In re Juan Z. CA4/1 ( 2014 )

Filed 11/19/14 In re Juan Z. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JUAN Z. et al., Persons Coming
Under the Juvenile Court Law.
D065688
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. SJ11778A-E)
Plaintiff and Respondent,
v.
G.M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Kimberlee A.
Lagotta, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
Suzanne F. Evans, under appointment by the Court of Appeal, for Minors.
G.M. appeals the juvenile court's orders placing her five children with their
maternal great-uncle, Rafael M. G.M. also appeals the juvenile court's findings that
reasonable services had been provided to her by the time of the six-month review
hearing. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
G.M. has a long history of involvement with child protective services. The San
Diego County Health and Human Services Agency (the Agency) first filed petitions
under Welfare and Institutions Code section 300, subdivision (a), (all statutory references
are to the Welfare and Institutions Code) on behalf of G.M.'s oldest sons, Juan Z. and
David Z., in March, 2007. The petitions were prompted by reports that G.M. stated she
wanted to kill the children and was physically and verbally abusive to the boys, ages two
and three at the time.
As a result, the juvenile court removed Juan and David from G.M.'s custody. The
boys were placed in foster care and G.M. was provided with reunification services. At
some time prior to this initial dependency Rafael and his wife, Emma M., obtained legal
guardianship of the boys. During the guardianship, which began shortly after David's
birth and lasted approximately two years, the boys lived with and were cared for by
Rafael and Emma in Hemet, California.
During this dependency proceeding Rafael and Emma obtained de facto parent
status. They also sought placement of Juan and David with them in Hemet. The Agency,
however, wanted the children placed in San Diego, where G.M. lived, to better facilitate
reunification. On the Agency's recommendation, the juvenile court placed the boys with
a paternal cousin in San Diego. Rafael and Emma took them for weekend visits every
other week and also expressed their willingness to adopt the minors if G.M. failed in her
reunification efforts.
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In July 2007 G.M. gave birth to a daughter, Rosie Z., who was also removed from
G.M.'s custody and placed in foster care. Shortly after Rosie's birth, the paternal relatives
caring for Juan and David asked for the boys to be removed from their home because of
G.M.'s threatening and inappropriate behavior. The minors were then placed in a foster
home while G.M. worked towards reunification. By the time of the 18-month review
hearing in late 2008, the Agency recommended terminating G.M.'s parental rights and
setting a permanency planning hearing. G.M. contested termination of her parental rights
and the juvenile court set trial for February 2009.
Just before the trial, the Agency reversed course and recommended the boys be
placed with G.M., that the family receive maintenance services and that the case be
transferred to Orange County, where G.M. was then residing. At trial, the juvenile court
continued the matter and G.M. began overnight visits with the boys. In April 2009 the
court placed the three children with G.M., ordered family maintenance services and two
supervised visits per month with Rafael and Emma, and transferred the case to Orange
County.
The family remained out of the child protective system until June 20, 2013, when
Riverside County Child Protective Services (Riverside CPS) filed petitions under section
300, subdivisions (a), (b) and (g), on behalf of Juan, David, and Rosie, who were ages
nine, eight and five, respectively, at the time. Petitions were also filed on behalf of the
children's two new siblings, A.Z. (two years old) and A.M. (four months) under section
300, subdivisions (b), (g) and (j). A.Z. has the same biological father as Juan, David and
Rosie. Neither their father nor A.M.'s father is a party to this appeal.
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The petitions alleged G.M. physically abused the three older children, that G.M.
had a history of substance abuse and admitted to recent methamphetamine use, and that
the two fathers failed to provide for or protect the minors. At the detention hearing, the
juvenile court removed the children from G.M.'s custody, detained them in out-of-home
care and ordered supervised visitation for G.M. The children were placed into two
separate foster homes. Juan, David and Rosie were placed together in one home and the
two younger children in another. Rafael and Emma came forward at the outset of the
proceeding to express their willingness to care for the minors and Riverside CPS began
the process of approving them for placement.
In advance of the jurisdiction and disposition hearing, G.M. told her social worker
that she wanted to move to San Diego where she had a better support system. Riverside
CPS then submitted its recommendation to the court that the case be transferred to San
Diego. G.M. also told the Riverside CPS social worker she did not want the five minors
placed with Rafael and Emma. She believed they had manipulated her into giving them a
guardianship of Juan and David before the first dependency proceeding. G.M. requested
the children be placed in the home of her sister, Johanna M., in San Diego. Riverside
CPS began evaluating Johanna for placement.
At the jurisdiction and disposition hearing, the juvenile court in Riverside adopted
Riverside CPS's recommendation and removed the children from G.M.'s custody, ordered
reunification services and transferred the case to San Diego County. The juvenile court
in San Diego accepted the case and the Agency began assessment of Johanna for
placement of the children. The Agency also conducted interviews of the three oldest
children, G.M. and Rafael, and discovered all five minors and G.M. had lived with Rafael
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and Emma for the two years immediately preceding the dependency. Juan, David and
Rosie told the Agency's social worked they wanted to live with Rafael and Emma.
Rafael told the Agency he and Emma were willing to have all five minors placed with
them and to adopt them if G.M. was unable to reunify. In October 2013 the juvenile
court ordered the Agency to assess Rafael and Emma's home for placement. The court
also ordered weekly visitation for G.M. and permitted the Agency to place the minors
with an approved relative with the concurrence of minors' counsel.
In December, minors' counsel requested a special hearing to limit visitation with
Johanna and G.M. According to the information filed by the minors' counsel, the
Agency's social worker forced Juan and David to visit Johanna's home against their
wishes. At the time of the special hearing in late December a weeklong visit at Johanna's
home was underway. At the hearing, minors' counsel told the court Juan, David and
Rosie were fearful of Johanna and her husband because they had seen them hit their own
children. The Agency opposed the request to limit visitation. The Agency's social
worker had been to Johanna's home during the minors' visits and indicated she had not
seen anything of concern. The court granted the minors' request to terminate the visit.
Additional concerns about Johanna's home were raised shortly thereafter when A.Z. and
A.M. returned to their foster home from a 10-day visit at Johanna's house with scabies.
In its report for the six-month review hearing in February 2014, the Agency
recommended additional reunification services for G.M. and continued placement of the
minors in the two foster homes in Riverside County. During the review period, the
Agency approved Johanna for placement of the five children, but minors' counsel did not
provide its concurrence to the placement. The Agency also approved Rafael and Emma's
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home for placement. As a result of this approval, minors' counsel filed a section 388
petition for modification seeking the placement of all five minors with Rafael and Emma.
At the six-month review hearing, G.M. requested a trial on the issue of placement. She
opposed the minors' petition to be placed with Rafael and Emma, and instead wanted the
children returned to her care or placed with Johanna. The court set a trial on the issue of
placement for March and ordered visitation with Rafael and Emma in the interim period.
Before trial, G.M. withdrew her request for placement and sought only continued
reunification services and unsupervised visitation. At trial, the court heard the testimony
of G.M., Juan, David, Rafael, Johanna and the Agency's social worker, Lidia Briano.
Juan and David testified that during the time they lived with Rafael and Emma with their
mother they were primarily taken care of by Rafael and Emma. Both also testified they
wanted to live with Rafael and Emma. Juan and David testified they did not like visiting
Johanna's home and feared Johanna would hit them because they had witnessed her
hitting her own children.
Rafael testified Juan and David had lived with him and Emma under a
guardianship from 2005 to 2007 and all five minors lived in their home with G.M. from
2011 to 2013. Rafael testified he and Emma took primary care of the children during
these periods and that G.M. often left for weeks or months at a time. Rafael testified he
and Emma were willing to provide long-term care for all five minors, but also supported
G.M.'s reunification efforts.
Johanna testified she was also willing to provide care for all five minors and that
she could facilitate frequent visitation for G.M., who by this time was living in Tijuana.
She stated the children had been to her home every other weekend for visits. Johanna
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believed the visits were positive and testified none of the minors had ever complained
about being in her home. She denied that she or her husband physically abused their two
children. Johanna also testified that her husband was in the military and had recently
received orders to move to Washington State. Johanna was in the process of applying for
jobs in Washington and planned to move the family there as soon as the end of the
month, but no later than July.
Briano testified that G.M. was willing to relocate to Washington if the children
were placed with Johanna so that she could continue her reunification efforts there.
Briano also stated G.M. supported Johanna gaining permanent custody of the minors if
she failed to reunify with the minors. Briano indicated the Agency supported placement
of the children with Johanna eventually but, because it had learned of Johanna's plans to
move, wanted the children to remain in their current foster homes until Johanna's plans
were settled. The Agency did not support placement of the children with Rafael and
Emma in Hemet because Briano felt continued placement outside the county would
hinder G.M.'s reunification efforts. G.M. testified she did not want the minors placed
with Rafael and Emma because Rafael undermined her relationship with them.
At the conclusion of the hearing the juvenile court found there was a change of
circumstances based on the approval of Rafael and Emma's home for the placement of the
five minors. The court then found that, on balance, it was in the best interests of all five
minors to be placed in one home together with Rafael and Emma. The court
acknowledged that keeping the children in Riverside County presented an inconvenience
for G.M., but concluded placement there did not improperly damage G.M.'s reunification
efforts, particularly in light of the fact that Rafael expressed commitment to supporting
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G.M.'s reunification efforts, the minors currently resided in Riverside County, and the
uncertainty surrounding placement with Johanna in San Diego. The court also found the
Agency had provided G.M. with reasonable services. The court ordered all five minors
placed with Rafael and Emma, and ordered two unsupervised visits and two phone calls
each week for G.M. The court also ordered that placement with Rafael and Emma was
contingent on Rafael's facilitation of G.M.'s reunification efforts and the visitation
ordered by the court.
DISCUSSION
I
G.M. asserts the court abused its discretion by granting the minors' section 388
petition seeking placement with Rafael and Emma. She contends there was no change in
circumstances justifying placement of the children with Rafael and Emma and that
placement outside San Diego County was not in the best interests of the minors.
A
Under section 388, a party may petition the court to change, modify or set aside a
previous court order. The petitioning party has the burden of showing, by a
preponderance of the evidence, there is a change of circumstances or new evidence, and
the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8
Cal.4th 398, 415-416.) Whether a previous court order should be modified and a change
would be in the child's best interests are questions within the sound discretion of the
juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999) 70
Cal.App.4th 38, 47.) The order will not be disturbed on appeal unless the court has
exceeded the limits of legal discretion by making an arbitrary, capricious or patently
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absurd determination. When two or more inferences reasonably can be deduced from the
facts, we have no authority to reweigh the evidence or substitute our decision for that of
the juvenile court. (In re Stephanie M., at pp. 318-319.)
B
G.M. has not shown the court's placement determination constituted an abuse of
discretion. She argues there was no changed circumstance because Rafael and Emma
were willing to have the minors placed with them from the outset of the case. This
argument is without merit. The changed circumstance was not Rafael and Emma's
willingness to have the minors placed with them, but the Agency's recent approval of
them for placement.
With respect to the court's best interest finding, G.M. argues placing the children
in Rafael and Emma's home was not in the minors' best interests because it would thwart
her efforts at reunification. At the time of the six-month review hearing, however, the
minors were already residing outside San Diego County and there was no viable
alternative placement available in San Diego. The Agency supported placement of the
minors in San Diego, but at the time of the hearing the only home approved for
placement there was Johanna's. Because Johanna indicated she would be moving to
Washington in the near future, and it was unclear whether G.M. would be moving as
well, the Agency did not support placement in Johanna's home until those plans were
more concrete. Given these circumstances the juvenile court's decision to place the five
minors together with Rafael and Emma, who were committed to adopting all five
children should G.M. fail in her reunification efforts rather than keeping the minors in
two separate foster homes in Riverside, did not constitute an abuse of discretion.
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II
G.M. also argues the court erred by finding reasonable services had been provided
because she received inadequate visitation with the minors.
A
Whenever a minor is removed from parental custody, the court must order
reunification services for the parents. (§ 361.5.) The purpose of reunification services is
to remedy the problems that led to the minor's removal. (In re Ronell A. (1996) 44
Cal.App.4th 1352, 1362; M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 173.)
Services are considered reasonable if the child welfare agency has " 'identified the
problems leading to the loss of custody, offered services designed to remedy those
problems, maintained reasonable contact with the parents during the course of the service
plan, and made reasonable efforts to assist the parents . . . .' " (In re Alvin R. (2003) 108
Cal.App.4th 962, 972.)
"In almost all cases it will be true that more services could have been provided
more frequently and that the services provided were imperfect. The standard is not
whether the services provided were the best that might be provided in an ideal world, but
whether the services were reasonable under the circumstances." (In re Misako R (1991) 2
Cal.App.4th 538, 547.) We review the court's findings as to the adequacy of a
reunification plan and the reasonableness of the Agency's efforts for substantial evidence.
(In re Julie M. (1999) 69 Cal.App.4th 41, 46; Angela S. v. Superior Court (1995) 36
Cal.App.4th 758, 762.)
B
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Contrary to G.M.'s assertions, substantial evidence supported the juvenile court's
finding that the Agency provided her with adequate visitation. G.M. complains she "did
not have visitation with her children for roughly two months - September and October
2013." During this time, however, the case was being transitioned to San Diego from
Riverside as a result of G.M.'s decision to leave Riverside. As discussed above, the
dependency proceeding originated in June 2013 in Riverside County, where G.M. and the
minors lived at the time. From the inception of the case until August 2013 G.M. had
supervised visitation with the minors twice each week.
Once G.M. reported in October she was unable to visit the minors in Riverside
because she did not have transportation, the court ordered weekly visitation for G.M. with
the Agency's assistance. Beginning in October, the Agency facilitated visitation in San
Diego through the minors' foster parents, who brought them to Johanna's home every
other weekend and on holidays, and where G.M. visited the minors regularly.
Additionally, when counsel for Juan, David and Rosie requested their visitation with
Johanna be limited, possibly to the detriment of G.M.'s ability to see them, the Agency
opposed the request. At the time of the review hearing, the Agency supported placement
of the minors in San Diego to facilitate G.M.'s reunification efforts, specifically her
ability to visit them more frequently.
Further, even if the Agency could have done more to facilitate visitation in the two
months immediately following her move to San Diego, the challenged order provided
G.M. with six more months of reunification services, including twice weekly
unsupervised visits and phone calls. The court's orders also specifically conditioned the
placement of the children with Rafael and Emma on their assistance in facilitating this
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visitation. Under the circumstances of this case, sufficient evidence supported the court's
finding that reasonable services, including adequate visitation, were provided to G.M.
(See Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969 ["The standard is not
whether the services provided were the best that might have been provided, but whether
they were reasonable under the circumstances"].)
DISPOSITION
The orders are affirmed.
McINTYRE, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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