Orlando
Superior Court
Filed 8/14/12 Orlando E. v. Superior Court CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION TWO
ORLANDO E.,
Petitioner,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Real Party In Interest.
B241574
(Los
Angeles County
Super. Ct. No. CK81350)
ORIGINAL
PROCEEDING. Petition for
Referee. Petition denied.
Kate
M. Chandler, under appointment by the Court of Appeal, for Petitioner.
No
appearance for Respondent.
John F. Krattli, County
Counsel, James M. Owens, Assistant County
Counsel, and Peter Ferrera, Deputy
County Counsel, for Real Party in Interest.
Children’s Law
Center of Los Angeles and Tamara Dennis for Minor Ariana E.
* *
* * * *
Orlando E. (father) has filed a
petition for extraordinary writ (Cal. Rules of Court, rule 8.452), challenging
an order of the juvenile court
denying his request to have his child Ariana E. placed with Patricia O.
(paternal grandmother).
name="_ftnref1" title="">[1] The Los
Angeles County Department of Children and Family Services (DCFS) opposes
father’s petition, and counsel for Ariana has joined in that opposition. We deny the petition.
A. Initial Detention and
Jurisdiction Proceedings
Ariana, who was
seven months old at the time, came to the attention of DCFS in April 2011, when
appellant’s landlord reported that she had a black eye and scratch on her
face. At the time, Ariana’s mother was
her primary caretaker. Ariana’s
three-year-old sibling Lauren E., was under the legal guardianship of paternal
grandmother, but was being cared for by father with paternal grandmother’s
permission.
A DCFS
investigation revealed no scratches or black eye. Nevertheless, DCFS filed a petition under
Welfare and Institutions Code section 300
methamphetamines, that she had a history of illicit
drug abuse, and that Ariana’s half sibling Vincent B. was receiving
permanent placement services due to mother’s illicit drug abuse. The juvenile court sustained an amended
petition, removed Ariana from mother’s custody, and placed her in father’s
custody. Father was ordered to undergo
family maintenance services and cooperate with unannounced visits by DCFS. The court granted mother supervised visits
with Ariana, but specified that no one under the influence of drugs or alcohol
could visit with Ariana.
Approximately
a month later, DCFS filed a dependency
petition against father pursuant to section 342.
health and safety were at risk because father abused marijuana, was in
possession of drug pipes, and allowed mother to have overnight and unsupervised
visits with Ariana in violation of prior court orders.
DCFS
reported the following in its detention report:
On June 16, 2011, at approximately 6:30 a.m., the Pomona Police
Department executed a search warrant on father’s one-bedroom apartment based on
a suspicion that he was selling methamphetamines. Father, mother, Lauren, Ariana, and an adult
male were present in the apartment at the time.
Officers seized two scales from the kitchen cupboards, three
methamphetamine pipes (one in a closet near the kitchen, one in a drawer in the
bedroom, and one in the bedroom closet), and several baggies with
methamphetamine residue. Father was
found in the bathroom in what appeared to be an attempt to flush drugs down the
toilet. Officers arrested father for
possession of drug paraphernalia and mother for outstanding warrants. One officer reported that father admitted to
having “a problem with meth.” Another
officer noted that there was enough of Lauren’s clothing in father’s apartment
to indicate that she was living there.
Paternal grandmother arrived at father’s home after his arrest and took
Ariana and Lauren into her care.
A
social worker interviewed father and mother separately after their
arrests. Father stated during his
interview that he understood mother was prohibited from spending the night at
his residence, but that he had allowed her to spend the night after she came
over to put the children to bed. Father
stated that he cared for Lauren two to three times a week, but maintained that
Lauren resided with paternal grandmother. According to father, he smoked marijuana
after the children went to bed to relieve stress. Mother stated during her interview that she
“used to live” with father and claimed that most of the drug paraphernalia
belonged to her.
title="">[4] In contrast to what father stated, mother
maintained that she had not spent the night prior to the search, and had
arrived at father’s apartment to visit the children approximately 30 minutes
before the officers entered.
The
social worker also interviewed paternal grandmother who explained that she
worked the graveyard shift (from 10:00 p.m. to 6:30 a.m.) at the post
office. Because of her work schedule,
Lauren spent the night with father once or twice a week, and father took care
of Lauren during the day when paternal grandmother slept. She denied any knowledge of drug
paraphernalia at father’s residence, or of father’s marijuana use.
DCFS
stated in its report that any reasonable parent would and should have known
about the risks associated with openly visible narcotics and paraphernalia, and
that paternal grandmother’s actions appeared more consistent with protecting
father than with safeguarding the well being of Ariana and Lauren. Based on this assessment, DCFS detained
Ariana from father’s custody and Lauren from paternal grandmother’s
custody. On June 16, 2011, DCFS placed
Ariana in the foster home where her half sibling Vincent was living.
At
the detention hearing on June 21, 2011, the court released Lauren to paternal
grandmother’s custody. It detained
Ariana from mother and father, continued placement in Ariana’s current foster
home, and ordered DCFS to assess the possibility of placing Ariana with a
relative, including maternal grandmother and paternal grandmother.
The
combined jurisdiction/disposition report prepared by DCFS stated the
following: Paternal grandmother
maintained in a subsequent interview that she “had no idea” that father was
using drugs and noted that every time she visited father’s residence, it was
clean. She described father as “lazy”
insofar as he had difficulty maintaining a job, but she “never knew drugs were
a problem.” Paternal grandmother
maintained that she did not know mother was living at father’s residence or
that mother was spending the nights.
Paternal grandmother insisted that she “ha[d] no control” over mother’s
habits of staying at father’s place.
When asked whether she wanted to care for Ariana, paternal grandmother
stated that she did not think she would be able to care for both Ariana and
Lauren because Lauren is a “very active [child].” She advised DCFS to contact maternal
grandmother to see if maternal grandmother could care for Ariana.
DCFS
interviewed maternal grandmother and her husband in July 2011. Both expressed a desire to care for Ariana,
but because they both had prior criminal convictions, waivers (also referred to
as criminal exemptions) and AFSA
name="_ftnref5" title="">[5] approval would be required before Ariana could
be placed in their home. DFCS provided
them with the paperwork necessary to obtain the waivers.
At
a hearing on July 20, 2011, the juvenile court adopted a recommendation by DCFS
that the section 300 petition filed on behalf of Lauren be dismissed without
prejudice.
place Ariana with paternal grandmother.
Counsel for paternal grandmother stated that paternal grandmother was
willing and able to care for Ariana. The
juvenile court ordered DCFS to assess the suitability of placing Ariana in
paternal grandmother’s care and report back with its progress at a hearing
scheduled for August 9, 2011.
In
preparation for that hearing, DCFS reported that paternal grandmother was
willing to care for Ariana if Ariana could not be placed with maternal
grandmother, and that paternal grandmother would undergo a Live Scan
check. Meanwhile, maternal grandmother’s
waiver was still pending.
At
the August 9, 2011 hearing, the juvenile court sustained an amended version of
the section 342 petition filed against father, ordered family reunification
services for father, and continued Ariana’s placement with her foster parents.
In
an interim review report dated August 18, 2011, DCFS stated that maternal
grandmother’s waiver had not been approved because her application was missing
necessary documentation from law enforcement agencies. Additionally, the results of paternal
grandmother’s Live Scan check revealed that she would also require a waiver and
AFSA approval before Ariana could be placed in her care. According to DCFS, on August 8, 2011, it
informed paternal grandmother of the paperwork necessary to obtain the waiver,
e.g., counseling documentation, police reports, court docket information, and
letters of recommendation. DCFS
explained that it would need a waiver in place before it could inspect and
approve her home for placement.
On
August 23, 2011, the juvenile court ordered Ariana to remain in her foster home
and instructed DCFS to continue its efforts to place Ariana with a relative.
B. Six-Month Status Review
Hearing
In
preparation for the six-month status review hearing scheduled for February 9,
2012, DCFS reported the following:
Ariana was thriving in her foster home where she had been residing for
almost eight months, meeting all of her developmental milestones, and bonding
with her half sibling Vincent. When
Ariana was first detained, she had received only one set of immunizations and
measured in the seventh percentile in weight.
In contrast, Ariana was now caught up on her immunizations, measured in
the 45th percentile in weight, and appeared to be “a bright, happy child.” Her foster parents, who were in the process
of adopting Vincent and had an approved adoption home study on file, expressed
a desire to adopt Ariana as well.
As
to paternal grandmother, DCFS reported that her waiver had recently been
approved and that DCFS had scheduled a team decision meeting (referred to as
“TDM” in the record) “to consider replacement” and “discuss issues related to
the best interest of Ariana at this time.”
DCFS stated that it was “concerned about paternal grandmother[’s] lack
of consistent visit[s] . . . with Ariana” and noted that
paternal grandmother had not regularly visited with Ariana until December 2011,
when a case social worker advised her about the importance of consistent
visitation. The report revealed that
paternal grandmother had visited Ariana on July 26, 2011, and not again until
December 13, 2011. During this
five-month period, Ariana also did not have any contact with Lauren. Because of DCFS’s concern about paternal
grandmother’s inconsistent visits, DCFS requested time to complete an adoption
assessment to consider long-term permanency plans for Ariana.
Also
in preparation for the six-month status review hearing, Ariana’s foster parents
provided the following update: When
Ariana first came to their home, she was an “unusually sedate
. . . baby,” “was extremely quiet,” and “only [made] small
grunting or whining sounds when hungry, soiled, or in need of comfort or
attention.” In contrast, Ariana now
fully interacted with all members of the family, responded to communication with
smiles and affection, and felt secure enough to make her needs and opinions
known. Additionally, Ariana had formed a
“critical bond” with her foster family and exhibited a “close and strong”
relationship with Vincent. She and
Vincent communicated in their own language, played together, and gave hugs and
kisses to each other. Ariana initially
suffered from a chronic diaper rash that was extreme and painful. After several pediatric and dermatological
appointments, the foster parents learned that Ariana was allergic to dairy
products. Since switching to soy
products, Ariana’s diaper rash has been resolved.
The
foster agency social worker who regularly monitored Ariana submitted a letter
in which she “strongly recommend[ed]” that Ariana remain with her foster
parents, who had provided stability and safety for over seven months. The social worker maintained that a change in
placement at this juncture in Ariana’s life would prove “difficult and
disruptive . . . as she is at a critical point in her
development.”
In
connection with the upcoming six-month status review hearing, paternal
grandmother and the foster parents filed separate requests to be named Ariana’s
de facto parent(s).
At
the six-month status review hearing, counsel for father requested that Ariana
be placed with paternal grandmother, citing paternal grandmother’s history of
caring for Ariana and her status as current caretaker for Lauren. Ariana’s counsel opposed the request. Ariana’s counsel argued that the foster
parents were providing appropriate care for Ariana and that moving her would be
“detrimental.” Counsel for DCFS joined
in minor’s counsel’s recommendation to keep Ariana placed with her foster
parents. The juvenile court stated that
although there is a general preference for placing a dependent child with a
relative, that preference is not mandatory.
The juvenile court exercised its discretion to keep Ariana placed with
her foster parents, finding that “it would be detrimental to Ariana, and it is
not in her best interest [for] this court [to] place her with her paternal
grandmother.” The juvenile court
indicated that its decision was based in part on paternal grandmother’s lack of
participation in Ariana’s life. The
termination of reunification services for father was set for a contested
hearing on March 14, 2012.
C. Termination of
Reunification Services and Subsequent Placement
In
preparation for the contested hearing, DCFS submitted a “last minute
information” report for the juvenile court to consider. According to the report, DCFS conducted a
team decision meeting on March 6, 2012, that was attended by the case social
workers, paternal grandmother, and mother.
Paternal grandmother explained at the meeting that she would have
visited Ariana sooner if she had known that the criminal waiver process would
take so long and reaffirmed her desire to care for Ariana until mother and/or
father were capable of caring for Ariana on their own. She expressed a willingness to do “whatever
[was] necessary to keep Ariana with family,” including adoption. Paternal grandmother stated that she would
move in order to be closer to her sister so that her sister could care for
Ariana and Lauren at night when paternal grandmother went to work. DCFS’s final recommendation on where Ariana
should be placed was somewhat ambiguous:
“It is the department’s recommendation that the child’s placement needs
are best served by family. [¶] With regard to the de facto petitions filed
by current caretakers and paternal grandmother, at this time DCFS recommends
that neither party be granted de facto status.
DCFS is recommending a possible placement and therefore the issue of
placement move is not resolved.”
name="_ftnref7" title="">[7]
The
foster parents also submitted a caregiver information form in which they
reported that Ariana recently had her first unmonitored offsite visit with
paternal grandmother. After the
four-hour visit, Ariana was inconsolable on the ride home and clingy. She wanted to be held by her foster mother
and experienced disrupted sleep that night.
At
the March 14, 2012 contested hearing, father testified about his minimal
compliance with the court-ordered case plan and reunification services. At the conclusion of his testimony and
counsels’ arguments, the juvenile court terminated reunification services for
father and set the matter for a permanency planning hearing. The juvenile court next considered the
requests made for de facto parent status.
It granted the request as to the foster parents, citing factors such as Ariana’s
psychological bond with them and their assumption of parental duties on a
day-to-day basis. The juvenile court was
troubled by paternal grandmother’s failure to visit with Ariana for over five
months, and expressed concern that if Ariana were placed with paternal
grandmother, paternal grandmother would allow father, who still had an
unresolved drug addiction, to have uncontrolled access to Ariana.
Father
filed a notice of appeal from the juvenile court’s orders terminating
reunification services for him, setting the matter for a permanency planning
hearing, and denying his request to have Ariana placed with paternal
grandmother. Pursuant to a request by
father, this court construed his notice of appeal as a notice of intent to file
a petition for extraordinary writ (Cal. Rules of Court, rule 8.450), and took
judicial notice of the appellate record.
Father
challenges the juvenile court’s order denying his request to have Ariana placed
with paternal grandmother on two grounds:
(1) the juvenile court abused its discretion by failing to apply the
relative placement preference to paternal grandmother; and (2) DCFS improperly
delayed investigating paternal grandmother’s suitability for placement. As we explain below, both arguments are
unpersuasive. As a threshold matter, we
turn to DCFS’s argument that father lacks standing to challenge the juvenile
court’s placement decision.
According
to DCFS, the juvenile court’s order declining to place Ariana in paternal
grandmother’s care is an order that strictly pertains to paternal grandmother,
and thus father lacks standing to challenge that placement decision. It is settled, however, that “[u]ntil
parental rights are terminated, a parent retains a fundamental interest in his
or her child’s companionship, custody, management and care.” (In re
Esperanza C. (2008) 165 Cal.App.4th 1042, 1053; see also
[“Although parent-child reunification was no longer a goal of the dependency
proceedings, the parents retained a fundamental interest in [the minor’s]
companionship, custody, management and care”].)
At this juncture, father’s parental rights have not been terminated and
he retains a fundamental interest in who cares for Ariana. He therefore has standing to challenge a
court order that may injuriously affect this fundamental right. (See In
re H.G., supra, at p. 9 [“We
liberally construe the issue of standing and resolve doubts in favor of the
right to appeal”].)
title="">[9]
We
now turn to the merits of father’s arguments.
1. The
juvenile court did not abuse its discretion in refusing to place Ariana with
paternal grandmother.
Section
361.3, subdivision (a) provides in relevant part: “In any case in which a child is removed from
the physical custody of his or her parents . . . preferential
consideration shall be given to a request by a relative of the child for
placement of the child with the relative.”
“‘Preferential consideration’ means that the relative seeking placement
shall be the first placement to be considered and investigated.” (§ 361.3, subd. (c)(1).)
In
deciding whether placement with a relative is appropriate, the juvenile court
shall consider a number of factors including “[t]he best interest of the child,
including special physical, psychological, educational, medical, or emotional
needs,” “[p]lacement of siblings and half siblings in the same home, if that
placement is found to be in the best interest of each of the children,” “[t]he
nature and duration of the relationship between the child and the relative, and
the relative’s desire to care for, and to provide legal permanency for, the
child if reunification is unsuccessful,” and “[t]he ability of the relative to
do the following: [¶] (A) Provide a safe, secure, and stable
environment for the child. [¶] (B) Exercise proper and effective care and
control of the child. [¶] (C) Provide
a home and the necessities of life for the child [and] [¶]
(D) Protect the child from his or her parents.” (§ 361.3, subds. (a)(1), (a)(4), (a)(6) &
(a)(7)(A)-(D).)
We
review the juvenile court’s placement decision for an abuse of discretion. (In re
N.V. (2010) 189 Cal.App.4th 25, 31.)
Here,
there was evidence that Ariana was happy and thriving in her foster home. She received the nutrition necessary for
healthy weight and height gain, was meeting all of her developmental
milestones, and felt secure enough to vocally express her needs in a productive
and effective manner. A social worker
who visited with Ariana and her foster parents on a regular basis maintained
that a change in placement would prove “difficult and disruptive” as Ariana was
“at a critical point in her development.”
Ariana had formed a clear bond with her foster parents, a bond that was
undoubtedly strengthened by their assumption of her day-to-day care. Additionally, Ariana had formed a strong
attachment to Vincent, her half sibling, while living with her foster
parents. They played together, were
affectionate with each other, and even shared their own language.
In
contrast to this daily interaction, paternal grandmother was initially
reluctant to care for Ariana and insisted that DCFS investigate the possibility
of placing Ariana with her maternal grandmother. Even after it became clear that Ariana would
not be placed with the maternal grandmother, paternal grandmother still did not
visit Ariana for five months. This extended
period of time is especially significant when one considers that Ariana was
less than a year old when she was first placed with her foster parents. Although paternal grandmother began to visit
with Ariana more regularly after being advised to do so, the fact that Ariana
reacted negatively after an extended unmonitored visit with her indicated that
a meaningful bond had not formed between them.
Additionally,
there was evidence that paternal grandmother would be unable, or perhaps
unwilling, to protect Ariana from her parents, both of whom had unresolved drug
addictions and related criminal behavior.
Paternal grandmother should have been aware that Ariana and Lauren were
living (part of the time at least) in an apartment that contained illicit drugs
and drug paraphernalia, and possibly served as a site for the sale of
methamphetamines. Although paternal
grandmother maintained that she did not know father used drugs or that the
mother was spending the nights at the apartment, the juvenile court was entitled
to believe DCFS’s assessment that paternal grandmother was simply turning a
blind eye to activities that threatened the safety of Ariana and Lauren.
Father
implores this court to consider the following points: paternal grandmother did not visit with
Ariana for five months because she was too busy preparing a good home
environment for Ariana; paternal grandmother had cared for Ariana on a
day-to-day basis for the first 10 months of her life; and Ariana and her sister
Lauren spent their infancy together and Lauren missed Ariana. But even if we were to assume all these
points to be true, we find compelling that grandmother visited Ariana
inconsistently, that Ariana had formed a strong attachment to her foster parents
and half sibling, and that paternal grandmother appeared unable or unwilling to
protect Ariana from the dangerous environment created by father’s drug
addiction and related criminal
activities.
2. There
is no evidence that DCFS improperly delayed its investigation of paternal
grandmother’s suitability.
Father
asserts that DCFS dragged its heels during the criminal waiver and AFSA
approval process. The record belies
father’s contention. At the outset of
the dependency proceedings, paternal grandmother expressed reluctance to care
for Ariana. It was not until July or
August 2011, when it became clear that maternal grandmother’s waiver would not
go through, that paternal grandmother expressed a willingness to have Ariana
placed with her. Shortly after DCFS
discovered that the results of paternal grandmother’s Live Scan check required
a criminal waiver, on August 8, 2011, it discussed the documentation necessary
to obtain that waiver with her. Service logs
indicate that on September 8, paternal grandmother submitted some of the
required documents, but failed to include other required information on the
waiver form. On the same day DCFS
informed her of the need to complete the waiver form. When paternal grandmother did not comply,
DCFS left a message for her on September 26.
On
October 4, 2011, DCFS informed paternal grandmother that a waiver had been
granted, but because paternal grandmother was in the process of moving, DCFS
required the new address before AFSA approval could be obtained. It appears that almost a month went by and
paternal grandmother did not contact DCFS.
On November 1, 2011, father came into a DCFS office to secure a bus pass
and inquire about the status of Ariana’s placement with paternal
grandmother. The case social worker
explained that AFSA approval could not be obtained until grandmother was
residing at the home in which she sought approval. On November 30, 2011, DCFS conducted an
assessment of paternal grandmother’s residence and observed that there was a
door connecting her residence with another residence. DCFS explained that final approval could not
be obtained until the door was permanently sealed. The record indicates that throughout the
month of December 2011, and into early January 2012, DCFS kept paternal
grandmother apprised of her approval status.
We
are satisfied that DCFS made reasonable efforts to keep the waiver and AFSA
approval process on track. More to the
point, there is nothing in the record to indicate that any actions by DCFS
prevented paternal grandmother from visiting Ariana on a regular basis, or from
bringing Lauren to visit Ariana.
In
sum, we conclude that DCFS appropriately investigated paternal grandmother’s
suitability for placement, and find no abuse of discretion in the juvenile court’s
decision refusing to place Ariana with paternal grandmother.
The petition for
extraordinary writ is denied. The
temporary stay issued on June 6, 2012, of the section 366.26 hearing is hereby
dissolved. Pursuant to California Rules
of Court, rule 8.264(b)(3), this opinion is made final forthwith.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________,
Acting P. J.
DOI TODD
We concur:
_______________________, J.
ASHMANN-GERST
_______________________, J.
CHAVEZ
name="_ftn1" title="">[1] On
March 14, 2012, father filed a notice of appeal challenging the juvenile
court’s orders terminating reunification services for father, setting the
matter for a permanency planning hearing (Welf. & Inst. Code, § 366.26),
and denying his request to have Ariana placed with paternal grandmother. Pursuant to a request by father, this court
construed father’s notice of appeal as a notice of intent to file a petition
for extraordinary writ (Cal. Rules of Court, rule 8.450). Father no longer challenges the termination
of reunification services or the setting of the permanency planning
hearing. Accordingly, we only address
father’s challenge to Ariana’s placement.
name="_ftn2" title="">[2] All
further statutory references are to the Welfare and Institutions Code unless otherwise
stated.
