In re Theresa M.

Filed 12/7/07 In re Theresa M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. James C. McGuire, Judge. Affirmed.

Amy Zimmer Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Sandra D. Baxter, Deputy County Counsel, for Plaintiff and Respondent.

Jennifer Mack, under appointment by the Court of Appeal, for minors.

Appellant Kimberly W. (mother) appeals from a juvenile courts order for an Interstate Compact on the Placement of Children (ICPC) evaluation. She argues that the ICPC order must be reversed. Mother also claims that if the case is remanded, it should be assigned to a different judge, since the judge below allegedly had already determined that her reunification efforts were doomed to failure. We disagree and affirm the order.^[1]

FACTUAL AND PROCEDURAL BACKGROUND

On January 9, 2007, the San Bernardino County Department of Childrens Services (the department) filed Welfare and Institutions Code^[2]section 300 petitions, for the second time, on behalf of mothers children, Dominic and Theresa (the children). Dominic was three years old at the time, and Theresa was four. The petitions alleged that the children came within section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (e) (severe physical abuse). Specifically, the petition included the allegations that: 1) the children were at substantial risk of being physically abused by mother because they had previously been abused by her and declared dependents of the court; 2) in August 2004, mother was convicted of child abuse; 3) mother failed to complete adequate services to reduce the risk to children; 4) on January 5, 2007, as well as on previous occasions, the home of the childrens father (father),^[3]where they resided, was found to be unfit for human occupancy (littered with trash, human feces, dirty dishes, and dirty clothing); and 5) father suffered from a substance abuse problem.

In the detention report, the social worker stated that the military police found the children unsupervised, in a running vehicle. The children were filthy and smelled of urine, and they told the police that father put them in the vehicle and then went inside their home. The police found father and his girlfriend asleep in the home. The house was filthy.

The social worker also reported that, in September 2004, when mother and father were married, the children were removed from their custody when mother severely physically abused Theresa. Theresa suffered multiple bruises, contusions, and fractures. Mother also physically abused Dominic. Mother was convicted of child abuse and served 14 months in prison. The court declared the children dependents of the court and found that the children came under section 300, subdivisions (a), (b), (e), and (g). However, in November 2004, the petitions were dismissed when father sought and was awarded custody of the children via a family law order. Mothers oldest child, Samantha, also reported being abused by mother and was removed, as well. All three children resided with the paternal grandmother during the time mother was incarcerated and father was stationed overseas with the military. Samantha continues to reside in Oregon with the paternal grandmother under a permanent plan of guardianship. Mother was released from prison in October 2005.

On October 8, 2005, the police found the children unsupervised and on a road far from fathers home. The children were filthy, had no shoes on, and Dominic had an old, soiled diaper. The police took the children home and found father asleep. In December 2005, mother sued for divorce and sought custody of the children through the family court. The family court ordered, per the parties agreement, joint physical custody. Each parent was to have the children for one-week intervals, with visitation on the noncustodial week. Mother and father divorced on July 10, 2006. Mother remarried in September 2006.

In the instant case, on January 10, 2007, the juvenile court detained the children and placed them in foster care. Mother asked to be assessed for placement, but the court refused the request. Then, at fathers and mothers request, the court authorized the social worker to assess the paternal grandmother for possible placement.

Jurisdiction/disposition

On January 25, 2007, the social worker filed a jurisdiction/disposition report, recommending that the children be declared wards of the court and that mother and father be provided with reunification services. The social worker interviewed mother, and mother told the social worker that she was awarded joint custody of the children and had been visiting the children overnight for the past year. Mother reported that while incarcerated, she completed a six-week parenting class, 14 hours of drug and alcohol prevention, and one year of counseling. The social worker opined that mother had not completed sufficient counseling to reduce the risk of child abuse. The social worker recommended that an ICPC be initiated for the paternal grandmother, who was willing and able to care for the children. The children previously told the police that they wanted to live with their grandmother. The social worker attached a case plan which required mother to participate in general counseling, an anger management program, a 52-week child abuse program, and a parenting program.

At the jurisdiction/disposition hearing on January 31, 2007, mother withdrew her request for the paternal grandmother to be assessed for placement, since the department was recommending that mother be offered reunification services. Mother felt that placement with the paternal grandmother would hinder her ability to reunite with the children. The court found that the children came under section 300, subdivisions (a) and (b), declared them dependents of the court, and removed them from mother and father. The court maintained the children in foster care and ordered supervised visitation. The court also approved the case plans and ordered mother and father to participate. Subsequently, mother requested that the supervised, weekly visitation be increased from one hour to two hours. The court so ordered.

ICPC Request and Hearing

On April 30, 2007, the social worker filed an ex parte motion requesting the courts authorization to initiate an ICPC evaluation of the paternal grandmothers home in Oregon. The social worker stated that mother and father did not expect to be finished with their case plan within the allotted timeframe. The social worker further stated that the children had spent a substantial amount of time in the paternal grandmothers home when mother was incarcerated and father was deployed overseas. Mother objected to the request, and a hearing was set for May 22, 2007.

On May 7, 2007, the social worker informed the court that the children had to be removed from their foster home and placed in a new foster home. The children were placed together.

At the hearing on the ICPC request, mothers counsel argued that she did not see a reason to initiate an ICPC evaluation since mother was almost done with her case plan. She asserted that mother would be graduating from her parenting class and anger management class in a few weeks, and that she had already finished three months of the child abuse program. She argued that mothers reunification efforts would be impeded if the children were sent to Oregon. Counsel for the department replied that the paternal grandmother already had one of mothers children placed with her permanently, and that the children were bonded to that child. The social worker added she was asking for an ICPC to be initiated because the children were in their third placement, and they were not doing well. The court then ordered the department to initiate an ICPC evaluation. When mothers counsel reiterated that mother would be done with the majority of her case plan within the next two weeks, the court responded: Mother is not my concern. My concern is the best interests of the children. The children are having difficulty in their placement. [] . . . [] Theyre bonded to their sibling[] who [is] already in another placement. And thats whats of concern to me, the security and well-being of children. [] . . . Best interests of the children is where they will be with people they have bonded with, and people they have an affection for. And mother apparently didnt bond with the child[] that [has] been removed, because [she is] in permanency. The court then stated that the ICPC petition was signed and approved. Counsel for the department asked, So, once [ap]proved, the children can go to Oregon? The court answered, Yes. Counsel for the department added that the department would pay for one trip a month for mother to travel to Oregon to visit the children, and that mother could visit the children in Oregon more often if she wanted to. The court then confirmed that the six-month review hearing was set for July 31, 2007.

ANALYSIS

The Court Properly Authorized the ICPC Request

Mother argues that the court abused its discretion by granting the ICPC request and authorizing out-of-state placement, since placing the children in Oregon would make reunification extremely difficult. We find no abuse of discretion.

A. Standard of Review

We review a juvenile courts custody placement orders under the abuse of discretion standard of review; the court is given wide discretion and its determination will not be disturbed absent a manifest showing of abuse. [Citations.] 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 courts action, no judge could reasonably have made the order that he did. [Citations.] [Citation.] [Citation.] (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863 (Alicia B.).) The linchpin of a section 361.3 analysis is whether placement with a relative is in the best interests of the minor. [Citation.] (Id. at pp. 862-863; see also, In re Luke L. (1996) 44 Cal.App.4th 670, 680 (Luke L.).)

B. There Was No Abuse of Discretion

In determining whether to place a child with a requesting relative, the court and social worker consider the factors enumerated in section 361.3, subdivision (a). Those factors are: (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. [] . . . [] (I) Arrange for appropriate and safe child care, as necessary. [] (8) The safety of the relatives home . . . . ( 361.3, subd. (a).)

Here, the paternal grandmother requested that the children be placed with her. As required, the court accorded her preferential consideration. ( 361.3.) The record before the court showed that father wanted the children placed with the paternal grandmother, and that the children wanted to live with her. Furthermore, the children had previously lived with the paternal grandmother for a substantial amount of time, and the childrens half-sibling, with whom they were bonded, was placed with the paternal grandmother permanently. Moreover, it was reasonable for the court to infer that, since the childrens half-sibling was placed by another court with the paternal grandmother, the grandmother would be able to provide a safe and secure environment for the children. In addition, the social worker informed the court that she was asking for an ICPC evaluation because the children were not doing well in their third foster placement. The court prioritized the childrens best interests and determined that they should live with someone they had affection for and someone who would take good care of them. Accordingly, the court authorized the ICPC for the paternal grandmothers home to be started.

Mother mainly argues that placing the children in Oregon would effectively negate the visitation component of [her] service plan because of the distance, and, thereby, make reunification nearly impossible. She cites Luke L., supra, 44 Cal.App.4th 670, in which the court disagreed that the agencys plan to provide funds for bus, lodging, and meals twice per month would ensure that the appellant mother would have a reasonable opportunity to achieve reunification with her children. The court there found that the result of such an arrangement would require many long hours in transit by bus and be a substantial reduction in the amount of actual time appellant would receive for visitation. (Id. at p. 681.) While we recognize the similar circumstances between Luke L. and the instant case, we simply do not believe that placing the children in Oregon would deprive mother of a reasonable opportunity to pursue reunification. (Ibid., italics added.)

Mother appears to be only concerned with how the possible placement in Oregon would affect her reunification efforts. However, she neglects to mention anything about the childrens best interests in being placed with their paternal grandmother. In contrast, the court properly put the childrens best interests first in its consideration. (Alicia B., supra, 116 Cal.App.4th at pp. 862-863.) Furthermore, visitation was only one component of mothers reunification plan, and consideration of the proximity of mother to the placement in Oregon (see Fam. Code, 7950) was only one of many factors the court here was required to consider. ( 361.3, subd. (a).) We acknowledge that if the children were ultimately placed with the paternal grandmother in Oregon, visitation would be more difficult, but not impossible. The department planned to pay for one trip per month for visits, and mother was permitted to visit the children more than that, on her own.

Mother also contends that there was no evidence to support statements by the departments counsel that the children were having difficulty in their current placement and that the children were bonded to their half-sibling in Oregon; thus, she argues that the court improperly relied on those statements in considering whether to grant the ICPC request. However, mother did not object to the veracity of those statements in court, and the trial court had no reason to question whether or not they were true. Moreover, there were other factors that the court considered in making its decision. (See ante.)

Ultimately, the fundamental duty of the juvenile court is to assure the best interest of the child . . . . [Citation.] (Alicia B., supra, 116 Cal.App.4th at p. 864.) Viewing the evidence most favorably in support of the courts action, as we must, we cannot say that the courts decision to authorize the ICPC evaluation of the paternal grandmothers home in Oregon was arbitrary or capricious. (Id. at p. 863.)

C. The Courts Order Did Not Violate the ICPC

Mother argues that the court erred in authorizing the placement of the children to Oregon before it received any information concerning the paternal grandmother or her home. Mother claims that the record was ambiguous as to whether the court authorized immediate placement or placement after the department received notification from the Oregon authorities. Thus, the courts order violated the ICPC. We find no error.

The court did not order the immediate placement of the children with the grandmother in Oregon. At the hearing, counsel for the department stated, Were just asking for ICPC [to] be initiated, not to move the children today. The court stated that it understood and that it would sign the ICPC order. To confirm, the departments counsel stated, So, once [ap]proved, the children can go to Oregon? The court responded, Yes. The court signed a Judicial Council of California approved form (JV-567) which stated that the paternal grandmothers home was available to the children for placement, the placement recipient was qualified under statute, and the proposed placement recipient [was] a . . . grandparent . . . of the child[ren] and the child[ren] ha[d] spent a substantial length of time in the home of the proposed placement recipient. (Italics added.) The form further stated that [s]ubject to an approved home study and case plan, this placement would not be contrary to the best interest[s] of the child[ren]. The form also indicated that there would, at some point, be a hearing on a progress report. By signing this form, the court simply ordered the department to start an ICPC evaluation of the paternal grandmothers home. The actual placement of the children there was still subject to an approved home study. We note that mothers counsel understood that the court was not ordering the immediate placement of the children in Oregon since she asked the court, meanwhile, while the children are still here, [can] mother[s] visits be liberalized, as well?

Mother relies upon In re Eli F. (1989) 212 Cal.App.3d 228, 232 (Eli F.), in support of her position, but Eli F. is distinguishable. In that case, the court placed the minor with his maternal aunt in Alabama pending adoption. It was undisputed that the courts order placed the minor in Alabama. (Id. at p. 237, fn 7.) Furthermore, the juvenile court had no information before it regarding the stability, safety, or even existence of the home in Alabama to which it sent the minor. Thus, the appellate court reversed the placement order since the order violated the ICPC. (Id. at pp. 238-240.) In the instant case, as discussed above, the court did not actually place the children in Oregon.

Mother further claims that, by authorizing [the] transfer without the proper notification, the court effectively delegated the decision for placement to the Department. This claim is at odds with her other argument that the court already ordered the placement of the children in Oregon. In any case, there is no indication in the record that the court delegated the placement decision to the department.

In sum, we find no error in the courts decision to sign the ICPC order. Thus, no remand is necessary. As such, we need not entertain mothers request to assign the case to another judge upon remand.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ HOLLENHORST

Acting P.J.

We concur:

/s/ GAUT

J.

/s/ MILLER

J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] Counsel for the children filed a letter brief on September 18, 2007, urging us to affirm the juvenile courts order.

^[2] All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.

^[3] Father is not a party to this appeal.