In re J.H.

Filed 5/15/07 In re J.H. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Appellant A.H., the mother of J.H. (the minor), appeals from an order of the juvenile court placing the minor with the M. family as nonrelative extended family members (NREFM). (Welf. & Inst. Code, 388, 362.7.)^[1] Appellant contends there was insufficient evidence to find a change in circumstances sufficient to qualify the M. family as an NREFM, or that placement with the M.s was in the best interest of the minor. For the reasons set forth below, we affirm the juvenile courts order.

FACTUAL AND PROCEDURAL HISTORY

On October 6, 2004, the minor was placed in protective custody after she disclosed that a bruise under her left eye was the result of her mother hitting her with a closed fist during a verbal altercation the prior evening. At that time, the minor also reported there had been ongoing conflict between her and the appellant, the appellant used marijuana regularly, and the minor reported in August of 2004 that she had been sexually abused by her stepfather eight years earlier.^[2]

The Sacramento County Department of Health and Human Services (the Department) filed a juvenile dependency petition pursuant to section 300, subdivision (b) alleging (1) appellant caused injury to the minors eye during a physical altercation (allegation b-1), and (2) the minor refuses to return home due to ongoing child/parent conflict, including verbal and physical altercations, and has threatened to [cause] harm to herself if forced to return to her mothers care (allegation b-2).

At the disposition hearing on December 14, 2004, it was agreed the Department would dismiss allegation b-1 and appellant would submit the matter on the remaining allegation. On that count, the court found the minor to be within the jurisdiction of section 300, subdivision (b) and adjudged her to be a ward of the juvenile court. Appellant was ordered to comply with the court-approved case plan, and both appellant and the minor were directed to participate in counseling.

Over the course of the dependency proceedings, the minor was placed in various foster care homes, but was removed from each one either as a result of behavioral issues or being absent without permission (AWOL).

In its May 31, 2005, pre-permanency review report, the Department recommended reunification services provided to appellant include general counseling, psychotropic medication evaluation and monitoring, substance abuse testing and treatment, and participation in a 12-step program. The report also noted the minor was doing well in foster care and had secured a part-time job with a flexible schedule to accommodate therapy, school and responsibilities at the foster home.

The Department considered three possible caretakers for placement in the event reunification efforts were not successful, among them the M. family. The assessment revealed Ms. [M.] is a long time family friend who has children close to [the minors] age, the minor had stayed with the family for a brief period while she was visiting her former stepfather in Palm Springs, the minor speaks to Ms. [M.] and her daughters over the phone on a regular basis and Ms. M. provided the minor with a safe place to stay when things were not going well at home. Ms. M. indicated she considered the minor to be one of her own and a fit in the M. family. Although a home evaluation had not yet been completed, the report noted the M.s had no criminal history, Ms. M. was a stay-at-home mother, and Ms. M. expects children to follow set rules and schedules. Ms. M. reported she did not know appellant very well, but had spoken with her on the phone in the past. It was also noted the placement with the M. family would mean the minor would be closer to her half brothers and able to see them on a more frequent basis. The pre-permanency review report concluded the Department felt the M.s qualified as an NREFM, and placement of the minor with them would be appropriate. However, the report also concluded, if appellant participated in all of the reunification services as ordered, and assuming the minors continued therapy, there was a possibility the minor could be returned to appellants care within the next six months.

Prior to the permanency hearing, the Department learned that, prior to the courts involvement, the minor had engaged in misconduct while staying with the M. family over the summer of 2004, including unauthorized, unsupervised, underage alcohol consumption, illegal use of marijuana, and dangerous and unsafe behavior . . . , i.e. jumping off the roof of [a] one-story house into a pool and consuming alcohol in a hot tub.^[3]

In a progress report dated June 22, 2005, the Department provided the court with updated information regarding the M.s and other potential caretakers. Specifically, the report noted a conversation between the social worker, Angela Taylor, and Ms. M. regarding the minors prior misconduct in 2004 and changes made by Ms. M. to insure such behavior did not occur again.

At the progress report hearing on June 28, 2005, the Department recommended the minor be allowed an extended visit of 29 days with the M. family. Appellant opposed any such extended visitation. The court found there was insufficient evidence that the [M.]s [sic] qualify as [NREFM], set the matter for a permanency hearing, and ordered the minor not be allowed to visit with the [M.]s [sic] family pending further evidence that they qualify as [NREFM].

On July 21, 2005, appellant filed a section 388 petition recommending the minor not be permitted to have unsupervised or overnight visits with the [M.] family and for any visitation to occur within Sacramento County. Appellants petition focused on the minors summer of 2004 misconduct and argued the requested modification was in the minors best interest because the [M.] household has proven to be lacking in supervision of the teenagers.

On August 16, 2005, the court granted appellants motion, ordering the minor shall have no unsupervised or overnight visits with the [M.] family and any such visits shall occur in Sacramento County.

In a permanency report, dated November 29, 2005, the Department chronicled the progress of both appellant and the minor. The report noted the minor was extremely disappointed, as was the Department, by the prior order prohibiting visitation with the M. family, but the minor, while recognizing her prior misconduct was unacceptable, has committed to turning her life away from these negative influences. The report also reiterated a voicemail left by appellant on October 22, 2005, stating she would like the minor to live with the M.s. With respect to appellants use of reunification services, it was reported appellant had failed to monitor and stabilize her mental health status and was resistant to participate in her Court ordered drug testing. The Department noted appellant had not made substantive progress on her Case Plan and would not likely do so even if she were given six more months of services. It concluded reunification services to appellant should be terminated and planned permanent living be arranged for the minor with the M. family.

At the November 29, 2005, permanency hearing, the court ordered appellants reunification services be terminated, vacated the no-contact order as to the M. family, and ordered regular visitation between the M.s and the minor as frequent as is consistent with the well-being of the [minor]. The court further ordered the Department to evaluate the M. family as a permanent placement for the minor.

On February 7, 2006, the Department filed a petition for modification pursuant to section 388 seeking permanent placement of the minor with the M. family as an NREFM. The evidence in support of the petition included the following: (1) the M.s expressed interest in having the minor placed in their home; (2) the M.s lack of criminal history; (3) approval by the Department of the M. home for placement; (4) the strong emotional bond and relationship between the minor and the M. family; (5) the M.s commitment to providing the minor with a safe and nurturing environment; (6) appellants agreement to the placement; (7) the close proximity of the minors half siblings to the M. home; (8) Ms. M.s status as a stay-at-home mom and her assurances she is able to provide a safe and nurturing environment for the minor; (9) the Departments promise to arrange courtesy supervision in the county where the M.s live; and (10) the strong expressions by both the minor and the M.s in favor of the placement.

The court set the matter for hearing and ordered the Department to provide evidence the M. family qualified as an NREFM under section 362.7.

The Department submitted an addendum report on March 7, 2006, which provided the following additional information:
(1) the relationship between the minor and the M. family had been ongoing for five years; (2) the minor is very close to everyone in the M. family; (3) the minor calls Ms. M. and her husband mom and dad; (4) the minor has spent much time with the entire family and has developed a close bond and relationship with them; (5) the M.s are committed to providing the minor with a stable and nurturing environment, as well as a permanent placement; (6) the M.s initiated the process to have the minor placed with them; (7) the M. home is only a short distance from the minors half siblings; and (8) the minor will be enrolled at the same school as her friend, Alisha [M.]. The addendum report concluded it was in the minors best interest to place her with the M. family.

At the section 388 hearing on March 7, 2006, the court solicited information from the Department as to what had changed since the prior stipulation to demonstrate the M. family qualified as an NREFM. The Department presented evidence, through statements from the social worker, Susan Salisbury, and the minors attorney regarding the minors close relationship with the M. family and the M.s assurances the minor would be properly supervised. The Department also noted the minor would be able to transfer her job at In and Out Burgers to Southern California, and she would be willing to agree to urinalysis testing.

Appellant told the court she was now opposed to the motion and believed the M.s neither qualified as an NREFM, nor was it in the minors best interest to be placed with the family. A general objection was entered on behalf of the minors father in his absence.

Notwithstanding appellants objection, the court granted the Departments motion, finding sufficient evidence the M.s qualified as an NREFM pursuant to section 362.7, and the best interest of the child will be served by allowing her to reside in [the M.] household.

Appellant filed a timely notice of appeal.

DISCUSSION

Appellant contends the juvenile court abused its discretion when it granted the Departments section 388 motion because there was insufficient evidence of a change in circumstances from the June 28, 2005, ruling to qualify the M. family as an NREFM and, even if the family did qualify, there was insufficient evidence that placement of the minor in their home was in the minors best interest. We disagree.

At a hearing on a motion for change of placement, the burden of proof is on the moving party to show, by a preponderance of the evidence, there is new evidence or there are changed circumstances, such that a change of placement is in the best interest of the child. ( 388; In re Audrey D. (1979) 100 Cal.App.3d 34, 45; Cal. Rules of Court, rule 5.570(h).)

Whether a previously made order should be modified rests in the sound discretion of the juvenile court. When the court decides whether to grant or deny a petition to modify, its ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. (In re Michael B. (1992) 8 Cal.App.4th 1698, 1704; In re Corey (1964) 230 Cal.App.2d 813, 832.)

Here, in order to grant the section 388 petition, the trial court had to determine whether the evidence established the M. family qualified as an NREFM. An NREFM is defined as any adult caregiver who has an established familial or mentoring relationship with the child. ( 362.7.) It is the responsibility of the county welfare department to verify the existence of a relationship through interviews with the parent and child or with one or more third parties, including relatives of the child, teachers, medical professionals, clergy, neighbors, and family friends. (Ibid.)

At the June 28, 2005, progress report hearing, the information before the court regarding the M. familys qualifications as an NREFM included the following: (1) the May 31, 2005, pre-permanency review report, which included an assessment of the M. family, described the minors contact with the family in person and regularly over the phone, and noted the M. family considered the minor to be one of the family and provided her a respite during difficult times at home; and (2) the June 22, 2005, progress report, which included additional information obtained by the Department regarding the minors misconduct in the summer of 2004, namely, Ms. M. was working two jobs at the time and did admit that she was unaware of [the minors] drinking and general misbehavior, but she had since quit both jobs in order to stay at home full-time to meet the needs of her own children, as well as [the minors], if necessary. From that evidence, the court determined, without articulating its reasons, there was insufficient evidence to find the M.s qualified as an NREFM.

The next hearing regarding the M. familys qualification as an NREFM did not occur until March 7, 2006. In the interim, however, the court initially granted appellants July 21, 2005, petition for modification to prohibit unsupervised or overnight visits between the minor and the M. family, but later terminated appellants reunification services, vacated the no-contact order as to the M. family, and allowed the minor regular visits with the M.s while the Department evaluated the family as a permanent placement.

At the March 7, 2006, permanency hearing, the information before the court regarding the M.s qualifications as an NREFM included: (1) the stipulation of misconduct dated August 16, 2005; (2) the November 29, 2005, permanency report, which included an indication the minor had committed to turning away from the type of influences and behaviors that led to the stipulated misconduct, and appellants October 22, 2005, statement of consent to placement of the minor with the M. family; (3) the February 7, 2006, section 388 petition filed by the Department, which again discussed the strong emotional bond and relationship between the minor and the M. family and reiterated appellants agreement to the placement; and (4) the March 7, 2006, addendum report, which further detailed the length of the relationship between the minor and the M. family, their time spent together, the fact that the minor referred to the M. parents as mom and dad, and the existence of the close bond between the minor and the entire M. family.

The court specifically requested additional information from the Department, at the section 388 hearing on March 7, 2006, regarding changed circumstances since the prior stipulation now qualifying the M. family as an NREFM. The social worker responded she discussed the matter with Ms. M. numerous times and was guaranteed an adult would be in the home supervising the children 24/7. The court also requested an explanation as to how the M. family qualified as an NREFM and specifically how they occupied either a mentoring or familial role with the minor. The social worker responded by explaining the minor had known the M. family since 2002 and spent a great deal of time with them, living at their house and spending Christmas break with them. She said the minor and Ms. M. kept in constant contact, the minor confided in Ms. M. about life, and Ms. M. was there at any given time and very supportive of [the minor].

The court also heard from the minors attorney, who reiterated the amount of time the minor spent with the family and the closeness of their relationship, and explained Ms. M. made changes in her employment to be able to provide proper supervision to the minor and her own children. It was also noted the minor, herself, had made some changes: that she was focused on going to college and had apparently obtained permission from her employer at In and Out Burger to transfer her job to Southern California. She also agreed to random drug testing when necessary.

Contrary to appellants previous consent to the placement, appellant expressed her opposition to the motion, arguing that the M.s do not meet the qualifications of an NREFM because appellants only knowledge of these people is that they live down the street from the [former] stepfather and have a daughter about [the minors] age. Appellant also opposed the motion on the ground that, when [the minor] went to visit in December, one of the [minors half siblings] dropped out of school as a result of the [minors] visit and, because the two half siblings were apparently going to move to Sacramento to stay with appellant, its no longer a benefit that the boys are down there.

We conclude there was substantial evidence to support the trial courts conclusion that circumstances had changed sufficiently to allow the court to find that the M. family qualified as an NREFM. The close relationship between the minor and the M. family was detailed in both the written reports and in the statements offered by the social worker and the minors attorney. The minors relationship with the family began in approximately 2002. Since that time, she has spent a good deal of time with them, sharing summer breaks, holidays and vacations together and talking on the phone with Ms. M. and her daughters. The minor confides in Ms. M. about all aspects of her life, much like a child would with her parent, and derives support from Ms. M., who is there for her at any given time. The new evidence presented was sufficient to demonstrate a familial or mentoring relationship between the minor and the M. family.

With respect to the youthful misconduct, after the June 28, 2005, ruling, there was evidence of changed circumstances. Ms. M. guaranteed the Department the minor would have constant supervision provided by one parent or the other. The minor, herself, was now 17 years old and focused on keeping her job and going to college, and committed to avoiding the influences that led to the 2004 misconduct. Perhaps most importantly, appellant was in agreement with placement of the minor in the M.s home, at least until she changed her mind midway through the March 7, 2006, hearing. The court did not abuse its discretion in finding the M. family qualified as an NREFM.

There was also sufficient evidence to find that placement in the M. home was in the minors best interest. The November 29, 2005, permanency report noted appellant did not successfully complete her ordered Case Plan, had not been honest with the Department regarding her mental health therapy and treatment, and appeared unstable in conversation and appearance. Given appellants failure to complete reunification services and the minors continued resistance to reunification, the report concluded that it would be detrimental to force the [minor] to return home when such minute changes have been made to the situation that initially brought the family to the Child Welfare System.

In comparison, the minor consistently maintained her desire to be placed with the M. family, and the M. family expressed the same desire throughout the proceedings. The minor apparently demonstrated enough responsibility at work to obtain her employers permission to transfer her job with In and Out Burger to Southern California, and agreed to participate in urinalysis testing upon request. In addition to Ms. M.s guarantee of supervision 24/7, the Department promised courtesy supervision would be provided by the county in which the M.s live. Placement with the M.s would also mean the minor could easily spend time with her half brothers as long as they continued to reside with the minors former stepfather. As the court noted, it appears the minor had reestablished trust with the M. family since the summer 2004 incident, and was on a more responsible path to eventual emancipation and adulthood.

The court found both changed circumstances and the minors best interests would be served by allowing her to live with the M. family. We find no abuse of discretion in that ruling.

Appellant emphasizes she did not know who the [M.] family was and had not developed a relationship with them. However, section 362.7 does not require evidence of a relationship between the proposed NREFM and appellant. The Department need only verify the existence of a relationship between the NREFM and the child. ( 362.7.)

Appellant also complains the minors former stepfather and stepgrandmother were never contacted to ascertain the nature of the relationship between [the minor] and the [M.] family. That contention has no merit either. Section 362.7 permits verification of the minor-NREFM relationship through interviews with persons other than the minors parents and relatives, such as teachers, medical professionals, clergy, neighbors and family friends. (Ibid.)

Finally, appellant contends the social workers statements at the March 7, 2006, hearing should not be considered evidence to support the courts finding because they were unsworn statements. Where the adequacy of the oathtaking is not raised at trial, the issue is deemed waived on appeal. (People v. Berry (1968) 260 Cal.App.2d 649, 652-653; Trigueiro v. Skow (1937) 24 Cal.App.2d 253, 256.) Appellant failed to object to the social workers statements at the hearing, and has therefore forfeited the claim on appeal.

DISPOSITION

The order of the juvenile court is affirmed.

NICHOLSON , Acting P.J.

We concur:

BUTZ , J.

CANTIL-SAKAUYE , J.

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^[1] Further undesignated section references are to the Welfare and Institutions Code.

^[2] Appellant admitted a verbal confrontation with the minor, but denied that she hit the minor or caused any injury to her. Appellant also admitted marijuana use, but claimed she had a prescription for it. She also denied any knowledge of the alleged sexual abuse by the minors stepfather.

^[3] The parties stipulated to the misconduct on August 16, 2005.