Filed 9/18/14 In re Nickolas T. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re NICKOLAS T., a Person Coming
Under the Juvenile Court Law.
D065507
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. EJ003553)
Plaintiff and Respondent,
v.
B.T.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Kimberlee A.
Lagotta, Judge. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Phillips, Chief Deputy County
Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
Dependency Legal Group of San Diego, Tilisha Martin, and Carolyn Levenberg for
Minor.
B.T. appeals an order denying her request for custody of her son, Nickolas T., at a
combined postpermanency review hearing under Welfare and Institutions Code section 366.31
and a disposition hearing on a supplemental petition under section 387. She contends
Nickolas's dependency proceedings should be in the reunification phase, not in
postpermanency review, and principles of due process required the court to return Nickolas to
her care absent a finding that return would be detrimental to his health, safety, or physical or
emotional well-being.
As we shall explain, B.T.'s rights to due process were not violated. The court properly
proceeded under section 366.3, which governs postpermanency review, but did not apply the
correct legal standard under section 366.3, subdivision (h). That standard, which applies to a
child who has a permanency plan of long-term foster care, requires the court to consider and
reject all other permanency options, including return to a parent, as not being in the child's best
interest before it may continue the child's plan of long-term foster care. However, because the
court made explicit findings which are supported by the record, that return would be
detrimental to Nickolas, and that B.T. did not meet her burden to show changed circumstances
and return to her care was in Nickolas's best interest, the record clearly supports a finding
under the appropriate standard. (§ 366.3, subd. (h).) We conclude there is no prejudicial error,
and thus affirm the order denying B.T.'s request for custody.
FACTUAL AND PROCEDURAL BACKGROUND
B.T. is the mother of Nickolas T., who was born in November 1997. The identity of
Nickolas's father is unknown. When Nickolas was three years old, B.T. voluntarily placed
1 Unless otherwise specified, all further statutory references are to the Welfare and
Institutions Code.
2
Nickolas and several of his siblings in protective custody in Mississippi. She was subsequently
incarcerated on charges of robbery, motor vehicle theft, and receiving stolen property.
Nickolas and his siblings were eventually placed in the care of a maternal aunt and uncle, who
subsequently moved to San Diego County. The history of Nickolas's early years is detailed in
this court's opinion, In re Nickolas T. (2013) 217 Cal.App.4th 1492 (Nickolas T.), and we need
not repeat those details here.
In May 2012, the San Diego County Health and Human Services Agency (Agency)
detained Nickolas in protective custody and filed a petition alleging Nickolas's aunt and uncle
had physically abused him. The court found that Nickolas was described by section 300,
subdivision (b), dismissed the count alleging physical abuse, and terminated the aunt and
uncle's guardianship. At counsel's urging, the court proceeded as if the case was in
postpermanency planning and denied B.T.'s request for custody of Nickolas. B.T. did not
request reunification services. The court selected long-term foster care as Nickolas's
permanent plan, set a postpermanency plan review hearing, and placed him with a nonrelative
extended family member (caregiver). (Nickolas T., supra, 217 Cal.App.4th at pp. 1498-1501.)
B.T. appealed the order denying her request for custody. This court held that the
selection of a permanent plan of long-term foster care for Nickolas at the disposition hearing
did not comport with statutory requirements. However, because B.T. did not challenge the
selection of a permanency plan on appeal and there was substantial evidence in the record to
support a detriment finding under section 361.2, the correct statutory provision, we found no
prejudicial error. Nickolas had not lived with B.T. since he was three years old, and he did not
trust her to adequately care for him and protect him. B.T. believed that Nickolas lied about
3
having been physically abused despite medical and other corroborating evidence supporting his
claim. B.T. expressly stated she was not seeking reunification services and retained the right
to file a section 388 petition seeking Nickolas's return to her custody on a showing of changed
circumstances and best interests of the child. Further, the court was required to consider all
permanency planning options for a child in long-term foster care every six months, including
ordering reunification services or returning the child to the parent's custody.2 (Nickolas
T., supra, 217 Cal.App.4th at pp. 1507-1508.)
In May 2013, Nickolas was expelled from high school for smoking a hookah pipe. He
transferred to another high school where he was suspended for smoking marijuana. Nickolas
completed a substance abuse program and remained at school. He did not want to participate
in recommended therapy. In July, Nickolas was charged with two counts of armed robbery
after his companion pulled a knife on two other teenagers and they stole the teenagers'
skateboards. Nickolas expressed remorse for the incident and was released to his caregiver.
He said he felt angry at times for no apparent reason and asked to resume therapy.
Nickolas continued to visit his aunt and his siblings, but chose not to have any contact
with his uncle. His mother visited him in January 2013. Nickolas felt comfortable with her.
Nickolas said he spoke to his mother about once a month, usually on his initiative. He did not
want to return to his mother's care.
In October, Nickolas was expelled from high school. He became affiliated with a gang.
Another high school accepted Nickolas. Ten days later he was suspended from that high
2 At a postpermanency planning review hearing for a child in long-term foster care, the
court is required to consider return of a child to his or her parent only if parental rights have
not been terminated. (§ 366.3, subd. (b).)
4
school for truancy, possession of marijuana, and being under the influence of marijuana. The
high school allowed him to remain in school on the condition that he attend weekly substance
abuse meetings and submit to on-demand drug tests; however, Nickolas did not attend the
required meetings. He also missed his therapy appointments. On November 8, when his
caregiver was not at home, Nickolas and his friends had a party at the caregiver's home, in
which they drank alcohol and left the empty bottles in the backyard and in the street.
On November 11, the caregiver found a suicide note that Nickolas had written.
Nickolas was admitted to the hospital under section 5150, which permits peace officers and
specified mental health professionals to take a person into custody if there is probable cause to
believe the person is a danger to himself or others. (City of San Diego v. Kevin B. (2004)
118 Cal.App.4th 933, 936.) Nickolas claimed the note was a result of a "random thought" and
was released from the hospital without treatment. His doctor said Nickolas was not motivated
to change.
On December 11, the court assumed both dependency and delinquency jurisdiction over
Nickolas, and designated the Agency as the lead agency in the case. Nickolas was placed on
probation and 45 days of home supervision. On December 17, he violated probation by
leaving school without permission and was placed in juvenile hall. The caregiver notified the
Agency that he was no longer able to provide placement for Nickolas.
B.T. asked the Agency to return Nickolas to her care in Mississippi. She said he needed
strict boundaries. Alternatively, B.T. asked the Agency to consider Nickolas's aunt and uncle
for placement. The social worker reminded B.T. that Nickolas was removed from his aunt and
5
uncle's care on allegations of physical abuse. B.T. insisted the Agency consider the aunt and
uncle for placement.
On January 8, 2014, a foster parent who had experience working with teenagers agreed
to care for Nickolas. Nickolas was released from juvenile hall to her care. He returned to high
school and resumed therapy.
On January 16, the court held a combined hearing on the Agency's petition to change
Nickolas's placement from a nonrelative extended family member to foster care under
section 387 and a postpermanency planning review under section 366.3. The court admitted
the Agency's reports in evidence, as detailed above, and found that the previous disposition had
not been effective in protecting Nickolas.
B.T. wanted Nickolas to live with her and her husband. She had four other children in
her care: a 15-year old son, a 14-year old daughter, and four-year old twin sons. B.T. worked
in the dietary department of a hospital. She lived in a three-bedroom, two-bath home in a good
neighborhood, near a good high school. Counseling for Nickolas was available at the high
school, and she could also look for family counseling.
B.T. testified that she talked to Nickolas by telephone two to three times a week. She
last saw him a year earlier, when she came to San Diego to visit him and her other children.
B.T. wanted Nickolas placed with her, saying, "Nickolas is my son, and I love him. And he's
been in a lot of trouble lately, which I'm very [] disappointed about. I also don't want my son
going down the wrong path. I want him to be where he's loved, with mom."
B.T. acknowledged she did not believe that Nickolas had been physically abused by his
aunt and uncle. B.T. had not participated in any educational programs about child abuse. She
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maintained that the injuries on Nickolas's hands were caused by playing sports. B.T. last
visited Nickolas in January 2013. She was aware the court had ordered the Agency to provide
funds to allow her to travel from Mississippi to San Diego to visit Nickolas.
The court found by clear and convincing evidence it would be detrimental to return
Nickolas to B.T. B.T. appeared to lack insight and the ability to protect her son, as she did not
believe that Nickolas was physically abused by his aunt and uncle. B.T. visited Nickolas once
in the last year and had some telephone contact with him, but the parent/child bond was not
sufficient or strong enough to allow Nickolas to be appropriately placed with his mother. The
court also considered Nickolas's wishes to remain in San Diego in a foster care home.
Nickolas was 16 years old and had been raised in San Diego. In view of his delinquent acts
and his mental health status, Nickolas required a higher level of care than his mother could
provide to him. The court denied B.T.'s request for placement, finding that B.T. did not show
changed circumstances and that it was in Nickolas's best interest to place him in a foster home
with appropriate support, structure and therapeutic resources.
DISCUSSION
A
The Parties' Contentions
B.T. contends the court erred when it conducted a postpermanency review hearing
under section 366.3 instead of a status review hearing under section 366.21, and denied her
request for custody of her son. She argues the case is in reunification because she did not
explicitly waive her right to reunification services under section 361.5, subdivision (b)(14) and
thus, the court was required to return Nickolas to her care absent a showing that return would
7
create a substantial risk of detriment to Nickolas's safety, protection, or physical or emotional
well-being. (§ 366.21, subds. (e), (f).) B.T. maintains the court disregarded the appropriate
statutory scheme and thus violated her fundamental liberty interest in the care and custody of
her son. She further contends, notwithstanding the court's failure to follow the proper statutory
scheme, there is not substantial evidence to support the finding that return to her care would
create a substantial risk of detriment to Nickolas's safety, protection or well-being.
The Agency asserts B.T. did not assert at trial (or in the prior appeal) that Nickolas's
case was in the reunification phase and she has forfeited her right to claim this error on appeal.
The Agency further argues the juvenile court properly conducted a postpermanency review
hearing and did not err in denying B.T.'s request for custody because she did not meet her
burden to prove changed circumstances and that return to her care was in Nickolas's best
interests. Nickolas joins in the Agency's arguments.
B
Forfeiture
"A party forfeits the right to claim error as grounds for reversal on appeal when he or
she fails to raise the objection in the trial court." (In re Dakota H. (2005) 132 Cal.App.4th 212,
221 (Dakota H.).) Generally, a reviewing court will not consider a challenge to a ruling if an
objection could have been, but was not, made in the trial court. The purpose of this rule is to
encourage parties to bring errors to the attention of the trial court, so any error may be
corrected. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
We acknowledge the Agency's argument concerning forfeiture. However, application
of the forfeiture rule is not automatic. (In re V.F. (2007) 157 Cal.App.4th 962, 968.) There is
8
no dispute about the standards and procedures that were employed by the court. When the
facts are not disputed, the effect or legal significance of those facts is a question of law. (Ibid.)
We therefore exercise our discretion to review the issues to address the legal issue raised in this
case. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081.)
Because the question of the appropriate status of the case is one of law, we review the
claimed error de novo. (Dakota H., supra, 132 Cal.App.4th at p. 222.)
C
The Unusual Posture of Nickolas's Dependency Proceedings
Does Not Violate B.T.'s Due Process Rights
In Nickolas T., we determined the court erred when it acquiesced to the parties' theory
that because a permanency plan of guardianship had been selected for Nickolas in 2006 in
Mississippi, his new California dependency case was also at the postpermanency stage.
Notwithstanding the error, we concluded that the selection of long-term foster care as
Nickolas's permanency plan did not require reversal because the record supported a finding
that placement with B.T. would be detrimental to Nickolas; B.T. expressly stated she was not
requesting reunification services; her parental rights were not terminated; and she retained the
right to seek Nickolas's return to her care under section 388 or section 366.3. (Nickolas T.,
supra, 217 Cal.App.4th at pp. 1507-1508.) Thus, under the law of the case, the court properly
heard the case under section 366.3, which governs postpermanency planning reviews.
We are not persuaded by B.T.'s argument the unusual posture of Nickolas's case violates
her fundamental interest in making decisions concerning his care, custody, and control under
the federal due process clause. (Santosky v. Kramer (1982) 455 U.S. 745, 758;
In re Dakota H., supra, 132 Cal.App.4th pp. 222-224.) B.T. relinquished custody of Nickolas
9
when he was three years old. Her fundamental interest in his care and custody was diminished
both by that act and by her failure to seek to terminate the aunt and uncle's guardianship before
Nickolas was adjudicated a dependent of the juvenile court. (In re S.H. (2011)
197 Cal.App.4th 1542, 1559 [where a permanent plan of guardianship has been ordered, the
parent's interest in the care, custody and companionship of his or her child is no longer
paramount]; see In re Stephanie M. (1994) 7 Cal.4th 295, 317 [when a case is no longer in
reunification, the focus shifts from the parent's interests to the child's interests in permanency
and stability].)
In addition, the existence of a Mississippi court order granting B.T. the right to regain
custody of Nickolas on proof she had the ability to provide for him does not, contrary to her
argument, assist her here. Instead, it shows that B.T.'s interest in Nickolas's care and custody
was limited by the Mississippi court to the right to appear in court and prove that she was
capable of meeting Nickolas's needs. This is precisely the opportunity that she had, and
continues to have, in Nickolas's dependency case. Thus, we reject B.T.'s argument that her
substantive liberty interests in Nickolas's care require the court to return Nickolas to her care
absent a finding of detriment. Further, contrary to B.T.'s argument, the record clearly shows
the juvenile court made a detriment finding; thus, B.T. received the process she asserts is due
under federal constitutional principles.
10
D
Additional Factual and Procedural Background and the Legal Standard for
Return to Parental Custody under Section 366.3
At trial, the Agency argued that to regain custody of Nickolas, B.T. was required to
prove, by clear and convincing evidence, changed circumstances and that it was in Nickolas's
best interests to return to his mother's care.3 B.T. asked the court to immediately return
Nickolas to her custody, maintaining there was not a substantial risk of detriment to Nickolas
in her care and considering his current circumstances and lack of stability, it was in his best
interest to return to her care. Minor's trial counsel asked the court to find that return would be
detrimental to Nickolas because B.T. still believed he had not been physically abused, and had
not participated in services or made any efforts to reunify with him.
The court proceeded under sections 387 and 366.3, and granted the Agency's
section 387 petition. It also determined there would be a substantial risk of detriment to
Nickolas if returned to B.T.'s care, and that B.T. did not demonstrate changed circumstances
and return to her care was not in Nickolas's best interest. However, as we shall explain, the
court did not apply the required legal standard in determining whether to return Nickolas to
B.T.'s care, but the error was not prejudicial.
Section 387 governs the placement of a dependent child in a higher level of care when
the previous placement has not been effective in protecting or rehabilitating the child, or a
relative placement is no longer appropriate in view of the criteria in section 361.3. If the court
3 B.T. did not file a section 388 petition seeking Nickolas's return to her care. Had she
done so prior to the postpermanency review hearing, she would have had to prove, by a
preponderance of evidence, changed circumstances or new evidence, and that it would be in
Nickolas's best interest to grant the relief requested. (§ 388.)
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makes a true finding on a section 387 petition and considers removing the child from the
custody of his or her parent, the court is required to make a detriment finding under section 361
before it may remove the child from the parent's custody.4 (In re T.W. (2013) 214 Cal.App.4th
1154, 1162; In re Paul E. (1995) 39 Cal.App.4th 996, 1004-1005.) However, where, as here, a
child has already been removed from the parent's custody on a detriment finding and has
remained in out-of-home care, section 361 does not apply and the court is not required to make
a detriment finding at the section 387 dispositional hearing. Under the circumstances
presented here, involving both a disposition hearing under section 387 and a postpermanency
review hearing under section 366.3, the court's authority to return a child in long-term foster
care to the care of his or her parent is controlled by section 366.3, subdivision (h).
Section 366.3 governs postpermanency review hearings for children for whom a
permanency plan has been selected, including long-term foster care. Consistent with the
Legislature's preference for a permanency plan other than long-term foster care (§ 396),5 the
4 Section 361, subdivision (c) provides, in relevant part: "A dependent child may not be
taken from the physical custody of his or her parents or guardian or guardians with whom the
child resides at the time the petition was initiated, unless the juvenile court finds clear and
convincing evidence . . . . There is or would be a substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the minor if the minor were returned
home, and there are no reasonable means by which the minor's physical health can be protected
without removing the minor from the minor's parent's or guardian's physical custody."
5 Section 396 states: "It is the policy of the Legislature that foster care should be a
temporary method of care for the children of this state, that children have a right to a normal
home life free from abuse, that reunification with the natural parent or parents or another
alternate permanent living situation such as adoption or guardianship is more suitable to a
child's well-being than is foster care, that this state has a responsibility to attempt to ensure that
children are given the chance to have happy and healthy lives, and that, to the extent possible,
the current practice of moving children receiving foster care services from one foster home to
another until they reach the age of majority should be discontinued."
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court is required to consider "all permanency planning options for the child" at a
postpermanency review hearing.6 (§ 366.3, subd. (h).) Those options include "whether the
child should be returned to the home of the parent, placed for adoption, or, for an Indian child,
in consultation with the child's tribe, placed for tribal customary adoption, or appointed a legal
guardian, or, if compelling reasons exist for finding that none of the foregoing options are in
the best interest of the child, whether the child should be placed in another planned permanent
living arrangement." (§ 366.3, subd. (h), italics added.) Basically, to continue a child's
placement in long-term foster care, the court must consider and reject all other available
permanency options as not being in the best interest of the child.7 Because the court failed to
do so, the court erred, but the error was harmless.
The court determined that return would be detrimental to Nickolas for a variety of
reasons, including: B.T.'s apparent lack of insight and ability to protect her son; her minimal
contact with Nickolas; the lack of a strong parent/child bond; Nickolas's wish to remain in
San Diego; and his need for a higher level of care than his mother could provide to him. The
6 In addition, if parental rights have not been terminated (that is, the child's permanency
placement is guardianship or long-term foster care), the court can order reunification services
for up to six months, and family maintenance services for an additional six months, if the
parent proves, by a preponderance of the evidence, that further efforts at reunification are the
best alternative for the child. (§ 366.3, subd. (f).)
7 Section 366.3, subdivision (h) does not specify the burden or standard of proof. Thus,
the party opposing a particular permanency plan bears the burden to show, by a preponderance
of the evidence, that a compelling reason exists for finding that the particular permanency plan
is not in the child's best interest. (Evid. Code, § 500 [except as otherwise provided by law, a
party has the burden of proof as to each fact the existence or nonexistence of which is essential
for the claim or defense the party is asserting]; Evid. Code, § 115 [except as otherwise
provided by law, the burden of proof requires proof by a preponderance of the evidence].)
13
court further found it was in Nickolas's best interest to place him in a foster home with
appropriate support, structure and therapeutic resources.
These findings constitute a compelling reason for finding that return home was not in
Nickolas's best interest. The record clearly shows8 that B.T. did not want to participate in
reunification services designed to allow Nickolas to safely return to her care;9 she did not visit
him more than once a year, despite being offered financial assistance to do so; she made it
clear she believed that Nickolas was lying about having been physically abused, despite
medical and other evidence to the contrary, which resulted in a diminution of Nickolas's trust
in her; she encouraged Nickolas's aunt to use corporal punishment on him; and she did not
fully understand the nature and extent of Nickolas' emotional needs. In addition, there was no
evidence to show that a plan of guardianship or adoption was available for Nickolas. (§ 366.3,
subd. (h).)
The court did not abuse its discretion when it determined that Nickolas's best interest
would be better served by continued placement in long-term foster care with a highly qualified
caregiver, with appropriate structure, support and therapeutic resources. Thus, on this record,
we cannot conclude there has been a miscarriage of justice necessitating reversal.
(Cal. Const., art. VI, § 13.)
8 To the extent the court failed to make an express finding under section 366.3,
subdivision (h), the record clearly supports a finding there was a compelling reason for finding
that return home was not in Nickolas's best interest. (See In re Marquis D. (1995) 38
Cal.App.4th 1813, 1825 [where trial court has failed to make express findings the appellate
court generally implies such findings only where the evidence is clear].)
9 B.T. may ask the court to set a postpermanency review hearing at any time and request
family reunification services. (§ 366.3, subds. (d)(1), (f).)
14
DISPOSITION
The order is affirmed.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
15
In re Nickolas T. CA4/1
Combined Opinion