Samantha T. v. Superior Court of San Diego Cnty.

• Decision Date: 06 July 2011
• Docket Number: No. D059540.,D059540.
• Citation: 197 Cal.App.4th 94,2011 Daily Journal D.A.R. 10110,128 Cal.Rptr.3d 522,11 Cal. Daily Op. Serv. 8475
• Court: California Court of Appeals Court of Appeals
• Parties: SAMANTHA T. et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent; San Diego County Health & Human Services Agency et al., Real Parties in Interest.

197 Cal.App.4th 94

128 Cal.Rptr.3d 522

11 Cal. Daily Op. Serv. 8475

2011 Daily Journal D.A.R. 10,110

SAMANTHA T. et al., Petitioners,

v.The SUPERIOR COURT of San Diego County, Respondent;

San Diego County Health & Human Services Agency et al., Real Parties in Interest.

No. D059540.

Court of Appeal, Fourth District, Division 1, California.

July 6, 2011.

PROCEEDINGS in mandate after issuance of a placement order under Welfare and Institutions Code ¹ section 362.7. Ana L. Espana, Judge. Petition granted.

Children's Law Center of Los Angeles, Patricia G. Bell; Dependency Legal Group of San Diego, Carolyn Griesemer, for Petitioners.

No appearance for Respondent.

Thomas E. Montgomery, County Counsel, John E. Philips and Gary C. Seiser, Deputy County Counsel, for Real Party in Interest San Diego County Health & Human Services Agency; Children's Law Center of Los Angeles, Tyson B. Nelson, for Real Party in Interest Michael T.; Children's Law Center of Los Angeles, Lori Schroeder, for Real Party in Interest Ashley T.

BENKE, Acting P.J.

In this writ proceeding we are called upon to interpret and apply the provisions of section 362.7, which permit a county health and human services agency to place a dependent child in the home of a “nonrelated extended family member” (NREFM). Under the terms of the statute, a NREFM is anyone “who has an established familial or mentoring relationship with the child.” As we explain, the record here will not support the juvenile court's determinations a family friend of the minors' mother is a NREFM and that the placement with the family friend is in the best interest of the minors.

SUMMARY

We interpret section 362.7 in light of findings the Legislature made at the time it enacted its statutory predecessor, which permitted NREFM placements as a pilot project in counties selected by the Judicial Council. Under the express terms of the statute and the earlier findings of the Legislature, we have no difficulty concluding someone who has a close relationship with a dependent child such that the relationship will provide the child with familiar adults in familiar surroundings is a NREFM. Additionally, in light of the Legislature's findings, persons who have a close relationship with a child's family, rather than the child, might also be NREFM's under limited circumstances. The Legislature's findings suggest where placement will enhance the goals of family reunification or where the proposed NREFM's have a similar ethnic or racial identification so the child will be placed with a family sensitive to the child's background, a NREFM placement may be appropriate even if the only connection is between a NREFM and a minor's family. However, under our child dependency scheme, even when a person falls within the scope of the NREFM statute, an order placing a child with the NREFM must be in the best interest of the child.

Here, counsel acting on behalf of two dependent minors, Samantha T. and Emily T., challenges an order under a section 362.7 placing them in the home of Megan W., a woman the juvenile court found to be a NREFM. Admittedly, the record shows Megan and her family have a longstanding and close relationship with the minors' mother, real party in interest Ashley T. and her family. However, notwithstanding that relationship, Megan does not qualify as a NREFM because she does not have a close relationship with the minors themselves. Moreover, this is not a case in which we can consider extending the statute beyond its express terms because the placement here was not made in order to either enhance family reunification or as a means of placing the two minors in a home sensitive to their backgrounds.

Even if Megan were a NREFM, the record here shows placement in her home would not be in the best interest of the minors. At the time of the challenged order, reunification services for the minors' parents were terminated and a permanent placement hearing under section 366.26 was set. The record shows there are 28 local qualified families willing to adopt the minors as a sibling pair. Thus, although the current foster mother is, due to her age, unable to adopt the minors, placement with Megan is not the only opportunity to establish a permanent home for the minors.

Both of the minors' parents, Ashley T. and real party in interest Michael T., were charged with felony child endangerment. (Pen.Code, § 273a, subd. (a).) The charges stem from the death from starvation of their 15–month–old son Aiden. Importantly, however, the record discloses Samantha was herself subjected to serious neglect in the form of profound and long enduring hygiene and housekeeping deficiencies.² No doubt as a result of Samantha's experience with her natural parents and the death of her infant brother, the record shows Samantha is not comfortable with her natural parents and reacted very negatively to the prospect of moving to the home of her mother's friend Megan.

On the other hand, the record also shows the children, and in particular Samantha, have bonded to their foster mother and Samantha has an ongoing relationship with a local psychological therapist who opined it was not in Samantha's best interest to place her with Megan. Because Megan lives 500 miles away in Sacramento, placement with her would foreclose the opportunity for the minors to maintain these important relationships as they transition into a permanent placement.

Although Megan assured the social worker and the juvenile court she would act to protect the children from their natural parents, she conceded it would be hard to do so. The record fully supports Megan's frank concession as to the difficulty she would face in raising her family friend's children: Megan's home in Sacramentois just a few houses away from the minors' mother's family; Megan's mother lives in her home and is quite close to the minors' maternal grandmother; Megan has maintained a close and relatively intimate relationship with the minors' natural parents. Given the history of neglect which led the juvenile court to detain the minors and the serious criminal proceedings pending against the minors' parents, Megan's very close ties to the minors' parents and their family present obvious and serious risks to Samantha's emotional stability and well-being.

Real party in interest San Diego County Health & Human Services Agency (the agency) argues the minors would benefit over time from the access to members of their natural extended family which Megan could provide. But the record clearly establishes that benefit is far outweighed by the immediate disruption to relationships which are important to the minors at this point in their lives and the potential for conflict between Samantha's emotional needs and the needs of the extended family, with whom Megan is closely and intimately connected. Accordingly, we grant the petition.

FACTUAL AND PROCEDURAL HISTORY

1. Maryland

Samantha was born in November 2006. At that time her mother Ashley was serving in the United States Navy, where she worked as a dental hygienist. Michael, Samantha's father, worked prior to Samantha's birth, but following Samantha's birth he left his job and became Samantha's principal caretaker.

There is nothing in the record with respect to Samantha's care or social situation during the first 16 months of her life. However, the record shows her family began living in military housing in Maryland in March 2008 and the property manager at the housing site reported that from the time the family moved into their apartment until they left in August 2009 there were housekeeping and sanitation issues. The property manager reported downstairs neighbors complained on more than one occasion about the foul odor of Ashley and Michael's apartment and when the property manager opened the front door of the building where the family lived she could smell the odor. The property manager noted the family had a cat and the manager believed the cat urinated on the carpet in the apartment.

Ashley delivered a second child, Aiden T., in June 2008. Aiden was born six weeks premature and had a small puncture in his lung and a small hole in his heart. Aiden was released from the hospital at six weeks.

Military medical personal who treated Aiden in Maryland over the following year made and documented the following observations: while Aiden was in Ashley and Michael's care, Aiden did not gain weight. However, when, on repeated occasions, Aiden's failure to gain weight required hospitalization, Aiden gained weight. Moreover, despite repeated attempts over the course of a year, military physicians were unable to identify any medical explanation for Aiden's inability to gain weight while in Ashley and Michael's care. Over time, Aiden began exhibiting signs of severe developmental delays.

In addition to being unable to determine the cause of Aiden's failure to gain weight, military medical personnel noted and were concerned about the family's hygiene and the care both Samantha and Aiden were receiving. In October 2008, in response to concerns of medical personnel, a Maryland social worker inspected Ashley and Michael's home. Although the social worker did not find any evidence of abuse, the apartment was disheveled, the living area was extremely soiled and the social worker had concerns about the family's hygiene.

One of Aiden's treating physician's later told a Naval Criminal Investigative Service (NCIS) investigator: “During my first visit with Aiden and the family, I did become concerned about the social situation and possible neglect, as the entire family exhibited very poor hygiene and Aiden was dressed in soiled clothing and had a very strong odor about him.” The physician reported that when Aiden was hospitalized in December 2008, he was diagnosed with recurrent impetigo which physicians thought was due to “persistent poor hygiene.” The physician stated: “During my time caring for Aiden, I continually had concerns regarding medical neglect due...