In re Ruby G.
Filed 4/11/13 In re Ruby G. CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re RUBY G., et al., a Person
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
CYNTHIA G.,
Defendant and Appellant.
D062856
(Super. Ct.
No. NJ014260 A-E)
APPEAL from
a judgment of the Superior Court
of
County, Michael J. Imhoff, Commissioner. Affirmed.
The sole
issue in this appeal is whether the juvenile court abused its discretion at the
disposition hearing by not placing the children with the maternal grandparents
and instead placing them with other relatives.
We find no abuse of discretion and thus affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In late
2009, when Cynthia G.'s five children were between eight months and 11 years of
age, the San Diego County Health and Human
Services Agency (the Agency) removed them from the home of the maternal
grandparents, where the family was living, and filed petitions on their
behalves under Welfare and Institutions Code section 300, subdivision (b).
the influence of heroin in the home, drug paraphernalia was found in the home,
and the parents were unable to provide regular care for the children.
The
Agency's jurisdictional and dispositional report states: "Law enforcement found methamphetamine
pipes, uncapped syringes and heroin in the residence. The home was 'filthy.' The health and safety of [the children] were
endangered by the parents' illicit substance use and close proximity of the
drug paraphernalia to the children. The
home was found to be unsanitary/unhealthy for the children. The father was determined to be under the
influence of heroin." He admitted
chronic drug use. Cynthia denied her own
drug use, but admitted smoking marijuana in November 2009. The parents were arrested for child cruelty,
and the father, who was on parole for drug and theft related convictions, faced
additional charges.
The court
sustained the petitions and continued the matter of disposition. Later, the court removed the children from
the father's custody and placed them with Cynthia.
In the
Agency's report for the six-month status hearing, it recommended the
termination of jurisdiction on the grounds the maternal grandparents' home had
been cleaned up, and Cynthia had completed parenting classes and was in
individual therapy. The father was in
and out of jail and admitted he had not participated in any of his case plan
services.
At the
hearing, the court declined to terminate jurisdiction on the ground Cynthia had
not met her treatment goals. A few
months later, however, the court did terminate jurisdiction.
In July
2012 the Agency again filed petitions on behalf of the five children under
section 300, subdivision (b). They
alleged the parents had a history of drug use and parental neglect; beginning
the preceding month they used drugs, specifically heroin, and had been arrested
for being under the influence[
name="_ftnref3" title="">[3]];
they were in possession of controlled substances and drug paraphernalia; and
the children lacked adequate supervision.
Four of the petitions contained another count, which alleged the family
home "was in a state of severe filthiness and insanitariness."
The Agency
reported that for two years the family had been living "in a dilapidated
trailer" on the property of a paternal relative and the children
"wander around the property without supervision and are being neglected." The youngest child was found in the middle of
a street crying, while Cynthia slept inside the trailer. Drugs and drug paraphernalia were found
inside the trailer, within reach of the children. The trailer smelled of urine and was filthy,
and there was no bed only a "small mattress that was stained, wet and very
flimsy."
The
evidence conflicted as to whether the children had been living in the trailer
or with the maternal grandparents. The
social worker concluded "it is apparent the children have been living
[primarily] in this trailer for over two years" with the exception of the
eldest child, a daughter.
The Agency
also reported, "[m]aternal grandparents are a strong support for the
family but seem to be used at parent's discretion. . . .
Maternal grandparents are aware of the parents' drug addiction and have failed
to take steps to ensure the children's safety." The Agency nonetheless initially detained the
children with the maternal grandparents.
In its
report for the jurisdictional and dispositional hearing, the Agency noted the
children had been removed from the maternal grandparents' home and placed with
the maternal great uncle and great aunt.
The report notes Cynthia, "stated the ultimatum that the parents
would, 'Give up our parental rights' and demanded that the maternal
grandparents [be] given custody of the minors." The social worker advised Cynthia that the
Agency had concerns about the suitability of the maternal grandparents to care
for the children and thus they would be allowed only supervised
visitation.
The report
also states Cynthia minimized "the severity and seriousness of the
parents' drug use and denies the issues of neglect that brought the family to
the Agency's attention, instead shifting blame and reasoning that the parents
were recently 'framed and stuff was planted in the trailer.' " The Agency again devised service plans for
the parents.
An addendum
report by the Agency states:
"[W]hen this worker confronted the maternal grandfather about
concerns that the maternal grandparents allowed the minors to be alone with the
parents while the parents were under the influence, the maternal grandfather
acknowledged that the parents have drug abuse issues and that the maternal
grandparents have left the minors with the parents unsupervised. [¶]
The maternal grandparents have had extensive experience with the
father's drug use and criminal history.
It is reported that the father, the mother and the minors have lived on
and off with the maternal grandparents since the father was fourteen. [¶]
The maternal grandparents have had firsthand experience with the
father's long drug and criminal history."
The report
elaborated as follows: "The
maternal grandparents have a long history of allowing the minors to be exposed
to the dangers of the father's and the mother's illegal drug use and drug
involvement in their own home and also during time the minors have recently
spent with parents. [¶] It appears that the maternal grandparents are
incapable of adequately protecting the minors from the dangers as a result of
the parents' drug use and involvement.
[¶] It also appears that the
maternal grandparents have knowingly allowed the minors to be placed in
dangerous situations in spite of the maternal grandparents' knowledge of the
mother and father's history of drug use and its negative effects upon the
parents' care of the minors and ensuring their safety and well-being. [¶] It
is of grave concern to the Agency that placement of the minors with the
maternal grandparents will result in another instance consistent with the
parents' pattern of exposing the minors to harm and danger as a result of the
parents' drug use and involvement."
In an
addendum report filed just before the hearing, the Agency advised that Cynthia
failed to appear for her first three scheduled drug tests. She appeared for the fourth test, and tested
presumptively positive for amphetamines, methamphetamines, opiates and
morphine. The Agency's opinion remained
the same concerning placement with the maternal grandparents. They had "recently disclosed that they
have seen the mother use at their own kitchen table in the past."
At the
jurisdictional and dispositional hearing, Cynthia testified that when this
proceeding commenced the children were living with the maternal grandparents
and not with the parents in the trailer.
She also denied that the drug test results were accurate. She said she was not currently using drugs
and accused the social worker of having "a personal
vendetta . . . against me and my husband."
children or parents.
As to
disposition, Cynthia testified she would like the children placed with the
maternal grandparents, because "[t]hat's where they always
lived." She said she would obey any
order denying her visitation at their home and she would not pressure them to
allow unsupervised visits.
The
maternal grandmother testified she had always provided for the children and
wanted them to live with her. When asked
whether she would abide by any order denying the parents visitation, she
responded, "I'm willing to obey, but the judge has the power to make them
comply as well." She was then
asked: "Would you be willing to
inform the court if you believe that either the mother or the father were under
the influence of drugs when they visited the children?" She responded, "That's a very hard
question because¾well,
I feel dumb, but to this day I don't know what a person who is under the
influence of drugs is supposed to be like."
The parties
stipulated that if called, the eldest child would testify that when the new
petitions were filed she and her siblings were living with the maternal
grandparents; the maternal grandparents did not condone the use of drugs, and
she believed that if the parents were using drugs, the maternal grandparents
would not allow contact; there were no secrets between her and the maternal
grandparents; she and her sibling felt safe with and wanted to live with the
maternal grandparents; and she had never seen her mother use drugs or, to her
knowledge, under the influence of drugs.
The social
worker explained why the Agency was opposed to placement with the maternal
grandparents, as stated in its reports.
The social worker recommended continued placement with the maternal
great uncle and great aunt, because they provided structure and consistency and
were able to "set boundaries and rules." In the social worker's opinion, the eldest
child liked living with the maternal grandparents because "she doesn't
have rules [there] and they don't ask where she's going and they're not
observing and keeping a schedule or strict structure."
The court
rejected Cynthia's testimony on where the children were living as not
credible. It assumed jurisdiction over
the children, removed custody of the children from their parents and continued
their placement with the maternal great uncle and great aunt. The court explained, "the maternal great
uncle is in a much more aware and proactive position to recognize people who
are not maintaining sobriety and to take the appropriate steps in a timely
fashion." The court ordered
services and liberal visitation for the parents.
DISCUSSION
name="_ftnref5" title="">[5]
Cynthia
contends the court abused its discretion by not placing the children with the
maternal grandparents. We readily disagree.
"The
purpose of the California dependency system is to provide maximum safety and
protection for dependent children, and to ensure their physical and emotional
well-being." (T.W. v. Superior Court (2012) 203 Cal.App.4th 30, 42-43.) "When a child is removed from parental
custody, the child's relatives are given preferential consideration for
placement, whenever possible." (
Cal.App.4th 1042, 1055; § 361.3, subd. (a).) "Before a child may be placed in a
relative's home, the social worker must visit the home to assess the
appropriateness of the placement."
(In re Esperanza C., supra, at
p. 1055; § 361.4, subd. (a).)
The abuse
of discretion standard applies "to the review on appeal of the juvenile
court's determination regarding relative placement pursuant to section
361.3. Such a
determination . . . involves primarily factual matters and
a judgment whether the ruling rests on a reasonable basis. . . . .
[E]valuating the factual basis for an exercise of discretion is similar to
analyzing the sufficiency of the evidence for the ruling. [Citations.]
Broad deference must be shown to the trial judge. The reviewing court should interfere only
" ' "if we find that under all the evidence, viewed most favorably in
support of the trial court's action, no
judge could reasonably have made the order that he [or she] did." '
" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, italics
added.)
In making
its assessment, "the court should consider a variety of factors. Among them [is] the ability of the relative
to exercise proper care of the child, to provide an adequate home, and to
facilitate reunification with the child's parents." (In re
Robert L., supra, 21 Cal.App.4th at p. 1068.)
Here, ample
evidence supports a finding the maternal grandparents are unable to exercise
proper care of the children, or provide an adequate home. The maternal grandparents knew about the
parents' drug use for many years and even witnessed both parents taking drugs
in the family home, yet they left the children with the parents
unsupervised. The first dependency case
commenced when the father was found under the influence of drugs in the
maternal grandparents' home, and drug paraphernalia littered the parents'
bedroom. The parents used drugs, and
possessed drug paraphernalia in the trailer they were living in when the second
proceeding commenced, and the children lived there or spent substantial time
there, yet the maternal grandparents did not intervene. Further, the maternal grandmother conceded
she could not tell when the parents were under the influence of drugs. The court reasonably found it unlikely the
maternal grandparents could protect the children from potential future drug use
by the parents, a substantial risk given their histories of drug abuse. Indeed, even without deference to the court's
ruling it borders on the absurd to claim abuse of discretion.
We also
disagree with Cynthia's assertion the placement with the maternal great uncle
and great aunt constitutes abuse of discretion.
The jurisdictional and dispositional report advised the court of the
change in placement, and that the maternal great uncle was in the process of
making necessary medical and dental appointments for the children. The children appeared appropriately bonded to
these relatives. Further, the maternal
great uncle and great aunt reported no problems in the home, they facilitated
parental visitation, and they were willing to provide the children with a
permanent home should the parents not reunify with them. The social worker also testified as to the
suitability of the maternal great uncle and great aunt, in that they provided
structure and consistency and were able to "set boundaries and
rules," and the children were relaxed in the home and thriving. The children's trial counsel agreed the
maternal great uncle and great aunt are suitable caretakers. The court noted it listened carefully to the
"very experienced" social worker's testimony and determined its
decision was in the children's best interests, the paramount consideration in
relative placement.
Moreover,
Cynthia did not argue the unsuitability of the maternal great uncle and great
aunt. Rather, she argued her preference
for the maternal grandparents. "
'As a general rule, a new theory may not be presented for the first time on
appeal unless it raises only a question of law and can be decided based on
undisputed facts.' " (
968.)
DISPOSITION
The
judgment is affirmed.
McCONNELL,
P. J.
WE CONCUR:
BENKE, J.
McINTYRE, J.
name="_ftn1" title="">[1] Further statutory references are also to the Welfare and
Institutions Code.
name="_ftn2" title="">[2] The father is not involved in this appeal.
