1

Filed 4/7/15 In re N.J. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re N.J. et al., Persons Coming Under the Juvenile Court Law.

MENDOCINO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,

v. T.S. et al., Defendants and Appellants. A141600
(Mendocino County Super. Ct. Nos. SCUK

- JVSQ

- 12

- 16594, SCUK

- JVSQ

- 12

- 16595)

I NTRODUCTION T.S., the mother of sisters N.J. and M.L. (Mother), appeals from the order terminating her reunification services. A.S., the maternal grandfather of N.J. and M.L. (Grandfather) appeals from the order placing N.J. in a group home , asserting he was entitled to preferential considerati on for placement . Mother merely joins and adopts by reference the argumen ts made by Grandfather, and raises no issues regarding termination
of reunification services , thereby waiving that claim

. 1 Accordingly , we affirm the order terminating reunification services to Mother

. We conclude Grandfather waived any

1 Because neither appellant has raised any issue regarding M.L., we grant the motion of the Mendocino County Department of Social Services (Department) to dismiss the appeal as to M.L.2

claim regarding the immediate placement of N.J. with him, and in any event, the juvenile court did not abuse its discretion in changing N.J.’s placement to a group home. We
affirm the placement orde r.

P ROCEDURAL AND F ACTUAL B ACKGROUND We set forth only those facts necessary for resolution of the issues on appeal.
N.J . and M.L., 10 years old and seven years old
, respectively
, when the juvenile dependency petition was filed in September 2012, were then living with their maternal grandparents and Mother. The maternal grandparents had petitioned for and been appointed their temporary guardians in July 2012. The Department filed a petition alleging four counts of failure to protect the mi nors, based on Mother’s uncontrolled medical condition (seizure and anxiety disorder s ), drug use (marijuana and prescription medications) and domestic violence. The court found continued placement in the home of the temporary guardians or the parents wou ld be contrary to the minors’ welfare. The minors were detained and pla ced in foster care. After the detention hearing, the Department filed an amended petition adding allegations regarding the grandparents, including that N.J. and M.L. had been physical ly abused by Grandfather and their grandmother had b een unable to protect them. About a month later, t he Department filed a second amended petition, eliminating those allegation s. At the jurisdictional hearing in November, Mother admitted the allegation s of the amended petition

. The court terminated the grandparents’ temporary guardianship , and
ordered services for Mother

. The Department recommended against placement with the grandparents because the minors did not want to live with them and indicated
Grandfather hit them. The grandparents filed a request for de facto parent status, which the court granted
in December

. In a report for the six

- month review hearing, the Department noted Mother had minimally complied with services. She had been termi nated from an alcohol and other3

drugs program, and had married a man with a criminal record, including domestic
violence and controlled subs tance use. The minors were both placed at the Children’s Village after they “received 7

- D ay notices from their fost er placement due to ongoing
behavioral and emotional outbursts

. ” N.J. physically threatened another resident of Children’s Village and “tested the boundaries of staff by running around the premises at 8:30 at night” and climbing on the roof, necessit ating a call to police. The court continued reunification services to Mother, and authorized the Department to permit unsupervised visitation with the grandparents for a minimum o f one hour monthly. In its report for the 12

- month review hearing, the Departme nt indicated N.J. had been discharged from the Children’s Village due to her defiant behavior and leaving the

prem ises at night. She was placed in a therape utic licensed home. M.L . remained at Children’s Village , and had behaviors that required a high le vel of care

. The social
worker recommended both minors conti nue to receive therapy. Mother had made minimal efforts to comply with h er case plan. The court approved a settlement a greement reached by the parties, under which

s ervices to Mother were exte nded for a period n ot to exceed 18 months. The court also authorized unsupervised visits for the grandparents with N.J., which could be expanded to include overnight visits in the socia l worker’s discretion. The Department ’s report for the 18

- month hearing in March 2014 i ndicated
Mother was still not complying with her case plan. She tested positive for drugs, appeared to be under the influence at a Women’s Empowerment Support group, and was homeless. The grandparents had engaged in se rvices and were consistently vi siting the
minors.
On March 6 , the court terminated reunificat ion services to Mother. It ordered as to
N.J. a “ permanent plan of placement with [foster mother]
, with a specific goal of placement with the maternal grandparents.” The court also increased visitation with the grandparents “to include overnight visits every other weekend,” and up to three overnight visits per week at the discretion of the social worker.4

On March 18 , Grandfather’s attorney re ceived an email from the Department stating N.J. “may be moved to an out of county placement wi thin the next 14 days.” O n March 19 , Grandfather filed a n order shortening time for a hearing the next day on “the [Department’s] apparent plan to move [N.J. ] t o an out of county placement, ” noting notice of the placement change was statutorily inadequate.
The court set a hearing for March 20
, at which Grandfather’s attorney indicated “We did ask to have the hearing because it came to our understanding that [N. J.] might be quickly moved to a different placement. We just didn’t receive the proper notification. My understanding is the minor’s attorney thoughtfully was able to set up a therapeutic session between the grandparents and [N.J.] yesterday. I think th at went well. I think [N.J.] was able to communicate some of her desires. [¶] My understanding, if I have it correct, is that the grandparents are not today asking for placement of [ N.J. ] with them. They understand that [ N.J. ] may be moved back to Childr en’s Village

. But I think the concerns are the grandparents do want the Court and [Department] to do everything they can to facilitate the goal of placing [N.J.] with them in a legal guardianship . . . .” (I talics
added

. ) Grandmother’s attorney stated “ [ t ] his seems like a prime time to have placed [N.J.] wi th the grandparents. . . . [T]he grandparents are very graciously willing not to push the issue today given [N.J.’s] wishes which she shared last night.

. . . But . . . there

was no no tice of the mov e for us” (It alics added

. ) The court ordered the Department to hold a family planning meeting, to include the grandparents

. Counsel for the Department i nfo rmed the court at the March 25 hearing: “ We did have a meeting with the grandparents . . . . A nd the plan is to go forward and move [N.J.] Her sister is placed in Santa Rosa. This way the siblings can be together. [¶] . . . We do have a plan to set up family therapy between the children and the grandparents, and we’ll h elp them with visits.” Co unsel for grandmother indicated the Department agreed to “provide gas vouchers, they would increase visitation to allow more, in terms of frequency and lengths of visitation with the grandparents . . . and that they would facilitate what basically is the r eunification plan which is essentially individual counseling . . . and some family counseling as well.”5

T he court ordered N.J.’s placement changed to Children’s Village. The court also ordered that “the Department will follow up on its promises to the f amily members that there will be gas vouchers for visitation, that the court

- ordered visitation will continue to occur, and we’ll return to court if there’s a modification needed, and that counseling will be set up for the children and the maternal grandpa rents to facilitate the goal of reunification.”
D ISCUSSION Grandfather maintains the court erred in failing to give preferential consideration to placement of N.J. with him , under Welfare and Institutions Code section 361.3
, 2 rather than changing her placement to the Children’s Village. Section 361.3 provides in relevant part: “ In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential
consideration shall be given to a request by a relative of the child for placement of the
child with the relative . . . .” (§ 361.3, subd. (a).) “ ‘Preferential consideration’ means that the relative seeking placement shall be the first placement to b e considered and investig ated. [¶]

. . . [O]nly the following relatives shall be given preferential consideration for the placement of the child: an adult who is a grandparen t, aunt, uncle or sibling.” (§ 361.3, subd. (c).) Grandfather maintains he sought to have N.J. placed w ith him in his ex parte application, which “stated, in part, that if [N.J.] was to be moved from her current placement, the maternal grandparents were requesting that the chil d be placed with them.” His application stated “[Grandfather] feels that he and [grandmother] are ready, willing and able to resume full

- time care of [N.J.] immediately and she shouldn’t be placed back i n Children’s Village.”
Grandfather never raised the issue of section 361.3 preferential placement
consideration

. Indeed, he specif ically waived placement of N.J. with him at the hearing
on March 20 , although he was in agreement with the long

- term goal of placement with

2 All further undesignated statutory references are to the Welfare and Institutions Code.6

him and grandmother. At the hearing, Grandfather’s attorney stated the grandparents

“ are not today asking for place ment of [ N.J. ] with them. They understand that [ N.J. ] may be moved back to Children’s Village . But I think the concerns are the grandparents do want the Court and [Department] to do everything they can to facilitate the goal of placing [N.J.] with them in a legal guardianship . . . .” (I talics added

. )
At the continued hearing on March 25 , the parties indicated there had been a family planning meeting with the grandparents. The Department’s attorney indicated “the plan is to go forward and move [N.J.] . . .

. This way the siblings can be together. [¶] On a separate issue, we did talk about the possibility of eventual placement with the grandparents. It’s something that we do want to work toward although it’s not formally in reunification. We do have a plan to set up family therapy between the children and the grandparents, and we’ll help them with visits.” At that point, Grandfather’s attorney
indicated “I know we haven’ t filed a 388, but since the court is determining placement, it certainly is appropriate to consider the grandparents as a placement option. ” He concluded, however, “I think there are a lot of reasons to keep [N.J.] in a local placement, not to uproot her , and to increase the contact [with grandpar ents] in that manner.”
Even had Grandfather not waived th e issue of immediate placement of N.J. with
him , he has failed to demonstrate the placement order was an abuse of discretion. “ ‘We review a juvenile co urt’s custody placement orders under the abuse of discretion standard of review; the court is given wide discretion and its determination will not be disturbed absent a manifest showing of abuse. [Citations.] “Broad deference must be shown to the trial j udge. The reviewing court should interfere only ‘ “if we find that under all the evidence, viewed most favorabl y in support of the trial court’ s action, no judge could reasonably ha ve made the order that he did. ” ’ ” ’ [Citation.]” ( In re Levi H . (2011)
197 Cal.App.4th 1279, 1291.)

“ The linchpin of a section 361.3 analysis is whether placement with a re l ative is in the best interests of the minor.” ( Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856,
862

– 863.) The court considers numerous factor s, including the special needs of the child, the wishes of the parent, relative and child, if appropriate, whether placement would be7

with a sibling, the good moral character of the relative and any other adult living in their home, 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 permanence for, the child if reunification is unsuccessful. (§ 361.3, subd. (a).) Although section 361.3 was never triggered because Gran dfather waived his request for immediate placement of N.J., the court had before it evidence of the factors to
be considered under that section

. The evidence showed N.J. had special needs in r egard
to her behavioral issues. She had been removed from a foster home placement and a group home based on her behaviors. Changing her placement to Children’s Village, where her sister was placed, would allow her to be with her sibling. Grandfather expressed his desire to care for and provide legal permanence for N.J., and this was the long

- term goal ordered by the court after termination of reunification services to Mother. Grandfather had, however, a criminal record and anger issues, although he had been addressing the anger issues

. The grandparents had been consistently visiting N.J., including overnight visits.
The court indicated “there really are some important policies that are at odds in
this case.” The court noted the “strong public policy of [siblings] being placed togeth er whenever possible,” and stated “it appeared to benefit both girls to be placed [ closer ] together.” The court also considered N.J.’s “strong desire” to be placed at Children’s Village, and the fact she had already been informed sh e would be moved there. The social worker reported N.J. was being disruptive and oppositional in her current placement; behaviors she believed would escalate if t he placement continued. The court noted the long

- term goal, adopted by the Department, was placement with the grand parents. The court ordered placement at Children’s Village, with visitation with the grandparents and M other separately, gas vouchers provided to facili t ate visitation, and8

“counseling . . . set up for the children and the maternal grandparents to facilit ate the goal
of reunification.” We conclude this order was not an abuse of discretion. 3

D ISPOSITION The orders terminating reunification services to Mother and changing N.J.’s placement are affirmed.

_________________________ Banke, J.

We concur:

_________________________ Humes, P. J.

_________________________ Dondero, J.

3 The Department filed a motion seeking judicial notice of a subsequent order of the court in which the permanent plan for N.J. was changed to “placement with [a] gr oup

home, and a specific goal of a less restrictive foster setting . . . .” “ ‘On a case

- by case basis, the reviewing court decides whether subsequent events in a dependency case have rendered the appeal moot and whether its decision would affect the outc ome of the case in a subsequent proceeding. [Citation.]’ ” ( In re M.C . (2011) 199 Cal.App.4th 784, 802.) Although records of the juvenile court are an appropriate subject for judicial notice (Evid. Code, § 451) we deny the motion because the subsequent order is not relevant to the issue in this appeal.