In re A. R. CA4/2 ( 2014 )

Filed 4/8/14 In re A. R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
In re A.R., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E058645
Plaintiff and Respondent, (Super.Ct.No. J247974)
v. OPINION
D.R.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,
Judge. Affirmed.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jean-Rene Basle, County Counsel, and Adam E. Ebright, Deputy County Counsel,
for Plaintiff and Respondent.
1
Appellant D.R. (mother) contends that there was insufficient evidence to support
the court’s jurisdictional findings concerning her daughter, A.R. (the child). She also
argues that the court erred in removing the child from her custody, and that the court’s
visitation order was improper. We disagree and affirm.
PROCEDURAL BACKGROUND
On February 6, 2013, the San Bernardino County Children and Family Services
(CFS) filed a Welfare and Institutions Code1 section 300 petition on behalf of the child,
who was 14 years old at the time. The petition alleged that the child came within the
provisions of section 300, subdivisions (b) (failure to protect) and (g) (no provision for
support). The petition alleged that mother left the child alone and unattended for three
days and two nights, and left her without any prior arrangements for care and supervision.
It also alleged that mother failed to provide adequate shelter and safety for the child, in
that the home was extremely cluttered and had sanitation concerns. The petition also
alleged that mother had a history of prescription drug abuse and ongoing mental health
problems. In addition, the petition alleged that the child’s father (father)2 currently
resided in Nebraska and was therefore unable to provide care and supervision for the
child.
1
All further statutory references will be to the Welfare and Institutions Code,
unless otherwise noted.
2 Father is not a party to this appeal.
2
Detention
The social worker filed a detention report which stated that, on February 4, 2013,
he received a referral for general neglect and caretaker absence regarding the child. The
child had come to school that day wearing flip flops, which was against the school dress
policy. There was no one to contact to bring her proper shoes, so she spent the day in
detention. When the social worker arrived at the school to interview her, the child had
left for the day. The social worker and a deputy went to the child’s residence, and the
child stepped outside to be interviewed. The child stated that mother and her boyfriend
went to Fresno on February 2, 2013, and that she had not been able to maintain contact
with mother, except for a few text messages through mother’s boyfriend’s phone. The
child said she had no knowledge of when mother would be returning. She further
reported that mother did not arrange for care or supervision. The child said that mother
left her alone approximately once a week, and that she would be gone for “hours, days,
and nights at a time, with no prearranged care and supervision.” During mother’s
absences, the child was not able to get in contact with mother. The child was left to take
care of mother’s six dogs in the home. The child said she missed 21 days school due to
mother’s absences, as well as her own medical condition of “degenerative . . . spinal
disks [sic].”
The deputy requested to check the condition of the home. When the social worker
and the deputy entered the home, they immediately noticed a foul odor of urine and feces.
There were dark spots on the carpet, which were reportedly the residue from tar traps
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used to deal with rodent infestations years ago. The kitchen was cluttered with dirty
dishes and utensils.
The social worker called the child’s father in Nebraska and found out that he had
joint legal custody, and his divorce was still pending. Father expressed concern that
mother would leave the child unattended for days and nights frequently. He said he
wanted to take care of the child and was able to, but the child custody order was
preventing him from doing so. He “believe[d] he had 5 or 15% custody.” The child said
she wanted to be reunited with father.
One of the child’s neighbors saw the police car and came over to see how the child
was doing. The neighbor said he was greatly concerned for the child, since she had to do
her own shopping and cooking, and make her own arrangements, since mother was
“always gone.” The neighbor said that the child’s older brother previously lived in the
home and took care of the child. However, once he turned the age of majority, he could
not wait to move out.
Mother pulled into the driveway during the interview. She raised her voice at the
child and asked the child what she had reported. Mother denied a history of leaving the
child alone at night, and stated that the child’s older brother was in the house when she
was gone. Mother stated that the child was almost 15 years old, knew her neighbors, and
knew how to call 911 in case of an emergency. The child pulled the social worker aside
and stated that she could not be left with mother, as “[mother] will go off on [her.]”
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The social worker and deputy left to get a warrant to take the child into protective
custody. When they returned, the child was sitting on the curb side. She said she was
waiting for their arrival so that she could be rescued from mother’s care.
A juvenile court held a detention hearing on February 7, 2013. Mother was
present, and father appeared telephonically. The court detained the child in foster care.
The court also authorized the social worker to assess relatives and father’s home for
possible placement. The child’s counsel confirmed that the child wanted to go and live
with father as soon as possible. The court noted that mother was claiming to have Indian
ancestry and ordered her to complete the Indian Child Welfare Act (ICWA) form. CFS
subsequently received a confirmation letter from the Cherokee Nation that the child was
an enrolled member.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on February 25, 2013,
recommending that the court sustain the petition and provide reunification services. The
social worker reportedly spoke with mother on February 13, 2013, and mother admitted
she left the child home alone for the weekend of February 2, 2013. She stated that she
had a long-standing agreement that her friend, Dolly, would be the “go-to person” for the
child, in case of an emergency in her absence. However, she admitted that Dolly did not
like to deal with the child because of the child’s disregard for authority. Mother
eventually agreed that it was not a good decision for her to leave the child home alone for
the extended period of time. The social worker noted that this was not the first time
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mother left the child home alone and expected her to care for herself. The child stated
that she did not want to return to mother’s home because she felt that she was a burden to
her mother, and that she interfered with her mother’s life with her boyfriend. Both
mother and the child denied that there was any concern about mother’s misuse of
prescription medication. Mother also denied having any mental health issues.
The social worker contacted father again, and he said he had been out of the home
for the past two years. He and mother were married prior to the child’s birth, and he was
listed on the child’s birth certificate. He said he would be able to adequately provide for
his daughter.
At a hearing on February 28, 2013, mother’s counsel informed the court that the
child was refusing to return home to mother. The court ordered CFS to assess father’s
home in Nebraska.
In an addendum report filed on March 28, 2013, the social worker recommended
that the court find true all of the allegations in the petition, except for the allegations
regarding mother’s mental health history and prescription drug abuse. The social worker
further recommended that the court issue a custody order for father, the noncustodial
parent, and dismiss the dependency. The social worker visited father’s home in Nebraska
and assessed it as being an appropriate placement. Father was a private music teacher,
and he was being retrained to become a certified nursing assistant. He had family support
in Nebraska, with several relatives who lived nearby. He said his mother could care for
the child, if he had to work late.
6
At a hearing on April 3, 2013, a representative from the Cherokee Nation
confirmed that if the court granted custody to father and dismissed the case, then no
ICWA expert would be needed. The court asked if the social worker assessed father’s
home, and the social worker confirmed that he assessed the home, and it was “very
appropriate.” The court authorized the child to have an extended visit in Nebraska to be
with father.
On April 30, 2013, the court held a jurisdiction/disposition hearing. County
counsel reported that the child was currently with father, and that CFS was
recommending that the court take jurisdiction, dismiss the dependency, and grant custody
to father. A tribal representative from the Cherokee Nation was telephonically present
and stated that there were no objections to granting father custody and dismissing the
case. Mother’s counsel objected to the allegation that mother failed to provide adequate
shelter and safety for the child, arguing that mother told the social worker she “left plenty
of provisions for the child when she left town for that weekend.” The child’s counsel
submitted on the recommendation, noting that the child had been adamant about wanting
to be with father, and that the child was happy being with him now. The court found true
the allegations that mother left the child for three days and two nights without prior
arrangements for care/supervision, and that mother failed to provide adequate shelter and
safety for the child. The court thus found that the child came within the provisions of
section 300. It also found that father was the presumed father, that he was the
noncustodial parent, and that he was willing and able to assume custody of the child. The
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court then removed the child from mother’s custody, placed the child with father, ordered
the family law order to be filed, and dismissed the dependency case. As to visitation
between mother and the child, the court ordered weekly phone calls, three weeks of visits
each summer, and alternate visits for Thanksgiving and Christmas each year. The court
noted that the child was “not to be forced” to visit.
ANALYSIS
I. There Was Sufficient Evidence to Support the Court’s Jurisdiction of the Child
Mother argues that there was insufficient evidence to support the jurisdictional
findings concerning the child. She contends that there was no substantial evidence to
show that leaving the child home alone over the weekend violated any laws or resulted in
any serious physical harm to the child, or that “a couple of dirty dishes and the mess
created by [the child’s] refusal to clean up after herself and do her chores was mother’s
fault[,] or that the home’s condition rose to the level of a filthy home to warrant the
court’s intervention.” Mother further claims that her “single act of inappropriate
supervision” was insufficient to warrant the assumption of jurisdiction. We conclude that
the court properly took jurisdiction of the child.
“The standard of review in juvenile dependency cases is the same as in other
appeals on grounds of insufficiency of the evidence. We review the record to determine
whether there is any substantial evidence, contradicted or not, which supports the court’s
conclusions. ‘All conflicts must be resolved in favor of the respondent and all legitimate
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inferences indulged in to uphold the verdict, if possible.’ [Citation.]” (In re Kristin H.
(1996) 46 Cal.App.4th 1635, 1649.)
We initially note that “[w]hen a dependency petition alleges multiple grounds for
its assertion that a minor comes within the dependency court’s jurisdiction, a reviewing
court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of
the statutory bases for jurisdiction that are enumerated in the petition is supported by
substantial evidence. In such a case, the reviewing court need not consider whether any
or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.
[Citations.]” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) In other words, “‘the
juvenile court’s jurisdiction may rest on a single ground.’ [Citation.]” (In re
Christopher C. (2010) 182 Cal.App.4th 73, 83.)
Section 300, subdivision (b), provides that the juvenile court may adjudge a child
a dependent of the juvenile court when the child has suffered, or there is a substantial risk
that the child will suffer, serious 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, or the willful or
negligent failure of the child’s parent or guardian to adequately supervise or protect the
child from the conduct of the custodian with whom the child has been left, or by the
willful or negligent failure of the parent or guardian to provide the child with adequate
food, clothing, shelter, or medical treatment . . . .”
Here, the petition alleged that mother failed to provide adequate shelter for the
child, in that the home was extremely cluttered, and there were sanitation concerns. The
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evidence clearly supported this allegation. When the social worker visited the home, he
immediately noticed a foul smell of urine and feces. There were three dog cages by the
kitchen with pads underneath them to collect the dogs’ urine and feces. He observed the
kitchen to be cluttered with dirty dishes and utensils. The carpet had black stains that
were the residue of tar traps used to control rodents. The neighbor told the social worker
that he was greatly concerned for the child and that the conditions of the home were not
suitable for her.
The petition also alleged that, on or about February 2, 2013, mother left the child
alone for three days and two nights, leaving her without any prior arrangements for care
and supervision. Mother admits that she left the child alone for the weekend, but asserts
that she had “a standing agreement” with her friend, Dolly, to be the child’s “go-to
person.” She also contends that her “single act of inappropriate supervision” was
insufficient to warrant the court taking jurisdiction over the child. However, on February
4, 2013, the child spent the entire day in detention at school because there was no one
available to contact for help. If there was a “standing agreement” with Dolly, the child
apparently did not know about it. Moreover, the child was afraid of Dolly, and mother
knew that Dolly did not like to deal with the child. We also note that the child did not
know when mother planned on returning home on the weekend at issue.
Furthermore, the evidence showed that, rather than being “a single act” of neglect,
mother frequently left the child alone. The child reported that mother was often gone for
“hours, days, and nights at a time, with no prearranged care and supervision.” She said
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that mother was absent approximately once a week. During mother’s absences, the child
was not able to get in contact with her. The neighbor similarly reported that mother was
always gone and left the child to do her own shopping and cooking. Father also
expressed concern that mother would frequently leave the child unattended for days and
nights.
We conclude that there was substantial evidence that the child was at risk of harm
by mother’s failure to provide a clean, safe home, or proper care and supervision for the
child. Thus, the evidence supported the court’s jurisdictional findings.
II. The Court Properly Granted Father Custody of the Child and Terminated its
Jurisdiction
Mother argues that the court’s disposition order must be reversed because the
court failed to make the requisite findings under section 361, and the order was not
supported by sufficient evidence. We disagree.
Section 361, subdivision (c)(1), provides in relevant part: “A dependent child may
not be taken from the physical custody of his or her parents . . . with whom the child
resides at the time the petition was initiated, unless the juvenile court finds clear and
convincing evidence . . . [¶] . . . [t]here 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.”
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“‘A removal order is proper if it is based on proof of parental inability to provide
proper care for the minor and proof of a potential detriment to the minor if he or she
remains with the parent. [Citation.] The parent need not be dangerous and the minor
need not have been actually harmed before removal is appropriate. The focus of the
statute is on averting harm to the child. [Citation.]’ [Citations.] . . . We review an order
removing a child from parental custody for substantial evidence in a light most
favorable to the juvenile court findings. [Citations.]” (In re Miguel C. (2011) 198
Cal.App.4th 965, 969.)
Section 361.2, subdivision (a), “establishes the procedures a court must follow for
placing a dependent child following removal from the custodial parent pursuant to section
361. [Citation.] Subdivision (a) of section 361.2 provides that when a court orders
removal of a minor under section 361, the court ‘shall first determine’ whether there is a
parent who wants to assume custody who was not residing with the minor at the time the
events that brought the minor within the provisions of section 300 occurred. [Citation.]
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 minor.’ [Citation.]” (In
re Marquis D. (1995) 38 Cal.App.4th 1813, 1820, fn. omitted.) If the court places the
child with that parent, it may order that the parent become legal and physical custodian of
the child and terminate jurisdiction. (§ 361.2, subd. (b)(1).)
Here, the record demonstrates that the court made the appropriate findings under
section 361, and that the court’s removal order was supported by substantial evidence. At
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the April 30, 2013 jurisdiction/disposition hearing, the court expressly stated that there
was “a substantial danger to the child’s physical health and her emotional well-being,”
and that there were “no reasonable means by which the child [could] be protected without
removing [her] from the mother’s custody.” The court further found that “[r]easonable
efforts were made to prevent or eliminate the need for removal.” (§ 361, subds. (c)(1) &
(d).)
Furthermore, there was sufficient evidence to support the dispositional order. The
home where the child was living was unsanitary, as previously discussed. (See ante, § I.)
Mother asserts that she gave away three of her dogs, and thereby eliminated the sanitation
concerns and clutter from her home. However, the child reported that mother had six
dogs. Furthermore, removing half of the dogs did not address the risk of leaving the child
to take care of herself for long periods of time, including overnight. The record showed
that mother left the child alone approximately once a week, with no prearranged care or
supervision. The child had no ability to contact mother either. Moreover, the child had a
medical condition of “degenerative . . . spinal disks [sic].” Thus, the record supported the
court’s finding that there was a substantial danger to the child’s physical health and well-
being in mother’s home.
We further note that the child did not want to stay in mother’s care, but wanted to
be with her father. At the time of the jurisdiction/disposition hearing, the child had been
staying with father temporarily, and she was happy and doing well in his care. Father
requested custody of the child. The social worker reported that father had steady
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employment and stable housing. Father’s home was found to be suitable for placement
of the child. Father had a lot of family support to help him take care of the child.
All of this evidence amply supported the court’s decision to remove the child from
mother’s custody, place the child with father, and terminate jurisdiction. (§§ 361,
subd. (c)(1), 361.2, subds. (a) & (b)(1).)
III. The Juvenile Court Did Not Impermissibly Delegate the Authority to Determine
Visitation to the Child
Mother argues that the court impermissibly delegated authority to decide whether
any visitation would occur by stating that the child was not to be forced to visit.
Accordingly, she contends that the visitation order was an abuse of discretion and asserts
that this court must reverse the order to ensure that some visitation occurs. We decline to
reverse the order.
Mother relies on such cases as In re Hunter S. (2006) 142 Cal.App.4th 1497(Hunter S.) and In re Julie M. (1999) 69 Cal.App.4th 41 (Julie M.) to support her
assertion that a juvenile court may not delegate to a third party the discretion to determine
whether visitation will occur. We note that these cases involved visitation orders made
by the court in dependency cases where visitation was critical to facilitating reunification.
(Hunter S., at pp. 1504-1505; Julie M., at pp. 43, 49.) We recognize that a juvenile court
orders visitation in order to maintain ties between a parent and child, and “to provide
information relevant to deciding if, and when, to return a child to the custody of his or her
parent.” (§ 362.1, subd. (a).) However, the instant case is procedurally distinguishable,
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in that the court here ordered the removal of the child from mother’s custody, placed the
child with father, and terminated its jurisdiction over the child. (§ 361.2.)
In any event, the visitation order here does not represent an improper delegation of
judicial power. First, the court did not grant the child complete and total discretion to
determine whether or not visitation would occur. The court ordered weekly phone calls,
including by means of Skype or video conference calls. Second, there was no delegation
of judicial power to the child, even though the court stated that the child was “not to be
forced.” In the context of the court’s order, the statement meant that the child should not
be forced to visit with mother against her will, but it did not suggest that the child was
authorized to “do more than express [her] desires in this regard.” (In re Danielle W.
(1989) 207 Cal.App.3d 1227, 1237.)
Furthermore, we note that mother’s position ignores the appropriate concern of the
juvenile court, which was the possibility of adverse psychological consequences of an
unwanted visit between mother and child. There was substantial evidence in the record
that the child felt neglected, unloved, and even afraid of mother. Thus, it was reasonable
for the court to believe that forced contact would not be beneficial to the child. (See In re
Danielle W., supra, 207 Cal.App.3d at p. 1238.) In considering the interests of the child,
the court did, in fact, order visitation under the one condition that the in-person visits
would be when the child desired such contact. The court’s order “does not constitute
punishment of the parent but rather protection of the minor’s psychological well-being.”
(Id. at p. 1239.)
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We additionally note that when a juvenile court terminates its jurisdiction over a
dependent child and enters visitation orders that are transferred to an existing family
court file, the parties thereafter may seek the assistance of the superior court to enforce or
modify the order. (In re Hirenia C. (1993) 18 Cal.App.4th 504, 518.) Thus, if visitation
does not occur with the child to mother’s satisfaction, mother may seek to modify the
order through the family law court.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
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