In re N.J. CA1/1

Filed 4/7/15 In re N.J. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION ONE
In re N.J. et al., Persons Coming Under the
Juvenile Court Law.
MENDOCINO COUNTY DEPARTMENT
OF SOCIAL SERVICES,
Plaintiff and Respondent, A141600
v.
(Mendocino County
T.S. et al., Super. Ct. Nos.
Defendants and Appellants. SCUK-JVSQ-12-16594,
SCUK-JVSQ-12-16595)
INTRODUCTION
T.S., the mother of sisters N.J. and M.L. (Mother), appeals from the order
terminating her reunification services. A.S., the maternal grandfather of N.J. and M.L.
(Grandfather) appeals from the order placing N.J. in a group home, asserting he was
entitled to preferential consideration for placement. Mother merely joins and adopts by
reference the arguments made by Grandfather, and raises no issues regarding termination
of reunification services, thereby waiving that claim.1 Accordingly, we affirm the order
terminating reunification services to Mother. We conclude Grandfather waived any
1
Because neither appellant has raised any issue regarding M.L., we grant the
motion of the Mendocino County Department of Social Services (Department) to dismiss
the appeal as to M.L.
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claim regarding the immediate placement of N.J. with him, and in any event, the juvenile
court did not abuse its discretion in changing N.J.’s placement to a group home. We
affirm the placement order.
PROCEDURAL AND FACTUAL BACKGROUND
We set forth only those facts necessary for resolution of the issues on appeal.
N.J. and M.L., 10 years old and seven years old, respectively, when the juvenile
dependency petition was filed in September 2012, were then living with their maternal
grandparents and Mother. The maternal grandparents had petitioned for and been
appointed their temporary guardians in July 2012. The Department filed a petition
alleging four counts of failure to protect the minors, based on Mother’s uncontrolled
medical condition (seizure and anxiety disorders), drug use (marijuana and prescription
medications) and domestic violence.
The court found continued placement in the home of the temporary guardians or
the parents would be contrary to the minors’ welfare. The minors were detained and
placed in foster care.
After the detention hearing, the Department filed an amended petition adding
allegations regarding the grandparents, including that N.J. and M.L. had been physically
abused by Grandfather and their grandmother had been unable to protect them. About a
month later, the Department filed a second amended petition, eliminating those
allegations.
At the jurisdictional hearing in November, Mother admitted the allegations of the
amended petition. The court terminated the grandparents’ temporary guardianship, and
ordered services for Mother. The Department recommended against placement with the
grandparents because the minors did not want to live with them and indicated
Grandfather hit them.
The grandparents filed a request for de facto parent status, which the court granted
in December.
In a report for the six-month review hearing, the Department noted Mother had
minimally complied with services. She had been terminated from an alcohol and other
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drugs program, and had married a man with a criminal record, including domestic
violence and controlled substance use. The minors were both placed at the Children’s
Village after they “received 7-Day notices from their foster placement due to ongoing
behavioral and emotional outbursts.” N.J. physically threatened another resident of
Children’s Village and “tested the boundaries of staff by running around the premises at
8:30 at night” and climbing on the roof, necessitating a call to police. The court
continued reunification services to Mother, and authorized the Department to permit
unsupervised visitation with the grandparents for a minimum of one hour monthly.
In its report for the 12-month review hearing, the Department indicated N.J. had
been discharged from the Children’s Village due to her defiant behavior and leaving the
premises at night. She was placed in a therapeutic licensed home. M.L. remained at
Children’s Village, and had behaviors that required a high level of care. The social
worker recommended both minors continue to receive therapy. Mother had made
minimal efforts to comply with her case plan.
The court approved a settlement agreement reached by the parties, under which
services to Mother were extended for a period not to exceed 18 months. The court also
authorized unsupervised visits for the grandparents with N.J., which could be expanded
to include overnight visits in the social worker’s discretion.
The Department’s report for the 18-month hearing in March 2014 indicated
Mother was still not complying with her case plan. She tested positive for drugs,
appeared to be under the influence at a Women’s Empowerment Support group, and was
homeless. The grandparents had engaged in services and were consistently visiting the
minors.
On March 6, the court terminated reunification services to Mother. It ordered as to
N.J. a “permanent plan of placement with [foster mother], with a specific goal of
placement with the maternal grandparents.” The court also increased visitation with the
grandparents “to include overnight visits every other weekend,” and up to three overnight
visits per week at the discretion of the social worker.
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On March 18, Grandfather’s attorney received an email from the Department
stating N.J. “may be moved to an out of county placement within the next 14 days.” On
March 19, Grandfather filed an order shortening time for a hearing the next day on “the
[Department’s] apparent plan to move [N.J.] to an out of county placement,” noting
notice of the placement change was statutorily inadequate.
The court set a hearing for March 20, at which Grandfather’s attorney indicated
“We did ask to have the hearing because it came to our understanding that [N.J.] might be
quickly moved to a different placement. We just didn’t receive the proper notification.
My understanding is the minor’s attorney thoughtfully was able to set up a therapeutic
session between the grandparents and [N.J.] yesterday. I think that went well. I think
[N.J.] was able to communicate some of her desires. [¶] My understanding, if I have it
correct, is that the grandparents are not today asking for placement of [N.J.] with them.
They understand that [N.J.] may be moved back to Children’s Village. But I think the
concerns are the grandparents do want the Court and [Department] to do everything they
can to facilitate the goal of placing [N.J.] with them in a legal guardianship . . . .” (Italics
added.) Grandmother’s attorney stated “[t]his seems like a prime time to have placed
[N.J.] with the grandparents. . . . [T]he grandparents are very graciously willing not to
push the issue today given [N.J.’s] wishes which she shared last night. . . . But . . . there
was no notice of the move for us” (Italics added.)
The court ordered the Department to hold a family planning meeting, to include
the grandparents. Counsel for the Department informed the court at the March 25
hearing: “We did have a meeting with the grandparents . . . . And the plan is to go
forward and move [N.J.] Her sister is placed in Santa Rosa. This way the siblings can be
together. [¶] . . . We do have a plan to set up family therapy between the children and the
grandparents, and we’ll help them with visits.” Counsel for grandmother indicated the
Department agreed to “provide gas vouchers, they would increase visitation to allow
more, in terms of frequency and lengths of visitation with the grandparents . . . and that
they would facilitate what basically is the reunification plan which is essentially
individual counseling . . . and some family counseling as well.”
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The court ordered N.J.’s placement changed to Children’s Village. The court also
ordered that “the Department will follow up on its promises to the family members that
there will be gas vouchers for visitation, that the court-ordered visitation will continue to
occur, and we’ll return to court if there’s a modification needed, and that counseling will
be set up for the children and the maternal grandparents to facilitate the goal of
reunification.”
DISCUSSION
Grandfather maintains the court erred in failing to give preferential consideration
to placement of N.J. with him, under Welfare and Institutions Code section 361.3,2 rather
than changing her placement to the Children’s Village.
Section 361.3 provides in relevant part: “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 . . . .” (§ 361.3, subd. (a).) “ ‘Preferential consideration’ means
that the relative seeking placement shall be the first placement to be considered and
investigated. [¶] . . . [O]nly the following relatives shall be given preferential
consideration for the placement of the child: an adult who is a grandparent, aunt, uncle or
sibling.” (§ 361.3, subd. (c).)
Grandfather maintains he sought to have N.J. placed with him in his ex parte
application, which “stated, in part, that if [N.J.] was to be moved from her current
placement, the maternal grandparents were requesting that the child be placed with
them.” His application stated “[Grandfather] feels that he and [grandmother] are ready,
willing and able to resume full-time care of [N.J.] immediately and she shouldn’t be
placed back in Children’s Village.”
Grandfather never raised the issue of section 361.3 preferential placement
consideration. Indeed, he specifically waived placement of N.J. with him at the hearing
on March 20, although he was in agreement with the long-term goal of placement with
2
All further undesignated statutory references are to the Welfare and Institutions
Code.
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him and grandmother. At the hearing, Grandfather’s attorney stated the grandparents
“are not today asking for placement of [N.J.] with them. They understand that [N.J.] may
be moved back to Children’s Village. But I think the concerns are the grandparents do
want the Court and [Department] to do everything they can to facilitate the goal of
placing [N.J.] with them in a legal guardianship . . . .” (Italics added.)
At the continued hearing on March 25, the parties indicated there had been a
family planning meeting with the grandparents. The Department’s attorney indicated
“the plan is to go forward and move [N.J.] . . . . This way the siblings can be together.
[¶] On a separate issue, we did talk about the possibility of eventual placement with the
grandparents. It’s something that we do want to work toward although it’s not formally
in reunification. We do have a plan to set up family therapy between the children and the
grandparents, and we’ll help them with visits.” At that point, Grandfather’s attorney
indicated “I know we haven’t filed a 388, but since the court is determining placement, it
certainly is appropriate to consider the grandparents as a placement option.” He
concluded, however, “I think there are a lot of reasons to keep [N.J.] in a local placement,
not to uproot her, and to increase the contact [with grandparents] in that manner.”
Even had Grandfather not waived the issue of immediate placement of N.J. with
him, he has failed to demonstrate the placement order was an abuse of discretion. “ ‘We
review a juvenile court’s custody placement orders under the abuse of discretion standard
of review; the court is given wide discretion and its determination will not be disturbed
absent a manifest showing of abuse. [Citations.] “Broad deference must be shown to the
trial judge. The reviewing court should interfere only ‘ “if we find that under all the
evidence, viewed most favorably in support of the trial court’s action, no judge could
reasonably have made the order that he did.” ’ ” ’ [Citation.]” (In re Levi H. (2011)
197 Cal. App. 4th 1279, 1291.)
“The linchpin of a section 361.3 analysis is whether placement with a relative is in
the best interests of the minor.” (Alicia B. v. Superior Court (2004) 116 Cal. App. 4th 856,
862–863.) The court considers numerous factors, including the special needs of the child,
the wishes of the parent, relative and child, if appropriate, whether placement would be
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with a sibling, the good moral character of the relative and any other adult living in their
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 permanence for, the child if
reunification is unsuccessful. (§ 361.3, subd. (a).)
Although section 361.3 was never triggered because Grandfather waived his
request for immediate placement of N.J., the court had before it evidence of the factors to
be considered under that section. The evidence showed N.J. had special needs in regard
to her behavioral issues. She had been removed from a foster home placement and a
group home based on her behaviors. Changing her placement to Children’s Village,
where her sister was placed, would allow her to be with her sibling. Grandfather
expressed his desire to care for and provide legal permanence for N.J., and this was the
long-term goal ordered by the court after termination of reunification services to Mother.
Grandfather had, however, a criminal record and anger issues, although he had been
addressing the anger issues. The grandparents had been consistently visiting N.J.,
including overnight visits.
The court indicated “there really are some important policies that are at odds in
this case.” The court noted the “strong public policy of [siblings] being placed together
whenever possible,” and stated “it appeared to benefit both girls to be placed [closer]
together.” The court also considered N.J.’s “strong desire” to be placed at Children’s
Village, and the fact she had already been informed she would be moved there. The
social worker reported N.J. was being disruptive and oppositional in her current
placement; behaviors she believed would escalate if the placement continued. The court
noted the long-term goal, adopted by the Department, was placement with the
grandparents. The court ordered placement at Children’s Village, with visitation with the
grandparents and Mother separately, gas vouchers provided to facilitate visitation, and
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“counseling . . . set up for the children and the maternal grandparents to facilitate the goal
of reunification.” We conclude this order was not an abuse of discretion.3
DISPOSITION
The orders terminating reunification services to Mother and changing N.J.’s
placement are affirmed.
_________________________
Banke, J.
We concur:
_________________________
Humes, P. J.
_________________________
Dondero, J.
3
The Department filed a motion seeking judicial notice of a subsequent order of
the court in which the permanent plan for N.J. was changed to “placement with [a] group-
home, and a specific goal of a less restrictive foster setting . . . .” “ ‘On a case-by case
basis, the reviewing court decides whether subsequent events in a dependency case have
rendered the appeal moot and whether its decision would affect the outcome of the case
in a subsequent proceeding. [Citation.]’ ” (In re M.C. (2011) 199 Cal. App. 4th 784, 802.)
Although records of the juvenile court are an appropriate subject for judicial notice (Evid.
Code, § 451) we deny the motion because the subsequent order is not relevant to the issue
in this appeal.
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