Filed 4/19/13 In re A.L. CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


In re A.L., a Person Coming Under the                                B244509
Juvenile Court Law.

LOS ANGELES COUNTY                                                   (Los Angeles County
DEPARTMENT OF CHILDREN AND                                           Super. Ct. No. CK46624)
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

J.L.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County. Elizabeth
Kim, Referee. Affirmed.


         Jamie A. Moran, under appointment by the Court of Appeal, for Appellant.


         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
William D. Thetford, Deputy County Counsel, for Respondent.


                                       __________________________
        Appellant J.L. (father) appeals from the October 1, 2012 order denying his request
that his dependent daughter, A.L., be removed from foster care and placed with father’s
childhood friend, T.D. Father contends the juvenile court erred in finding that T.D. was
not a “nonrelative extended family member” (NREFM) within the meaning of the
Welfare and Institutions Code.1 We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

        Appellant was incarcerated when two-day-old A.L. was detained in February
2012, after mother tested positive for cocaine. Appellant was found to be A.L.’s
presumed father. A.L. was four days old when she was placed with non-relative
caregivers B.F. and S.F. (the foster parents).
        As sustained by the juvenile court following a March 19 jurisdictional hearing,
paragraph b-1 of the section 300 petition alleged that A.L. had suffered or there was a
substantial risk she would suffer serious physical harm or illness because mother had a
long history of illegal drug use, was currently using illicit drugs, had tested positive for
cocaine while pregnant with A.L., and had failed to reunify with several other children.
The petition also alleged father knew or should have known about mother’s drug use and
failed to protect A.L. Additional allegations alleged pursuant to section 300,
subdivisions (b) and (g) were dismissed.2
        Father told the social worker that he intended to do everything he could to regain
custody of A.L. A paternal aunt expressed interest in having A.L. placed with her. But
mother was adamantly opposed to placement with the paternal aunt, whom mother
claimed was a current drug abuser. Mother wanted A.L. placed with a maternal aunt.

1       All future undesignated statutory references are to the Welfare and Institutions
Code.

2      Both parents appeared at the jurisdictional hearing, although father was still
incarcerated. Father denied the allegations and mother submitted on the petition.
Because of her failure to reunify with other children, mother was not given reunification
services. She subsequently lost contact with her appointed counsel and is not a party to
this appeal.

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Although the maternal aunt told the social worker that at the age of 50 she did not want to
raise another child, she would do so in order to keep the family together. DCFS
recommended that A.L. remain with the foster parents and that father receive
reunification services. The juvenile court set the matter for a May 14 progress hearing on
father’s incarceration status and participation in reunification services followed by a six-
month review hearing on September 17.
       By the time of the May 14 progress hearing, father was still incarcerated and had
not participated in any parenting program available at the detention center where he was
located. However, he still hoped to reunify with A.L. Beginning in mid-August, the
foster parents took A.L. to the jail every other weekend to visit father.
       In advance of the September 17 six-month hearing, DCFS began investigating
placement of A.L. with father’s childhood friend, T.D., pursuant to section 362.7 which
allows the social worker to place dependent children with a NREFM under certain
circumstances. Upon learning of the potential change in placement, the foster parents
filed a section 388 petition seeking an order requiring DCFS to obtain prior court
approval for any change in placement. Before the hearing, DCFS’s placement plans were
derailed when the social worker discovered that T.D. had never met A.L., thus
disqualifying her as being a NREFM. Based on this new information, DCFS
recommended in a Last Minute Information filed the day of the hearing that A.L. remain
placed with the foster parents.
       T.D. was present at the September 17 hearing, as was the foster mother and her
counsel. A.L.’s counsel objected to father’s request that A.L. be placed with T.D.,
arguing that T.D. was not a NREFM, and that A.L. was doing well with the foster parents
who were facilitating visits with father. Thus the change would not be in A.L.’s best
interests. The juvenile court continued the matter to October 1, for a contested hearing
on whether T.D. qualified as a NREFM pursuant to section 362.7, and if so, whether A.L.
should be placed with T.D. Pending the continued hearing, the court ordered monitored
visits for T.D. It also summarily denied the foster parents’ section 388 petition.



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        At the continued hearing, T.D. testified that she was raised with father, whom she
thought of as her cousin although they were not related. T.D. met A.L. for the first time
on September 21, four days after the last hearing, and saw her a second time on
September 26. Both visits lasted an hour. T.D. felt that she had bonded with A.L. during
those two visits. T.D. was told about A.L.’s special needs by the social worker;
specifically, that A.L.’s physical development was not normal and that she was receiving
physical therapy. But A.L. looked normal to T.D. Although T.D. worked nights and
lived in San Bernardino, she would be able to bring A.L. to Los Angeles to continue her
treatments here. T.D.’s 20-year-old daughter would care for A.L. while T.D. was at
work.
        Counsel for A.L. and DCFS opposed any change in placement, reiterating the
argument that T.D. did not qualify as a NREFM and the move would not be in A.L.’s
best interest. DCFS also urged the juvenile court to reject the placement because father
and T.D. had colluded to misrepresent T.D. as a cousin. Father argued in favor of the
change because T.D. had visited A.L. twice.
        The juvenile court found T.D. did not qualify as a NREFM. Notwithstanding her
close relationship with father, T.D. did not have an established relationship with A.L.
after just two visits. The court concluded that it would not be in A.L.’s best interest to be
removed from her foster parents and placed with T.D. Father timely appealed.3




3      DCFS’s motion to dismiss the appeal is denied. Father was aggrieved by the order
that A.L. remain placed with the foster parents and not placed with T.D. because placing
a child with a NREFM may improve the prospects of reunification for the parent with ties
to the NREFM. (§ 395, subd. (a)(1) [any order subsequent to the judgment in a
dependency proceeding may be appealed as an order after judgment]; In re S.B. (2009)
46 Cal.4th 529 [the dispositional order is the “judgment” in a dependency proceeding]; In
re Michael E. Jr. (2013) 213 Cal.App.4th 670 (Michael E.) [appeal from order denying
father’s fiancée § 362.7 status]; see also In re T.G. (2010) 188 Cal.App.4th 687, 692
[finding that reasonable services had been provided to father was appealable because it
was adverse to father’s interests in reunification].)

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                                          DISCUSSION

A.     Standard of Review

       The parties disagree on the appropriate standard of review: father argues that it is
abuse of discretion while DCFS argues it is de novo. In In re Michael E., Jr., supra,
published after the briefs in this case were filed, the court applied the de novo standard of
review to the question of whether the juvenile court erred in finding the father’s fiancée
did not qualify as a NREFM. We agree that interpretation of section 362.7 and the
statute’s application to undisputed facts is subject to de novo review. But even under the
abuse of discretion standard, we would find no error.

B.     The Juvenile Court Correctly Ruled T.D. Was Not A NREFM

       Father contends the trial court erred when it found T.D. was not a NREFM. He
argues that T.D. qualified because she had a strong familial-like bond with father and that
T.D. and A.L. “had begun to develop their own relationship. [T.D.] had begun visitation
with [A.L.] Their two visits went well. They had fun playing together. [A.L.] appeared
to warm to [T.D.] given that she played more during the second visit.” We find no error.
       The court must make orders for the care and custody of a child adjudged a
dependent child. (§ 361, subd. (a).) When a child is ordered removed from his or her
parents, the court must place the child under the supervision of the social worker, who
may make any one of four specified placements. (§ 361.2, subd. (e.).) The only specified
placement option relevant to the issues on appeal is: “the approved home of a nonrelative
extended family member as defined in Section 362.7.” (§ 361.2, subd. (e)(3).)
Section 362.7 defines a NREFM as “any adult caregiver who has an established familial
or mentoring relationship with the child. The county welfare department shall verify the
existence of a relationship through interviews with the parent and child or with one or
more third parties. The parties may include relatives of the child, teachers, medical
professionals, clergy, neighbors, and family friends.” (Italics added.)



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          Notwithstanding the unambiguous statutory language, the court in Samantha T. v.
Superior Court (2011) 197 Cal.App.4th 94, 110, observed: “Arguably, based on the
Legislature’s findings with respect to family reunification and racial or ethnic
identification, a familial relationship with a minor’s family, even in the absence of a
relationship with a minor, might be sufficient to meet the requirements of section 362.7.”
But the court found that was not the case in Samantha T. In that case, dependent sisters
challenged an order removing them from the foster mother with whom they had bonded
and placing them with Megan, a family friend with whom the girls did not have a close
relationship. (Id. at p. 97.) The court held: “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.”
(Ibid.)
          The court in Michael E., supra, adopted the dicta in Samantha T. as the rule. It
held: “A NREFM placement may be appropriate in cases where the child does not have
an existing relationship with the individual seeking NREFM status, if that individual has
a close connection with the child’s family and placement will further the legislative goals
of allowing the child to remain in familiar surroundings, facilitating family reunification
or providing a culturally sensitive environment to the child.[] [Citation.] Thus an
individual may qualify as a NREFM under the express terms of the statute or within the
legislative goals of the statute. [Citation.]” (Michael E., supra, 213 Cal.App.4th at
p. 675.) However, any placement must still be in the child’s best interest. (Ibid.) In
Michael E., the incarcerated father asked that his fiancée, who was also the mother of the
child’s infant half-sibling, be evaluated for placement even though she had never met the
child. The appellate court agreed that the fiancée did not qualify as a NREFM under the
express terms of section 362.7, but that the juvenile court should have also considered
whether the fiancée had a close connection with the child’s family and whether the
child’s placement in the NREFM home would further the legislative goals of allowing the

                                               6
child to remain in familiar surroundings, facilitating family reunification or providing a
culturally-sensitive environment to the child. (Id. at p. 676.) Like the court in
Samantha T., however, the court in Michael E. concluded that, although the juvenile
court interpreted section 362.7 too narrowly, it was not an abuse of discretion for it to
decline to order the agency to investigate the fiancée. This was because the fiancée did
not personally come forward to request the child’s placement in her home, the five-year
old-child had been living with the foster parents for five months and developed a close
relationship with them, the fiancée did not live in the same part of town as the foster
parents and placement with the fiancée would disrupt the child’s schooling and continuity
of care in a familiar environment. The court concluded: “Absent a need for a change of
placement, placing [the child] with someone he did not know would not be in his best
interests. [Citation.].” (Ibid.)
       Here, notwithstanding her apparently close bond with father, T.D.’s relationship
with A.L. after just two visits simply does not qualify as an “established familial or
mentoring relationship.” For this reason, T.D. was not a NREFM within the express
terms of section 362.7.
       Even if we were to adopt the reasoning in Samantha T. and Michael E. that
section 362.7 should be interpreted to include nonrelated extended family members who
have no relationship with the child – a point we do not decide – we would find no error.
The trial court reasonably concluded that removing A.L. from her foster parents and
placing her with T.D. would not be in A.L.’s best interest. No evidence was presented
that removal would further the legislative goals of allowing A.L. to remain in familiar
surroundings, facilitating family reunification or providing a culturally-sensitive
environment to her. As in Michael E., there was no need for a change in A.L.’s
placement. She was thriving with the foster parents who were meeting all of her special
needs. It was not clear that T.D. understood A.L.’s special needs, much less that she
could meet them. In fact, T.D. intended that significant caregiving would be provided not
by T.D. but by her 20-year-old daughter. The foster parents were also facilitating
reunification by regularly taking A.L. to visit father at his place of incarceration every

                                              7
other weekend. Since the foster parents and A.L. were all African American, there was
no question that the foster parents could provide a “culturally-sensitive environment” to
A.L. Under these circumstances, there was nothing to show that the change in placement
requested by father would be in A.L.’s best interests.

                                     DISPOSITION

       The order appealed from is affirmed.




                                                  RUBIN, J.
WE CONCUR:




              BIGELOW, P. J.




              FLIER, J.




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