In re A.A.

 

 

 

 

 

 

 

Filed 10/17/13  In re A.A. CA2/1

> 

> 

> 

> 

> 

> 

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

> 

California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b).  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
ONE

 

 
>

In re A.A., a Person Coming Under the Juvenile Court Law.	B245496       (Los Angeles County       Super. Ct. No. CK90263)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,               Plaintiff and Respondent,               v.   C.B.,   Defendant;   A.A.,               Appellant.

 

            APPEAL from
an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Margaret S. Henry, Judge.  Reversed and remanded.

            Kimberly A.
Knill, under appointment by the Court of Appeal, for Appellant.

            John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Peter
Ferrera, Senior Deputy County Counsel, for Plaintiff and Respondent.

            Minor A.A.
appeals the dependency court’s order removing her from the care of her maternal
cousin D.K. after D.K. was involved in an altercation with her daughter Sierra
D., who also resided in the home with D.K. and D.K.’s three other
children.  A.A. contends the trial court
failed to consider the factors in Welfare & Institutions Code section
361.3, subdivision (a),href="#_ftn1"
name="_ftnref1" title="">[1] concerning relative
placement before it removed her from D.K.’s home.  We agree, and reverse and remand for a
hearing to consider these factors.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

            A petition
filed October 13, 2011 alleged three counts under section 300, subdivision (b)
based on C.B.’s (Mother) failure to make appropriate care arrangements for
A.A., born in December 2010.  Mother, who
is a current abuser of PCP, marijuana and alcohol, left A.A. with her maternal
great-aunt Sara M., who suffers from congenital heart failure and is unable to
care for the child.

            On September 14, 2011, DCFS received a
referral regarding A.A.  The reporting
party, Sara, was Mother’s former legal guardian.  A.A. and Mother were living with Sara.  Mother repeatedly left A.A. home alone at
night and not return for hours.  Sara
could not care for A.A. due to Sara’s heart condition, which caused shortness
of breath and occasional hospitalization. 
On September 14, 2011,
Sara noticed the back door was unlocked and found A.A. asleep on the floor in
Mother’s room.  Sara reported that Mother
has anger issues and can be violent, and one time Mother left A.A. unattended
on a bed, and A.A. rolled off the bed onto the floor.  Mother sometimes left A.A. with Richard M.,
the child’s maternal uncle, who lived in a filthy house in Long
Beach.

            The social
worker interviewed Mother, who denied leaving A.A. alone.  Mother planned to move with A.A. to D.K.’s
house in Long Beach.  Although Mother admitted using marijuana and
alcohol, Mother denied doing so while caring for A.A.  As a child, Mother had been placed in a group
home as a result of a probation violation. 
Mother and Sara did not get along well, and Sara’s landlord had
suggested that Mother move out.  Sara
told the social worker that Mother did not tell anyone she had left the house,
and Sara found A.A. on the floor with her bottle.

            On September 27, 2011, a second referral
for A.A. asserted that Mother had left A.A. with D.K. for two weeks and had not
come to pick up the child.  Mother had
two black eyes from fighting with a gang member.  The social worker visited Sara’s home and
Sara reported that she had asked Mother to vacate the residence within 60 days
because Mother had been disrespectful.

            On September 28, 2011, the social worker
contacted Brenda J., Mother’s biological mother.  Brenda stated that Mother constantly leaves
A.A. unattended, and does not buy food or clothes for A.A.  On October
3, 2011, D.K. stated that Mother never moved in with her, had been
“out in the streets with gang members, partying and getting into street
fights.”  Mother was affiliated with the
5 Deuce Hoover gang.  D.K. did not know
how long Mother expected her to care for A.A., nor did she know where Mother
was living.  D.K. was already caring for
four children.  Mother had gone to drug
test voluntarily on three occasions, but never submitted a sample.

            Mother told
the social workers she wanted A.A. placed with D.K.  However, there was an open emergency room
response referral attached to D.K.’s home, with D.K. listed as a suspected
perpetrator of physical abuse and general neglect of Sierra.  On September 29,
2011, DCFS investigated abuse allegations against D.K. regarding
Sierra.  Sierra reported that D.K.
“busted” her lip and that she suffered scratches on her face.  Sierra later denied any injury.  Another referral generated in June 2011
stated that allegations of sexual abuse and general neglect were unfounded.

            At an October 7, 2011 meeting with the
social worker, Mother was advised of the detention hearing scheduled for October 13, 2011.  Mother denied using drugs and stated her only
concern was lack of housing.  At the October 13, 2011 detention hearing,
the court ordered A.A. detained, and requested DCFS to look into placement with
D.K.  A.A. remained in foster care.

            The
whereabouts of A.A.’s father remained unknown. 
DCFS interviewed Sara, who stated that Mother was a drug baby and born
with cocaine in her system.  Mother, who
was 19, denied any substance abuse, but admitted to drinking alcohol.  Mother claimed she was never drunk around
A.A.  Both Sara and Brenda believed
Mother needed inpatient services to handle her substance abuse problem.  D.K.’s LIVE scan did not reveal any criminal
history.

            On November 3, 2011, the court sustained
the allegations of the petition, and ordered reunification services for
Mother.  On November 10, 2011, the court
ordered A.A. placed with D.K. on the condition that A.A. have no contact with
Brenda or Sara, and DCFS was to pre-approve substantial contact with anyone
over the age of 14 years.

            In May
2012, DCFS reported that A.A. had been living with D.K., where A.A.’s care was
appropriate.  There were no safety
threats in the home, which the social worker had visited monthly.  Mother advised the social worker that she was
arrested for being an accessory to a robbery in December 2011 and released in
January 2012.  Mother had not tested for
drugs, nor had she enrolled in a parenting class or attended therapy.  While incarcerated, she was given medication
and a diagnosis of depression,
but after her release, she stopped taking any medication.  Mother had canceled numerous visits with D.K.

            At the
review hearing held on May 3, 2012,
the court terminated reunification services for Mother because she had not been
testing, visiting, or taking classes as ordered.  The court identified a permanent plan of
adoptive placement with D.K., ordered DCFS to prepare an assessment and
initiate an adoptive home study, and set the matter for a section 366.26
hearing on August 30, 2012.

            DCFS reported that A.A. was
standing, walking and waving, and made consistent eye contact with the social
worker.  A.A. responded well to D.K.  D.K. told DCFS she was amenable to
facilitating visits with Mother and other maternal family members.  D.K., who was single, had four of her own
children, ranging in age from eight years to 17 years.  The family lived in a two bedroom apartment
in Long Beach.  The social worker observed a strong
attachment between A.A. and D.K.  D.K.’s
other children wanted A.A. to be part of their family.

            However, DCFS noted that there had
been two referrals of domestic disputes between D.K. and Sierra.  In one of them, D.K. refused to permit Sierra
to “hang out” with her half-sibling in Northridge.  D.K. suspected the half-sibling called in the
referral, and Sierra denied that D.K. was abusive.  DCFS was investigating and the social worker
reported that D.K. and Sierra had several physical altercations where law
enforcement became involved.

            In a July 18, 2012 incident in which police were called, D.K.
and Sierra got into a fight.  D.K. placed
her legs around her Sierra’s head and squeezed it with her legs.  D.K. slapped her Sierra’s face and repeatedly
pushed her.  D.K. wrapped her arm around
Sierra’s neck and pushed her out of the house. 
As a result, Sierra sustained bruised ribs, strained muscles in her back
and whiplash.  Sierra yelled at D.K.,
“Eastside bounty hunters Watts blood, if you keep touching
me they are going to fuck you up.” 
Sierra put her hand through a glass window and injured herself, but D.K.
refused to transport her for medical care. 
No arrests were made.  DCFS had
not yet completed its investigation into the incident, and thus recommended
that parental rights to A.A. not be terminated.

            On July 31,
2012, Sierra told police she had been living in Northridge since the incident,
and intended to stay there until she turned 18. 
Sierra did not want to press charges against D.K.  D.K. denied abusing Sierra, and did not want
to press charges either.  D.K. wanted
Sierra to return home.

            DCFS
reported that Sierra had told the social worker that her bruised ribs were from
a pool party in Northridge, and she had made up the rest of the story she told
police.  She said D.K. had locked the
door because she thought Sierra would hurt someone.  Sierra banged on the window and when it broke
she left because D.K. called the police. 
Sierra stated she exaggerated her report.  Mother told DCFS that Sierra was “crazy” and
“over-exaggerated.”  D.K. stated the
family was watching television when one of the boys came in and Sierra grabbed
him by the hair and pulled him out of the room. 
Sierra pushed him and D.K. told Sierra to go outside.  Sierra thought D.K. had locked her out.  D.K. denied slapping or pushing Sierra.

            On August
30, 2012, DCFS detained A.A. and placed her in foster care.  D.K. and her family wanted A.A. back.  D.K. did not have a criminal record.

            On
September 5, 2012, DCFS filed a supplemental petition under section 387 based
on D.K.’s July 18, 2012 abuse of Sierra. 
The court ordered A.A. detained, and set the matter for an adjudication
hearing September 27, 2012.

            On
September 21, 2012, D.K. told DCFS she was obtaining a restraining order.  On September 20, Sierra had attempted to take
her brother’s phone, and starting hitting her brother.  Police came and handcuffed Sierra and picked
up her things.  Sierra told the social
worker she was not in a gang, and she was no longer living with D.K.  D.K. had previously completed parenting and
anger management courses, and D.K. stated she would go to parenting class to
address the issues with Sierra, and was willing to attend therapy.

            DCFS
recommended that A.A. not be returned to D.K.’s care.

            At the
October 4, 2012 hearing, D.K. told the court that she was fairly strict with
Sierra, and when Sierra got together with her half-sister on her father’s side,
she was exposed to more freedom, including frat parties, and acted out in order
to get out of the house.  The court
granted DCFS’s request for a continuance to permit it to further assess the
case.

            DCFS
reported that “[g]iven the seriousness of the police report, the evidence
depicts lack of judgment and poor parenting decisions on behalf of [D.K.].  Because the child, A.A., was in the home
during the time of the altercation, [D.K.] contributed to causing emotional
abuse and detriment to the well-being of the child, A.A.  With the history of altercations in the home,
the home is not an appropriate placement for [the] child.  Given the child’s age, it is most appropriate
for the child to be placed in an adoptive home without [D.K.] being offered
reunification services.”  The department
recommended the count against D.K. be sustained with a section 366.26 hearing
to be continued 120 days to permit assessment of adoption by A.A.’s current
caregivers.

            On October
15, 2012, D.K. obtained a restraining order protecting herself and her family
from Sierra.

            At the
October 25, 2012 hearing, A.A.’s counsel advised the court she would submit on
jurisdiction, but requested that the court return A.A. to D.K.’s home, or in
the alternative offer D.K. reunification services.  A.A. had lived with D.K. most of her life.  D.K. had taken steps to make her home as safe
for A.A. as possible:  she had enrolled
in parenting classes and obtained a restraining order against Sierra.  Mother’s counsel also requested reunification
services for D.K., arguing that corrective measures had been taken since the
incident in July, and the court needed to find a current risk of harm to A.A.
in order to sustain jurisdiction.  The
court responded that because D.K. was not a parent or legal guardian, the
standard was whether the previous disposition had been effective in protecting
A.A.  DCFS argued the petition should be
sustained, stating the parties had been minimizing the events of July 18, 2012
and backpedalling since that time. 
Further, A.A. as a one-year-old was highly adoptable.

            The court
found the allegations of the petition to be true, and noted there was no
provision for reunification services in this circumstance.  The court stated that return to D.K. was not
in A.A.’s best interests, and the evidence depicted lack of judgment and poor
parenting decisions.  The court observed
“the caretaker [D.K.] had parenting and anger management [classes] in 2008, and
it doesn’t seem to have kept the circumstances away.  And we have a restraining order in effect,
and what’s that doing?  That’s blaming
her child [Sierra], and I’m just not seeing that it’s going to make—that’s in
A.A.’s best interest to do anything except pursue another home.”  The court advanced and vacated the section
366.26 hearing to November 1, 2011, and ordered DCFS to try and find an adoptive
home.

>DISCUSSION

            A.A. argues the dependency court erred in sustaining the
section 387 petition without applying the statutory criteria of section 361.3
to determine whether placement with D.K., a relative, was appropriate.  She argues that there is insufficient
evidence to support removal of A.A. from D.K.’s custody.  DCFS contends A.A. waived the issue by
failing to raise it; contends the statutory criteria only apply to the
adjudication phase of the petition, and need not be considered at disposition;
and in any event, even applying the criteria to the facts of this case, the
dependency court did not err.  We
disagree.

            “An order
changing or modifying a previous order by removing a child from the physical
custody of a parent, guardian, relative, or friend and directing placement in a
foster home . . . shall be made only after noticed hearing
upon a supplemental petition.”  (§ 387, subd. (a).)  Thus, before parental rights are terminated,
DCFS cannot move a child from a court-ordered relative placement to a foster
placement without filing a supplemental petition and obtaining a dispositional
order on the petition.  (§ 387,
subd. (a); In re H.G. (2006) 146
Cal.App.4th 1, 10–11; In re A.O.
(2004) 120 Cal.App.4th 1054, 1060; Cal. Rules of Court, rule 5.560, subd.
(c).)  Section 387 petitions are used
“when there are facts which indicate that a previous disposition is not
appropriate.”  (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1035.)  The section 387 petition “shall contain a
concise statement of facts sufficient to support the conclusion that the
previous disposition has not been effective in the rehabilitation or protection
of the child or, in the case of a placement with a relative, sufficient to show
that the placement is not appropriate in view of the criteria in Section
361.3.”  (§ 387, subd. (b).)

            During the
adjudicatory phase of the hearing on a supplemental petition, DCFS has the
burden of proof by a preponderance of the
evidence.  (In re H.G., supra, 146
Cal.App.4th at p. 11.)  The court must
decide whether the factual allegations of the petitions are true and, if so,
whether “the previous disposition has . . . been effective
in the rehabilitation or protection of the child or, in the case of a placement
with a relative, [whether] the placement is not appropriate in view of the
criteria in Section 361.3.”  ( §387,
subd. (b); Cal. Rules of Court, rule 5.565(e); In re H.G., at pp. 11–12; see In
re A.O. (2010) 185 Cal.App.4th 103, 110.)

            If DCFS meets
its burden of proof during the adjudicatory phase, the case proceeds to the
dispositional phase.  (>In re H.G., supra, 146 Cal.App.4th at pp. 12, 17–18; In re A.O., supra, 185
Cal.App.4th at p. 110.)  During that
phase, the court determines whether there is a need to remove the child from
the current placement.  (>In re H.G., at pp. 12, 17–18; In re
Javier G. (2006) 137 Cal.App.4th 453, 460–462.)  In doing so, the court “follows the
procedures for dispositional hearings to determine whether removal is appropriate.”  (In re
Miguel E. (2004) 120 Cal.App.4th 521, 542; Cal. Rules of Court, rule
5.565(e)(2).)  In the case of an existing
relative placement, the determination whether to remove the child is based on
the risk of harm to the child if he or she remained in that placement.  (In re
H.G., at p. 18.)  The court must
conduct a dispositional hearing, and errs if it does not consider all of the
criteria set forth in section 361.3.  (>Id. at pp. 16–17.)  DCFS has the burden of proof on that issue by
a preponderance of the evidence.  (>In re A.O., supra, 120 Cal.App.4th at p. 1061.)

            We review
the dependency court’s findings at the adjudicatory and dispositional phases of
the section 387 hearing for substantial
evidence.  (In re H.G., supra, 146
Cal.App.4th at pp. 12–13; In re A.O.,> supra, 120 Cal.App.4th at p.
1064.)  “We review the evidence in the
light most favorable to the trial court’s determinations, resolve all
evidentiary conflicts in favor of the prevailing party, and indulge in all
reasonable inferences to uphold the trial court’s findings.  [Citation.] 
We do not reweigh the evidence, evaluate the credibility of witnesses,
or resolve evidentiary conflicts. 
[Citation.]  The burden is on the
party or parties challenging the findings and orders of the trial court to show
there is no evidence of a substantial nature to support the finding or
order.  [Citation.]”  (In re
H.G., at pp. 12–13.)

            Section
361.3, subdivision (a) provides, in any case where a child is removed from the
physical custody of his or her parents, that “preferential consideration shall
be given to a request by a relative of the child for placement of the child
with the relative.”  “Preferential
consideration” means that “the relative seeking placement shall be the first
placement to be considered and investigated.” 
(§ 361.3, subd. (c)(1).) 
Relatives desiring placement shall be assessed according to the factors
enumerated in subdivision (a). 
(§ 361.3, subd. (a).)href="#_ftn2"
name="_ftnref2" title="">[2]  These include the best interest of the child,
the wishes of the parent, the good moral character of the relative, the nature
and duration of the relationship between the relative and the child, and the
relative’s ability to provide a secure and stable environment.  (Ibid.)  Although all the statutory factors are
important, the “linchpin” is always the best interest of the child.  (See In
re Robert L. (1993) 21 Cal.App.4th 1057, 1068.)  A decision under section 361.3 regarding
placement with a relative is reviewed for abuse of discretion.  (In re
Stephanie M. (1994) 7 Cal.4th 295, 319–320.)

            Here,
unlike In re H.G., >supra, 146 Cal.App.4th 1,> the court did conduct a dispositional
hearing, and A.A. did not contest jurisdiction. 
Nonetheless, we follow In re H.G. and
conclude the section 361.3 factors are also relevant at the disposition phase
and we agree with A.A. that the dependency court failed to apply the factors
set forth in section 361.3 to determine whether the placement remained
appropriate given D.K.’s altercation with Sierra.  At most, the court only considered that there
had been an episode between D.K. and her now adult daughter.  The court did not consider the ongoing
relationship A.A. had with D.K. and the other siblings in the household, the
disruption a new placement would have on the child, D.K.’s capacity to provide
a stable home and facilitate appropriate visitation with other members of
A.A.’s family, and D.K.’s lack of a criminal record.  We therefore remand the matter for a hearing
at which the court should all of the factors set forth in section 361.3,
subdivision (a).

DISPOSITION

            The order
of the superior court is reversed and remanded for the court to consider the
statutory facts of Welfare and Institutions Code section 361.3 in determining
whether A.A. should be removed from D.K.’s home.

            NOT TO BE
PUBLISHED.

 

                                                                        JOHNSON,
J.

 

We concur:

 

            MALLANO, P.
J.

 

            ROTHSCHILD,
J.