Mary J. v. Superior Court

Filed 1/8/08 Mary J. v. Superior Court CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Mary J. (Mother) has petitioned this court for extraordinary writ challenging the juvenile courts continued placement of T.F. in foster care rather than with his maternal aunt (Aunt). Mother also seeks to compel the juvenile court to divest the child welfare worker of discretion related to visitation. These rulings were included in the courts order of October 4, 2007, which otherwise terminated Mothers reunification services and set a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan.[1] As discussed post, we find no error and deny Mothers petition on the merits.[2]

I. Background

On February 9, 2007, the Alameda County Social Services Agency (Agency) filed a petition asking the juvenile court to establish dependency jurisdiction over T.F. (born February 2007). The petition alleged that both Mother and T.F. had tested positive for cocaine at the time of his birth, that Mother had a history of drug dependency ( 300, subd. (b)), and that the whereabouts of the childs alleged father were unknown ( 300, subd. (g)).

On February 13, 2007, the court formally detained T.F. in out-of-home care. In a subsequent report, prepared for the jurisdictional/disposition hearing and completed on February 27, the Agencys assigned social worker focused on whether T.F. could safely be returned to Mother under a family maintenance plan or alternately placed with the noncustodial alleged father, Craig F. The worker, Nicolia Bagby, decided not to place the minor with Craig after Mother questioned his paternity and named a second alleged father whose whereabouts were unknown. At this point Mother was living in a residence (the Home) together with her three older children, Aunt and Aunts two-year-old child, and the maternal grandmother. Bagby found the Home had all necessary supplies and needed items, and appear[ed] appropriate, but concluded T.F. could not safely be placed there with Mother, as she was not yet completing consistent, clean drug tests. Bagby did not at that time consider Aunt as a possible relative placement.

In an addendum report completed on March 20, 2007, Bagby reported that Aunt had contacted the temporary foster caregiver to arrange for visitation with T.F. She reported that Aunt had also contacted Bagby herself on March 15, to request that T.F. be placed in the Home in her care. Aunt stated Mother no longer resided in the Home. However, she additionally reported that the maternal grandmother had once been arrested. Bagby informed Aunt that this precluded immediate placement in the Home. She referred Aunt to another worker, whom she encouraged Aunt to contact as soon as possible in order to set up an appointment for an assessment of the Home.

Meanwhile the juvenile court continued the jurisdictional/dispositional hearing pending the results of tests to determine whether Craig was T.F.s biological fathertests that both he and Mother had requested after Mother questioned Craigs paternity. When the court finally held the hearing on May 2, 2007, it sustained dependency jurisdiction pursuant to section 300, subdivision (b), and directed reunification services for Mother. The court did not order services for Craig, who, after learning he was not T.F.s biological father, had taken no steps to alter his status as alleged father. During the hearing Mothers counsel had noted that Aunt was not present at the hearing because she had just given birth to her second child, and that Aunt was in the process of having the Home visited and assessed to determine whether T.F. might appropriately be placed with her. Accordingly, the courts dispositional order approved T.F.s present placement with a foster caregiver.

Suzan Kotch, the newly-assigned social worker, submitted an ex parte application on July 26, 2007, in which she noted T.F. had been hospitalized a number of times for treatment of respiratory distress. Attached patient notes indicated that his initial hospitalization was in April, prior to the jurisdictional/dispositional hearing, and that he had most recently been admitted on July 19. Kotch sought, and the court granted, approval of a bronchoscope procedure to determine the appropriate treatment for his continuing, life threatening breathing difficulty. In early September, Kotch submitted a second ex parte application in which she reported that T.F. had a laryngeal defect that required surgery to remove a significant amount of excess tissue . . . blocking [his] airway. The court granted approval of the requested procedure on September 6.

In a third ex parte application, filed on September 17, 2007, Kotch stated that T.F. had been hospitalized for respiratory complications on August 15. On that date his initial foster caregiver indicated she could no longer meet the childs medical needs. Kotch had placed T.F. with a second foster caregiver who could meet these special needs on August 31, the date he was released from the hospital. Kotch requested, and the court granted, approval of this new placement.

In her report prepared for the six-month status review hearing, completed on October 3, 2007, Kotch stated that Mother was not in compliance with her court-ordered treatment plan. She had not kept contact with the Agency and was reportedly still using drugs. With respect to Aunts request for relative placement, Kotch reported that she had visited the Home for an assessment on August 7, 2007. She concluded, however, that a relative placement with Aunt in the Home was not appropriate because it did not meet T.F.s medical needs. Kotch described T.F. as medically fragile, having been hospitalized four times in April, June, July, and August.

His physician had cautioned that T.F. should not be exposed to smoke, dust or pets as these things [could] make his condition worse. The physician had also recommended that T.F. be placed in a home without multiple other children[,] as he gets sick very easily and when he is sick it is life threatening. According to reports from T.F.s initial foster caregiver, and contrary to his medical needs, T.F. had twice returned from visits to the Home smelling of cigarette smoke. The second such instance occurred after Kotch had warned Aunt that he could not be exposed to smoke. As a consequence of this exposure and T.F.s worsening medical condition, Kotch had suspended his visits to the Home in late August.[3] She stated she was attempting to reinstate the visits in an Agency facility rather than in the Home, but this had been challenging due to transportation issues, the minors health and the number of [his] medical appointments. Aside from the risk of exposure to smoke, Kotch noted that the Home was also inappropriate for T.F.s medical needs because multiple other children lived there. She had accordingly placed T.F. with a second foster caregiver who could meet his special needs.

At the six-month status review hearing, on October 4, 2007, Mothers counsel raised the issue [of] visitation and placement with Aunt. The juvenile court stated its agreement with Kotchs placement decision, commenting that placement with Aunt was inconsistent with T.F.s medical needs, because the Home was presently not completely smoke free and T.F. was more safely placed where there were not a lot of other kids in the home. As for visitation with Aunt, the court stated it would give Kotch discretion to resume appropriate visitation if she thinks thats appropriate, but it would not order such visits to take place in the Home.

At the conclusion of the hearing, the court ruled that T.F.s foster placement was necessary and appropriate. It also found Mother had not made substantial progress with her court-ordered treatment plan, and accordingly terminated her reunification services and set the matter for a hearing to select a permanent plan pursuant to section 366.26. (See 366.21, subd. (e).) This petition followed. ( 366.26, subd. (l); rule 8.450.)

II. Discussion

A. The Rejection of a Relative Placement with Aunt

When a minor is removed from parental custody in a dependency proceeding, section 361.3 requires that both the county social services agency and the juvenile court give preferential consideration to a request made by a relative to have the minor placed in his or her care. ( 361.3, subd. (a).) A relative in such instances is defined to include persons such as Aunt. ( 361.3, subd. (c)(2).) This preferential consideration applies until the termination of parental rights. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 10311032 (Cesar V.).)

Mother suggests the Agency failed properly to perform its statutory duty because it did nothing for months to place the minor with [Aunt, a] statutorily preferred relative[]. She further suggests that the Agency acted in bad faith in its eventual rejection of Aunts request for relative placement. Specifically, Mother asserts that Kotch ignored Bagbys earlier approval of the Home as an appropriate placement. She claims Kotch left T.F. with the initial foster caregiver even though the latter ran a day care center, yet then relied on the fact that multiple other children lived in the Home as a basis for rejecting a placement in the Home with Aunt. She urges that Kotch seized upon T.F.s exposure to cigarette smoke in the Home as another basis for rejecting a placement with Aunt, although Kotch had visited the Home on August 7, 2007, without reporting the presence of smoke. Instead Kotch relied on allegations made by the initial foster caregiverallegations that Mother posits were intended to deflect attention from the fact that T.F. had been hospitalized four times while in that foster parents care. Finally, Mother asserts, and her counsel in an attached declaration avers, that Kotch misled the juvenile court by falsely stating in her third ex parte application both that she had given Mothers counsel telephone notice of the application and also that Mothers counsel had agreed to the change of placement for which Kotch sought approval.[4] Mother insists she would have opposed this application had she been properly notified.

Mother additionally claims that the juvenile court erred by failing to state its reasons for denying a relative placement with Aunt, as required by section 361.3. (See  361.3, subd. (e).)

Whereas Mothers contentions focus largely on the Agencys acts or omissions, our foremost concern is the ruling of the juvenile court that Mother ultimately challenges in this writ proceeding. We review that courts ruling regarding T.F.s placement, made at the conclusion of the six-month status review hearing, under the abuse of discretion standard. Under this deferential standard we reverse the placement order only if the evidence, viewed most favorably in support of the decision, shows that no judge could reasonably have made it. (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 14201421.) When the ruling involves primarily factual issues, our analysis of the juvenile courts exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1065, 1067, superseded on other grounds by statute, as stated in Cesar V., supra, 91 Cal.App.4th at p. 1032.)

It does not appear that Kotch ignored a prior approval of a placement with Aunt in the Home. In her February 2007 report, Bagby stated that the Home appear[ed] appropriate. But this statement was made in the context of Bagbys assessment of a possible placement with Mother, and her report ultimately concluded that such a placement was not appropriate, chiefly because Mother had not yet demonstrated that she was drug-free.

Moreover, when Aunt initially requested a relative placement on March 15, 2007, Bagby promptly noted the request in an addendum report completed only days later. This report also indicated that Bagby, at that time, gave Aunt contact information that she encouraged Aunt to pursue as soon as possible in order to arrange an assessment of the Home pursuant to her placement request. At the jurisdictional/dispositional hearing in early May, Mothers counsel stated to the court that Aunt was in the process of arranging that assessment. There is thus nothing in the record to support the suggestion that the Agency improperly delayed its statutory duty to give preferential consideration to Aunts request for relative placementat least prior to the jurisdictional/dispositional hearing in early May. We conclude the juvenile court acted well within its discretion when it made a dispositional order approving the Agencys placement of T.F. with his initial foster caregiver.

After the dispositional hearing, the Agency and the juvenile court were required to give Aunts request for placement preferential consideration only in the event that a new placement became necessary. (See 361.3, subd. (d).) This eventuality did not arise until August 15, 2007, when T.F. was hospitalized for the fourth time and the initial foster caregiver first informed Kotch that she could no longer meet T.F.s special medical needs. We see no impropriety in the fact that Kotch did not seek an earlier change in placement based on T.F.s possible exposure to multiple other children for whom that caregiver may have provided day care.[5] T.F. did not undergo the bronchoscope procedure until July 26. It is reasonable to infer that the physicians recommendations were made in light of the results of this diagnostic procedure, and consequently it appears that both the initial caregiver and Kotch acted promptly to remedy that caregivers inability to meet the medical needs outlined by the physician. The caregiver notified Kotch of her inability to meet T.F.s special needs less than three weeks after the bronchoscope procedure, and Kotch effected a change of placement some two weeks later, on August 31.

During this same period of timebetween the end of July and the end of August 2007Kotch determined that the risk of exposure to cigarette smoke and to multiple other children necessitated suspension of visitation at the Home. Nothing in the record supports Mothers speculation that the initial caregiver acted improperly when she reported on two occasions that T.F. smelled of smoke after returning from visits to the Home. Nor does anything in the record support Mothers suggestion that Kotch acted improperly by relying on those reports despite the fact that she did not report the presence of smoke in the Home during her visit on August 7.

The ex parte application filed September 17, 2007, for approval of the placement change that Kotch made on August 31, did not mention whether Kotch had first given preferential consideration to Aunts relative placement request before she placed T.F. with a second foster caregiver. ( 361.3, subd. (d).) It is, however, the minors best interests that are ultimately at issue when a county social services agency or the juvenile court makes a determination regarding a relatives placement request. (See In re Luke L. (1996) 44 Cal.App.4th 670, 680.) In this instance it is evident that a relative placement with Aunt in the Home was not in T.F.s best interests at the time Kotch made the placement change, for the same reasons that prompted her to suspend T.F.s visits to the Home just prior to the placement change.

Further, even if we assume that Mothers counsel did not receive timely notice of the ex parte application for approval of the placement change,[6] such a procedural defect does not automatically require reversal. We review the error for prejudice, and affirm if it was harmless beyond a reasonable doubt. (See In re Sabrina H., supra, 149 Cal.App.4th at p. 1419.) In light of the Agencys subsequent report prepared for the six-month status review hearing, which concluded that a relative placement in the Home with Aunt would not meet T.F.s special medical needs, and in light of the juvenile courts agreement with that determination at that hearingnotwithstanding Mothers oppositionit is clear that, had Mother been given notice of the ex parte application and had timely opposed its approval, the juvenile court would have reached the same conclusion. Any lack of notice of the application was accordingly harmless beyond a reasonable doubt.

In sum, the record does not support Mothers claims of impropriety on the Agencys part in fulfilling its statutory duty under section 361.3. We further conclude that the juvenile court acted within its proper discretion when it rejected Aunts request for relative placement at the time of the six-month status review hearing. Contrary to Mothers claim, the courts comments clearly indicated the basis for that decision, stating in effect that Aunt could not presently provide a safe environment for T.F. given his special medical needs. (See 361.3, subds. (a)(1) & (7)(A).) There was substantial evidence in the Agencys report to support that decision, indicating that the Home presently posed to T.F. a risk of exposure to cigarette smoke and multiple other children.[7]

B. Visitation with Aunt

Mother urges that the juvenile court erred in leaving it to Kotchs discretion to reinstate visitation between Aunt and T.F., particularly as it was Kotch who had previously suspended such visitation. In her view the court should have ordered a resumption of visits.

Section 366.21, subdivision (h) provides in pertinent part that, when the juvenile court sets a hearing under section 366.26, it must also make . . . appropriate orders to enable the child to maintain relationships with individuals, other than the childs siblings, who are important to the child, consistent with the childs best interests. As discussed ante, we have found sufficient evidence to support the juvenile courts ruling that, essentially, determined a placement with Aunt in the Home was not presently in T.F.s best interests. The same evidence provides substantial support for that courts decision not to order visitation with Aunt in the Home. We conclude the court did not abuse its discretion in directing the Agency to use its discretion in arranging more appropriate visitation.

III. Disposition

The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI,  14; Kowisv. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd.v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Rule 8.264(b)(3).)

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Stein, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

[1] Further statutory references are to the Welfare and Institutions Code. References to rules are to the California Rules of Court.

[2] Section 366.26, subdivision (l)(1)(A) bars review on appeal if the aggrieved party has not first made a timely writ challenge to an order that sets a hearing for selection and implementation of a permanent plan. Section 366.26 also encourages the appellate court to determine all such writ petitions on their merits, as we do here. ( 366.26, subd. (l)(4)(B).)

[3] According to Mothers counsel, these visits were on Saturdays from 12:00 noon to 7:00 p.m.

[4] The Agencys opposing brief includes a declaration executed by Kotch that contradicts the declaration of Mothers counsel.

[5] Mother presented no evidence or formal offer of proof of the foster caregivers provision of day care to other children. This purported fact appears in the record only through a comment made by Mothers counsel in the course of arguing the issue of T.F.s visitation and placement with Aunt.

[6] We decline to consider the merits of Mothers claim of Kotchs misrepresentation. The conflicting declarations present facts outside the record, and the juvenile court was never afforded an opportunity to address this issue.

[7] We additionally note that neither the Agency nor the juvenile court foreclosed future reconsideration of Aunts request in the event of a change of circumstances such as an improvement in T.F.s health.