In Re Nv
- Area
- dependency
Analysis
The trial court sustained an objection to exclude evidence regarding the Agency's refusal to approve a relative's home for placement, citing the relative's failure to exhaust administrative remedies, and ordered the children placed in foster care. The Court of Appeal affirmed the judgment, finding that while the trial court abused its discretion in excluding the evidence, the error was harmless because the relative had moved to a new, uninspected home that could not have been approved for placement at that time.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Exclusion of evidence regarding the Agency's reasons for refusing to approve the relative's home for placement.“We conclude the court abused its discretion by excluding evidence concerning the Agency's reasons for refusing to approve Christy's home.” | abuse of discretion | error | agree with court The appellate court correctly identified that the juvenile court must exercise independent judgment when the Agency deems a relative's home unsuitable due to child welfare referrals, rather than deferring to the Agency's decision or requiring exhaustion of administrative remedies that would cause undue delay. The court properly applied the exceptions to the exhaustion doctrine based on irreparable harm and the inadequacy of the administrative remedy for the child's prompt placement. |
Denial of placement with the relative (Christy) and order to place children in foster care.“The court's error in excluding evidence was harmless.” | abuse of discretion | harmless error | agree with court The appellate court correctly applied the harmless error standard, determining that even if the evidence had been admitted, the outcome would not have changed because the relative had moved to a new home that had not been physically inspected by the Agency. Therefore, the children could not have been placed with her regardless of the court's review of the child welfare history. |
Authorities
- relied: In re Esperanza C. (2008) 165 Cal.App.4th 1042 — Placement with a suitable relative is presumptively in the child's best interest, and the administrative grievance process does not necessarily safeguard the interests of the court, child, or parent in prompt placement.
- relied: Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023 — When the Agency deems a relative's home unsuitable due to a previous child welfare referral, the juvenile court must exercise its independent judgment rather than merely review the Agency's placement decision for an abuse of discretion.
- relied: In re Lauren R. (2007) 148 Cal.App.4th 841 — Section 361.3 gives preferential consideration to placement requests by certain relatives, and the relative placement preference does not arise again until a new placement of the child must be made.
- relied: In re S.W. (2005) 131 Cal.App.4th 838 — Before placing a child with a relative, the Agency must complete a Child Abuse Central Index check of the relative.
- relied: Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830 — Exceptions to the doctrine of exhaustion of administrative remedies apply when pursuit of an administrative remedy would result in irreparable harm or the administrative agency cannot grant an adequate remedy.
- relied: In re Mark C. (1992) 7 Cal.App.4th 433 — A judgment shall not be reversed by reason of erroneous exclusion of evidence unless a miscarriage of justice is shown.
- relied: In re Kobe A. (2007) 146 Cal.App.4th 1113 — The court's error in excluding evidence was harmless because the children could not have been placed with the relative regardless of her child abuse history due to other factors (in this case, the uninspected new home).
- relied: In re S.A. (2010) 182 Cal.App.4th 1128 — The children's interest in prompt placement with a suitable relative precludes any unnecessary delay in the juvenile court's review of the Agency's determination that a relative's home was unsuitable.
The appellate opinion: sound — The opinion is sound because it correctly distinguishes between the standard of review for criminal history denials (abuse of discretion) and child welfare referral denials (independent judgment), and properly applies the harmless error doctrine based on the factual record that the relative's new home was uninspected.
At the dispositional hearing the juvenile court sustained the Agency's relevance objection and excluded cross-examination about the Agency's reasons for refusing to approve the maternal grandmother's home, reasoning she had not exhausted the administrative grievance process, and ordered the children placed in foster care. The Court of Appeal held the exclusion was an abuse of discretion because the juvenile court must exercise independent judgment over a relative-home disapproval based on child welfare history and the exhaustion doctrine did not apply, but affirmed because the error was harmless given that the grandmother had moved to an uninspected home.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Exclusion of evidence (cross-examination of the social worker) regarding the Agency's reasons for refusing to approve maternal grandmother Christy's home, on relevance and failure-to-exhaust-administrative-remedies grounds“We conclude the court abused its discretion by excluding evidence concerning the Agency's reasons for refusing to approve Christy's home.” | abuse of discretion | error (evidentiary) | agree with court Section 361.3 requires the court itself to consider the parent's wishes and give preferential consideration to relatives at disposition, and Cesar V. holds the court exercises independent judgment when the Agency disapproves a relative home for child welfare history (as opposed to a criminal records exemption). The grievance process protects the relative, not the child or parent, and the social worker could not say when it would end, so the irreparable-harm and inadequate-remedy exceptions to exhaustion fit. The reasoning and authorities support the finding of error. |
Denial of placement with Christy and order placing the children in foster care at disposition (reviewed for prejudice from the evidentiary error)“Christy was living in a new home that had not been physically inspected. Thus, the children could not have been placed with her regardless of her child abuse history. The court's error in excluding evidence was harmless.” | abuse of discretion | harmless error | unsure The harmlessness conclusion is defensible because, on the record as it stood at disposition, no placement with Christy could lawfully occur without a physical inspection of her new residence. But the opinion itself notes that once a child is placed with a nonrelative at disposition the section 361.3 preference does not arise again until a new placement is needed, which sits uneasily with calling the exclusion harmless; the court does not explain whether a continuance to inspect the new home, or a judicial ruling on the child-welfare-history ground, could have changed the outcome. The court also did not reach whether the April 15 follow-up hearing cured the problem, having refused judicial notice. The result is plausible but the prejudice analysis is thin. |
Authorities
- relied: Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023 — When the Agency deems a relative's home unsuitable because of a prior child welfare referral, the juvenile court exercises independent judgment under section 361.3 rather than reviewing the Agency's decision for abuse of discretion.
- relied: In re Esperanza C. (2008) 165 Cal.App.4th 1042 — A parent has standing to appeal denial of relative placement; placement with a suitable relative is presumptively in the child's best interest; the administrative grievance process protects the relative's interests but does not necessarily safeguard the interests of the court, child, parent and social worker in prompt relative placement; criminal records exemption denials are reviewed only for abuse of discretion.
- relied: In re Lauren R. (2007) 148 Cal.App.4th 841 — Section 361.3 gives preferential consideration to relative placement requests at disposition, and after a nonrelative placement the preference does not arise again until a new placement must be made.
- relied: In re S.W. (2005) 131 Cal.App.4th 838 — The Agency must complete a Child Abuse Central Index check before placing a child with a relative, and the court cannot override a denied criminal records exemption.
- relied: Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830 — Exceptions to the exhaustion of administrative remedies doctrine include where pursuit of the remedy would cause irreparable harm and where the agency cannot grant an adequate remedy.
- relied: In re S.A. (2010) 182 Cal.App.4th 1128 — A juvenile court's evidentiary rulings are reviewed for abuse of discretion.
- relied: In re Mark C. (1992) 7 Cal.App.4th 433 — A judgment will not be reversed for erroneous exclusion of evidence absent a showing of a miscarriage of justice.
- relied: In re Kobe A. (2007) 146 Cal.App.4th 1113 — Error in a dependency proceeding is harmless where it is not reasonably probable a different result would have been reached.
- relied: In re H.G. (2006) 146 Cal.App.4th 1 — Parents have standing to contest an order removing children from relative (grandparent) care.
- relied: In re Joseph T. (2008) 163 Cal.App.4th 787 — Relative caregivers are more likely to support family reunification, which bears on a parent's interest in relative placement.
- missed: In re Stephanie M. (1994) 7 Cal.4th 295 — The section 361.3 relative placement preference does not guarantee placement; the child's best interests remain the paramount consideration and placement orders are reviewed for abuse of discretion. The Supreme Court's framework for relative placement was not discussed in assessing error or prejudice.
The appellate opinion: sound with gaps — The court correctly identified that the juvenile court must independently assess a relative-home disapproval grounded on child welfare history and that the exhaustion doctrine should not indefinitely delay that review, supported by Cesar V., Esperanza C. and Ogo Associates. The harmless-error analysis, however, is brief and does not reconcile the finding of harmlessness with the opinion's own observation that the relative preference lapses after a nonrelative dispositional placement, nor does it address the Supreme Court's relative placement framework in In re Stephanie M.
Opinion
In re N.V. et al., Persons Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
v.
STEPHANIE V., Defendant and Appellant.
Court of Appeals of California, Fourth District, Division One.
*27 Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant.
John J. Sansone, County Counsel, John E. Philips and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Lelah Selene Forrey-Baker, under appointment by the Court of Appeal, for Minors.
OPINION
O'ROURKE, J.
Stephanie V. appeals following the dispositional hearing in the dependency case of her daughter N.V. and son A.V. (together, the children). Stephanie contends the juvenile court erred by excluding evidence regarding the refusal of the San Diego County Health and Human Services Agency (the Agency) to grant placement approval of the home of maternal grandmother Christy H. Stephanie concludes the court erred by denying her request that the children be placed with Christy.[1] We affirm.
BACKGROUND
In December 2009 the Agency filed dependency petitions for one-month-old A.V. (§ 300, subd. (b)) and one-year-old N.V. (§ 300, subd. (j)). The *28 petitions alleged A.V. had five fractured ribs and associated pleural effusion, injuries ordinarily not sustained absent a parent's unreasonable or neglectful acts or omissions. The children were detained in Polinsky Children's Center, then with a nonrelative extended family member and in a foster home.
On December 15, 2009, the day the children were detained and six days before the petition was filed, Christy, Stephanie and the children's father, Kurt V., asked that Christy be considered for placement. On December 16 the Agency found four previous child welfare referrals regarding Christy's home. On January 6, 2010, a social worker inspected the home and concluded it met physical safety standards.
After A.V. was found to have a sixth fractured rib, the Agency filed an amended petition alleging his parents subjected him to serious physical harm, including excessive discipline or physical abuse (§ 300, subd. (a)), and he suffered severe physical abuse by a parent, or by a person whom the parent knew or should have known was physically abusing him (§ 300, subd. (e)). The amended petition for N.V. added correlative allegations (§ 300, subd. (j)).
On March 3, 2010, the Agency declined to approve Christy's home for placement, citing the four child welfare referrals.[2] In 1998 there was a substantiated report[3] that Stephanie's maternal grandfather molested her when she was eight years old. At the time of the molestation Stephanie was living with Christy. In 2000 there was a substantiated report that Christy's 13-year-old son forced her five-year-old son to orally copulate him. In 2007 there was an inconclusive report[4] that the father of Christy's three youngest children emotionally abused them. In 2009 there was a report that Stephanie's father hit Stephanie's 14-year-old brother. The referral was "evaluated out."[5]
At the March 22, 2010, jurisdictional hearing, the court dismissed the section 300, subdivision (e) allegation in A.V.'s amended petition and the corresponding section 300, subdivision (j) allegation for N.V. The court amended the section 300, subdivision (a) allegation and corresponding section 300, subdivision (j) allegation to allege that A.V. suffered serious physical *29 harm inflicted nonaccidentally by his parents. The court entered true findings on the section 300, subdivisions (a) and (b) allegations and the corresponding section 300, subdivision (j) allegations. The court ordered the Agency to distribute copies of Christy's home evaluation to all counsel. On March 23 the Agency filed the evaluation with the court.
Before the March 25 and 26, 2010, dispositional hearing, Christy moved to a new home. She did not give the Agency her new address and the Agency did not physically inspect her new home. At the hearing, Kurt's counsel sought to cross-examine the social worker about the Agency's reasons for refusing to approve Christy's home.[6] The Agency's counsel objected on relevance grounds, arguing the court had no authority to place the children in a home if the Agency had not approved it. The court sustained the objection, noting Christy had a pending grievance proceeding and had not exhausted her administrative remedies. When questioned by the court, the social worker said she did not know how long the grievance process would take. The court ordered the children placed in foster care and set a hearing for April 15 to address the relative placement issue.
THE AGENCY'S REQUEST FOR JUDICIAL NOTICE AND MOTION TO AUGMENT THE RECORD
The Agency requests judicial notice of the juvenile court's April 15, 2010, minute orders and moves to augment the record on appeal with the Agency's report for the April 15 hearing.[7] According to the report, the grievance process was still underway and the Agency was in the process of verifying Christy's new address. The minute orders reflect the court's denial without prejudice of a request for an evidentiary hearing on the issue of relative placement.[8]
The Agency argues the report and minute orders, and the lack of an appeal from the April 15, 2010, order, show that any error in excluding evidence and not placing the children with Christy was harmless. The Agency also asserts the information in the record regarding the positive physical inspection of Christy's former home is no longer relevant.
Stephanie argues that granting the requested relief would perpetuate the juvenile court's error in admitting the Agency's reports without allowing her to cross-examine their author. Alternatively, Stephanie asserts this court *30 should limit judicial notice to the existence of the April 15, 2010, findings and report and not consider their content.
We deny the request for judicial notice and motion to augment the record. The existing record reflects Christy's move from the home the Agency inspected. Whether the grievance process is still underway and whether the juvenile court is still excluding evidence regarding placement with Christy are not matters that would aid in our evaluation of the issues in this appeal.
EXCLUSION OF EVIDENCE AND DENIAL OF PLACEMENT
(1) Section 361.3 gives "preferential consideration" to placement requests by certain relatives upon the child's removal from the parents' physical custody at the dispositional hearing.[9] (§ 361.3, subds. (a), (c); In re Lauren R. (2007) 148 Cal.App.4th 841, 854 [56 Cal.Rptr.3d 151].) Before placing a child with a relative, the Agency must complete a Child Abuse Central Index check of the relative. (§§ 361.4, subd. (c), 309, subd. (d)(1); In re S.W. (2005) 131 Cal.App.4th 838 [32 Cal.Rptr.3d 192].) When the Agency deems a relative's home unsuitable due to a previous child welfare referral, "the juvenile court must exercise its independent judgment rather than merely review [the Agency]'s placement decision for an abuse of discretion."[10] (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1027, 1033 [111 Cal.Rptr.2d 243], citing § 361.3, subd. (a).)
(2) Here, in excluding evidence needed to determine whether Christy's home was appropriate, the juvenile court failed to consider Stephanie's wishes or the children's rights. (§ 361.3, subd. (a)(2) ["In determining whether placement with a relative is appropriate, the . . . social worker and court shall consider . . . [¶] [t]he wishes of the parent . . . ."]; In re Esperanza C., supra, 165 Cal.App.4th at p. 1060 ["Placement with a suitable relative is presumptively in the child's best interest."].) The administrative grievance process available upon the Agency's rejection of a relative's home is designed to protect the relative's rights and interests. (See In re Esperanza C., supra, at p. 1059.) That process "does not necessarily safeguard the interests of the court, the child, the parent and the social worker in *31 the child's prompt placement in the home of an appropriate relative." (Id. at p. 1060.) Once a child is placed in the home of a nonrelative at the dispositional hearing, the relative placement preference does not arise again until "a new placement of the child must be made." (§ 361.3, subd. (d), quoted in In re Lauren R., supra, 148 Cal.App.4th at p. 854.) "[P]lacement of a child with a relative has the potential to alter the juvenile court's determination of the child's best interests and the appropriate permanency plan for that child, and may affect a parent's interest in his or her legal status with respect to the child." (In re Esperanza C., supra, at p. 1054.) For those reasons, two exceptions to the doctrine of exhaustion of administrative remedies apply here: "pursuit of an administrative remedy would result in irreparable harm [citations] [and] the administrative agency cannot grant an adequate remedy [citations] . . . ." (Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 834 [112 Cal.Rptr. 761].) At the dispositional hearing, the social worker was unable to say when Christy's grievance procedure might be completed.[11] Postponing the juvenile court's review of the Agency's decision for an indefinite period pending completion of administrative proceedings would undermine judicial review.
(3) Ultimately, the children's interest in prompt placement with a suitable relative precludes any unnecessary delay in the juvenile court's review of the Agency's determination Christy's home was unsuitable due to her child welfare history. We conclude the court abused its discretion by excluding evidence concerning the Agency's reasons for refusing to approve Christy's home. (In re S.A. (2010) 182 Cal.App.4th 1128, 1135 [106 Cal.Rptr.3d 382].)
The court's abuse of discretion, however, does not mandate reversal. "A judgment shall not be reversed by reason of erroneous exclusion of evidence unless a miscarriage of justice is shown . . . ." (In re Mark C. (1992) 7 Cal.App.4th 433, 443-444 [8 Cal.Rptr.2d 856].) Here, there was no miscarriage of justice. Christy was living in a new home that had not been physically inspected. Thus, the children could not have been placed with her regardless of her child abuse history. The court's error in excluding evidence was harmless. (See In re Kobe A. (2007) 146 Cal.App.4th 1113, 1122 [53 Cal.Rptr.3d 437].)
*32 DISPOSITION
The judgment is affirmed.
Haller, Acting P. J., and McDonald, J., concurred.
NOTES
[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified.
Stephanie correctly contends she has standing. (§ 361.3, subd. (a)(2) [parent's wishes are a factor in determining whether to place with relative]; In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1051-1054 [81 Cal.Rptr.3d 556] [mother had standing to appeal denial of § 388 petition that sought (1) placement with relatives and (2) juvenile court review of Agency's disapproval of relatives' home]; In re H.G. (2006) 146 Cal.App.4th 1, 9-10 [52 Cal.Rptr.3d 364] [parents had standing to contest § 387 order removing children from grandparents' care]; In re Joseph T. (2008) 163 Cal.App.4th 787, 797 [77 Cal.Rptr.3d 806] [relative caregivers are more likely to support family reunification].)
[2] The Agency also questioned whether Christy was able to care for the children because she was recovering from a broken hip and taking pain medication. Furthermore, even after the true findings, Christy believed the juvenile court's intervention was "a big mistake."
[3] "`Substantiated report' means a report that is determined by the investigator . . . to constitute child abuse or neglect . . . based upon evidence that makes it more likely than not that child abuse or neglect . . . occurred." (Pen. Code, § 11165.12, subd. (b).)
[4] "`Inconclusive report' means a report that is determined by the investigator . . . not to be unfounded, but the findings are inconclusive and there is insufficient evidence to determine whether child abuse or neglect . . . has occurred." (Pen. Code, § 11165.12, subd. (c).)
[5] The full disposition of the referral states: "Initially assessed for IRS assignment. Downgraded to 10-day assignment and then Evaluated out in the region."
[6] Stephanie's counsel joined with Kurt's counsel.
[7] The Agency filed its request and motion the same day it filed its respondent's brief. The respondent's brief refers to the April 15 report and minutes. We disregard those references.
[8] The minute orders do not state who made the request.
[9] "`Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).)
[10] In contrast, when a relative has a criminal history and the Agency denies a criminal records exemption to allow placement, the juvenile court reviews the denial for an abuse of discretion. (In re Esperanza C., supra, 165 Cal.App.4th at p. 1049.) In such a case the court does not have the authority to grant an exemption or place the child in the relative's home. (Id. at p. 1057; In re S.W., supra, 131 Cal.App.4th at pp. 848-852.) Christy has no criminal history.
[11] Citing In re Esperanza C., supra, 165 Cal.App.4th 1042, the Agency concedes "that where administrative review is not timely completed after a relative has sought such review, then the juvenile court can review the matter under the abuse of discretion standard if requested." As noted above, In re Esperanza C. concerned a relative with a criminal history and is therefore inapposite. Moreover, the Agency does not expressly address the span of more than three months between the date Christy, Stephanie and Kurt requested placement with Christy and the date of the dispositional hearing.
Cites, in this corpus
- San Diego County Health & Human Services Agency v. Stephanie V. No. D057087 · 2010-09-09
- In Re Esperanza C. D051521 · 2008-08-22
- San Diego County Health & Human Services Agency v. Laura C. No. D051521 · 2008-08-07
- Los Angeles County Department of Children & Family Services v. Joseph T. B198610 · 2008-06-03
- In Re Lauren R. G037590 · 2007-03-19
- In Re Kobe A. B190595 · 2007-01-17
- In Re HG D048471 · 2006-12-11
- San Diego County Health & Human Services Agency v. Mary H. No. D048471 · 2006-12-11
- Cesar v. v. Superior Court G028726 · 2001-08-23
- In Re Mark C. D014928 · 1992-06-15
- Ogo Associates v. City of Torrance Civ. 42060 · 1974-03-11