IN RE: THOMAS C. (2010)

Aida C., in pro. per., for Objector and Appellant.

Irma S., in pro. per., for Objector and Appellant.

The juvenile court terminated the parental rights of Jacqueline C. and Joshua T. and freed Thomas C. for adoption.   Jacqueline C., Joshua T., maternal grandmother Aida C., and paternal grandmother Irma S. all appeal the termination of parental rights.   We affirm the juvenile court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Thomas C. was born to minor parents Jacqueline C. and Joshua T. in November 2006.   The family came to the attention of the Department of Children and Family Services soon after he was born.   Jacqueline C. told a mandated reporter that she had been using illegal drugs for years.   Thomas C. did not test positive for drugs at birth.

Jacqueline C., 16 years old at the time, revealed to DCFS that she had been introduced to illegal drugs by an adult sibling when she was nine years old, and that she began using crystal methamphetamine at age 12.   She had been arrested for possession of crystal methamphetamine two years earlier and was ordered to drug court, but she fled the program and ran away, leading to her arrest in March 2006.   She was released from juvenile hall the following month.

Jacqueline C. lived with her mother, Aida C., with whom she had a history of physical conflict.   Jacqueline C. had been molested by an adult brother who had also molested a child that Aida C. watched as a daycare provider.   Jacqueline C. intended to take Thomas C. home to her mother's residence.

Joshua T., 17 years old at the time, told DCFS that his family had been investigated repeatedly by DCFS. DCFS records indicated more than 30 referrals to DCFS for his family between 1998 and 2005.   He also disclosed that he was on probation for burglary.   Jacqueline C.'s mother and older brother had told DCFS that they had witnessed Joshua T. slapping Jacqueline C. in the face, and also reported that he had punched his fist through a window during a fight with Jacqueline C. Joshua T. acknowledged that he had slapped Jacqueline C. and that he had punched a hole in a window at her mother's house.

In November 2006 DCFS detained Thomas C. and filed a petition alleging that he was subject to the jurisdiction of the juvenile court under Welfare and Institutions Code 1 section 300, subdivisions (a) and (b).  Under subdivision (a), DCFS alleged that domestic violence between the parents prior to Thomas C.'s birth presented a serious risk of physical harm to him.   Under subdivision (b), DCFS alleged that Jacqueline C.'s history of drug use rendered her incapable of providing care and supervision to Thomas C. and placed him at risk of physical and emotional harm;  and that prior instances of violence by Joshua T. against Jacqueline C. endangered the baby.

The juvenile court ordered Thomas C. detained in shelter care on November 15, 2006.   In January 2007, the court sustained the allegations under section 300, subdivision (b) of the dependency petition.   Thomas C. remained in foster care, and visitation and reunification services were ordered for both parents.

In February 2007, Joshua T. was arrested for inflicting corporal injury on a partner.   He was sent to juvenile camp and released on probation in June 2007.

Both parents partially participated in reunification services.   In July 2007, the juvenile court ordered that Jacqueline C. was to have weekend overnight visits if her probation case was closed and if she was in compliance with court orders and programs.   As of October 2007, each parent's mother monitored his or her visits with Thomas C.

DCFS found Jacqueline C.'s interactions with Thomas C. to be positive and appropriate.   In December 2007, the court granted DCFS discretion to return Thomas C. to Jacqueline C. Starting in January 2008, Thomas C. had unmonitored overnight weekend visits with his mother.   Jacqueline C. had become more responsible for her actions, was motivated to solve problems, and was participating in various programs.   As of January 2008, DCFS recommended that Thomas C. be returned to Jacqueline C.

DCFS was unable to contact Joshua T. or his mother, and so could not assess the quality of their visits.   Joshua T. was not in compliance with the case plan.

In January 2008, the court ordered Thomas C. home with Jacqueline C. DCFS soon developed concerns about Jacqueline C.'s parenting.   Jacqueline C. was not attending to Thomas C.'s needs, and she engaged in frequent verbal altercations with Aida C. In May 2008, when the social worker visited the residence, she found Thomas C. alone in the living room while Jacqueline C. was in her room.   In June 2008, Aida C. reported to DCFS that Jacqueline C. left Thomas C. with her for days at a time without making provisions for his care or leaving word of where she was going.   Jacqueline C.'s older brother Charles C. (not the brother who molested her and introduced her to drugs) told DCFS that Jacqueline C. spent most of her time in her room, though she left her door open so that Thomas C. could come in if he wished.   He also said that Jacqueline did not attend to Thomas C.'s needs, that she often fought with her mother, and that she yelled and used profanity in front of Thomas C. Jacqueline C. had also stopped complying with her case plan.   At a team decisionmaking meeting, Jacqueline C. began to yell and cry, making Thomas C. visibly frightened and uncomfortable.

DCFS concluded that Jacqueline C. was no longer demonstrating the ability to properly care for Thomas C. and filed a supplemental dependency petition pursuant to section 387.   In the supplemental petition DCFS alleged that the previous disposition had not been effective to protect Thomas C. because Jacqueline C. left him with Aida C. for days at a time without making a plan for his ongoing care and supervision, and because she had failed to comply with court-ordered substance abuse rehabilitation counseling, endangering Thomas C. DCFS continued to advocate for services for Jacqueline C., identifying a number of positive characteristics of the family that suggested that reunification could be achieved.   On June 12, 2008, Thomas C. was placed in the care of Aida C., and Jacqueline C. was asked to leave the home.   The juvenile court sustained the supplemental petition on July 9, 2008 and ordered monitored visitation and drug testing for Jacqueline C.

Initially, Thomas C.'s placement with his maternal grandmother appeared to be proceeding well.   DCFS reported that she met his needs and that Thomas C. was happy and comfortable.   DCFS stated that it intended to recommend that Aida C. adopt Thomas C.

On August 11, 2008, the juvenile court found that neither parent was in compliance with the case plan and terminated reunification services.   It was anticipated that Aida C. would adopt Thomas C., and permanent placement with her was identified as Thomas C.'s permanent plan.   It was discovered, however, that Aida C. had at least twice left Thomas C. unsupervised and alone with Jacqueline C. As a result, maternal uncle Charles C. was added to the plan as a second prospective adoptive parent.

During the course of the home study, DCFS developed concerns about the placement.   Jacqueline C. spent a great deal of time at her mother's home and was unable to provide a residence address to DCFS. It appeared to the social worker that Jacqueline C. might be residing with her mother.   She was present in the home outside the hours during which monitored visitation had been scheduled.   During a March 2009 team decisionmaking meeting, it was agreed that Charles C. would monitor visits and that Aida C. would no longer monitor them, but only one week later Aida C. had violated the agreement and was permitting her daughter to spend time at the home during the morning hours when Charles C. was at work.   Aida C. had also disregarded DCFS visitation instructions and had allowed Jacqueline C. unmonitored time with Thomas C., as well as giving the paternal grandmother overnight visits with Thomas C.

Aida C. stated that she wanted her incarcerated son to be released from jail and move back into the residence.   Because the son was imprisoned for sexual abuse of a child, the desire to bring him into a home with Thomas C. concerned DCFS. DCFS also found that Aida C. had a long term boyfriend who visited her house;  as no information had been provided about him, and she had not brought him in for a DCFS meeting and fingerprinting, this troubled DCFS as well.   While DCFS stated its intent to continue to try to complete the adoption homestudy, “Concern is growing, however, that Ms. Aida C[.] is not providing a safe environment to Thomas by allowing his mother to spend so much time in the home and for the other issues listed above.”

In April 2009, DCFS made an unannounced visit to Aida C.'s home in the morning and found Jacqueline C. sleeping in Thomas C.'s room.   Jacqueline C. fled the house rather than speak with the social worker.   The bedroom was filled with Jacqueline C.'s possessions.   When the social worker asked Aida C. why Jacqueline C. was living at the house, Aida C. denied that Jacqueline C. was living there and maintained that she had come to visit that morning but was tired.   Aida C. then admitted that Jacqueline C. had come late for an Easter visit and as a result was permitted to spend the night there.   When the social worker attempted to explain the importance of Jacqueline C. not residing in the house with Thomas C., Aida C. and Charles C. “did not appear to fully understand.”   They said that Jacqueline C. “does not listen” and that they did not know how she entered the house, but then Aida C. admitted they might have given her a key.

DCFS detained Thomas C. and filed a supplemental dependency petition seeking a more restrictive placement.   DCFS no longer believed that Aida C. or Charles C. was reliable, trustworthy, or capable of protecting Thomas C., and it was expected that Aida C.'s home study would be denied because no satisfactory plan could be reached to alleviate the concerns about her as an adoptive parent.   DCFS looked to the family to determine whether a relative placement was possible.   The paternal grandmother, Irma S., expressed an interest in taking care of Thomas, but she lived with Joshua T. and had not followed through with causing him to move out.   She reported that she wanted Joshua T. to regain custody of Thomas C. despite the termination of his reunification services.   DCFS concluded that placement with Irma S. “will lead to the same issues as with [Aida C.]:  father has no where [sic ] else to reside and no reasonable means to support himself and will continue to need to reside in his mother's home.  [Irma S.] has enabled her son's problematic behavior and it does not appear that she is able to properly set boundaries with him in the same way that Aida C[.] struggles with the same issues with her daughter.  [¶] Ms. [S.] does not appear to have the ability to properly protect Thomas in light of the fact that she agreed to an overnight visit with Thomas, knowing that she was going to be at work and that Thomas would be unsupervised with his parents.”   Irma S., moreover, had left Thomas C. with his father and paternal grandfather, who was a known alcoholic, to go to work, despite the fact that she was supposed to be monitoring the visit.   The juvenile court sustained the supplemental petition as amended, finding that Aida C. permitted Jacqueline C. to spend nights at Thomas C.'s home and allowed Jacqueline C. unmonitored contact and unlimited access to Thomas C.

At a June 2009 team decisionmaking meeting, based on the behavior of Jacqueline C., Aida C., and Charles C., DCFS concluded that no safety plan could be created that would ensure Thomas C. was safe in Aida C.'s home.   Aida C. disclosed that she was violating orders concerning visitation and “had no response and seemed oblivious to the fact that she was placing Thomas' safety and well-being at risk with her actions.”   Aida C. also appeared not to understand the seriousness of the situation, asking that Thomas C. be returned to Jacqueline C. if he could not be placed with her.   DCFS agreed to refer the case to the ASFA ² unit to obtain a relative assessment for Irma S., and Joshua T. agreed to move out of his mother's home.   On June 19, the juvenile court ordered that Thomas C. not be placed with Aida C. and that DCFS investigate Irma S. as a prospective placement, giving DCFS discretion to place Thomas C. with her.

DCFS immediately concluded that a placement with Irma S. would be problematic.   First, Joshua T. failed to move his possessions out of the home.   When a social worker made an unannounced visit to the home on July 26, 2009, the social worker was kept waiting for more than 10 minutes before being admitted to the home.   The bedroom that had been Joshua T.'s was locked, and Irma S. claimed not to have a key.   The social worker observed that the lock had no keyhole, and Irma S. explained that it locked from the inside.   Irma S. denied that anyone was in the room but claimed that sometimes Joshua T. would lock the door and then climb out the window.   The social worker observed through the window that the bed was unmade and that there was a closet large enough to conceal a person in the room.   Irma S. acted nervous throughout the visit.   The social worker believed it likely that Joshua T. was still sleeping there, which was not itself a significant problem before Thomas C. was placed there, but the incident signaled to DCFS the start of “a pattern of suspicious and dishonest behavior similar to what DCFS experienced with the maternal family.”   DCFS was later able to verify that Joshua T. had moved his possessions from the room, permitting DCFS to make a referral to ASFA.

As of August 2009, the ASFA unit was reviewing Irma S.'s extensive history with DCFS, as well as her live scan results.   Irma S. had a hit on the Child Abuse Central Index (CACI), necessitating further investigation and a possible need for a waiver.   The ASFA unit scheduled an appointment to assess Irma S.'s home, but it was anticipated that placement would be denied due to her “history with DCFS and her criminal record.”   DCFS reiterated its concerns about Irma S.'s history with DCFS, the hit on the CACI, the lack of boundaries in her present relationship with her son, and the fact that Irma S. was not financially stable and was dependent on Joshua T. to supplement her income.

At an August hearing, the juvenile court set a hearing for October 2009 “regarding placing with the paternal grandmother.”   The court stated that it needed “factual information regarding why the child can or cannot be placed with the paternal grandmother.   The Department has information regarding a prior case the grandmother has.   I need to see what that is.   If there is a prior dependency case, if there's a criminal case, I need to see that information.   I need to see the documentation and support.   If a waiver is required, I need to know why the waiver was not granted.   If it wasn't granted, then I need to see all of that information.”

On August 13, 2009, the ASFA home assessment for Irma S. was denied.   The AFSA social worker reported that Irma S.'s numerous referrals to DCFS automatically disqualified her for a foster care license regardless of whether the allegations were substantiated.   In order for ASFA to consider the home, ASFA would need a letter of recommendation from the different social workers and DCFS officials assigned to the case.   DCFS refused to issue such a letter because it did not believe that Irma S. would be an appropriate caregiver.   Although a waiver on the CACI hit would be necessary, this was not the primary problem with respect to a placement with Irma S.

At the October 2009 hearing at which the juvenile court had planned to address a possible placement with Irma S., Joshua T.'s counsel requested that the court set an evidentiary hearing on that potential placement.   As there was no objection, the juvenile court set a December date for a hearing to determine whether the relative placement preference statute required an evidentiary hearing on the issue.   The court advised the parties to “present whatever evidence they want and make any legal arguments they want for the court to make a determination of whether or not th[e relative placement] preference should be recognized or whether or not placement should be made.”   Jacqueline C.'s counsel filed a written motion requesting an evidentiary hearing on DCFS's denial of relative placement for Irma S. DCFS filed a memorandum asserting that the court had no power to place Thomas C. in the unapproved home of a relative.

On October 13, 2009, Aida C. filed a petition for change of order under section 388 seeking Thomas C.'s return to her care.   The court denied the petition after a hearing.

On December 7, 2009, the court denied the motion to request an evidentiary hearing because it “believed that there's not been an adequate showing that the Department has grossly abused its discretion.   The court certainly can't order the Department to do certain things.   I couldn't ensure that they follow their own protocols and procedures, but in terms of placement, I'll just-everybody else will reserve whatever arguments or evidence they would like to present at the [section 366].26 contest, and-but the motion to request a hearing on that is denied.”

On January 27, 2010, the court terminated the parental rights of Jacqueline C. and Joshua T. Both parents, both grandmothers, and maternal uncle Charles C. appealed.   Charles C.'s appeal was dismissed on June 2, 2010.

DISCUSSION

I. Parents' and Irma S.'s Appeals

“The relative placement preference, codified in section 361.3, provides that whenever a new placement of a dependent child must be made, preferential consideration must be given to suitable relatives who request placement.   [Citation.]  ‘ “Preferential consideration” means that the relative seeking placement shall be the first placement to be considered and investigated.’   [Citation.]  Preferential consideration ‘does not create an evidentiary presumption in favor of a relative, but merely places the relative at the head of the line when the court is determining which placement is in the child's best interests.’  [Citation.]”  (In re Antonio G. (2007) 159 Cal.App.4th 369, 376.)

Jacqueline C., joined by Joshua T., argues that the juvenile court erred when it denied her motion for an evidentiary hearing on the question of whether DCFS abused its discretion in denying placement of Thomas C. with Irma S. We find no error here.   Section 361.3, subdivision (a)(8) requires that “[f]or a relative to be considered appropriate to receive placement of a child under this section, the relative's home shall first be approved pursuant to the process and standards described in subdivision (d) of Section 309.”   Subdivision (d) of section 309 provides for the department to assess the suitability of a placement, including an in-home inspection to assess the safety of the home and the ability of the prospective caregiver to provide for the child's needs, as well as a criminal records check and a check on prior “allegations of prior child abuse or neglect concerning the relative or nonrelative extended family member.” (§ 309, subd. (d)(1).)

Section 309, subdivision (d)(1) presented an insurmountable barrier for Irma S. With 39 prior allegations of abuse and neglect-even though she contended that they were a product of a custody dispute-she was automatically disqualified for a foster care license regardless of whether the allegations were substantiated, and the foster family home licensing requirements are required by section 309, subdivision (d)(1) to be used in making assessments under this provision.   For ASFA to consider the home, ASFA would need a letter of recommendation from the different social workers and DCFS officials assigned to the case.   DCFS refused to issue such a letter because it did not believe that Irma S. would be an appropriate caregiver.

The juvenile court found that DCFS did not grossly abuse its discretion here, and we agree.   Although appellants view the record as though the juvenile court directed them to brief only its authority to make the placement, the court in fact invited the parties to address whether DCFS actually abused its discretion in refusing to pursue the placement, directing them to “present whatever evidence they want and make any legal arguments they want for the court to make a determination of whether or not th[e relative placement] preference should be recognized or whether or not placement should be made.”   Contrary to their contention, therefore, the parties were given the opportunity to brief the issue and by that method to present their evidence to the court, and there was no due process violation here.

Even if, however, the juvenile court should have afforded them a full evidentiary hearing-a contention that is not supported by any authority-in neither the papers filed in the juvenile court nor in the appellate briefing have the appellants shown that there was an abuse of discretion in the failure to approve the paternal grandmother for placement.   Irma S. had not demonstrated that she would protect Thomas C. from his parents:  she had accepted an overnight visit for Thomas C. with the knowledge that she needed to work and then left Thomas C. in the unsupervised care of his parents.   While acting as a monitor, she had also left Thomas C. with his father and with his alcoholic paternal grandfather.   DCFS determined that Irma S. had “enabled her son's problematic behavior and it does not appear that she is able to properly set boundaries with him.”   Irma S. and Joshua T., moreover, appeared to be economically dependent on each other, with their expenses exceeding their income even while they lived together, therefore making it unlikely that Irma S. could provide for Thomas C. without Joshua T. living in her home.   In light of this evidence that Irma S. was not a suitable caregiver for Thomas C., we find no abuse of discretion here.

It is true that the juvenile court should have stated for the record the reasons that the placement with Irma S. was not ordered (§ 361.3, subd. (e)), but the failure to do so was harmless in light of the substantial evidence of unsuitability on this record.   Finally, there is no indication that DCFS failed to investigate the paternal grandmother adequately.   What DCFS had discovered about her conduct with respect to this particular dependency proceeding was alone enough to demonstrate that placement with her would be inappropriate, so any failure by DCFS to investigate in detail each of her many prior referrals to DCFS was irrelevant.

II. Aida C.'s Appeal

Aida C. also appeals from the termination of parental rights.   In her opening brief, she focuses on the removal of Thomas C. from her custody after the section 387 petition;  the denial of her section 388 petition;  and the DCFS conclusion that no safety plan could be created that would address the safety issues presented by placing Thomas C. in the maternal family's custody, all of which she believes were incorrect decisions.   She contends that it would be in Thomas's best interest to be returned to her.

To the extent that Aida C. raises a cognizable legal claim that Thomas C. should have been placed with her under the relative placement preference, there is no indication of any error by the juvenile court.   While section 361.3 may have placed Aida C. “at the head of the line” (In re Antonio G., supra, 159 Cal.App.4th at p. 376) when placement decisions were made, it did not establish that placement with her would be appropriate.   The juvenile court was always required to determine what placement was in the child's best interests.  (In re Stephanie M. (1994) 7 Cal.4th 295, 320 [even when the relative preference applies, it does not “overcome the juvenile court's duty to determine the best interest of the child”].)   In fact, the first factor listed as a consideration for whether a placement with a relative is appropriate is the “best interest of the child, including special physical, educational, medical, or emotional needs.” (§ 361.3, subd. (a)(1).)   Here, Aida C. repeatedly left Thomas C. unmonitored with Jacqueline C.;   she disregarded instructions about visitation;  she failed to disclose her relationship and bring her boyfriend in for live-scanning;  and she failed to care for Thomas C. and to protect him from Jacqueline C. and her erratic, reckless, and out of control behavior.   We find that the juvenile court did not abuse its discretion when it determined that Aida C. could not protect Thomas C., as required by section 361.3, subdivision (a)(7)(D) [relative must be able to “[p]rotect the child from his or her parents”].)

DISPOSITION

The judgment is affirmed.

We concur:

FOOTNOTES

FN1. Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code..  FN1. Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

FN2. ASFA refers to the Adoption and Safe Families Act of 1997, which establishes federal guidelines for foster care and relative care placements.  (In re Darlene T. (2008) 163 Cal.App.4th 929, 932, fn. 1.).  FN2. ASFA refers to the Adoption and Safe Families Act of 1997, which establishes federal guidelines for foster care and relative care placements.  (In re Darlene T. (2008) 163 Cal.App.4th 929, 932, fn. 1.)

ZELON, J.

WOODS, Acting P. J. JACKSON, J.