Humboldt Cnty. Dep't of Health & Human Servs. v. E.J. (In re W.B.)

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

HUMBOLDT COUNTY DEPARTMENT

OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. E.J., Defendant and Appellant;

R.R., Intervener and Appellant.

A156956

A157053

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

March 23, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Humboldt County Super. Ct. No. JV180134)

The Humboldt County Department of Health & Human Services (Department) removed minor W.B. from her then-current placement in the home of nonrelative extended family member (NREFM) R.R. and filed a petition under Welfare and Institutions Code¹ section 387 (387 petition). E.J. (Mother) and R.R. opposed the 387 petition, and R.R. filed a petition for modification under section 388 (388 petition) and a request for de factoparent status. The juvenile court sustained the 387 petition and denied the 388 petition and R.R.'s request for de facto parent status.

On appeal, Mother and R.R. challenge the sufficiency of the evidence supporting the 387 petition and removal of W.B. from R.R.'s custody. Mother and R.R. further contend the juvenile court abused its discretion when it denied the 388 petition and R.R.'s request for de facto parent status. We conclude sufficient evidence supported the 387 petition, and the Department was not required to make reasonable efforts to avoid removal. We further conclude Mother lacked standing to challenge the order denying the 388 petition and, in any event, the juvenile court did not abuse its discretion in finding placement with W.B.'s sibling's grandmother to be in her best interests. While we find the juvenile court erred in denying R.R. de facto parent status, such error was harmless. Accordingly, we affirm the orders.

I. BACKGROUND

Mother has an extensive child welfare history, with 18 referrals and 11 investigations, many of which relate to substance abuse and which resulted in the removal of three of her children. In January 2018, while pregnant with W.B., Mother tested positive for methamphetamine at a prenatal appointment. Mother did not attend any subsequent appointments after the healthcare provider informed Mother she would be drug tested at future appointments. Following W.B.'s birth, Mother informed the hospital staff she had not used drugs since January 2018, but acknowledged a hair follicle test would " 'be dirty.' " W.B. tested positive for methamphetamine andamphetamine at birth. The Department took W.B. into protective custody based on concerns regarding the parents' unaddressed drug use.²

The Department filed a section 300 petition on W.B.'s behalf. The petition alleged the parents were aware of each other's drug use, they failed to protect W.B. from exposure to methamphetamine in utero, and W.B. tested positive for methamphetamine and amphetamine at her birth. The petition also alleged Mother had her parental rights terminated as to two of her older children, A.M. and J.D., due to homelessness, substance abuse, and mental health issues, and Mother has not made progress in addressing the issues that led to A.M. and J.D.'s dependency case.

At the detention hearing, the court found the father's sister not suitable for placement, and vested the Department with authority over W.B.'s placement. The Department placed W.B., at Mother's request, with one of her close friends, R.R.

The Department filed a jurisdiction report asserting the parents will continue to use, and expose the minor to, methamphetamine and be unable to provide adequate supervision. The report also outlined Mother's extensive child welfare history, noting the past allegations of general neglect, substance abuse, and sexual abuse allegations, and Mother's failure to reunify and the termination of her parental rights as to J.D. and A.M. Following a contested hearing, the court sustained the petition and set the matter for a dispositional hearing.

The Department subsequently submitted a disposition report in advance of the hearing. At the time of the report, W.B. was still residingwith R.R. The report noted Mother loves W.B., had community support, obtained employment, and expressed a willingness to complete inpatient treatment. Because Mother was required to have supervised visits and was waitlisted for visits at the Family Connection Center, the Department agreed R.R. could supervise visits. R.R. represented she would be comfortable ending visits if Mother was unsafe or under the influence, and the Department requested a log of all visits documenting date, time, and length of visit, and recommended a set schedule of two hours twice per week. While the report explained the court is not required to offer reunification services to Mother based on the termination of her parental rights to J.D. and A.M., the Department recommended reunification services be provided.

Following a contested dispositional hearing, the court adopted the recommendations of the Department. Specifically, the court ordered "the care, custody, and control of the minor to be vested" with the Department and authorized placement in the home of a suitable relative or NREFM. It also ordered visitation "[a]s stated in the case plan." The case plan stated Mother "will be offered a minimum of two visits per week for two hours with [W.B.]. Time, manner and place of the visits will be at the discretion of the social worker."

A. The 387 Petition

Prior to the six-month review hearing, the Department filed the 387 petition to remove W.B. from R.R.'s care. The 387 petition alleged W.B.'s placement with R.R. was "n[o] longer effective in providing for the protection and safety of the child" because R.R. "allowed [Mother] unauthorized access to the child . . . and state[d] she is not able to have any boundaries with [Mother] and is unable or unwilling to protect the child from [Mother]." The Department's report in support of its petition asserted R.R. "had beenallowing [Mother] to visit at [R.R.'s] home for long periods of time. This visitation was not approved by the social worker. . . . [Mother] admitted to sleeping on the couch at the home of [R.R.] and being there in the morning to help get the children ready for school. [R.R.] indicated that she had difficulty in establishing and maintaining boundaries with [Mother]." At the time of the report, Mother had relapsed and stopped participating in substance abuse services. Mother acknowledged using methamphetamine and drinking alcohol, and gave positive drug tests on multiple occasions. The report also noted Mother had been arrested after an incident of domestic violence with the father, during which she had been consuming alcohol.

All parties³ submitted on the petition, and the court found continued residency with R.R. was contrary to W.B.'s welfare and reasonable efforts were made to prevent such removal. The court again ordered "placement, care, custody, and control" of W.B. to be vested with the Department. The Department placed W.B. with a local resource family home because no other relative or NREFM homes were available.

The Department's jurisdiction/disposition report in connection with the 387 petition and a six-month status review report detailed the grounds for removing W.B. from R.R.'s care. Those reports noted, beginning in late October 2018, the visitation supervisor often picked up W.B., Mother, and the father together from R.R.'s home. Following an incident of domestic violence between the parents, a social worker met with R.R. R.R. informed the social worker she "had been relying on [Mother] as a support in parenting the children" and "she believed that she and [Mother] were co-dependent." R.R.also stated she had allowed Mother to use her vehicle, which resulted in it being impounded because Mother did not have a valid driver's license.

Following that conversation, the social worker instructed R.R. to stop supervising Mother's visitation because of Mother's relapse and the domestic violence incident. R.R. agreed to do so. However, R.R. then allowed Mother to visit W.B. and spend the night at her house. The day after the social worker's conversation with R.R., Mother informed the social worker she was at R.R.'s house, she had been there all day, and acknowledged spending the night at R.R.'s house. Mother reported she had been going over to R.R.'s house three or four times per week to assist R.R. in getting Mother's older children ready for school. She stated R.R. enjoys her presence as a parent to provide support for the older children. The six-month status report noted R.R., when interviewed about the allegations, stated she was ill, "did not know that [Mother] was in her home and that [Mother] had slept on her couch," and "could not recall for certain who turned over the care of the baby to her on the night in question." The Department concluded R.R. "violated the written directive of being Responsible for Providing Care and Supervision and she violated the written directive of Cooperation and Compliance."

The Department concluded Mother presented a risk to the physical health of W.B. because of the unsupervised visitation. The Department further determined R.R. was not a "safe and suitable placement" because of R.R.'s "lack of boundaries with [Mother], her admitted co-dependent relationship with [Mother], and her choice to violate orders of the Court and directions from the social worker by allowing [Mother] unsupervised access to the child." Accordingly, the Department explained, it removed W.B.

Shortly before the section 387 jurisdiction/disposition hearing, Mother filed an "At Issue Memo" asserting her unauthorized contact with W.B. was insufficient to sustain the 387 petition and requested that it...