In re Charles M.
Filed 3/21/08 In re Charles M. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re CHARLES M., a Person Coming Under the Juvenile Court Law. | |
ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. ROBERT M., Defendant and Appellant; ANDREW M. et al. Interveners and Respondents | G039216 (Super. Ct. No. DP013091) O P I N I O N |
Appeal from orders of the Superior Court of Orange County, John C. Gastelum, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, and Karen L. Christensen and Alexandra G. Morgan, Deputy County Counsel, for Plaintiff and Respondent.
Van Deusen, Youmans and Walmsley and Ted. R. Youmans for Interveners and Respondents Andrew M. and J.L.
No appearance for the Minor.
* * *
The juvenile court did not abuse its discretion when it denied a hearing and relative placement under Welfare and Institutions Code section 361.3. (All statutory references are to the Welfare and Institutions Code.) We affirm.
I
FACTS
When now two-year-old Charles M. (the minor) was born he was experiencing severe withdrawal symptoms and was placed on methadone to decrease them. A day or so before he was born, Laura B. (the mother) smoked methamphetamine which she stated must have been a cocktail which included cocaine. Orange County Social Services Agency (SSA) has had contact with the family six times regarding the minors older half sibling. SSAs records reveal that at the time the minor was born, there was a substantiated Severe Neglect allegation . . . based on the positive toxicology screen of methamphetamine, cocaine and opitates . . . .
The mother has had several contacts with the police regarding arrests for possession of drug paraphernalia. Robert M. (the father) has had scores of contacts with the police, the courts and prison over the years. SSAs records state he did not use methamphetamine for a four-year period of parole, but thereafter resumed use and entered a treatment program. He has been clean from methamphetamine use since April 2005.
After the minor was released from the hospital, he first went to Orangewood Childrens Home for three weeks, and was then placed in two different foster homes. An Interstate Compact on the Placement of Children (ICPC) referral was filed in Texas on February 16, 2007. The request was for a foster home study on Tamara M., the minors paternal aunt. But when SSA attempted to find out what progress was made in Texas, the social worker said she had made several attempts to contact [Tamara M.], both telephonically and written, but has not received a response. SSA then unsuccessfully tried to contact Tamara M. On March 14, 2007, SSA learned that Texas had closed its file on the ICPC referral. At the March 23, 2007 review hearing, the juvenile court ordered SSA to submit another ICPC referral to Texas.
On March 28, 2007, the minor was placed in the care of Andrew M. and J.L., after spending ninety five percent of his time with the couple while he was placed with the former caretaker. The couple has bonded with the minor and would like to pursue adoption. On June 7, 2007, Andrew M. and J.L. filed for de facto parent status, which the juvenile court granted.
On June 28, 2007, the juvenile court began conducting a hearing under section 366.26. After the first day, the hearing was continued until July 2, 2007. On that date, the father submitted a motion for a hearing under sections 361.3, subdivisions (A), (D) and 366 subdivision (a)(1)(A).
The juvenile court denied a hearing for the motion brought under section 361.3, finding the father lacked standing to bring the motion. In making the ruling, the court noted: Its clear from the evidence both from the social worker and from the reports that the paternal aunt, [Tamara M.], hasnt been much of a player in regards of her responding to this request. [] And the court certainly has based on her lack of response, which I could only term as at best half-hearted I think someone else used the term luke warm would have a lot of doubts about really whether she desires to have this child placed with her at all. She has not responded to numerous attempts from the social worker to return calls or have contact regarding this case. And her failure to respond to contacts led to the denial of the original ICPC and that referral being closed. [] So there are a number of questions here regarding whether she is even willing to really consider having this child in her home. When I contrast that to additional facts in the Cesar V. [v. Superior Court (2001) 91 Cal.App.4th 1023] case, the grandmother in that case had a real tangible relationship with that child. [Tamara M.], the paternal aunt, from what I can tell has never even met this child. The grandmother in Cesar V. appeared in court on hearings. [Tamara M.] has never appeared in court on any hearing in this case. Shes never called social services to even request any kind of visitation or contact with this child. Theres no record of her calling minors counsel at any time to even inquire about the child or about the childs well-being. . . . [] . . . [] So the paternal aunt was considered and investigated but it was her failure to comply that led to her not being the placement that was actually considered for the child. It appears to me that the social worker here did make significant efforts to try to gather information on the paternal aunts suitability by initiating the ICPC, trying to follow up on that process and enlist the aunts cooperation. So there was consideration given to the aunt in March to try to get that placement going. I believe the aunt did get a fair chance to be considered for that placement. But, again, she was the one who dropped the ball and didnt cooperate with the process. It was her lack of cooperation with the ICPC and failure to return calls, so she did get the first crack, but thats why it didnt occur. [] Again, looking at this, this is a person who really has no relationship with the child other than biology. Theyve had no contact. Theyve never met. Theyre virtual strangers except for the biological link. I do acknowledge that father had consistently indicated he wanted the child placed with his aunt but, again, its the aunt who by her inaction she knows about this proceeding has only now stepped forward at the last minute and now says when we are engaged in this .26 hearing that now she wants the ICPC to go forward. [] Now, weighing against that is this childs need for stability and permanency. I think Mr. Youmans noted that even with all of that this ICPC we just initiated is still going to continue. Im not making any rulings today about who gets to adopt this child. That is not the purpose of this proceeding. And Ive never received any 388 petition on behalf of the aunt asking that she be considered or that she disagrees and she wants the court to consider her position in placement. Shes been a virtual lack of contact with the court only until very recently has she actually said that she is going to go through with the ICPC and even now I dont know when that ICPC will be complete. It will probably take another couple of months for that process to be finalized. [] Given the status and the dramatic factual differences between this case and the Cesar V. case in terms of the relatives requesting placement, I dont think that that hearing under 361.3 is warranted at this time given the state of the evidence.
II
DISCUSSION
The father contends the juvenile court erred with regard to its refusal to grant a hearing and refusal to place the minor with Tamara M. under section 361.3: The juvenile court is accorded independent discretion in a minors placement and abused that discretion, resulting in a miscarriage of justice, when it failed to assure the pending ICPC concerning paternal aunt in Texas was completed and considered.
SSA counters that the father has no standing to argue this issue. [W]hether one has standing in a particular case generally revolves around the question whether that person has rights that may suffer some injury, actual or threatened. (Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 751.) In Cesar V. v. Superior Court, supra, 91 Cal.App.4th 1023, the court concluded that, while a grandmother had a separate interest in her relationship with . . . her grandson, the father had no standing to appeal the relative placement issue. (Id. at pp. 1034-1035.) Just as the court did in Cesar V., we conclude the father in the case before us lacks standing to appeal from a juvenile courts denial of relative placement under section 361.3.
Even if the father did have standing, his argument fails because the minor was not removed from a parent, a requirement under section 361.3.[1] In this case, the minor was never under the custody of his parents.
The argument also fails because the juvenile court did not abuse its discretion when it made its orders. Indeed, as noted by the father, the juvenile court has broad discretion in disputes regarding relative placement. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1068.) Section 361.3 requires an assessment of the ability of the relative to provide a safe, secure and stable environment for the child. ( 361.3, subd. (a)(7)(A).) In making that assessment, the court should consider a variety of factors. Among them are the ability of the relative to exercise proper care of the child, to provide an adequate home . . . . However, the best interests of the child is the linchpin of the analysis. (In re Robert L., supra, 21 Cal.App.4th at p. 1068.)
Here, the juvenile court had before it a June 28, 2007 addendum report from SSA in which the social worker said: The undersigned believes the relative preference may not apply in this case. The undersigned feels that since [the foster/de facto parents] have spent such a large amount of time with the child, have bonded with him, and are aware of his medical history and needs, that they should be allowed to proceed with adopting the child as opposed to placing him in Texas. Further, there is no need to move the child at this time. That family has been the primary caretakers of the minor since July 2006.
Here, the court noted its concerns about the well-being of the minor. Under these circumstances, we conclude the juvenile court did not abuse its discretion when it denied to grant the father a hearing and relative placement under section 361.3.
III
DISPOSITION
The juvenile courts orders are affirmed.
MOORE, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
IKOLA, J.
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[1] Section 361.3, subdivision (a) states in part: In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.
