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In re H.K.

California Court of Appeals, Second District, Third Division

June 26, 2013

In re H.K., a Person Coming Under the Juvenile Court Law.
v.
H.K., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,

Filed 7/18/13.

APPEAL from an order of the Superior Court of Los Angeles County No. CK49248, Debra Losnick, Juvenile Court Referee.

Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant.

John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, Kimberly A. Roura, Associate County Counsel, for Plaintiff and Respondent.

KLEIN, P. J.

H.K. appeals a post dispositional order denying her request to be placed with C.K., her adult half-sibling who lives in Arizona. The juvenile court denied the request because C.K. has a 1995 Oregon conviction of first degree manslaughter, which is equivalent to a conviction of voluntary manslaughter in California, and California law prohibits placement of a child in the home of any person, including a relative, who previously has been convicted, inter alia, of violent offenses including murder and voluntary manslaughter. (Welf. & Inst. Code, § 361.4; Health & Saf. Code, § 1522, subd. (g)(1)(A)(i); Pen. Code, § 667.5, subd. (c)(1).)

H.K. contends this prohibition is unconstitutional as it applies to her because it impermissibly interferes with her fundamental right to maintain family ties and does not permit exceptions in the juvenile court’s discretion. Case law recognizes the right of a child to remain in a bonded placement, even with non-relatives, but does not establish a right to be placed with a relative with whom the child does not have such a relationship. Here, H.K. has met C.K. only a few times in her life and has never lived with him. We conclude H.K. does not have a fundamental right to be placed with C.K. and the restriction on the placement passes constitutional muster under the rational relationship test as it is logically related to the protection of children in foster care, which is a compelling state interest.

We therefore affirm the order under review.

FACTS AND PROCEDURAL BACKGROUND

  1. Prior dependency case.

In June of 2002, the Department of Children and Family Services (the Department) removed then two-year-old H.K. from father’s custody after she was found wandering alone at a busy intersection. The juvenile court sustained a petition alleging father and mother have a history of substance abuse. H.K. was placed with maternal aunt and uncle but was returned to father’s care and dependency jurisdiction terminated. Mother committed suicide in 2002.

  1. The current case; detention; petition sustained.

In March of 2010, father’s girlfriend was arrested after a physical altercation with father and father agreed to participate in family maintenance services.

In August of 2010, the Department received a referral alleging father was abusing prescription drugs, frequently lost consciousness and drove while under the influence with H.K. in the car. H.K. was detained and placed with maternal aunt and uncle. The Department reported H.K. was happy in her placement and maternal aunt stated she was willing to adopt if reunification efforts failed.

On October 20, 2010, the juvenile court sustained a dependency petition based on father’s history of alcohol abuse, current abuse of prescription medication and domestic violence in the presence of the child. The juvenile court granted father family reunification services and monitored visitation.

  1. Reunification efforts.

For the six-month review hearing, the Department reported father had completed a substance abuse program but he tested positive for opiates in about half of his drug tests. Also, some of father’s monitored visits had to be cancelled because father discussed the case with H.K. or arrived under the influence of drugs.

In May of 2011, the Department reported H.K. did not want unmonitored visits or conjoint therapy with father as he continued to use drugs. H.K. told the social worker, “I want to stay with [maternal aunt] or my brother in Arizona.” H.K. reportedly was acting out and maternal aunt thought she slowly was getting out of control.

In August of 2011, the Department reported father had tested positive for Hydrocodone in 8 of 22 tests and had missed two tests. H.K. refused to participate in conjoint counseling with father, accused father of physical abuse and stated she would “rather be dead than alive and living with [] father.”

The Department noted maternal aunt had stated she wanted paternal relatives considered for placement of H.K. before she agreed to permanent placement of the child. On October 24, 2011, a social worker spoke with H.K.’s paternal half-sibling, C.K., who stated he was interested in caring for H.K.

On November 29, 2011, the juvenile court ordered the Department to initiate an Interstate Compact on the Placement of Children to investigate placement of H.K. with C.K. in Arizona.

Reports filed in February of 2012 indicated father continued to test positive for opiates. Also, a check of C.K.’s criminal history revealed a 1995 conviction in Oregon of felony first degree manslaughter with a firearm for ...


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