In re Erick S.

Filed 8/6/07 In re Erick S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed.

Susan S. appeals an order made after a Welfare and Institutions Code section 387 hearing (all statutory references are to the Welfare and Institutions Code) that placed her child, Erick S., with a nonrelative extended family member in Oregon. She contends the court erred by not finding reasonable efforts had been made to prevent the need for Erick's removal from his home, and there was insufficient evidence to support a finding there had been reasonable efforts. She argues the court erred by placing Erick in Oregon. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

On March 9, 2006, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of 10-year-old Erick under section 300, subdivision (b) based on domestic violence between his parents. The petition also alleged Susan suffers from cognitive delays and has a seizure disorder, that she allowed Erick's father, Michael, to return home in violation of a restraining order and that she refused referrals to services.

In January 2006 Michael pushed Susan through a glass window. Erick did not witness the incident, but knew of it. Susan obtained a restraining order, but the court later rescinded the order at her request. The social worker said Susan had observable cognitive delays. On March 6, 2006, Michael kicked Susan in the head, but when he was arrested, Susan seemed surprised and said he had never hit her. The Agency offered Susan voluntary services if she would seek a restraining order against Michael, but she said he took care of her and she did not want to be alone. Erick said he wanted to live with his maternal grandmother (the grandmother) in San Diego or with his adult sisters in Oregon. The grandmother said Susan's neurologist recommended psychiatric help, but Susan refused. After a hearing, the court detained Erick.

The social worker reported Susan was a Supplemental Security Income (SSI) recipient, had a seizure disorder and was mentally unstable. Michael said he was on disability for colon cancer, used morphine daily and marijuana occasionally. The parents began domestic violence classes, but Susan was arrested after a domestic violence incident in May 2006. Susan's domestic violence counselor reported Susan was disruptive during class and there was concern about her emotional state during visits. The social worker reported S.G., a nonrelative extended family member who lives in Oregon, had asked to be considered for Erick's placement.

At the jurisdictional and dispositional hearing on May 5, 2006, the court found the allegations of the petition true, removed Erick from parental custody, placed him with the grandmother, authorized an evaluation of S.G.'s home under the Interstate Compact for the Placement of Children, and ordered the parents to participate in services.

The grandmother stated because of her concerns about her health, she believed Erick should be placed with S.G. Erick had visited S.G. and her family and wanted to move there.

The social worker said Susan was discharged from a second domestic violence course because the instructor said she sat staring ahead as if in a trance and made irrelevant comments. The psychologist who evaluated her opined she had a partner relationship problem and a dependent personality disorder, was extremely dependent on Michael even at Erick's expense, and refused to use appropriate resources to ensure Erick's safety. The psychologist who evaluated Michael diagnosed a personality disorder, primarily avoidant, and borderline and anti-social traits. Michael's therapist said there was a high risk of more domestic violence. The parents had supervised visits together. They were living in their car, but rented a motel room when they had enough money. At the six-month review hearing on November 6, 2006, the court continued Erick's placement with the grandmother and continued services.

On December 13, 2006, the Agency petitioned under section 387, requesting Erick be removed from the grandmother's care because of her health issues. The social worker reported the grandmother supported Erick's moving to S.G.'s home. Erick wanted to live there and to continue visiting his parents. Susan and Michael opposed the move. The court made a prima facie finding on the petition. At the jurisdictional hearing on the section 387 petition, the court found the allegations of the petition true.

At the dispositional hearing, the social worker testified Susan's service providers had indicated her emotional problems may have prevented her from adequately understanding her services. The parents had supervised visits with Erick once each week. There had been a delay in starting Erick's therapy, and his therapist did not recommend having conjoint therapy yet. The social worker opined Erick's moving to Oregon would not impede reunification efforts because Erick could fly to San Diego each month for Saturday and Sunday visits.

Katherine S., Erick's 23-year-old sister, supported the move and said Erick told her he wanted to live with S. G. where he would be close to her and to their aunt. She said S.G.'s family treated him like a member of the family.

S. G. testified she would like to have Erick placed in her home. She said several of Erick's relatives live close to her and Erick enjoyed weekly family get-togethers. She volunteered to help pay for Erick's travel expenses to visit his parents and for telephone calls to them, and said if the parents did not reunify, she would be willing to provide permanent placement.

Michael testified he opposed Erick moving to Oregon because it would interrupt the reunification plan. He did not believe longer visits each month would be as beneficial as shorter, more frequent visits.

The court placed Erick in S.G.'s home in Oregon and authorized funding to allow him to visit the parents in San Diego once every other month with the understanding that S.G. would provide airfare for alternate months.

DISCUSSION

I

Susan contends the court erred by not making the required finding that reasonable efforts had been made to remove Erick from his home and there was insufficient evidence to support such a finding. She argues her reunification plan was not effective to allow reunification with Erick because it did not address her special needs.

Susan is mistaken in her argument that the court was required to find under section 361, subdivision (d) that reasonable efforts had been made to prevent or eliminate the need to remove Erick before taking him from the grandmother's care and placing him with S.G. The court followed proper procedures under section 387 and made the findings required for removal of a child from relative care.

When a social services agency seeks to change the placement of a dependent child from relative care to a more restrictive level of placement it must file a supplemental petition under section 387. The petition "shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or 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).) Criteria in section 361.3 include, inter alia, considering the best interest of the child ( 361.3, subd. (a)(1)), and the ability of the relative to provide a safe, secure and stable environment ( 361.3, subd. (a)(6)(A)) and exercise proper and effective care ( 361.3, subd. (a)(6)(B)).

The Agency has the burden to show by a preponderance of the evidence that the factual allegations alleged in the petition are true. After the court finds the allegations true, it must then hold a bifurcated hearing to determine whether the previous disposition is no longer effective in protecting the child or whether placement with the relative is not appropriate in view of the criteria in section 361.3. ( 387; In re Miguel E. (2004) 120 Cal.App.4th 521, 542; Cal. Rules of Court, rule 5.560(c).)

The court followed the proper procedures. The section 387 petition alleged the grandmother had reported she was unable to care for Erick adequately because of her ill health. The court found the allegations true, found placement with the grandmother was no longer appropriate and placed Erick with S.G.

The court was not required to find in addition that reasonable efforts had been made to prevent or eliminate the need to remove Erick from his home. Section 361, subdivision (c) requires a child may not be removed from his or her parent's care unless the court finds by clear and convincing evidence,

"[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." ( 361, subd. (c)(1).)

The court also must make "a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home . . . ." ( 361, subd. (d).)

Although these findings would be necessary if a child is removed from a parent under a section 387 petition, they are not required when a child is removed from the home of a relative. Removal of a child from his or her parents "is a critical firebreak in California's juvenile dependency system" and requires the procedural safeguards of section 361. (In re Paul E. (1995) 39 Cal.App.4th 996, 1003.) However, removal from a relative does not require the same protection. The court in Inre Paul E., supra, at page 1003 noted that in In re Joel H. (1993) 19 Cal.App.4th 1185, at page 1201, footnote 14, "the court specifically contrasted the 'more stringent provisions of section 361' for removal from a parent or guardian from the standard for removal from a relative with whom the child had already been placed after an initial removal from a custodial parent. [Citation.] The clear implication of the court's language is that when removal of a child from a parent is contemplated, section 361's 'more stringent' standards apply." (In re Paul E., supra, 39 Cal.App.4th at p. 1003.) These standards do not apply to removal from a relative because there is no interference with the parent-child relationship. A hearing on a section 387 petition for removal from a caregiver other than the parent occurs after disposition when the child has already been removed from his or her parent's custody under the standard of clear and convincing evidence and the court has made findings under section 361. In removing a child from a relative's care, the parent's rights to due process are not involved.

It was necessary to remove Erick from the grandmother's home because of her concerns about her own ill health. The court reasonably placed him in the safe and secure home of S.G. and her family, where he wanted to live. Sufficient evidence supports the court's disposition order.

Susan further confuses her argument by claiming she was not provided reasonable reunification services because of her special needs. However, she has forfeited this issue. "A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) A "reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] [] Dependency matters are not exempt from this rule." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.)

At the six-month review hearing on November 6, 2006, the parents submitted on the Agency reports. The court found reasonable services had been offered or provided. Because the parents were present and were represented by counsel, but did not challenge the reasonableness of services, we conclude Susan has forfeited the issue on appeal.

II

Susan contends the court abused its discretion by placing Erick in Oregon with S.G. She argues S.G. did not qualify as a nonrelative extended family member within the meaning of section 362.7 because the Legislature intended the classification to establish a preference only for placing a child within his home community and S.G.'s home is out-of-state.

When a court has made a decision such as a dependent child's placement, " ' "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]." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The court did not abuse its discretion in placing Erick with S.G.

Under section 362.7, a nonrelative extended family member is defined as "any adult caregiver who has an established familial or mentoring relationship with the child. The county welfare department shall verify the existence of a relationship through interviews with the parent and child or with one or more third parties. The parties may include relatives of the child, teachers, medical professionals, clergy, neighbors, and family friends." ( 362.7.)

We reject Susan's suggestion that a person cannot be considered a nonrelative extended family member unless he or she resides in the child's local community. Under the clear language of the statute, S.G. qualifies as a nonrelative extended family member. She had established a warm and protective relationship with Erick and he had visited her home including for summer and holiday visits. She had met his parents and knew his sisters, aunt and cousins. Erick's sister testified S.G. treated Erick like her own son and S.G. said she would be willing to provide a permanent placement if necessary. Living in S.G.'s home, Erick would be able to see his sisters and other family members on a regular basis. He got along well with S.G.'s two sons and said he wanted to live with this family. The fact that S.G. lives out of state did not exclude her as a nonrelative extended family member. The legislative history of section 362.7 does not indicate otherwise.

Susan contends the court abused its discretion because section 361.2, subdivision (f) precludes placing a child out of state until the Agency has exhausted all potential foster home placements. She argues placing Erick with S.G. violated her rights because it will hinder regular visitation and conjoint therapy.

Section 361.2, subdivision (f) does not require the court to exhaust all potential local foster care placement options before placing a child with an out-of-state nonrelative extended family member. Section 361.2, subdivision (e) requires upon removal the court

shall order the care, custody, control and conduct of the child to be under the supervision of the social worker, who may place the child in any of the following:

"(1) The home of the noncustodial parent as described in subdivision (a). [] (2) The approved home of a relative. [] (3) The approved home of a nonrelative extended family member as defined in section 362.7. [] (4) A foster home in which the child has been placed before an interruption in foster care, if that placement is in the best interest of the child and space is available." ( 361.2, subds. (e)(1)-(4).)

It is important during dependency proceedings for the Agency to find an appropriate caretaker for the child who will foster the child's physical and emotional needs while at the same time cooperate in reunification efforts. There is a legislative preference for relative care because relative placement is more likely than foster care to be a safe and familiar placement for the child and a relative "presumably has a broader interest in family unity, is more likely than a stranger to be supportive of the parent-child relationship and less likely to develop a conflicting emotional bond with the child." (In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1493.) This same rationale applies to placement with a nonrelative extended family member. S.G. was able to provide a safe, familiar and supportive home for Erick and said she was willing to foster the parents' reunification efforts. Erick wanted to be placed with S.G. and her family, and she offered to fly him to San Diego for weekend visits with his parents and to pay for telephone calls.

We agree with Susan that Erick's placement in Oregon will change the visitation schedule and may make conjoint therapy more difficult. However, the family was not yet ready for conjoint therapy. Susan's therapist reported Susan had not benefited from therapy. She was not ready to begin conjoint therapy. Erick had been in therapy for only a short time. Also, Susan had not progressed in domestic violence treatment and she refused referrals to mental health providers. Placement with S.G. in Oregon was the most beneficial and least disruptive move for Erick. He wanted to live there and reasonable accommodations were being made to allow regular visitation and contact between him and his parents to continue after the move.

In In re Luke L. (1996) 44 Cal.App.4th 670, 673-674, 680, the appellate court held a juvenile court abused its discretion by placing the children with a relative out of state because the placement would make reunification too difficult. However, the court must balance the parents' interest in attempting reunification with the child's interest in a beneficial placement. (Id. at p. 680.) Here, the court carefully weighed the parents' interests and Erick's need for a beneficial placement and reasonably concluded placement with S.G. was the best plan. It noted the parents needed to make progress in their case plans, notably in domestic violence issues, and to find stable housing and to progress to unsupervised visits. The court acknowledged the potential impact on visitation and future plans for conjoint therapy, and ordered a plan of regular monthly visitation and telephone contact. After weighing the competing interests, it reasonably decided to place Erick with S.G. The record does not show error.

DISPOSITION

The order is affirmed.

McINTYRE, J.

WE CONCUR:

HALLER, Acting P. J.

O'ROURKE, J.

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