Filed 10/19/17 In re J.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed.

Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant.

Jean-Rene Basle, County Counsel, Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.

I

INTRODUCTION

Defendant and appellant K.M. (MGM) is the sister of the maternal grandmother[1] of J.M. and N.O.[2] J.M. was removed from his mother’s care at birth after he tested positive for drugs. MGM appeals from the juvenile court’s order denying placement of J.M. in her care, arguing the juvenile court abused its discretion by ignoring the relative placement preference factors.[3] We find no abuse of discretion, and affirm the judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND

The family came to the attention of the San Bernardino County Children and Family Services (CFS) in February 2016 following allegations of general neglect as to 11-year-old N.O. and Mother’s drug use while pregnant. J.M. was born prematurely at 30 weeks’ gestation and weighed 4 pounds, 6.2 ounces. Mother, who denied using drugs, tested positive for methamphetamines and cannabinoids. J.M. also tested positive for drugs at birth and was required to stay in the neonatal intensive care unit (NICU) until at least eight to 10 weeks.

Mother and J.M.’s alleged father, M.M., claimed to have sufficient provisions for the child and support from MGM. Mother was high risk and insulin dependent. She smoked cigarettes throughout her pregnancy. Mother had a child welfare history in Riverside County for child endangerment from November 2007 to May 2009. Mother was homeless and the tent she was using for shelter caught on fire. N.O., then two years old, suffered from burns as a result of the fire.

The social worker attempted to contact Mother several times in February 2016. On February 25, 2016, the social worker went to the home listed on the referral. MGM answered the door and responded affirmatively when asked if Mother was home. The social worker could hear MGM speaking with Mother in Spanish, telling her that CFS was at the door. MGM returned to the door telling the social worker that Mother was not home. The social worker asked MGM to get Mother, otherwise CFS could return with law enforcement. Mother then came out of the trailer and was hostile towards the social workers. Mother claimed that it had been “ ‘a while’ ” since she used drugs. The social worker observed that Mother’s appearance was consistent with that of a drug user as evident by the marks on her skin, abnormally skinny weight, and open sores on her face. The social worker explained CFS’s involvement. Mother stated that she wanted the children placed with MGM and that she and M.M. would move out of MGM’s home to allow the children to be placed in MGM’s care.

The social worker interviewed N.O. at school. He reported that he was much happier since Mother’s old boyfriend J.D. was out of the picture. N.O. stated Mother’s new boyfriend, M.M., was much nicer. According to N.O., MGM took him to school in the morning. He also visited with his “real” grandmother Patsy. He told the social worker that Patsy and MGM were sisters. MGM took N.O. to his father’s funeral and N.O. saw his paternal grandmother (PGM), whom he had not seen since he was very young. He also met his brothers and sisters. He spoke with PGM “all the time.” N.O. insisted that there was no drug use in the home, but his grin suggested otherwise. N.O. felt safe at home and did not want to be removed from Mother.

PGM reported that she had been in regular, weekly contact with N.O. since N.O.’s father passed away in July 2015. PGM thought that N.O. lived with MGM and was not sure if Mother was in the home. PGM was not aware of any problems with the family, but if there were, she wanted to help in any way she could. PGM and the paternal grandfather were willing to be considered for placement.

MGM wanted the children to remain with her but was upset when told that Mother would have to move out of the home. MGM noted that she had taken care of N.O. his whole life and that she was concerned Mother would not have a place to go.

A mother of one of N.O.’s friends (Mrs. B.) contacted the social worker expressing interest in having N.O. placed in her home. She was a licensed foster care provider. She knew N.O. and wanted to help him. She reported that N.O. was a pleasure to have at her house and that he got along with members of the household.

The social worker asked the Relative Assessment Unit (RAU) to assess the paternal grandparents and the paternal aunt for placement. N.O. was placed with the paternal grandparents.

On March 7, 2016, petitions on behalf of J.M. and N.O. were filed pursuant to Welfare and Institutions Code[4] section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling).

The children were formally detained at the March 8, 2016 detention hearing. J.M. was detained at the Loma Linda University Medical Center (LLUMC) NICU and N.O. with the paternal grandparents. Upon his release from LLUMC, J.M. was placed in a foster home.

The social worker received a call on March 8, 2016 from J.D. stating that he was J.M.’s father. He claimed that he and Mother had been together for four and a half years. Their first child died two years ago. According to J.D., when Mother became pregnant with his second child, J.D. “told” Mother to abort the baby since both he and Mother were “ ‘jacked up on drugs and in a bad place.’ ” After visiting J.M. in the hospital, J.D. was “pretty sure” that he was the baby’s father and requested a paternity test.

Amended section 300 petitions were filed on behalf of J.M. and N.O. on March 28, 2016. The amended petitions added allegations against J.M.’s alleged father J.D. and allegations of Mother willfully and negligently leaving the children in the care of a custodian who suffered from substance abuse.

CFS recommended that the allegations in the petitions be found true; that Mother be offered reunification services; and that the alleged fathers of J.M. be denied services. In March 2016, Mother was 35 years old. She began using marijuana at around the age of 19 or 20 years old and methamphetamine at around 23 years old. She claimed the last time she smoked marijuana was about a week before the detention hearing and methamphetamine while in the hospital. Mother’s child welfare history dated back to 2005 with 14 referrals and two dependency cases involving N.O. and her oldest son G.M.

J.M. remained in the hospital for a month after his birth and was discharged on March 17, 2016. He had been referred to SART for a comprehensive developmental assessment. The social worker had submitted relative assessment documentations to the RAU on March 24, 2016 on behalf of MGM for placement of both children. As of March 29, 2016, the referral had not been assigned a worker.

At a hearing on March 29, 2016, both M.M. and J.D. requested paternity testing, and Mother requested that both children be placed with MGM. CFS’s counsel advised the court that an RAU was pending on MGM. N.O. asked if he could go home “with my grandmother.” The court continued the hearing for paternity test results.

The jurisdictional/dispositional hearing was held on April 19, 2016. At that time, the court found the allegations in the amended petitions true and declared both children dependents of the court. The court dismissed the allegations against M.M. since the court found him to be a non-party. The court found J.D. to be the biological father of J.M. and provided J.D. with reunification services. Mother was also provided with reunification services and ordered to participate. The court ordered visitation for Mother two times per week for two hours and for J.D. one time per week for one hour.

At a non-appearance review hearing for a change of placement for N.O., the court was advised that PGM asked to have N.O. removed because of his behaviors. On April 18, 2016, he was moved to the home of Mrs. B., a non-relative extended family member (NREFM).

By the six-month review hearing on October 19, 2016, CFS recommended that the court terminate reunification services to Mother and J.D. and a section 366.26 hearing be set to establish a permanent plan of adoption for J.M. and N.O. J.M. had been placed in a foster home in Riverside, and N.O. was placed with an NREFM in Yucaipa. Mother and J.D. had not actively addressed the issues that led to CFS involvement and both J.D. and Mother continued to struggle with substance abuse. Meanwhile, the children had benefited from a schedule and structure that their placements had provided. N.O.’s school performance had improved, and J.M. was thriving and meeting all of his milestones.

MGM was approved through RAU for placement. CFS, however, had concerns with her. MGM had knowledge of Mother’s drug use and still allowed drugs in the home while Mother was living with MGM. Additionally, CFS was concerned that MGM would not be able to control contact between Mother and the children.

Subsequently, CFS learned that N.O.’s caregivers no longer wanted to adopt N.O. because the caregivers were separating. Originally, CFS had planned to have N.O.’s and J.M.’s placements each adopt one of the siblings. Due to N.O.’s placement changes, CFS wanted to look for a home to place both children together.

At the six-month review hearing on October 19, 2016, both Mother and J.D. set the matter contested.[5] N.O. informed the court that he was “supposed to go with my grandma, but I don’t know if I was going to be able to go with her. So my family up in Phoenix, Arizona, I talked to them a few weeks ago and they are willing to try to take me in.” The court continued the hearing and asked CFS to assess relatives for placement.

At the contested six-month review hearing on November 22, 2016, CFS advised the court that it was still recommending terminating services for Mother and J.D. as to J.M., but not N.O. Following argument, the court terminated Mother’s and J.D.’s services as to J.M., advised them of their appellate writ rights, and set a section 366.26 hearing to select the permanent plan for J.M. CFS was recommending adoption.

CFS recommended that MGM not be considered for placement. CFS met with MGM on December 12, 2016, to discuss possible placement. MGM was very interested in caring for J.M. and stated she could care and protect him. MGM was approved for placement with RAU on September 1, 2016, but CFS had concerns. During the initial investigation of the case in February 2016, CFS stated that MGM had a history of not maintaining boundaries with Mother and not being protective of J.M. and N.O. CFS noted that when social workers visited the home in February 2016 to conduct the investigation, MGM lied about whether Mother was home. Despite hearing MGM speaking with Mother, MGM returned to the door to advise the social workers that Mother was not home. CFS was also concerned that MGM knew Mother was using drugs and marijuana prior to CFS involvement, in light of Mother and J.M.’s positive drug test results, Mother’s prior dependency cases, Mother’s drug history, and Mother’s three positive drug tests before giving birth. CFS believed that MGM knew of Mother’s drug use but did not take actions to protect the children. Although MGM wanted to keep J.M. safe, CFS feared that Mother would have unauthorized access to the child since Mother was continually trying to push her boundaries with CFS, such as by attempting to bring unauthorized people to visits.

At the January 4, 2017 placement hearing, J.M.’s counsel had the same concerns about MGM as CFS. Counsel also noted J.M. had lived in the same home since he was discharged from the hospital after his birth and was bonded with the family. MGM testified that she lived in Yucaipa with her grandson G.M. N.O. also moved in with her when he was nine months old and lived there until he was recently removed by CFS. MGM assumed it was “the State” that placed N.O. with her since she was called and told to “go pick him up.” MGM acknowledged J.M. had never lived with MGM since he was detained at the hospital after his birth. MGM, however, had asked CFS that J.M. be placed with her nine or 10 months ago. MGM said CFS told her that “they needed to go through the process.” MGM was fingerprinted and gave information regarding her background as well as her other grandson. She knew she was approved, but J.M. was not placed with her. MGM claimed “they” again asked her if she was willing to take J.M. into her home and she said “yes.”

MGM had met with a social worker in December 2016. According to MGM, although the social worker told MGM that her home had been approved two or three times, the social worker wanted to visit the following day. The social worker said she would call MGM. MGM, however, claimed that she never heard from the social worker or anybody else since then. MGM stated she did not tell the social workers in February 2016 that Mother was not home. Rather, she told the social workers that Mother said “ ‘I am not going out.’ ” MGM insisted that she never told the social workers that Mother was not there and that it was obvious Mother was at home.

MGM testified that she could provide a good home for J.M. Mother no longer lived with MGM. MGM had visited J.M. weekly with Mother until the visit with the social worker in December. Since then the visits were cancelled because J.M. was either sick or the caregivers could not take him to the visit. MGM informed the court that her eldest grandson, who was nearly 19 years old, had lived with her all of his life, had graduated from high school, and was a “gentleman.” MGM assured the court that she could protect J.M. from Mother.

MGM did not know when Mother began using drugs, but noticed a difference in Mother when Mother began dating. She, however, could not recall at what age. MGM did not know why J.M. was removed from Mother, but believed he was removed because “the baby wanted to be born before time.” MGM claimed that she had “no idea” that J.M. was born drug positive. MGM noted Mother lost a lot of weight and did not call CFS because Mother did not take the drugs home. MGM acknowledged Mother had been living with MGM when her two other children were removed from her. MGM stated that if she had the children with her, she would not allow Mother to live with her.

MGM admitted that she did not know Mother’s problem. She claimed she did not know Mother used drugs. Although MGM noticed Mother had lost weight, she stated she had not seen track marks from needles on Mother’s arms, even though the social worker immediately noticed the marks when she first met Mother. MGM insisted that she had not seen the marks. She, however, did testify that Mother was diabetic and saw Mother inject herself in the arms with insulin.

MGM asserted Mother moved out when the boys were removed. Mother had not spent any nights with MGM since then, although she did visit G.M. and had last visited him in December 2016. CFS’s counsel pointed out that Mother’s Notification of Mailing Address form dated March 8, 2016 had MGM’s address as Mother’s address. Mother testified that she had moved out but used MGM’s address as a mailing address.

Minor’s counsel argued that J.M. should not be placed with MGM, noting MGM had no idea what was wrong with Mother or why Mother was using drugs or when she started using drugs or why the children were removed. Counsel pointed out that Mother’s problems with child protective services began in 2005 and continued for 12 years with referrals of abuse to and neglect of her children. Counsel also noted both G.M. and N.O. were removed from Mother’s care while living with MGM and that G.M. was removed twice from Mother and MGM. Counsel further stated that Mother had positive drug tests while J.M. was still in utero and that her physical appearance indicated that she was using drugs—her eyes were yellow, she had open skin sores, and needle track marks. Mother’s behavior also indicated drug use. The social workers picked up her drug use right away when they saw Mother, yet MGM was not able to see or understand what was going on. Counsel further pointed out that when the children were removed, MGM wanted to know why.

CFS’s counsel advised the court that MGM was initially approved in May 2016, but CFS had concerns with placing the children with her fearing that MGM could not protect the children.

The court acknowledged that section 361.3 provided a preference for relatives, but not an overriding preference. The overriding concern was the best interest of the child. Given Mother’s child welfare history while living with MGM, and MGM’s lack of understanding about Mother’s issues and what was necessary to protect J.M., the court denied relative placement with MGM.

III

DISCUSSION

MGM contends the juvenile court abused its discretion when it declined to place J.M. with MGM, in light of the legislative preference for relative placement, her good moral character, and her ability to provide a stable and loving home for J.M. We disagree.

We review the juvenile court’s decision on relative placement for abuse of discretion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) In connection with its placement order, “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 court’s 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.).)

Section 361.3 mandates that, when a child is taken from the physical custody of his or her parents, “preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative . . . .” (§ 361.3, subd. (a).) “ ‘Preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.” (§ 361.3, subd. (c)(1); In re Sarah S. (1996) 43 Cal.App.4th 274, 286 [preferential consideration places the relative at the head of the line when the court is determining which placement is in the child’s best interest].) However, the relative placement preference established by section 361.3 does not constitute “a relative placement guarantee.” (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.) Although the statute does not ensure relative placement, it does “express[] a command that relatives be assessed and considered favorably, subject to the juvenile court’s consideration of the suitability of the relative’s home and the best interests of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 320; see § 361.3, subd. (a)(1) [social worker and the juvenile court must consider, inter alia, whether placement of the child with the relative is in the child’s best interest].)

Section 361.3 identifies the factors that the court and social worker must consider in determining whether the child should be placed with a relative, including the child’s best interest, the parents’ wishes, the good moral character of the relative and any other adult living in the home, the nature and duration of the relationship between the child and the relative, the relative’s desire to provide legal permanency for the child if reunification fails, and the relative’s ability to protect the child from his or her parents. (§ 361.3, subd. (a)(1)-(8); Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033.) The juvenile court is required to consider the factors identified in section 361.3, subdivision (a), “in determining whether placement with a particular relative who requests such placement is appropriate. [Citation.]” (In re Antonio G. (2007) 159 Cal.App.4th 369, 377, fn. omitted.) However, the “linchpin of a section 361.3 analysis is whether placement with a relative is in the best interests of the minor. [Citation.]” (Alicia B., supra, 116 Cal.App.4th at pp. 862-863.)

Accordingly, “ ‘[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected.’ [Citation.] Section 361.3 does not create an evidentiary presumption that relative placement is in a child’s best interests. [Citation.] The passage of time is a significant factor in a child’s life; the longer a successful placement continues, the more important the child’s need for continuity and stability becomes in the evaluation of [his or] her best interests.” (In re Lauren R. (2007) 148 Cal.App.4th 841, 855; see In re R.T. (2015) 232 Cal.App.4th 1284, 1295.)

In this case, the juvenile court considered Mother’s wishes, MGM’s good moral character, and the fact MGM was assessed and approved for placement, but found it was not in J.M.’s best interest to be placed with MGM. The record supports the court’s findings. J.M. was removed from Mother at birth and initially detained at the hospital for a month before being placed in foster care. He had been born drug positive and two months’ premature. MGM testified that she thought J.M. was removed from Mother because “the baby wanted to be born before time” and claimed that she had “no idea” that J.M. was born drug positive. Furthermore, MGM claimed that she did not know that her daughter was using drugs, despite Mother’s loss of weight, yellowed eyes, and needle track marks on Mother’s arm. MGM even denied seeing the track marks. Yet, when the social workers visited Mother, they immediately noticed all of the signs of drug use in Mother’s appearance. Despite all of this evidence, MGM still denied knowing that Mother used drugs.

Moreover, Mother had a 12-year child welfare history while living with MGM, yet MGM continued to deny that there was anything wrong. N.O. had lived with MGM since he was nine months old. During this time, Mother had an extensive child welfare history dating back to 2005. She had 14 general neglect referrals. Both G.M. and N.O. were removed for nearly 18 months from MGM’s home while under Mother’s care. MGM acknowledged that N.O. and G.M. had been removed from Mother while Mother was living with MGM. MGM was either ignorant or lying about the conditions in her home even though child protective services in both Riverside and San Bernardino Counties had been to MGM’s home when they were investigating the numerous general neglect referrals.

Furthermore, MGM provided no evidence she would be able to protect J.M. Despite the extensive history of child neglect and abuse, when asked how J.M. would be protected, MGM merely responded that she did not “believe that no [sic] harm would come to him.” She explained that she was a “very firm person” and people who lived with her followed her rules. Additionally, CFS believed MGM lied to protect Mother and that MGM could not maintain boundaries with Mother. MGM denied that she told the social workers that Mother was not home when the social workers visited MGM’s home in February 2016. MGM’s story differed substantially from the social workers who reported that MGM told them that Mother was not home, even though the social workers heard Mother and MGM talking. Indeed, the social workers had to threaten MGM with law enforcement before Mother appeared.

In addition, J.M. never lived with MGM. His bond with her, if any, was minimal. On the other hand, J.M.’s caregivers desired to adopt J.M., and J.M. was bonded to his caregivers.

The juvenile court considered all the factors mandated by the legislature when determining whether a child should be placed with a relative. Given the lack of relationship between MGM and J.M., Mother’s child welfare history while living with MGM, and MGM’s lack of understanding about Mother’s issues, the juvenile court correctly found that it was not in J.M.’s best interest to remove him from the only family he had ever known and place him with MGM. Accordingly, the juvenile court did not abuse its discretion when it denied MGM’s request for placement.

IV

DISPOSITION

The appeal with regard to N.O. is dismissed.

The judgment with regard to J.M. is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

FIELDS

J.