In re Brianna S. ( 2021 )

Filed 1/28/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re BRIANNA S. et al., B301802
Persons Coming Under the
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK88481D-F)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
MERCEDES G.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Nichelle L. Blackwell, Judge Pro Tempore. Affirmed.
Amy Z. Tobin, under appointment by the Court of Appeal,
for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Stephen D. Watson, Deputy County
Counsel, for Plaintiff and Respondent.
******
A juvenile court places a child who has been declared a
dependent with a relative and declares the relative to be a “de
facto parent.” When the social services agency later seeks to
remove the child from the relative, which set of procedures
should the juvenile court follow—those set forth in Welfare and
Institutions Code section 385 or those set forth in section 387?1
We conclude that section 387 governs. Although the juvenile
court followed the incorrect procedures in this case, its error was
not prejudicial. Accordingly, we affirm the removal orders in this
case.
FACTS AND PROCEDURAL BACKGROUND
I. The Family
Melanie M. (mother) and Bobby S. (father) have six
children, three of whom are at issue in this case—12-year-old
Brianna, eight-year-old Amanda, and seven-year-old Nature.
Mercedes G. is the maternal grandmother (grandmother).
II. Juvenile Court’s Assertion of Dependency
Jurisdiction
The juvenile court declared all three children to be
dependents based on the parents’ domestic violence and
substance abuse. Brianna has been a dependent since September
2011; Amanda, since October 2012; and Nature, since June 2016.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
III. Grandmother Becomes a De Facto Parent and Takes
Custody of Children
In May 2015, grandmother asked the juvenile court to
declare her a de facto parent. The court granted her request in
July 2015.
The juvenile court placed all three children with
grandmother in July 2016.2
IV. Grandmother’s Care of Children
While in grandmother’s care, the mental or emotional
health of all three children has deteriorated.
Brianna now “isolates herself” and is “very disrespectful” to
others, often using profanity.
Amanda has developed severe behavioral issues. In 2017,
Amanda began acting out by throwing tantrums, cursing, and
hitting her little sister as well as other kids at her school. Her
behavior has since escalated. By 2019, Amanda’s tantrums
graduated not only to hitting, but also to throwing objects and
tearing things off of walls. Amanda had also tried to kill the
family pets, including through poisoning their drinking water. In
nearly all her interactions, Amanda grew to be “defiant” and
“uncontrollable.” In mid-July 2019, Amanda’s physically
aggressive conduct prompted grandmother to check Amanda into
UCLA’s mental health facility. Amanda was forced to remain
there for two weeks because grandmother, for nearly a week,
refused to authorize UCLA to administer the medications
Amanda needed. In August and again in September 2019,
grandmother unsuccessfully tried to check Amanda back into
2 The juvenile court for a time issued an order prohibiting
the children from being removed from grandmother’s custody, but
later rescinded that order.
3
mental health facilities. Grandmother repeatedly threatened
Amanda with “be[ing] institutionalized.” At least one
psychologist opined that grandmother was the root cause of
Amanda’s behavioral issues.
Nature started destroying property by scratching tables
and putting holes in walls. Nature also displayed sexualized
behaviors.
Possibly due to her own mental health issues, grandmother
ignored the children’s deteriorating mental and emotional health.
Both Amanda and Nature needed counseling services, but
grandmother never sought out those services. Indeed,
grandmother rebuffed the Los Angeles County Department of
Children and Family Services’ (the Department) offers to assist:
Grandmother was “extremely difficult to work with,” regularly
denying access to her home and yelling at Department workers.
Grandmother was more generally neglectful as well, often times
getting the children to school late, leaving the children without
supervision, or dropping them off with other relatives without
any plan to retrieve them.
Grandmother has admitted that she is “overwhelmed.” In
September 2019, she asked the Department to place Brianna
somewhere else and said she “can’t” continue parenting Amanda
“anymore.” Just a few months earlier, grandmother had told
Nature that she was going to ask the Department to take Nature
to another home.
V. The Department’s Efforts to Remove the Children
from Grandmother
A. The Department’s first section 387 petition
In May 2019, the Department filed a petition, pursuant to
section 387, asking the juvenile court to remove all three children
from grandmother’s custody and place them elsewhere, citing
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grandmother’s inability and unwillingness “to provide
appropriate care and supervision of the children.”
In July 2019, the juvenile court denied the petition with
prejudice.
B. The Department’s second section 387 petition
On October 9, 2019, the Department gave notice to
grandmother that it was seeking to remove the children from her
custody.
Exactly 15 days later, the Department filed a petition,
pursuant to section 387, seeking to remove the children from
grandmother’s custody and place them in foster care. The
petition alleged that the children were at risk of serious physical
harm and damage due to (1) grandmother’s inability to establish
that her home meets the minimum “RFA requirements,”3 (2)
3 The resource family approval (RFA) process is the current
process for “approving relatives and nonrelative extended family
members as foster care providers, and approving guardians and
adoptive families.” (§ 16519.5, subd. (a).) A resource family is
“an individual or family that has successfully met both the home
environment assessment standards and the permanency
assessment criteria” established by statute and the State
Department of Social Services (id., subds. (c) & (d)) and only then
are “considered eligible to provide foster care for children in out-
of-home placement and approved for adoption and guardianship.”
(Id., subd. (c)(4)(A) & (5).)
The home environment assessment and the permanency
assessment involve the collection and review of a comprehensive
amount of personal information. A family home environment
assessment includes a criminal record clearance for each
applicant and all adults residing in or regularly present in the
home (denizen), consideration of any substantiated child abuse
allegation against the applicant and any denizens, and a home
and grounds evaluation. (§ 16519.5, subd. (d)(2).) A permanency
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grandmother’s “fail[ure] to obtain mental health treatment” for
Amanda, and (3) grandmother’s emotional abuse of Amanda by
threatening to have her institutionalized.
The juvenile court convened a hearing on the petition on
October 25, 2019. At the hearing, the Department formally
withdrew its section 387 petition based on its view that “no 387
petition is needed” when removing a child from a “de facto
parent.” Instead, the Department asked for removal based on
section 385. The juvenile court “construe[d] the 387 [petition] as
a 385 [request],” and entertained argument from grandmother’s
counsel. Based on the content of the Department’s report, the
court found that it was “in the best interest of these children to
be removed” from grandmother’s care, and that their “physical,”
“mental and emotional health” was “at risk” were they “to remain
in the care of” grandmother. The court accordingly ordered the
children removed from grandmother’s custody and ordered the
Department to make “every effort to place all three children
together” in their next placement.
VI. Appeal
Grandmother filed this timely appeal.
assessment includes a psychosocial assessment of an applicant
and the results of a risk assessment. The risk assessment
includes, but is not limited to, the applicant’s physical and
mental health, alcohol and other substance abuse, family and
domestic violence, and the applicant’s understanding of children’s
needs and development, particularly children who have been
victims of child abuse and neglect, and the capacity to meet those
needs. A successful applicant must also demonstrate the ability
to ensure the stability and financial security of the family. (Id.,
subds. (c)(1) & (d)(3).)
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DISCUSSION
Grandmother does not challenge the sufficiency of the
evidence supporting the removal of the children from her custody.
Instead, she asserts that the juvenile court erred procedurally by
effectuating the removal under section 385 rather than section
387. Thus, this appeal presents two questions: (1) did the
juvenile court rely on the wrong procedural vehicle, and if so, (2)
was this procedural error prejudicial?
The first question presents a question of statutory
interpretation, and is therefore a legal question we review de
novo. (In re Destiny D. (2017) 15 Cal.App.5th 197, 205.) Because
the juvenile court ended up adhering to the procedural steps
attendant to section 387, the second question of prejudice turns
on whether substantial evidence supports the juvenile court’s
removal order. (In re D.D. (2019) 32 Cal.App.5th 985, 990
(D.D.).)
I. The Proper Procedural Vehicle Is Section 387
A. Forfeiture
Grandmother did not object to the juvenile court’s decision
to evaluate the Department’s removal request under section 385
rather than section 387. She thereby forfeited this objection.
(E.g., In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) However,
“an appellate court may consider a claim raising an important
question of law despite” a forfeiture where the case “‘present[s]
an important legal issue.’ [Citation.]” (In re Sheena K. (2007) 40
Cal.4th 875, 887, fn. 7.) The question of which procedural vehicle
is appropriate when a juvenile court removes a child from
placement with a relative is just such a question. We accordingly
exercise our discretion to reach the merits of this question despite
grandmother’s forfeiture.
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B. The merits
1. The two procedural vehicles
a. Section 385
Section 385 authorizes a juvenile court to “change[],
modif[y], or set aside” “[a]ny order made by the court” regarding a
dependent child “as the judge deems meet and proper, subject to
such procedural requirements as are imposed in this article.”
(§ 385; accord, Cal. Rules of Court, rule 5.560(a).) The sole
procedural prerequisite to a juvenile court’s exercise of authority
under section 385 is that the court “provide[] the parties with
notice and an opportunity to be heard.” (M.L. v. Superior Court
(2019) 37 Cal.App.5th 390, 399 (M.L.); Nickolas F. v. Superior
Court (2006) 144 Cal.App.4th 92, 98 (Nickolas F.).)
b. Section 387
Section 387 authorizes a juvenile court to “chang[e] or
modif[y] a previous [placement] order by removing a child from
the physical custody of a parent, guardian, relative, or friend and
directing” a different placement. (§ 387, subd. (a); Cal. Rules of
Court, rule 5.560(c); In re Victoria C. (2002) 100 Cal.App.4th 536,
542-543.)
A court exercising its authority under section 387 must
satisfy three procedural prerequisites.
First, one of the parties must file a supplemental petition
setting forth “a concise statement of facts sufficient to support the
conclusion that the previous disposition has not been effective in
the . . . protection of the child or, in the case of a placement with a
relative, sufficient to show that the placement is not appropriate in
view of the criteria in Section 361.3.” (§ 387, subd. (b); Cal. Rules
of Court, rule 5.560(c); D.D., supra, 32 Cal.App.5th at p. 989; In
re H.G. (2006) 146 Cal.App.4th 1, 11.)
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Second, the court must convene a “noticed hearing” within
30 days of its filing of the supplemental petition and the party
filing the petition must give notice of the petition at least five
days in advance of the hearing where, as here, the child remains
in her current custody placement. (§§ 387, subd. (a), 297, subd.
(b)(1), 290.2, subd. (c)(1); Cal. Rules of Court, rule 5.565(c)(1).)
Third, the court must decide whether (1) the allegations in
the supplemental petition are true, and (2) whether it is
appropriate to change or modify the previous placement order by
removing the child from her current placement. (D.D., supra, 32
Cal.App.5th at pp. 990, 996; Cal. Rules of Court, rule 5.565(e).)
Whether modification and removal is appropriate depends upon
the identity of the current custodian: If the section 387
supplemental petition seeks to remove the child from her
“parent” or “guardian,” the court must make removal findings
under section 361, subdivision (c)—that is, the court must find,
by clear and convincing evidence, that “there is or would be a
substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the [child] if the [child] were
returned home,” that there are no reasonable means short of
removal to protect the minor, and that the Department made
reasonable efforts to avoid removal. (§ 361, subd. (c)(1); In re
Paul E. (1995) 39 Cal.App.4th 996, 1001-1003; In re Javier G.
(2006) 137 Cal.App.4th 453, 462; In re Joel H. (1993) 19
Cal.App.4th 1185, 1201, fn. 14 (Joel H.); In re T.W. (2013) 214
Cal.App.4th 1154, 1163; but see In re A.O. (2010) 185 Cal.App.4th
103, 111-112 [not so requiring].) But if the section 387 petition
seeks to remove the child from other caregivers (such as the
child’s relative), the court need only find that the relative is “no
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longer able to provide the . . . child a secure and stable
environment.” (Joel H., at p. 1201.)
2. The appropriate procedural vehicle when the
Department seeks to remove a child from a relative
Where, as here, the Department seeks to change or modify
a prior order placing a dependent child with a relative, the
juvenile court must proceed under section 387 rather than section
385. Three reasons dictate this conclusion.
First, the plain language of section 387 so dictates. Section
387 itself says that it applies to “[a]n order changing or modifying
a previous order by removing a child from the physical custody of
a parent, guardian, relative or friend . . . .” (§ 387, subd. (a),
italics added; e.g., In re Ricardo L. (2003) 109 Cal.App.4th 552,
560, fn. 4 [so noting].) This plain language is dispositive. (Diaz
v. Grill Concepts Services, Inc. (2018) 23 Cal.App.5th 859, 874
[“Where, as here, a statute’s plain text is unambiguous, our
analysis begins and ends with that text”].) And here, there is no
question that grandmother is a “relative.” (§ 361.3, subd. (c)(2)
[defining “relative” as including “all relatives whose status is
preceded by the word[] . . . ‘grand’”].)
Second, sections 385 and 387 both regulate a juvenile
court’s authority to modify its dispositional orders, but section
385 applies to the modification of orders generally and section
387 applies more specifically to the modification of prior
placement orders. Because “‘a specific statutory provision
relating to a particular subject controls over a more general
provision’ [citation]” (Bae v. T.D. Service Co. of Arizona (2016)
245 Cal.App.4th 89, 104; In re Shull (1944) 23 Cal.2d 745, 750
[“It is the general rule that a special statute controls over a
general statute”], superseded by statute on other grounds as
stated in People v. Read (1983) 142 Cal.App.3d 900, 904), section
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387’s more specific provisions apply where, as here, what is at
issue is the modification of a prior placement order. Indeed,
section 385 expressly defers to the more specific 387 because
section 385 notes that it is “subject to such procedural
requirements as are imposed by this article” (§ 385), and section
387 is in the same article. (Accord, In re Marilyn H. (1993) 5
Cal.4th 295, 305 [“Section 385 clearly does not give the juvenile
court discretion to modify its previous order in the absence of
compliance with the procedural requirements set forth
[elsewhere] in article 12”].)
Third, the weight of precedent supports the conclusion that
section 385 is reserved for use in situations not otherwise
addressed by the more specific procedures set forth in 387 and
388. (Nickolas F., supra, 144 Cal.App.4th at pp. 103, 106, 113-
114; In re Anna S. (2010) 180 Cal.App.4th 1489, 1501-1502.)
Thus, section 385 is usually used when the juvenile court wishes
to modify one of its prior orders sua sponte—that is, not in
response to a supplemental petition by the Department under
section 387 or to a petition for modification by a parent or
guardian under section 388. (In re S.B. (2004) 32 Cal.4th 1287,
1297, superseded by statute on other grounds as stated in In re
S.J. (2008) 167 Cal.App.4th 953, 962; In re J.P. (2020) 55
Cal.App.5th 229, 241; M.L., supra, 37 Cal.App.5th at p. 399; In re
G.B. (2014) 227 Cal.App.4th 1147, 1160; Nickolas F., at pp. 98,
116; cf. In re Luke H. (2013) 221 Cal.App.4th 1082, 1089 [section
385 does not provide residual authority regarding the placement
of children who are not dependents subject to the juvenile court’s
jurisdiction].)
The Department argues that a relative’s status as a de
facto parent somehow negates the above described analysis. It
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does not. A de facto parent is “‘a person who has been found by
the court to have assumed, on a day-to-day basis, the role of
parent, . . . and who has assumed that role for a substantial
period.’” (In re A.F. (2014) 227 Cal.App.4th 692, 699, quoting Cal.
Rules of Court, rule 5.502(10).) Designating a person as a de
facto parent gives that person “procedural rights” in the ongoing
dependency proceedings, such as the right to be present at
hearings, to be heard and to retain counsel, but de facto parent
status does not grant the person any substantive rights to
“reunification services, . . . custody, [or] continued placement of
the child.” (Id. at p. 700.) De facto parent status has nothing to
do with which procedural vehicle a juvenile court must follow
when modifying a placement order where, as here, the de facto
parent is also a “relative.” That is because, as noted above,
section 387 expressly applies when the court is modifying a prior
placement order “by removing a child from the physical custody
of a . . . relative.” (§ 387, subd. (a), italics added.) To hold
otherwise is to accord relatives who have attained de facto parent
status fewer procedural rights than those who have not. It is
therefore not surprising that juvenile courts regularly adhere to
the procedures in section 387 when modifying prior orders that
placed dependent children with relatives, even when those
relatives have also been designated as de facto parents. (E.g.,
Joel H., supra, 19 Cal.App.4th at pp. 1199-1200; In re Jonique W.
(1994) 26 Cal.App.4th 685, 690-691.)
II. The Procedural Error Was Not Prejudicial
Like most other errors, procedural errors by the juvenile
court require reversal only if they result in a “miscarriage of
justice.” (Cal. Const., art. VI, § 13; In re Celine R. (2003) 31
Cal.4th 45, 59-60.) An order does not result in a miscarriage of
12
justice if the court’s order is “substantively correct,” even if the
court “committed” a “procedural error” along the way. (In re
Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1313.)
The juvenile court’s error in evaluating the Department’s
request under section 385 rather than section 387 was not
prejudicial for two reasons.
First, the Department’s initial decision to follow all of the
section 387 procedures up until its last-minute change of mind
means that grandmother was effectively accorded all of the
process she was due under section 387. The Department filed a
supplemental petition with the appropriate content;4 the
Department gave notice of its intention to seek removal of the
children from grandmother more than 14 days before the petition
as part of a “placement change request” (§ 16010.7, subds. (e) &
(i)); and the juvenile court held a timely hearing at which it
allowed grandmother the opportunity to argue against the
Department’s request. These procedures also far surpassed what
is necessary to satisfy due process, as grandmother was accorded
both notice and the opportunity to be heard. (Today’s Fresh
Start, Inc. v. Los Angeles County Office of Education (2013) 57
Cal.4th 197, 212.)
Second, the juvenile court’s modification order is supported
by substantial evidence. Where, as here, the person whose
continued custody is at issue is not a parent or guardian, the
4 By alleging grandmother’s failure to seek services for
Amanda and her emotional abuse of Amanda, the supplemental
petition explained why continued placement with grandmother
was not appropriate under the criteria set forth in section 361.3,
which includes the ability of the relative to “[p]rovide a safe,
secure, and stable environment” and to “[e]xercise proper and
effective care.” (§ 361.3, subd. (a)(7)(A) & (B).)
13
juvenile court need only find that the relative-custodian is “no
longer able to provide the . . . child a secure and stable
environment.” (Joel H., supra, 19 Cal.App.4th at p. 1201.) More
than ample evidence supported such a finding here: All three
girls had behavioral problems, and those experienced by Amanda
and Nature were severe and worsening; grandmother was
refusing to address those problems; and grandmother repeatedly
admitted and/or lamented that she was unable to do so and was,
instead, overwhelmed. Indeed, grandmother does not really
argue to the contrary. The most she argues on appeal is that she
had a strong bond with the three girls. This argument is
supported by the record, but does not negate the factual basis for
the juvenile court’s ruling. To the extent grandmother is inviting
us to weigh the evidence differently, this is an invitation we must
decline. (E.g., People v. Brown (2014) 59 Cal.4th 86, 106 [“[w]e do
not reweigh evidence”].)
DISPOSITION
The orders are affirmed.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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