Opinion
A151946
02-01-2018
In re C.G., a Person Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. SHANNON M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. JV170060)
Minor C.G. was removed from the home of his mother, Shannon M. (Mother), and placed in the home of his biological father, Daniel G. (Father) pursuant to Welfare and Institutions Code section 361.2. After a contested disposition hearing, the juvenile court upheld the removal, ordered Father to assume custody of the minor, declined Mother's request for reunification services, and terminated its jurisdiction. Mother now appeals from the juvenile court's order and contends the court erred in failing to retain jurisdiction and exercise its discretion to order reunification services. Mother further argues the court erred by not making specific factual findings in support of its decision to terminate jurisdiction. We disagree, and affirm the order at issue.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. BACKGROUND
A. Predisposition Proceedings
1. Section 300 Petition
Minor C.G. was born in July 2011, and is the biological child of Mother and Father. Mother was habitually late picking up C.G. from school and, on March 28, 2017, Mother failed to pick up C.G. from school. A school resource officer drove C.G. home. Upon arriving at the house, the officer saw Mother's car but no one answered the door. Police forcibly entered the residence and found Mother unresponsive. They located drug paraphernalia, methamphetamine, and heroin inside the home, where it was easily accessible to C.G. The home and yard also contained substantial quantities of dog feces. Police learned that, several weeks prior to this incident, C.G. allegedly informed a neighbor Mother was not waking up. The neighbor went to the residence and found Mother passed out and surrounded by drug paraphernalia. The police took C.G. into protective custody.
The Humboldt County Department of Health and Human Services (Department) filed a section 300 petition, alleging C.G. was at substantial risk of harm due to Mother's failure to supervise or protect him due to Mother's "mental illness, developmental disability, or substance abuse." Supporting facts were based on C.G.'s frequent absences from school, Mother's ongoing struggle to pick C.G. up from school, and the events of March 28, 2017. The Department recommended C.G. be detained with either a suitable foster care home or Father, and Mother be given case plan services, including substance abuse treatment services, random drug testing, and parenting education. The Department also recommended a home assessment by Santa Barbara County for Father and supervised visitation for Mother. On April 3, 2017, the court adopted these recommended orders. Following a successful team meeting, C.G. was placed with Father.
2. Jurisdiction
According to the jurisdiction report, there were two referrals regarding Mother from 2016 and 2017. Both related to Mother's failure to pick up C.G. from school, and one related to her drug use. The report again detailed the incident from March 28, 2017. C.G. stated Mother sometimes "gets sick and does not want to get out of bed or do anything." C.G. was able to describe how Mother injected drugs, and stated it was "very, very bad" after she gave herself shots. The attached police report indicated the police had performed several welfare checks at Mother's residence due to C.G.'s poor attendance at school. The police report further noted Mother was provided various resource referrals, but she had yet to take advantage of those. The jurisdiction report concluded C.G. was frequently left without a caregiver apart from school officials past the time Mother is required to pick him up and had easy access to Mother's drugs and drug paraphernalia.
The court sustained the petition, affirmed its prior order, and found C.G. subject to section 300 by a preponderance of the evidence. B. Disposition Report and Hearing
The disposition report filed in June 2017 noted Mother loves C.G., wants to be part of his life, acknowledges she needs treatment, and is willing to take steps to regain custody. Mother stated she planned to attend a treatment program in Santa Barbara to be near C.G. Although Mother was participating in a drug treatment program and had been sober for 42 days, the report concluded, "[C.G.] cannot be safely returned to [Mother's] care." It further stated Mother would need to successfully complete a substance abuse treatment program, complete an assessment with a therapist to address any mental health issues, maintain a suitable and safe residence, and demonstrate an ability to be consistent and stable in her parenting.
With respect to custody, Mother contended Father had not been involved in C.G.'s life, had been abusive towards her, and C.G. did not call him "Dad." Mother's extended family also expressed concerns about C.G. losing contact with Mother. However, the social worker reported: "[C.G.] has done well with his father. He was enrolled in school and finished the school year, was connected to medical and dental care providers, and obtained his new glasses. [C.G.] has FaceTime visits with his mother twice per week. [Father] has been cooperative with [the Department] and demonstrated a commitment to [C.G.]. [C.G.] is safe in his father's care and no services are needed." While the Department acknowledged that tensions may arise between Mother and Father, it noted there were extended family members who could assist them.
The report concluded: "[C.G.] does not need the supervision of [the Department] or the Juvenile Court to ensure his safety. His father is able to provide a safe and stable home. His mother can participate in services and, when she has become sober and able to safely parent [C.G.], she can petition the Family Law Court for a change in the custody orders." The Department recommended dismissing the case and granting Father full physical custody of C.G.
At the disposition hearing, counsel for the Department restated its recommendation to terminate jurisdiction "as the child is safely in the care of the father down in Santa Barbara and . . . there is no need for dependency at this time." The Department reiterated that the matter is "essentially[] a family law case" and, with both parents residing in Santa Barbara, neither the court nor the Department needed to oversee the matter. Both counsel for C.G. and Father agreed the matter, including any future custody decisions, should be addressed through the open family law case in Santa Barbara.
Counsel for Mother disagreed. Mother requested the court maintain jurisdiction and provide her family reunification services. She argued reunification would be in C.G.'s best interests because she has been his primary caretaker.
Over Mother's objection, the court ordered that Father assume full physical custody of C.G. and terminated jurisdiction. Mother filed a timely appeal.
II. DISCUSSION
Mother challenges the order terminating jurisdiction and granting physical custody of C.G. to Father on two grounds. First, she contends the order was procedurally defective because the juvenile court failed to make certain factual findings required by section 361.2, subdivision (c). Second, Mother argues substantial evidence did not support the court's decision to terminate jurisdiction. As a framework for our analysis of Mother's contentions, we begin by summarizing the governing statute and the applicable review standards. A. Section 361.2
As provided in section 361.2, subdivision (a), the juvenile court must place a dependent child with a previously noncustodial parent who requests custody, unless the placement would be detrimental to the child's safety, protection, or physical or emotional well-being. Because the noncustodial parent has a constitutionally protected interest in custody, case law requires clear and convincing evidence of detriment to the child before the court can deny the noncustodial parent's request for custody. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1828.) With its heightened standard of proof, this provision effectuates the legislative preference for placement with the previously noncustodial parent. (In re Austin P. (2004) 118 Cal.App.4th 1124, 1132.)
Under section 361.2, subdivision (b), when the court places a dependent child with a previously noncustodial parent, it has discretion either to continue or to terminate its jurisdiction over the child. (In re Janee W. (2006) 140 Cal.App.4th 1444, 1451; In re Austin P., supra, 118 Cal.App.4th at p. 1131.) "The discretion afforded the juvenile court in this area appears very broad. The section does not, however, expressly state under what circumstances the court may decide to terminate or continue its jurisdiction." (In re Sarah M. (1991) 233 Cal.App.3d 1486, 1496, disapproved on other grounds in In re Chantal S. (1996) 13 Cal.4th 196, 204.) But as case law establishes, the decision turns on "whether there is a need for ongoing supervision. If there is no such need, the court terminates jurisdiction and grants that parent sole legal and physical custody. If there is a need for ongoing supervision, the court is to continue its jurisdiction." (In re Austin P., at p. 1135.) In making this determination, "concern for the child's immediate welfare and care is paramount." (In re Phoenix B. (1990) 218 Cal.App.3d 787, 793-794.)
Section 361.2, subdivision (c) sets forth the requirement of explicit findings. It provides: "The court shall make a finding either in writing or on the record of the basis for its determination under subdivisions (a) and (b)." B. Standard of Review
A juvenile court's decision regarding termination of jurisdiction is reviewed for abuse of discretion. (In re J.S. (2011) 196 Cal.App.4th 1069, 1082 (J.S.).) Under this standard, the " 'appropriate test . . . is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' " (Walker v. Superior Court (1991) 53 Cal.3d 257, 272; see In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 (Stephanie M.), quoting Walker, at p. 272.) Accordingly, we will not reverse the juvenile court's decision unless that court " ' "has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." ' " (Stephanie M., at p. 318.)
Whether or not a court complied with section 361.2 is primarily a question of law. (In re Abram L. (2013) 219 Cal.App.4th 452, 462 (Abram L.).) However, any error is subject to a harmless error analysis. (Id. at p. 463.) Under this analysis, we cannot reverse the court's judgment unless the error was prejudicial. We must determine whether it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (Ibid.) C. Analysis
1. Lack of Explicit Findings
At the contested disposition hearing, the trial court granted Father full physical custody of C.G. and terminated jurisdiction. Neither party contests the propriety of the court's power to do so. Instead, Mother contends—and the Department appears to concede—the juvenile court failed to make factual findings in support of its decision to terminate jurisdiction under section 361.2, subdivision (b)(1). "[T]he question is whether [the juvenile court's] failure to make such a finding warrants reversal for further proceedings." (J.S., supra, 196 Cal.App.4th at p. 1077.)
Both parties agree section 361.2, the statute at issue here, expressly requires the juvenile court to make such findings. "Failure to make the required findings [is] error." (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.) But reversal is not warranted if the error is harmless. (Id. at p. 1219.) An error is harmless if "it is not reasonably probable such findings, if made, would have" resulted in the outcome sought by the appellant. (See In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
In assessing whether the juvenile court's failure to make specific findings constituted harmless error, we find J.S. directly on point. In J.S., the minor was removed from his mother's custody and placed with his father. At a contested disposition hearing, mother argued that jurisdiction should be retained to ensure that services were made available to both her and father. (J.S., supra, 196 Cal.App.4th at pp. 1073-1074.) While initially inclined to this view, following the contested hearing the court announced its intention to place custody with father, with visitation for mother, and terminate jurisdiction. (Id. at p. 1076.) On appeal, mother argued the juvenile court erred in failing to make a finding explicitly supporting its decision to divest itself of jurisdiction. (Id. at p. 1077.) The appellate court agreed the juvenile court failed to comply with the statutory requirement of " 'a finding either in writing or on the record of the basis for its determination.' " (Id. at p. 1078.)
In discussing the error, the appellate court noted, "An express finding on a contested issue—or a statement of reasons for a judicial decision—can shape and improve the adjudicatory process through either or both o[f] two mechanisms. First, it can directly influence the trial court's actual reasoning process by compelling it to consciously consider and resolve specified issues. Second, it can enhance appellate review of the trial court's reasoning by making that reasoning explicit and reducing, if not eliminating, the role of inference on appeal." (J.S., supra, 196 Cal.App.4th at p. 1078.) The appellate court, however, ultimately concluded the error was harmless. The court stated: "[W]e can see no reasonable probability that had the trial court complied with the statutory requirement, it would have answered differently the question whether to terminate its jurisdiction in this matter. The court addressed itself assiduously to that question, which was the predominant subject of hearings over portions of three days." (Id. at p. 1079.) The court further emphasized, "While the court undoubtedly possessed the discretion to retain jurisdiction it was never presented with a solid reason to do so." (Ibid.)
We concur with the reasoning in J.S. and reach a similar conclusion. Here, the court read and considered the Department's report, as well as oral arguments by counsel. The report noted C.G. "cannot be safely returned to [Mother's] care." The court adopted the report's conclusions and found "by clear and convincing evidence, that the return of the child to [Mother] would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." The report further noted C.G. "has done well with his father," including finishing the school year, connecting with medical providers, obtaining new glasses, and having FaceTime visits with Mother twice per week. The Department concluded Father "has been cooperative . . . and demonstrated a commitment to [C.G.]. [C.G.] is safe in his father's care and no services are needed." These conclusions were reaffirmed at oral argument, as counsel for Father, C.G., and the Department, uniformly stated terminating jurisdiction was appropriate. Counsel for Father "note[d] that since both parents are in Santa Barbara County and there is an open family law file that exists in Santa Barbara County, that . . . would be the most appropriate venue for them to then ultimately litigate long-term family law orders." Counsel for C.G. agreed with this assessment, stating, "[I]t's a family law case at this point."
The court also considered argument from Mother's counsel against terminating jurisdiction. The sole point raised by her counsel was that Mother had never been separated from C.G. and was his primary caretaker. Her counsel did not dispute the pending family law case could sufficiently address any future custody and visitation issues.
The Department's report also notes Mother claimed Father was abusive towards her. However, her counsel did not raise this issue at oral argument or present any evidence to support this claim. --------
With these arguments and issues placed squarely before the court, there is no reason to conclude the court would have reached a different conclusion had it made express findings in support of its decision to terminate jurisdiction. We find the closing words in J.S. equally applicable here: "[T]wo parents—mother and father—stood before the court. The father could immediately provide a safe and nurturing home; the mother could not. . . . The father showed every sign of cooperating freely in maintaining the child's relationship with the mother. The Department stood ready to supply whatever services it found necessary or desirable to serve the child's best interests. The family court stood with open doors to address any insoluble disputes over custody or visitation. Conceivably, the juvenile court itself could reassert jurisdiction upon a proper motion and showing. (See In re D.R. (2007) 155 Cal.App.4th 480.) Given these facts there is no mystery in the court's ultimate decision that its jurisdiction in the matter should end." (J.S., supra, 196 Cal.App.4th at p. 1081.) Nor is there any mystery here why the juvenile court terminated jurisdiction. Considering the circumstances outlined by counsel and the Department's report—Father's desire and ability to provide a stable home, C.G.'s safety in that home, C.G.'s connection to extended family, the parties' residence in Santa Barbara, and the ongoing family law case between Mother and Father in Santa Barbara—there can be no reasonable probability that the court would have reached a different conclusion had it been asked to make express findings under section 361.2, subdivision (c). We therefore find that any error in the juvenile court's failure to articulate the basis for its determination is harmless under the circumstances of this case.
2. Termination of Jurisdiction Pursuant to Section 361 .2 , Subdivision (b)(1)
Apart from the procedural error in failing to make express findings in support of terminating jurisdiction, Mother contests the substance of the juvenile court's decision to do so. Specifically, she argues the court erred in terminating jurisdiction because Father had minimal contact with C.G., a criminal record, and limited information was known about Father, his living situation, and his capacity to parent C.G. Due to this limited information, Mother contends the court should have maintained jurisdiction and either conducted a home visit under section 361.2, subdivision (b)(2) or, ideally, ordered reunification services for Mother under section 361.2, subdivision (b)(3).
While the juvenile court may have been justified in retaining jurisdiction for the reasons Mother identifies, we cannot conclude the court made " ' "an arbitrary, capricious, or patently absurd determination" ' " in terminating jurisdiction. (See Stephanie M., supra, 7 Cal.4th at p. 318.) The court's focus was properly on C.G.'s "safety, protection, and physical and emotional well-being." (§ 300.2.) Mother offers no evidence, and the record does not contain such evidence, to suggest C.G. was not safe in Father's home or that C.G. had special needs that would benefit from continued supervision. While C.G.'s emotional and other needs may benefit from reunification with Mother, the court could reasonably conclude the family law proceedings would adequately address this issue. As such, "once [minor] was placed with his father and was found not to be 'at risk' in that setting for any of the enumerated harms, the core predicate for juvenile court jurisdiction disappeared." (J.S., supra, 196 Cal.App.4th at p. 1082; see In re A.J. (2013) 214 Cal.App.4th 525, 535 [termination of jurisdiction appropriate when no existing protective issues].) The trial court did not abuse its discretion in terminating its jurisdiction over C.G.
III. DISPOSITION
The order is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.