Robert L., In re

• Decision Date: 30 November 1993
• Citation: 21 Cal.App.4th 1057,24 Cal.Rptr.2d 654
• Court: California Court of Appeals Court of Appeals
• Parties: In re ROBERT L., et al., Persons Coming Under The Juvenile Court Law. SAN JOAQUIN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. ROBERT L., Rachel L., and Rosalina L., Defendants and Appellants. Civ. C015402.

Page 654

24 Cal.Rptr.2d 654

21 Cal.App.4th 1057

In re ROBERT L., et al., Persons Coming Under The Juvenile Court Law.

SAN JOAQUIN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. ROBERT L., Rachel L., and Rosalina L., Defendants and Appellants.

Civ. C015402.

Court of Appeal, Third District, California.

Nov. 30, 1993.

[21 Cal.App.4th 1060] Shelley Federgreen, Piedmont, for defendants and appellants.

John F. Cheadle, County Counsel, Steven B. Bassoff, Deputy County Counsel, Carol Dahle Stiles, Litigation Deputy, for plaintiff and respondent.

DAVIS, Associate Justice.

In this appeal by the minors from juvenile court orders following a disposition hearing (Welf. & Inst.Code, §§ 360, 395; further section references are to this code), we consider the appropriate standard of review to apply to orders denying placement of minors with relatives. (§ 361.3.) We shall conclude the abuse of discretion standard is appropriate in reviewing such orders. Applying that standard to the facts presented here, we hold the juvenile court's order denying placement with the minors' grandparents was an abuse of its discretion.

FACTUAL AND PROCEDURAL BACKGROUND

On December 1, 1992, section 300 petitions were filed on behalf of the minors, Robert (born August 4, 1978), Rachel (born August 29, 1979), and Rosalina (born October 13, 1980). The petitions alleged that Gary L., the father of the minors, physically and verbally abused all of the minors and engaged in inappropriate sexual conduct with Rachel and Rosalina. The petitions also alleged that Rosaline L., the mother of the minors, was unwilling and unable to protect the minors. After the petitions were sustained as amended, the juvenile court ordered Rachel and Rosalina placed temporarily with their paternal grandparents. At a previous hearing, the court had ordered Robert placed with his paternal grandparents.

According to the social worker's report prepared for the jurisdiction hearing, Betty Minor, the minors' paternal grandmother, stated that she had cared for the minors since they were infants. The grandmother had provided housing and clothing for the minors and arranged for their schooling and medical care. Most of the minors' clothing and personal belongings were in her home. The grandmother also stated that, even at those times when the minors were living with their parents, she still provided for their basic needs.

The report also contained statements made by the minors. Robert stated he had lived most of his life in his grandmother's home. He had lived with his parents full-time only during the last year. Rachel stated she and her sister, Rosalina, had been raised primarily by their grandparents; she had been living with her parents for approximately the past two years. Rosalina agreed with the statements made by Rachel.

In the social worker's report prepared for the disposition hearing, the parents of the minors stated they had "attempted to provide the best home they could for their children, despite the chronic and ongoing interference of [the grandmother]." According to the parents, they "always had full-time custody and control" of the minors. On the other hand, the report stated that "[a]ccording to the grandparents and the subject minors, the children actually resided in their home and only visited the parents."

The minors told the social worker they wanted to remain in the home of the paternal grandparents, whom they viewed more as parental figures than grandparents. On four occasions in which visits were scheduled between the minors and their parents, the minors refused to see their parents. Rachel and Rosalina told the social worker they did not want to visit their parents again. Robert indicated he was willing to see them in the future.

In her report, the social worker acknowledged the existence of "a serious adversarial relationship between the grandparents and the parents and that the parents perceive the paternal grandparents as " 'trying to steal our children and trying to control our lives'[,]" while the paternal grandparents perceive the parents as dysfunctional and unable to properly care for and provide for the minors."

The social worker concluded as follows: "It is probable that continued placement of the minors in the paternal grandparents' home would make reunification more difficult. However, should the court order out-of-home placement, the Court will need to balance this added 'difficulty' against the emotional trauma that would be imposed upon these minors should they be forced to leave the home of their paternal grandparents, which they have always stated has been their primary residence and be placed, instead in a foster home. [p] To date, the paternal grandparents have been completely cooperative with this worker and with Child Protective Services. They have brought the minors to court hearings; they have brought the minors to visitations without argument; they have met with the social worker and others on behalf of the minors; they have made arrangements for the children's schooling; and they have, in every way, demonstrated their willingness to do whatever is asked of them. Whatever problems the paternal grandparents may have had in the past regarding their inter-relationships with neighbors, friends, and others, no one, not even the parents, have [sic] relayed any information to this social worker that would indicate that the paternal grandparents have not provided a safe, stable, structured home for the minors. [p] It is, therefore, the strong recommendation of the social worker that the minors' placement in the home of the paternal grandparents be continued until such time as the parents have both completed the court ordered reunification plan."

At the disposition hearing, the testimony of the grandmother and the mother of the minors was consistent with their statements contained in the reports of the social worker. The grandmother told the juvenile court the minors had spent most of their time in her home. The mother testified the minors lived with her most of the time. The mother did not believe that, if the children remained with the grandmother, she would ever reunify with them. According to the mother, the grandmother would "sabotage" the mother's relationship with her children.

The mother told the court the grandmother "was very forceful all the time, she wanted her way." The grandmother telephoned the mother three or four times daily, insisted on transporting the children to school, and brought food and prepared meals to the mother's home. According to the mother, the grandmother also bought expensive clothes for the children. The mother attempted without success to discuss the problems she had with the grandmother.

Both Robert and Rachel testified at the disposition hearing. Robert told the court his mother sometimes did not prepare meals for the minors or wash his clothes. According to Rachel, her grandmother brought the minors meals because their mother did not do so. Her grandmother took the minors to school because their parents could not do so. Rachel also testified her grandmother would telephone them in the morning so that Rachel could get up to make breakfast because her mother did not fix breakfast.

Following the disposition hearing, the juvenile court adjudged the minors dependents and ordered them continued in out-of-home placement. The court also denied continued placement with the grandmother. In rendering its decision, the court made the following comments: "Now, I know the children want to go live with Mrs. Minor. But this Court must follow the law. [p] The law says the probation officer shall give primary--this is to be followed by the Court. [p] The probation officer shall give primary consideration to recommending to the court that the minor be placed with a relative of the minor if such placement is in the best interests of the minor and will be conducive to family reunification. [p] Under 361.3 that language is repeated. [p] I don't think Ms. Minor has any--I have not heard any problems that make her unfit to have these children. [p] And clearly if we were at the permanent planning stage where reunification was not a consideration, there is no question, absolutely no question in my mind that they'd be living with Mrs. Minor. [p] But it will also be unquestioned that Mrs. Minor is a very

strong woman. [p] And she's strong in her denials when she might have admitted little things.... [p] If I were a gambling man, I'd doubt that Mr. [L.] is every [sic] going to reunify with the kids. [p] Some day in the future you may have a relationship with them. [p] There is a possibility that Mrs. [L.] could, but there would have to be some dramatic change in her. [p] It won't happen if the children lived with Mrs. Minor. She has seen herself as a savior for these children. If she gets them, she will have saved them from their parents. [p] Let me quote you the language of one particular case speaking about reunification: [p] The object of dispositional hearings is to find a temporary caretaker who will meet the child's physical and psychological needs while cooperating in reunification efforts. [p] Now in this particular case they denied placement with the foster family and placed with a relative. And they remarked: [p] A relative who presumably has a broader interest in family unity is more likely than a stranger to be supportive of the parent-child relationship and less likely to develop a conflicting emotional bond with the child. The exact opposite is true here. The tighter they get with Mrs. Minor, the less likely that they will ever have any need to explore the relationship with their mother, let alone reunify. [p] So I feel actually compelled by law to deny placement with Mrs. Minor."

DISCUSSION

I

The minors make three contentions. First, they claim the juvenile court erred in refusing to permit testimony by the minors about their placement preference. They also assert the...