Filed 9/14/17 In re M.B. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed.

Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant.

Jean-Rene Basle, County Counsel, Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.

Appellant A.B. (mother) appeals from a juvenile court’s order denying placement of her son, M.B. (the child), with his adult half-sister, M.B., at the six-month review hearing. Mother claims that, in light of the statutory relative placement preference (Welf. & Inst. Code,[1] § 361.3), the juvenile court erred in declining to place the child with M.B.[2] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 24, 2015, the San Bernardino County Children and Family Services (CFS) filed a section 300 petition on behalf of the child, who was seven years old at the time. The petition alleged that the child came within section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). The petition included the specific allegations that, while in mother’s care and custody, the child’s sister, S.M., was sexually abused by her stepfather, J.B. (father), who was the child’s father, and that the child was at risk of similar abuse. The petition further alleged that father was currently incarcerated with an unknown release date.[3] S.M. was 11 years old at the time. CFS filed a separate section 300 petition on her behalf.

In the detention report, the social worker stated that father picked S.M. and the child up from school on Tuesdays. When they arrived at home, father would set the child up with an iPad to keep him distracted, take S.M. in the bedroom, take his clothes off and tell her to take hers off, and have sex with her. He also had her orally copulate him. S.M. stated that the abuse had been occurring for three years, and father told her it was their secret. S.M. said she wanted to tell mother but was afraid. When the police interviewed mother, she said that everything was a lie, that she did not believe for one minute that her husband touched her daughter, and that father would never hurt her daughter.

The court held a detention hearing on December 28, 2015, and detained the child in foster care. Father asked for his adult daughter, M.B., to be assessed for placement. The court granted approval to have the child and S.M. (the children) placed with a relative upon approval by the Relative Assessment Unit (RAU).

Jurisdiction/Disposition

The social worker filed a jurisdiction/disposition report on January 15, 2016, and recommended that the court sustain the petition, remove the child from mother’s custody, and place him in out of home care. The social worker further recommended that reunification services be provided to mother, but not father. Father continued to deny the allegations against him. Mother was willing to participate in whatever services were necessary to get her children back; however, the social worker stated it was unclear as to whether mother truly believed S.M. or whether she would protect the children in the future. The social worker further reported that, at the time of the children’s removal and at the detention hearing, M.B. indicated her interest in placement. However, it appeared that she only wanted the child, not S.M. On January 7, 2016, the social worker attempted to contact M.B. for her information to be turned into the RAU; however, she did not hear back from her.

The social worker also reported that the children were currently placed together in the foster home of Mrs. R., but Mrs. R. was no longer willing to have them in her home. The children would remain in her home until a new placement was found.

The court held a jurisdiction/disposition hearing on January 20, 2016, and continued the matter to February 9, 2016, for a pretrial settlement conference. A hearing was held on February 9, 2016, and the court found father to be the presumed father of the child. It also sustained the petitions of both children, declared them dependents, and removed them from the parents’ custody. The court ordered reunification services for mother, but no services for father.

Section 388 Petition

Mother filed a section 388 petition on March 17, 2016, requesting that the court order the return of the children to her custody and order them to be enrolled in therapy. Mother alleged that the children were suffering emotionally and adjusting poorly in foster care, and that she had substantially progressed in her services and could protect them.

On April 15, 2016, the court denied the section 388 petition as to S.M., but granted a hearing on the petition as to the child. The hearing was held on May 25, 2016. The court then denied the petition with regard to the return of the child to mother’s custody. However, it authorized conjoint therapy between mother and the child.

Six-month Status Review, De Facto Parent Request, and Relative Placement Request

The social worker filed a six-month status review report on June 28, 2016, recommending that the children remain in their placements and mother’s services be continued. The social worker reported that mother continued to struggle with the sexual abuse allegations found true by the court six months earlier. Mother repeatedly questioned S.M. and told her she “ruined everyone’s lives.” At one visit, mother reportedly told S.M. to recant her statements and say she was lying.

The social worker further reported that the child had been placed in his current foster home since January 28, 2016, and he liked the home and his foster parents. The child reported that he was treated well there, there were other foster children he enjoyed playing with in the home, and he ate and slept well there.

The social worker also reported that M.B. submitted information for assessment by the RAU, and her assessment was pending. M.B. requested the placement of the child only, not S.M.

On September 22, 2016, M.B. filed a de facto parent request with regard to the child. She alleged that she was his biological half-sister, she had been providing care for him intermittently all his life, she had a close bond with him, and she had been seeking to have him placed with her from the outset of the dependency case. In her declaration, M.B. stated that when the children were first taken into foster care, she told the social worker she wanted them to immediately be placed in her care. However, the social worker told her it would take six to eight weeks. M.B. then stated that, given what she knew about S.M., “including her behavior that caused her and [the child] to be removed from their home,” she “couldn’t risk taking [S.M.] into her care.” M.B. said she “felt certain that [S.M.] would realize and feel bad about what she had done and want to recant her story,” and if she did, the social workers would allege that M.B. coached her to recant.

M.B. attached copies of e-mails to her de facto request, reflecting that M.B. was demanding toward the social workers and believed her family was suffering because the social workers failed to do their jobs correctly. M.B. told a social worker that her home did not need to be assessed because she was the child’s sister, not a stranger.

The social worker filed an information for the court memorandum, which stated that she was informed on July 31, 2016, that the referral to assess M.B. was closed for lack of response. On August 30, 2016, M.B. indicated that she wanted to be reassessed, so the social worker contacted the RAU to see if the referral could be reopened. The social worker received confirmation that the referral had been assigned to an RAU worker; however, as of September 22, 2016, the social worker had not received any further information regarding the assessment.

County counsel filed an opposition to the de facto parent request. He stated that it appeared M.B. was really seeking custody of the child. He was concerned that M.B. did not believe the sustained allegations of sexual molestation perpetrated by father. The jail visitation logs showed that she had visited father approximately 163 times since his incarceration in December 2015. County counsel stated that it was “exceptionally clear” that she had very strong feelings about father’s criminal case, such that she visited him in jail daily, at times. CFS also opposed the granting of de facto status because M.B. had not cared for the child for a substantial period of time, but was at best a babysitter during certain times. M.B. had no special or unique knowledge of the child.

The court held a contested six-month review hearing on September 22, 2016. At the outset, the court noted that it was going to bifurcate the issue of relative placement because the RAU assessment was still pending. The court set that issue, along with the de facto parent request, for hearing on another date. Mother’s counsel submitted on the recommendation that S.M. remain in foster care, but argued that the child should be returned to mother’s custody immediately. The court was concerned that mother continued to tell S.M. to recant her allegations, and that she had not demonstrated the ability to follow the rules or conditions the court set for the case. The court continued the children as dependents and continued mother’s services.

On November 2, 2016, the social worker filed another informational memorandum to the court. She recommended that M.B. be ruled out as a possible relative placement for the child. The social worker reported that M.B. had stated multiple times she did not believe the allegations the court found true that her father sexually abused S.M. The social worker opined that M.B.’s disbelief would place the child at risk of similar abuse. Moreover, M.B. reported that she was not interested in having a relationship with S.M.; therefore, the social worker was concerned she would alienate the child from his sister. The social worker concluded that M.B.’s actions and words demonstrated her inability to protect the child from sexual abuse.

The court held a de facto parent hearing on November 2, 2016. Counsel for the child agreed with CFS that M.B. had not provided any day-to-day care for the child and did not qualify as a de facto parent. The court noted that it carefully read the motions and declaration, and nothing showed that M.B. had assumed the parental role for any substantial period of time. The court acknowledged that M.B. loved the child, but denied the de facto parent request.

The court then held a hearing on the relative placement issue on November 7, 2016. M.B. testified at the hearing that father was her father, and she was aware the court found true the sexual allegations against him. She testified that she accepted the court’s findings, but did not believe them. M.B. testified that she would do anything for both children, and she would cut ties if she had to. She said was asking for placement of the child only, but would move to a different home so she could take both children. M.B. admitted that she told the social worker she believed S.M. was lying about her statements regarding what father did to her. However, M.B. then testified that it would be good for S.M. to participate in visits with her and the child. M.B. said she had not asked for S.M. to join the visits, and had not seen her since January 2016.

M.B. further testified that mother had been residing at her home for two months. She said that if placement was approved for the child to live with her, mother would move out immediately. If placement was not approved, mother would continue to live with her.

Counsel for the child agreed with CFS’s recommendation to not have the child placed with M.B. because of her lack of protective capacity. She noted the stark contrast in the e-mails attached to the social worker’s report and the manner in which M.B. presented her position in court, especially saying she would take placement of both children. County counsel agreed that M.B.’s position in court was in contrary to what was demonstrated in the e-mails, as well as the previous reports. County counsel noted that M.B. was promising in court to be different, but the information before the court, including the record of her jail visits to father, “probably tell the Court a lot more where her true feelings lie.”

The court noted that it read and considered the submitted documents, and it had no doubt that M.B. loved her brother and wanted to provide a home for him. However, the court shared the concerns of the child’s counsel and county counsel. The court found M.B.’s testimony to be inconsistent with the evidence before it. It noted that, in court, M.B. was open to placement of S.M. However, in her previous declaration, she clearly stated she was not interested in such placement and felt that it would be a risk to have S.M. in her care. The court particularly noted an e-mail in which M.B. called S.M. “unstable, obnoxious, and selfish” and said she did not want her at a visit with the child. Thus, the court said it could not “put much faith into the live testimony when [it was] completely contradicted by [M.B.’s] own words and writing to the social worker.”

The court further noted that M.B. asked for placement at the time of disposition, but then apparently did not follow through, which was why the RAU closed the initial assessment. Moreover, M.B. had, like mother, found ways to blame the system, the social worker, and the court, but refused to blame the perpetrator, even though the court found the allegations against him to be true. The court stated that if it was not going to return the child to mother for those reasons, it was not going to place the child with a relative who stood in the same position. The court’s hope was that mother would comply with her case plan so it could return the child to her. However, it was concerned that because mother was living with M.B., mother was “emboldened” to not make progress, since it was clear the household was “solely focused on clearing father of criminal charges.” The court emphasized that no result in the criminal case was going to affect its decisions in the dependency case. The court then ordered all parties back for the next scheduled hearing.

ANALYSIS

The Court Properly Denied Placement of the Child With M.B.

Mother contends that, given the legislative preference for relative placement under section 361.3, the juvenile court erred in failing to place the child with M.B. In making its ruling, the court stated the following: “I can’t put much faith into the live testimony when it’s completely contradicted by [M.B.’s] own words and writing to the social worker.” Mother claims the court abused its discretion in relying on “prior unsworn statements” made in M.B.’s e-mails to CFS, rather than her sworn live testimony at the placement hearing and her sworn declaration submitted to the court. We find no abuse of discretion.

A. Relevant Law

Section 361.3 provides in part: “(a) 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.” In determining whether such a placement is appropriate, the social worker and court shall consider the following factors: the best interest of the child; the wishes of the parent, if appropriate; the good moral character of the relative; the nature and duration of the child’s relationship with the relative; the ability of the relative to exercise proper and effective care and control of the child; the ability of the relative to provide a safe, secure, and stable environment, exercise proper care and control of the child, provide for necessities, protect the child from his parents, facilitate reunification efforts with the parents, facilitate visitation with the child’s other relatives, and provide legal permanence if reunification fails. (§ 361.3, subd. (a).) For purposes of this section, “ ‘preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.” (§ 361.3, subd. (c).) “The relative placement preference . . . is not a relative placement guarantee [citation], . . .” (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.)

“[T]he abuse of discretion standard should be applied to the review on appeal of the juvenile court’s determination regarding relative placement pursuant to section 361.3. Such a determination, like decisions in custody cases, involves primarily factual matters and a judgment whether the ruling rests on a reasonable basis. As we have suggested, evaluating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. [Citations.] Broad deference must be shown to the trial judge. The reviewing court should interfere only ‘ “if we find that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.” ’ ” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067 (Robert L.).)

B. There Was No Abuse of Discretion

At the outset, we note that no new placement was needed at the time of the hearing in November 2016. (See § 361.3, subd. (d) [“[W]henever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives . . . .”].) The child had been in his current foster home since January 2016, and was doing well. He reported that he was treated well there, he ate and slept well there, and he liked the home and his foster parents. Since no new placement was needed, it was reasonable for the court to deny M.B.’s request at that time. Mother asserts that the family had been requesting CFS to assess M.B. for placement since the detention hearing. However, the record shows that the social worker requested information to be turned into the RAU for assessment, but M.B. did not respond. The RAU referral was closed for lack of response. Moreover, the record shows that M.B. told CFS her home did not need to be assessed, since she was the child’s sister. Thus, M.B. apparently was not cooperative with the RAU assessment. Regardless, there was no need to place the child in M.B.’s home, since he was doing well in his current placement.

In any event, mother argues the court abused its discretion in denying M.B.’s placement request, when it relied on M.B.’s prior statements in e-mails to CFS staff, rather than her sworn testimony at the placement hearing and her previous declaration. However, “t is the trial court’s role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence.” ([i]In re Casey D. (1999) 70 Cal.App.4th 38, 52-53 (Casey D.).) Mother has failed to allege or show any abuse of discretion, since it was the court’s role to assess M.B.’s credibility, weigh the evidence, and resolve the conflicts in the evidence. (Ibid.)

Mother claims that the prior statements relied upon by the court were “made during an emotionally heated time and conflict between the family and the Department and were not made under oath.” She avers that the court should have “placed more ‘faith’ and reliance on [M.B.’s] live testimony,” essentially because it supported placement of the child with M.B. Mother points out that M.B. testified she “would do anything and everything to protect [the child] and that he was her priority.” M.B. testified that if the court ordered her to never allow father to contact them, she would follow the order, even if father pressured her otherwise. She further testified that if the child was placed in her home, she would facilitate visits between him and S.M. She then testified that she was asking for placement of the child only, but she would move to a different home so she could take both children.

The record reflects that the court listened to M.B.’s testimony and considered the documents previously submitted, including M.B.’s de facto parent application and declaration, with the attached copies of the e-mails. The evidence before the court showed that M.B. stated numerous times she did not believe the allegations that father sexually abused S.M. In an e-mail to CFS, M.B. stated: “[T]here is an ongoing criminal trial and NOTHING has been proven as to [S.M.’s] allegations. I will not allow any of you including [S.M.] to brainwash [the child] or disparage our father’s name in front of me or without me there. . . . She also is not going to ruin this visit for [the child] with her unstable obnoxious selfish behavior. I know my stepsister better than any one of you and nothing that she has said to date has been proven. . . . So I ask for whoever is supervising this visit today and if [S.M.] is showing up, to sit in the room and watch it closely. If [S.M.] says one negative word about our father to [the child] or talks about the case she needs to be removed.” As the court observed, M.B.’s testimony in court that she would do anything for the children, that she would protect them as if they were her own children, and that she would even move to a different home so she could take both children, was inconsistent with the other evidence before the court. This e-mail demonstrated that M.B. refused to accept that her father sexually abused S.M., even though the court already found the allegations true, and that she had an extremely negative opinion of S.M. Moreover, in contrast to her testimony, M.B.’s declaration submitted with her de facto parent request stated that she did not want S.M to be placed with her. The evidence showed that M.B. was not even interested in having a relationship with S.M. Thus, the social worker was concerned that she would not encourage the sibling relationship, but would alienate the child from his sister. Given the stark contrast between the evidence in the record and M.B.’s positive and willing attitude at the hearing, it was reasonable for the court not to “put faith in” her live testimony. The court properly weighed the evidence, noted the obvious conflicts, and simply gave more credibility to the written evidence in the record, rather than M.B.’s testimony at the hearing. (See Casey D., supra, 70 Cal.App.4th at pp. 52-53.) Therefore, there was no abuse of discretion. As to mother’s contention that the court improperly relied on M.B.’s “prior unsworn statements,” we note that M.B.’s declaration, which the court cited, was made under penalty of perjury. Moreover, the e-mails that mother complains about were submitted by M.B. as evidence with her de facto parent request. The court had just considered the de facto parent request a few days prior to the placement hearing; thus, it was fully aware of M.B.’s position and attitude, as shown in the e-mail exchanges with CFS.

Furthermore, the evidence before the court supported the finding that placement with M.B. was not in the child’s best interest. (§ 361.3, subd. (a).) “The primary purpose underlying dependency proceedings is the protection of the child.” (Robert L., supra, 21 Cal.App.4th at p. 1068.) The court followed the social worker’s recommendation that the child not be placed with M.B. M.B. did not believe her father sexually abused S.M., and the social worker opined that such disbelief would place the child at risk of sexual abuse, since she would not protect him. (§ 361.3, subd. (a).) M.B. clearly supported father, as demonstrated by her numerous and consistent visits to him in jail. As the child’s counsel emphasized, M.B. lacked the protective capacity to have the child placed with her.

Viewing the evidence most favorably in support of the court’s denial, as we must, we conclude the court properly exercised its discretion in denying M.B.’s request for relative placement. (Robert L., supra, 21 Cal.App.4th at p. 1067.)

DISPOSITION

The appeal with regard to S.M. is dismissed.

As to M.B., the order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MILLER

J.