T.C. v. Superior Court CA4/2 ( 2014 )

Filed 4/8/14 T.C. v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
T.C.,
Petitioner, E060188
v. (Super.Ct.Nos. J242318, J242319
& J245195)
THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY, OPINION
Respondent;
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Cheryl C. Kersey,
Judge. Petition denied.
Valerie Ross for Petitioner.
No appearance for Respondent.
Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for
Real Party in Interest.
1
Petitioner T.C. (mother) filed a petition for extraordinary writ pursuant to
California Rules of Court, rule 8.452, challenging orders entered at a combined hearing
for status review and jurisdiction and disposition on a Welfare and Institutions Code1
section 387 supplemental petition. A juvenile court removed mother’s three children
from her custody and set a section 366.26 hearing. Mother contends there was no clear
and convincing evidence that there would be a substantial danger to the children if left in
her custody. She thus argues that the children should be returned to her care under a plan
of family maintenance. We deny her writ petition.
FACTUAL AND PROCEDURAL BACKGROUND
On January 4, 2012, the San Bernardino County Children and Family Services
(CFS) filed a section 300 petition on behalf of mother’s 16-month-old son and two-year-
old daughter (the children). The petition alleged that the children came within the
provision of section 300, subdivision (b) (failure to protect). The petition alleged that
mother had a substance abuse problem that affected her ability to parent, and that she
placed the children at risk of harm by allowing her boyfriend, C.C., who had an extensive
criminal background, to reside in the home.2
In a detention report, the social worker reported that the children came to CFS’s
attention when C.C. was arrested on a felony warrant for possession of
1 All further statutory references will be to the Welfare and Institutions Code,
unless otherwise noted.
The petition also contained allegations regarding the children’s father (father).
2
However, since he is not a party to this writ, we will not mention those allegations.
2
methamphetamine, and mother was arrested for aiding a wanted felon and child
endangerment. When the police went to the residence, they found that the home had drug
paraphernalia and knives within reach of the children. Mother was eventually released
from police custody, with no charges filed against her.3 The social worker further
reported that mother was four months’ pregnant with C.C.’s child. However, mother told
the social worker she would no longer have contact with C.C. When asked if she used
illegal substances, mother said she quit using methamphetamine three months prior. The
court detained the children in foster care, authorized CFS to assess relatives for
placement, and ordered no contact between the children and C.C.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on January 23, 2012,
recommending that the children be returned to mother’s custody with in-home court
supervision. The social worker reported that mother had no criminal or drug abuse
history, that she moved herself and the children into an apartment, and that she was
actively seeking full-time employment.
At the jurisdiction/disposition hearing, the court ordered mediation to address the
allegations, case plan, and visitation. The jurisdiction/disposition issues were resolved at
mediation with mother signing a waiver of rights. A full agreement was reached between
mother and CFS that the allegation concerning substance abuse would be dismissed, and
that the court would find true the other allegation, amended as follows: “Mother
3 The record does not explain what happened with C.C. after this arrest.
3
demonstrated poor judgment in the choice of her boyfriend which placed the children at
risk due to his criminal behaviors.” As to the disposition, mother and CFS agreed that the
children would return to mother’s custody under a family maintenance plan, and that
mother would participate in counseling and a parenting program. On March 3, 2012, the
court declared the children to be dependents of the court and returned them to mother’s
custody on a plan of family maintenance.
First Section 387 Petition Regarding the Children and Section 300 Petition
Regarding I.C.
On July 20, 2012, the social worker filed a section 387 supplemental petition for a
more restrictive placement. This petition alleged that, on or about July 18, 2012, mother
was arrested and incarcerated on drug and child endangerment charges, leaving the
children with no provisions for support or care. In the detention report, the social worker
reported that both mother and C.C. were arrested when the police, acting on a search
warrant, entered their residence and found drugs within reach of the children. The police
had information that drugs were being used and sold in the residence. Mother admitted
that she used methamphetamine the day of her arrest and that she recently started
allowing C.C. to come to the home. The social worker stated that it appeared C.C. had
moved back in with the family. The social worker reported that he had an extensive
criminal history, which included convictions for carrying a concealed weapon, possession
of a firearm, possession of a controlled substance for sale, driving under the influence,
inflicting corporal injury on a spouse/cohabitant, and willful cruelty to a child. He also
had previous charges for murder, robbery, and burglary, and pending charges for
4
unlawful possession of ammunition, possession of a controlled substance, and false
imprisonment.
On July 20, 2012, the social worker also filed a section 300 petition with regard to
I.C., who was the two-month-old child of mother and C.C. This petition alleged that I.C.
came within the provisions of section 300, subdivisions (b) (failure to protect) and (g) (no
provision for support). The petition alleged that mother had substance abuse problems,
that she placed I.C. at substantial risk of harm by allowing C.C. to reside in the home
knowing his criminal behaviors, and that mother was incarcerated.4
At a detention hearing on July 23, 2012, the court detained all three children in
foster care.
Subsequently, mother pled guilty to possession of a controlled substance (Health
& Saf. Code, § 11377, subd. (a)) and willful cruelty to a child (Pen. Code, § 273a,
subd. (b)). The trial court placed her on formal probation until July 23, 2016, under
certain conditions.
At a further detention hearing on July 25, 2012, mother denied the allegations in
the section 387 petition. The court found that the children came within section 387 and
that detention out of the home was necessary.
Jurisdiction/disposition
The social worker filed a jurisdiction/disposition report regarding all three children
on August 10, 2012. The social worker reported on July 18, 2012, when the police
4 This petition also contained allegations concerning C.C. Since he is not a party
to this writ, we will not mention those allegations.
5
entered mother’s home, mother and the three children were in the master bedroom, and
there were drugs on the counter within the children’s reach. The police also found
methamphetamine pipes throughout the home, marijuana in the backyard next to the
children’s toys, and syringes. The social worker opined that the three children remained
at risk due to mother’s continued drug usage, and she believed they may have suffered, or
could suffer, abuse and/or neglect.
On October 3, 2012, mother signed a waiver of rights and pled no contest to the
allegations in the petitions. As to the two older children, the matter was set contested by
their father, and the hearing was continued. As to I.C., the court found true the
allegations in the section 300 petition and found that she came within section 300,
subdivisions (b) and (g). The court declared I.C. a dependent of the court and maintained
her in foster care.
At a contested jurisdiction/disposition hearing on November 13, 2012, the court
found that the two older children came within section 387 and that the previous
disposition had not been effective in protecting them. The court continued them as
dependents and removed them from mother’s custody. The court ordered mother to
participate in reunification services with regard to both dependency cases.
Twelve-month and Six-month Status Reviews
On February 28, 2013, the court held a 12-month status review with regard to the
two older children. The court found that mother had made progress in her case plan and
ordered her to continue with her services. The court authorized unsupervised visitation
6
and weekend visits. At the six-month status review hearing regarding I.C., the court
made the same orders.
Eighteen-month Status Review Regarding the Older Children
The social worker filed an 18-month status review report regarding the two older
children and recommended that they be returned to mother’s custody under a plan of
family maintenance. Mother had completed her court-ordered programs and had clean
drug tests. The social worker believed the children were not at substantial risk of being
abused or neglected; however, there was concern that mother was still unstable in her
living situation.
On June 27, 2013, the court held a hearing and found that mother’s progress had
been substantial, but conditions that justified the initial assumption of jurisdiction still
existed. The court continued the children as dependents, returned them to mother’s
custody, and ordered mother to participate in family maintenance services.
Second Section 387 Petition for the Two Older Children and 12-month Status
Review for I.C.
The social worker filed a second section 387 petition on September 30, 2013,
alleging that, despite receiving months of reunification services and family maintenance
services, mother had not alleviated the cause of the removal of her children and had not
made substantive progress in her case plan. The social worker filed a detention report
and recommended that the children be removed from mother’s custody and detained in
CFS’s custody again. The social worker reported that mother missed several random
drug tests. Furthermore, after the children were returned to her custody in June 2013, she
7
moved several times without keeping the social worker informed. When the social
worker went to contact her and the children on July 23, 2013, the house was empty and
the landlord said the family had moved. According to I.C.’s paternal grandmother, C.C.
had been released from custody about one week prior and was living with her. She said
that mother was “kinda sorta” living with them, as well. However, when the social
worker was able to make contact with mother, she said that she lived with her father.
On August 8, 2013, the social worker met with mother and C.C. C.C. wanted to
know what he needed to do to see his daughter, I.C. C.C. was told he could have visits
supervised by CFS or its delegates, and that his mother was also authorized to supervise
his visits. After that meeting, mother and C.C. showed up for visits with I.C. two
weekends in a row without the paternal grandmother. I.C.’s caretaker was informed that
they would only be visiting every other weekend, since the family (mother, C.C., and the
two older children) had moved to Las Vegas. The social worker later received a
voicemail from mother with a land line phone number in Las Vegas. Mother
subsequently left a voicemail for the social worker stating that she was “checking in” and
wanted to know when her case could be transferred to Las Vegas. She provided the
social worker with their address in Las Vegas.
On September 19, 2013, the social worker went to I.C.’s paternal grandmother’s
home. Mother and C.C. arrived at the home and told the social worker they were only
visiting I.C. every other weekend. Mother asked if I.C. could go to Las Vegas for the
weekend if the paternal grandmother was there to supervise. The social worker told her
that she was not to take I.C. out of the state, and that the two older children could not be
8
living in another state with an open dependency case. Also, the social worker asked
mother if she had taken the children to the doctor to have their eyes checked, since
something was noticeably wrong with them. Mother said that she had, and that the
doctor said nothing was wrong with her son’s eye, and her daughter’s eye just needed a
patch. The social worker asked mother to provide medical documentation, but mother
did not do so.
On September 25, 2013, the social worker spoke with mother and told her to bring
the children into the probation office the next morning for her to see them. Mother
appeared the next morning without the children. She said they were with her aunt in
Indio. Mother then admitted to her probation officer that she had used drugs the day
before. Mother was arrested for a probation violation.
The social worker opined that the safety of the children was at risk due to mother’s
continued chaotic living situation, her taking of them to live in another state without
permission, her failure to follow up with medical care for their eyes, and her return to her
abusive boyfriend, C.C. The social worker was concerned about the type of environment
the children were being exposed to, and the care they were receiving.
On October 1, 2013, the court once again detained the children in foster care. The
court found that they came within section 387 and that the previous disposition of
maintaining them in mother’s custody had not been effective.
9
Jurisdiction/disposition on the Second Section 387 Petition and 12-month Review
for I.C.
The social worker filed another jurisdiction/disposition report regarding the two
older children on October 22, 2013. The social worker reported that mother had not
completed her family maintenance services. The social worker asserted that mother had
failed to gain the skills necessary to remain sober and free of drugs. Mother was aware
that C.C. had a drug problem, which included using and selling, yet she became involved
in that relationship again. The social worker recommended that the court set a section
366.26 hearing and consider terminating parental rights.
The social worker also filed a 12-month status review report regarding I.C. and
recommended that a section 366.26 hearing be set to establish a plan of adoption.
After various continuances, the court held a combined hearing for the 12-month
status review and jurisdiction/disposition on the section 387 supplemental petition. At
the hearing, mother testified that she went to Las Vegas on September 21, 2013, to visit
C.C., and she took her two older children with her. She said she got permission from the
social worker to take them there. She also said the social worker was “on board” with her
plan to reconcile with C.C. and eventually move to Las Vegas. Mother admitted that she
violated her probation by going to Las Vegas. She realized that she was in violation and
wanted to report herself to her probation officer. Prior to going to her probation officer,
she took the children to her aunt’s house in Indio, with the plan that the aunt would keep
them if she was taken into custody. She said that her aunt had already been approved for
placement by CFS. Mother was subsequently taken into custody. Mother further
10
testified that, at the time of the hearing, she was still on probation, on house arrest. She
also testified that, as part of her case plan, she completed drug counseling/outpatient
program, and she never relapsed after that.
The social worker testified that mother was already living in Las Vegas, although
she said she was only going there to visit. Mother was also asked to drug test numerous
times and failed to appear. The social worker testified that mother admitted to relapsing
into drug use in September 2013. She opined that there would be no benefit in
continuing services for mother because of her chronic drug use, her constant moving, and
the instability in her housing situation. The social worker also noted that mother violated
her probation by going to another state. The social worker explained that she did attempt
to work with mother and C.C., since they said they wanted to get back together. She met
with them and the paternal grandmother to come up with a plan for them to drug test and
begin some counseling. The paternal grandmother was authorized to supervise their
visits with I.C.; however, mother and C.C. started showing up for visits without her.
Thus, CFS ended up filing the section 387 petition regarding the older children.
After hearing all the testimonies, the court noted that it did not find “mother’s
testimony by any standard to be credible.” The court found true the allegation in the
section 387 petition that mother had not alleviated the cause of the removal of the older
children and had not made substantive progress in her case plan. The court further found
that the previous disposition had not been effective and that there would be a substantial
danger to the health and safety of the children if they were returned to mother’s custody.
The court concluded that it was in the best interests of the two older children to consider
11
termination of parental rights at a section 366.26 hearing. As to I.C, the court found that
there was no substantial probability for I.C. to be returned to mother’s custody and that it
was also in her best interests to consider termination of parental rights. The court set a
section 366.26 hearing for April 3, 2014.
ANALYSIS
The Court Properly Sustained the Section 387 Petition and Removed the Two Older
Children From Mother’s Custody
Mother argues that removal of the two older children from her custody was not
warranted since she had made arrangements for their care during her “short
incarceration,” and she was out of custody by the time of the section 387 hearing. She
also contends there was no clear and convincing evidence that there was a substantial
danger to the children if returned to her custody. Thus, mother essentially claims that the
court improperly removed the children from her custody, pursuant to the section 387
petition. We disagree.5
We note that, although mother names I.C. as one of the subjects of the writ
petition, she fails to raise any issues regarding I.C. Thus, any references to “the children”
will refer to the two older children only.
A. Applicable Law
Section 387, subdivision (a), states: “An order changing or modifying a previous
order by removing a child from the physical custody of a parent . . . and directing
5The first issue mother actually raises in her writ is that she is entitled to writ
review. However, such issue is conceded. Thus, no discussion is needed.
12
placement in a foster home . . . shall be made only after noticed hearing upon a
supplemental petition.” The substantive requirements of the section 387 petition are set
out in subdivision (b) of section 387: “The supplemental petition shall be filed by the
social worker in the original matter and shall contain a concise statement of facts
sufficient to support the conclusion that the previous disposition has not been effective in
the rehabilitation or protection of the child . . . .” (See also In re Joel H. (1993) 19
Cal.App.4th 1185, 1199 (Joel H.).) In other words, CFS “‘has the burden to show by a
preponderance of the evidence that the factual allegations alleged in the petition are true.
If the court finds the factual allegations are true, then the court determines whether the
previous disposition is no longer effective in protecting the child . . . .’ [Citation.]” (In
re A.O. (2010) 185 Cal.App.4th 103, 109-110 (A.O.).)
Section 387 does not require the same jurisdictional findings demanded under
section 300, which authorizes the juvenile court’s initial jurisdiction over the child.
“‘The ultimate “jurisdictional fact” necessary to modify a previous placement with a
parent or relative is that the previous disposition has not been effective in the protection
of the minor.’ [Citation.]” (A.O., supra, 185 Cal.App.4th at p. 110.) The juvenile court
need not find that there has been physical or emotional abuse. (Joel H., supra, 19
Cal.App.4th at p. 1200.) Rather, the goal “is to protect the child from some perceived
danger or actual harm.” (Id. at p. 1201.)
“We review an order sustaining a section 387 petition for substantial evidence.
[Citation.]” (A.O., supra, 185 Cal.App.4th at p. 109.) We will therefore affirm the
jurisdictional findings if examination of the record, reviewed as a whole and in the light
13
most favorable to the order, discloses evidence that is “reasonable, credible and of solid
value,” which would allow a reasonable trier of fact to make the pertinent findings.
(Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078.)
B. There Was Substantial Evidence to Support the Removal Order
The second section 387 petition alleged that, despite receiving family maintenance
services and reunification services, mother had not alleviated the cause of the removal
and had not made substantive progress in her case plan. There was substantial evidence
to support these allegations, as well as the conclusion that the previous order placing the
children with mother was no longer effective for their protection. The children were
initially declared dependents when the court found true the allegation that mother
demonstrated poor judgment in the choice of her boyfriend, C.C., and thereby placed the
children at risk, in light of his criminal behaviors. His extensive criminal history
included convictions for carrying a concealed weapon, possession of a firearm,
possession of a controlled substance for sale, driving under the influence, inflicting
corporal injury on a spouse/cohabitant, and willful cruelty to a child. The court allowed
the children to stay in mother’s custody under a family maintenance plan, which included
participation in counseling and a parenting program. However, the court subsequently
removed the children from her custody, pursuant to the first section 387 petition, after
mother was convicted of possession of a controlled substance (Health & Saf. Code,
§ 11377, subd. (a)) and willful cruelty to a child (Pen. Code, § 273a, subd. (b)) and
placed on probation. At that time, the court ordered mother to participate in reunification
services.
14
After mother had made progress in her case plan, the court returned the children to
her custody on a family maintenance plan, once again.
The court thereafter removed the children from mother’s custody a second time,
pursuant to the current section 387 petition. The evidence showed that mother did not
complete her family maintenance services, and she relapsed and used methamphetamine.
The evidence also showed that mother had moved several times without keeping the
social worker informed, and she most recently moved to Las Vegas. Although mother
testified at the hearing that she was living in Apple Valley, the evidence showed that she
had left the social worker a voicemail from Las Vegas, gave a Las Vegas address, and
asked that her case be transferred to Las Vegas. Furthermore, the evidence showed that
the week after C.C. was released from custody, mother was living with him. She also
took the children to live in Las Vegas with him, despite the social worker telling her they
could not live in another state with an open dependency case. Thus, mother violated her
probation and disregarded the social worker’s warnings. In sum, despite all the services
she had received, mother relapsed in her drug use, and she continued to demonstrate poor
judgment by reconciling with C.C. and bringing the children to live with him in Las
Vegas. In other words, the children were back in the same situation that prompted CFS
to initiate the dependency in the first place. Clearly, the court’s previous decision to
return the children to mother’s custody had not been effective in protecting the children.
Thus, the court properly removed them from mother’s custody, pursuant to the second
section 387 petition.
15
Mother contends that the standard for removal of a child from parental custody on
a section 387 petition is the same as for removal on an original petition under section
300—that is, there must be clear and convincing evidence that there was a substantial
danger to the children if returned to her custody. (§ 361, subd. (c)(1).) She then asserts
that there was no such evidence. Contrary to her claim, “section 387 does not expressly
require application of section 361, subdivision (c)(1).” (A.O., supra, 185 Cal.App.4th at
p. 111, italics added.) In any event, the court here made a determination under section
361, subdivision (c)(1), when the children were initially removed from mother’s custody,
at the jurisdiction/disposition hearing on November 13, 2012. Furthermore, at the
jurisdiction/disposition hearing on the second section 387 petition, the court explicitly
found that clear and convincing evidence showed that the children should be removed
from mother’s custody, and that there would be a substantial danger to their health and
safety if returned to her custody. As discussed ante, substantial evidence supported these
findings.
Mother also claims that the social worker’s complaints about her reconciling with
C.C. and moving the children to Las Vegas to live with them were “disingenuous” since
the social worker met with her, C.C., and the children to work out a plan for the family.
At the hearing, the social worker explained that she did attempt to work with mother and
C.C.; however, when they did not comply with the provision that visits be supervised, the
social worker decided to file the section 387 petition.
Finally, mother points out that when she anticipated being taken into custody for
violating her probation, right before the section 387 petition was filed, she dropped the
16
children off with her aunt, who had been approved for placement. Mother asserts that
“there was no mention in the report or at the hearing that [she] lacked authority to place
the children with anyone else while [she] was in custody.” However, the court had not
previously ordered the children placed with mother’s aunt. Additionally, mother was
only granted temporary physical custody over the children in June 2013, and she had no
authority to make decisions regarding their placement. (A.O., supra, 185 Cal.App.4th at
p. 111.) In any event, whether or not mother was able to arrange for the care of the
children upon her arrest was irrelevant to the proceedings on the section 387 petition.
(Ibid.)
DISPOSITION
The writ petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
17