Persons Coming Under the Juvenile Court Law. L. A. Cnty. Dep't of Children v. Mercedes G. (In re Brianna S.)

• Decision Date: 28 January 2021
• Docket Number: B301802
• Citation: 274 Cal.Rptr.3d 462,60 Cal.App.5th 303
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE BRIANNA S. et al., Persons Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Mercedes G., Defendant and Appellant.

60 Cal.App.5th 303

274 Cal.Rptr.3d 462

IN RE BRIANNA S. et al., Persons Coming Under the Juvenile Court Law.Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Mercedes G., Defendant and Appellant.

B301802

Court of Appeal, Second District, Division 2, California.

Filed January 28, 2021

Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.

HOFFSTADT, J.

A juvenile court places a child who has been declared a dependent with a relative and declares the relative to be a "de facto parent." When the social services agency later seeks to remove the child from the relative, which set of procedures should the juvenile court follow—those set forth in Welfare and Institutions Code section 385 or those set forth in section 387?¹ We conclude that section 387 governs. Although the juvenile court followed the incorrect procedures in this case, its error was not prejudicial. Accordingly, we affirm the removal orders in this case.

FACTS AND PROCEDURAL BACKGROUND

I. The Family

Melanie M. (mother) and Bobby S. (father) have six children, three of whom are at issue in this case—12-year-old Brianna, eight-year-old Amanda, and seven-year-old Nature. Mercedes G. is the maternal grandmother (grandmother).

II. Juvenile Court's Assertion of Dependency Jurisdiction

The juvenile court declared all three children to be dependents based on the parents’ domestic violence and substance abuse. Brianna has been a dependent since September 2011; Amanda, since October 2012; and Nature, since June 2016.

III. Grandmother Becomes a De Facto Parent and Takes Custody of Children

In May 2015, grandmother asked the juvenile court to declare her a de facto parent. The court granted her request in July 2015.

The juvenile court placed all three children with grandmother in July 2016.²

IV. Grandmother's Care of Children

While in grandmother's care, the mental or emotional health of all three children has deteriorated.

Brianna now "isolates herself" and is "very disrespectful" to others, often using profanity.

Amanda has developed severe behavioral issues. In 2017, Amanda began acting out by throwing tantrums, cursing, and hitting her little sister as well as other kids at her school. Her behavior has since escalated. By 2019, Amanda's tantrums graduated not only to hitting, but also to throwing objects and tearing things off of walls. Amanda had also tried to kill the family pets, including through poisoning their drinking water. In nearly all her interactions, Amanda grew to be "defiant" and "uncontrollable." In mid-July 2019, Amanda's physically aggressive conduct prompted grandmother to check Amanda into UCLA's mental health facility. Amanda was forced to remain there for two weeks because grandmother, for nearly a week, refused to authorize UCLA to administer the medications Amanda needed. In August and again in September 2019, grandmother unsuccessfully tried to check Amanda back into mental health facilities. Grandmother repeatedly threatened Amanda with "be[ing] institutionalized." At least one psychologist opined that grandmother was the root cause of Amanda's behavioral issues.

Nature started destroying property by scratching tables and putting holes in walls. Nature also displayed sexualized behaviors.

Possibly due to her own mental health issues, grandmother ignored the children's deteriorating mental and emotional health. Both Amanda and Nature needed counseling services, but grandmother never sought out those services. Indeed, grandmother rebuffed the Los Angeles County Department of Children and Family Services’ (the Department) offers to assist: Grandmother was "extremely difficult to work with," regularly denying access to her home and yelling at Department workers. Grandmother was more generally neglectful as well, often times getting the children to school late, leaving the children without supervision, or dropping them off with other relatives without any plan to retrieve them.

Grandmother has admitted that she is "overwhelmed." In September 2019, she asked the Department to place Brianna somewhere else and said she "can't" continue parenting Amanda "anymore." Just a few months earlier, grandmother had told Nature that she was going to ask the Department to take Nature to another home.

V. The Department's Efforts to Remove the Children from Grandmother

A. The Department's first section 387 petition

In May 2019, the Department filed a petition, pursuant to section 387, asking the juvenile court to remove all three children from grandmother's custody and place them elsewhere, citing grandmother's inability and unwillingness "to provide appropriate care and supervision of the children."

In July 2019, the juvenile court denied the petition with prejudice.

B. The Department's second section 387 petition

On October 9, 2019, the Department gave notice to grandmother that it was seeking to remove the children from her custody.

Exactly 15 days later, the Department filed a petition, pursuant to section 387, seeking to remove the children from grandmother's custody and place them in foster care. The petition alleged that the children were at risk of serious physical harm and damage due to (1) grandmother's inability to establish that her home meets the minimum "RFA requirements,"³ (2) grandmother's "fail[ure] to obtain mental health treatment" for Amanda, and (3) grandmother's emotional abuse of Amanda by threatening to have her institutionalized.

The juvenile court convened a hearing on the petition on October 25, 2019. At the hearing, the Department formally withdrew its section 387 petition based on its view that "no 387 petition is needed" when removing a child from a "de facto parent." Instead, the Department asked for removal based on section 385. The juvenile court "construe[d] the 387 [petition] as a 385 [request]," and entertained argument from grandmother's counsel. Based on the content of the Department's report, the court found that it was "in the best interest of these children to be removed" from grandmother's care, and that their "physical," "mental and emotional health" was "at risk" were they "to remain in the care of" grandmother. The court accordingly ordered the children removed from grandmother's custody and ordered the Department to make "every effort to place all three children together" in their next placement.

VI. Appeal

Grandmother filed this timely appeal.

DISCUSSION

Grandmother does not challenge the sufficiency of the evidence supporting the removal of the children from her custody. Instead, she asserts that the juvenile court erred procedurally by effectuating the removal under section 385 rather than section 387. Thus, this appeal presents two questions: (1) did the juvenile court rely on the wrong procedural vehicle, and if so, (2) was this procedural error prejudicial?

The first question presents a question of statutory interpretation, and is therefore a legal question we review de novo. ( In re Destiny D. (2017) 15 Cal.App.5th 197, 205, 222 Cal.Rptr.3d 673.) Because the juvenile court ended up adhering to the procedural steps attendant to section 387, the second question of prejudice turns on whether substantial evidence supports the juvenile court's removal order. ( In re D.D. (2019) 32 Cal.App.5th 985, 990, 244 Cal.Rptr.3d 420 ( D.D. ).)

I. The Proper Procedural Vehicle Is Section 387

A. Forfeiture

Grandmother did not object to the juvenile court's decision to evaluate the Department's removal request under section 385 rather than section 387. She thereby forfeited this objection. (E.g., In re Dakota S. (2000) 85 Cal.App.4th 494, 502, 102 Cal.Rptr.2d 196.) However, "an appellate court may consider a claim raising an important question of law despite" a forfeiture where the case " ‘present[s] an important legal issue.’ [Citation.]" ( In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7, 55 Cal.Rptr.3d 716, 153 P.3d 282.) The question of which procedural vehicle is appropriate when a juvenile court removes a child from placement with a relative is just such a question. We accordingly exercise our discretion to reach the merits of this question despite grandmother's forfeiture.

B. The merits

1. The two procedural vehicles

a. Section 385

Section 385 authorizes a juvenile court to "change[ ], modif[y], or set aside" "[a]ny order made by the court" regarding a dependent child "as the judge deems meet and proper, subject to such procedural requirements as are imposed in this article." ( § 385 ; accord, Cal. Rules of Court, rule 5.560(a).) The sole procedural prerequisite to a juvenile court's exercise of authority under section 385 is that the court "provide[ ] the parties with notice and an opportunity to be heard." ( M.L. v. Superior Court (2019) 37 Cal.App.5th 390, 399, 249 Cal.Rptr.3d 633 ( M.L. ); Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 98, 50 Cal.Rptr.3d 208 ( Nickolas F. ).)

b. Section 387

Section 387 authorizes a juvenile court to "chang[e] or modif[y] a previous [placement] order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing" a different placement. (§ 387, subd. (a); Cal. Rules of Court, rule 5.560(c) ; In re Victoria C. (2002) 100 Cal.App.4th 536, 542-543, 122 Cal.Rptr.2d 696.)

A court exercising its authority under section 387 must satisfy three procedural prerequisites.

First, one of the parties must file a supplemental petition setting forth "a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the ... protection of the child or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3. " (§ 387, subd. (b); Cal. Rules of Court, rule 5.560(c) ; D.D. , supra , 32 Cal.App.5th at p. 989, 244 Cal.Rptr.3d...