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In Re R. M., A Person Coming Under the Juvenile Court Law. v. R. M

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)


July 27, 2011

IN RE R. M., A PERSON COMING UNDER THE JUVENILE COURT LAW. SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
R. M., DEFENDANT AND APPELLANT.

(Super. Ct. No. 08JVSQ2772901)

The opinion of the court was delivered by: Robie , J.

In re R.M.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant, the father of the minor R. M., appeals from the juvenile court's orders sustaining the supplemental petition of the Shasta County Health and Human Services Agency (Agency), denying his petition for modification (Welf. & Inst. Code, § 388),*fn1 and terminating parental rights (§§ 366.26, 387, 295). He contends the juvenile court erred in removing the minor from the paternal grandmother's custody pursuant to sections 387 and 361.3. We affirm.

BACKGROUND

R. M. was born in 2007. He was admitted to the hospital with a fractured right femur in October 2008, and placed in protective custody the following day. Appellant and R. M.'s mother did not know what caused the injury, but a doctor concluded it was consistent with nonaccidental trauma. The Agency filed a dependency petition in November 2008, pursuant to section 300, subdivisions (a) (physical harm) and (b) (failure to protect).

The minor was placed with the paternal grandmother and aunt by the January 2009 disposition report. According to the Agency, they provided R. M. with adequate care and a stable home. The Agency also noted R. M. was diagnosed with De Morsier's syndrome.*fn2

The juvenile court sustained the allegations and ordered services for the parents in May 2009.

The six-month report found the paternal grandmother continued to meet R. M.'s needs, while providing a nurturing and loving environment. However, the Agency was concerned about her strong resistance to placing R. M. in Head Start.

R. M. was scheduled to begin Head Start on September 21, 2009, for three visits a week. He attended two days with the paternal grandmother, and then did not return until October 16, 2009. On September 23, 2009, the paternal grandmother told the Head Start center that R. M. had diarrhea and a fever, and could not return. On October 5, 2009, the paternal grandmother said R. M. could not receive his immunization because of his physical condition and therefore could not return to Head Start.

A social worker contacted the parents following a visit on October 13, 2009. They had not seen any diarrhea when they changed R. M. in the last few weeks, and there was no evidence of a fever.

On October 16, 2009, the social worker confirmed that R. M. attended Head Start and did not have any bouts of diarrhea. After R. M. was absent on October 19, the paternal grandmother called the next day and said he would not attend because of fever and diarrhea. Asked about the following week, the paternal grandmother said R. M. would not be there because she was "'done playing games.'"

A Head Start employee said the staff was unable to assess R. M. due to the paternal grandmother "'interfering and hovering'" over R. M. during the visit. The paternal grandmother wrote a letter to the juvenile court in which she denied resisting Head Start for R. M. and asserted she was following Head Start's directives that he could not attend when sick.

The head of the parent-infant program told the social worker she supported Head Start for R. M., but it would take a lot of energy from him because of his limited mobility. She noted R. M. did not cry when the paternal grandmother left him at the Head Start center, which could be due to a lack of bonding.

A January 2010 report stated the paternal grandmother continued to meet R. M.'s needs. R. M.'s development was growing with his involvement in Head Start, occupational therapy, and with an infant mental health specialist. The paternal grandmother said she did not see any progress since R. M. started attending Head Start. This was contradicted by people working with R. M., who noted he was now able to engage with other children, his eating skills had improved, he was walking, and continued to develop his large motor skills since he went to Head Start.

R. M. moved to a confidential foster home in January 2010 after appellant threatened to get a gun and shoot all of the involved parties at the courthouse. Appellant later clarified that the threat was limited to the paternal grandmother.

In January 2010, the juvenile court granted a temporary restraining order against appellant to stay away from the paternal grandmother. The juvenile court granted a three year restraining order against appellant the following month. Through counsel, appellant told the juvenile court he regretted his statements and that he was merely venting.

The Agency filed a supplemental petition (§ 387) in March 2010 alleging: (1) appellant's threats; (2) the paternal grandmother's resistance to Head start; (3) the paternal aunt was allowed to transport R. M. even though she takes medicine for vertigo and had fallen down the stairs in December 2009; (4) the paternal grandmother minimized safety concerns related to the paternal aunt; (5) service vouchers for R. M. had not been returned by the paternal grandmother; (6) R. M.'s services providers noticed dramatic improvement in his development since he was removed to a foster home; and (7) that the previous disposition had not been effective.

R. M.'s parent-infant specialist told the social worker she had a hard time getting answers from the paternal grandmother about the minor's medical care. She also felt the paternal grandmother did not make the best choices about which family members cared for him. For example, the paternal aunt "'appeared buzzed out of her mind'" at one home visit, swaying back and forth until she finally agreed to her boyfriend's repeated requests to sit down.

The specialist found R. M. made "great progress in his expressive language" since his foster placement. The foster mother was very attentive, receptive to R. M.'s needs, open to suggestions, and appeared to provide a stimulating environment.

R. M.'s occupational therapist wrote a letter relating the boy's slow progress under the paternal grandmother. The therapist thought the paternal grandmother and paternal aunt had many issues with the social work system. The paternal grandmother's home was safe, but not child friendly. For example, the grandmother's home used plastic picnic type utensils for R. M. rather than toddler utensils and dishes.

The occupational therapist also found problems with the paternal aunt. The paternal aunt and her boyfriend, both of whom were on disability, were the primary daytime caregivers for R. M. The paternal aunt's demeanor changed after she delivered her baby, with episodes of slurred words and stumbling. The paternal aunt said she was having trouble with her new medications; she continued to care for R. M. even after the social worker said she was not safe to care for him without a doctor's clearance.

The occupational therapist was "stunned" when she saw R. M. during his second week at the foster mother's home. R. M. was "a completely different child" who "seemed to have had an explosion of development." R. M. was "saying words he had never said, noticing and interacting with the environment more than he had." The boy had "changed incredibly."

According to the occupational therapist, the foster mother was very child oriented and provided R. M. with much age-appropriate stimuli. She followed through on every technique recommended, and reported back his responses and reactions to the techniques. As a result, R. M. now performed skills he had been working on for months with minimal progress. According to the occupational therapist, while R. M.'s previous care was "okay," there was no comparison to the care he was now receiving. Although R. M. was clearly attached to the paternal grandmother, he was strongly bonded to the foster mother.

The Agency filed a supplemental report in April 2010 describing R. M.'s continued progress in foster care. The foster mother modified his diet to help R. M.'s constant diarrhea. The social worker reported that R. M. received skill building and a nurturing environment from the foster mother; R. M. now experienced things in the moment rather than mimicking and repeating words.

In April 2010, the paternal grandmother filed a request for de facto parent status and a petition for modification (§ 388) seeking R. M.'s return to her custody. The foster mother filed a request for de facto parent status in June 2010.

The foster mother filed a caregiver information form with the Agency in June 2010. According to the foster mother's report, R. M.'s endocrinologist stated that the boy was in the fourth percentile for weight and first percentile for height in the paternal grandmother's care, but now was in the 15th percentile for weight and second percentile for height. R. M. was making great strides in his development, and appeared happier, more energetic, and better nourished than since his last visit. The foster mother also reported R. M.'s glasses were too small when he was placed with her, but she found glasses which fit him. R. M. showed no attachment to anyone when he was placed in January 2010, but was now strongly attached to the foster mother.

The foster mother had a degree in early childhood education and had worked as an early childhood specialist for Tehama County. She was a stay-at-home mother, but placed R. M. in daycare to socialize him with children of his own age. Her report included a chart assessing R. M.'s development between November 2009 and May 2010.

A June 2010 report from the Agency related further communications with R. M.'s service providers. Service providers told the social worker they were frustrated at not being able to get accurate medical reports about R. M. from the paternal grandmother when he was in her care. Specifically, the care providers did not know R. M. had De Morsier's syndrome until the foster mother informed them when she learned about the condition. This information would have dramatically improved R. M.'s treatment plan and his services.

The service providers related R. M.'s continued development in the foster mother's care. R. M. initially qualified for speech therapy, but the foster mother's diligent work with the minor led to such significant development that he was discharged. The social worker found the foster mother was diligent in getting R. M. to his appointments with doctors and service providers, and made sure vital information was relayed to the appropriate people. R. M. displayed fear when he was first placed with the foster mother, constantly saying "Owie, I'm sorry." These behaviors subsequently diminished or were no longer present.

In July 2010, the Agency filed a supplemental report providing documentation from the foster mother on R. M.'s progress. Attached to the report was an 89-page report titled "[R. M.'s] ABC Book," chronicling R. M.'s development in bonding, cognition, fine and large motor skills, and included up-to-date medical reports. The report included an extensive explanation of De Morsier's syndrome and the foster mother's response to R. M.'s condition, R. M.'s endocrinology reports, his health history, and the ophthalmologist's reports. The attachment also provided details on R. M.'s continued cognitive, language, and motor skills progress since his removal from the paternal grandmother. In addition, the report listed R. M.'s services, his milestones, his nutrition, his friends and favorites, as well as a biography of the foster mother and her willingness to be considered for a permanent placement with R. M.

In a July 2010 progress report, R. M.'s occupational therapist stated he was making such quick progress that the next several sessions would be dedicated to reevaluation. In light of the foster mother's ability and the other services provided to R. M., the occupational therapist thought it would be appropriate to discharge R. M. in the near future.

The juvenile court terminated reunification services and set a section 366.26 hearing in July 2010. The foster mother requested designation as a prospective adoptive parent in August 2010.

A September 2010 report described R. M.'s continued progress in the foster mother's care. R. M. could now eat with regular utensils, and his verbal skills continued to improve. The parent-infant program provider related the foster mother had done an "incredible job" with R. M. Her only concern was whether the foster mother grasped the importance of continuing with additional special education services. The foster mother told the social worker she researched numerous services in her county that would continue assisting R. M.

At a contested hearing on the sections 387 and 388 petitions, the paternal grandmother testified that she thought placing R. M. in Head Start was expecting too much from him. She expressed her opinion to the social worker, who replied that she needed to cooperate or her placement with R. M. would be jeopardized. The paternal grandmother explained she brought R. M. to Head Start, but he was often sick, leading to his many absences. No one from the Head Start program told her she was hovering or interfering.

The paternal grandmother had a full-time job so the paternal aunt cared for R. M. during the day. Complications with the paternal aunt's pregnancy led her to being placed on medications which caused the vertigo described in the reports. The problem ended when the paternal aunt stopped taking the medication. Also, the paternal aunt no longer lived with the paternal grandmother.

The paternal grandmother described how she cared for R. M.'s broken leg and how she would include him in all the family's activities. While the foster mother stated R. M. could barely walk when initially placed with her, the paternal grandmother presented a video showing R. M. walking about 10 feet in an office.

The paternal grandmother moved out of the county to get away from appellant. Since the restraining order, she had no contact with him outside the juvenile court. Appellant did not know where she lived.

The juvenile court sustained the section 387 petition, finding true all allegations other than the paternal grandmother failed to turn in service vouchers, found a change of placement to foster care was in the minor's best interests, and denied appellant's petition for modification.

Appellant filed a notice of appeal from the orders relating to the sections 387 and 388 petitions, the juvenile court terminated parental rights, found the minor was adoptable, and designated the foster mother as the prospective adoptive parent.

DISCUSSION

Appellant contends the juvenile court's decision to grant the section 387 petition was not supported by substantial evidence and did not comply with sections 387 and 361.3. We disagree.

"When the Agency seeks to change the placement of a dependent child from relative care to a more restrictive placement, such as foster care, it must file a supplemental petition under section 387. A supplemental petition 'shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3.'" (In re H.G. (2006) 146 Cal.App.4th 1, 10, quoting § 387, subd. (b).)

In turn, the criteria in section 361.3 are as follows:

"In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors:

"(1) The best interest of the child . . .

"(2) The wishes of the parent, the relative, and child, if appropriate.

"(3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement.

"(4) Placement of siblings and half siblings in the same home . . .

"(5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect.

"(6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful.

"(7) The ability of the relative to do the following:

"(A) Provide a safe, secure, and stable environment for the child.

"(B) Exercise proper and effective care and control of the child.

"(C) Provide a home and the necessities of life for the child.

"(D) Protect the child from his or her parents.

"(E) Facilitate court-ordered reunification efforts with the parents.

"(F) Facilitate visitation with the child's other relatives.

"(G) Facilitate implementation of all elements of the case plan.

"(H) Provide legal permanence for the child if reunification fails.

"(I) Arrange for appropriate and safe child care, as necessary.

"(8) The safety of the relative's home. . . ." (§ 361.3, subd. (a).)

"If the court finds the previous disposition is no longer effective or the placement with the relative is not appropriate, then, in a separate disposition phase, the court must determine whether removal of the child from his or her placement is required." (In re H.G., supra, 146 Cal.App.4th at p. 12.) We review the decision to remove a minor from a relative caretaker under the substantial evidence test. (In re A.O. (2004) 120 Cal.App.4th 1054, 1061.) "We review the evidence in the light most favorable to the trial court's determinations, resolve all evidentiary conflicts in favor of the prevailing party, and indulge in all reasonable inferences to uphold the trial court's findings. [Citation.] We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The burden is on the party or parties challenging the findings and orders of the trial court to show there is no evidence of a substantial nature to support the finding or order. [Citation.]" (H.G., at pp. 12-13.)

Appellant asserts the problems identified in the petition were either resolved or were an insufficient basis for removing R. M. from the paternal grandmother. He claims the paternal grandmother's reasons for not placing R. M. in Head Start were his health and safety, but she nonetheless placed him there as directed by the social worker. R. M.'s attendance problems were due to his health, appellant claims, rather than opposition from the paternal grandmother. In addition, appellant notes the juvenile court's statements on the Head Start allegation were equivocal and the foster mother never sent the minor to Head Start. Appellant also claims the problems regarding the paternal aunt and appellant were resolved because the paternal grandmother no longer lived with the paternal aunt.*fn3

Finally, appellant argues that the juvenile court improperly applied section 361.3 by focusing on one factor, the minor's best interests, to the exclusion of others. He contends the juvenile court, which found the paternal grandmother had properly cared for the minor, could not rely on its determination that placement with the foster mother was better for the minor.

The juvenile court made several findings in support of its decision. It found the paternal grandmother was resistant to Head Start, but this was not serious because she did so out of concerns for R. M.'s care. The paternal aunt, R. M.'s primary caregiver in the grandmother's home, placed the minor in great danger.

The juvenile court also sustained the allegations regarding R. M.'s dramatic improvement since his foster placement. It noted that while the improvement might have happened if the minor remained in the paternal grandmother's care, R. M.'s dramatic change after foster placement is evidence this probably would not have occurred. In finding the previous placement was not effective, the juvenile court found that while R. M. was making progress, he was making significant progress in his current placement, a home in which he received much more stimulation. The juvenile court also found R. M. had a very strong bond with the foster mother and that placement with her was in his best interests.

Substantial evidence supports these findings. The paternal aunt was R. M.'s primary caregiver when he was with the paternal grandmother. Her actions with balance and intoxication posed a clear danger to R. M. Although she no longer lived with the paternal grandmother, there is no guarantee that this problem will not present itself in the future. The paternal grandmother works full time, so she will have to find someone to care for the minor during the day. Since the paternal grandmother did not establish an alternative daytime caretaker for R. M. if he were returned to her care, it was reasonable to conclude this presented a continuing danger to R. M.'s welfare.

More important to our decision is R. M.'s dramatic improvement following his foster placement. R. M., a special needs child, made some slow progress in the paternal grandmother's care. His transformation in the foster mother's care is evidence that the paternal grandmother, while well meaning, was not providing what was necessary for the boy to thrive. The juvenile court's finding that the paternal grandmother provided adequate care for the minor does not change our conclusion. R. M. needed significant attention like the extraordinary efforts made by the foster mother. Simply adequate care was not in R. M.'s best interests.

"After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability[.]' [Citation.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Likewise, 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; see In re Robert L. (1993) 21 Cal.App.4th 1057, 1068.)

Citing In re Miguel E. (2004) 120 Cal.App.4th 521, appellant argues R. M.'s improved circumstances following his removal is "not relevant to the issue of removal from the paternal grandmother's home without a sufficient showing that placement with the paternal grandmother was not appropriate under the criteria under section 361.3."

In Miguel E., the minors had been "flourishing" in the grandparents' home for between one and two years. (In re Miguel E., supra, 120 Cal.App.4th at p. 547.) The minors were placed with the grandparents at the beginning of the dependency but were removed as their cases reached the permanency stage. (Id. at pp. 527, 547-548.) The juvenile court did not consider any criteria under section 361.3 other than the Agency withdrawing its approval of the grandparents' home; it indicated that removal was not in the minors' best interests, but it felt bound to follow the Agency's wishes. (Id. at pp. 547, 548.) This is a far cry from the instant case, where the juvenile court exercised its own discretion, considered all of the criteria under section 361.3, and determined R. M.'s best interest was served by placing him with the foster mother.

The juvenile court does not have to find that the relative caretaker is in some way bad to the minor in order to place the child with a foster parent. The juvenile court must consider whether "the previous disposition was ineffective or that the placement was not appropriate under the criteria in section 361.3." (In re Miguel E., supra, 120 Cal.App.4th at p. 548, italics added.) When applying section 361.3, "the court is not to presume that a child should be placed with a relative, but is to determine whether such a placement is appropriate, taking into account the suitability of the relative's home and the best interest of the child." (In re Stephanie M., supra, 7 Cal.4th at p. 321, italics added.)

Appellant also claims that the foster mother did not cooperate with the Agency and the service providers, and it is thus a double standard to penalize the paternal grandmother's opposition to Head Start. Although the social worker expressed some concern that the foster mother did not grasp the importance of continued special education services, the record shows that she researched services in her county which would continue assisting R. M. The record is replete with testimonials from R. M.'s service providers regarding R. M.'s extraordinary progress in the foster mother's care. There is no indication that any provider had a significant problem with the foster mother's cooperation. Indeed, it was the foster mother, rather than the paternal grandmother or the Agency, who informed the service providers R. M. had De Morsier's syndrome. There is no double standard in recognizing the foster mother's extraordinary efforts on behalf of R. M. and his benefit from them.

Although the paternal grandmother did not actively neglect or harm R. M., the boy had the great fortune to be placed with an exceptional foster parent. At this stage of the proceedings, it would be a manifest injustice to remove R. M. from a foster mother whose care has allowed him to thrive simply because a grandparent once provided adequate care. In light of the overwhelming evidence that placement with the foster mother is in R. M.'s best interests, we conclude the juvenile court complied with section 361.3 in placing R. M. with the foster mother.

DISPOSITION

The juvenile court's orders are affirmed.

We concur: HULL , Acting P. J. MAURO , J.


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