No. C082660.

In re K.A., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. L.M., Defendant and Appellant.

Court of Appeals of California, Third District, Sacramento.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115


Father L.M. appeals from the juvenile court's July 22, 2016, order denying his request to place the minor K.A. with the paternal grandparents. (Welf. & Inst. Code, § 361.3.)1 We shall affirm.


1. 2009 to 2010 Proceedings

In separate proceedings during 2009 and 2010, the juvenile court adjudged the minor a dependent and removed her from mother's physical custody. (§ 300, subds. (a) & (b).) In April 2010 the juvenile court terminated dependency and awarded father sole physical and legal custody of the minor.

2. 2015 Proceedings

On November 12, 2015, the minor (then age eight) reported to her school that father hit her "all over her face," bruising her cheek, jaw, and ear. According to the minor, father had hit her before. Father claimed the minor hit herself, but the minor denied doing so. A subsequent forensic medical analysis concluded the minor could not have struck herself, based on the bruise pattern. The police arrested father for child abuse and placed the minor in protective custody. On November 16, 2015, the paternal grandmother requested placement of the minor, stating she cared for her on weekends and holidays.

On November 17, 2015, the Sacramento County Department of Health and Human Services (the Department) filed a section 300 petition on behalf of the minor, alleging substantial risk of serious physical harm, failure to protect, no provision for support due to father's incarceration, cruelty, and abuse of siblings due to the juvenile court separately declaring three of the minor's half siblings as dependents. (§ 300, subds. (a), (b), (g), (i) & (j).) On November 20, 2015, the juvenile court ordered the minor detained in temporary foster care and found there was no relative or nonrelative extended family member who was able, assessed, and willing to care for her.

The January 2016 jurisdiction/disposition report indicated the minor has an emotional disturbance disorder. The minor would display maladaptive behaviors, including biting herself until she bled, hitting herself on her arms and legs, slamming her head on a table, and sexualized behavior of self-stimulation. She attended a special-needs school specializing in severe "emotional disturbed disorders" and had an individualized education plan.

During the jurisdictional and dispositional hearing on February 3, 2016, the juvenile court dismissed the section 300, subdivision (g) allegation and sustained the remaining allegations. The juvenile court declared the minor a dependent, removed her from father's physical custody, denied reunification services to mother, and ordered reunification services for father. (§ 361.5, subd. (b)(10), (11).) The court also set a relative placement hearing.

The Department evaluated the maternal aunt and uncle, the paternal grandparents, and the maternal great-cousins, and recommended placement with the maternal aunt and uncle. In March 2016 the juvenile court placed the minor with the maternal aunt and uncle.

At the request of the maternal aunt and uncle, the minor was removed from their care in April 2016. Father had repeatedly threatened them and other family members, including threatening to burn down the maternal aunt and uncle's house and kill them and their children. Father also made unfounded allegations against the maternal aunt and uncle. The maternal aunt and uncle feared for their family's safety. The minor was placed in a confidential intensive therapeutic foster home. The Department subsequently filed a section 387 petition, alleging the maternal aunt and uncle were no longer willing or able to care for the minor and recommending foster care. The juvenile court sustained the section 387 petition in June 2016. The court calendared a relative placement hearing.

In May 2016 the minor's foster parent reported the minor was exhibiting sexualized behaviors, including masturbating in front of the foster parent while riding in the car. The minor explained, "this is what I'm use[d] to," and said she self-stimulated because father did it to her. In addition, the foster parent observed the minor putting her fingers and toothbrush into her genitalia, and the minor said father used to digitally penetrate her. The minor would also "hump" pillows, explaining, "that's the way my daddy did it to me." The minor's teacher also reported observing the minor humping stuffed animals during story time, rubbing herself on the corners of tables and poles on the playground, and taking a long time in the restroom (with the concern that she was masturbating).

In June 2016 the Department filed a section 342 subsequent petition, alleging father sexually abused the minor on more than one occasion prior to her placement in protective custody in November 2015. (§ 300, subd. (d).) The juvenile court found a prima facia showing had been made that the minor came within section 342 and ordered no contact with father. After two of the minor's intensive therapeutic foster care homes gave notice for removal based on the minor's behavioral problems, the Department moved the minor to a group home and then to Sutter Center for Psychiatry, due to suicidal thoughts and hostile and aggressive behavior.

The Department again evaluated placement of the minor with the paternal grandparents in the prepermanency review and jurisdiction/disposition reports, both dated July 15, 2016. Although father supported placement with the paternal grandparents, the minor stated she wanted to live with the maternal aunt and uncle. The paternal grandparents had a relationship with the minor, having cared for her on the weekends prior to her detention, and then having supervised visits with her. The paternal grandparents lived in a three-bedroom, one-bath subsidized apartment, along with the paternal aunt. Their combined monthly income was $3,546 per month. The minor would be able to have her own bedroom because the paternal grandmother would sleep in the living room. Living with the paternal grandparents would also enable her to continue to attend her current special-needs school, and the paternal aunt and uncle were willing to provide occasional babysitting.

Still, the Department had "significant concerns" about the paternal grandparents' ability to care for the minor. The paternal grandmother had been seeing a psychiatrist since 1999 for posttraumatic stress disorder (PTSD), anxiety, and depression. She took medication for her mental illness and also received Supplemental Security Income (SSI) benefits for depression, brain injury, and difficulty with reading comprehension. The paternal aunt also had mental health issues and received SSI and Social Security Administration (SSA) benefits. The paternal grandfather was convicted in 1983 of driving under the influence (DUI) and currently drank three cans of beer daily. In addition, in 1991 the paternal grandfather was charged with a lewd act with a child under 14 years. (Pen. Code, § 288, subd. (a).) Although the charges were dropped, the report described the related police report and statements as "very concerning."

Also, the paternal grandparents had extensive history with Child Protective Services (CPS), including 18 referrals from 1999 to 2002, nine of which were evaluated. Two of the referrals were substantiated, including an allegation that father sexually abused the paternal aunt when they were minors. At the time, the paternal grandmother told the social worker that "she had suspected for a long period of time that [father] had been molesting [the paternal aunt]." Also substantiated was an allegation of absence/incapacity of the paternal grandmother. In addition, the paternal grandparents and aunt did not believe any of the current physical and sexual abuse allegations against father and had no concerns about his relationship with the minor.

As the report explained, "[i]t is the Department's assessment that the [paternal] grandparents cannot meet [the minor's] needs based on their lengthy history with CPS alleging numerous instances of general neglect and absence/incapacity." In addition, "the paternal grandparents are not able to set the boundaries between [the minor] and [father] as evidenced by the fact that they still do not believe the two previously sustained petitions resulting in the minor's Dependency." Based on all the above concerns, the Department did not recommend placing the minor with the paternal grandparents.

On July 15, 2016, the juvenile court sustained the section 342 subsequent petition and ordered reunification services for father. On July 22, 2016, the juvenile court denied father's request to place the minor with the paternal grandparents, finding it would not be in the child's best interests. The juvenile court was most concerned about the family's prior CPS history, including the history of substantiated sexual abuse allegations for the paternal aunt, who was currently living in the home. "[I]t would seem to be perpetrating or continuing the cycle of dysfunction if the Court was to place yet another child in the care and custody of the paternal grandparents." The court was troubled that the paternal grandmother had previously suspected father was sexually abusing the paternal aunt but denied all the current allegations against father. This, reasoned the court, would not be a "supportive environment" for the minor, "who will be in need of emotional support relative to completing her treatment for her victimization."

In addition, given the minor's "very specific mental health needs," and current hospitalization for treatment, the juvenile court reasoned "it would be highly contrary to her best interests to put her into a home where there are already two individuals who are struggling with their own mental health issues." Both the paternal aunt and grandmother suffered from mental health issues significant enough to qualify them for governmental assistance, and the court was "concerned" by the plans to allow the paternal aunt to babysit the minor. In addition, the court was concerned about the paternal grandfather's DUI and current alcohol consumption.

Father appealed.



The Department contends father does not have standing to appeal the juvenile court's ruling denying placement with the paternal grandparents. We disagree.

A parent may appeal a judgment in a juvenile dependency matter if he or she is an aggrieved party and has "a legally cognizable interest that is injuriously affected by the court's decision. [Citation.] We liberally construe the issue of standing and resolve doubts in favor of the right to appeal. [Citation.]" (In re H.G. (2006) 146 Cal.App.4th 1, 9.) A parent may be aggrieved by an order denying relative placement while the case is in reunification when such a placement might enhance a parent's ability to reunify with his or her child. (See In re Joseph T. (2008) 163 Cal.App.4th 787, 797-798 ["relative caregivers are more likely to favor the goal of reunification and less likely than nonrelative caregivers to compete with the parents for permanent placement"].)

Because father's parental rights to the minor had not been terminated and he was still receiving reunification services at the time of the hearing, we conclude he has standing to challenge the juvenile court's order and findings. (Compare Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035 [concluding denial of placement with relative did not affect the father's interest in reunification with the minors, where the father had stipulated to the termination of reunification services].)


Father contends the juvenile court abused its discretion in denying placement with the paternal grandparents, claiming there was no substantial evidence that the paternal grandparents could not safely care for the minor over a foster care placement. According to father, there was no evidence the paternal grandmother's and paternal aunt's mental illness posed a risk of harming the minor. In addition, father alleges it was error to rely on the paternal grandfather's 22-year-old DUI conviction, especially since there was no evidence the paternal grandfather had subsequent problems with alcohol. Father also contends it was error to rely on the paternal grandparents' prior CPS referrals. The Department contends the juvenile court properly focused on the minor's best interests, and we agree.

Under section 361.3, whenever a new placement of a dependent child must be made, preferential consideration must be given to suitable relatives who request placement. (§ 361.3, subds. (a) & (d); see also In re Antonio G. (2007) 159 Cal.App.4th 369, 376.) "`Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) "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., at p. 376.) "[T]he statute express[es] 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 interest of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 320.) However, the relative placement preference of section 361.3 "is not a relative placement guarantee." (In re Joseph T., supra, 163 Cal.App.4th at p. 798.) "The linchpin of a section 361.3 analysis is whether placement with a relative is in the best interests of the minor." (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 862-863.)

We review for abuse of discretion a juvenile court's denial of a request to place a minor with a relative pursuant to section 361.3. (Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 863.) A "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 or she] did." [Citations.]' [Citation.]" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)

Despite the paternal grandparents' history of caring for the minor on weekends and holidays, the record reflects compelling reasons for the trial court to reasonably conclude placement with them was not in the minor's best interests. There was a history of sexual abuse in the paternal grandparents' home, as indicated by the substantiated CPS referral for father's sexual abuse of the paternal aunt when they were minors. Moreover, the paternal grandmother refused to believe any of the current allegations of physical and sexual abuse against father, even though she had suspected father abused the paternal aunt. In addition, two members of the household had been suffering from mental illness for many years. We agree with the juvenile court that this was not a sufficiently supportive environment for the minor, who required a higher level of care due to her mental health issues and history of sexual abuse. We find no abuse of discretion.


The July 22, 2016, order of the juvenile court is affirmed.

BLEASE, J. and MURRAY, J., concurs.


1. Undesignated statutory references are to the Welfare and Institutions Code.


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