(San Diego County Super. Ct. No. J517807)
The opinion of the court was delivered by: Benke, Acting P. J.
CERTIFIED FOR PUBLICATION
PROCEEDINGS in mandate after issuance of a placement order under Welfare and Institutions Code*fn1 section 362.7. Ana L. Espana, Judge. Petition granted.
In this writ proceeding we are called upon to interpret and apply the provisions of section 362.7, which permit a county health and human services agency to place a dependent child in the home of a "non-related extended family member" (NREFM). Under the terms of the statute, a NREFM is anyone "who has an established familial or mentoring relationship with the child." As we explain, the record here will not support the juvenile court's determinations a family friend of the minors' mother is a NREFM and that the placement with the family friend is in the best interest of the minors.
We interpret section 362.7 in light of findings the Legislature made at the time it enacted its statutory predecessor, which permitted NREFM placements as a pilot project in counties selected by the Judicial Council. Under the express terms of the statute and the earlier findings of the Legislature, we have no difficulty concluding someone who has a close relationship with a dependent child such that the relationship will provide the child with familiar adults in familiar surroundings is a NREFM. Additionally, in light of the Legislature's findings, persons who have a close relationship with a child's family, rather than the child, might also be NREFM's under limited circumstances. The Legislature's findings suggest where placement will enhance the goals of family reunification or where the proposed NREFM's have a similar ethnic or racial identification so the child will be placed with a family sensitive to the child's background, a NREFM placement may be appropriate even if the only connection is between a NREFM and a minor's family. However, under our child dependency scheme, even when a person falls within the scope of the NREFM statute, an order placing a child with the NREFM must be in the best interest of the child.
Here, counsel acting on behalf of two dependent minors, Samantha T. and Emily T., challenges an order under a section 362.7 placing them in the home of Megan W., a woman the juvenile court found to be a NREFM. Admittedly, the record shows Megan and her family have a longstanding and close relationship with the minors' mother, real party in interest Ashley T. and her family. However, notwithstanding that relationship, Megan does not qualify as a NREFM because she does not have a close relationship with the minors themselves. Moreover, this is not a case in which we can consider extending the statute beyond its express terms because the placement here was not made in order to either enhance family reunification or as a means of placing the two minors in a home sensitive to their backgrounds.
Even if Megan were a NREFM, the record here shows placement in her home would not be in the best interest of the minors. At the time of the challenged order, reunification services for the minors' parents were terminated and a permanent placement hearing under section 366.26 was set. The record shows there are 28 local qualified families willing to adopt the minors as a sibling pair. Thus, although the current foster mother is, due to her age, unable to adopt the minors, placement with Megan is not the only opportunity to establish a permanent home for the minors.
Both of the minors' parents, Ashley T. and real party in interest Michael T., were charged with felony child endangerment. (Pen. Code, § 273a, subd. (a).) The charges stem from the death from starvation of their 15-month-old son Aiden. Importantly, however, the record discloses Samantha was herself subjected to serious neglect in the form of profound and long enduring hygiene and housekeeping deficiencies.*fn2 No doubt as a result of Samantha's experience with her natural parents and the death of her infant brother, the record shows Samantha is not comfortable with her natural parents and reacted very negatively to the prospect of moving to the home of her mother's friend Megan.
On the other hand, the record also shows the children, and in particular Samantha, have bonded to their foster mother and Samantha has an ongoing relationship with a local psychological therapist who opined it was not in Samantha's best interest to place her with Megan. Because Megan lives 500 miles away in Sacramento, placement with her would foreclose the opportunity for the minors to maintain these important relationships as they transition into a permanent placement.
Although Megan assured the social worker and the juvenile court she would act to protect the children from their natural parents, she conceded it would be hard to do so. The record fully supports Megan's frank concession as to the difficulty she would face in raising her family friend's children: Megan's home in Sacramento is just a few houses away from the minors' mother's family; Megan's mother lives in her home and is quite close to the minors' maternal grandmother; Megan has maintained a close and relatively intimate relationship with the minors' natural parents. Given the history of neglect which led the juvenile court to detain the minors and the serious criminal proceedings pending against the minors' parents, Megan's very close ties to the minors' parents and their family present obvious and serious risks to Samantha's emotional stability and well-being.
Real party in interest San Diego County Health & Human Services Agency (the agency) argues the minors would benefit over time from the access to members of their natural extended family which Megan could provide. But the record clearly establishes that benefit is far outweighed by the immediate disruption to relationships which are important to the minors at this point in their lives and the potential for conflict between Samantha's emotional needs and the needs of the extended family, with whom Megan is closely and intimately connected. Accordingly, we grant the petition.
FACTUAL AND PROCEDURAL HISTORY
Samantha was born in November 2006. At that time her mother Ashley was serving in the United States Navy, where she worked as a dental hygienist. Michael, Samantha's father, worked prior to Samantha's birth, but following Samantha's birth he left his job and became Samantha's principal caretaker.
There is nothing in the record with respect to Samantha's care or social situation during the first 16 months of her life. However, the record shows her family began living in military housing in Maryland in March 2008 and the property manager at the housing site reported that from the time the family moved into their apartment until they left in August 2009 there were housekeeping and sanitation issues. The property manager reported downstairs neighbors complained on more than one occasion about the foul odor of Ashley and Michael's apartment and when the property manager opened the front door of the building where the family lived she could smell the odor. The property manager noted the family had a cat and the manager believed the cat urinated on the carpet in the apartment.
Ashley delivered a second child, Aiden T., in June 2008. Aiden was born six weeks premature and had a small puncture in his lung and a small hole in his heart. Aiden was released from the hospital at six weeks.
Military medical personal who treated Aiden in Maryland over the following year made and documented the following observations: while Aiden was in Ashley and Michael's care, Aiden did not gain weight. However, when, on repeated occasions, Aiden's failure to gain weight required hospitalization, Aiden gained weight. Moreover, despite repeated attempts over the course of a year, military physicians were unable to identify any medical explanation for Aiden's inability to gain weight while in Ashley and Michael's care. Over time, Aiden began exhibiting signs of severe developmental delays.
In addition to being unable to determine the cause of Aiden's failure to gain weight, military medical personnel noted and were concerned about the family's hygiene and the care both Samantha and Aiden were receiving. In October 2008, in response to concerns of medical personnel, a Maryland social worker inspected Ashley and Michael's home. Although the social worker did not find any evidence of abuse, the apartment was disheveled, the living area was extremely soiled and the social worker had concerns about the family's hygiene.
One of Aiden's treating physician's later told a Naval Criminal Investigative Service (NCIS) investigator: "During my first visit with Aiden and the family, I did become concerned about the social situation and possible neglect, as the entire family exhibited very poor hygiene and Aiden was dressed in soiled clothing and had a very strong odor about him." The physician reported that when Aiden was hospitalized in December 2008, he was diagnosed with recurrent impetigo which physicians thought was due to "persistent poor hygiene." The physician stated: "During my time caring for Aiden, I continually had concerns regarding medical neglect due to persistently poor hygiene of the entire family, odd family dynamics and inconsistent weight gain despite maximum medical therapies."
A physician reported to a social worker that during one visit Aiden was covered in dry feces and Samantha's hair appeared matted. Another physician reported that at a visit to the hospital both parents had a strong body odor and Michael was dressed in soiled clothing, as was Aiden, who was wrapped in a dirty baby blanket which had dried body fluid stains. The physician reported Samantha was also dressed in soiled clothing. Because of the duration of that visit, Samantha became hungry and neither Ashley nor Michael could afford to buy her food. The physician used her own money to buy orange juice, Jello, pudding and milk for Samantha. It appeared to the physician Ashley and Michael expected other people to feed their children at the hospital.
As a means of providing Aiden nourishment, in February 2009 physicians placed a nasogastric feeding tube (NG tube) in Aiden and instructed Michael to put designated amounts of formula into the NG tube on a daily basis. At an early August 2009 visit, the physician reported that Aiden appeared to be doing well but still had suboptimal weight.
At the August 2009 visit, Ashley and Michael advised the physician Ashley was ordered to report for duty to San Diego in September and they planned to spend time with their families in Sacramento before moving to San Diego. The physician gave Ashley and Michael complete and specific instructions with respect to Aiden's feeding and medication. Although Aiden was scheduled to visit the Maryland physician one more time before the family left for California, Aiden missed the appointment.
On September 11, 2009, Ashley, Michael and their children were staying with Michael's family in Sacramento. Michael later reported he had substantially reduced the amount of formula he was putting in Aiden's NG tube because Aiden was sick and spitting up his food. Michael nonetheless reported he gave Aiden formula and pedialyte that day and regularly before that day.
Michael reported that on September 11 he heard Aiden throw up, went to check on his son in a playpen and found Aiden covered in formula, but otherwise doing well. Michael stated he went to start a bath and when he came back three to five minutes later, Aiden was blue. According to Michael, he and Ashley both administered cardio pulmonary resuscitation (CPR) to Aiden, while Michael's father called 911 and asked for emergency medical assistance. Paramedics took Aiden to a local hospital where he was pronounced dead in the emergency room.
Ashley fully supported Michael's version of the events surrounding Aiden's death. However, there are a number of circumstances which cast doubt on that account. Michael's father advised the 911 emergency dispatcher Aiden was in a catatonic or dead state and Aiden was staring ahead, was stiff and would not respond. This description of Aiden's condition was confirmed by a paramedic who arrived at the scene and found Aiden "stiff with his eyes wide open." The paramedic believed Aiden was dead for at least an hour before the 911 call was received.
Significantly, an autopsy of Aiden found he was severely dehydrated and there was no food in his stomach or small intestine. The pathologist who performed the autopsy stated Aiden was "a prune." The pathologist further believed: "The problem was someone didn't want to take care of this kid." "I think that he was just not paid attention to." "He was so severely dehydrated, it appeared that he wasn't dealt with for a couple of days."
Shortly after Aiden's death, Ashley, Michael and Samantha moved to San Diego. Law enforcement officials in Sacramento as well as the NCIS ...