A.B. v. Superior Court
Filed 1/11/13
A.B. v. Superior Court CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIFTH APPELLATE DISTRICT
A.B.,
Petitioner,
v.
THE SUPERIOR COURT OF STANISLAUS COUNTY,
Respondent;
STANISLAUS
COUNTY COMMUNITY SERVICES AGENCY,
Real Party in Interest.
F065883
(Super. Ct. No. 516353)
O P I N I
O N
THE COURT
ORIGINAL
PROCEEDINGS; petition for
Carin
L. Johnson, for Petitioner.
No
appearance for Respondent.
John
P. Doering, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for
Real Party in Interest.
-ooOoo-
Petitioner A.B. (petitioner) seeks an extraordinary
writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s order
denying reunification services and setting a Welfare and Institutions Code section
366.26 hearing as to her infant daughter, Aaliyah B.
Petitioner challenges the juvenile court’s detention of and exercise of
dependency jurisdiction over Aaliyah, the department’s decision not to place
Aaliyah with her paternal grandmother, and the juvenile court’s findings
resulting in its order denying reunification services. On review, we conclude petitioner’s arguments
are meritless.
PROCEDURAL AND
FACTUAL HISTORY
Petitioner is the mother of many
children, who are not in her care due to her severe drug abuse and her erratic
behaviors. Three of the children were
adjudged juvenile dependents between 2003 and 2005 and removed from
petitioner’s custody due in part to her drug abuse and frequent incarcerated status. The superior court eventually terminated
reunification services due to petitioner’s lack of effort and progress. In late 2005, the superior court terminated
parental rights to the three children.
Between 2006 and 2011, petitioner
was arrested at least a dozen times on drug- and theft-related charges. In some instances, she was convicted. In others, she was returned to jail or state
prison for probation or parole violation.
In September 2011, petitioner
admittedly used methamphetamine while pregnant with Aaliyah. Petitioner thought the fetus ingested
methamphetamine when she smoked it, but petitioner decided to smoke
methamphetamine anyway. She was
incarcerated as a result for felony probation violation.
Aaliyah was born in December
2011. Although she was not “substance
exposed†at birth, she was diagnosed with Down Syndrome.
In March 2012, petitioner was
arrested on drug- and theft-related charges.
She received a felony conviction and was sentenced to a 56-month jail
term. She served 45 days and then was
released on “house arrest†with an ankle monitor.
Proceedings
On June 22,
2012, a
woman was observed stumbling and wandering about an Office Depot store. She appeared to be under the influence. Witnesses were concerned because she had with
her an infant, who was unrestrained in a shopping cart. According to one witness, the baby cried and
the woman responded by telling the baby to be quiet. The woman was repeatedly heard to say “Mommy
needs to get some money.†The cart
containing the baby almost tipped over several times. The woman was “sling shooting†the cart
around the aisle.
The woman eventually exited the store,
leaving behind her identification. The
identification bore petitioner’s name and address. As the woman left the store, the cart
overturned with the baby inside. The
woman righted the cart, went to her vehicle, “tossed†the baby in the car and
erratically drove off.
An emergency response social worker
repeatedly attempted to visit petitioner at the residence listed on her
identification but to no avail.
Neighbors confirmed a woman and infant resided at the address. A check with petitioner’s probation officer
revealed the information about petitioner’s house detention and ankle monitor
requirement. Probation lost the GPS
signal to petitioner’s ankle monitor the same day as the incident in the
store. Petitioner’s whereabouts were
unknown to her probation officer. The
probation officer also stated that petitioner admitted in mid-June to using
cocaine and crack.
On June 25,
2012,
adult probation and the social worker conducted a search of petitioner’s
home. She was not present. Her ankle monitor was found in the home. The search also revealed a crack pipe in the
bathroom, a digital scale commonly used for measuring drugs, cans of formula
and a small baby swing.
On June 26, petitioner called real
party Stanislaus County Community Services Agency (agency) asking to meet with
the social worker who had been to petitioner’s home. Petitioner was aware of a warrant for her
arrest and was attempting to avoid detection.
She claimed she had placed her child in the care of an “Aunt†named
Cynthia.
Later on June 26, the social worker
met with petitioner and Aaliyah at the home of Cynthia. Petitioner admitted that she relapsed on
crack and cocaine five days earlier and deliberately removed her ankle
monitor. She denied having been in an
Office Depot store. Instead, she claimed
she got into an argument with personnel at a Walmart store. She further denied being under the influence
while at the store and behaving inappropriately or aggressively with
Aaliyah.
Petitioner later admitted Cynthia was a
friend whom petitioner met when they were both incarcerated. Cynthia was not an appropriate caregiver for
the baby due to Cynthia’s background and the agency’s inability to clear her
for placement. Petitioner also
acknowledged later still that she had Aaliyah in her care since birth except
when she (petitioner) was incarcerated earlier in the year.
Petitioner was arrested and
incarcerated on June 26. Because
Aaliyah’s father was incarcerated in state prison at the time, there was no
caregiver for the child. As a result,
Aaliyah was placed in protective custody and the agency initiated the
underlying dependency proceeding.
The agency’s petition contained allegations,
based on the evidence summarized above, that:
Aaliyah was at substantial risk of suffering serious physical harm as a
result of her parents’ inability to adequately protect her and provide adequate
care due in particular to mother’s substance abuse (§ 300, subd. (b)); the
parents were incarcerated and left Aaliyah without an appropriate caregiver
(§ 300, subd. (g)); and Aaliyah’s siblings had been neglected and there
was a substantial risk that Aaliyah would likewise be neglected (§ 300,
subd. (j)).
Less than a week after petitioner’s
arrest, another social worker interviewed her.
Petitioner confirmed her substance abuse in the days prior to her
arrest. She also acknowledged that when
she used drugs, her behaviors were “way out there .… I get really off the hook, bizarre.†Petitioner admitted she needed help. She wanted Aaliyah placed with paternal
relatives and an opportunity to reunify with Aaliyah.
The day after the agency placed
Aaliyah in protective custody, the
paternal grandmother (grandmother) expressed a desire to have the child placed
with her. The grandmother allegedly
cared for Aaliyah when petitioner was previously in jail.
The grandmother lived with three other adults
and two grandchildren in a two-bedroom apartment. The grandmother was directed to complete an
application and have everyone in her home “live scan.â€
At a June 29 detention hearing, a
superior court judge made temporary detention orders and directed the agency to
investigate the grandmother for possible relative placement. The judge also continued the matter for a
further detention hearing in early July 2012.
A social worker tried to obtain from the
grandmother the names and background information of the other adults in her
home, in time for the early July hearing.
However, when the social worker contacted the grandmother, she stated
the other adults were asleep at the time and she was unwilling to disturb
them. The social worker explained she
could not run a criminal background check on the other adults without the
information, which in turn would delay possible placement with the grandmother. The grandmother said she understood.
Another superior court judge, who
was normally not assigned to juvenile court, conducted the further detention
hearing in early July. During an
off-the-record discussion, the judge learned the matter was continued as a
contested hearing for the social worker to “check out relative placement.†Counsel for petitioner requested an
additional continuance while county counsel for the agency objected. The judge continued the detention hearing to
July 11 to allow the Agency enough time to complete its assessment. The judge urged petitioner to communicate
with relatives that they needed to be forthcoming with their information and
cooperative with the agency.
Yet another superior court judge,
whose regular assignment was in the juvenile court, conducted the July 11
hearing. She expressed concern that the
posture of this case was strange in that Aaliyah was detained on June 26 and
the matter was set and continued over for a contested detention hearing. In the judge’s view, the case should be set
for a jurisdictional hearing. County
counsel on behalf of the agency agreed and explained the agency continued to
assess relatives.
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Counsel for petitioner requested that Aaliyah
be placed with the grandmother. He
claimed the three other adults in the grandmother’s home had been
fingerprinted. There was no evidence
before the court, however, that the grandmother’s home had been cleared for
placement. Petitioner’s counsel did not
ask to present evidence or cross-examine the agency’s social worker regarding
detention or placement.
The court confirmed the detention orders
previously made in June 2012 and set the matter for a
jurisdictional/dispositional hearing in August 2012.
Although the relatives living with the
grandmother were cleared in mid-July, the social worker discovered Aaliyah’s
adult uncle lived next door to the grandmother and was in and out of her
home. The living arrangements between
the two apartments were described by the family as “fluid.†As a result, the uncle needed to be
fingerprinted before the grandmother could be approved for placement. However, he refused.
Consequently, on August 1, 2012, the agency
denied the grandmother’s placement request.
The grandmother administratively challenged the denial, which was upheld
in late August.
As of early September, the uncle completed
the fingerprinting process, the results of which raised concerns and a history
“that may or may not be exemptable.†In
the meantime, the agency placed Aaliyah in a “concurrent placement†and was not
willing to reconsider placing Aaliyah with the grandmother.
Jurisdictional/Dispositional Hearing
The agency recommended that the juvenile
court sustain the petition, adjudge Aaliyah a dependent, remove her from
parental custody, and deny the parents reunification services. In recommending no reunification services for
petitioner, the agency relied on the evidence that reunification services for
three of Aaliyah’s siblings had been previously terminated because petitioner
failed to reunify with them after they had been removed from her custody, as
well as that petitioner’s parental rights to those children had been severed
and petitioner had not subsequently made a reasonable effort to treat the
problems that led to the siblings’ removal from petitioner’s custody. (§ 361.5, subd. (b)(10) & (11).)
The problems that led to the
siblings’ removal from petitioner’s custody included petitioner’s substance
abuse issues, law enforcement “entanglements†and unsafe behaviors with a child
in her care. Much had “remained eerily
similar†for petitioner since then.
Petitioner was unable to maintain her sobriety, had relapsed and behaved
erratically with another child. She did
not seek out help on her own initiative between the loss of services and
parental rights as to Aaliyah’s siblings in 2005 and Aaliyah’s detention and
petitioner’s incarceration in 2012. Her
several substance abuse-related arrests and periods of incarceration in the
interim also indicated petitioner had not made an effort to treat the problems
that led to the removal of Aaliyah’s siblings.
Once petitioner was re-incarcerated
in the summer of 2012, she began attending weekly NA/AA meetings and
twice-a-week parenting classes at the facility’s honor farm where she was
housed. However, as of early September,
there had been five reported incidents in which mother did not follow the
facility rules, including one incident in which petitioner possessed
contraband. As a result of the
contraband incident, she was not permitted to continue participating in the parenting
program.
Petitioner made an offer of proof in
September 2012 as to what her testimony would be. One, she was appealing the decision denying
her additional classes in the parenting program. She had completed all but two of those
classes. Two, prior to Aaliyah’s birth,
she participated in classes geared toward the parenting of children with Down
Syndrome and was aware of the responsibility this entailed. Three, petitioner called someone at a clean
and sober living program to discuss entry into that program once she relapsed
and before Aaliyah was detained.
Petitioner was informed that due to her ankle bracelet, she could not be
admitted until it could be cleared with the sheriff’s department. Four, her exit date from the jail would be
October 8 and she was prepared to take whatever steps were necessary to enter a
clean and sober living environment. She
also made arrangements to enter a particular clean and sober program.
The parties and the court accepted petitioner’s offer of proof.
Following the parties’ closing
arguments, the court exercised its dependency jurisdiction over Aaliyah
pursuant to section 300, subdivisions (b), (g) and (j). It also made the requisite findings to remove
Aaliyah from parental custody, including that reasonable efforts had been made
to prevent or eliminate the need for removal.
The court also denied petitioner reunification services under section
361.5, subdivision (b)(10) and (11). The
court subsequently set a section 366.26 hearing to select and implement a
permanent plan for Aaliyah.
DISCUSSION
I.
The Court Lawfully Detained
Aaliyah.
Petitioner contends the juvenile court never
lawfully detained Aaliyah at the outset of these proceedings and denied her
(petitioner) due process. She further
claims the agency did not make reasonable efforts to prevent Aaliyah’s
detention. We disagree with each of
these contentions, as discussed below.
A detention hearing is the first hearing
conducted once a child has been taken into temporary custody and a petition is
filed with the juvenile court to exercise its dependency jurisdiction. (§§ 309 & 319.) At such a hearing, the social worker must
report on: (1) the reasons for the
children’s removal, (2) the need, if any, for continued detention, (3) the
available services that could facilitate the return of the child to the
parent’s custody, and (4) whether there are any relatives who are able and
willing to take temporary physical custody of the child. (§ 319, subd. (b).) The social worker must make a prima facie
showing that the child comes within section 300 (the grounds for jurisdiction)
as well as that continuance in the parent’s home is contrary to the child’s
welfare. (§ 319, subd. (b).)
At the original detention hearing on June 29,
2012, petitioner’s counsel requested a “contested†hearing. However, once a social worker testified to a
prima facie case to detain Aaliyah, petitioner’s counsel declined the
opportunity to cross-examine the witness and never sought to introduce any
evidence. The court expressly found the
detention was appropriate and proper. It
also made temporary detention findings and orders, as reflected in its June 29,
2012, minute order and as required by section 319. The court further continued the “contestedâ€
detention hearing, first to early July and then again to mid-July.
The court made its detention orders temporary
and twice continued the hearing so that the agency might be able to place
Aaliyah with the grandmother and possibly avoid a foster placement, if not
further proceedings on its dependency petition.
The court is authorized to place a child whom it has released from
custody in the assessed home of a relative.
(§ 319, subd. (f)(1).) If a
parent is willing to forego reunification efforts, the court may grant legal
guardianship with the assessed relative and dismiss the dependency
proceeding. (§ 360, subd. (a).)
An assessment of a relative’s suitability
includes an in-home inspection and consideration of the results of a criminal
records check and a check of allegations of prior child abuse or neglect
concerning the relative and other adults in the home. (§ 309, subd. (d)(1).) The standards used to determinate suitability
are the same standards for licensing foster family homes. (Ibid.)
The agency’s ability to assess Aaliyah’s grandmother
was repeatedly foiled by the lack of cooperation, first, on the part of the
other adults who lived with the grandmother and, thereafter, by the refusal of
Aaliyah’s uncle to submit his fingerprints for a background check. On the record before us, the juvenile court
could properly find that the agency made reasonable efforts to prevent
Aaliyah’s detention/removal.
To the extent petitioner claims the child
need not have been detained because her home was with “Aunt†Cynthia,
petitioner overlooks the record in this respect. Although petitioner initially claimed she had
left Aaliyah in Cynthia’s care, petitioner later admitted that Aaliyah always
had been in her care except when petitioner was incarcerated earlier in 2012,
during which Aaliyah was with the grandmother.
Also, petitioner’s argument assumes that Cynthia was a suitable
caregiver for the child. However, that
assumption finds no support in the record.
Cynthia’s background and the agency’s inability to clear her for
placement made her an unsuitable placement option. Further, petitioner never pursued placement
of the child with Cynthia once the matter was before the court. Thus, mother’s argument that the agency
should have done more to investigate Cynthia as a placement option is meritless.
At the last of the three detention hearings,
the juvenile court confirmed the written detention findings and orders made at
the June hearing. Although petitioner’s
counsel continued to press for Aaliyah’s placement with the grandmother, he
never claimed that the court denied petitioner a contested hearing or had not
properly detained Aaliyah in the first place.
In
dependency proceedings, parties have a due process right to cross-examine and
confront witnesses. (
383.) Petitioner, through her counsel,
ostensibly claimed that right on June 29 by requesting a contested detention
hearing. However, in fact, counsel was
merely trying to postpone detention in the hopes that the agency could
successfully assess the grandmother and place Aaliyah with her. Petitioner was never denied the opportunity
to have a contested hearing.
In
addition, because
petitioner never voiced in the juvenile court the complaints she now makes
about the lack of a contested hearing and the court’s temporary detention
findings, she has waived the opportunity to so complain to this court. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Further, despite her detention-related complaints,
petitioner does not challenge the juvenile court’s formal September 2012
removal order, which required a finding by a heightened clear and convincing
standard of proof (§ 361, subd. (c)).
Accordingly, we conclude her detention hearing arguments are also moot. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.)
The Court Properly Exercised its
Dependency Jurisdiction over Aaliyah.
Petitioner next contends there was
insufficient evidence to support the juvenile court’s exercise of dependency
jurisdiction over Aaliyah under section 300, subdivision (b) or (g). Petitioner bases her various arguments on a
very selective reading of the record, which is an approach we cannot
abide. (In re A.A. (2008) 167
Cal.App.4th 1292, 1313.) In addition, she omits any challenge to the court’s
jurisdictional finding under section 300, subdivision (j) based on the neglect
that Aaliyah’s siblings suffered years earlier.
Although the juvenile court exercised its
dependency jurisdiction over Aaliyah on multiple grounds, we need only find support for one of them to uphold the court’s exercise of
jurisdiction. (
Because petitioner does not challenge the jurisdictional finding under
section 300, subdivision (j), we could conclude she has forfeited her other
jurisdictional arguments. (
876.) Alternatively, we hold the court
properly exercised its dependency jurisdiction under section 300, subdivision
(b), based on petitioner’s relapse and conduct on June 22, 2012.
Petitioner claims the evidence was
insufficient to support a jurisdictional finding under section 300, subdivision
(b) (failure to provide adequate care) for the following reasons. One, none of the witnesses from the Office
Depot store ever identified petitioner as the woman they had seen behaving
erratically in the store on June 22.
Two, there was no evidence that the woman in the Office Depot store was
actually under the influence. Three,
witnesses described the baby as a month old or two to three months old, whereas
Aaliyah was approximately six months old on June 22. Four, petitioner denied she had been at an
Office Depot store. Four, Aaliyah
appeared to be in good health and not at risk when the social worker saw her on
June 26.
We find none of petitioner’s claims to be
persuasive. The standard of proof for
the court’s exercise of dependency jurisdiction is only a preponderance of the
evidence. (§ 355, subd. (a).) The agency easily met that burden in this
case.
One, the court could reasonably infer from
the available evidence, most notably, petitioner’s identification left in the
store, that she was the woman witnesses saw behaving erratically with the
baby. In addition, petitioner fails to
cite and we know of no authority requiring an eyewitness identification of her
for the court to believe she was the woman at the store.
Two, the juvenile court had the benefit of
petitioner’s own admission to the social worker that she had relapsed and was
under the influence of crack and cocaine as of June 22. Further, she also acknowledged that when she
used drugs, her behaviors were bizarre and she behaved that way at the time of
the June 22 incident.
Three, the fact that the witnesses estimated
the baby’s age was younger than that of Aaliyah did not preclude the court from
determining that it was Aaliyah that the witnesses saw being mistreated by
petitioner. There was other evidence in
the record that Aaliyah was small for her age.
Four, it is true that Aaliyah appeared to be
in good health on the date the agency detained her. However, petitioner ignores the evidence that
she exposed Aaliyah to a risk of serious physical harm on June 22 when
petitioner was “sling shooting†the cart with Aaliyah in it unrestrained, as
petitioner later “tossed†Aaliyah into the car, and when petitioner erratically
drove off. In other words, the juvenile
court could properly find that petitioner’s admittedly bizarre behavior when
she relapsed placed Aaliyah at risk of serious physical harm. (§ 300, subd. (b).)
The Agency Made Reasonable Efforts
to Return Aaliyah to a Safe Home.
One of the dispositional findings the
juvenile court made was that the agency made reasonable efforts to return the
child to a safe home, so as to prevent the need for removal (§ 361, subd.
(d)). Petitioner appears to acknowledge
that due to her incarceration the agency could not provide her with traditional
reunification services. As the agency
points out, the services a parent may engage in while incarcerated are limited
to what is available within the facility.
(Elijah R. v. Superior Court (1998)
66 Cal.App.4th 965, 971.)
Nonetheless, petitioner argues the agency did
not make reasonable efforts to facilitate the possibility of reunification
because she never received any visits with Aaliyah between the June 2012
detention hearing and the September 2012 jurisdictional/dispositional
hearing. It is true that no visits
occurred during that timeframe. However,
it was not for want of a reasonable effort on the agency’s part.
Petitioner
was incarcerated originally at the county’s “Safety Center†facility but, was
moved to its honor farm as of mid-July.
At the honor farm, petitioner was participating in parenting
classes. However, visitation at the
honor farm was limited to the weekends.
There was also a parenting lab that children could attend on
Fridays. However, the lab was between
6:00 and 7:15 p.m. By contrast, at the
Safety Center, a prisoner could have visits during regular working hours on
weekdays. Those were non-contact visits
“through the glass†compared to contact visits at the honor farm. Also, there were no parenting classes
available at the Safety Center.
As of the July 11 hearing, no
visitation had been ordered or had occurred.
If Aaliyah could be placed with
the grandmother, she would hopefully facilitate visits while petitioner was
incarcerated. The juvenile court asked
that the current foster parents assist with transportation for visits, but
admitted they could not be forced to do more than they were able. In addition, social workers did not work on
the weekends and could not be expected to work in the evening.
The juvenile court added that
although engaging in a program was important, visits would be more important,
given the age of the child. Normally,
the standard visitation order would be a minimum of two hours a week. The court nonetheless realized there was
difficulty when visits could only be on the weekend and social workers did not
work on the weekends.
As of early August, petitioner’s
counsel reported she still had not had a visit with Aaliyah. He claimed that the agency had been unwilling
to arrange a weekend visit. However, the
court corrected counsel reminding him that the agency’s social workers did not
work on the weekends and could not be expected to work in the evening. There were a few placement specialists who
were willing to give up a weekend day to help facilitate transportation to the
facility but it was a difficult problem.
The issue was really with the sheriff’s office. Petitioner’s regular visit time was 8:00 a.m.
on Sundays.
On August 10, 2012, a placement
specialist asked the grandmother if she was able to transport Aaliyah for
visits. The grandmother replied she
would provide transportation only if she had Aaliyah in her care. The placement specialist was scheduled to
transport Aaliyah for a visit on August 18, 2012, but due to illness the worker
could not make it. The foster parents
attempted to take the child for a visit but the facility would not allow the
foster parents to enter. The following
week petitioner was cited for possessing contraband in the facility. As a result, her visitation privileges were
suspended for the following two weeks, leading up to the September
jurisdictional/dispositional hearing.
On this record, we conclude the
department made reasonable efforts to provide petitioner with visitation. The department cannot be faulted for the fact
that visitation did not occur.
On a related note, mother challenges
an additional dispositional finding, namely that she had made minimal progress
in alleviating the circumstances that led to Aaliyah’s detention. She claims she was denied the ability to show
progress because she did “as advised by the court by protecting visitation and
foregoing parenting class.†The record
does not support petitioner’s claim in this respect.
As mentioned above, petitioner was
housed at a facility that had a parenting class, which she attended but had not
completed as of the September 2012 dispositional hearing. There was no evidence of any progress she
made in that program. Also, she attended
NA/AA meetings, but there was no evidence that she was making any
progress. Further, there was no evidence
that she somehow sacrificed the opportunity to participate in the parenting
class in order to secure visitation with Aaliyah.
The
Agency Gave Preferential Consideration to Relative Placement.
According to petitioner, the agency did not
diligently pursue relative placement for Aaliyah and instead acted in bad
faith. When a child subject to the
juvenile court’s jurisdiction must be removed from parental custody, the
agency’s obligation is to give preferential consideration to relatives
interested in placement, such as the grandmother in this case. (§ 361.3.) Here, the agency clearly gave the grandmother
the requisite preferential consideration.
Nevertheless, petitioner argues otherwise.
She claims Aaliyah’s uncle submitted to
fingerprinting before the agency issued its letter to the grandmother denying
her request for placement. Petitioner
also argues that the agency did not disclose this information to the
court. Once again, petitioner improperly
picks and chooses evidence from the record to support her claim. (In re
A.A., supra,167 Cal.App.4th at p. 1313.)
Aaliyah’s uncle was asked to submit his
fingerprints for background check purposes in July 2012, but he refused to
cooperate. Consequently, on August 1,
2012, the agency denied, by way of letter, the grandmother’s placement request. The grandmother administratively challenged
the August 1 denial, which was upheld in late August, resulting in a second
formal denial.
As of early September, the uncle completed
the fingerprinting process, the results of which raised concerns and a history
“that may or may not be exemptable.â€
According to a case worker note, the uncle complained in early September
that the agency should have placed the child with the grandmother because he
submitted to fingerprinting before the “denial†was issued. There was no indication to which denial, the
agency’s or the administrative appeal, the uncle was referring. It is the uncle’s complaint petitioner relies
upon in claiming the agency acted in bad faith.
There are several problems with petitioner’s
claim. First, according to the agency’s
evidence, the uncle refused to be fingerprinted before the agency issued its
August 1 denial letter. At best, the
uncle’s complaint amounts to conflicting evidence on this point. However, the power of
an appellate court asked to assess the sufficiency of the evidence begins and
ends with a determination as to whether there is any substantial evidence,
contradicted or not, to support the trier of fact’s conclusion. All conflicts must be resolved in favor of
the respondent and all legitimate inferences indulged in to uphold the
decision, if possible. (
1373, 1378-1379.)
Next, if the uncle was fingerprinted before
the grandmother’s administrative appeal was complete and the ruling made
upholding the agency’s denial was issued, this does not necessarily mean the
agency acted in bad faith or the grandmother consequently was entitled to
placement. Petitioner overlooks the
evidence that the records-check following the uncle’s fingerprinting raised
concerns on the agency’s part. Apparently, Aaliyah’s uncle had a criminal or
child abuse/neglect history that could require an exemption before the agency
might again consider the grandmother for placement.
In any event, all of this information was
provided to the court in the form of an exhibit. The agency did not withhold information from
the court.
Petitioner also points out that the agency
placed Aaliyah in a “concurrent placement†in late August and was not willing
to reconsider placing Aaliyah with the grandmother on a theory that it was “too
late.†It is unclear from the record
what the agency meant by “too late.†No
one, including petitioner, pursued the issue at the dispositional hearing. It is conceivable that the agency meant it
was “too late†in the sense that the agency is statutorily required to complete
its investigation into relative placement within 30 days of the initial
removal. (§ 309, subd. (e)(1).)
To the extent petitioner claims the agency
abused its discretion by not reconsidering the grandmother for placement,
petitioner asserts her claim for the first time on review. The juvenile court made a point of stating it
would not make “any orders for direct placement,†presumably with the
grandmother, “unless one is able to show that the Agency has abused its discretion.†Strikingly, petitioner remained silent in
response to the court’s statement. By
her silence in the juvenile court, she has forfeited the right to make her
claim now. (In re S.B., supra, 32
Cal.4th at p. 1293.)
The Court Properly Denied Mother Reunification Services.
Last,
petitioner claims the juvenile court abused its discretion by denying her
reunification services. She acknowledges
that the agency established alternative grounds under section 361.5,
subdivision (b)(10) and (11) for denying her reunification services, based on
her failure to reunify with and the loss of parental rights to three of her
children in 2005 and her failure to make a subsequent reasonable effort to
treat the problems that led to the removal of Aaliyah’s siblings. She further admits it was her burden to
persuade the court that services nevertheless would be in Aaliyah’s best
interests. (§ 361.5, subd. (c).) Nevertheless, she claims the juvenile court
abused its discretion by denying her services because she carried her burden of
proof. We disagree.
Petitioner contends that services would be in
Aaliyah’s best interest because she (petitioner) took reasonable action by
placing Aaliyah with an appropriate caregiver, Cynthia, a month before
petitioner was arrested. Petitioner’s
factual premise is flawed, as previously discussed in this opinion. Although she initially claimed she left
Aaliyah in Cynthia’s care, petitioner later admitted that Aaliyah always had
been in her care except when petitioner was incarcerated earlier in 2012. Also, petitioner’s argument assumes that
Cynthia was a suitable caregiver for the child.
However, that assumption finds no support in the record. Cynthia’s background and the agency’s
inability to clear her for placement made her an unsuitable placement
option.
Petitioner also relies on the parenting class
and NA/AA meetings in which she participated after her June 2012 arrest and
incarceration. However, she fails to
establish how such participation proved that services would be in Aaliyah’s
best interest and, therefore, that the court abused its discretion. Even so, her argument overlooks the many
years of relapse and incarceration she experienced prior to her latest arrest
in June 2012. That history belies any
claim that her recent efforts established that reunification services would be
in Aaliyah’s best interest.
Petitioner finally contends the court did not
have the benefit of any evaluation of the relationship between her and
Aaliyah. Petitioner in turn places the
blame for this lack of evidence on the agency or the court because neither did
anything, in her opinion, to secure visitation.
She takes the matter a step further and argues it was no fault of hers
that she did not receive visitation and she should somehow be excused for not
satisfying her burden of proof. We are
not persuaded.
Petitioner could have presented evidence
regarding the nature of her relationship with Aaliyah, prior to petitioner’s June 2012 arrest, in an effort to persuade
the court to exercise its discretion and grant her (petitioner) reunification
services. However, for whatever reasons,
petitioner did not do so.
Further, the lack of visits between the
regrettable but, as discussed above, it was the fault of neither the agency nor
the court, so as to excuse petitioner from having to show reunification
services would be in Aaliyah’s best interest.
Finally, petitioner’s claim that the lack of visitation was not her
fault is simply not credible. It was
petitioner who relapsed, disconnected her ankle restraint, exposed Aaliyah to a
risk of serious physical harm, and was eventually arrested and incarcerated.
The petition for extraordinary writ
is denied. This opinion is immediately
final as to this court.
Gomes, Acting P.J., Kane, J., and Detjen, J.
name="_ftn2" title="">[1] All statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
