R.V. v. Super.
Filed 8/8/12 R.V. v. Super. Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
R.V.,
Petitioner,
v.
THE SUPERIOR COURT OF
RIVERSIDE COUNTY,
Respondent;
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Real
Party in Interest.
E056403
(Super.Ct.No.
INJ018658)
OPINION
ORIGINAL
PROCEEDINGS; petition for extraordinary
writ. Lawrence
Best, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Petition denied.
Denise
E. Shaw for Petitioner.
No
appearance for Respondent.
Pamela
J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel, for
Real Party in Interest.
R.V.
(Father) is the father of D.V., who was detained as a newborn in September
2011, and later declared a dependent child.
Father asks this Court to issue a writ directing the juvenile court
to: (1) vacate its May 29, 2012, order setting a
under Welfare and Institutions Code section 266.26;
preferential relative placement of D.V. with Father’s mother. Specifically, Father contends the juvenile
court erred at the six-month review hearing when it: (1) failed to allow Father a meaningful
opportunity to be heard on whether Riverside County Department of Public Social
Services (DPSS) had properly evaluated his mother’s home for preferential
relative placement; and (2) failed to perform its duty to determine
whether preferential relative placement was appropriate under section 361. As discussed post, we deny the writ petition.
and Procedure
On
September 15, 2011, the
DPSS filed a section 300 dependency petition regarding the newborn D.V.
his mother (Mother) tested positive for methamphetamines shortly after his birth,
and that Father and D.V.’s mother each have a history of substance abuse. Father also tested positive for
methamphetamines. D.V. was in the
neonatal intensive care unit for approximately 10 days for respiratory
distress, feeding difficulties and methamphetamine withdrawal. On September
27, 2011, both parents refused to submit to oral saliva drug
testing or to participate in Family Preservation Court. D.V. was placed in a confidential foster
home.
The
paternal grandmother contacted the social worker by telephone two days after
the social worker had made contact with Father and Mother in the hospital. The paternal grandmother asked to be
considered for relative placement. She
stated she was willing to have Father and Mother, along with another adult son
with a criminal history, leave her home in order to obtain placement of D.V.
On
October 3, 2011, the
paternal grandmother told the social worker that Father and Mother had moved
out of her home, and that she would also have her other adult son and her own
live-in significant other move from the home.
She told the social worker that she would be in contact when her home
was ready to be assessed for placement.
At
the jurisdiction and disposition hearing held on October 12, 2011, the juvenile court took jurisdiction of
D.V., removed him from his parents’ custody, continued existing visitation, and
ordered DPSS to provide both parents with reunification
services.
The
social worker initiated an assessment of paternal grandmother’s home on November 15, 2011, after the
paternal grandmother reported that she was living by herself and was ready to
be assessed for placement. On December
12, the assessment was closed at the paternal grandmother’s request because Father,
Mother and her adult son were all back in her home. Later in December, the paternal grandmother
asked to have the assessment reopened because she had made these adults leave
her home. The assessment was reassigned
on January 5, 2012. On January 17, the paternal grandmother told
the social worker that she was moving to another home. The referral had to be closed and reopened
once she had reestablished a residence.
The social worker submitted a third referral on January 31, 2012.
On March 8, the paternal grandmother told the social worker that she was
moving again and asked for an immediate referral for a new assessment. On that date the social worker submitted a
fourth referral. As of the status review
report dated April 9, 2012,
the assessment was still in progress.
D.V. was moved
from his original foster home to a concurrent planning home (a prospective
adoptive home) on March 15, 2012. Because of personal issues with the
prospective adoptive parents, D.V. was moved to another prospective adoptive
home on March 22. At that time, the
fourth and final assessment of the maternal grandmother’s home had just
recently begun.
As
of the May 16, 2012,
addendum to the report prepared for the six-month review hearing, the paternal
grandmother’s home had been approved for placement, with “some background
issues pending clearance before placement can occur.”
The
six-month review hearing was held on May
29, 2012. DPSS recommended
the juvenile court terminate reunification services to both parents and set a
section 366.26 hearing to consider a permanent plan of adoption. Mother was not present at the hearing. Father’s counsel told the court that Father
wished to contest the termination of services, “but also for the relative
placement regarding the paternal relatives.
The paternal grandmother is present here in the courtroom
. . . . She did file a
[section 388 petition asking that D.V. be placed with her].” The juvenile court replied that the petition
had been submitted but not yet filed, and that it could not guarantee it would
grant a hearing on the petition “because I don’t believe it furthers the best
interest of the child.”
Father’s
counsel asked to call the social worker as a witness. County counsel requested an offer of
proof: “Today’s hearing is regarding the
parents’ ability to continue receiving services. Anything else would be irrelevant.” Father’s counsel argued that, in addition to
reunification services, relative placement was also at issue, in that the
paternal grandmother had been pursuing placement of D.V. The juvenile court disagreed that relative
placement was relevant at that time. The
court denied the request to call the social worker adding, “The department has
repeatedly tried to assess her, and she has repeatedly not allowed that process
to happen. So I’m making my record
now. The department has made their
efforts for relative placement. It
hasn’t happened.”
The
juvenile court then terminated reunification services to both parents and set
the section 366.26 hearing for September
24, 2012. This writ petition
on behalf of Father followed.
1.
the Six-Month Hearing.
Father
argues the juvenile court erred at the six-month review hearing when it refused
to allow father to present evidence regarding the issue of relative
placement. Father had asked to call the
social worker to the stand regarding this issue.
The
relative placement preference set forth in subdivision (a) of section 361.3
reads as follows: “In any case in which
a child is removed from the physical custody of his or her parents pursuant to
Section 361, preferential consideration shall be given to a request by a
relative of the child for placement of the child with the relative.” Under section 361.3, subdivision (a)(8),
relatives desiring placement “shall be assessed” and “[t]he county social
worker shall document these efforts. . . .”
Father apparently wanted to question the social worker on the DPSS
efforts, or lack thereof, to assess the paternal grandmother for relative
placement under the preferential consideration described above.
Father
cites to In re James Q. (2000) 81
Cal.App.4th 244, for the proposition that a juvenile court must allow a parent
to present evidence and argument, i.e., “be heard,” at a contested review
hearing “without conditioning that right on a demand for an offer of
proof.” (Id. at p. 267) However,
this does not mean that a juvenile court must allow a parent to be heard at a
review hearing on any issue regarding
which the parent wishes to be heard, including the preference for relative
placement. Rather, this right of a
parent to be heard is limited to the issues to be decided at the review
hearing, that is, “the right to make his or her case . . . concerning
the parent’s progress in attempting to effectuate reunification with his or her
children.” (Id. at p. 265)
At the six-month
review hearing, the juvenile court is to determine whether to reunify the
children with their parents at that time, i.e., “the court shall order the return
of the child . . . unless the court finds, by a preponderance of the
evidence, that the return of the child . . . would create a
substantial risk of detriment to the safety, protection, or physical or
emotional well-being of the child.” (§
366.21, subd. (e).) The court also
determines whether reunification services are to be initiated, continued or
terminated. (
the child welfare agency has properly considered a relative’s home for
preferential placement.
Also, at each
half-yearly review hearing, as Father points out in his petition, the juvenile
court considers the safety of the child, along with a number of factors
including, “The continuing necessity for and appropriateness of the placement.” (§ 366, subd. (a)(1)(A).) Again, though, this does not mean that the
court must make findings regarding the preference for relative placement. Father points to no legal authority, and we
have been unable to find any, stating that the “appropriateness of the
placement” to be considered at the six-month hearing includes a review of the
child welfare agency’s efforts to place the child with a relative. Rather, the court is required to consider
whether the current placement is safe and appropriate for the child’s needs.
For these reasons,
the juvenile court did not deny Father his due process right to be heard on
whether DPSS had properly evaluated his mother for preferential relative
placement of D.V. because that issue is not relevant at the six-month review hearing.
2. There was Nothing for
the Juvenile Court to Review.
Father also argues
the juvenile court failed to perform its duty at the six-month hearing to
determine whether preferential relative placement with his mother was
appropriate. We agree with DPSS that the
issue was not ripe for review
name="_ftnref3" title="">[3] by the juvenile court because: (1) at the time of the six-month review, DPSS
had not yet decided whether the paternal grandmother could be approved for
placement; and (2) because the paternal grandmother’s indecisiveness had
caused DPSS to cancel the first three assessments of her home for placement,
her home was not yet available when D.V. was in need of a new placement. As shown in the statute below, the preference
for relative placement only applies at the dispositional hearing and at
subsequent times when the child is in need of a new placement.
Section 361.3
applies “[i]n any case in which a child is removed from the physical custody of
his or her parents pursuant to Section 361 . . . .” (§ 361.3, subd. (a).) At that time, “preferential consideration
shall be given to a request by a relative of the child for placement of the
child with the relative.” (§ 361.3,
subd. (a).) The relative preference
for placement is again at issue when a new placement is necessary. Section 361.3, subdivision (d) provides, in
relevant part: “Subsequent to the
hearing conducted pursuant to Section 358 [the dispositional hearing], whenever
a new placement of the child must be made, consideration for placement shall
again be given as described in this section to relatives who have not been
found to be unsuitable and who will fulfill the child’s reunification or
permanent plan requirements.” “The plain
language of subdivision (d) states that when a ‘new placement’ is required the
procedures ‘described in this section’ must be followed in the same way as when
there is an initial placement . . . .” (In re
Joseph T. (2008) 163 Cal.App.4th 787, 794.)
Here, the paternal
grandmother’s home had not yet been assessed and approved for placement at the
time of the dispositional hearing on October 12, 2011, nor again when D.V.
needed a new placement on March 12 and March 22, 2012. At the time of the six-month hearing, at
which Father contends the juvenile court should have reviewed relative
placement, D.V. was in a stable, preadoptive placement. In addition, although the paternal
grandmother’s physical home had been approved, there still remained “some
background issues pending clearance” that needed to be cleared up before the
paternal grandmother could be approved for placement, should D.V. be in need of
another placement. Thus, the trial court
was not at that time required to review the preference for relative placement
as to the paternal grandmother because DPSS had not yet made a final decision,
and so the issue was not ripe.
Disposition
The writ petition is
denied.
NOT TO
BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Welfare and Institutions Code unless otherwise indicated.
siblings, who have a different father.
They were later dismissed from the petition after their father obtained
sole physical custody and are not the subject of this writ petition.
