In re J.C. CA3

Filed 7/14/15 In re J.C. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
COPY
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
In re J.C. et al., Persons Coming Under the Juvenile C072429
Court Law.
BUTTE COUNTY DEPARTMENT OF (Super. Ct. Nos. J36092,
EMPLOYMENT AND SOCIAL SERVICES, J36093)
Plaintiff and Respondent,
v.
A.W.,
Defendant and Appellant.
Appellant A.W., mother of the minors J.C. and Jo.C., appeals from the juvenile
court’s orders entered at the six-month review hearing, placing the minors with their
father under a plan of family maintenance. (Welf. & Inst. Code, §§ 366.21, subd. (e),
395; unless otherwise stated, statutory references that follow are to the Welfare and
1
Institutions Code.) She contends the minors should have been placed with her, absent a
finding it would be detrimental to do so, and that it was detrimental to the minors to be
placed with father. She also complains about the adequacy of the social worker’s
investigation and report. We shall affirm the juvenile court’s orders.
FACTS AND PROCEEDINGS
On October 2, 2011, the Butte Interagency Narcotics Task Force went to mother’s
home to investigate suspected narcotics violations and to conduct a Drug Endangered
Children’s investigation. The officers discovered baggies of methamphetamine in a
sweater in mother’s closet and in a beanie in her bedroom. Marijuana was found in a
cupboard above the refrigerator, on a desk in the living room, and drying in a living room
closet. A digital gram scale was located in a box on mother’s dresser and a used
methamphetamine smoking pipe was found in her purse. Mother admitted that the drugs
and paraphernalia belonged to her and was arrested on child endangerment and drug
possession charges. The minors and their two half siblings were detained.
On October 4, 2011, Butte County Department of Employment and Social
Services (the Department) filed section 300 petitions on behalf of the minors, then ages
five and seven, alleging mother has had a substance abuse problem, primarily
methamphetamine and marijuana, since the age of 16 that periodically renders her unable
to provide regular childcare. Petitions were also filed on behalf of the minors’ older and
younger half siblings, but they are not subjects of this appeal.
A previous dependency case had been commenced in 2002 on behalf of the
minors’ older half sibling after a methamphetamine lab was found in mother’s home.
That case was dismissed in 2005.
The section 300 petition alleged that mother had admitted the items found by the
task force were hers, admitted she had relapsed in her use of methamphetamine “some
time ago” and had last used methamphetamine two days prior, and had been arrested on
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child endangerment and drug possession charges. The minors’ father was alleged to have
not provided regular or ongoing support for the minors, and also had a history of alcohol
or drug-related criminal activity.
The juvenile court found father to be the minors’ presumed father and, on
November 17, 2011, found the allegations of the petition to be true and ordered increased
visitation for father. Father lived in Salida, which was approximately three hours away.
Because father was unable to drive, his mother would travel from San Francisco to bring
him to Butte County for his visits twice a week.
The disposition report was filed on December 6, 2011. Father’s criminal history
was reported to consist of multiple misdemeanors for offenses including possession of
stolen property (1994), possession of marijuana (2005), driving under the influence
(2005), spousal battery (three convictions in 2006), reckless driving (2007), and petty
theft with a prior (2005, 2010).
Visits were going well and mother had already begun participating in services.
Mother’s boyfriend also began substance abuse treatment and parent education.
Father participated in a drug and alcohol assessment, which resulted in a
recommendation he attend a basic awareness drug and alcohol class, drug test randomly,
and attend a basic parent support group or class. It was also recommended he continue in
his batterer’s intervention program, which he was attending in San Francisco as part of
probation. Father informed the social worker that he would test “dirty” for marijuana
because he had recently used it in accordance with his marijuana prescription. Father had
a prescription for marijuana to treat a head injury, but indicated he would look into
alternative means to treat his injury.
The minors were at the time of the hearing placed together in foster care but the
Department was looking to place them in the home of their maternal aunt and uncle, who
resided in Portola. The report recommended the minors remain in out-of-home care and
that mother, mother’s boyfriend, and father receive reunification services.
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On December 22, 2011, the juvenile court authorized placement of the minors
with the maternal aunt and uncle in Portola. The court also authorized weekend and
extended visits for father.
The disposition hearing took place on January 5, 2012. The social worker had
visited father’s house and cleared it for placement. They were still waiting for clearance
of father’s mother and fiancée. Mother was active in services. The juvenile court
adjudged the minors dependents of the court and ordered them to remain in out-of-county
relative or foster care. The juvenile court authorized weekend and extended visits for
mother and her boyfriend.
An oral interim review was held on February 2, 2012. Mother, mother’s
boyfriend, and father were all participating in their services and programs. The minors
and their half siblings were living in their relative placement in Portola and had started an
alternating Friday through Sunday weekend visitation schedule, with the minors spending
one weekend with father in Modesto (while the half siblings went to mother’s), and the
other weekend with mother and the half siblings in Oroville. The visits were going well
and the social worker was considering moving to unsupervised visits. Father sought
placement of the minors with him in Modesto and, although the court authorized it, the
court said the placement was not to occur unless counsel was notified and had an
opportunity to be heard. The court set another interim review hearing and authorized
unsupervised extended and weekend visits with both parents.
The next oral interim review was held on April 26, 2012. The social worker
reported that the minors were struggling in school, and were having behavioral problems
at school and in their relative home placement. It was determined that they were in need
of counseling but there was a waiting list. In addition, the Department was hesitant to
start them in counseling if they were going to move soon. The Department also had
concerns that the minors were “running wild” after visits with the stepfather (presumably,
mother’s boyfriend) and that the stepfather yells at the minors in a very mean fashion.
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Noting that the juvenile court has discretion to place the minors with the
previously noncustodial parent and order family maintenance services, the Department
requested placement of the minors with father with a reasonable visitation pattern with
mother. Father concurred or, alternatively, requested the minors be sent to father on an
extended visit so he could enroll them in school.
Mother was opposed to separating the minors from their half siblings and to
placement with father until there was “more information on [his] progress and what has
actually gone on here.” Mother also wanted to hear from minors’ counsel regarding the
minors’ best interests and wanted evidence supporting the Department’s representation
that the minors were failing in school. Accordingly, mother requested a formal motion
and that the matter be set for a hearing. The juvenile court stated that it was inclined to
grant an extended visit and placement with father but would give counsel the time to “get
all of the information.” The juvenile court continued the matter two weeks, directing
minors’ counsel to consult with the minors in the interim.
The parties returned to court on May 15, 2012. Minors’ counsel reported that the
minors did not yet have beds at father’s residence but that they liked being with both
parents and no other concerns were noted. The Department stated it was seeking to place
the minors with father. The juvenile court was concerned that it did not yet have father’s
family history report. It authorized continued extended visits with father but reserved the
matter of placement with father for the six-month review hearing.
The contested six-month review hearing commenced on July 24, 2012. Father had
completed the family history report. The minors had started extended visits with the
parents during the summer, spending alternate weeks with each parent. The social
worker had visited father’s residence, where he lived in a three-bedroom house with his
fiancée and her teenage daughter. The minors had their own room and were getting bunk
beds there. Father’s counsel informed the court that there was a school across the street
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from father’s residence that was ready to accept the minors for enrollment as soon as the
minors are placed with father.
The juvenile court continued the matter to obtain additional information about
father’s criminal history and medical marijuana usage. Although mother had placement
of the minors’ two half siblings since June 28, 2012, the court declined placement of the
minors with mother due to concerns raised about earlier living conditions in her home
and the felony child endangerment offense to which she had recently pled. The court
authorized an extended visit with father and enrollment in the school across from father’s
home. Accordingly, once school commenced in August, father would be bringing the
minors to visit with mother every other weekend.
The contested six-month review hearing continued on September 4, 2012. The
Department recommended placement with father with family maintenance. The
Department reported that the minors were in a stable living environment at father’s, were
visiting mother twice a month, and were doing well in school. The minors were in first
and second grade. The house was clean and had food in it. The minors had their bunk
beds in their own room, with enough closet space and their own bathroom. Father’s
fiancée’s mother lived next door, so they had support from her.
Father had a current medical marijuana certificate and used the medical marijuana
under the direction of a physician to treat a prior traumatic head injury. Father was
working with the doctor to find an alternative treatment to marijuana and planned to stop
using marijuana entirely by October 2012 when his prescription expired. The social
worker had investigated and was comfortable that father was not using or storing it in the
house, which further alleviated the social worker’s concerns. Father uses the marijuana
at bedtime when he gets headaches. He testified that he had a courier deliver a single
marijuana cigarette directly to him in front of his house, after the minors are in bed, and
he walks around the block to smoke it.
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The six-month review hearing concluded on October 3, 2012. The social worker
testified that one of the minors was still having some instances of “shutting down” or
acting out in the classroom but that the behavior was improved when he was taken for a
walk outside the classroom. Father was active in the school district and appropriately
addressing the minor’s needs. The other minor was having fewer instances of acting out.
The social worker and principal were working together to get some counseling started.
With respect to the minors’ separation from their half siblings, the minors had mentioned
to the social worker that they miss them and like going to see them.
Father had established a routine for the minors, consisting of a set wake up time,
post school homework time, playtime, and bedtime. Father ensured the minors brushed
their teeth in the morning and after dinner--as the older minor had fully capped teeth and
the younger minor’s teeth were also “not the best.” At bedtime, father sometimes read to
the minors and he personally put them into bed and patted them to sleep. The minors did
not yet have household chores but were responsible for keeping their rooms clean. They
looked forward to school and were developing relationships with their classmates. The
younger minor was excited to be going to a birthday party for a friend for the first time.
Father had taken a parenting class and completed a 52-week batterer’s program. He
believed he had addressed his anger control issues and now uses walking as a technique
to dissipate his anger.
Father testified that the minors looked forward to their visits with mother and their
half siblings. They were also free to have telephone contact with mother between visits,
but they had not had any. The minors’ 13-year-old half sister testified that she enjoyed
the visits but missed the minors and wanted to see them a little bit more than just for two
days. She helped take care of them a lot over the years. She said that her younger sister
also missed them and cried when they left after visits. She also said that the minors have
told mother during visits to “call the lawyer so they can stay longer or they can move
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back.” Prior to their detention, the minors had always lived with her and her sister and
shared holidays together.
The juvenile court commented that the minors were removed from mother due to
her methamphetamine use and that it was the second time she had had minors removed
from her custody for that reason. Both parents had complied with the Department and the
services provided. The court found that foster care was no longer appropriate, that father
was the noncustodial parent and that there was no detriment in keeping them placed with
him in a plan of family maintenance. The court noted that the minors had not been doing
well while in foster care in Portola. They were now in a new school and father was doing
well in establishing a routine for the minors. The court ordered the minors placed with
father with family maintenance services and set the matter for a review hearing. The
minors were to spend the majority of holiday time with mother.
DISCUSSION
I
Return of Minors to Parental Custody
Mother contends the juvenile court was required at the six-month review hearing
to return the minors to her in the absence of finding detriment to the minors in doing so.
The premise of her argument is that, as the previously custodial parent of the minors,
section 366.21, subdivision (e) demands that the minors be returned to her, not the
previously noncustodial father. It follows, she argues, that the juvenile court’s failure to
find detriment to the minors should they be returned to her, prior to placing the minors
with father, was reversible error. As support for this proposition, she relies upon the
language of section 366.21, subdivision (e).
“Section 366 requires that the ‘status of every dependent child in foster care shall
be reviewed . . . no less frequently than once every six months.’ (§ 366, subd. (a), italics
added.) That section also identifies specific issues to be considered at review hearings,
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including, for example, the safety of the child, the continuing necessity for and
appropriateness of the placement, the extent of the agency’s efforts to return the child to a
safe home, and the progress that has been made toward alleviating the causes requiring
the placement in foster care. (Ibid.) Additional guidelines pertaining to specific review
hearings (i.e., the 6-, 12-, and 18-month reviews) are set forth in subsections of section
366.” (In re Nicholas H. (2003) 112 Cal.App.4th 251, 263.)
Section 366.21, subdivision (e) provides, in pertinent part: “At the review hearing
held six months after the initial dispositional hearing, but no later than 12 months after
the date the child entered foster care . . . , the court shall order the return of the child to
the physical custody of his or her parent or legal guardian unless the court finds, by a
preponderance of the evidence, that the return of the child to his or her parent or legal
guardian would create a substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child.”
Read in context, section 366.21, subdivision (e) provides for return of a minor to
parental custody, from foster care, unless return of the child would create a substantial
risk of detriment to the minor. There is no preference or presumption with respect to a
return to either parent. A “nonoffending parent has a constitutionally protected interest in
assuming physical custody, as well as a statutory right to do so, in the absence of clear
and convincing evidence that the parent’s choices will be ‘detrimental to the safety,
protection, or physical or emotional well-being of the child.’ ” (In re Isayah C. (2004)
118 Cal.App.4th 684, 697.) Mother, as the previous custodial parent, whose actions
brought the minors within the jurisdiction of the court in the first place, has no greater
right of custody than the nonoffending father. The statute’s use of the word “return” does
not render the statute applicable only to the home of removal. The statute requires return
to parental custody. (See In re Nicholas H., supra, 112 Cal.App.4th at pp. 266-268.)
Indeed, section 361.2, subdivision (a) expressly provides for placement of a minor
with an earlier noncustodial parent. Under that section, “[w]hen a court orders removal
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of a child pursuant to Section 361, the court shall first determine whether there is a parent
of the child, with whom the child was not residing at the time that the events or
conditions arose that brought the child within the provisions of Section 300, who desires
to assume custody of the child. If that parent requests custody, the court shall place the
child with the parent unless it finds that placement with that parent would be detrimental
to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2,
subd. (a).)
Mother argues that section 361.2 was inapplicable here because the statute applies
only at the time of disposition. We must disagree. “Even though section 361.2, by its
terms, applies when the court first takes jurisdiction of a child, its procedures can be
invoked at the six-month and 12-month review hearings, as occurred here.” (In re
Janee W. (2006) 140 Cal.App.4th 1444, 1451.) In fact, the California Rules of Court
specifically contemplate the application of section 361.2 procedures when the child is
placed with the previously noncustodial parent at subsequent review hearings, and
expressly provide for placement with the noncustodial parent at the six-month review
hearing.
California Rules of Court, rule 5.708 provides in part:
“(k) Placement with noncustodial parent (§ 361.2)
If at any review hearing the court places the child with a noncustodial parent, or if the
court has previously made such a placement, the court may, after stating on the record or
in writing the factual basis for the order:
“(1) Continue supervision and reunification services;
“(2) Order custody to the noncustodial parent, continue supervision, and order
family maintenance services; or
“(3) Order custody to the noncustodial parent, terminate jurisdiction, and direct
that Custody Order--Juvenile--Final Judgment (form JV-200) be prepared and filed under
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rule 5.700.” (Cal. Rules of Court, rule 5.708, italics added.) Those options parallel those
set forth in section 361.2, subdivision (b).
California Rules of Court, rule 5.710 provides:
“(b) Determinations and conduct of hearing (§§ 364, 366, 366.1, 366.21)
“At the hearing, the court and all parties must comply with all relevant
requirements and procedures in rule 5.708, General review hearing requirements. The
court must make all appropriate findings and orders specified in rule 5.708 and proceed
as follows:
“(1) Order return of the child or find that return would be detrimental
“The court must order the child returned to the custody of the parent or legal
guardian unless the court finds that the petitioner has established by a preponderance of
the evidence that return would create a substantial risk of detriment to the safety,
protection, or physical or emotional well-being of the child. The requirements in rule
5.708(d) must be followed in establishing detriment. The requirements in rule 5.708(e)
must be followed in entering a reasonable services finding. If the child is returned, the
court may order the termination of dependency jurisdiction or order continued
dependency services and set a review hearing within 6 months.
“(2) Place with noncustodial parent
“If the court has previously placed or at this hearing places the child with a
noncustodial parent, the court must follow the procedures in rule 5.708(k) and
section 361.2.”
(Cal. Rules of Court, rule 5.710, italics added.)
“At the [6-] 12- and 18-month permanency and permanency review hearings in a
section 361.2, subdivision (b) case in which both parents have been provided services, a
finding that the child can safely be returned to the parent from whom custody was
removed does not automatically entitle that parent to custody of the child. Instead, such a
finding qualifies the parent to receive custody. As we have explained, the risk of
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detriment assessment and the need for continuing supervision inquiry are valid and
relevant considerations when the juvenile court makes a custody decision in a section
361.2(b)(2) case. However, the court must still decide which parent should receive
custody of the child by considering the best interests of the child.” (In re Nicholas H.,
supra, 112 Cal.App.4th at p. 268.)
In sum, we hold that the return requirement in section 366.21, subdivision (e), i.e.,
that the juvenile court return the minors to the physical custody of their parent or legal
guardian absent a finding of detriment, does not preclude placement of the minors with
the previously noncustodial father, even when there has been no finding of detriment in
returning the minors to the previously custodial mother. Instead, it requires the juvenile
court return the minors from foster care to parental custody, unless it finds return would
create a substantial risk of detriment to the safety, protection, or physical or emotional
well-being of the minors. If, as here, the previously noncustodial father seeks custody,
return to his physical custody is appropriate, even if return to mother’s physical custody
would no longer be detrimental, if the juvenile court finds it is in the best interests of the
minors.
With this holding in mind, mother’s principal contention, that the failure to find
detriment to the minors if they were returned to her, requires remand, fails. Even
assuming a favorable finding--that return to mother’s custody would not create a
substantial risk of detriment to the minors--the finding would not control the outcome.
The dispositive inquiry in properly determining physical custody was the best interests of
the minors. (In re Nicholas H., supra, 112 Cal.App.4th at p. 268.) Thus, the failure to
make a finding regarding detriment with respect to mother does not require reversal.
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II
Placement With Father
Mother argues that the evidence established placement with father would be
detrimental to the minors. If true, placement with father would be improper under section
361.2 and would be contrary to the minors’ best interests.
When the juvenile court has made a custody determination in a dependency
proceeding, “ ‘a reviewing court will not disturb that decision unless the trial court has
exceeded the limits of legal discretion by making an arbitrary, capricious, or patently
absurd determination [citations].’ ” (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421;
see In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) “ ‘The appropriate test for abuse
of discretion is whether the trial court exceeded the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the reviewing court has no authority
to substitute its decision for that of the trial court.’ ” (Walker v. Superior Court (1991)
53 Cal.3d 257, 272, quoting Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)
We disagree that the evidence established that placement with father would be
detrimental to the minors and find no abuse of discretion in the juvenile court’s
placement of the minors with him.
Minors’ Placement With Father
In support of her position that placement with father is detrimental to the minors,
mother emphasizes, as she did in the juvenile court, that she had completed all the
services requested of her and father had done “minimal services,” consisting only of
domestic violence and parenting services. However, the evidence reflects that father, like
mother, did all that was asked of him.
Father participated in a drug and alcohol assessment, which resulted in a
recommendation he attend a basic awareness drug and alcohol class, drug test randomly,
and attend a basic parent support group or class. The social worker reported that he had
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been compliant in participating in these services. Father had been proactive in
participating in services, including completion of a parenting class. Although there was
testimony that father did not provide regular drug tests, father had admitted that he would
continue to test “dirty” because of his medical marijuana usage. It had been
recommended father continue in his batterer’s intervention program, which he completed
on July 20, 2012. Father articulated during his testimony what he had learned in the
program, including insight into how he presents himself and reacts to things, as well as
how he has modified his behavior to address his anger control issues. The batterer’s
intervention program also addressed issues of drug and alcohol use. Father was
compliant with the terms and conditions of his probation and his probation officer had no
concerns.
Moreover, mother’s argument that father participated in minimal services ignores
that father is the nonoffending, noncustodial parent. And while the social worker had not
yet completed his investigation so as to place the minors with father by the time of
disposition, there were never any allegations supporting jurisdiction with respect to
father. As we previously stated, father, as a nonoffending parent, has a constitutionally
protected interest and statutory right to assume physical custody of the minors, in the
absence of clear and convincing evidence that it would be detrimental to their safety,
protection, or physical or emotional well-being. (§ 361.2; In re Isayah C., supra,
118 Cal.App.4th at pp. 697, 699-700.) There was not clear and convincing evidence that
father posed a risk to the minors’ safety, protection, or physical or emotional well-being.
With respect to father’s medical marijuana usage, to which mother takes issue,
father testified that he only used the marijuana after the minors were in bed, had it
delivered in single use dosages, and did not keep any in the house. He also testified that
he was working with his physician to find an alternative to the marijuana. The
Department was satisfied that father’s manner of usage did not pose a risk to the minors.
With respect to father’s criminal history, we note that a criminal history, without more,
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does not prove a person to be unfit to have custody of his children. (See In re James M.
(1976) 65 Cal.App.3d 254, 265-266; see also In re Baby Girl M. (2006) 135 Cal.App.4th
1528, 1539-1545.)
Finally, we consider the evidence that father had been providing a stable home for
the minors while on their extended visit. He had established a routine for the minors
(consisting of a set wake up time, post school homework time, playtime and bedtime),
ensured they brushed their teeth in the morning and after dinner, and tucked them into
bed at night. The minors, who had previously struggled in school, now looked forward to
school and were developing relationships with their classmates. Although father was
unable to drive, he was the minors’ primary caregiver and had ample support from other
individuals to provide any needed transportation.
Minors’ Placement Apart From Half Siblings
Mother also contends the juvenile court neglected its duty to consider the minors’
relationship with their half siblings, and the impact of their separate placements. She
argues it was detrimental to place the minors’ with father and away from their half
siblings.
The issue of the minors’ relationship with their half siblings was clearly in front of
the juvenile court at the time of the six-month review hearing. Mother’s counsel made
extensive argument regarding the minors’ relationship with their half siblings and argued
that they should not be separated. Although the juvenile court ultimately ordered
placement with father, it recognized the minors’ sibling relationship and, in that regard,
expressly found that visitation with the minors’ siblings would serve their best interests
and authorized visitation. The visitation arrangement provided that the minors would
spend the majority of holidays with their half siblings, as they had in the past. Thus, it is
clear that the juvenile court did consider the minors’ relationship with, and separation
15
from, their half siblings and found that the placement order would not be detrimental to
the minors. The evidence does not mandate a different conclusion.
Mother also argues that the juvenile court did not make the proper findings
regarding the nature of the minors’ sibling relationships. She argues that specific
findings regarding sibling issues are required by section 366.
Section 366 provides for the review of minors in foster care and sets forth certain
matters that must be considered by the court. Those considerations focus on the status of
the case, i.e., necessity and appropriateness of placement; the Department’s compliance
with the case plan to either return the minor home or finalize a permanent plan;
limitations on the parent’s rights to make educational decisions for the minor; sibling
issues; and progress toward mitigating the causes which led to foster care. (§ 366, subd.
(a)(1)(A-E).) Here, the minors here were not continued in foster care but returned to
parental custody. Accordingly, it is not clear the considerations in section 366,
subdivision (a)(1)(A-E) apply.
In any event, mother did not object to the form of the findings and orders or argue
that the findings and orders should contain specific language regarding the nature of the
relationship of the siblings or the impact of their separation. Thus, to the extent that
mother’s arguments attack the language of the findings and orders, the challenge is
forfeited for failure to assert the matter in the juvenile court. (In re Dakota S. (2000)
85 Cal.App.4th 494, 501-502; In re Christopher B. (1996) 43 Cal.App.4th 551, 558.)
III
Inadequate Investigation of Father
Finally, mother contends the social worker failed to undertake an adequate
investigation regarding father, and failed to provide adequate reports to the juvenile court.
We find no error.
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Section 366.21, subdivision (c) requires the social worker to prepare a report prior
to each review hearing “regarding the services provided or offered to the parent or legal
guardian to enable him or her to assume custody and the efforts made to achieve legal
permanence for the child if efforts to reunify fail, . . .; the progress made; and, where
relevant, the prognosis for return of the child to the physical custody of his or her parent
or legal guardian; and shall make his or her recommendation for disposition. If the child
is a member of a sibling group described in subparagraph (C) of paragraph (1) of
subdivision (a) of Section 361.5, the report and recommendation may also take into
account those factors described in subdivision (e) relating to the child’s sibling group.”
(§ 366.21, subd. (e).)
Similarly, California Rules of Court, rule 5.708(c) requires that, “[b]efore the
hearing, the social worker must investigate and file a report describing the services
offered to the family, progress made, and, if relevant, the prognosis for return of the child
to the parent or legal guardian.
“(1) The report must include:
“(A) Recommendations for court orders and the reasons for those
recommendations;
“(B) A description of the efforts made to achieve legal permanence for the child if
reunification efforts fail; and
“(C) A factual discussion of each item listed in sections 366.1 and 366. 21(c).”
(Cal. Rules of Court, rule 5.708(c).)
It is not disputed that the social worker did, in fact, file a report. Mother’s
complaint is that certain items were not properly investigated or included in the written
report.
Citing section 366.21, subdivision (e), mother argues extensively that the report
must address numerous delineated sibling-related factors set forth therein. The statutory
language to which mother cites, however, is applicable when the court is “making its
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determination to schedule a hearing pursuant to Section 366.26 for some or all members
of a sibling group.” (§ 366.21, subd. (e).) That, of course, is not the procedural posture
here. The applicable language in section 366.21, subdivision (c), quoted above, states
that “the report and recommendation may also take into account those factors described
in subdivision (e) relating to the child’s sibling group.” (§ 366.21, subd. (c), italics
added.)
Mother also emphasizes that the juvenile court had indicated, after the filing of the
social worker’s written report, that it needed additional information regarding the
“situation” with his fiancée (including how long he had been with her), father’s other
children, how the minors were doing, and whether father was smoking marijuana in front
of the minors. The social worker, however, provided two subsequent oral reports and
testimony to supplement his written report. Father also testified at the review hearing.
After the court’s statements that it needed additional information, father testified that he
had been seeing his fiancée for a year and a half and living with her for a year.
The social worker confirmed that father had visitation with two of his other
children but, by agreement, did not have contact with his special needs child. Subsequent
updates were provided by both the social worker and father as to how the minors in this
case were doing. And father testified that he had his marijuana delivered in single doses
and did not keep any in the house. Thus, additional information was provided to the
court to assist it in making its findings and orders. (See In re John F. (1994)
27 Cal.App.4th 1365, 1378.)
Mother also argues the social worker failed to obtain relevant information about
father such as asking father’s probation officer what were the specific terms of father’s
probation (concerning which the probation officer indicated father was in compliance) or
talking to father’s physician who prescribes father medical marijuana. Mother fails,
however, to identify what critical information she thinks the social worker should have
gained from such inquiries. Mother also complains that the social worker did not ask
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father where he keeps his marijuana, but father testified that he had the marijuana
delivered in single doses and did not keep any in the house. Thus, that relevant
information was available to the court.
Mother complains the social worker did not have father participate in drug or
mental health assessments, but father did participate in a drug assessment and there was
no indication that (the nonoffending) father was in need of a mental health assessment.
He was completing his batterer’s intervention program, which had been recommended.
We do not find mother’s complaints to signify a breach of the social worker’s duty to
investigate. (See In re John F., supra, 27 Cal.App.4th at pp. 1377-1378 [the Department
has duty, in rendering its report and recommendation, not to mask problems in obtaining
information but to apprise court of all relevant facts and circumstances concerning the
child].)
The social worker’s written report, along with the subsequent oral reports and
testimony, substantially complied with the statutory requirements. The court was
provided with information regarding the services that had been provided, the progress
made, and a recommendation of return of the minors to father’s custody.
We do not find the report or underlying investigation to be fundamentally flawed.
Deficiencies in an assessment report prepared by a county adoption agency for a
permanency plan hearing go to the weight of the evidence. (In re Crystal J. (1993)
12 Cal.App.4th 407, 413; c.f., In re Valerie W. (2008) 162 Cal.App.4th 1, 14.) Here,
although the juvenile court had continued the matter to obtain additional information, by
the conclusion of the hearing, it was evidently satisfied that it had sufficient information
to make its findings and orders. The record does not compel a finding to the contrary.
Mother also contends the “inadequacy of the social worker’s report and lack of
investigation” deprived her of due process. Mother, however, failed to bring to the
juvenile court’s attention her assertion that principles of due process required a more
thorough social worker’s report. Had she done so, the court could have considered her
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claim and, if it found her due process argument meritorious, required a new report be
prepared prior to making its findings and orders. A party may not assert theories on
appeal which were not raised in the trial court. (Fretland v. County of Humboldt (1999)
69 Cal.App.4th 1478, 1489.) Mother forfeited the right to assign constitutional error on
appeal. (In re Dakota H. (2005) 132 Cal.App.4th 212, 222.)
DISPOSITION
The orders of the juvenile court are affirmed.
HULL , Acting P. J.
We concur:
MURRAY , J.
HOCH , J.
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