In re S.K.

Filed 5/8/07 In re S.K. CA3

NOT TO BE PUBLISHED

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

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El Dorado County Department of Human Services (DHS) appeals from the juvenile courts orders granting Tracy K. and Brian K. (the parents), the mother and father of S.K. and A.K. (minors), reunification services and continuing placement of the minors in the home of the minors maternal grandmother. (Welf. & Inst. Code, 360, subd. (d), 361.5, 395; further unspecified section references are to this code.) DHS contends the order granting the parents reunification services was not supported by substantial evidence, and that the court committed reversible error in continuing the minors placement with their maternal grandmother. We disagree with those contentions and affirm the orders.

Facts and Proceedings

On June 27, 2006, DHS filed an amended juvenile dependency petition pursuant to section 300 on behalf of 14-month-old A.K. and six-week-old S.K. That petition alleged S.K. suffered a skull fracture while in the care of the parents, placing A.K. at a substantial risk of suffering abuse. DHS also alleged the injury constituted severe physical abuse. According to DHS, Tracys account of the injury, based on the minor falling off a changing table, lacked credibility.

The juvenile court sustained the amended petition. DHS recommended denial of reunification services to the parents. According to DHS, as the parents denied causing the injury to S.K., it was unlikely they would benefit from services. However, according to a report by DHS, the parents already had begun to participate in several programs.

The minors were placed in the Sacramento home of their maternal grandmother. According to DHS, the maternal grandmother had reported no difficulties with the minors. However, DHS was concerned that, as the maternal grandmother did not believe that the parents harmed S.K. intentionally, she would not protect the minors from the parents and comply with visitation requirements imposed on the parents.

At the August 24, 2006, disposition hearing, the maternal grandmother testified that she did not believe either parent had caused the injury to S.K. However, the maternal grandmother also told the juvenile court that, if the minors continued in her placement, she would not leave the parents alone with the minors during visits. Moreover, according to the maternal grandmother, after the hours of visitation between the minors and the parents were reduced, she had noticed that A.K. was suffering separation anxiety.

The maternal grandmother did not believe the reduction in visitation was beneficial to the minors. The maternal grandmother also told the court that if she learned the parents were harming the minors or using illegal drugs, she would notify authorities. The grandmother said previously that she placed the needs of the minors before Tracys needs, and that she would comply with all court orders. Finally, she expressed a willingness to adopt the minors.

At the conclusion of the disposition hearing, the juvenile court adjudged the minors dependent children and also granted the parents reunification services. According to the court, theres clear and convincing evidence that reunification services are likely to prevent reabuse or neglect. [] Im further finding that failure to try reunification would be detrimental to both of these children. Theyre closely bonded to both of the parents. [] [County Counsel]: Thats based on the grandmothers testimony. [] THE COURT: Basically, yes. And my recollection of the evidence at the jurisdiction hearing is its kind of latched onto the anxiety--separation anxiety that the grandmother testified about and it pertains primarily to the older child. And I am going to allow the child [sic] to continue to be placed with the grandmother.

Discussion

I

Reunification Services

DHS contends the juvenile courts order granting reunification services to the parents was not supported by substantial evidence. According to DHS, the testimony of the maternal grandmother that she did not believe any abuse occurred cannot be considered competent testimony that services to the parents will prevent further abuse of the minors. Moreover, DHS argues, the grandmothers testimony about the effect on the minors of the reduction in visitation hours with the parents was not sufficient testimony to show the existence of a bond between the minors and the parents.

Our review of the sufficiency of the evidence to support the judgment is limited to whether the judgment is supported by substantial evidence. Issues of fact and credibility are questions for the trial court and not the reviewing court. The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact. (In re Christina T. (1986) 184 Cal.App.3d 630, 638-639.)

The Legislature has determined that, in some situations, parents are not entitled to reunification services. Section 361.5, subdivision (b) lists those circumstances. For example, when the juvenile court has assumed jurisdiction over the minor pursuant to a finding of severe physical abuse, it need not provide services to a parent. ( 361.5, subds. (b)(5), (c).) However, subdivision (c) also states that the court may provide services where, based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent. The social worker shall investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate that reunification is likely to be successful or unsuccessful and whether failure to order reunification is likely to be detrimental to the child. [] The failure of the parent to respond to previous services, the fact that the child was abused while the parent was under the influence of drugs or alcohol, a past history of violent behavior, or testimony by a competent professional that the parents behavior is unlikely to be changed by services are among the factors indicating that reunification services are unlikely to be successful. The fact that a parent or guardian is no longer living with an individual who severely abused the child may be considered in deciding that reunification services are likely to be successful, provided that the court shall consider any pattern of behavior on the part of the parent that has exposed the child to repeated abuse.

As section 361.5, subdivision (c) makes clear, services may be provided if the juvenile court finds either that services are likely to prevent further abuse or that due to the bond existing between parent and minor, denial of services will be detrimental to the minor. In this case, the juvenile court made both findings. The record contains substantial evidence supporting each of the courts findings.

As the social workers report acknowledges, the parents comprise an intact family and a commitment to each other. They also have very supportive extended family members. Moreover, despite the recommendation of DHS not to offer them services, the parents already were participating in various programs. Under these circumstances, the juvenile court could find, as it did, that providing reunification services to the parents likely would prevent further abuse.

The record also contains evidence, in the form of the testimony of the maternal grandmother, that failure to offer services would be detrimental to the minors because of the minors bonds with the parents. As the grandmothers testimony made clear, she had substantial contact with the parents. Therefore, she was familiar with their circumstances and the nature of their relationship with the minors.

Contrary to the assertion by DHS in its opening brief, the maternal grandmothers testimony amounted to more than stating merely that one of the minors missed his parents. In fact, twice the maternal grandmother testified that the reduction in visitation hours was not beneficial for either minor. This testimony was certainly competent. On this record, the juvenile court reasonably could decide, as it did, that because the minors were bonded strongly to the parents, failure to attempt reunification would be detrimental to the minors.

The juvenile courts order granting the parents reunification services is supported by substantial evidence.

II

Placement with the Grandmother

DHS claims that, due to the continuing belief by the maternal grandmother that the parents did not intentionally cause any injury to S.K., the minors remain at risk of suffering additional abuse in the grandmothers custody. Accordingly, DHS argues, the juvenile court committed reversible error in placing the minors with the maternal grandmother.

Subdivision (a) of section 361.3 provides in part: 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. In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors:

(1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs.

(2) The wishes of the parent, the relative, and child, if appropriate.

(3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement.

(4) Placement of siblings and half-siblings in the same home, if that placement is found to be in the best interest of each of the children as provided in Section 16002.

(5) The good moral character of the relative and any other adult living 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.

(6) The nature and duration of the relationship between the child and the relative, and the relatives desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful.

(7) The ability of the relative to do the following:

(A) Provide a safe, secure, and stable environment for the child.

(B) Exercise proper and effective care and control of the child.

(C) Provide a home and the necessities of life for the child.

(D) Protect the child from his or her parents.

(E) Facilitate court-ordered reunification efforts with the parents.

(F) Facilitate visitation with the childs other relatives.

(G) Facilitate implementation of all elements of the case plan.

(H) Provide legal permanence for the child if reunification fails. [] . . . [] . . . The court shall order the parent to disclose to the county social worker the names, residences, and any other known identifying information of any maternal or paternal relatives of the child. This inquiry shall not be construed, however, to guarantee that the child will be placed with any person so identified. The county social worker shall initially contact the relatives given preferential consideration for placement to determine if they desire the child to be placed with them. Those desiring placement shall be assessed according to the factors enumerated in this subdivision. The county social worker shall document these efforts in the social study prepared pursuant to Section 358.1. . . .

As subdivision (a) of section 361.3 makes clear, the agency and juvenile court are charged with according preferential consideration to the request of a relative placement. However, there is no obligation simply to grant such a request on a specified showing. (In re Luke L. (1996) 44 Cal.App.4th 670, 679-680.) Ordinarily, placement decisions are subject to the abuse-of-discretion standard. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.) The linchpin of the analysis is whether placement with a relative is in the best interests of the minor. (In re Stephanie M. (1994) 7 Cal.4th 295, 321.) By statute, the social worker must document in social study reports efforts made to place a minor with a relative. ( 361.3, subd. (a).)

From our review of the record, we are persuaded that the juvenile courts decision granting placement of the minors with their maternal grandmother was well within its discretion. Balancing the benefits of maintaining extended family relationships against the interests of the minors in permanence and stability is a critical element in the placement decision. Here, of course, the record reflects the minors are obtaining the benefits of both factors.

Contrary to the assertion by DHS that the maternal grandmother has demonstrated a failure to appreciate the dangers posed to the minors by the parents, the grandmothers testimony made it clear that she was mindful of those dangers and would do everything she could to protect the minors against anyone, including the parents. The grandmother also said she would comply with all court orders, regardless of whether she agreed with them.

The social workers report discloses no evidence of any difficulties caused by the minors placement in the maternal grandmothers home other than the argument that it was inappropriate to do so because she did not acknowledge the abuse. Moreover, it is clear from her testimony that the grandmother cares a great deal for the minors. We conclude the juvenile courts placement order was proper. There was no abuse of discretion.

Disposition

The orders of the juvenile court are affirmed.

HULL, J.

We concur:

SCOTLAND, P.J.

BUTZ , J.

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