In re A.L.
Filed 4/19/13 In re A.L. CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
In re A.L., a Person Coming
Under the Juvenile Court Law.
B244509
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.L.,
Defendant and Appellant.
(Los Angeles
County
Super. Ct.
No. CK46624)
APPEAL from
an order of the Superior Court
of
County. Elizabeth Kim,
Referee. Affirmed.
Jamie A. Moran, under appointment
by the Court of Appeal, for Appellant.
John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel and William D. Thetford, Deputy County
Counsel, for Respondent.
__________________________
Appellant
J.L. (father) appeals from the October
1, 2012 order denying his request that his dependent daughter,
A.L., be removed from foster care and placed with father’s childhood friend, T.D. Father contends the juvenile court erred in
finding that T.D. was not a “nonrelative extended family member†(NREFM) within
the meaning of the Welfare and Institutions Code.
FACTUAL AND
PROCEDURAL BACKGROUND
Appellant was incarcerated when
two-day-old A.L. was detained in February 2012, after mother tested positive
for cocaine. Appellant was found to be
A.L.’s presumed father. A.L. was four
days old when she was placed with non-relative caregivers B.F. and S.F. (the
foster parents).
As sustained by the juvenile court
following a March 19 jurisdictional hearing, paragraph b-1 of the
section 300 petition alleged that A.L. had suffered or there was a
substantial risk she would suffer serious physical harm or illness because
mother had a long history of illegal drug use, was currently using illicit
drugs, had tested positive for cocaine while pregnant with A.L., and had failed
to reunify with several other children.
The petition also alleged father knew or should have known about
mother’s drug use and failed to protect A.L.
Additional allegations alleged pursuant to section 300,
subdivisions (b) and (g) were dismissed.
Father told the social worker that
he intended to do everything he could to regain custody of A.L. A paternal aunt expressed interest in having
A.L. placed with her. But mother was
adamantly opposed to placement with the paternal aunt, whom mother claimed was
a current drug abuser. Mother wanted
A.L. placed with a maternal aunt.
Although the maternal aunt told the social worker that at the age of 50
she did not want to raise another child, she would do so in order to keep the
family together. DCFS recommended that
A.L. remain with the foster parents and that father receive reunification
services. The juvenile court set the
matter for a May 14 progress hearing on father’s incarceration status and
participation in reunification services followed by a six-month review hearing
on September 17.
By the time of the May 14 progress
hearing, father was still incarcerated and had not participated in any
parenting program available at the detention center where he was located. However, he still hoped to reunify with A.L.
Beginning in mid-August, the foster parents took A.L. to the jail every other
weekend to visit father.
In advance of the September 17
six-month hearing, DCFS began investigating placement of A.L. with father’s
childhood friend, T.D., pursuant to section 362.7 which allows the social
worker to place dependent children with a NREFM under certain circumstances. Upon learning of the potential change in
placement, the foster parents filed a section 388 petition seeking an
order requiring DCFS to obtain prior court approval for any change in
placement. Before the hearing, DCFS’s
placement plans were derailed when the social worker discovered that T.D. had
never met A.L., thus disqualifying her as being a NREFM. Based on this new information, DCFS
recommended in a Last Minute Information filed the day of the hearing that A.L.
remain placed with the foster parents.
T.D. was present at the September
17 hearing, as was the foster mother and her counsel. A.L.’s counsel objected to father’s request
that A.L. be placed with T.D., arguing that T.D. was not a NREFM, and that A.L.
was doing well with the foster parents who were facilitating visits with
father. Thus the change would not be in
A.L.’s best interests. The juvenile
court continued the matter to October 1, for a contested hearing on whether
T.D. qualified as a NREFM pursuant to section 362.7, and if so, whether
A.L. should be placed with T.D. Pending
the continued hearing, the court ordered monitored visits for T.D. It also summarily denied the foster parents’
section 388 petition.
At the continued hearing, T.D.
testified that she was raised with father, whom she thought of as her cousin
although they were not related. T.D. met
A.L. for the first time on September 21, four days after the last hearing, and
saw her a second time on September 26.
Both visits lasted an hour. T.D.
felt that she had bonded with A.L. during those two visits. T.D. was told about A.L.’s special needs by
the social worker; specifically, that A.L.’s physical development was not
normal and that she was receiving physical therapy. But A.L. looked normal to T.D. Although T.D. worked nights and lived in San
Bernardino, she would be able to bring A.L. to Los Angeles to continue her
treatments here. T.D.’s 20-year-old
daughter would care for A.L. while T.D. was at work.
Counsel for A.L. and DCFS opposed
any change in placement, reiterating the argument that T.D. did not qualify as
a NREFM and the move would not be in A.L.’s best interest. DCFS also urged the juvenile court to reject
the placement because father and T.D. had colluded to misrepresent T.D. as a
cousin. Father argued in favor of the
change because T.D. had visited A.L. twice.
The juvenile court found T.D. did
not qualify as a NREFM. Notwithstanding
her close relationship with father, T.D. did not have an established
relationship with A.L. after just two visits.
The court concluded that it would not be in A.L.’s best interest to be
removed from her foster parents and placed with T.D. Father timely appealed.
DISCUSSION
Standard
of Review
The parties disagree on the
appropriate standard of review: father argues that it is abuse of discretion
while DCFS argues it is de novo. In
after the briefs in this case were filed, the court applied the de novo
standard of review to the question of whether the juvenile court erred in
finding the father’s fiancée did not qualify as a NREFM. We agree that interpretation of
section 362.7 and the statute’s application to undisputed facts is subject
to de novo review. But even under the
abuse of discretion standard, we would find no error.
The
Juvenile Court Correctly Ruled T.D. Was Not A NREFM
Father contends the trial court
erred when it found T.D. was not a NREFM.
He argues that T.D. qualified because she had a strong familial-like
bond with father and that T.D. and A.L. “had begun to develop their own
relationship. [T.D.] had begun
visitation with [A.L.] Their two visits
went well. They had fun playing
together. [A.L.] appeared to warm to
[T.D.] given that she played more during the second visit.†We find no error.
The court
must make orders for the care and custody of a child adjudged a dependent
child. (§ 361, subd. (a).) When a child is ordered removed from his or
her parents, the court must place the child under the supervision of the social
worker, who may make any one of four specified placements. (§ 361.2, subd. (e.).) The only specified placement option relevant
to the issues on appeal is: “the
approved home of a nonrelative extended family member as defined in
Section 362.7.†(§ 361.2,
subd. (e)(3).) Section 362.7
defines a NREFM as “any adult caregiver who has
an established familial or mentoring relationship with the child. The county
welfare department shall verify the existence of a relationship through
interviews with the parent and child or with one or more third parties. The parties may include relatives of the
child, teachers, medical professionals, clergy, neighbors, and family
friends.†(Italics added.)
Notwithstanding the unambiguous
statutory language, the court in Samantha
T. v. Superior Court (2011) 197 Cal.App.4th 94, 110, observed: “Arguably, based on the Legislature’s
findings with respect to family reunification and racial or ethnic
identification, a familial relationship with a minor’s family, even in the
absence of a relationship with a minor, might be sufficient to meet the
requirements of section 362.7.†But the
court found that was not the case in Samantha
T. In that case, dependent sisters
challenged an order removing them from the foster mother with whom they had
bonded and placing them with Megan, a family friend with whom the girls did not
have a close relationship. (
she does not have a close relationship with the minors themselves. Moreover, this is not a case in which we can
consider extending the statute beyond its express terms because the placement
here was not made in order to either enhance family reunification or as a means
of placing the two minors in a home sensitive to their backgrounds.†(Ibid.)
The court in Michael E., supra, adopted
the dicta in Samantha T. as the
rule. It held: “A NREFM placement may be appropriate in
cases where the child does not have an existing relationship with the
individual seeking NREFM status, if that individual has a close connection with
the child’s family and placement will further the legislative goals of allowing
the child to remain in familiar surroundings, facilitating family reunification
or providing a culturally sensitive environment to the child.[] [Citation.]
Thus an individual may qualify as a NREFM under the express terms of the
statute or within the legislative goals of the statute. [Citation.]â€
(Michael E., supra, 213 Cal.App.4th
at p. 675.) However, any placement
must still be in the child’s best interest.
(Ibid.) In Michael
E., the incarcerated father asked that his fiancée, who was also the mother
of the child’s infant half-sibling, be evaluated for placement even though she
had never met the child. The appellate
court agreed that the fiancée did not qualify as a NREFM under the express
terms of section 362.7, but that the juvenile court should have also
considered whether the fiancée had a close connection with the child’s family
and whether the child’s placement in the NREFM home would further the legislative
goals of allowing the child to remain in familiar surroundings, facilitating
family reunification or providing a culturally-sensitive environment to the
child. (Id. at p. 676.) Like
the court in Samantha T.,
however, the court in Michael E.
concluded that, although the juvenile court interpreted section 362.7 too
narrowly, it was not an abuse of discretion for it to decline to order the
agency to investigate the fiancée. This
was because the fiancée did not personally come forward to request the child’s
placement in her home, the five-year old-child had been living with the foster
parents for five months and developed a close relationship with them, the
fiancée did not live in the same part of town as the foster parents and
placement with the fiancée would disrupt the child’s schooling and continuity
of care in a familiar environment. The
court concluded: “Absent a need for a
change of placement, placing [the child] with someone he did not know would not
be in his best interests.
[Citation.].†(
Here, notwithstanding her
apparently close bond with father, T.D.’s relationship with A.L. after just two
visits simply does not qualify as an “established familial or mentoring
relationship.†For this reason, T.D. was
not a NREFM within the express terms of section 362.7.
Even if we were to adopt the
reasoning in Samantha T. and
should be interpreted to include nonrelated extended family members who have no
relationship with the child – a point we do not decide – we would find no
error. The trial court reasonably
concluded that removing A.L. from her foster parents and placing her with T.D.
would not be in A.L.’s best interest. No
evidence was presented that removal would further the legislative goals of
allowing A.L. to remain in familiar surroundings, facilitating family
reunification or providing a culturally-sensitive environment to her. As in Michael
E., there was no need for a change in A.L.’s placement. She was thriving with the foster parents who
were meeting all of her special needs.
It was not clear that T.D. understood A.L.’s special needs, much less
that she could meet them. In fact, T.D.
intended that significant caregiving would be provided not by T.D. but by her
20-year-old daughter. The foster parents
were also facilitating reunification by regularly taking A.L. to visit father
at his place of incarceration every other weekend. Since the foster parents and A.L. were all
African American, there was no question that the foster parents could provide a
“culturally-sensitive environment†to A.L.
Under these circumstances, there was nothing to show that the change in
placement requested by father would be in A.L.’s best interests.
The order
appealed from is affirmed.
RUBIN,
J.
WE CONCUR:
BIGELOW,
P. J.
FLIER,
J.
future undesignated statutory references are to the Welfare and Institutions
Code.
parents appeared at the jurisdictional hearing, although father was still
incarcerated. Father denied the allegations
and mother submitted on the petition.
Because of her failure to reunify with other children, mother was not
given reunification services. She
subsequently lost contact with her appointed counsel and is not a party to this
appeal.
