California Court of Appeals, Fourth District, Second Division
In re K.T., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
J.F. et al., Defendants J.B. et al., Interveners and Appellants.
from the Superior Court of San Bernardino County No. J272724.
Christopher B. Marshall, Judge. Affirmed.
William D. Caldwell, by appointment of the Court of Appeal,
for Interveners and Appellants.
Michelle D. Blakemore, County Counsel, and Pamela J. Walls,
Outside Counsel, for Plaintiff and Respondent.
RAMIREZ P. J.
Bernardino County Children and Family Services (CFS) removed
K.T. (K. or child) from his mother when he was about nine
months old. At that time, a nurse noticed that he had an
enlarged head. He was placed with distant relatives, Mr. and
Ms. B., who were already caring for his older half-brother.
testing showed that K. had a subdural hematoma. Meanwhile,
the B.'s began refusing to communicate with K.'s
social worker or her “friends” in the same
office, claiming that she had discriminated against them and
detained K., placed him in a special health care needs foster
home, and filed a petition asking the trial court to remove
him from the B.'s custody under section
387. The B.'s, in turn, filed a
“changed circumstances” petition under section
388, asking the trial court to return K. to them.
trial court denied the section 388 petition, finding that the
B.'s had not shown that they were qualified as a special
health care needs foster home. It then granted the section
387 petition, finding that communication between the B.'s
and CFS had broken down.
contends that the B.'s lack standing to appeal from these
orders, citing In re Miguel E. (2004) 120
Cal.App.4th 521. We agree with Miguel E. that, in
general, a person from whom a child has been removed under
section 387 lacks standing to challenge the removal. However,
when that person is a relative, we disagree with Miguel
E., because under section 361.3, a relative has standing
to appeal from a refusal to place a child with him or her (an
argument that Miguel E. did not consider).
unpublished portion of this opinion, however, we reject the
B.'s contentions. Hence, we will affirm.
CONTENTIONS OF THE PARTIES
trial court erred by ruling on the section 388 petition
before the section 387 petition, rather than the other way
trial court's order sustaining the section 387 petition
is not supported by substantial evidence.
ruling on the section 387 petition, the trial court
erroneously failed to consider the relative placement factors
listed in section 361.3.
response, CFS contends:
B.'s did not file a notice of appeal from the denial of
the section 387 petition.
B.'s lack standing to bring this appeal.
denial of the B.'s earlier section 388 petition was
collateral estoppel with respect to their section 388
petition currently at issue.
AND PROCEDURAL BACKGROUND
December 2013, J.F. (mother) gave birth to K.'s older
half-brother, C.U. In May 2015, when C.U. was a year and a
half old, CFS detained him and filed a dependency petition
concerning him. He was placed with the B.'s, his (and
later K.'s) great-great-aunt and -uncle,  who wanted to
adopt him. In May 2017, parental rights to C.U. were
August 2017, the mother gave birth to K. In September 2017,
K.'s father R.T. (father) beat the mother, snatched K.,
got into a car, and deliberately hit the mother with the car.
CFS detained the child from the father, placed him with the
mother, and filed a dependency petition concerning him.
November 2017, at the jurisdictional hearing, the trial court
sustained jurisdiction based on risk of serious physical
harm, failure to protect, and (solely as to the father)
failure to support. (§ 300, subds. (a), (b), (g).)
the mother repeatedly failed or missed drug tests, failed to
go to domestic violence and parenting classes, and evaded the
social worker's efforts to contact her. Accordingly, in
December 2017, at the dispositional hearing, the trial court
formally removed the child from both parents' custody. It
ordered reunification services for the mother but bypassed
them for the father.
mother went to court for the dispositional hearing but left
with the child before the case was called. As a result, a
warrant was issued for the child.
10, 2018, the child was located - at an apartment with the
mother and the father - and detained. That afternoon, a nurse
examined him. She noticed that he had an enlarged head and
was very irritable.
that same day, the child was placed with the B's. The
next day, the nurse told Ms. B. to have him “checked
out” by a doctor. Ms. B. scheduled an appointment for
him for May 29, 2018 (later rescheduled for June 4, 2018, at
the doctor's request). The doctor ordered a CAT scan.
15, 2018, the doctor's office phoned Ms. B. and told her
that the doctor had mistakenly failed to order the CAT scan
“stat” and she should take the child to an
emergency room for a CAT scan immediately. That CAT scan
showed a subdural hematoma that was “concerning for
abusive head trauma.” The child was admitted to
a hospital. Follow-up imaging indicated a “hypoxic
injury” and “neuronal loss or dysfunction.”
according to the social worker, the B.'s had begun
failing to respond to phone calls, emails, and messages from
CFS. The B.'s disputed this. According to Ms. B., in May
2018, she and the social worker had had a disagreement over
sibling visitation; the social worker was “insulting,
” “disrespectful, ” and
“[d]iscriminatory.” She decided to communicate
through C.U.'s social worker, rather than K.'s,
“to avoid confrontations.”
19, 2018, CFS detained the child from the hospital because it
was not sure whether he had been injured while in the care of
the mother or of the B.'s. In the detention report,
however, the social worker also stated that “the
minor's placement need[s] to be changed due to concerns
unrelated to” his head injury.
filed a supplemental petition under section 387. The petition
contained no allegations regarding the head injury. Rather,
it alleged that “[t]he previous disposition has not
been effective in the protection or rehabilitation of the
child” because “[t]he caregiver has failed to
adequately comply with all components of the case
22, 2018, at the detention hearing on the section 387
petition, the trial court upheld the detention. The child was
placed in a foster home for about a month and then moved to a
“special health care needs” foster home. (See
§ 17700 et seq.)
2018, the B.'s filed a section 388 petition, asking the
trial court to return the child to them. It alleged, among
other things, that K. was safe in their care and that he had
already sustained his head injury before he was placed with
them. The trial court denied the petition without a hearing,
because “the request does not state new evidence or a
change of circumstances” and because “the
proposed change of order... does not promote the best
interest of the child.”
July 2018, the police concluded that the child suffered his
injury before he was placed with the B.'s. In August
2018, a doctor concluded that he suffered the injury before
he was three months old, and hence while he was still with
the mother. Nevertheless, CFS decided not to return him to
the B.'s, because he needed to be in a “medically
specialized placement, ” and because the social worker
was having difficulty communicating with the B.'s.
August 2018, the B.'s filed another section 388 petition,
again seeking to have the child returned to
them. The trial court set a hearing on the
in or before September 2018, the child started having what
appeared to be seizures. His ...