In re Trinity B.

Filed 7/14/10 In re Trinity B. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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Mark B., father of the minors, appeals from dispositional orders for a supplemental petition removing the minors from a relative placement and returning them to foster care.[1] (Welf. & Inst. Code,  387, 395 [all further statutory references are to the Welfare and Institutions Code unless otherwise indicated].) Appellant contends the court abused its discretion in failing to place the minors back in the relatives care pursuant to the criteria in section 361.3. We affirm.

FACTS

In March 2008 the Shasta County Health and Human Services Agency (Agency) removed the minors, Trinity B., aged four, and Sierra B., aged two, from the paternal great-grandmothers home because of neglect both by the parents and by the paternal great-grandmother in whose care they were left.[2] A great-aunt, Candice K., requested de facto parent status, claiming she had previously provided care for the minors. The court sustained the petition, ordered reunification services for the parents, and granted de facto status to Candice K. but denied placement of the minors with her.

Two months later, in May 2008, the Agency sought to modify the previous order denying placement of the minors with Candice K. based on a change in circumstances, including her move to a new apartment and separation from her husband Lyle P., a Penal Code section 290 registrant. The agency requested that the court order the minors placed with Candice K. on condition there be no contact with Lyle P. as long as she had the minors in her custody. The court granted the request.

The parents failed to reunify with the minors. In December 2008 the court terminated services and set a section 366.26 hearing to select a permanent plan.

An interim report filed in April 2009 requested court approval to move the minors from the relative placement with Candice K. to foster care pending further proceedings. The report contained information that Candice K., despite the conditions of placement, permitted the minors to have several, and possibly ongoing, contacts with Lyle P. The report stated that in February 2009 the Agency received a report that Lyle P. was seen at a store with Candice K. and the minors, telling one of the minors, who was fussy, that he would give them candy when they got home, and all four left together in Candice K.s car. Candice K. said she had seen Lyle P. in a store in December and told the social worker about it but had had no other contact with him.

In March 2009 the Agency received information that Lyle P. was living with Candice K. The most recent reported contact was in early April 2009 when sheriffs deputies did a welfare check on the minors at the Agencys request and found Lyle P. hiding in the closet of the master bedroom of the residence. The report noted it was necessary for deputies to extract Lyle P. from the closet with guns drawn. Both Lyle P. and Candice K. lied to the deputies about his presence there. The social worker picked up the minors and took them to a foster placement. During the drive, Trinity stated that Lyle P. lived in the home with them and slept in Candice K.s room while the paternal great-grandmother slept with them on a mattress on the floor of the living room. In a later interview, Trinity said that Lyle P. frightened her and had hit her with a bat. Although Lyle P. scared both minors and they felt safe in the foster home, both wanted to live with Candice K. if they could.

The agency filed a section 387 supplemental petition, which alleged the previous placement had not been effective in protecting the minors because Lyle P. had unauthorized contact with them and was present in the home when they were removed. The petition further alleged that issues regarding Lyle P. were extensively discussed with Candice K., and his presence coupled with her response to the situation made continued placement with her unsafe.

The Agency filed an addendum report, which stated the minors foster mother reported to the social worker that when drying Trinity off after her bath, Trinity stated Uncle Lyle usually wrap[ped] the towel around her head when he dried her off while Candice K. was in the other room. In a later interview, Trinity said Candice K. made her happy but Lyle P. made her sad because he slaps my Aunt. Trinity further stated that Lyle P. had held her head under the water when they were swimming at the lake; she was afraid of him and she wanted to stay in her current foster home.

When asked about these statements, Candice K. stated that Lyle P. might have bathed Trinity when they lived together before the removal from parental custody in March 2008, but she was not worried about it since her brother had known Lyle P. since they were kids and they had no concerns about him. Candice K. further said Lyle P. yelled at her but never hit her; however, the girls had witnessed their parents physical fights. During her fights with Lyle P. when she previously cared for the minors, she would sometimes walk away and leave the minors with him although he was unpredictable when angry. Candice K. said she knew Lyle P. did not push Trinitys head under the water at the lake because all the adults were at the water at the same time and she never saw that happen. The social worker was not convinced that Trinitys statements about Lyle P. related to events almost a year ago rather than recent occurrences. The social worker was also skeptical that Lyle P. just happened to be present during the one time there was a welfare check and that he was only there once.

At the contested jurisdiction hearing on the supplemental petition, Candice K. testified that on the day the minors were removed, Lyle P., from whom she had separated, had come to the house to retrieve some of his belongings that she still had. She took him into her room to get his things. A few minutes later deputies arrived to do a welfare check. She lied and said he was not there because she panicked, knowing the minors would be removed from her care. Lyle P. had not been to her home prior to that date.

Candice K. testified she was aware of Lyle P.s registration status but did not think the minors were at risk because she was present and would not have let anything happen. She also did not believe his conviction was for sexual battery. She stated Lyle P. had been in the residence only about 10 minutes before the deputies arrived. Prior to this incident, she had contact with Lyle P. only twiceonce at the senior center when Trinity ran up to him and a second time at a store. She had no conversation with him either time and reported both contacts to the Agency.

Lyle P. testified that he went to Candice K.s to retrieve some of his belongings. When the deputies arrived, he hid in the closet because he knew he was not supposed to be there. After speaking with the deputies, he took his clothing and other belongings and left.

The social worker testified he got reports in February 2009, after he took over the case, that Lyle P. was seeing Candice K. and the minors. He received another report in March 2009 that Lyle P. was in Candice K.s home. He stated there was a report in February 2009 that Candice K. had been seen in a store with Lyle P. and the minors in December 2008, and she did report the contact to the previous social worker. His recommendation that the minors not be returned to Candice K. was based on her lying to the deputies, the statements of the minors that they were afraid of Lyle P., and Trinitys later statements including that Lyle P. dried her off after her bath. He discussed the statements with Candice K., who said Lyle P. might have been alone in the bathroom with Trinity prior to the minors initial removal, but she was not concerned about it. It appeared to the social worker that Candice K. did not recognize dangerous situations and the minors should not be returned to her care.

Counsel for appellant argued the evidence did not show Lyle P. lived with Candice K., the provable contact was brief, and the minors should be returned to her care. Counsel for Candice K. argued the incident that led to removal was a mistake and de minimis in light of her ongoing care of the minors and their attachment to her.

The court disagreed with these interpretations of the evidence and questioned the credibility of testimony that Lyle P. was only briefly in the residence, noting Trinitys statements, the evidence found by law enforcement, and other incidents of contact reported to the Agency. The court pointed to the sighting of Candice K. and the minors with Lyle P. at the store as highly credible because of the specific details in the report. The court sustained the petition, then addressed the evidence of Candice K.s inability to protect the minors, citing her contact with Lyle P. and her testimony about his status as a Penal Code section 290 registrant. The court concluded the minors had been in Lyle P.s presence on several occasions. The court adopted the recommended findings, including findings that the minors had been exposed to unauthorized contact with Lyle P.; Candice K. failed to demonstrate she could keep them safe; and continued placement with her was no longer appropriate. The court ordered the minors continuing placement in foster care.

DISCUSSION

Appellant contends the court abused its discretion in failing to apply the statutory preference for relative placement in ruling on the section 387 petition.

Section 387 states, in pertinent part: (a) An order changing or modifying a previous order by removing a child from the physical custody of a . . . relative . . . and directing placement in a foster home . . . shall be made only after noticed hearing upon a supplemental petition. [] (b) The supplemental petition shall be filed by the social worker in the original matter and 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.[3]

Welfare and Institutions Code section 361.3 provides for preferential consideration of certain relatives for placement when a child is removed from the physical custody of the parents. ( 361.3, subds. (a), (c)(1).) In considering a relative for placement, the statute sets forth various criteria, including, as relevant here, the best interest of the child, the ability of the relative to provide a safe environment for the child, and the safety of the relatives home. ( 361.3, subds. (a)(1), (a)(7)(A), (a)(8).) When the placement in Candice K.s home was first made, the safety of the home was ensured by the condition that Lyle P. not have any contact with the minors because of his status as a Penal Code section 290 registrant, and with that condition, the other criteria were satisfied.

Because this is an appeal from a decision to remove a child from a relative placement rather than a grant or denial of a placement under section 361.3, we review the juvenile courts order under the substantial evidence test. (In re H.G. (2006) 146 Cal.App.4th 1, 12.) That is, we view the evidence in the light most favorable to the trial courts determinations, resolve all evidentiary conflicts in favor of the prevailing party, and indulge in all reasonable inferences to uphold the trial courts findings. We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. (Id. at pp. 12-13, internal citations omitted.)

The court found the minors had been exposed to unauthorized contact with Lyle P. and Candice K. had failed to demonstrate she could keep the children safe, and concluded that the placement was no longer appropriate. The evidence showed that Lyle P., Candice K., and the minors were seen together at a store, and from statements by Lyle P. to the minors that were overheard, the court could infer contact had also occurred in the home. There was a report that Lyle P. was living with Candice K. and the minors, and not long thereafter, during a welfare check, he was found hiding in the closet of Candice K.s bedroom. Candice K. lied about his presence in the home. Her subsequent statements made it clear she was not particularly concerned by his sex offender status and minimized any domestic violence between them. The minors statements suggested Lyle P. had ongoing contact with them, whether he actually lived in the home or not, and further suggested that the contact had sufficient negative aspects that both minors were afraid of him. The court found testimony that Lyle P. was in the home briefly on one occasion not credible and necessarily resolved conflicts in the evidence adversely to Candice K. There was ample evidence that the minors best interests were not served by the placement, and that Candice K. could not provide a safe environment and did not have a safe home. The juvenile courts findings that Candice K. failed to demonstrate she could keep the minors safe and that placement with her was no longer appropriate are supported by substantial evidence.

DISPOSITION

The orders of the juvenile court are affirmed.

RAYE , J.

We concur:

SCOTLAND , P. J.

SIMS , J.

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[1] Use of first names and initials is generally adequate to protect confidentiality. (In re Edward S. (2009) 173 Cal.App.4th 387, 392, fn. 1.)

[2] A third child was removed but is not involved in this appeal.

[3] The section 387 petition alleged the previous disposition had not been effective in the protection of the children because: S-1. The children have been in concurrent planning home with the paternal aunt, Candice K[.], since 07/18/08; [] S-2. A change of placement is being requested due to indications that Ms. K[.]s ex-husband, who is a [Penal Code] 290 registrant, has had unauthorized contact with the children; [] S-3. The children were removed from the home on 04/05/2009 upon a welfare check by law enforcement, at which time [Lyle P.] was in the home; [] S-4. Also in the home at the time was the paternal grandmother . . . , who has an extensive CFS history; [] S-5. Issues regarding [the paternal grandmother] and [Lyle P.] have been extensively discussed with Ms K[.], and their presence and Ms. K[.]s responses to the situation presented as unsafe for the childrens continued placement at this time.

The petition does not reiterate the language of section 387 as it applies to relative placements; however, no one objected to the form of the petition or the subsequent recommended findings and orders proposed by the Agency. Although there was a challenge to one of the proposed factual findings relating to domestic violence, the court found the proposed finding was not proved and struck it. Any challenge to an irregularity in form has been forfeited. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.) In any case, the factual allegations set forth above also relate to the relevant criteria of section 361.3, and any errors in pleading are harmless.