In re Michael F.














Filed 3/20/17 In re Michael F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



In re MICHAEL F., a Person Coming Under the Juvenile Court Law.


SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

FRANCESCA T. et al.,

Defendants and Appellants.

D071103


(Super. Ct. No. NJ14311B)

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

Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant Francesca T.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant Marvin F.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.
Francesca T. and Marvin F. appeal from the juvenile court's order denying their request to place their son, Michael F., in the care of a nonrelative extended family member under Welfare and Institutions Code section 362.7.[1] We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Francesca T. and Marvin F. are the parents of Michael F., who was born in April 2016. Francesca and Marvin are intellectually disabled and receive services from the San Diego Regional Center. When Michael was born, nurses observed that the parents needed prompting to feed and change him, and Francesca struggled to understand what the nurses told her. A nurse said she did not believe the parents were capable of understanding and properly attending to an infant's needs. In one instance, Michael began choking during a feeding and the parents did not respond until a nurse intervened.
The San Diego County Health and Human Services Agency (Agency) detained Michael in foster care shortly after his birth and filed a section 300 petition, alleging he would be at substantial risk of serious physical harm because of his parents' inability to provide regular care to him. The detention report indicated that Francesca's first child (sibling or L.) had had health complications, including a genetic disorder, and was removed from her care in 2011, after which Francesca participated in reunification services but was unable to improve her parenting skills; her parental rights were terminated in 2011. It similarly recounted that Marvin's two older children were removed from his care in 2009, he did not complete reunification services and his parental rights were terminated in 2010.
When Michael was detained, Francesca identified her former sister-in-law, Maria M., as someone who would help them care for the baby. The social worker contacted Maria, who said she was willing and able to care for Michael in her home and, if necessary, to adopt him. Maria worked part-time and planned to allow her 18-year-old daughter to babysit Michael. The Agency approved Maria's home for placement but insisted Maria obtain a licensed childcare provider to care for Michael while she worked. On May 26, 2016, Commissioner Michael Imhoff granted the Agency's unopposed request to bifurcate the jurisdictional and dispositional hearing and informed the parties Commissioner McKenzie would preside at the jurisdictional hearing.
On July 15, Cynthia, the adoptive mother of Michael's half-sibling, L., contacted the Agency and expressed interest in having Michael in her care. Maria secured childcare for Michael on July 18.
On July 21, 2016, Commissioner McKenzie considered the Agency's detention and jurisdiction/disposition reports and attendant addenda, sustained the dependency petition and set a contested dispositional hearing. The Agency recommended the court bypass reunification services and set a section 366.26 hearing.
At a pre-trial status hearing, the parents requested that Commissioner McKenzie also preside at the dispositional hearing. Commissioner Imhoff denied the request, citing an impacted dependency court schedule.
At the dispositional hearing, the parents objected to Commissioner Imhoff's consideration of the Agency reports that were introduced at the jurisdictional hearing. They argued the witness testimony at the hearing significantly clarified in some respects, and deviated from in others, the information in the reports, and as such the reports constituted hearsay since the court did not hear that testimony; they also asserted that admission of the reports would violate their due process rights because they had no opportunity to cross-examine those witnesses at the current hearing. Francesca's counsel further argued that the parents had a constitutional right to have Commissioner McKenzie preside over the matter, which the court characterized as an "Arbuckle-type issue"[2] and rejected.
The Agency withdrew its request to bypass reunification services and agreed to develop a family reunification case plan, leaving Michael's placement as the only contested substantive issue. The parents asked the juvenile court to place Michael with Maria as a non-relative extended family member (NREFM) under section 362.7. The Agency, after initially agreeing to that placement, recommended the juvenile court place Michael in foster care with Cynthia.
The juvenile court admitted the Agency's reports in evidence. The reports showed that Francesca and Marvin had voluntarily participated in reunification services and shown some improvement in properly supporting Michael's head and responding when he choked. However, even after completing a 12-week parenting course, Marvin still required coaching and prompting to feed, hold and change Michael and Francesca needed prompting to complete basic childcare tasks. Francesca became frantic when Michael was upset and she was unable to soothe him. At one visit, the foster mother discovered the parents trying to feed Michael with a bottle with a moldy nipple and inner ring. The foster mother said Francesca's care of Michael was inconsistent. She would adequately respond to his needs at one visit, and not be able to appropriately respond to him at the next visit. During one visit, Michael hit his head on the ground while Francesca was playing with him.
The social worker testified at the hearing that the Agency had approved Maria's and Cynthia's homes for concurrent placement. Cynthia was the adoptive mother of Michael's half-sibling, who was then five years old; because of a developmental genetic disorder, the sibling could not speak, although he was able to communicate through electronic devices. The social worker acknowledged that Cynthia had expressed concerns about Francesca's behavior during the reunification period in the sibling's case, and was not comfortable having Francesca in her home. Francesca was opposed to placement with Cynthia because she believed her access to Michael would be restricted. The social worker knew that Maria had a long-standing, close relationship with Francesca but no longer had any concerns about Maria's willingness to fully report her observations about the parents' interactions with Michael. The social worker believed the two homes were equally conducive to reunification, but opined it was in Michael's best interests to be placed with his sibling, with whom he could develop a lifelong sibling bond. He acknowledged, however, Cynthia's concerns about supervising visitation between Francesca and Michael and that Cynthia would have the right to refuse to allow the parents to visit Michael in her home.
Maria testified she was Francesca's sister-in-law and her daughter was Michael's cousin. Maria was willing to allow Francesca and Marvin to visit Michael in her home and knew visits needed to be supervised because of the parents' disabilities. Maria had observed the parents with Michael once for 15 to 20 minutes and they were very good with him. She felt the parents deserved the opportunity to reunify with Michael and that Francesca was ready to take Michael home with her and parent him full time. When asked to explain, Maria said Francesca had been attending parenting classes, going to all her visits, accompanying Michael to his doctor appointments and "doing what a mom would do."
Michael's current foster mother said Maria recently accused her of being dishonest about the parents' ability to care for Michael. She testified Maria told her, "This baby needs to be with them."
The court found that the Agency had proceeded in good faith with respect to Michael's placement and Maria and Cynthia were acceptable placements for Michael. The court discounted the Agency's argument that placement with Cynthia was in Michael's best interest because he would establish a bond with his sibling, characterizing this as "a neutral factor" because Maria would also facilitate sibling contact. The court described several of the safety issues that occurred during visitation and said the primary caregiver must have an acute understanding of each parent's individual challenges to parenting and co-parenting. It expressed concern about whether Maria understood the effect the parents' challenges might have on Michael's health, welfare and safety, noting the caregiver's feedback on the parents' progress was critical. The court found it was not in Michael's best interest to be placed with Maria and ordered the Agency to place Michael in foster care. The parents appeal.
DISCUSSION
A
The Parties' Arguments
Francesca and Marvin contend the juvenile court erred when it did not place Michael with Maria. They point out Maria demonstrated her commitment to Michael by immediately coming forward and offering to care for him, to adopt Michael if necessary, and to support them in their reunification efforts. They argue the juvenile court abused its discretion by not considering their wishes and the goal of family reunification. They further argue the court's finding Maria would not provide accurate reports about their interactions with Michael is not supported by the evidence. The parents assert Maria would provide expanded visitation to them in her home, which would facilitate reunification. In contrast, placement with Cynthia would impede reunification because of her history with Francesca. Marvin also asserts the trial judge, who did not preside over the jurisdictional hearing, did not consider all the material facts related to placement.
B
Legal Framework and Standard of Review
An NREFM is "an adult caregiver who has an established . . . familial or mentoring relationship with the child," including a relative, teacher, medical professional, clergy, neighbor, or a family friend. (§ 362.7; Samantha T. v. Superior Court (2011) 197 Cal.App.4th 94, 108 (Samantha T.).) A child may not be placed with a NREFM unless that individual's home meets standards for the licensing of foster family homes and the placement is in the child's best interests. (Ibid.; see generally In re William B. (2008) 163 Cal.App.4th 1220, 1227 (William B.) [recognizing that "[t]he best interest of the child is the fundamental goal of the juvenile dependency system, underlying the three primary goals of child safety, family preservation, and timely permanency and stability," so that the child has the greatest opportunity to grow up to be a stable and well-adjusted adult.].)
"We review the juvenile court's order for abuse of discretion. '[R]eversal is warranted only if there is no reasonable basis upon which the trial court could conclude that its decision advanced the best interests of the child.' " (In re Joshua A. (2015) 239 Cal.App.4th 208, 218 (Joshua A.).)
C
The Juvenile Court Did Not Abuse Its Discretion in Denying the Parents'
Request to Place Michael in Maria's Care

We are not persuaded by the arguments the juvenile court abused its discretion by: emphasizing a caregiver's ability to accurately report information about the parents' progress; not considering the parents' wishes for placement; selecting a placement that was not conducive to expanded visitation; and not considering all material facts related to placement.
The court did not abuse its discretion in emphasizing the importance of having a caregiver who would report accurate information about the parents' progress. The court was not convinced Maria understood the effect the parents' challenges might have on Michael's health, welfare and safety, a concern that is substantiated by the record. Maria testified she did not agree with the social worker's assessment the parents lacked the ability to appropriately care for Michael. Although she had observed the interactions between Michael and his parents only once, for a brief period, Maria believed that Francesca was ready to take Michael home with her and parent him full time. Maria also told the foster mother that Michael needed to be with his parents.
Maria's views about Francesca's ability to care for Michael were at odds with the observations of professionals who had worked with the parents. Nurses and visitation supervisors reported that Francesca and Marvin required guidance on the basics of how to feed, hold and change Michael properly, including the use of clean bottles, and how to respond when he started choking. Francesca often was unable to soothe Michael. Further, Francesca was often unable to soothe Michael and her care of him was inconsistent, with her adequately responding to his needs at one visit but unable to do so at the next. Francesca and Marvin were unable to retain what they learned about caring for Michael from one visit to the next.
The record also shows that Maria provided much needed support to Francesca for many years, and acted as Francesca's advocate with the Agency. The court could have reasonably inferred from this that Maria's reports concerning the parents' progress, or lack of progress, were not completely objective. Based on Francesca and Marvin's significant intellectual disabilities and parenting challenges, reports that minimized their parenting deficiencies could endanger Michael's safety. Contrary to the parents' claim, the court's concern about the reliability of Maria's reporting is supported by substantial evidence.
The record further belies the claim the court did not consider the parents' wishes for placement in fashioning the dispositional order. Throughout the dependency proceedings, the Agency asked the parents about their preference for placement and included their wishes in the reports that were admitted in evidence. At the end of the dispositional hearing, the court said, "I don't think we should discount the argument [the] parents have made that they do have some concerns and hesitancy about Michael being placed in a home that has adopted a half-sibling. . . . If you were a parent, that has to create some anxiety. It just has to. And I think that the parents have a legitimate issue with respect to that." Thus, the record shows that the court was sensitive to, and fully considered, the parents' wishes and concerns about placement. The court nevertheless determined it was in Michael's best interest to be placed in foster care.
The record does not support the parents' claim that they would receive meaningful reunification services only if Michael was placed in Maria's home. As the court recognized, the social worker had demonstrated the expertise, patience and personality to work with parents with disabilities, and was actively engaged in providing visitation services to Francesca and Marvin. The court reasonably concluded the Agency could offer appropriate expanded visitation services to Francesca and Marvin if Michael was not placed in Maria's care and asked the Agency to explore whether Maria could help the Agency expand visits for the parents with an appropriate safety plan in place.
We reject the argument the court abused its discretion by not considering the entirety of the evidence that was presented at the jurisdictional hearing. The parents argue the testimony from the jurisdictional hearing was especially pertinent to the issue of reunification services and tailoring a case plan to accommodate their disabilities. However, the Agency offered voluntary services to the parents at the beginning of the case and based on their progress with voluntary services, it withdrew its request to bypass reunification services. The court properly found that the social worker was diligently working with the parents to accommodate their disabilities and to fashion an appropriate reunification plan.
We also reject the suggestion the court violated the parents' due process rights by considering the jurisdictional reports at the dispositional hearing without having heard the jurisdictional testimony. The parents had the opportunity at the dispositional hearing to cross-examine the social worker on any aspect of the jurisdictional reports, to
cross-examine Michael's current foster mother, who was called as a witness at both hearings, and to call witnesses to testify on their behalf. They could have asked the court to admit record transcripts from the jurisdictional hearing into evidence, but did not do so. Further, the parents do not identify any testimony at the jurisdictional hearing that might have changed the outcome of the dispositional hearing. We have reviewed the entire record, including the transcripts of the jurisdictional hearing, and conclude that error, if any, did not result in a miscarriage of justice. (Cal. Const., art. VI, § 13.)
The purpose of the dependency system is to provide maximum safety and protection for abused and neglected children, and to ensure the safety, protection, and physical and emotional well-being of at-risk children. (§ 300.2.) Maria's belief that Michael should be with Francesca, her testimony that Francesca was currently able to care for Michael, and her advocacy on Francesca's behalf, raised legitimate concerns whether Michael's placement with her would fully promote his health, safety and
well-being. The family's interest in reunification does not take precedence over the child's interest in safety, protection and well-being. (§ 300.2 [focus is on the preservation of the family as well as the child's safety, protection, and physical and emotional well-being].) The court did not abuse its discretion in concluding it was not in Michael's best interest to be placed with Maria. (Joshua A., supra, 239 Cal.App.4th at p. 218.)
DISPOSITION
The order is affirmed.

McCONNELL, P. J.

WE CONCUR:



BENKE, J.



NARES, J.



Publication courtesy of San Diego free legal advice.
Analysis and review provided by Santee Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com



[1] Further statutory references are to the Welfare and Institutions Code.
[2] People v. Arbuckle (1978) 22 Cal.3d 749, 756–757 stands for the general principle that "whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge."