Opinion
D072957
02-22-2018
In re N.C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. C.B. et al., Defendants and Appellants.
Judith Klein for Defendants and Appellants. Thomas E. Montgomery, County Counsel, John E. Phillips, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent. Patricia K. Saucier, under appointment by the Court of Appeal, for Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. NJ15253) APPEAL from an order of the Superior Court of San Diego County, Michael Imhoff, Commissioner. Affirmed. Judith Klein for Defendants and Appellants. Thomas E. Montgomery, County Counsel, John E. Phillips, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent. Patricia K. Saucier, under appointment by the Court of Appeal, for Minor.
Maternal grandparents J.B. and C.B. appeal the juvenile court's order denying their relative placement request under Welfare and Institutions Code section 361.3 to obtain custody of their grandson, N.C. J.B. and C.B. assert insufficient evidence supports the court's stated reasons for denying placement and, therefore, its order constitutes an abuse of discretion. Respondent San Diego County Health and Human Services Agency (Agency), which also supported placement with J.B. and C.B. in the court below, likewise contends the juvenile court's order constitutes an abuse of discretion. Minor's appellate counsel responds that the juvenile court's finding that N.C.'s continued placement with the de facto parents was in his best interest and was supported by the evidence. We agree and, accordingly, affirm the court's order.
Subsequent statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In late September 2016, seven-week-old N.C. was taken to the hospital by ambulance after his parents called 911 because N.C. was in respiratory distress. Medical staff discovered numerous serious injuries in various stages of healing and suspected N.C. was being abused by his parents. Physicians diagnosed N.C. with abusive head trauma, including subdural hematomas and retinal hemorrhages. As a result, N.C. was taken into protective custody and the Agency filed a petition on his behalf under section 300, subdivision (e) alleging N.C. had "suffered severe physical abuse by a parent . . . ."
Upon his release from the hospital, the Agency detained N.C. in foster care and began contacting family members about placement. N.C.'s paternal aunt A.L. and her husband K.L., who lived in Indiana where both parents grew up and both sets of grandparents also resided, indicated they wanted to be considered for placement. N.C.'s parents both supported placement with A.L. and K.L. The Agency also contacted J.B. and C.B. J.B. told the Agency he had spoken with N.C.'s mother, H.C., who told him she preferred N.C. be placed with A.L. J.B., however, told the Agency that if A.L. could not take N.C., he and C.B. wanted placement of the minor. In its report for the jurisdiction and disposition hearing, the Agency reported it was evaluating A.L. and K.L. for placement. The Agency also reported that its child abuse expert concluded N.C. was abused by his parents and that it recommended denial of reunification services for both parents under section 361.5, subdivision (b)(5).
Because of the severity of his injuries, N.C. required intensive medical care in the months after he was taken into protective custody, including emergency surgery to relieve a buildup of fluid in his head caused by the earlier trauma. N.C.'s parents largely denied abusing him, though his father did admit that he might have shaken the infant in frustration, and contested the Agency's recommendation that they be denied reunification services. After the contested jurisdiction and disposition hearing in January 2017, the juvenile court found the allegations in the section 300, subdivision (e) petition true and denied reunification services. The court continued N.C.'s placement with his foster family, but gave the Agency discretion to place N.C. with a family member on notice to all parties. The court also set a permanency planning hearing under section 366.26 for May 2017.
Six weeks after the jurisdiction and disposition ruling, N.C.'s foster family filed a request to become de facto parents. In the same time frame, sometime between January and March, A.L. and K.L. were approved for placement, but decided they could not meet N.C.'s needs and declined custody. In March, J.B. and C.B. retained counsel and filed a request to expedite placement of N.C. with them. The juvenile court ordered the Agency to initiate an Interstate Compact on the Placement of Children (ICPC) evaluation for the maternal grandparents and two weeks later granted the Agency's request to expedite the ICPC.
In May, the paternal grandmother (who also lived in Indiana) sent a text message to the maternal grandmother stating that N.C.'s foster parents and N.C.'s attorney told A.L. and K.L they would never obtain custody because N.C.'s medical needs were too great and he had bonded with the foster parents.
In April, the Agency reported that N.C. remained in the care of his foster family, who wanted to adopt him. The Agency also reported that it was in contact with the maternal grandparents and that they were committed to obtaining custody of N.C. The grandparents had requested video chat visitation with N.C. and identified a pediatric neurologist for N.C. near their home.
In advance of the permanency planning hearing, the Agency requested and received a 90-day continuance of the hearing to allow additional time for the completion of the ICPC for J.B. and C.B. After the ICPC was completed, the Agency filed an updated report for the permanency planning hearing recommending N.C. be placed with his maternal grandparents. The grandparents' ICPC was positive and they provided documentation to the Agency showing they could meet N.C.'s medical needs, including proof of his health insurance eligibility and medical care providers for N.C. near their home in Indiana.
The Agency also investigated H.C.'s allegations that C.B. was not a suitable caregiver and concluded the allegations were false.
Over the course of the dependency proceedings, N.C. thrived in his foster home. At nine months old, his court-appointed special advocate described N.C. as a happy, well-adjusted baby. His medical team reported that his development was on track and that he was recovering from the trauma he suffered in his first weeks of life. N.C. continued to be closely monitored by various doctors, including a neurologist, neurosurgeon and ophthalmologist. Beginning in March 2017, N.C. video chatted with his maternal grandparents each Saturday. The maternal grandparents also sent voice recordings to N.C.'s social worker, who requested that N.C.'s foster parents play the recordings for N.C. every day. The maternal grandparents also flew to San Diego in May and had two supervised visits with N.C. that went well. The social worker reported that N.C. responded positively to his grandparents and was calm and happy in their care.
A hearing on J.B. and C.B.'s request for placement under section 361.3 took place in August 2017, immediately followed by the permanency planning hearing. The maternal grandparents and the de facto parents were represented by counsel. The de facto parents' attorney argued that the maternal grandparents' request for placement should be denied under section 388 because there had been no change of circumstances and it would not be in the minor's best interest to be moved. In the alternative, she argued that under section 361.3, N.C. should remain with the de facto parents and that the court should apply the caretaker preference contained in section 366.26, subdivision (k) to keep N.C. in that placement. N.C.'s attorney, and both parents' attorneys, joined the de facto parents' argument. The maternal grandparents' attorney and the Agency argued that placement with the grandparents was appropriate.
The court heard the testimony of the family's social worker, J.B., C.B., H.C., and one of N.C.'s foster parents. After the conclusion of testimony and closing arguments on the maternal grandparents' request for placement, the juvenile court ruled that its placement decision was governed by section 361.3 and that under the factors set forth in that statute continued placement with the foster parents was in N.C.'s best interest. The court painstakingly discussed each placement factor, then stated that its decision was based primarily on two issues: (1) the uncertainty of whether N.C. would have insurance coverage for the high level of medical care he was receiving if placed with the maternal grandparents, and (2) preventing the disruption of medical care that would necessarily occur if N.C. were moved to Indiana. The court also stated that if it was required to evaluate the grandparents' request for placement under section 388, it would find there were changed circumstances because of the approval of the ICPC and that it was in N.C.'s best interest to remain in the care of his foster parents.
Thereafter, the parents' attorneys indicated that neither parent contested the termination of their parental rights. The court found by clear and convincing evidence that N.C. was both specifically and generally adoptable, terminated parental rights, and set a post-permanency planning hearing. The maternal grandparents timely appealed.
DISCUSSION
I
"When a child is removed from his or her parents' custody under section 361, the juvenile court places the care, custody, control, and conduct of the child under the social worker's supervision. (§ 361.2, subd. (e).) The social worker may place the child in several locations, including the approved home of a relative. (§ 361.2, subd. (e)(1)-(8).)" (Alicia B. v. Superior Court of San Diego County (2004) 116 Cal.App.4th 856, 862-863 (Alicia B.).) " 'Section 361.3 gives "preferential consideration" to a relative request for placement, which means "that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).)' (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033 . . . .) The intent of the Legislature is 'that relatives be assessed and considered favorably, subject to the juvenile court's consideration of the suitability of the relative's home and the best interests of the child.' " (In re Isabella G. (2016) 246 Cal.App.4th 708, 719 (Isabella G.), italics omitted.)
In considering whether to place the child with a relative, "[t]he Agency is required to assess those relatives seeking placement according to the factors described in section 361.3, subdivision (a) (placement factors)[] and must document those efforts in the social study prepared under section 358.1." (Isabella G., supra, 246 Cal.App.4th at p. 719, italics omitted.) When the juvenile court considers "whether to place the child with a relative, [it] must apply the placement factors, and other relevant factors, and exercise its independent judgment concerning the relative's request for placement." (Ibid.) "The linchpin of a section 361.3 analysis is whether placement with a relative is in the best interests of the minor." (Alicia B., supra, 116 Cal.App.4th at pp. 862-863.)
These factors include, in pertinent part: " '(1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. [¶] . . . [¶] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [¶] (6) The 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. [¶] (7) The 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. [¶] (D) Protect the child from his or her parents. [¶] (E) Facilitate court-ordered reunification efforts with the parents. [¶] (F) Facilitate visitation with the child's other relatives. [¶] (G) Facilitate implementation of all elements of the case plan. [¶] (H) Provide legal permanence for the child if reunification fails. [¶] . . . [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8) The safety of the relative's home.' " (§ 361.3, subd. (a).)
In addition, the relative preference applies at both the dispositional phase when a child is removed from parental custody, and if "a new placement must be made" thereafter. (§ 361.3, subds. (a), (d).) A relative may seek placement under section 361.3 after the dispositional phase by filing a section 388 petition. (Isabella G., supra, 246 Cal.App.4th at p. 722, fn. 11.) Even if the request is made during the reunification period, however, the juvenile court assesses the request under the factors set forth in section 361.3, subdivision (a), not under the generalized best interest standard found in section 388. (Isabella G., at p. 722, fn. 11.) Preferential consideration under section 361.3, however, "does not create an evidentiary presumption in favor of a relative, but merely places the relative at the head of the line when the court is determining placement in the child's best interests." (In re Sarah S. (1996) 43 Cal.App.4th 274, 286; see In re Stephanie M. (1994) 7 Cal.4th 295, 321 ["the court is not to presume that a child should be placed with a relative, but is to determine whether such a placement is appropriate, taking into account the suitability of the relative's home and the best interest of the child"]; In re R.T. (2015) 232 Cal.App.4th 1284, 1295 (R.T.) [same].)
In Isabella G., we explained that "[i]f an assessment of a relative's home is pending at the time of the dispositional hearing, the juvenile court should proceed with the dispositional hearing and set a hearing under section 361.3 to review the relative placement request as soon as practicable. (See § 361.3, subd. (b).) At a review hearing, if any relatives have come forward seeking the child's placement, the court may also set a section 361.3 hearing pending completion of the relative's home assessment. (§§ 361.21, 361.22.) Notwithstanding this procedure, a relative seeking placement of the child is entitled to file a petition under section 388 to trigger a relative placement assessment and/or request a hearing under section 361.3. However, in determining whether the child should be placed with the relative, the juvenile court should not substitute the generalized best interest showing required under section 388 for its independent assessment of the relevant statutory criteria under section 361.3." (Isabella G., supra, 246 Cal.App.4th at p. 722, fn. 11.) --------
We review the court's placement orders under section 361.3 under the abuse of discretion standard of review; the court is given wide discretion and its determination will not be disturbed absent a manifest showing of abuse. (In re Sarah S., supra, 43 Cal.App.4th at p. 286; see In re Stephanie M., supra, 7 Cal.4th at p. 318 ["when a court has made a custody determination in a dependency proceeding, ' "a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." ' "].) "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 did." [Citations.]' " (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067; see also ibid. ["evaluating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling"].)
II
As stated, J.B. and C.B., and the Agency, assert there was insufficient evidence to support the trial court's finding that placing N.C. with J.B. and C.B. was not in the minor's best interest. They also argue that the evidence relied on by the juvenile court concerning the availability of medical insurance for N.C. was not credible. With respect to the court's statements concerning insurance, we agree with J.B. and C.B. and the Agency. The record shows that the hospital in Indiana where most of the services for N.C. would be provided accepted N.C.'s existing medical insurance and that the medical insurance available to the maternal grandparents through J.B.'s employment would also cover N.C. Thus, the court's finding concerning medical insurance was not a proper basis for its conclusion. (See In re Robert L., supra, 21 Cal.App.4th at p. 1067.)
The court's finding, however, that interrupting N.C.'s care in order to move him to Indiana was contrary to N.C.'s best interest was sufficiently supported by the evidence. N.C. was taken into protective custody because of severe injuries caused by physical abuse he suffered in his parents' care. The record also established that N.C.'s injuries commonly resulted in lifelong disability. Indeed, by the time of the hearing on J.B. and C.B.'s request for placement, N.C. remained under the care of six different medical specialists and was scheduled to begin visits with three additional medical service providers in the near term.
While N.C.'s health had steadily improved since his injuries were discovered, the evidence established the steady continuation of medical care was important to his continued well-being. Because of the severity of the injuries N.C. suffered in the first weeks of his life, he was not a typical one year old. Contrary to the Agency's assertion that transitioning N.C. to Indiana would not be harmful, the evidence before the court showed N.C. was a medically fragile child and that his continued physical improvement required the continuation of adequate care. We agree with minor's counsel that these facts formed a proper basis for the court's determination that moving him to Indiana was contrary to N.C.'s best interest.
Critically, we cannot reassess these factual findings. Rather, our role as the reviewing court is limited. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319 [" 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' "].) As the Agency acknowledges, we cannot second-guess the juvenile court's factual findings or its credibility judgments. (In re Mickel O. (2011) 197 Cal.App.4th 586, 621.) While the evidence before the court might also have supported a different outcome, the evidence concerning N.C.'s medical condition supports the result reached by the court. Accordingly, the juvenile court's decision to deny J.B. and C.B.'s request for placement was not an abuse of discretion.
J.B. and C.B.'s reliance on R.T., supra, 232 Cal.App.4th 1284 and Isabella G., supra, 246 Cal.App.4th 708 to support their contention that the juvenile court abused its discretion is misplaced. R.T. involved the willful refusal by the child protective services agency to consider relatives for placement, unreasonable delay by the juvenile court in deciding the relatives' motion seeking placement, and the juvenile court's legally incorrect conclusion that section 361.3 did not apply because the dispositional phase of the case had passed. (R.T., at pp. 1292, 1296-1297, 1300.) In response to the agency's claim that section 361.3 was inapplicable, the Court of Appeal concluded the statute did apply because the relatives had invoked the statutory preference before the dispositional hearing. (R.T., at p. 1300.) R.T. held that the juvenile court should have directed "the agency to evaluate the relatives for placement under the relevant standards (§ 361.3, subd. (a)(1)-(8)) and, upon receipt of the evaluation and the agency's placement recommendation, exercised its independent judgment to consider if relative placement was appropriate." (Ibid.) The juvenile court's failure to do so was legal error. (Ibid.) No such error occurred in this case.
Isabella G. is similarly distinguishable. There, this court held that when the relatives requested placement before the dispositional phase of the case, the court's consideration of their subsequent request under section 388 rather than section 361.3 was reversible error. (Isabella G., supra, 246 Cal.App.4th at p. 723.) Unlike in R.T. and Isabella G., the Agency here considered the maternal grandparents request for placement and obtained an ICPC in a timely fashion. After the Agency recommended placement with the maternal grandparents, the juvenile court properly evaluated the placement options under the factors set forth in section 361.3. The court then exercised its lawful, independent discretion to conclude that a change in N.C.'s placement was not in his best interest.
Contrary to the Agency's assertion, the court did not apply "a generalized best interest test to the issue of relative placement" or "focus on the history and quality of the child's relationship with his or her current caregivers." Rather, the juvenile court carefully considered each factor it was required to assess under section 361.3. While the court did not reach the same conclusion concerning placement as the Agency, its determination not to change N.C.'s placement was an appropriate exercise of its discretion. There is no question that the passage of time impacted the decision the court was required to make in this case and made that decision more difficult. Unlike the postponement of the consideration of the relatives' request for placement in R.T. and Isabella G., however, the decision here was not unfairly delayed by inaction or malfeasance on the part of the Agency or juvenile court, nor was it made under an improper standard. Rather, the juvenile court's findings were adequately supported by the record before it.
DISPOSITION
The order is affirmed.
McCONNELL, P. J. WE CONCUR: HUFFMAN, J. AARON, J.