In re Michael E.
Filed 1/16/13 In
re Michael E. CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re MICHAEL
E., JR., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY
HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
MICHAEL E.,
SR.,
Defendant and Appellant.
D062596
(Super. Ct. No. NJ14556)
APPEAL
from an order of the Superior Court of
County, Michael J. Imhoff, Commissioner. Affirmed.
Michael
E., Sr., appeals from the juvenile court's order denying his fiancée status as
a nonrelative extended family member (NREFM) under Welfare and Institutions
Code section 362.7.
title="">[1] We affirm the order.
FACTUAL
AND PROCEDURAL BACKGROUND
In
January 2012, five-year-old Michael E., Jr., (Michael), was adjudicated a
dependent of the juvenile court due to domestic
violence and his mother's alcohol abuse.
Michael was placed in relative care with a maternal great-aunt and
uncle. Michael's father had not had any
contact with him since approximately October 2009 and his whereabouts were
unknown.
In
May, Michael's relatives said they were no longer able to care for him. The San
Diego County Health and Human Services Agency (Agency) detained Michael in
foster care.
title="">[2] In June, Michael's mother, Jennifer E.,
realized she was not ready to care for Michael and asked the social worker to
initiate an Interstate Compact on the Placement of Children (ICPC) to allow her
parents, who resided in Michigan, to take guardianship of Michael.
The social worker reported that Jennifer and Michael had lived with the
grandparents until November 2010, when the grandparents moved to Michigan. In 2011, the grandparents cared for Michael
for a total of six months. They
continued to telephone him every week.
The court granted the social worker the discretion to place Michael with
his maternal grandparents upon ICPC approval.
Shortly
before the six-month review hearing, the Agency located Michael, Sr., in local
custody. He did not expect to be
released until October 2013. Michael,
Sr., said he lived with his son for the first 18 months of his life. He was incarcerated when Michael was
approximately three and one-half years old.
When Michael, Sr., was released in April 2011, he was unable to locate
his son. Michael, Sr., asked the Agency
to place Michael with a paternal aunt and uncle in Tennessee. He informed the social worker that he and his
fiancée, E.C., were the parents of an infant son.
At
a hearing on July 23, the court vacated its order granting the social worker
discretion to place Michael with his grandparents upon ICPC approval and
authorized the social worker to consider paternal relatives for placement.
On
August 31, at the section 387 jurisdictional and dispositional hearing, the
social worker testified Michael's paternal aunt and uncle in Tennessee had
contacted her for placement and she had initiated an ICPC evaluation of their
home. ICPC approval for Michael's
placement with his grandparents was pending.
The State of Michigan required the grandparents to obtain a foster care license, which
they were in the process of doing.
The
social worker asked Michael, Sr., whether E.C. would be interested in caring
for Michael. Michael, Sr., said he was
not sure. His preferred placement for
Michael was with his brother in Tennessee. The social worker was
willing to evaluate E.C.'s home for placement if she expressed an interest in
caring for Michael.
Michael,
Sr., testified he talked to E.C. "a little bit" about caring for
Michael. E.C. had never met Michael but
was willing to build a relationship with him.
To his knowledge, she did not contact the social worker about Michael's
placement. Michael, Sr., was not opposed
to placing Michael with his maternal grandparents provided that Michael could
continue to visit his paternal relatives.
In
closing argument, Michael, Sr., asked the juvenile court to order the Agency to
evaluate E.C. for placement as a NREFM under section 362.7.
The
juvenile court endorsed evaluating the maternal and paternal relatives for
placement and said it would schedule a hearing if one or both of the relatives
were approved for placement. The court
found that E.C. was not married to Michael, Sr., and was not considered
Michael's relative. There was no
evidence indicating Michael had a relationship with either E.C. or his half
brother, and denied the request to evaluate E.C. for placement as a NREFM. The court ordered that family reunification
services not be provided to Michael, Sr., because of the length of his
incarceration and his lack of access to services in prison. The court found that Jennifer was making some
progress with her case plan and continued her
review date.
DISCUSSION
Michael,
Sr., contends the juvenile court erred when it did not order the Agency to
investigate E.C.'s home for placement as a NREFM. He maintains that E.C. is his fiancée, and
the mother of Michael's half brother, and thus she has an established familial
relationship with Michael. He argues the
court erred when it found that E.C. needed to be a relative or to have met
Michael to qualify as a NREFM placement.
Michael, Sr., argues the court did not consider other criteria including
E.C.'s ability to offer Michael a familiar setting in San Diego County, assist
with visitation with both parents, facilitate reunification with Jennifer and
help Michael establish a relationship with his half brother.
A
Legal Framework and Standard of Review
In
1995, recognizing the importance of continuity of community, school, church and
friends to dependent children who have been removed from their families, the
Legislature enacted section 362.7, which permits a county welfare department to
place a dependent child in the home of a NREFM.
(Stats. 1995, ch. 509, § 6; see Samantha
T. v. Superior Court (2011) 197 Cal.App.4th 94, 108 (
caregiver who has an established familial or mentoring relationship with the
child." (§ 362.7.) NREFM's may include relatives of the child,
teachers, medical professionals, clergy, neighbors and family friends. (Ibid.)
The
county welfare department must verify the existence of a relationship between
the child and the individual seeking NREFM status through interviews with the
parent and child or with one or more third parties. (§ 362.7.) A child may not be placed with a NREFM unless
that individual's home meets standards for the licensing of foster family homes. (Ibid.) Any placement with a NREFM must be in the
child's best interests. (
Cal.App.4th at p. 108.)
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.
name="_ftnref4" title="">[4] (Samantha
T., supra, 197 Cal.App.4th at pp. 97, 108-109.) Thus an individual may qualify as a NREFM
under the express terms of the statute or within the legislative goals of the
statute. (Id. at p. 110.)
We
review questions of the interpretation of a statute, and its application to
undisputed facts, de novo. (
Cal.App.4th 529, 535.)
B
The Court Interpretation of NREFM Was Overly Narrow
We
are not persuaded by Michael, Sr.'s, argument NREFM status is conferred through
a mutual relative when there is no existing relationship between the child and
the individual seeking NREFM status. By
its plain terms, section 362.7 applies when the child has an existing
relationship with the individual seeking NREFM status. (§ 362.7 ["county welfare
department must verify the existence of a
relationship between the child and the individual seeking NREFM
status"], italics added.)
Nevertheless, we conclude that the juvenile court's interpretation of
NREFM status did not fully comport with current law. (See Samantha
T., supra, 197 Cal.App.4th at pp. 97, 108-109.)
The
juvenile court declined to order the Agency to evaluate E.C.'s home for
placement because she had never met Michael and Michael did not have any
relationship with his half brother. If
the child does not have an existing relationship with the individual seeking
NREFM status, the court then considers whether that individual has a close
connection with the child's family and whether the child's placement in the
NREFM home 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.
(Samantha T., supra, 197
Cal.App.4th at pp. 97, 108-109.)
Here, to the extent the court considered the nature of Michael Sr.'s and
E.C.'s relationship, it did not examine whether Michael's placement with E.C.
would further the legislative goals of section 362.7, as discussed in
Notwithstanding
the court's restrictive interpretation of section 362.7, we conclude that the
juvenile court did not abuse its discretion when it denied the request to order
the Agency to evaluate E.C.'s home for NREFM placement.
C
Abuse Its Discretion When It Declined to Order the Agency to Investigate E.C.'s
Home for Placement
On
this record, we cannot conclude the juvenile court erred when it declined to
order the Agency to investigate E.C.'s home for placement. E.C. did not come forward to request
Michael's placement in her home. The
record supports the reasonable inference she was reluctant to take into her
home a child she had never met and with whom she had no relationship. Thus, at the time of the hearing, E.C.'s home
was not a viable placement for Michael.
The record also supports a finding that Michael's placement with E.C.
would not further legislative goals of section 362.7. Michael had been living in a foster care home
for approximately five months and had developed a close relationship with his
caregivers. E.C. did not live in the
same part of San Diego County as Michael's foster parents, and placement with
her would disrupt his schooling and the continuity of his care, and separate
him from his friends. The record shows
that Michael had had multiple homes, schools and caregivers in a relatively
short period of time. We draw the
reasonable inference that Michael's need for continuity of care in a familiar
environment was important to him. Absent
a need for a change of placement, placing Michael with someone he did not know
would not be in his best interests. (
Cal.App.4th at p. 108.)
In addition, Michael had maternal and
paternal relatives who wanted him in their care. (See § 361.3 [preferential placement
consideration given to a grandparent, aunt, uncle or sibling].) Their ICPC home studies were in
progress. A social worker is required to
consider a NREFM for placement only when there is not a custodial parent, a
relative given preferential consideration or a relative who is willing and able
to provide appropriate care for the child.
(§§ 361.2, subd. (e), 361.3.)
Both Michael's mother and father expressed a preference for Michael to
live with relatives. Michael had a close
relationship with his maternal grandparents.
At the time of the hearing, he had just returned from an extended visit
in their home. Michael said if he could
not live with his mother, he would want to live with his grandparents. Thus the record supports a finding that
placement with E.C. would not further the legislative goals underlying section
362.7. (Samantha T., supra, 197 Cal.App.4th at pp. 97, 108-109.)
A
judgment may not be reversed on appeal unless the reviewing court, after
examining the entire cause, including the evidence, concludes that the error
caused a miscarriage of justice. (Cal.
Const., art. VI, § 13.) We conclude
that it was not reasonably probable a result more favorable to the appellant
would have been reached in the absence of error. (People
v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The
order is affirmed.
NARES, Acting P. J.
WE CONCUR:
HALLER, J.
McINTYRE,
J.
name="_ftn1" title="">[1] Further statutory references are to the
Welfare and Institutions Code.
name="_ftn2" title="">[2] The Agency belatedly filed a section
387 petition on July 29, 2012.
