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In re K.T.

California Court of Appeals, Fourth District, Second Division

November 12, 2019

In re K.T., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
v.
J.F. et al., Defendants J.B. et al., Interveners and Appellants.

          APPEAL 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.

          OPINION

          RAMIREZ P. J.

         San 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.

         Further 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 insulted them.

         CFS 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.[1] The B.'s, in turn, filed a “changed circumstances” petition under section 388, asking the trial court to return K. to them.

         The 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.

         CFS 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).

         In the unpublished portion of this opinion, however, we reject the B.'s contentions. Hence, we will affirm.

         I

         THE CONTENTIONS OF THE PARTIES

         The B.'s contend:

         1. The trial court erred by ruling on the section 388 petition before the section 387 petition, rather than the other way round.

         2. The trial court's order sustaining the section 387 petition is not supported by substantial evidence.

         3. In ruling on the section 387 petition, the trial court erroneously failed to consider the relative placement factors listed in section 361.3.

         In response, CFS contends:

         1. The B.'s did not file a notice of appeal from the denial of the section 387 petition.

         2. The B.'s lack standing to bring this appeal.

         3. The denial of the B.'s earlier section 388 petition was collateral estoppel with respect to their section 388 petition currently at issue.

         II

         FACTUAL AND PROCEDURAL BACKGROUND

         In 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, [2] who wanted to adopt him. In May 2017, parental rights to C.U. were terminated.

         In 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.

         In 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).)

         Meanwhile, 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.

         The 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.

         On May 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.

         Later 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.[3] 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.

         On June 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.”[4] The child was admitted to a hospital. Follow-up imaging indicated a “hypoxic injury” and “neuronal loss or dysfunction.”

         Meanwhile, 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.”

         On June 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.

         CFS 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 plan.”

         On June 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.)

         In July 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.”

         By late 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.

         In August 2018, the B.'s filed another section 388 petition, again seeking to have the child returned to them.[5] The trial court set a hearing on the petition.

         Meanwhile, in or before September 2018, the child started having what appeared to be seizures.[6] His ...


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