Opinion
G041670 Consol. with G042018
10-28-2009
In re E.G. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.H., et al., Defendants and Appellants. In re X.J., On Habeas Corpus.
Teri A. Kanefield, under appointment by the Court of Appeal, for Defendant and Appellant A.H. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant X.J. Merrill Lee Toole, under appointment by the Court of Appeal, for Defendants and Appellants Gu. and Gr. M. Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors.
Not to be Published in Official Reports
Paternal grandparents Gu. (grandmother) and Gr. M. (grandfather) (collectively grandparents), paternal great-uncle A.H. (great-uncle), and paternal great-aunt X.J. (great-aunt) each appeal the juvenile courts denial of their requests that seven-year-old E.G. (boy) and his one-year-old sister A.G. (girl) be placed in one of their homes during the pendency of the underlying dependency proceedings. They contend the court abused its discretion in finding placement with them would not be in the childrens best interests or that they would be unable to protect the children. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
In August 2007, Orange County Social Services Agency (SSA) detained the boy, then-nearly five years old, after his 23-month-old cousin D.H., who lived in the same home, died as a result of physical abuse. D.H.s injures, which were at "varying stages of healing," included "a red and enlarged anus, extensive facial trauma, abdominal bruising, handprint to the left arm, old fracture to the right clavicle, [enlarged] sagital suture . . ., right ankle deformity which could be an old injury, suspected cigarette burns to the shoulder, swollen nose and subconjuctival bleeding."
Also residing in the home at the time were the boys mother, her sister Noel (D.H.s mother), and her teenage siblings Dorothy and Timothy; the boys father had recently moved out but came by the home on a daily basis. All provided conflicting reports to the police about how D.H. sustained his injuries. The police arrested father, Noel, and Timothy, who was told by mother and another relative not to talk to the police about D.H.s death. The court ordered the boy detained and directed SSA to evaluate relatives for possible placement.
Within the first two weeks of the boys detention, relatives including grandparents and great-uncle requested he be placed with them. After a "carefully evaluat[ion,]" SSA determined placement with them was "inappropriate at the present time" due to the ongoing criminal investigation and the concern they may have been complicit in D.H.s death. Given D.H.s apparent long-term abuse and noticeable injuries, and the fact several "relatives[] had continuing contact with" him yet failed to take any action, the only safe placement was "one that is neutral and unrelated . . . ." SSA also feared the parents would abscond with the boy if placed with relatives. The family had a "pattern of . . . hiding minors out," as shown by mothers attempt to deny police access to her dependent minor siblings Timothy and Dorothy, claiming they were not in her care. Nevertheless, SSA would "continue to evaluate the appropriateness of placement with the relatives" as more information was received about D.H.s abuse and death.
In his CAST (Child Abuse Services Team) interview, the boy described how members of his family spanked D.H. "a lot" "[r]eally hard" with a belt and their hands and held him "really, really hard [until] he almost died." They hit D.H. on his buttocks, back, eye, mouth, and tummy, causing yellow, black, and red "boo-boos" and made him take cold baths. At one point he demonstrated by punching a teddy bear in the stomach and arm and holding his hand over its mouth.
Seven months after the boy was detained, mother told SSA she was pregnant with a due date of October. By then, the coroner had ruled D.H.s death a homicide, with the cause of death being "[s]evere [b]lunt [c]raniocerebral [t]rauma" combined with contributing factors of "[m]ultiple [b]lunt [t]raumatic [i]njuries of [b]ody," including "multiple and irregular contusions numbering no less than 33 . . . distributed over [his] head and face" and "no less than [10] scars, [9] abrasions and 18 contusions [on his body] at the time of his death." The coroner found D.H. had suffered repeated abuse for at least two months before his death, coinciding with reports of his eating problems, seizure-like behavior, and vomiting.
In May 2008, SSA recommended no reunification services for the parents, that a permanency planning hearing be set, and that suitable placement with relatives be considered. Regarding relatives, SSA reported grandmother had told the police she never saw any injuries during multiple contacts with D.H. Grandmother also told police that when she and grandfather saw D.H. five days before his death he looked skinny and pale and had been that way for a "couple months." She had cared for D.H. a "couple times" in her Riverside home and had stopped by mothers home about three times a week. Although she told the police she believed D.H. had died "normally because he [had] stopped breathing," both she and grandfather noticed the last few months D.H. did not want to eat and only wanted to drink water. She remembered thinking "theres something unusual" going on because D.H. was always injuring himself. She described how he needed stitches for a head injury he sustained a couple of months before his death.
Additionally, a detective informed SSA that relatives had told Timothy while he was in custody not to tell the police anything and to "remember what we talked about." He also indicated mother had told him during multiple conversations that she took the boy and D.H. "with her everywhere" and believed any relatives who had contact with the family likely would have seen D.H. and his injuries. In light of mothers admission and the failure of relatives to protect D.H. from abuse despite his injuries being so severe that anyone who came in contact with him would have noticed them, SSA determined the boy could not be placed "with anyone who had contact with the family in the months surrounding [D.H.s] death" and denied placement to grandparents and great-uncle.
Grandparents and great-uncle appealed SSAs decision denying them placement and participated in an administrative hearing. The director of SSA upheld the decision.
Mother gave birth to the girl in September 2008. A month later she lied to the court stating she had not yet given birth and was not due for another month. But SSA received contrary information and conducted a welfare check at grandparents Riverside home, the address given to the hospital when the girl was born. On the first visit no one responded to the door but during a second visit, a man came to the door, denied any children were in the house, and refused police entry. Although no child was seen or heard, police saw a bassinet in the home. A few days later, mothers attorney reported the girl was in Mexico but when the court ordered mother to surrender her by that afternoon, mother complied. The court ordered the girl detained and authorized SSA to place her with suitable relatives.
SSA again concluded no relatives were suitable for placement because they had all seen D.H.s condition and had failed to protect him. It recommended the children be freed for adoption to ensure their safety, as their "immediate and extended family is grossly involved in the murder of [their] cousin . . . and the subsequent cover up."
At the consolidated jurisdictional and dispositional hearing for both children, the court admitted into evidence SSAs many reports and heard testimony from grandparents, great-uncle, great-aunt, and social worker Mitra Bustamante. Grandfather admitted denying police entry to his home to look for the girl but claimed she had never stayed there. The bassinet was for the girl and he intended to take it to mother, whom he did not know was hiding from SSA. He had seen D.H. at mothers home about 10 times but mostly outside in the carport as they were talking or dropping off food. Although he noticed D.H. was thin, grandfather believed he was under a doctors care and did not recall seeing any injuries on him including a large scar on his face. He did not think mother and father did anything to D.H. based on his knowledge of them but if the court found they were involved, he would follow its orders because the boys health, well-being, and safety were his primary focus.
Grandmother testified she last saw D.H. two months before he died, that she stayed in the parking area when she went to mothers house two to three times a week, that she never noticed the scar on D.H.s head or any bruises or stitches, and that she had never seen him up close because he was always a few feet away playing with the boy or in the house. She denied seeing D.H. five days before his death or making the statement to the police, claiming that she had been in Laughlin, Nevada at that time. Although she said the children would be her priority and would seek a restraining order if necessary, she saw no harm in the children seeing or being with their parents. She also admitted knowing mother had hidden the girl from SSA but stated did not know she had a responsibility to report it.
Great-uncle acknowledged helping bail father out of jail and testified he did so because he did not believe father had committed child abuse and was concerned about him being in jail with those charges. He socialized with the boy at birthdays and holidays, and went on trips with him and his parents, but had never gone to their house. He had never met D.H. and did not know he was living with them. He believed the parents were "good people" and did not think father was capable of hurting a small child because he was his nephew and he knew him. He would respect any limitations the court set on contact between the children and parents but if he were to adopt the children he would allow such contact if he and the children were comfortable with it.
According to great-aunt, she had left two messages for the social worker shortly after the boy was detained but never heard back and also never followed up to see if her messages were received. She saw the boy at family gatherings several times a month and had vacationed with him, his parents, and mothers siblings Timothy and Dorothy. But she had never met D.H. She believed the boy was removed from the home because "unfortunately, there was an accident." She did not know what happened because she was not there and she never questioned the parents about it because "its not something I would really want to know . . . unfortunately a little boy passed away. . . . Its just something that I . . . try to block out of my mind." She later stated she would like to know how D.H. died but was unable to say whether she believed the parents participated in his murder because "people are capable of doing the unthinkable." She asserted her priority would be protecting the children from harm even if the parents were a perceived threat and that, if necessary, she would conceal the location of her home, avoid taking them to family events the parents would attend, and seek restraining orders.
Bustamante opined that given grandmothers statements to the police and how evident D.H.s injuries were in the autopsy photographs, it was unlikely she could have seen D.H. without noticing his injuries. She also described the incident where police went to grandparents home looking for the girl shortly after she was born and saw a bassinet inside but grandfather blocked the door to prevent them from entering. Bustamante believed this was "highly suggestive . . . [of] a continued pattern of [the] family . . . hiding . . . information."
Regarding great-uncle, Bustamante had a hard time reconciling his wifes statement that she had never met or seen D.H., despite having recent contact with mother and the boy and seeing them "every so often" at great-uncles home, with mothers statements that she took D.H. with her everywhere and had taken care of him for the majority of his life. Given the familys close knit nature and the various family functions attended by the boy, it was hard for Bustamante to fathom how no one knew D.H. existed.
Because she could not determine which of these family members had had contact with D.H. and whether they were telling the truth, Bustamante concluded the childrens safety required her "to err on the side of caution." Also the familys "`permeous boundaries," with everyone "living or visiting each other . . . in each others homes," and mothers verbal aggressiveness towards people made it questionable whether relatives would be able to maintain a boundary with the childrens parents. But Bustamante was willing to assess great-aunt, whom she had never heard of before the jurisdictional/dispositional hearing, as well as any other family member who had "a tangible, coherent and consistent plan of protection for [the] children."
Following argument from counsel and consideration of the evidence, the court found "significant and hideous child abuse happen[ed] in [parents] home" and was astounded that no one in this "hugely tight knit family that travels[and] parties together" knew about D.H. and denied seeing anything happening to him. It further determined the boy was suffering emotionally as a result of witnessing the abuse and watching D.H. serve as "a punching bag for everybody."
The court denied the requests by grandparents, great-uncle, and great-aunt for placement of the children because it could not be sure they would protect them given their claim they did not know what was going on and either did not believe D.H. died as a result of physical abuse or thought his death was an accident. Because grandparents were complicit in hiding the girl, it ruled there was no need to reassess them. It found great-uncles statement that "he would just wait and see if the kids were willing to have contact . . . unacceptable" and was concerned that he had bailed father out of jail. Finally, it determined it could not risk placing the children with great-aunt given her reference to D.H.s death as an accident when she did not "really know what happened." It sustained the petitions, denied reunification services to the parents, and set a permanency planning hearing.
Grandparents, great-uncle, and great-aunt all filed notices of appeal. Great-aunt also filed a petition for habeas corpus. We granted her request to consolidate the two cases and stayed the permanent plan selection hearing until our further order.
DISCUSSION
1. Request to Treat Notice of Appeal as Notice of Intent to File a Writ
Appellants request we treat their appeals as notices of intent to file writ petitions. We need not do so because a dispositional ruling that includes the order denying relative placement is appealable as a final judgment under Welfare and Institutions Code section 395 (all further statutory references are to this code unless otherwise indicated). (In re Daniel K. (1998) 61 Cal.App.4th 661, 666-667.) The fact that, at the same hearing, the court also denied reunification services and set a section 366.26 hearing does not vitiate the appealability of the dispositional order. But even on the merits of appellants requests, we would apply the rule found in cases such as Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254, 259-260 and treat their appeals as petitions for writs of mandate. Accordingly, we need not address great-aunts claim in her petition for a writ of habeas corpus that she received ineffective assistance counsel from the attorneys representing parents because they told her to file a notice of appeal rather than a writ petition. The petition is denied.
2. Denial of Placement with Relatives
Appellants contend the court abused its discretion in denying their requests for the childrens placement. We disagree.
a. Relevant Legal Principles and Standard of Review
Section 361.3 requires the court to give "preferential consideration" to a relatives request for placement when children are removed from their parents physical custody under section 361. (§ 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).) "The relative placement preference. . . is not a relative placement guarantee . . . . " (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.) It "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 childs best interests . . . ." (In re Sarah S. (1996) 43 Cal.App.4th 274, 286.)
Before a relative placement is made the social worker and the court must consider numerous factors, beginning with the best interest of the child. Other factors include the wishes of the parent, the relative, and the child, and the ability of the relative to provide a safe, secure and stable environment, facilitate court-ordered reunification efforts with the parents, facilitate visitation with the childs other relatives, and provide legal permanence for the child if reunification is unsuccessful. (§ 361.3, subd. (a).) The courts fundamental duty is to assure the childs best interests (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 864), which is the "linchpin" of determining whether a child should be placed with relatives. (Id. at pp. 862-863.)
We review an order regarding a childs placement for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Under that standard, when the facts permit more than one reasonable inference to be drawn, the reviewing court has no authority to substitute its decision for that of the juvenile court. (Id. at pp. 318-319.) We do not reweigh the evidence or revisit credibility issues, but view the evidence in the light most favorable to the ruling, resolving all conflicts and drawing all reasonable inferences in its favor. (See Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 931.) Where substantial evidence supports the order, there is no abuse of discretion. (In re Daniel C.H. (1990) 220 Cal.App.3d 814, 839.)
b. Grandparents
Grandparents contend the court erred in failing to order a relative placement assessment because without one it could not "follow its mandate to assess relative placement under all the criteria set forth [in] section 361.3, subdivision (a)." The argument lacks merit.
Section 361.3, subdivision (a) merely sets forth a preference for relative placement, not a command or a guarantee, and the court did not abuse its discretion in declining to follow that preference for placement with grandparents. The court had considerable information before it, including SSAs numerous reports and live testimony at the hearing, from which it could conclude that placement with grandparents would not be in the childrens best interests because their safety and well-being could not be ensured in grandparents care.
Notwithstanding the visible signs of D.H.s abuse, their close ties to parents, and evidence of regular contact with him, grandparents did nothing to protect him and denied knowing or seeing anything. And despite knowing D.H. had died in parents care, grandparents did not believe parents did anything wrong to D.H. and saw no harm in allowing them contact with the children. There was also evidence they were complicit in helping parents hide the girl from SSA as shown by the bassinet the police saw in grandparents home when they went there looking for the girl and were denied entry by grandfather and grandmothers admission she knew mother was hiding the girl.
Grandparents point out their testimony that they had no "current criminal or child abuse record, . . . were raising three children, and . . . were prepared to protect [children] from their parents." They also assert "it is highly likely that they did not know SSA was looking for [the girl]" because they were not told SSA was looking for her and had not had contact with the social worker for months. They basically request this court to reweigh the evidence and redetermine credibility issues, which we will not do.
The court was entitled to disregard grandparents testimony because it conflicted with many of their prior statements to police. For example, they told police D.H. looked "unusual," was "always cutting and bruising" himself, fell a lot, and one time cut "open his head," requiring stitches, but at the hearing they testified they did not see any injuries on D.H. and noticed only that he was thin. Similarly, although they told police they went to parents house at least three times a week, went inside, and noted the house was "pretty clean" and that there was food in the house, their testimony at the hearing was that they stayed outside in the parking area. Additionally, grandmothers testimony that she had never seen D.H. up close contradicted her statement to police that she had cared for D.H. in her home, had observed him to be skinny, had purchased pedialyte for him, and had asked "whats wrong with him." As well, she told police she had seen D.H. five days before his death, but at trial claimed she was in Laughlin, Nevada at the time.
The court properly hinged its denial of placement with grandparents upon the childrens best interests (§ 361.3, subd. (a)(1)) and its assessment grandparents would be unable to provide a secure and safe environment for them (§ 361.3, subd. (a)(7)(A)) or protect them from parents (§ 361.1, subd. (a)(7)(D)). In so ruling, the court also implicitly determined the childrens best interests outweighed the parties wishes, grandparents moral character, their relationship with the children, their ability to care for and provide a home for the children, and facilitate visitation with other relatives. (§ 361.3, subd. (a)(2)-(7).) Additionally, because the court denied reunification services to parents, grandparents ability to facilitate court-ordered reunification efforts with the parents and provide legal permanence for the children if reunification is unsuccessful were irrelevant. (§ 361.3, subd. (a)(7)(E) & (G).)
Under these circumstances, it was unnecessary for the court to order a relative assessment report and any error by the social worker in not preparing a full assessment was harmless. To that end, Bustamante did not, as grandparents contend, "defer[] to the police to determine the fitness of the relatives to have custody of the children." Rather, she testified the police had "no influence" on her decision to deny the relatives placement and only provided her with facts regarding D.H.s homicide.
c. Great-Uncle
Great-uncle argues the court abused its discretion in refusing his request for placement of the children because there was "insufficient evidence to support the speculation that he would not protect the children." According to him, there was no evidence that his ignorance of the facts of D.H.s death meant he would be unable to protect the children, that he denied the abuse or refused to believe abuse had occurred, that he said he would wait and see if the children were willing to have contact with parents, that he would not obey an order by the court or SSA, or that he knew of D.H.s abuse or could have prevented it. But these were all factual and credibility issues for the court, which we have no authority to reexamine.
We begin by noting that although "relatives" includes great-uncles and great-aunts, the relative placement statute only provides preferential consideration to "an adult who is a grandparent, aunt, uncle, or sibling." (§361.3, subd. (c)(2).) Under section 361.3, subdivision (c)(2), great-uncle was not entitled to preferential consideration. Nevertheless, the court did not deny placement with him "simply because [he] was distantly related," as he asserts. Rather, it conducted a four-day hearing and denied placement with him because it was concerned about his ability to protect the children from parents given the familys geographical and social closeness.
Substantial evidence supports the courts determination. Witness credibility was crucial to the courts determination. The evidence showed great-uncle had a close relationship with his extended family members including parents and the boy. Great-uncle lived in the same city as the boy and his parents. D.H. had lived most of his life in the boys home, the two were close in age, and the boy referred to D.H. as his "brother." Mother told police she took D.H. and the boy "with her everywhere." Great-uncle testified the boy came to his house for birthday parties, Christmas, and special occasions to play and swim with his children and traveled with the boy and his family. His wife also reported having contact with the boy just prior to his removal. Yet great-uncle claimed he had never seen D.H. and did not know he resided with the boy. The court did not abuse its discretion in finding it "astounding" that relatives who traveled and socialized together did not know about D.H.
There was also evidence great-uncle did not believe abuse had occurred. He testified he knew D.H. had died and that father had been arrested for child abuse. Nevertheless, he did not believe father could hurt a small child and would be shocked if the court found father had physically or sexually abused D.H. He bailed father out of jail in part because he did not believe father had committed child abuse.
Moreover, despite asserting he would respect any limitations set by the court if it found the children were at risk in parents care, great-uncle later testified that if he adopted the children he would allow them to have contact with parents if the "kids were comfortable" and he felt comfortable having parents around. The court was within its discretion in finding this unacceptable and denying placement with great-uncle.
d. Great-Aunt
Great-aunt asserts SSA failed to give her preferential consideration as required by section 361.3, subdivision (a). But like great-uncle, great-aunt also was not entitled to preferential consideration under section 361.3, subdivision (c)(2) because she did not fall within the described classes of preferred relatives.
Even if the relative placement preference applied, SSA could not reasonably assess great-aunt before the jurisdictional/dispositional hearing because it did not know she had requested placement until she testified at the hearing. Great-aunt claimed she contacted Bustamante shortly after the boy was detained and never heard back, but she also admitted that she never followed up during the next 16 months. And although Bustamante testified she had never heard of great-aunt or her request for placement prior to the hearing, she was willing to assess her for placement.
But the court independently assessed great-aunt at the hearing and determined further evaluation of her was unnecessary, implicitly finding that placement with her was not in the childrens best interests. That the court did not expressly address on the record each of the section 361.3 factors does not mean it did not consider them. It heard testimony about her home, her lack of criminal history or prior child abuse reports, her prior contact with the boy, her relationship with parents, and her desire to have the children placed in her care. Despite this testimony and that great-aunt presented as "a very nice person," the court was concerned because great-aunt believed D.H.s death was an accident without knowing what happened. Rather than questioning the parents about his death, she did not want to know what happened and tried to block it out of her mind. The court was disturbed that "people were not willing to believe that something bad could have happened" and concluded it could not risk placement with great-aunt. It did not abuse its discretion in doing so. We reject great-aunts contention the court misconstrued her testimony because factual and credibility determinations were for the trial court and we will not reweigh the evidence.
Great-aunt contends she had a due process right to cross-examine witnesses including the investigating police officer because SSA relied on information from the police regarding relatives they had investigated about D.H.s death. But although "[p]arties to [dependency] proceedings have a due process right to confront and cross-examine witnesses, at least at the jurisdictional phase[]" (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757), great-aunt admits she "was not a party to the dependency proceedings." As SSA observes, "[n]othing in section 361.3 guarantees a relative a right to cross-examine witnesses." Nor has great-aunt cited any authority that such due process rights apply to relatives. The contention is waived. (Cal. Rules of Court, rule 8.204(a)(1)(B); Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384 [court need not consider argument for which no legal authority cited].)
Furthermore, it was not SSA who denied great-aunt placement, as Bustamante had never heard of her before the hearing. Rather, the court independently assessed her and declined to place the children in her care. Because the courts decision was based on great-aunts testimony and not information from the police, great-aunt had no due process interest in cross-examining the officer.
DISPOSITION
The order denying each appellants request to have the children placed in their care is affirmed. Great-aunts petition for a writ of habeas corpus is denied.
WE CONCUR:
OLEARY, J.
ARONSON, J.