Opinion
NOT TO BE PUBLISHED
Original proceedings; petitions for a writ of mandate to challenge an order of the Superior Court of Orange County, Caryl Lee, Judge., Super. Ct. Nos. DP012214 & DP012215.
Deborah A. Kwast, Public Defender, Frank Ospino, Assistant Public Defender, Matthew Missakian and Paul T. DeQuattro, Deputy Public Defenders, for Petitioner Kristi F.
Lawrence A. Aufill, under appointment by the Court of Appeal, for Petitioner Philip R.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.
Law Office of Harold LaFlamme and Linda O’Neil for Real Parties in Interest Andrew F. and Hunter F.
OPINION
BEDSWORTH, ACTING P. J.
Kristi F. and Philip R. each petition for a writ of mandate to compel the juvenile court to a vacate a 12-month review order. Kristi is the mother of Andrew F. and Hunter F., and Philip is the father of Andrew. Kristi argues she was denied due process when the court refused to hold an evidentiary hearing on the issues of relative placement and the appropriateness of the current placement. Philip argues there is insufficient evidence to support findings that it would be detrimental to place Andrew with him, and that Philip was offered reasonable services. Counsel for the minors argues the petitions should be denied. We agree with the minors and deny the petitions.
* * *
In August 2005, Hunter was born with methamphetamine in his system and held at the hospital. Andrew (then two and one half) was detained the next day. Kristi told a social worker Philip was Andrew’s father, she last saw him a month after Andrew was born, and he had never provided support.
The Orange County Social Services Agency (SSA) filed a dependency petition that alleged Kristi was unable to provide regular care for the children due to substance abuse, and Philip had failed to protect Andrew from the risk of serious physical harm arising from Kristi’s drug use. (Welf. & Inst. Code, § 300, subd. (b.)
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The jurisdiction/disposition hearing was held on October 11, 2005. SSA reported Kristi had told a social worker she used drugs twice a month while pregnant. Kristi had been living with friends and left Andrew in the care of her mother, Janelle F. Kristi and Janelle asked SSA to place the children with Janelle. After a criminal record check, SSA declined to do so. SSA did not report what the record check revealed (it reported that at a later date), but it appears SSA shared the information with Janelle in late September 2005, so we lay it out here.
There were 11 child abuse reports involving Janelle’s family, and her husband, Angel R., had two criminal convictions. In 1980, Angel was convicted of misdemeanor possession of dangerous drugs. The child abuse reports date from 1984 to 2002. A 1994 report alleged physical abuse, saying Angel hit one of the children. Angel admitted “slapping” the child. The report stated physical abuse was unsubstantiated, “but chaotic, multi-problematic family [with] [p]arents in constant disputes, minors very much affected. History of domestic violence. Father acts in emotionally abuse [sic] ways towards mother’s eldest daughter.” Family Maintenance services were provided for one year. The last report, from 2002, alleged that Angel lost his temper and hit one of the children hard enough to cause a split lip. Angel was arrested, charged with corporal punishment with traumatic injury to a child, convicted, and sentenced to jail and probation. He later completed a child abuse treatment program, along with anger management and parent education classes. The family agreed to a voluntary family maintenance program for six months.
We say it appears SSA discussed this information with Janelle because SSA reported it had asked her for information about Angel, which she provided. On October 3, 2005, the social worker made a “relative assessment referral” to consider Janelle’s placement request.
SSA also reported it had received a telephone message from Philip in late September 2005. Philip said he had received notice of the hearing; he left his Florida telephone number. The social worker returned the call but did not reach Philip, and left a message. The juvenile court sustained the petition, declared the boys dependent children, and removed them from parental custody. Kristi was provided with reunification services and a drug court program.
On November 3, 2005, SSA wrote to advise Janelle that her placement request was denied. It cited the family’s “extensive history with [c]hild [a]buse investigations” and “two [v]oluntary [f]amily [s]ervices cases.” The letter stated Janelle could seek review of the decision by submitting a written request for a hearing, explaining the facts she believed warranted reversal. Janelle responded on November 7, 2005. Most of her long letter detailed her love for Andrew and the care she provided before he was detained. She never addressed the child abuse reports, or Angel’s convictions. The record does not reveal any response by SSA to Janelle’s letter.
In December 2005, Janelle wrote to the juvenile court. She asked it to reconsider the placement decision (apparently referring to the placement made at the jurisdiction/disposition hearing), again explaining at length her love for the children. Janelle said she would not let Kristi in her home without the court’s permission, but she said nothing about the issues raised by the child abuse reports or Angel’s criminal convictions.
The six-month review was held in April 2006. SSA reported Kristi was making progress, complying with her service plan, and making her appearances at drug court. SSA did not report any further contact from Philip. The juvenile court continued services for Kristi. In May 2006, Kristi was arrested for possession of methamphetamine, and she was dropped from the dependency drug court program the following month.
In September 2006, SSA moved Andrew and Hunter to a new foster home. They had been placed with Timothy and Tamera L., who had been interested in adopting the boys. But the L.’s changed their minds, and SSA placed the boys with a new prospective adoptive family.
In October 2006, Janelle was granted de facto parent status as to Andrew. In December 2006, Tamera L. was granted de facto parent status as to both minors. (Timothy L. was granted de facto parent status at a later date.)
In mid-February 2007, Kristi filed the instant motion to place the minors with Janelle and review the current placement, asking for an evidentiary hearing. In support, she offered SSA’s November 2005 letter denying Janelle’s placement request, Janelle’s subsequent letters to SSA and the juvenile court, and numerous letters from Janelle’s friends and neighbors vouching for her character and commitment to the boys. Kristi also proffered letters from the former foster parents.
Tamera L. said “[t]he adoptive parents are not willing to have an open adoption, which would mean that Andrew’s and Hunter’s relatives would no longer be a part of their lives. [¶] This situation is very concerning to me as I believe that complete separation from family, that Andrew has known for four years and Hunter for over a year now, will lead to deep injury that could result in imbedded anger that may never go away, that will greatly limit the children’s potential, and that could cause harm and destruction to unknown lives in the future.”
Timothy L. wrote to say the L.’s had undergone another change of heart and now wanted to adopt Andrew and Hunter in an “open adoption.” “A significant emotional bond was created that is still in effect some four months after the boys have been removed from our home. The boys were placed with a different foster family when the agency determined that they would most likely go up for adoption. At that time I was not certain that we should commit to adopt the boys. I have come to regret my indecision and believe that it would have been best for Andrew and Hunter and my family to remain together. My wife and I have since requested that we be considered as adoptive parents, should the boys be placed for adoption. . . . We know the boys’ biological family and would welcome an open adoption, because we feel it is in the best interest of the boys.”
In opposition, SSA said Angel’s criminal conviction precluded placing the boys with Janelle. It reported that Angel had moved out of the house in late January 2007, hoping that would facilitate placement, but he moved back in mid-February, telling a social worker he did not want to be away from his sons. SSA argued the current placement was appropriate because the boys were doing well.
SSA also reported that in early December 2006, Philip called the assigned social worker, his first contact with SSA since it left a message for him September 2005. Philip had moved back to California, and he met with the social worker at the end of the month. SSA said paternity testing showed a 99.99 percent chance Philip was the father of Andrew. (The record is silent regarding who suggested testing and when it was performed.) Philip “apologized for not being around, ” said he had not known he was Andrew’s father, and explained that he had been contacted by child support services and was now required to pay child support. Philip said he wanted an attorney appointed so he could obtain visitation and custody. Counsel was appointed by the court.
Philip moved for presumed father status in January 2007, after he executed a declaration of paternity. The motion was denied on January 19, 2007. The juvenile court found Philip had waited too long to come forward, and it was not in Andrew’s best interests to provide reunification services to Philip, since the child did not know Philip and was in a prospective adoptive home.
On April 6, 2007, Philip again moved for presumed father status, this time successfully. Counsel pointed to a rule previously overlooked, which provides that a declaration of paternity establishes paternity with the same effect as a judgment of paternity. (Cal. Rules of Court, rule 5.635(c).) Apprised of this rule, the court granted the motion, suggesting Philip contact SSA immediately to arrange for reunification services.
Kristi’s motions were heard on April 10, 2007, in conjunction with the 12-month review. The juvenile court declined to hold a hearing on either issue. On the relative placement request, the court explained that a child cannot be placed in a home if an adult residing there has been convicted of a crime (other than a traffic misdemeanor) unless SSA waives the conviction, which it declined to do. The court said it had no independent power to place a child in such a home where no waiver is forthcoming. The court noted that Angel had moved out, then back, and asked if he was still living in family home. Counsel for Kristi replied “I don’t believe he is still living there.” The court found that did not alleviate the problem: “[H]e’s moving in and out and certainly the court cannot assume that . . . situation would change. [¶] . . . “[B]ottom line is I cannot place the children in a home with someone who has suffered this conviction . . . and the agency has made it clear that they are not providing a waiver . . . .” The court added that Janelle should have requested a hearing earlier in the dependency process: “This is not the time to raise this. There is no surprise what the agency relied on and there should have been an early intervention by grandmother saying, I want the court to hold this hearing.”
As for the current placement, the court said there was no evidence the arrangements at the foster home were lacking. “The only thing that sheds light on the need that mother is voicing to change is that the L.’s [now want] to adopt the children and do an open adoption, which would allow contact with mom, which doesn’t . . . make this placement they’re currently in inappropriate.”
The 12-month review followed. The assigned social worker testified he believed Andrew would be at risk if returned to Philip’s custody “because he doesn’t know his father.” He was unsure if Andrew would benefit from immediate visits with Philip, explaining “its hard to say how a child would react. He has reacted out of anger a lot of times, so I really can’t guess for Andrew.” The social worker thought visitation should begin as part of Andrew’s therapy, to allow Andrew to get to know Philip: “[To] a child that age, mom and dad to them sometimes seems like . . . whoever is caring for them. And if he just all of a sudden says, hey, I’m your daddy, that would throw him off. He wouldn’t understand. [¶] So I would like the therapist to kind of break him in. . . . [The therapist] is good at seeking the progression and trying to figure out how to best coordinate everything.” In recounting a meeting with Philip, the social worker said Philip told him he wanted Andrew placed with either his own mother or Janelle. Philip never said he wanted custody of Andrew.
The juvenile court found it would be detrimental to return Andrew to the custody of either parent, and reasonable services had been offered to both parents. In Philip’s case, the court said the risk was that Andrew did not know his father, and “therapeutic intervention is perhaps a very good way to begin . . . and the court believes that is . . . in his best interest.” On the matter of services, it found “under the circumstances, the services provided to Mr. R. were reasonable. The gentleman remained whereabouts unknown for the bulk of this case and the bulk of his son’s life.” The court ordered services terminated and set the matter for a selection and implementation hearing.
I
Kristi argues the juvenile court should have held an evidentiary hearing on her request to place the minors with Janelle, since Angel no longer resided in the home. We cannot agree.
Once a child is removed from parental custody, “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).) Prior to placing a child in the home of a relative, SSA is required to conduct a criminal records check on all persons over the age of 18 “living in the home.” (§ 361.4, subd. (b).) If the check reveals anyone has been convicted of a crime that would preclude licensing the home under Health and Safety Code section 1522, the child may not be placed there unless a criminal records exemption is granted by the county under authorization from the Director of Social Services. (§ 361.4, subds. (d)(2), (d)(3)A).) Health & Safety Code section 1522 deals with licensing foster family homes. Among other things, it provides that a license must be denied if the applicant has been convicted of a crime other than a minor traffic violation. (Health & Saf. Code, § 1522, subd. (d)(7).)
The juvenile court has no authority to ignore a criminal conviction that precludes placing a child with a foster family. Such power lies solely with the Department of Social Services and its delegates. A county social services agency authorized to grant exemptions acts in an executive capacity when doing so, subject only to administrative review. (In re S. W. (2005) 131 Cal.App.4th 838, 848.)
In this case, the juvenile court properly denied a hearing on the request for a relative placement with Janelle. Angel effectively remained in Janelle’s home, and the court could not place the boys with Janelle in the face of SSA’s refusal to exempt Angel’s convictions. The court found Angel’s pattern of moving out for a short time and then returning was not going to change, and the evidence supports the finding. It was a reasonable inference that Angel was not going to stay away from his wife, children, and family home for any length of time, particularly after Angel said as much – he told a social worker he had moved back because he did not want to be away from his sons. There was no error in denying the motion without a hearing.
Kristi argues the court could have placed the minors with Janelle because there was evidence Angel was no longer in the house. The evidence was counsel’s statement that “as of today . . . as an offer of proof, I believe that we could demonstrate that Mr. [R.] is not in the home today.” The point is wide of the mark.
Even if true, Angel’s latest decamping does not vitiate the finding that his pattern of moving out to satisfy SSA, and then returning, was not going to change. At best, it is part of a pattern found to be insufficient to show he was no longer living in the family home. Moreover, counsel’s statement was not sufficient as an offer of proof. Stating the substance of facts to be proved is not enough – what is required is a proffer of the testimony of a specific witness to prove the fact at issue. (Evid. Code, § 354, subd. (a); United Sav. & Loan Assn. v. Reeder Dev. Corp. (1976) 57 Cal.App.3d 282, 294.) So the claim that Angel was no longer in the home did not require a hearing.
Kristi also contends the juvenile court wrongly denied the relative placement motion as untimely. We do not reach this issue in light of our holding that the court properly denied the motion because SSA declined to waive Angel’s criminal convictions.
II
Kristi also argues it was error to find the current placement appropriate without an evidentiary hearing to consider the concerns raised by the L.’s. She is mistaken.
The juvenile court is required to review the status of every dependent child in foster care at least once every six months, at which time it “shall consider the safety of the child and shall determine” several issues, including “[t]he continuing necessity for and appropriateness of the placement.” (§ 366, subd. (a)(1)(A).)
The parties differ over the proper scope of these periodic placement reviews, in addition to disagreeing on the necessity for an evidentiary hearing. Kristi asserts the court must consider the specifics of the particular placement and, in this case, that means determining if the placement is emotionally safe for the children. SSA takes a narrower view, arguing the inquiry is limited to whether it is proper to continue a child in out-of-home foster care. But the question is one we need not decide.
Kristi fails to offer any evidence which, if believed, would require a hearing. The case against placement is Tamera L.’s objection to the prospective adoptive parents. She faulted them for being unwilling to consider an “open adoption, ” in which Andrew and Hunter would continue to have contact with their relatives. Tamera believes that severing the family tie would cause the boys lasting emotional harm. According to Timothy L., the couple regretted telling SSA they did not want to adopt the boys – the event that prompted the change in placement – and they now want the boys placed with them for an “open adoption.”
The L.s’ opinions do not show the current placement is either unsafe or inappropriate. Tamera raises the possibility of future emotional harm, which may occur if and when parental rights are terminated and the boys placed for adoption. But lay opinion about future psychological harm is obviously highly problematical. What’s more, it is premature. Whether a child would benefit from continuing the parental relationship is an issue for the selection and implementation hearing (§ 366.26 subd. (c)(1)(A).) Since a concern over future harm does not raise a current safety issue, and a parent cannot dispute the suitability – read appropriateness – of a prospective adoptive family, a hearing was not required on the current placement, any more than one was required on the relative placement motion. Kristi’s petition must be denied.
III
Philip argues two findings are unsupported by the evidence. We consider each in due course, and conclude neither has merit.
Philip first challenges the finding that returning Andrew to Philip’s custody would create a substantial risk of detriment to the child. The only evidence on the issue came from the social worker. He testified Andrew would be at risk if placed with Philip, because Andrew did not know his father. The social worker recommended Philip be granted visitation, initially as a part of Andrew’s therapy, so the child could get to know his father.
Philip contends this is not “professional evidence, ” and SSA’s position was inconsistent with its twice having placed Andrew with foster families he did not know. We disagree.
The social worker’s testimony supports the detriment finding. The testimony of one credible witness is substantial evidence that is sufficient to prove a fact. (Evid. Code, § 411; Kearl v. Bd. of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1052.) Philip did not object when the social worker was asked for his opinion on the risk of placing Andrew with his father, nor does he cite any authority for the assertion that “professional evidence” was required and not presented. So while the evidence may be less than conclusive, it is adequate. We must affirm the finding.
Whether a witness is taking an inconsistent position goes to the weight to be afforded his testimony, and that was a matter for the trial court. The court impliedly found the social worker credible when it made the detriment finding, and the point cannot be reargued on appeal. We must add that there is no necessary inconsistency in SSA’s position. As SSA points out, the foster placements were made of necessity when Andrew could not be returned to parental custody at the disposition hearing or six-month review, in Philip’s case because he declined to appear. In any event, the alleged inconsistency does not require reversal of the detriment finding, which is supported by the evidence.
Philip’s second challenge is to the finding that he was offered reasonable reunification services. Philip contends no meaningful services were offered because the juvenile court wrongly denied him presumed father status on January 19, 2007. By the time the court reconsidered on April 6, 2007, he lost three months of services, and there was less than a week to go before the 12-month review (on April 10, 2007). Philip is right on the chronology, but wrong about who bears responsibility for the delay in finding him a presumed father.
Philip did not even begin to seek presumed father status until late in the dependency proceeding. He was given notice of the dependency petition in September 2005, yet waited until December 2006 to contact SSA about asserting his rights. Philip declined to appeal from the order denying him presumed father status on January 19, 2007, even though it was an appealable order. (§ 395.)
The juvenile court said the services offered to Philip were reasonable “under the circumstances . . . [where] the gentleman remained whereabouts unknown for the bulk of this case and the bulk of his son’s life.” We think there is ample evidence to support that finding. The delay in providing services was the result of Philip’s multiple delays in taking the steps necessary to qualify for them as a presumed father. Since the evidence supports the findings challenged by Philip, his petition must also be denied.
In fine, the juvenile court was not required to conduct a hearing on Kristi’s motion to place the minors with her mother, nor her motion to assess the current placement. In Philip’s case, the evidence supports the findings that it would be detrimental to place Andrew with Philip and reasonable services were offered. The petitions for a writ of mandate to compel the juvenile court to vacate its 12-month review order, brought by Kristi F. and by Philip R., must be denied. In the interests of justice, this decision shall become final ten days after the opinion is filed. (Cal. Rules of Court, rule 8.264 (b)(3).)
WE CONCUR: O’LEARY, J., IKOLA, J.