In re J.M.

Filed 11/19/09 In re J.M. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Superior Court of Los Angeles County, Stephen Marpet, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond Fortner, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent

Rich Pfeiffer, under appointment by the Court of Appeal, for Minors.

Mother appeals from orders removing son J.M.1 from the care of a maternal aunt (aunt) and son J.M.2 from his fathers custody. The children join mothers appeal. We find no reversible error, and affirm the juvenile courts order.

FACTUAL AND PROCEDURAL SUMMARY

In May 2008, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition pursuant to Welfare and Institutions Code section 300^[1] to have five-year-old J.M.1 and seven-year-old J.M.2 declared dependent children. The petition, as amended and sustained, alleged that mother was an alcoholic, that she engaged in sexual activity with her male companion in front of her children, and that she inappropriately physically disciplined the children, placing them at risk of harm. The children were detained with their maternal grandmother while DCFS obtained waivers for minor criminal offenses by their maternal aunt and her husband so the children could be placed in aunts home. In June 2008, DCFS placed J.M.2 with his father and J.M.1 with aunt.^[2]

In August 2008, the juvenile court conducted a combined adjudication and disposition hearing, adjudicated the children dependents, and removed them from mothers custody. J.M.2 remained with his father, and J.M.1 with aunt. On September 22, 2008, J.M.2s father reported to DCFS that he could no longer provide a home for him. Aunt told the social worker that J.M.2 could stay with her so he would not have to go to foster care, and he was placed with her that day. The next day, aunt brought both children into the DCFS office. She requested they be put into foster care, said she was unable to care for them, and left them with a social worker. Shortly thereafter, DCFS filed a section 342 petition to remove J.M.2 from the fathers custody and a section 387 petition to remove J.M.1 from aunts custody. The juvenile court deemed the children a sibling group, ordered them detained in foster care, and gave DCFS discretion to place them with aunt. Aunt did not seek replacement.

In November 2008, the juvenile court adjudicated the petitions. Aunt testified that she asked that the children be removed from her care because they were not receiving therapy and she was frustrated with DCFSs handling of the case. She said she wanted the children returned to her. The childrens attorney and DCFS argued in favor of sustaining the petitions, contending that aunts action of leaving the children at DCFS caused them emotional harm and risk of injury. The juvenile court sustained both petitions. The court terminated the home-of-parent order as to J.M.2s father, found that J.M.1s placement with aunt failed, and ordered DCFS to attempt to place the children together and continue investigating relative placement.

Mother timely appealed from these orders and the children join her appeal in its entirety under California Rules of Court, rule 8.200(a)(5).

DISCUSSION

I

Before turning to the merits, we address threshold jurisdictional arguments raised by DCFS. DCFS first claims mother lacks standing to appeal the orders. In juvenile dependency matters, [w]e liberally construe the issue of standing and resolve doubts in favor of the right to appeal. [Citation.] (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1053.) At the time of the section 387 hearing, mothers parental rights to J.M.1 and J.M.2 had not been terminated, and family reunification services had been ordered. Because mother retained a fundamental interest in [the childrens] companionship, custody, management and care she has standing to challenge the courts findings and orders. (In re H.G. (2006) 146 Cal.App.4th 1, 9-10 [determining parents had standing to challenge an order removing child from grandparents care pursuant to section 387].)^[3]

DCFS also argues that we are deprived of jurisdiction to consider the childrens brief because they did not file a notice of appeal, and contends the children are barred from raising arguments on appeal inconsistent with those presented at trial. Pursuant to California Rules of Court, rule 5.661, the childrens trial counsel recommended that an appellate attorney be appointed for them because at trial the children contended they should be returned to aunt, while trial counsel and DCFS took the position that they should not. We appointed appellate counsel pursuant to that recommendation, and have granted permission for the children to file a brief on appeal.^[4]

II

Mother claims there was not substantial evidence to support the juvenile courts findings at the adjudication of the section 387 petition. In reviewing an order sustaining a section 387 petition, we view the record in the light most favorable to the order and decide if the evidence is reasonable, credible and of solid value. [Citation.] (In re Javier G. (2006) 137 Cal.App.4th 453, 463.)

The section 387 petition alleged aunt was unwilling to provide the child with ongoing care and supervision . . . . Said unwillingness . . . endangers the childs physical and emotional health and safety and places the child at risk of harm and damage. Mother argues that the notion of risk of harm set forth in section 300 should be applied to determine whether there was substantial evidence for the juvenile courts findings under section 387. Under section 387, the critical appellate issue is whether there was substantial evidence to support the courts finding that the previous disposition was not effective in protecting J.M.1, rather than whether there was a risk of harm sufficient to establish jurisdiction for the purpose of section 300. (In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.)

The juvenile court found that the aunts decision to leave the children at the DCFS office harmed the children, and sustained the petition, finding that [t]he previous disposition of the Court has not been effective in the rehabilitation or protection of the minor. Aunts action of leaving the children at the DCFS office and stating she did not want to care for them provided a reasonable and credible basis for the juvenile courts findings. As noted by the juvenile court, aunt should be credited with caring for the children. But the placements had been brief. J.M.1 was in her care for less than three months, and J.M.2 had been there for just one day. When she dropped the children off, aunt was very emotional when she said, I thought that I can handle it but I couldnt. Im stressed out and they cant stay with me. Im not able to care for them any longer. She told J.M.1 that she was sick and could no longer take care of him, and called mother to inform her that she had returned J.M.1 to the office. However, at five and seven years old, the children were old enough to feel rejected because of aunts actions. According to an offer of proof made by J.M.1s attorney, the child would have testified that he was very sad when he was left at the DCFS office and that hes very worried to be left alone again.

Aunts frustration with DCFS does not justify returning the children to DCFS in the manner that she did. After aunt took the children to DCFS, she did not request replacement. Although she requested visitation and spoke to them on the phone, she had visited the children only once as of the adjudication hearing. Aunt not only gave up her custody of the children after a very brief time, but she made only a minimal effort to continue her relationship with them after they were removed from her care. These actions and inactions support the courts conclusion that the placement with aunt was not effective in protecting the children.

III

Mother argues the juvenile court failed to determine whether placement with aunt was appropriate pursuant to section 361.3. Section 387, subdivision (b) directs that a petition to remove placement from a relative shall contain a concise statement of facts sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3. Section 361.3, subdivision (a) establishes a preference for relative placement and sets forth criteria that a juvenile court must consider in exercising its independent discretion as to whether a relative placement is appropriate. (In re H.G., supra, 146 Cal.App.4th at pp. 14-15.) Section 361.3, subdivision (e) requires the juvenile court to state for the record the reasons placement with a relative was denied. The statement must reflect the exercise of independent discretion in weighing the statutory criteria. (See In re H.G., at p. 15.)

At the adjudication hearing the juvenile court did not make express findings under section 361.3, but stated that [T]o actually leave [the children] and walk away from them, I find that a little bit too severe, and it does feel that the kids are going to be harmed by that. Although the juvenile court did not make an explicit statement on the record weighing the section 361.3 criteria, the error is harmless because the reasons for denying placement are clear from the evidence and discussion at the hearing and support the courts decision . . . .  It is not reasonably probable such findings, if made, would have been in favor of [aunt]. (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.)

Mother also claims the juvenile courts removal of J.M.1 from aunts care at the disposition hearing was not in his best interests because there was no showing of significant risk to him, and aunts actions resulted from DCFSs failure to support J.M.1 with court-ordered services. In ordering unmonitored visits between the children and aunt, the juvenile court recognized aunts care for the children and the role DCFSs failure to provide services played in her frustration. But the offer of proof at the disposition established that J.M.1 was very sad when he was left at the DCFS office and that hes very worried to be left alone again. The court did not abuse its discretion in finding it was in J.M.1s best interests to be removed from aunts care.

IV

Mother argues that the juvenile court abused its discretion by not placing J.M.2 with aunt. Pursuant to section 361.3, subdivision (d), the relative placement preference operates whenever a new placement of a child must be made. (In re Lauren R. (2007) 148 Cal.App.4th 841, 854.) The record indicates the juvenile courts August 2008 order placing J.M.2 with his father was still in effect when J.M.2 went to stay with aunt. Mother contends that when the court terminated this order, it was obligated to consider aunt for a relative placement under section 361.3. We agree with mother that the juvenile court was required to consider placing J.M.2 with aunt. However, aunts action of leaving J.M.2 at the DCFS office and stating that she could no longer care for him constituted a sufficient basis for the juvenile court to deny placement with aunt. Thus, the record contains ample evidence that the preference was overridden in this case. (In re Joseph T., supra, 163 Cal.App.4th at p. 798.) The juvenile court did not abuse its discretion in ordering J.M.2 placed in the care of DCFS.

DISPOSITION

The orders of the juvenile court are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J. SUZUKAWA, J.

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^[1] All unspecified statutory references are to the Welfare and Institutions Code.

^[2] Children share the same mother but not the same father.

^[3] DCFS argues that mother forfeited appellate review by failing to appear at the disposition hearing. The authority cited by DCFS does not support this claim.

^[4] DCFS also argues the childrens appointed counsel attempts to introduce new evidence in the record by claiming on appeal that the children are currently separated and wish to return to aunts custody. The childrens current placement has no bearing on our decision.