In re K.L. CA4/2 ( 2020 )


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  • Filed 8/21/20 In re K.L. 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    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 CALIFORNIA
    FOURTH APPELLATE DISTRICT
    DIVISION TWO
    In re K.L., a Person Coming Under the
    Juvenile Court Law.
    RIVERSIDE COUNTY DEPARTMENT                                             E073503
    OF PUBLIC SOCIAL SERVICES,
    (Super.Ct.No. RIJ1800027)
    Plaintiff and Respondent;
    OPINION
    v.
    S.L.,
    Defendant and Appellant.
    APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
    Judge. Affirmed.
    Richard L. Knight, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Gregory P. Priamos, County Counsel and James E. Brown, Anna M. Marchand
    and Julie Koons Jarvi, Deputy County Counsel for Plaintiff and Respondent.
    1
    In 2018, one month old K.L. was declared a dependent and removed from custody
    of his mother, Ke.L. The intervention occurred after instances where mother treated the
    infant roughly, failed to supervise him or tend to his needs, and ultimately violently
    assaulted the maternal grandmother (grandmother). Mother then snatched her child away
    from the maternal aunt so roughly that the baby’s head snapped backwards.
    Grandmother requested placement of K.L., but the request was denied because mother
    objected to that placement and because grandmother had a restraining order against
    mother, which would impede reunification efforts. Months later, grandmother’s home
    was approved, but the court maintained K.L. in the home of a nonrelative extended
    family member at mother’s request. On the eve of the selection and implementation
    hearing pursuant to Welfare and Institutions Code, section 366.26, grandmother filed a
    Request to Change Court Order, pursuant to section 388, again seeking placement, which
    was denied. Mother’s parental rights were terminated but she did not appeal.
    Grandmother appeals from the denial of her 388 petition.
    On appeal, grandmother argues (a) the juvenile court erred in failing to hold a
    hearing at which the grandmother’s relative placement preference request could be
    considered, and (b) the court abused its discretion in denying her placement request. We
    affirm.
    BACKGROUND
    On January 9, 2018, the Riverside Department of Public Social Services (DPSS)
    received a referral after the maternal grandmother of K.L., less than one month old, was
    2
    assaulted by K.L.’s mother, Ke.L.,1 after grandmother attempted to correct mother’s
    rough manner of suctioning the child’s nostrils. Grandmother slapped mother’s leg to get
    her to stop hurting the child, and mother threw the child onto the couch and started
    beating grandmother with her fists on the back of the head. Mother’s sister (aunt) picked
    up the child, who was crying after the rough placement, to comfort him, but mother
    grabbed him away with sufficient force to cause his head to snap back. Mother then left
    the home.
    The medical examination of the baby was unremarkable except that a CT scan
    showed evidence of calcified cephalohematoma, a calcified blood clot occurring as a
    birth injury (https://radiopaedia.org/articles/cephalohaematoma, as of Aug. 12, 2020), and
    irritation from a band-aid placed over the spot where the infant was administered a
    vitamin K shot shortly after birth. In the hospital, the social worker observed that mother
    did not pay attention to the child, ignoring his cries, and had to be prompted to feed the
    child. When mother breast fed the baby in the waiting area of the hospital, she disrobed
    from the waist up, making no attempt to cover herself, causing discomfort for the social
    worker, medical staff, and other patients in the waiting area.
    In talking with the social worker, mother was unable to state what kind of feeding,
    diaper changing, or sleeping schedule she followed with the baby, and demonstrated she
    did not know how to burp the baby. Mother also acknowledged she had not bathed the
    baby since his birth, or even given him a sponge bath, indicating she had been instructed
    1   To avoid confusion, we will simply refer to her as mother.
    3
    not to bathe him for two weeks by the hospital when he was born. She also revealed she
    only wiped down spit up or cleaned his genitals during a diaper change. When asked
    why she had not bathed him after he reached two weeks of age, mother indicated she did
    not have money for supplies. Mother stayed with the child who was kept in the hospital
    overnight for tests, but she exhibited a lack of bonding with her baby, and seemed
    unconcerned for the child’s discomfort as multiple attempts were required to draw blood;
    she did not attempt to soothe him. The child was taken into protective custody on
    January 11, 2018.
    Additional investigation revealed mother did not know who the father of the baby
    was, although she suspected it was one of two men. Mother had a history of
    methamphetamine use, which she stopped using when she learned she was pregnant with
    the minor, but she had experimented with other drugs and alcohol, as well. Mother had a
    criminal history for prostitution, for which she needed to “book and release” at jail due to
    a violation of probation, and she had worked as a stripper at a topless nightclub prior to
    giving birth. She also had a history of mental illness, including two hospitalizations
    when she was a teenager.
    DPSS filed a dependency petition pursuant to Welfare and Institutions Code,2
    section 300, subdivisions (b)(1) and (g). As amended, the allegations against mother
    related to her failure to supervise, protect, or provide necessaries for the minor, her
    2 All future statutory references will be to the Welfare and Institutions Code,
    unless otherwise indicated.
    4
    mental health issues, transient lifestyle, criminal history, and the incident of domestic
    violence involving the maternal grandmother. The allegations under section 300,
    subdivision (g), related to the inability to identify or locate the father of the baby.3
    On January 11, 2018, DPSS sought a Resource Family Approval of grandmother’s
    home for an emergency placement of the minor, but that approval was denied because
    grandmother had a Child Protective Services history, which would require an exemption.
    The social worker indicated that an exemption would be requested so the grandmother’s
    approval effort would continue. In the meantime, the child was detained in the home of a
    nonrelative extended family member (NREFM).
    At the detention hearing on January 17, 2018, the court found that a relative able
    to care for the child was unavailable but noted that this was a temporary finding which
    did not preclude later placement with the relative under section 361.3.
    Pending the jurisdiction hearing, the grandmother and aunt visited with K.L. At
    the visit, neither relative would burp the baby; they also requested that the caregiver fix
    the baby’s bottle and change his diaper. When playing with the baby on a play mat, they
    had the child facing away from them and did not “speak kindly” about mother.
    The jurisdiction hearing was conducted on March 9, 2018; grandmother was not
    present. Mother submitted the issue of jurisdiction and disposition on the social worker’s
    reports. The court made true findings as to all the allegations and sustained the petition,
    3 One of the men identified by mother as a possible father was eventually located
    and subjected to DNA testing, which eliminated him as a possible father.
    5
    finding the minor comes within section 300, subdivisions (b) and (g). The court removed
    custody of the child from mother and ordered reunification services.
    On May 23, 2018, grandmother received a Resource Family Approval Certificate,
    approving her home for placement of K.L. In August 2018, DPSS submitted its six-
    month status review report, recommending that the dependency continue for six months
    with the minor in his current placement, and that family reunification services continue.
    Regarding relative placement, the social worker noted that while grandmother had been
    denied emergency placement of the minor previously, her home had been approved on
    May 23, 2018.
    However, the social worker also reported that during monthly visits, the
    grandmother was very “hands off,” and that she had an active restraining order against
    the mother; insofar as the case was still in reunification mode, the social worker’s opinion
    was that placement with grandmother would not be in the child’s best interest. Most
    importantly, mother was adamant that the minor should not be placed with grandmother.
    At the review hearing, the court adopted the recommendations of the social worker.
    In February 2019, DPSS submitted its report for the 12-month review hearing.
    The social worker recommended that the child remain in his current placement, family
    reunification services be terminated, and that a hearing on the selection and
    implementation of a permanent plan pursuant to section 366.26 be set. Up until
    December 2018, mother’s visits had gone well and the caregiver gave positive feedback,
    even suggesting longer visits. But shortly thereafter, mother’s recent conduct at K.L.’s
    6
    first birthday party caused the caretaker to question mother’s ability to provide care for
    the child when she did not interact with her son, appeared to be unconcerned about him,
    and began singing loudly while people were eating dinner.
    The report also indicated that grandmother still had a restraining order against
    mother (which would not expire until February 2021), which precluded placement of
    K.L. in her home. Additionally, the report described grandmother’s interactions with
    K.L. during visits as demonstrating grandmother’s inability to comfort the child or soothe
    him when she visited alone. The child was calm when the aunt was present, but was
    fussy when grandmother had contact with him alone. Mother continued to object to
    placement of the child in the grandmother’s home.
    On March 14, 2019, in an addendum report, the social worker indicated she had
    seen an extremely long Facebook post by mother in which she rambled for pages about
    life in existential terms, causing the social worker to seek input from mother’s therapist
    about mother’s depression. The social worker again recommended that services be
    terminated. At the review hearing held on March 19, 2019, the court adopted the social
    worker’s recommendations, found there was no possibility of return of the child to
    mother within six months. The court terminated reunification services and set a section
    366.26 hearing, after limiting mother’s educational rights.
    Regarding placement with grandmother, the court found that DPSS had made
    diligent efforts to locate relatives and that each relative whose name had been submitted
    had been evaluated.
    7
    On July 5, 2019, the social worker submitted a section 366.26 report,
    recommending termination of parental rights. The report referred to grandmother’s
    request for relative placement, but the social worker explained that the outstanding
    restraining order had been a concern for placement while the case was in reunification
    mode. The social worker also recounted grandmother’s ongoing problems comforting or
    caring for the child during visits, noting that when grandmother was alone with the child,
    he was fussy, although when the aunt was present he was more calm. The social worker
    reiterated that mother did not want the child placed with grandmother.
    On July 10, 2019, grandmother filed a Request to Change Court Order pursuant to
    section 388. By way of changed circumstances, grandmother stated that she received
    RFA (Resource Family Approval) on May 23, 2018, had maintained visits and shared a
    bond with K.L. Addressing the best interests prong, grandmother explained her joy in
    being a grandmother, that the restraining order that had prevented placement in her home
    during the dependency was no longer in place, and that she and the aunt had remained
    active in K.L.’s life. The court ordered a hearing.
    On July 23, 2019, prior to the 366.26 being heard, the court heard testimony on the
    section 388 petition. Among the witnesses were a social worker who had been assigned
    as the continuing services worker between March and August 2018. The worker
    explained that one of the problems facing grandmother’s application for placement was
    the contentious relationship between mother and grandmother while the case was in
    8
    reunification mode. At the time this worker was assigned, mother was making progress
    in her services.
    The social worker was also concerned about grandmother’s interactions with the
    child during her visits, where she would not change his diaper or be able to comfort him
    without the aunt being present. Instead, when K.L. needed comforting or a diaper
    change, grandmother would ask the caretaker to do so, or else the child would return
    from visits with an unchanged diaper. The social worker also indicated that some visits
    were canceled by grandmother when the aunt was unable to attend.
    Grandmother testified about her earlier involvement with Child Protective
    Services in 2008, when mother was a teenager, for which an exemption had been
    provided. She described her efforts to gain placement of K.L., which included contacting
    the original social worker, going through the RFA process, and visiting regularly.
    Grandmother had expected K.L. to be placed with her in May 2018, but was told that
    because of the restraining order, she would not be able to supervise visits or help towards
    reunification. However, she did not attend any hearings until August 2018, because she
    was under the impression she had to be invited.
    Mother also testified at the hearing and opposed grandmother’s request for
    placement because she did not want K.L to go through what she had gone through.
    Mother described a beautiful relationship with the caretakers, and hoped to maintain a
    relationship with her son after adoption. Mother also submitted a letter to the court
    9
    saying she wanted the current caretakers to adopt her son as they would provide the
    healthiest home for him.
    After hearing the evidence, the court denied the request for placement. The court
    then proceeded with the section 366.26 hearing, where it found the child adoptable and
    that termination of parental rights would not be detrimental. The court terminated mother
    parental rights and ordered that the current caretakers be given preference for adoption.
    Grandmother appealed.4
    DISCUSSION
    1.     The Trial Court Properly Considered Relative Placement Preference,
    Which Is Now Moot.
    Grandmother argues that the trial court should have conducted a section 361.3
    hearing soon after May 23, 2018, the date on which grandmother’s home was certified for
    relative placement. Specifically, she argues that the court incorrectly waited for over a
    year and a half in order to conduct “a 361.3 hearing.” We disagree.
    First, the record demonstrates the trial court did consider relative placement as
    early as the detention hearing (when emergency placement was denied due to prior CPS
    4  On September 9, 2019, mother’s trial counsel filed a notice of appeal from the
    termination of parental rights on mother’s behalf. (E073646, In re K.L.; Riverside DPSS
    v. K.L.) However, on January 14, 2020, mother’s counsel on appeal submitted a letter
    brief indicating no arguable issues had been identified and requesting that this court
    exercise discretion to independently review the case pursuant to In re Sade C. (1996) 
    13 Cal. 4th 952
    , 989. On January 15, 2020, we informed mother she could file a
    supplemental brief on her own, but she did not do so. Mother’s appeal was dismissed on
    February 21, 2020, and the remittitur issued on May 27, 2020. Mother’s appeal rights
    have been exhausted, but were still ongoing through much of the pendency of
    grandmother’s appeal.
    10
    history), as well as again on the date of the disposition hearing and continuing through
    the date on which mother’s reunification services were terminated. At each hearing, the
    court explained its reasons for not placing the child with grandmother based on the
    existence of the restraining order and mother’s request to not place K.L. with
    grandmother.
    Section 361.3, subdivision (a), provides in part that 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. “[W]hen a relative requests placement of the
    child prior to the dispositional hearing, and the Agency does not timely complete a
    relative home assessment as required by law, the relative requesting placement is entitled
    to a hearing under section 361.3 without having to file a section 388 petition.” (In re
    Isabella G. (2016) 
    246 Cal. App. 4th 708
    , 712.)
    There is nothing in section 361.3 that commands a separate hearing at which
    relative placement preference can be considered or decided, unless the agency has failed
    to timely investigate such a placement. Rather, the statute only requires that when a child
    has been removed from a parent’s custody, preferential consideration is to be given to the
    request by a relative for placement. (§ 361.3, subd. (a).)
    Here, the trial court timely considered the grandmother’s request for placement at
    each hearing leading up to the permanency planning, and the agency properly
    investigated and assessed the grandmother’s home for placement. Grandmother did not
    11
    appear in court until eight months after the child had been placed with his NREFM
    caretakers, stating she thought she needed to be invited. Grandmother also did not object
    to the placement with the NREFM caretakers, does not complain she lacked notice of the
    hearings, and did not appeal from the placement orders. She waited more than one year
    after receiving the approval to file her section 388 petition, and cannot complain now that
    her request for placement was not fully aired at an earlier hearing. (In re Elizabeth M.
    (1991) 
    232 Cal. App. 3d 553
    , 563.)
    Second, the issue is now moot. “An appeal becomes moot when, through no fault
    of the respondent, the occurrence of an event renders it impossible for the appellate court
    to grant the appellant effective relief.” (In re Esperanza C. (2008) 
    165 Cal. App. 4th 1042
    ,
    1054-1055, citing In re Jessica K. (2000) 
    79 Cal. App. 4th 1313
    , 1315–1316; Consol. etc.
    Corp. v. United A. etc. Workers (1946) 
    27 Cal. 2d 859
    , 863.) “An appellate court will not
    review questions which are moot and only of academic importance, nor will it determine
    abstract questions of law at the request of a party who shows no substantial rights can be
    affected by the decision either way.” (In re Esperanza 
    C., supra
    , at p. 1054.)
    Here, mother’s appeal from the order terminating her parental rights was
    dismissed, and a remittitur was issued in May 2020.5 Although up to that point,
    grandmother’s appeal was not moot, the judgment terminating parental rights is now
    final, and adoptive preference has been given to the NREFM caretakers. At this point,
    5 We have taken judicial notice of mother’s appeal and the order dismissing same
    in case No. E073646, In re K.L. (See fn. 4, ante.)
    12
    under all relevant authorities, the relative placement preference no longer applies. (In re
    Sarah S. (1996) 
    43 Cal. App. 4th 274
    , 285.)
    There was no error.
    2.       The Trial Court Did Not Abuse Its Discretion in Denying Grandmother’s
    388 Petition.
    Grandmother argues that the trial court abused its discretion in denying her section
    388 petition seeking placement of K.L. We disagree.
    To prevail on a section 388 petition the moving party must show: (1) new
    evidence or changed circumstances; and (2) the proposed change would promote the
    child’s best interests. (In re D.B. (2013) 
    217 Cal. App. 4th 1080
    , 1089.) If a relative uses
    a request to change a court order (§ 388) as the vehicle for obtaining placement of a child,
    then the juvenile court should apply the section 361.3 statutory criteria when deciding the
    issue of placement, rather than “the generalized best interest showing required under
    section 388.” (In re Isabella G. (2016) 
    246 Cal. App. 4th 708
    , 722, fn. 11.) We review an
    order denying a section 388 petition for an abuse of discretion. (In re Angel B. (2002) 
    97 Cal. App. 4th 454
    , 460.)
    Initially, we point out that the relative placement preference, is just that: a
    preference. “[T]he statute express[es] a command 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 interest of the child.” (In re Stephanie M. (1994) 
    7 Cal. 4th 295
    , 320.) But this command is not a guarantee of relative placement. (In re Joseph T.
    13
    (2008) 
    163 Cal. App. 4th 787
    , 798.) Nor does section 361.3 “create an evidentiary
    presumption that relative placement is in a child’s best interests.” (In re Lauren R.
    (2007) 
    148 Cal. App. 4th 841
    , 855.)
    The juvenile court must still determine whether placement with the relative is
    appropriate, taking into account a host of factors. (Stephanie 
    M., supra
    ,7 Cal.4th at p.
    321.) These factors include (1) the best interest of the child; (2) the good moral character
    of the relative and any other adult living in 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; (3) the relative’s ability to provide a safe, secure, and
    stable environment; and (4) the relative’s ability to protect the child from his or her
    parents. (§ 361.3, subd. (a).) One of the significant criteria to be considered in
    evaluating a relative placement is the wishes of the parent. (§361.3, subd.(a)(2).)
    In other words, “‘[p]referential consideration’ means that the relative seeking
    placement shall be the first placement to be considered and investigated.” (§ 361.3, subd.
    (c)(1).) The preference applies at the disposition hearing and thereafter “whenever a new
    placement of the child must be made.” (§361.3, subd. (d); In re M.H. (2018) 
    21 Cal. App. 5th 1296
    , 1302-1303.) As we have explained, this was properly done at the
    disposition hearing and at each subsequent review hearing, despite the fact that no new
    placement was contemplated.
    The preference for relative placement does not apply to an adoptive placement.
    (In re K.L. (2016) 
    248 Cal. App. 4th 52
    , 65-66.) Once the juvenile court has determined
    14
    that reunification is no longer possible, the most pronounced reason for trying to maintain
    family ties ends as well. (Samantha T. v. Superior Court (2011) 
    197 Cal. App. 4th 94
    ,
    113.) In this respect, the relative placement preference does not supersede the overriding
    concern of dependency proceedings of the child’s best interests whose bond with a foster
    parent may require rejection of placement of the child with a relative. (In re Lauren 
    R., supra
    , 148 Cal.App.4th at pp. 854-855.)
    Thus, after the reunification period has ended, the relative placement preference
    only arises when a change of placement is required. (Cesar V. v. Superior Court (2001)
    
    91 Cal. App. 4th 1023
    , 1031.) It does not apply after parental rights have been terminated
    and the child has been freed for adoption. (In re Jessica Z. (1990) 
    225 Cal. App. 3d 1089
    ,
    1098.)
    Irrespective of whether grandmother was entitled to placement preference at this
    late stage of the proceedings, “best interests is a complex idea” that requires
    consideration of a variety of factors. (In re Kimberly F. (1997) 
    56 Cal. App. 4th 519
    , 530;
    see also, In re Jacob P. (2007) 
    157 Cal. App. 4th 819
    , 832-833.) After the termination of
    reunification services, a parent’s interest in the care, custody and companionship of the
    child is no longer paramount. (In re Stephanie 
    M., supra
    , 7 Cal.4th at p. 317.) Instead,
    the focus shifts to the needs of the child for permanency and stability, and a rebuttable
    presumption arises that continued foster care is in the best interest of the child. (In re
    Marilyn H. (1993) 
    5 Cal. 4th 295
    , 309-310.)
    15
    So too, the considerations that favored placement with relatives at the pre-
    permanency stages of the dependency, and the relatives’ interest in care and custody of
    their relative, are no longer paramount, unless or until a new placement is required.
    Instead, the juvenile court is properly concerned only with the needs of the child for
    permanency and stability. In this respect, weighing the permanence and stability that the
    caretakers had provided for K.L. against the grandmother’s inability to interact in an
    active way during monthly visits, the scales tip in favor of the caretakers.
    The evidence adduced at the hearing on grandmother’s petition amply supported
    the trial court’s finding that placement of K.L. with grandmother was not in his best
    interests. There was no abuse of discretion.
    DISPOSITION
    The judgment is affirmed.
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    RAMIREZ
    P. J.
    We concur:
    McKINSTER
    J.
    RAPHAEL
    J.
    16
    

Document Info

Docket Number: E073503

Filed Date: 8/21/2020

Precedential Status: Non-Precedential

Modified Date: 8/21/2020