In re A.A. CA4/2

• Court: California Court of Appeal
• Decided: May 31, 2013
• Docket: E057166
• Status: Unpublished

Opinion

Filed 5/31/13 In re A.A. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re A.A., a Person Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT E057166 OF PUBLIC SOCIAL SERVICES, (Super.Ct.No. RIJ1200660) Plaintiff and Respondent, OPINION v.

M.A.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,

Judge. Affirmed.

Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for

Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel,

for Plaintiff and Respondent.

1 M.A. appeals from the juvenile court‟s refusal to prohibit the placement of his

infant son A.A. with A.A.‟s maternal grandparents. We will conclude that the challenged

order is ripe for review, but M.A. has not shown any abuse of discretion.

I

FACTUAL AND PROCEDURAL BACKGROUND

M.A. (the father) and T.A. (the mother) are the parents of A.A. (sometimes the

child).

In June 2012, A.A. was born with methadone withdrawal. The methadone had

been prescribed to the mother for a chronic pain condition. She claimed to have had

prenatal care from a medical facility that she named, but it had no record of her. She

could not name any of the doctors she had seen. She eventually admitted that she had

seen an obstetrician only four times during the first half of her pregnancy and none during

the second half.

The mother admitted that she suffered from anxiety but was not receiving any

medical care for it. The father similarly admitted that he suffered from anxiety and

depression but was not receiving medical care.

A dependency proceeding regarding an older sister was already pending in Los

Angeles County. Due to domestic violence and alcohol abuse, she had been removed

from the parents‟ custody; reunification services had been terminated, and a hearing had

been set pursuant to Welfare and Institutions Code section 366.26. The sister was placed

2 with the maternal grandparents, who lived in Orange County, and they were seeking to

adopt her.

As a result of all this, the Department of Public Social Services (the Department)

detained A.A. and filed a dependency petition concerning him.

A.A remained in the hospital until August 2012, when he was placed in a foster

home. The maternal grandparents requested that A.A. be placed with them. The social

worker noted that the grandmother had a “criminal history” that would require an

exemption. The social worker also noted that both parents “strongly object[ed]” to

placement with the grandmother.

In September 2012, at the jurisdictional/dispositional hearing, the juvenile court

found jurisdiction based on failure to protect. It formally removed A.A. from the parents‟

custody and ordered reunification services.

At the hearing, there was this discussion of placement:

“[FATHER‟S COUNSEL]: . . . [F]ather does object to out of county placement.

He feels it would be detrimental to reunification and contact [with] the child. In — the

current placement he feels is very good and they work with the parents. Out of county

will make it difficult logistically, and there is issues — there may be issues with the

relative.

“THE COURT: Does that mean [o]bjecting to placement with the grandmother —

does that mean out of county with the grandmother in O[range] C[ounty]?

“[FATHER‟S COUNSEL]: Yes.

3 “THE COURT: Just want to be clear.

“[FATHER‟S COUNSEL]: There is a possibility of interference either logistically

or with the relationship between the grandmother and father. So we are objecting to out

of county placement.”

The court did not respond immediately. Rather, it proceeded to make its

jurisdictional and dispositional orders. In the course of its ruling, however, it stated:

“[THE COURT:] And, at this point, the Court‟s not going to contravene the

statutory preference for placement with relatives, and relative is literally in the county

next door and it shouldn‟t be too problematic. I don‟t know that the child will be placed

there, but I‟m not going to prohibit that at this point in time. [¶] . . . [¶]

“[FATHER‟S COUNSEL]: Dad wanted to the Court to know there is, I believe, a

felony in the background of the potential caretaker.

“THE COURT: That all gets examined.

“[FATHER‟S COUNSEL]: As well as referrals from neighbors in the area. And

again, he is objecting to out of county placement. I think if the parent objects to out of

county placement, then that would interfere with reunification. I think that‟s an issue. I

think it overrides the preference for relative placement because the focus is on

reunification at this point.

“So again, just if the Court‟s going to override that I just want it to be on record

that there is a concern about interference with reunification, both the distance and the

issues with the relative.

4 “THE COURT: Okay. It‟s noted. Although L.A. County has already placed a

minor there, so it‟s hard to believe there‟s a felonious background in the family. But it‟s

noted.”

It gave the Department supervision of A.A.‟s placement, which could be “in the

approved home of a relative or nonrelative extended family member; [¶] in the foster

home in which the child(ren) was/were placed before . . . ; or with a foster family agency

for placement in a foster family home.” (Italics added.)

The juvenile court ordered that if, in fact, the child was placed in Orange County,

the Department was to assist the parents with transportation to visitation.

II

RIPENESS

Preliminarily, the Department contends that the issues are not ripe for review

because the child has not yet been placed with the maternal grandparents and may never

be.

“[T]he ripeness requirement prevents courts from issuing purely advisory opinions,

or considering a hypothetical state of facts in order to give general guidance rather than to

resolve a specific legal dispute. [Citation.]” (Hunt v. Superior Court (1999) 21 Cal.4th

984, 998.)

“Before a controversy is ripe for adjudication it „“must be definite and concrete,

touching the legal relations of parties having adverse legal interests. [Citation.]”‟

[Citation.] Thus, „[t]he legal issues posed must be framed with sufficient concreteness

5 and immediacy so that the court can render a conclusive and definitive judgment rather

than a purely advisory opinion based on hypothetical facts or speculative future events.

[Citation.]‟ [Citation.]” (San Diego County Water Authority v. Metropolitan Water Dist.

(2004) 117 Cal.App.4th 13, 20, fn. 2.)

“Unripe cases are „[t]hose in which parties seek a judicial declaration on a question

of law, though no actual dispute or controversy ever existed between them requiring the

declaration for its determination.‟ [Citation.]” (Wilson & Wilson v. City Council of

Redwood City (2011) 191 Cal.App.4th 1559, 1573.)

Here, the father asked the juvenile court to forbid the Department to place the child

with the maternal grandparents. He argued that such a placement would make visitation

difficult, both “logistically” and because “there may be issues with the relative.” He also

argued that the maternal grandmother had a felony conviction. If the juvenile court were

to grant his request (or if we were to reverse, holding that it should have granted his

request), it could render a conclusive and definite order barring the placement. However,

it refused to do so. Thus, it allowed the Department to continue to consider the

placement. “These facts are sufficient to satisfy the ripeness requirement because they

present a „“definite and concrete [controversy] touching the legal relations of parties

having adverse legal interests.” [Citation.]‟ [Citation.]” (Zubarau v. City of Palmdale

(2011) 192 Cal.App.4th 289, 301, fn. omitted.)

This is not a case in which the possibility of a placement with the maternal

grandparents was purely hypothetical. The maternal grandparents were entitled to

6 preferential placement consideration. (Welf. & Inst. Code, § 361.3.) The Department

stated that it “intends to place the child with his sibling in Orange County with the future

goal of adoption.” Arguably, the juvenile court, in its discretion, could have ruled that it

would not decide whether the child could be placed with the maternal grandparents unless

and until the Department actually approved such a placement. That ruling, too, would be

ripe for review; however, we could consider only whether it properly determined that that

the issue was premature. In any event, that is not what it did.

We caution, however, that our review is necessarily limited to the facts and the

record as they appeared at the time of the dispositional hearing. Thus, even though the

issue is ripe, the juvenile court could properly refuse to prohibit the placement if there

was insufficient evidence to support such a prohibition. (See part III, post.) The

Department seems to confuse the two issues, arguing that “[t]here is inadequate evidence

in the record to support placing [A.A.] with the maternal grandparents because the [t]rial

[c]ourt never issued such an order.” It is true that the juvenile court did not order A.A.

placed with the maternal grandparents. However, it did refuse to order that he not be

placed with the maternal grandparents. That order is sufficiently ripe for review. If, as

the Department argues, there is insufficient evidence to support a different order, that

goes to the merits of the order, not its ripeness for review.

7 III

MERITS

Whenever the juvenile court removes a child from a parent‟s custody, “the court

shall order the care, custody, control, and conduct of the child to be under the supervision

of the social worker who may place the child in any of” certain specified placements

(Welf. & Inst. Code, § 361.2, subd. (e)), including “[t]he approved home of a relative

. . . .” (Welf. & Inst. Code, § 361.2, subd. (e)(2), italics added.) Such an order is called a

general placement order. (E.g., M.L. v. Superior Court (2009) 172 Cal.App.4th 520,

529.)

The court, however, also has broad power to “make any and all reasonable orders

for the care, supervision, custody, conduct, maintenance, and support of the child . . . .”

(Welf. & Inst. Code, § 362, subd. (a).) The Department acts as an “arm” of the court (In

re Robert A. (1992) 4 Cal.App.4th 174, 186), and the juvenile court retains “general

supervisory power . . . over the performance of the [Department‟s] specified duties . . . .”

(Id. at p. 188.) The juvenile court has “continuing duties . . . to ensure that the activities

carried out by its “arm” are consistent with the mission of the juvenile court as a whole.

[Citation.]” (Id. at p. 189.)

Accordingly, the juvenile court “may instruct the Department to make a particular

placement.” (In re Robert A., supra, 4 Cal.App.4th at p. 190.) It may also “require[e] the

Department . . . to make or change a particular placement decision at or after the

8 dispositional hearing.” (Ibid.) Such an order is called a specific placement order. (E.g.,

id. at p. 180.)

“A juvenile court‟s placement orders are reviewed under the abuse of discretion

standard; the court is given wide discretion and its determination will not be disturbed

absent a manifest showing of abuse. [Citation.] The appropriate test for abuse of

discretion is whether the trial court exceeded the bounds of reason. [Citation.] A court

has exceeded the bounds of reason by making an „“„arbitrary, capricious, or patently

absurd determination. . . .‟”‟ [Citation.] „Broad deference must be shown to the trial

judge. The reviewing court should interfere only “„if we find that under all the evidence,

viewed most favorably in support of the trial court‟s action, no judge could reasonably

have made the order that he did.‟”‟ [Citation.]” (In re Sabrina H. (2007) 149

Cal.App.4th 1403, 1420-1421.)

As already noted, the juvenile court is statutorily authorized to make a general

placement order. Indeed, the statute purports to provide that it “shall” make a general

placement order. Even though this should not be taken literally, so as to require the

juvenile court to make a general placement order in every case, at a minimum, it

establishes a presumption in favor of a general placement order. Hence, the burden was

on the father to show that a general placement order was inappropriate and a specific

placement order prohibiting placement with the maternal grandparents was necessary.

The father, however, did not offer any evidence whatsoever in support of his

request. The social worker‟s reports introduced at the dispositional hearing did not

9 contain any evidence that there were any “issues” between the father and the maternal

grandparents. Moreover, they showed that the father was generally hostile and not always

rational. For example, he claimed that “the doctors at [the hospital] have put [A.A.] on

[m]ethadone to keep him addicted so they . . . can make money.” The hospital had

banned him from visiting because “he has been volatile with hospital staff and the mother

during visits.” The juvenile court could reasonably conclude that he was at fault for any

“issues” he may have had.

The father cites the maternal grandparents‟ statement to a social worker that “the

parents have a long history of . . . transient behavior, domestic violence, and are both

habitual liars”; the grandparents “expressed concern for any child left in [the parents‟]

care.” The record, however, shows that this statement was perfectly accurate. Any

sensible person would be “concern[ed]” about leaving a child in the parents‟ care. The

maternal grandparents were not any different in this respect from any other potential

caregiver. This was not evidence that they would interfere with visitation.

The father was living in Riverside. Although he avoided providing a full social

history, he did tell a social worker that he was employed. Thus, there was no evidence

that it would be hard for him to visit in Orange County. In any event, the juvenile court

did order that he be provided with transportation assistance.

Next, while there was evidence that the maternal grandmother had a felony

conviction, there was no evidence of the nature of the conviction. If the Department

issues a criminal records exemption (see Welf. & Inst. Code, § 361.4, subd. (d)), then

10 presumably the conviction was not a reason not to place A.A. with the maternal

grandmother. And if the Department does not, then the placement will never occur.

Finally, there was at least some evidence that placement with the maternal

grandparents would be in A.A.‟s best interest: It would keep him together with a sibling.

The father complains that the juvenile court did not have enough evidence to

support the approval of placement with the maternal grandparents. However, that is not

what the juvenile court did. Rather, it refused to disapprove the placement. It left it up to

the Department to determine whether the placement should actually occur. The burden

was on the father to prove that there was no point to even so much as considering the

placement. This he failed to do.

Given the lack of evidence that the placement was inappropriate, the father should

have let the Department continue to investigate. It might never have placed A.A. with the

maternal grandparents after all. However, if it did, he could have asked the juvenile court

to prohibit the placement at that point. That would have given him, the Department, the

juvenile court, and, last but not least, this court the benefit of the results of the

Department‟s investigation. Instead, he proceeded without an adequate evidentiary

record, ensuring his own defeat.

Finally, the father argues that the juvenile court erred by making a general

placement order because this improperly delegated its placement authority to the

Department, in violation of the constitutional requirement of separation of powers. This

argument is frivolous. As already discussed, by statute, a general placement order is the

11 norm; a specific placement order is the exception. It has been held that a general

placement order does not violate the separation of powers doctrine. (In re Robert A.,

supra, 4 Cal.App.4th at pp. 186-189.)

We therefore conclude that the father has not shown that the juvenile court abused

its discretion.

IV

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI J.

We concur:

RAMIREZ P. J.

HOLLENHORST J.