In re SABRINA H.
Filed 4/20/07
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re SABRINA H. et al., Persons Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. AMBER G., Defendant and Appellant. | D049249 (Super. Ct. No. NJ 13364 A, C, D & E) |
Story continued from Part I ..
The procedures followed here were in substantial compliance with section 309, subdivision (d)(3). After Alfredo came forward and offered his home for the placement of his grandson and Amber's other children, Agency contacted DIF, which is its counterpart in Mexico, and arranged for a home evaluation of Alfredo. With respect to the required criminal background checks, Alfredo and Beth denied having a criminal history. Under section 309, subdivision (d)(3), such self-representations were sufficient. DIF recommended the children be detained there based on these and other factors, and Agency adopted the recommendation.
Given the temporary nature of detentions, and the Legislature's recognition of the need for different standards in evaluating homes for detention and for placement of dependent children (see fn. 9, ante), the detention orders here were proper. If the circumstances warrant it, under section 309, subdivision (d)(3), courts are authorized to detain a child with relatives or nonrelative extended family members in a prospective home prior to formal criminal background checks as long as the adults living in that home claim they have no criminal history other than traffic infractions.
B. Record on Appeal, Augmentation Request and Judicial Notice
With respect to Christina and Christopher's placement orders, Agency asks us to (1) augment the record on appeal with the social worker's post-judgment report prepared for the six-month review hearing originally scheduled in December 2006, and (2) rely on the information in the report to find the background check issues as to these two children are moot as well. Amber objected to Agency's augmentation request.[1] We agree with Amber that it would be inappropriate to augment the record with the social worker's report. Doing so would effectively put us in the role of fact finder, which properly belongs to the juvenile court. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 703-704.) "Making the appellate court the trier of fact is not the solution." (Id. at p. 703.)
Appellate courts rarely accept postjudgment evidence or evidence that is developed after the challenged ruling is made. (See In re Zeth S. (2003) 31 Cal.4th 396, 405, 413-414 (Zeth S.).) The Zeth S. court set forth the general rule that
" 'an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.' [Citation.] This rule reflects an 'essential distinction between the trial and the appellate court . . . that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law . . . .' [Citation.] The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal." (Id. at p. 405.)
Zeth S. was primarily concerned with postjudgment evidence aimed at a reconsideration of the lower court's factual findings and ultimately a reversal of the judgment. (Zeth S., supra, 31 Cal.4th at p. 413; see In re Josiah Z. (2005) 36 Cal.4th 664, 676.) Here, the postjudgment evidence proffered by Agency is aimed at showing the issue is moot, and it does not seek a reversal of the judgment. Nonetheless, given the hearsay nature of the social worker's report and no showing that Amber had an opportunity to cross-examine the social worker (see In re Malinda S. (1990) 51 Cal.3d 368, 384-385), we deny Agency's motion to augment the record on appeal.
However, on our own motion, we take judicial notice of the January 19, 2007 juvenile court minute order in Christina's case, which reads in pertinent part: "Minor is placed with the father." (Evid. Code, 452, subd. (d), 459, subds. (a), (c); see also Boghos v. Certain Underwriters at Lloyd's of London (2005) 36 Cal.4th 495, 505, fn. 6.)[2] Because we consider the minute order not as a basis to reverse, but to show that events occurring during the appeal render Amber's contention as to Christina moot, taking judicial notice here is not prohibited by Zeth S., supra, 31 Cal.4th 396.
The issue of whether required background checks were conducted before placement is not moot as to Christopher. Further, even if it were, we would still address the substantive issue because it is an issue of continuing public concern and is likely to recur. (See In re Christina A. (2001) 91 Cal.App.4th 1153, 1159.)
C. Adequate Background Checks Were Not Conducted Prior to Placement
Section 361.4, known as the Lance Helms Child Safety Act of 1998, is intended to protect dependent children who are in out-home-placements with relatives or other individuals other than licensed or certified facilities. (Los AngelesCounty Dept. of Children & Family Services v. Superior Court (2005) 126 Cal.App.4th 144, 150-151.) Before a child is placed in a home other than a licensed or certified foster home, the child services agency must conduct a criminal records check on all adults living in the potential home, and on any other known adult who may have significant contact with the child or who has a familial or intimate relationship with anyone living in the potential home. ( 361.4, subd. (b).) Within 10 days, the agency must follow this records check with a fingerprint clearance to ensure accuracy of the criminal records check. (Ibid.) If the criminal records check and the fingerprint clearance show no criminal record, the child services agency and the court may consider the home for placement of a child. ( 361.4, subd. (d)(1).) If the fingerprint clearance check shows that the individual has been convicted of a crime other than a minor traffic offense, the child shall not be placed in the home, unless a criminal records exemption has been granted by the appropriate authorities. ( 361.4, subd. (d)(2).)
The record shows Agency did not comply with section 361.4. Agency asked DIF to conduct an evaluation of Alfredo's home. A week later, Agency received a glowing evaluation by DIF, indicating Alfredo had a spacious home in a peaceful neighborhood and adequate means to provide for four of the children. Also, Alfredo and Beth denied having any criminal history. But Agency cannot properly rely on a self-report of no criminal history for placement purposes under section 361.4. Section 361.4 requires a review of criminal records and a fingerprint clearance check before a child can be detained or placed in an unlicensed or noncertified home. For purposes of placement, the DIF evaluation, absent criminal background checks comparable to those required under section 361.4, was inadequate.[3]
The court erred by placing Christina and Christopher in Alfredo's home without the required criminal background checks or comparable criminal record checks used in Mexico. (See fn. 12, ante.) As to Christina, the issue is moot, and we dismiss the appeal pertaining to her on this issue. However, it is not moot as to Christopher; accordingly, we reverse his placement order and remand his case with directions that the juvenile court instruct Agency to show (1) the mandatory background criminal checks required in section 361.4 or comparable criminal record checks used in Mexico of Alfredo and Beth have been conducted, and (2) these individuals do not have any criminal history other than minor traffic violations. Upon a proper showing, the court shall reinstate Christopher's placement order, if appropriate.
III. Lack of Required Statutory Notice of Intent Is Harmless Error in This Case
Amber contends Agency did not give her required notice of its plans to have the children detained in Mexico with Alfredo and did not make a showing of good cause for detaining the children outside of San Diego County. Although Amber has shown noncompliance with section 361.2, we find Amber has waived this issue and any error was harmless.
Section 361.2 requires that children shall not be placed outside the county of their residence unless notice is given and factual findings supporting such placement are made.[4]
Agency argues that Amber has waived or forfeited the assignment of error because she did not object on this ground below. Amber was present at the June 27, 2006, hearing when the court ordered the children detained in Alfredo's home in Mexico. Amber did not object on the basis of lack of notice or noncompliance with section 361.2. We agree with Agency that Amber waived the issue. (In re K.D. (2004) 124 Cal.App.4th 1013, 1018; see also In re Dakota H. (2005) 132 Cal.App.4th 212, 222.)
Putting aside the waiver issue, we agree Agency did not comply with the time requirements of section 361.2 with respect to the detention of Sabrina, Ashley, Christina and Christopher in the Mexican home of Alfredo. Agency did not give Amber or her counsel written notice of its intent to detain the children outside the county at least 14 days prior to the detention.
The question remains whether Agency's non-compliance with the notice requirements of section 361.2 was harmless in this case.
Errors in notice of dependency proceedings do not automatically require reversal; instead, we assess such errors to determine whether they are harmless beyond a reasonable doubt. (In re Daniel S. (2004) 115 Cal.App.4th 903, 912-913; In re Angela C. (2002) 99 Cal.App.4th 389, 393-394.) Amber was present and had the opportunity to object at the June 27, 2006, hearing in which the children were detained in Alfredo's home in Mexico. Amber has not demonstrated that she was prejudiced by Agency's noncompliance with section 361.2, subdivision (g). We conclude Agency's failure to give timely notice of its intent to detain the children in the Mexican home of Alfredo was harmless beyond a reasonable doubt.
Citing Judith P. v. Superior Court (2002) 102 Cal.App.4th 535 (Judith P.), Amber contends we should deem noncompliance with section 361.2, subdivision (g) as structural error, requiring per se reversal. In Judith P., the juvenile court, at a status review hearing, terminated the mother's reunification services and denied her request for a continuance and a contested hearing. (Judith P., supra, 102 Cal.App.4th at pp. 543-544.) The Court of Appeal held that the child welfare agency's failure to serve the mother with the hearing status report at least 10 days before the status review hearing as required by statute constituted structural error, requiring per se reversal because it prevented mother from preparing her defense. (Id. at pp. 553-558.)[5]
Even assuming that Judith P. is still good law after the Supreme Court's decision in In re Celine R., supra, 31 Cal.4th at pages 58-59 (see fn. 14, ante), the facts of Judith P. are distinguishable from the facts in this case. Judith P. involved an order terminating services and denial of requests for a continuance and contested hearing. The Court of Appeal noted: "It is fundamentally unfair to terminate either a parent's or a child's familial relationship if the parent and/or child has not had an adequate opportunity to prepare and present the best possible case for continuation of reunification services and/or reunification." (Judith P., supra, 102 Cal.App.4th at pp. 557-558.) This case involves a detention order, which is a temporary order that lasts only until the placement decision is made in a dispositional order.[6] Moreover, there was no request for a continuance, and the court did not deny Amber a contested hearing on the issue of Agency's jurisdictional/dispositional recommendations. We decline to apply the Judith P. analysis here.
IV. Detention and Placement Orders Were Within the Court's Discretion
Amber contends the juvenile court's orders detaining and placing the children in Mexico were absurd and, therefore, constituted an abuse of the court's discretion. The contention is without merit.
A juvenile court's placement orders are reviewed under the abuse of discretion standard; the court is given wide discretion and its determination will not be disturbed absent a manifest showing of abuse. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. (In re Stephanie M., supra, 7 Cal.4th 295 at p. 318-319.) A court has exceeded the bounds of reason by making an " ' "arbitrary, capricious, or patently absurd determination" '. . . ." (Id. at p. 318.) "Broad deference must be shown to the trial judge. The reviewing court should interfere only ' "if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did." ' " (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
We reject the notion that the detention and placement orders were absurd and find there was no abuse of discretion. The court properly gave preferential consideration to placement with Alfredo, Christopher's grandfather, who came forward and offered to care for Sabrina, Dakota, Ashley, Christina and Christopher. ( 361.3, subd. (a).) Although he was not related to Christopher's half-siblings, Alfredo knew the half-siblings, all of whom except Dakota had spent the recent Easter vacation with him. All of the children were willing to be placed with Alfredo. The DIF evaluated Alfredo's home and determined that he and Beth could properly care for the children. Alfredo and Beth were both retired, healthy and had known each other for 20 years. They had adequate income to provide for the children and a house that was large enough to accommodate the five children. These factors indicated it was in the children's best interests to be detained with Alfredo. The factors also indicated it was in the best interests of Christina, who was adamant at the time that she wanted to stay with Alfredo, and of Christopher, to be placed with Alfredo.
Amber complains that neither the court nor Agency would have authority over Alfredo and the power to control or regulate his care of the children. We are unpersuaded. DIF agreed to supervise the case on a monthly basis while the children were in Mexico. This is what DIF does; utilization of DIF services for dependent children placed in Mexico is well-established. For example, in In re Rosalinda C. (1993) 16 Cal.App.4th 273, 276, DIF reported the child to be in good condition on an unannounced home visit and follow-up call to the child's doctor. The Court of Appeal noted: "A juvenile court has a continuing responsibility to account for the welfare of a dependent child under its jurisdiction, wherever placed, unless and until a permanent and stable home is established." (Id. at p. 279.) Amber has not shown that the court and Agency, with the assistance of DIF, would not comply with their legal responsibilities and duties of ensuring the children's safety and best interests. Amber's claim is nothing more than speculation.
Amber claims it was an abuse of discretion to detain Dakota, who had threatened to harm Amber and his half-siblings, with the other children. Amber did not object to the detention on this point, and has therefore waived the claim. Moreover, the claim is moot because Dakota was returned to San Diego County at his dispositional hearing on July 20, 2006. (See fn. 3, ante.).
Amber claims that no provisions were made for the children's medical care while in Alfredo's home. The issue is moot as to all the children except Christopher. (See discussion in part II, ante.) In any event, the DIF report noted that a local medical clinic was nearby and "[t]he children will have medical services." We agree this information was vague. However, the report also noted that Alfredo and Beth had adequate income to provide for the children, and Alfredo indicated that he would pay for their medical care.
Amber claims placing the children in Mexico would frustrate or prevent her reunification services by restricting her ability to visit with the children. This claim is speculative. We are not persuaded otherwise by Amber's reliance on the incident in which Alfredo was not cooperative in setting up a visit with Christina's father on short notice.
Amber's reliance on "move-away" caselaw in family law is inapposite. We have already addressed the issue of background checks in part II, ante.
Amber has not met her burden of showing the court abused its discretion in detaining the children in the Mexican home of Alfredo and placing Christina and Christopher there.
DISPOSITION
The placement order in Christopher's case is reversed and the case is remanded for the limited purpose of the juvenile court assuring that the mandatory criminal background checks and fingerprint clearances or comparable criminal background checks and clearances used by Mexican officials have been conducted on Alfredo and Beth, and that these two individuals do not have any criminal convictions other than traffic infractions. Once this is accomplished, the court shall reinstate Christopher's placement order absent new information showing that the placement has not been effective in protecting Christopher or the placement is not appropriate in view of the criteria listed in section 361.3. subdivision (a)(1).
The challenge to Christina's placement in Mexico is dismissed as moot.
In all other respects, the orders and judgments are affirmed.
CERTIFIED FOR PUBLICATION
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
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[1] Amber also filed a motion to strike the new evidence in the brief of the children's counsel. The motion is granted.
[2] On April 11, 2007, we informed the parties of our intention to take judicial notice of the January 19, 2007, minute order and afforded them the opportunity to object. (Evid. Code 459, subd. (c).)
[3] We are unpersuaded by Agency's argument that a strict reading of section 361.4 is not required for placements in another state or in a foreign country. Of course, different procedures are followed in other jurisdictions and foreign countries. However, section 361.4 governs placement of dependent children who are placed outside California as well as in the state. In keeping with section 361.4, out-of-state placements must have some formal criminal background check by the appropriate out-of-state government agency before a California court may place a child out of state. Further, having denied Agency's motion to augment the record on appeal with the postjudgment social worker's report, we cannot rely on information in the report. An appellate court reviews the correctness of a judgment when it was rendered. (Zeth S., supra, 31 Cal.4th at p. 405.)
[4] Section 361.2, subdivision (g) provides: "Whenever the social worker must change the placement of the child and is unable to find a suitable placement within the county and must place the child outside the county, the placement shall not be made until he or she has served written notice on the parent or guardian at least 14 days prior to the placement, unless the child's health or well-being is endangered by delaying the action or would be endangered if prior notice were given. The notice shall state the reasons which require placement outside the county. The parent or guardian may object to the placement not later than seven days after receipt of the notice and, upon objection, the court shall hold a hearing not later than five days after the objection and prior to the placement. The court shall order out-of-county placement if it finds that the child's particular needs require placement outside the county."
[5] The Judith P. court relied heavily on criminal cases in holding the tardy delivery of the status report constituted structural error. The following year, our Supreme Court in In re Celine R. (2003) 31 Cal.4th 45, 58-59, criticized case law that analogized criminal cases to dependency cases; the high court observed that such an analogy was inapt.
[6] We are not persuaded by Amber's argument that the detention order was a self-perpetrating order or one that made continued placement in Alfredo's Mexican home "a fait accompli" at the subsequent dispositional hearing.
