifying information
of any maternal or parental relatives.” (Id., subd. (a)(8)(B).)
Within 30 days of the child’s removal from parental
custody, the social worker “shall use due diligence” “to identify
and locate all grandparents, . . . adult siblings, [and] other adult
relatives of the child, . . . including any other adult relatives
suggested by the parents.” (Welf. & Inst. Code, § 309, subd. (e)(1)
& (3); Cal. Rules of Court, rules 5.695(f), 5.637.) Due diligence
includes asking the child about relatives, asking known relatives
about other relatives, searching the case file for information
about relatives, and conducing online research, among other
methods. (Cal. Rules of Court, rule 5.695(f).)
The social worker shall provide the identified adult
relatives with written notice, and oral notice when appropriate, of
the child’s removal and “[a]n explanation of the various options to
participate in the care and placement of the child and support for
the child’s family, including any options that may be lost by
failing to respond.” (Welf. & Inst. Code, § 309, subd. (e)(1)(B);
Cal. Rules of Court, rule 5.534(b)(3).) The Department’s reports
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should address the appropriateness of any relative placement.
(§ 358.1, subd. (h); rule 5.690(a)(1)(C).) Social workers are
required to document their efforts in social studies regarding
contacting “relatives given preferential consideration for
placement” to ascertain their interest in placement. (§ 361.3,
subd. (a)(8)(B).)
At the initial petition hearing, “[i]f the child cannot be
returned to the physical custody of their parent or guardian, the
court shall determine if there is a relative who is able and willing
to care for the child, and has been assessed pursuant to Section
361.4.” (Welf. & Inst. Code, § 319, subd. (f)(3).) Under section
361.4, prior to placing a child with a relative, a social worker
must investigate the relative’s criminal history and any prior
allegations of child abuse, and assess their home. (§ 361.4,
subd. (a).)
Father argues the Department’s reports do not state that
mother or father were asked about relatives for placement, and
do not report that any relatives received notice. That is not a fair
or accurate history of events. The record shows that father filed a
relative information sheet identifying only one relative, M.W.
Although he testified at the dispositional hearing about his
daughter being a possible placement, he had not identified her on
the relative information sheet, and he never provided any contact
information for her. Paternal grandmother, S.M.’s legal
guardian, reported that there were no relatives available for
placement of S.M. And the Department did discuss relative
placement with mother; the Department’s reports reflect that
mother told the Department she wanted X.M. evaluated for
placement. The Department also discussed relative placement
with S.M., and she too identified only her brother X.M.
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Father also argues the Department had not completed its
assessment of X.M. for placement, that X.M. was entitled to
preferential consideration for placement, and that the juvenile
court never made a ruling on whether placement with X.M. was
appropriate. That is also a misleading summary of events. The
juvenile court ordered the Department to assess X.M., and the
assessment was clearly underway, as discussed in the
Department’s reports.
In any event, we are not inclined to find any prejudice by
the Department having not placed S.M. with X.M. The record
includes ample information indicating such a placement would
not be appropriate or in S.M.’s best interests, given her
significant mental health issues, the level of oversight she
required, X.M.’s work schedule, and his failure to report abuse by
paternal grandmother. “[T]he court is not to presume that a
child should be placed with a relative, but is to determine
whether such a placement is appropriate, taking into account the
suitability of the relative’s home and the best interest of the
child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 321, italics
omitted.)
DISPOSITION
The dispositional order is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J. HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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