Opinion
B298353
03-02-2020
In re J.D., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CARLOS D., Defendant and Appellant.
Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP07556A) APPEAL from an order of the Superior Court of Los Angeles County, Jean M. Nelson, Judge. Reversed and remanded in part, affirmed in part. Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
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Carlos D. (father) appeals from the juvenile court's order adjudicating his minor daughter, J.D., a dependent under Welfare and Institutions Code section 300, subdivisions (b)(1) and (g), as well as dispositional orders removing her from parental custody and denying reunification services for father under section 361.5, subdivision (e)(1). Father contends the orders are not supported by substantial evidence. We conclude there was no substantial evidence to support the jurisdictional findings or dispositional orders against father. We therefore reverse and remand for a new dispositional hearing as to father only.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Our discussion is limited to the facts and procedure relevant to the issues raised by father on appeal.
Father and K.S. (mother) have two living children, a son, Carlos (born April 1999) and a daughter, J.D. (born May 2003). Father had sole custody of the children in Arizona for some time prior to 2010, while mother was incarcerated. Father was arrested in late 2010, and mother and father stipulated that mother, who was moving to California, would have sole legal custody of the children after the end of the school year.
Mother is not a party to this appeal.
Another child is deceased under circumstances unrelated to the current case.
In November 2018, the Los Angeles County Department of Children and Family Services (Department) filed a petition under section 300 and detained then 15-year-old J.D. from mother's custody after J.D. had been placed on a 72-hour psychiatric hold and mother tested positive for drugs. The initial petition contained no allegations concerning father. Mother admitted using methamphetamine around twice a week for the last few months. She agreed that the best plan was for J.D. to remain in the family home with Carlos, who by then was 19 years old, while mother moved in with a maternal aunt. J.D. has rickets, a medical condition for which she sees a doctor every three months. J.D. had previously admitted to self-harming behavior (cutting), and she had started weekly in-home counseling for her emotional problems.
On January 15, 2018, a dependency investigator spoke with father, who gave details about mother's past use of drugs and alcohol. He denied knowing anything about J.D.'s mental health issues or her engaging in self-harming behavior. He explained that he had full custody of J.D. and Carlos until 2010, after which he understood that mother and maternal relatives were providing for both children. Paternal grandmother would sometimes send money to mother. Father stated he wrote J.D. letters, but suspected mother did not give the letters to her.
Arizona court records show that father pleaded guilty to charges of "theft-means of transportation" and "burglary tools possession" in June of 2014. According to a printout from the Arizona Department of Corrections, father's 2010 incarceration was likely related to charges of burglary and trafficking in stolen property. It is unclear whether father was charged with a dangerous drug violation in connection with the 2010 or 2014 charges. Father reported that he was incarcerated for driving a stolen vehicle, but denied knowing it was stolen at the time, and that he would be released from prison in September 2021. Father "indicated that he wanted to be able to care for [J.D.], however given his current incarceration, it is not an option for him. The father indicated that his desire is to have the child complete school." J.D. reported she had not been in contact with father, and her last communication with him was a "long time ago."
After the Department contacted father, it filed a first amended petition adding two identical counts under section 300, subdivisions (b) and (g), based on father's incarceration and inability to provide for J.D.
The allegations read: "The child, [J.D.'s] father, Carlos D[.], is currently incarcerated for theft of means of transportation, burglary tools possession and dangerous drug violation and unable to provide the child with the necessities of life including food, clothing shelter and medical treatment. Further, the child's father is unable to make a plan for the child's ongoing care and supervision. Such failure on the part of the child's father endangers the child's physical and emotional well-being and creates a detrimental home environment, placing the child at risk of physical and emotional harm and damage."
On February 7, 2019, the court appointed counsel for father and continued the adjudication to allow both parents time to review the first amended petition. The court ordered the Department to investigate whether the Arizona family court still had jurisdiction over custody matters. In response to a request by father's counsel, the court ordered the Department to inquire and assess whether it was possible to provide funding from the Department to Carlos to assist with setting up calls with father. J.D.'s counsel sought an order directing the Department to refer J.D. for a specialized foster care rate, based on her medical condition and accompanying needs, and to have the Department report on the rate, as well as the current funding Carlos was receiving. The court granted the request.
The Department reported on March 15, 2019, that Carlos was receiving $960 a month for J.D.'s care, and she was being evaluated for additional funding based on her medical needs. The report also attached the Arizona family court case information from August 2006 through December 2010. The court subsequently spoke with a judge in Arizona who explained that in November 2010, father was incarcerated pending trial, and the parents stipulated that the children would stay with paternal grandmother until the end of the school year, and then mother would have sole physical custody of the children in California, with phone calls for father. With respect to the present allegations, the Arizona court declined to exercise jurisdiction, as there were no dependency proceedings pending.
In a last minute information report on April 12, 2019, the Department reported that it had obtained specialized foster care funding approval for J.D., and was working with Carlos to complete the needed paperwork. The new funding amount would be $1301 per month, and Carlos said he needed the additional funding because he had missed a lot of work days to transport J.D. to court hearings. Carlos also stated that the funding helps with J.D.'s ongoing care and household expenses, and that father remained incarcerated and had not made any plans with him for J.D.'s ongoing care and supervision.
Adjudication and disposition hearing
At the adjudication hearing on April 12, 2019, mother entered a no contest plea to amended allegations that J.D. was a dependent child based on mother's use of alcohol and illicit drugs, as well as her failure to obtain timely mental health services for J.D.
After hearing argument on counts b-4 and g-1, pertaining to father, the court sustained those counts, noting that father was incarcerated at the time the petition was filed, he had not made a plan for where J.D. would reside, and father had not offered any plans or support when the case began. The court noted the Department had to step in and place J.D. with Carlos and provide Carlos with funding to care for her. The court denied father's request to strike as unduly prejudicial the allegation describing the offenses that formed the basis for father's arrest.
Father's counsel offered no argument on the Department's recommendation that J.D. be suitably placed. Finding clear and convincing evidence that there would be a substantial danger to J.D. if she were returned to her parents, the court ordered her removed from parental custody and placed under the Department's supervision for suitable placement. The minute order reflected that the "[c]ourt finds by clear and convincing evidence, pursuant to . . . sections 361(a)(1), 361(c), 361 (d) and 362(a), and additionally applying to noncustodial parent(s)/legal guardian(s) the constitutional and statutory safeguards available to custodial parents" that it was reasonable and necessary to remove the child from mother and father.
Father objected to the proposed case plan, which would bypass reunification services under 361.5, subdivision (e). The court found clear and convincing evidence that section 361.5, subdivision (e)(1), applied, and denied reunification services for father, noting that father would remain incarcerated for over two years, which was beyond the statutory time limits for family reunification services.
DISCUSSION
Jurisdictional findings
Father contends that counts b-4 and g-1, the only counts against him, are not supported by substantial evidence. "A parent's incarceration may provide a basis for dependency jurisdiction under section 300, subdivision (g), but only if that parent 'cannot arrange for the care of the child.'" (In re M.R. (2017) 7 Cal.App.5th 886, 896.) "There is no 'Go to jail, lose your child' rule in California." (In re S.D. (2002) 99 Cal.App.4th 1068, 1077.) Dependency jurisdiction under subdivision (b)(1) is warranted when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child." (§ 300, subd. (b)(1); In re R.T. (2017) 3 Cal.5th 622, 625.) Section 300, subdivision (b)(1) "authorizes dependency jurisdiction without a finding that a parent is at fault or blameworthy for her failure or inability to supervise or protect her child." (In re R.T., supra, at pp. 624, 627-633, 636-637 & fn. 6 [disapproving In re Precious D. (2010) 189 Cal.App.4th 1251, and rejecting the reasoning requiring parental neglect for jurisdiction as set forth in In re Rocco M. (1991) 1 Cal.App.4th 814, 820].)
Father acknowledges that this appeal will not deprive the court of jurisdiction over J.D, as he does not challenge the findings concerning mother's drug abuse. (See In Alexis E. (2009) 171 Cal.App.4th 438, 451 [single true finding may support court's assertion of jurisdiction, and reviewing court "need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence"].) The Department contends the appeal thus does not present a justiciable issue and should be dismissed. We decline to do so. An appellate court will generally consider the merits of a parent's appeal of a jurisdictional finding when it "'serves as the basis for dispositional orders that are also challenged on appeal [citation]'" or "'"could have other consequences for [the appellant], beyond jurisdiction" [citation].' [Citations.]" (In re M.W. (2015) 238 Cal.App.4th 1444, 1452.) Here, the contested jurisdictional findings served as a basis for the dispositional order denying father reunification services, which is also challenged on appeal. Accordingly, we address the merits.
Neither subdivision (b) nor subdivision (g) of section 300 "justifies the juvenile court's assumption of jurisdiction over an otherwise well-cared-for child simply because an absent parent has not provided support." (In re Andrew S. (2016) 2 Cal.App.5th 536, 542; see also In re M.R., supra, 7 Cal.App.5th at pp. 896-898 [reversing jurisdictional finding under section 300, subdivision (g) for inadequate evidence that father was unable to arrange for minor's care]; In re Noe F. (2013) 213 Cal.App.4th 358, 369 [mother's incarceration, without more, is insufficient basis for jurisdiction under section 300, subdivision (b)].)
Father argues that because the Department never asked him to arrange for J.D.'s care, it did not carry its burden of proving that she was at risk of any harm. Father emphasizes that the Department has the burden of proof, and because Carlos had agreed to care for J.D. and was doing so, there was no evidence to support the court's jurisdictional findings against him.
According to the record evidence, father had sole custody of J.D. and cared for her and Carlos until 2010. At that time, mother obtained sole custody because father was incarcerated. Father's contact with J.D. was limited, but there is no evidence that he had any reason to know that he needed to arrange for her care or supervision. When the Department started investigating and was preparing to file a dependency petition in November 2018, mother agreed to move out of the family home and leave J.D. in Carlos's custody. The arrangements for J.D.'s care were made before the Department even made any effort to contact father. Until the Department contacted him in January 2019, father understood that both J.D. and Carlos were being properly cared for and supervised by mother and maternal relatives. By the time the dependency investigator spoke to father, J.D. was being cared for by Carlos, who was by then an adult, employed, and willing to care for J.D.
The only evidence in support of dependency jurisdiction is father's own admission that he wanted to be able care for J.D., but that his incarceration precluded that option. However, without any evidence that it was necessary for father to make arrangements for J.D.'s care, or that without father making such arrangements, J.D. was at risk of harm, we find father's statement alone to be inadequate to support jurisdiction under section 300, subdivisions (b) or (g).
The Department argues that the requests for additional funding to be provided to Carlos constituted additional evidence of father's inability to arrange for J.D.'s care. To the contrary, the fact that counsel for father and J.D. asked for additional funding to be provided to Carlos does not establish that father would have been unable to make arrangements for J.D.'s care. Moreover, while Carlos stated that he welcomed additional funding to defray household expenses and facilitate phone calls between J.D. and father, there was no evidence that Carlos was either unwilling or unable to provide suitable care for his younger sister in the absence of the additional funds. The evidence in the record before us does not provide substantial evidence to support the petition allegations against father under section 300, subdivisions (b) or (g). (See, e.g., In re M.R., supra, 7 Cal.App.5th at pp. 896-898 [reversing jurisdictional finding under section 300, subdivision (g), where agency never interviewed father to ask if he could make arrangements for children]; In re Andrew S., supra, 2 Cal.App.5th at p. 542 [jurisdiction under section 300, subdivisions (b) or (g) not justified for "an otherwise well-cared-for child simply because an absent parent has not provided support"].)
Removal order
On appeal, father initially argued that it was error for the juvenile court to remove J.D. from his custody without making a detriment finding under section 361.2, subdivision (a). (See, e.g., In re John M. (2013) 217 Cal.App.4th 410, 419 [incarcerated father argued section 361.2 applied], abrogated on other grounds in In re R.T., supra, 3 Cal.5th 622.) In his reply brief, father acknowledges that he never requested custody pursuant to section 361.2, and alternatively argues that there was insufficient evidence to support the court's removal order under section 361, subdivision (d), which applies to parent with whom a minor is not residing.
Section 361.2, subdivision (a) states, in relevant part: "If a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence that placement with that parent would be detrimental."
Section 361, subdivision (d) states, in relevant part: "A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child did not reside at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child for the parent . . . to live with the child or otherwise exercise the parent's . . . right to physical custody, and there are no reasonable means by which the child's physical and emotional health can be protected without removing the child from the child's parent's . . . physical custody."
The Department argues that father forfeited his right to challenge the removal order, and that any error was harmless.
We review the juvenile court's order removing a child from parental custody for substantial evidence, reviewing the record in the light most favorable to the court's determinations. (In re Anthony Q. (2016) 5 Cal.App.5th 336, 344.) "When the issue on appeal involves the interpretation and proper application of the dependency statutes, however, our review is de novo." (Ibid.) "A removal order is proper if it is based on proof of (1) parental inability to provide proper care for the minor and (2) potential detriment to the minor if he or she remains with the parent." (In re T.W. (2013) 214 Cal.App.4th 1154, 1163 [focus of the statute is on averting harm to the child].) The court has authority to remove custody from one parent when two parents share joint custody. (In re Michael S. (2016) 3 Cal.App.5th 977, 984-986.)
We reject the Department's argument that father forfeited the right to appeal the removal order when he offered no argument on the question of suitable placement. When the court asked father's counsel if he wanted to be heard as to J.D.'s suitable placement, he simply responded, "No, your honor." When a parent accepts the state of the evidence, but does not submit on the Department's recommendation, he preserves the right to challenge it as insufficient to support a particular legal conclusion. (In re Javier G. (2006) 137 Cal.App.4th 453, 463-464.)
For the same reasons we reverse the jurisdictional findings against father, we also conclude that the removal order must be reversed, as it pertains to father only. There is no evidence upon which the juvenile court could conclude that the risk of harm to J.D. was sufficient to warrant removing her from father's custody under section 361, subdivision (d).
Denial of reunification services for father
Father contends the trial court erroneously denied reunification services under section 361.5, subdivision (e)(1), because there was insufficient evidence to support a determination that providing services to father would be detrimental to J.D. The Department counters that this issue was forfeited when father's counsel failed to object to the absence of a detriment finding, and that there is sufficient evidence to support the decision to deny reunification services to father.
We review a juvenile court's denial of reunification services for substantial evidence. (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1121.) In conducting our review, "we do not make credibility determinations or reweigh the evidence. [Citation.] Rather, we 'review the entire record in the light most favorable to the trial court's findings to determine if there is substantial evidence in the record to support those findings.' [Citation.]" (Id. at pp. 1121-1122.) We will imply necessary findings if supported by the record. (In re S.G. (2003) 112 Cal.App.4th 1254, 1260.)
An incarcerated parent is entitled to reunification services unless the court finds, by clear and convincing evidence, that such services would be detrimental to the child. (§ 361.5, subd. (e)(1).) "The focus is on the child, and there must be a finding of detriment before an incarcerated parent may be denied services." (In re Kevin N. (2007) 148 Cal.App.4th 1339, 1344.) When evaluating whether services would be detrimental, "the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child's attitude toward the implementation of family reunification services, the likelihood of the parent's discharge from incarceration . . . within the [relevant time frames], and any other appropriate factors." (§ 361.5, subd. (e)(1).) "Section 361.5 subdivision (e)(1) does not require that each listed factor exist in any particular case, nor does it specify how much weight is to be given to a factor bearing on detriment, listed or not." (Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 18.)
Father's counsel made what could be considered a pro forma objection to the proposed denial of reunification services. The court asked counsel if he wished to be heard on the proposed case plan, and he responded, "Your honor, I will need to object to the bypass of my client under 361.5(e), just for the record; however I would ask that the court adopt the proposed visitation order of telephonic visitation." The court then stated that it found "by clear and convincing evidence that section 361.5(e) does apply and therefore no family reunification services to [father] on that basis." It referenced the fact that father would remain incarcerated for over two years, "which is beyond the time limits [for] family reunification" and so section 361.5(e)(1) applied.
The Department argues the lack of specificity in father's objection deprived the court of the opportunity to correct its error, and that had father objected to the lack of a detriment finding, there was sufficient evidence to support such a finding. (In re E.A. (2012) 209 Cal.App.4th 787, 790.) Father argues that the court's reliance on the length of father's incarceration alone was inadequate to support a finding of detriment. (See, e.g., In re Kevin N., supra, 148 Cal.App.4th at pp. 1344-1345 [error to deny services because length of sentence made reunification impossible, without consideration of detriment].)
At the time of the disposition hearing, J.D. was almost 16 years old. Section 361.5, subdivision (e)(1) describes the services that may be provided to an incarcerated parent as including, but not limited to "[m]aintaining contact between the parent and child through collect telephone calls" and "[r]easonable services to extended family members or foster parents providing care for the child if the services are not detrimental to the child." (§ 361.5, subds. (e)(1)(A) & (D)(i).) On the record before us, we find no evidence to support even an implied finding that providing such services would be detrimental to J.D. Flipping the detriment requirement on its head, the Department argues that denial of services would not harm J.D. because by the time father was released from custody, J.D. would be an adult with the ability to determine her relationship with her father on her own. The Department also argues that providing services to father would only serve to delay permanency for J.D., with no likelihood of success. When a child is younger, a delay in permanency may be relevant to the question of detriment. (See, e.g., In re James C. (2002) 104 Cal.App.4th 470, 485 [affirming denial of services to father of two minors, ages four and six, where father had been convicted of a violent felony against a former girlfriend and would remain in prison past the 12-month maximum reunification period].) Here, however, reunification services would arguably benefit J.D. by giving her the opportunity to resume a relationship with father at a time when mother had been unable to provide her with parental support.
We agree that the court erred in denying reunification services to father without making a finding that such services would be detrimental to J.D. We therefore reverse the order denying father reunification services under section 361.5, subdivision (e)(1) and remand for the juvenile court to make a determination in accordance with this opinion.
DISPOSITION
The court's jurisdictional findings and dispositional orders as to father only are reversed, and the matter is remanded to the juvenile court with directions to hold a new dispositional hearing on father's reunification services. On remand, the court may consider new evidence or changed circumstances that may have occurred during the pendency of this appeal. In all other respects, the jurisdictional and dispositional findings and orders are affirmed.
MOOR, J. We concur:
RUBIN, P. J.
KIM, J.