Filed 9/11/17 In re J.M. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Minor J.M., who was removed at birth due to her mother’s substance abuse, appeals from juvenile court orders denying placement with the paternal grandparents. (Welf. & Inst. Code, § 361.3.)[1] J.M. contends the juvenile court abused its discretion in denying placement with the paternal grandparents. We will affirm the juvenile court orders.

BACKGROUND

When J.M. was born in November 2015, both she and mother tested positive for methamphetamine. J.M. was premature and placed in the neo-natal intensive care unit (NICU). Mother admitted to an extensive history of drug use, using methamphetamine during pregnancy, and not obtaining prenatal checkups during pregnancy. Father also had a lengthy history of substance abuse, including methamphetamine, but stated he no longer used drugs. Both mother and father had extensive criminal records as well. Father’s criminal record included a 2007 conviction for indecent exposure. He was required to register as a sex offender and as a narcotics offender and was not permitted to be around children. Mother had previously lost custody of four other children.

On December 4, 2015, San Joaquin County Human Services Agency (Agency) filed a section 300 petition on behalf of J.M., alleging she came within the provisions of subdivisions (b) (failure to protect) and (j) (abuse of sibling). A team decision meeting was held to establish a safety plan for J.M. The Agency discovered that J.M.’s sibling, S.M. (born April 2014), was in a guardianship with the paternal grandparents and that they were willing to be assessed for placement of J.M. At the December 7, 2015 detention hearing, the juvenile court ordered J.M. detained and authorized an evaluation of the grandparents’ home for placement.

The grandparents and S.M. had visited J.M. regularly while she was in the NICU. The environmental condition of the grandparents’ home was found to be suitable (i.e. clean, organized, and lacking structural defects), but the parents lived in the grandparents’ home. The grandfather told the Agency that the parents resided in the grandparents’ home because he was trying to help them. Father had lost his job and apartment. The grandfather stated that mother had periods of sobriety and relapse, which he blamed on her contact with her family. Father said he no longer used drugs and had been sober for one year. He also said he was paroled to the grandparents’ home and could not move out. Because the parents lived in the grandparents’ home, J.M. was placed in foster care when she was released from the hospital on December 13, 2015.

The juvenile court sustained the allegations in the section 300 petition on March 3, 2016. At that time, the parents were still reporting to the juvenile court that their address was the grandparents’ home. Father’s sex and narcotics offender registration form, filed February 2, 2016, also reflected his residence as that of the grandparents’ home.

The Agency filed a disposition report on April 4, 2016. By that time, mother had moved out of the grandparents’ home. Father was said to have “been staying at the paternal grandparents’ home or at a hotel that they pay for.” Father, however, had not changed his address with the Agency or the juvenile court.

Neither parent was visiting J.M. on a regular basis, bonding with her, or engaging in any services to address the parents’ substance abuse. Father had been recently arrested for failure to charge his ankle monitor and had tested positive for methamphetamine. As a result, he was required to participate in a 30-day rehabilitation program. According to his parole officer, he had been missing classes and was in jeopardy of another parole violation. Additionally, neither parent was maintaining contact with the Agency. The social worker recommended the parents be bypassed for services.

The grandparents had been visiting J.M. every other week, and brought sibling S.M. to the visits. Both parents wanted J.M. placed with the grandparents and the grandparents also wanted placement. The Agency, however, was no longer considering placement with the grandparents. The Agency had provided the grandparents with an overnight visit with J.M. to assess their ability to care for her. It held a team decision meeting with the grandparents on March 22, 2016 -- prior to the visit. At that meeting, the Agency made it clear that father was not allowed to be at their home. Nonetheless, although the grandparents denied it, father was present in their home during the time of the visit.

Father did not appear at the April 7, 2016 disposition hearing. The juvenile court denied father reunification services and continued the hearing as to mother. Mother did not appear at the continued disposition hearing on June 27, 2016 and, she too, was denied reunification services. J.M.’s counsel requested a contested hearing on placement, noting that the grandparents had been “approved” and then subsequently denied placement. The juvenile court set the placement hearing for July 29, 2016.

At the placement hearing, the social worker testified that the grandparents had been visiting J.M. since birth and were initially approved for placement at a team decision meeting. The approval, however, was conditioned on meeting agreed conditions, including that father was not to be in the home.

The overnight visit was scheduled to assess the grandparents’ ability to care for J.M. in the home. At an earlier court hearing, the social worker had observed grandmother “very roughly” put S.M. in a stroller and smack her on the leg several times. When confronted, grandmother told the social worker she was stressed out and frustrated because she was trying to get the toddler quiet to come into court. The social worker had some concern about the grandparents’ level of stress with the addition of J.M. J.M.’s physician indicated that J.M. had dysphagia, gastroesophageal reflux, and a problem feeding. J.M.’s doctor believed it was possible that her lower intestine was twisted. J.M. was developmentally delayed and was engaged in feeding therapy, speech therapy, and physical therapy.

The social worker also had concerns that the grandparents would not protect J.M. from contact with father and that they would allow father to be in the home without approval. At the time the grandparents’ home was assessed, father had reportedly moved out and grandparents denied that they had a garage. After eventually admitting they had a garage, the social worker found all of father’s belongings in it. She felt they had tried to deceive the Agency.

The grandparents’ overnight visit took place on March 23 and 24, 2016. The social worker was unable to consistently or accurately recall the time that the grandparents picked up J.M. on March 23, 2016, but J.M.’s foster mother testified that the grandparents picked up J.M. around 3:00 or 3:30 p.m. on March 23, 2016 and brought her back at 3:45 p.m. on March 24, 2016. The social worker had earlier reported that J.M. was returned from the overnight visitation with diarrhea and a crusty substance in her private areas. After the overnight visit, the social worker spoke with father’s parole officer and discovered father’s ankle monitor revealed he had been in the grandparents’ home during the time of the overnight visitation. The parties stipulated that the ankle monitor revealed father was in the grandparents’ home on March 23, 2016, from 11:45 a.m. to 11:54 a.m., and again at 2:36 p.m. for an unknown length of time.

Grandfather testified that their home was assessed for placement around the end of December 2015. Father had lived in the grandparents’ home for 20 to 30 days before the house was assessed. Grandfather testified that father had lost his job and apartment around December 2015 because he had been using drugs and that father was using drugs when he moved into the grandparents’ home.

Prior to the assessment, grandfather told father he had to move out, so the grandparents got father a motel and took all of his belongings to a storage place. Upon further questioning, grandfather admitted that some of father’s belongings were put in the garage.

Grandfather testified that he was told J.M. was going to be placed with them and it was made clear that father could not have contact with her. He said the grandparents, with S.M., picked up J.M. at 1:00 p.m. on March 23, 2016 for an overnight visit. They went to lunch and then to S.M.’s appointment with a doctor. They checked in at doctor’s office at 3:40 p.m. for a 4:15 p.m. appointment. They returned home with the minors around 6:00 p.m. Grandfather knew father had come over to his house while they were gone that day. Father began attending a drug program in March 2016, as required by his parole officer. The program was held from 8:00 a.m. to 3:30 p.m., every week day, and father got a break for lunch from 11:00 a.m. to 12:00 p.m., or 12:00 p.m. to 1:00 p.m. The program was nearby and, every day, father would ride his bike to the grandparents’ house for lunch. Father did this daily for about two months. Grandfather had instructed father not to come over anymore but father came anyway. Accordingly, grandfather had “stepped out” over the lunch time on both days of the overnight visitation. Father did not have any contact with J.M. during the grandparents’ overnight visitation. Grandfather stated that father no longer comes to their house. The grandparents now bring father food and water when he calls and says he is hungry or thirsty.

Grandfather was asked if he knew the reasons why father was not supposed to have contact with S.M. when S.M. had been a dependent of the court. The following colloquy took place:

“[Grandfather]: [E]very time [mother] was pregnant, she was using drugs. And every time she was about to give birth, the hospital found drugs on her body. And that’s why they took away [S.M.], the first -- our first granddaughter. And that’s why they took away [J.M.] also.

“[Counsel]: Okay. Does your son use drugs?

“[Grandfather]: Yes, he does. He does, Ma’am, yes.

“[Counsel]: So it wasn’t just that the mother of [S.M.] used drugs?

“[Grandfather]: Well, he -- he said he did it out of anger, because he said that he couldn’t control his wife. And he said that when they found that, he started all over again. I can show you pictures. He had one year clean.

“[¶] . . . [¶]

“[Counsel]: Your -- when you -- is there any other reason you think your son is not supposed to be around [S.M.] or [J.M.]?

“[Grandfather]: Well, they try -- he was -- he had a misdemeanor about seven years ago, and they said that he put -- they put him that sex offender. And that’s why they were saying that my son couldn’t have any contact with both of them, with [S.M.] -- at first with [S.M.], and then with baby [J.M.]”

Grandfather said that, during S.M.’s dependency, father was not living with him, was not doing drugs, and only had visits with S.M. at the Child Protective Services office. After the grandparents were given guardianship of S.M., grandfather started letting father come to the house to see S.M. Later, father lost his job and apartment because he was using drugs, so he let father move into the grandparents’ home. He assured counsel, however, that father had never harmed S.M. in any way.

The juvenile court took the matter of J.M.’s placement under submission, indicating that, although it did not question the grandparents’ commitment to J.M., it was concerned whether they could protect the minors from father. Thereafter, the juvenile court stated that it had considered the section 361.3, subdivision (a) factors and was denying the request for a placement change to the grandparents. The juvenile court explained that it was concerned whether the grandparents could provide safety for the children and set boundaries with father. Father has an ongoing substance abuse problem, was living in the home with S.M., and the grandparents did not appear to see a problem with that. And at the time of J.M.’s visit, father still had access to the home, which was especially concerning to the court because of father’s prior sex offense. The juvenile court noted that grandfather had minimized that conviction, saying it was just a misdemeanor, but the court considered it to be “a big deal.” The juvenile court also briefly mentioned the incident with S.M. and the grandmother in the court hallway, noting J.M.’s medical needs.

The section 366.26 hearing took place on October 26, 2016. The social worker reported that J.M. was bonded to the foster parents and they wished to adopt her. The juvenile court found J.M. likely to be adopted, that no exceptions to adoption applied, and terminated parental rights. The juvenile court encouraged the grandparents to set aside resentments and cooperate with the foster parents so as to maintain involvement in J.M.’s life.

DISCUSSION

Under section 361.3, subdivision (a), the agency and juvenile court must give preferential “consideration” to the request of a relative for placement. But that does not necessarily require such a placement. (In re Luke L. (1996) 44 Cal.App.4th 670, 679-680, italics omitted.) Placement decisions such as the application of the relative-placement preference are reviewed for abuse of discretion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The linchpin of the analysis is whether placement with a relative is in the best interests of the minor. (Id. at p. 1068; 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)(8).)

The issue for the juvenile court in this case was whether, considering the suitability of the paternal grandparents’ home and the best interests of the minor, placement with the paternal grandparents was appropriate and in the minor’s best interests. (§ 361.3, subd. (a); In re Stephanie M., supra, 7 Cal.4th at p. 321.)

Grandfather testified that prior to the March 23, 2016 overnight visitation, he had father move out of the house and into a motel, paid for by grandfather. However, grandfather also testified that father was still coming over to his house every day at lunch time. And although grandfather testified that he told father not to come over to the house, father still had access and exercised such access, as demonstrated by father’s two visits on J.M.’s visitation day. Furthermore, these appearances were not a surprise; grandfather anticipated that father would come over to the house that day (and the next) and purposely absented himself and the minor during the time father was likely to come over. In fact, the record supports the inference that father continued to consider grandparents’ house his residence throughout these proceedings. He never filed a change of address with the juvenile court, as evidenced by the proofs of service contained in the record. He registered as a sex offender and drug offender with the grandparents’ address and told the social worker he could not move. There is evidence that father had unfettered access to grandparents’ house and grandparents were unable to set adequate boundaries with father.

Grandfather also minimized father’s substance abuse. Father has an ongoing and active drug addiction, which had recently caused him to lose his job and apartment. Just a couple of months later, he tested positive for drugs and, thereafter, began missing classes he was required to attend by his parole officer. Yet grandfather suggested father used drugs out of anger at mother and emphasized that father had been clean for a year before that. The grandparents also did not mention the effect substance abuse may have on minors in the home, allowing mother and father to move into the home with S.M. living there, even though they knew both mother and father were abusing drugs. The Legislature has recognized that, in general, substance abuse has a negative effect on the home environment and the safety of children living in such an environment. (§ 300.2 [“The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child”].)

Grandfather also minimized father’s prior sex offense. As the juvenile court noted, although the offense was a misdemeanor, it was one that prevents father from having contact with children, including S.M. and J.M. Nevertheless, the grandparents not only allowed father to have contact with S.M. but also allowed father to move into the home.

The evidence supports a conclusion that grandparents would not protect J.M. if she were placed in the home.

Although J.M relies heavily on our decision in In re Robert L., supra, 21 Cal.App.4th 1057, Robert L. is not on point to this case. In Robert L., we reversed the juvenile court’s decision declining to place the minor with the grandparents on the unsubstantiated theory that the grandparents “past adversarial relationship with the parents might make reunification more difficult.” (Id. at p. 1068.) Here, there was evidence that the grandparents were unable to protect J.M. from the parents, not that the grandparents would thwart reunification efforts. The juvenile court’s concern in this case was not “wholly speculative and therefore lacking any reasonable basis in the record[.]” (Ibid.)

J.M. also points to the fact that S.M. had not been removed from grandparents’ custody, suggesting the home is suitable for placement. But whether a detaining petition on behalf of S.M. is appropriate is not before us in this appeal.

J.M. further argues the juvenile court abused its discretion because it did not consider J.M.’s relationship with S.M. in making its placement decision. But the fact that the juvenile court did not mention the impact its ruling would have on the sibling relationship does not mean the court did not consider it. Counsel for the Agency reminded the juvenile court, in argument at the placement hearing prior to the court’s ruling, of the factors set forth in section 361.3, including the placement of siblings and half siblings. Additionally, a significant portion of the testimony and argument was centered on the grandparents’ custody and treatment of J.M.’s sibling, and J.M.’s counsel expressly argued against “destroy[ing] this sibling bond for the rest of their lives.” Thereafter, in making its ruling, the juvenile court expressly stated it considered the factors set forth in section 361.3, subdivision (a), which includes the provision that the court consider the “[p]lacement of siblings and half siblings in the same home, unless that placement is found to be contrary to the safety and well-being of any of the siblings.” (§ 361.3, subd. (a)(4).) On review, we presume the juvenile court made whatever considerations and findings required to support its ruling, absent affirmative evidence to the contrary. No contrary evidence appears here.

The evidence supports the juvenile court’s exercise of discretion in denying placement of minor J.M. with the grandparents.

DISPOSITION

The orders of the juvenile court are affirmed.

/S/

MAURO, J.

We concur:

/S/

HULL, Acting P. J.

/S/

DUARTE, J.