J.M. v. Super. Ct. CA6 ( 2014 )

Filed 9/11/14 J.M. v. Super. Ct. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
J.M. et al., H041083
(Santa Cruz County
Petitioners, Super. Ct. No. DP002844)
v.
THE SUPERIOR COURT OF SANTA
CRUZ COUNTY,
Respondent,
SANTA CRUZ COUNTY HUMAN
SERVICES DEPARTMENT,
Real Party in Interest.
I. INTRODUCTION
J.M. is the mother of M.M., the child at issue in this juvenile dependency case.
The mother has filed a petition for extraordinary writ seeking review of the juvenile
court’s order terminating reunification services and setting a Welfare and Institutions
Code section 366.261 permanency planning hearing. The mother has also filed a number
of supplemental writ petitions. In her writ petitions, the mother contends the juvenile
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
court erred by asserting jurisdiction over the child, by bypassing reunification services,
and by committing a variety of procedural errors.
L.M., the maternal grandmother of the child, has also filed a petition for
extraordinary writ and several supplemental writ petitions.2 She repeats many of the
claims of error asserted by the mother, and she contends that the juvenile court erred by
denying her section 388 petitions and her request for de facto parent status.
For reasons that we will explain, we will deny the mother’s and maternal
grandmother’s writ petitions. The mother has also filed a petition for writ of habeas
corpus, which we ordered considered with her petition for extraordinary writ. We have
disposed of the mother’s habeas petition by separate order issued this day.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Section 300 Petition
On January 16, 2014, the Santa Cruz County Human Services Department (the
Department) filed a petition under section 300, subdivisions (b) [failure to protect] and
(g) [no provision for support], alleging that the child came within the jurisdiction of the
juvenile court.3 The child was less than one month old at the time. The petition alleged
the following facts.
The mother had been incarcerated in Monterey County jail since she was two
weeks pregnant, and she remained in jail. The mother was incarcerated due to “felony
DUI charges and her involvement in an accident in 2011 in which she crashed into [a]
motorcyclist causing the victim great bodily injury.” The mother anticipated being
2
After requesting and receiving an extension of time from this court, the maternal
grandmother submitted her initial writ petition one day late. In the exercise of its
discretion, this court will permit her initial writ petition and her subsequent writ petitions
to be filed.
3
A first amended section 300 petition was filed on February 11, 2014.
2
sentenced to a one and a half year prison term, which she would serve at Chowchilla
State Prison, where she hoped to participate in a program allowing infants to remain with
their mothers. The mother had a history of substance abuse and multiple arrests for
“substance-related charges.”
The mother had entrusted the maternal grandmother to care for the child while the
mother was incarcerated, but on January 14, 2014, the maternal grandmother had turned
herself in to the Santa Cruz County jail. The maternal grandmother had an outstanding
warrant for possession of stolen property. The maternal grandmother had a history of
substance abuse, and she had prior arrests for hit and run with property damage,
possession for sale of a controlled substance, and possession of narcotics paraphernalia.
The maternal grandmother and her partner had been “involved in a kidnapping involving
a boat and the coastguard,” and she had been arrested on charges of grand theft and
conspiracy. The maternal grandmother had turned herself in “because she had not been
able to get Medi-Cal for the baby and seemed to believe that once she cleared up the
warrant she would qualify for Medi-Cal.”4
The alleged father, N.L., had a last known address in San Francisco. He had a
history of substance abuse and had been arrested multiple times for “substance-related
charges.” He had two felony convictions for transporting and selling controlled
substances.5
When the maternal grandmother turned herself in to jail, the child was taken into
protective custody. By the time the petition was filed, the child was in foster care.
4
The maternal grandmother claims she went to the jail only to sign a promise to
appear, not to turn herself in.
5
A second amended section 300 petition, filed on March 11, 2014, also named
S.K. as an alleged father. On May 30, 2014, the court found that S.K. was not the child’s
father.
3
B. Detention Hearing
At the detention hearing held on January 17, 2014, the juvenile court appointed
counsel for the child and the mother. The court found that continuance in the home of the
parent or legal guardian would be contrary to the child’s welfare and that removal was
necessary to protect the child’s physical or emotional health. The court therefore
determined that a prima facie showing had been made that the child came within
section 300, and it ordered the child detained.
The court further found that visitation between the mother and child would be
detrimental while the mother was in custody, unless the mother was allowed contact
visits.
C. Maternal Grandmother’s First and Second Section 388 Petitions
and De Facto Parent Statement
On February 14, 2014, the maternal grandmother filed a section 388 petition,
requesting the child be returned to her care.6 The maternal grandmother claimed the
allegations about her involvement in a kidnapping and swimming away from the Coast
Guard were not true.
On the same date, the maternal grandmother filed a De Facto Parent Statement
(Judicial Council form JV-296) on behalf of herself and her partner, D.M. She stated that
the child had lived with her between December 27, 2013 and January 14, 2014. She
described how she had spent 24 hours per day with the child, the activities she did with
the child, and the things she had purchased for the child.
6
Pursuant to section 388, subdivision (a)(1), “[a]ny parent or other person having
an interest in a child who is a dependent child of the juvenile court . . . may, upon
grounds of change of circumstance or new evidence, petition the court in the same action
in which the child was found to be a dependent child of the juvenile court . . . for a
hearing to change, modify, or set aside any order of court previously made or to terminate
the jurisdiction of the court.”
4
On March 14, 2014, the maternal grandmother filed a second section 388 petition,
requesting the court dismiss the case. The maternal grandmother represented that she
was out of custody on formal probation. She asserted that the social workers had lied and
that the “Public Defenders are incompatant [sic].” She further asserted that the child was
unhappy in her foster home placement. The maternal grandmother attached a letter from
the Department explaining that the child had not been placed with her because she was on
felony probation.
D. Jurisdiction/Disposition Report
The Department’s jurisdiction/disposition report, filed on April 10, 2014,
recommended that the mother not be offered reunification services. The Department
requested the court find, pursuant to section 361.5, subdivision (e)(1), that reunification
services would be detrimental to the child because the mother was incarcerated.7
The social worker had spoken with a correctional counselor and the mother’s
criminal attorney. The mother appeared to be eligible to participate in the Community
Prisoner Mother Program at state prison. The mother would likely serve about three
years in prison. Based on the length of her sentence and the lack of any parent-child
bonding, the Department recommended that reunification services not be offered. The
mother had not visited with the child because Monterey County jail did not offer contact
visits.
7
Section 361.5, subdivision (e)(1) provides, in pertinent part: “If the parent or
guardian is incarcerated, . . . the court shall order reasonable services unless the court
determines, by clear and convincing evidence, those services would be detrimental to the
child. In determining detriment, 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 . . . , 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 reunification time limitations described in subdivision (a),
and any other appropriate factors.”
5
The child remained in a foster home. The Department had contacted a number of
relatives to determine if there were any alternative placement options. The maternal great
aunt indicated she was willing to be considered for short-term placement.
E. Maternal Grandmother’s Third and Fourth Section 388 Petitions;
Department’s Memos
On April 15, 2014, the maternal grandmother filed a third section 388 petition.
She complained that neither she nor the mother had been present at a February 11, 2014
hearing when the juvenile court received a report from the Department. The maternal
grandmother repeated her allegations that the social workers had lied, and she
complained that the child had been placed out of the county.
On May 22, 2014, the Department filed a memo regarding relative placement.
The child had been placed with maternal relatives in a concurrent home (a home where
the foster parents are the potential adoptive parents) in San Diego County. The
Department explained it was not recommending placement of the child with the
maternal grandmother and her partner based on its assessment of the factors listed in
section 361.3.8 The memo reviewed the maternal grandmother’s criminal history and the
8
Section 361.3, subdivision (a) provides: “In any case in which a child is
removed from the physical custody of his or her parents pursuant to Section 361,
preferential consideration shall be given to a request by a relative of the child for
placement of the child with the relative, regardless of the relative’s immigration status.
In determining whether placement with a relative is appropriate, the county social worker
and court shall consider, but shall not be limited to, consideration of all the following
factors: [¶] (1) The best interest of the child, including special physical, psychological,
educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative,
and child, if appropriate. [¶] (3) The provisions of Part 6 (commencing with
Section 7950) of Division 12 of the Family Code regarding relative placement. [¶]
(4) Placement of siblings and half siblings in the same home, if that placement is found to
be in the best interest of each of the children as provided in Section 16002. [¶] (5) The
good moral character of the relative and any other adult living in the home, including
whether any individual residing in the home has a prior history of violent criminal acts or
has been responsible for acts of child abuse or neglect. [¶] (6) The nature and duration
(continued)
6
maternal grandmother’s history of referrals to the Department for her own children. The
memo also reviewed the criminal history of the maternal grandmother’s partner, who had
numerous arrests for various offenses as well as convictions for burglary, being under the
influence of a controlled substance, and disorderly conduct.
On May 30, 2014, the Department filed a memo regarding updated information.
The Department reiterated its recommendation that the mother not be offered
reunification services under section 361.5, subdivision (e)(1), and it also recommended
bypass of reunification services pursuant to section 361.5, subdivisions (b)(12) and
(b)(13).9 The Department noted that the mother had been convicted of felony driving
while intoxicated, with an allegation that she inflicted great bodily injury pursuant to
Penal Code section 12022.7, subdivision (a). The Department further noted that the
of the relationship between the child and the relative, and the relative’s desire to care for,
and to provide legal permanency for, the child if reunification is unsuccessful. [¶]
(7) The ability of the relative to do the following: [¶] (A) Provide a safe, secure, and
stable environment for the child. [¶] (B) Exercise proper and effective care and control
of the child. [¶] (C) Provide a home and the necessities of life for the child. [¶] (D)
Protect the child from his or her parents. [¶] (E) Facilitate court-ordered reunification
efforts with the parents. [¶] (F) Facilitate visitation with the child’s other relatives. [¶]
(G) Facilitate implementation of all elements of the case plan. [¶] (H) Provide legal
permanence for the child if reunification fails. [¶] . . . [¶] (I) Arrange for appropriate
and safe child care, as necessary. [¶] (8) The safety of the relative’s home. . . .”
9
Under section 361.5, subdivision (b)(12), reunification services need not be
provided to a parent when the court finds, by clear and convincing evidence, “[t]hat the
parent or guardian of the child has been convicted of a violent felony, as defined in
subdivision (c) of Section 667.5 of the Penal Code.”
Under section 361.5, subdivision (b)(13), reunification services need not be
provided to a parent when the court finds, by clear and convincing evidence, “[t]hat the
parent or guardian of the child has a history of extensive, abusive, and chronic use of
drugs or alcohol and has resisted prior court-ordered treatment for this problem during a
three-year period immediately prior to the filing of the petition that brought that child to
the court’s attention, or has failed or refused to comply with a program of drug or alcohol
treatment described in the case plan required by Section 358.1 on at least two prior
occasions, even though the programs identified were available and accessible.”
7
mother had been using drugs for about 10 years and that she had multiple convictions for
drug-related crimes. In 2005, the mother had been ordered to complete outpatient
substance abuse program as part of a diversion program. She was subsequently arrested
for drug-related offenses on two occasions and did not complete the program. She was
terminated from diversion and, later, from a Proposition 36 program. Between 2010 and
2013, she was convicted of six drug-related offenses and probation violations.
On June 6, 2014, the maternal grandmother filed a fourth section 388 petition.
The maternal grandmother alleged that at a hearing on June 4, 2014, the trial court had
informed her that she was not a party to the case and could not have access to the case
file. The minutes for the June 4, 2014 hearing indicate that on that date, the mother had
not been transported and therefore the court continued the jurisdiction/disposition hearing
and the hearing on the maternal grandmother’s pending motion for de facto parent status
and her pending section 388 petitions.
F. Jurisdiction/Disposition Hearing
A jurisdiction/disposition hearing was held on June 6, 2014, along with a hearing
on the maternal grandmother’s motion for de facto parent status and her section 388
petitions.
Counsel for the child indicated she was in agreement with the Department’s
recommendations regarding jurisdiction, bypass of reunification services, and denial of
the maternal grandmother’s motion and petitions. Counsel for N.L., the alleged father,
stated that she had not been able to contact N.L. for “some time” and did not know
whether he had taken a paternity test.
Social worker Erin Burton testified on behalf of the Department and was accepted
as an expert in risk assessment of dependent children. Burton opined that the mother had
a history of substance abuse that she had not addressed through treatment, which posed a
risk of harm to the child. Burton opined that reunification services should be bypassed
because the child had no relationship with the mother and because the mother was going
8
to be incarcerated for a significant period of time. Burton noted that the mother would
have limited access to substance abuse treatment services while incarcerated. Further,
providing the mother with reunification services (i.e., visitation) would require moving
the child from her concurrent placement, where she was bonding with her caregivers and
cousins. Burton had spoken to someone with the prison’s inmate infant program. It
would be “very, very difficult for the mother to get into the program” because she was
going to be transferred to Folsom State Prison.
The maternal grandmother testified that she had cared for the child from the time
the child was two days old until she was remanded into custody on January 14, 2014.
She had brought the child with her when she turned herself in because she expected to be
released on her own recognizance.
The mother testified that she had been given an opportunity to participate in
substance abuse during her criminal proceedings in 2006, but she had opted to work and
“tak[e] a felony instead.” She had not been offered any other substance abuse treatment
opportunities. She had been clean at various times, but she had also relapsed. She had
been in and out of custody. She was currently incarcerated at Folsom State Prison. She
had applied for the mother/infant program in Corona, but she did not know if she could
get into the program. She expected to be in prison for another year and a half. At
Folsom State Prison, she had enrolled in every substance abuse program she was eligible
for. She had also applied for an alternative custody program. If she was not accepted
into the mother/infant program, she wanted the child to stay with her aunt and she wanted
her aunt to become the child’s guardian.
Social worker Victoria Williams testified for the Department as a rebuttal witness
and as an expert in risk assessment of dependent children and in assessment of permanent
placement. Williams had become concerned about the mother’s claim of sobriety after
she interviewed N.L. in April of 2014. Williams did not think that placement in an
inmate child program was in the child’s best interest, because the child was attaching to
9
her current caregivers and because of concerns about the mother’s ability to stay clean
and sober.
The mother submitted information about the Community Prisoner Mother
Program run by the California Department of Corrections. The information indicates that
the program permits qualified applicants to live with their children “in a public or
privately supervised center away from the prison setting.” The program offers
counseling, parenting classes, and substance abuse counseling and treatment.
The maternal great aunt, who was the child’s caregiver, submitted a letter in
support of the mother’s request to have the child in “a mother infant program.” The
maternal great aunt indicated she would give the mother “help and support” upon her
release from prison.
G. Juvenile Court Findings and Orders
At the end of the June 6, 2014 hearing, the juvenile court took jurisdiction after
finding all of the allegations of the first amended petition true. The court found true the
allegations under section 300, subdivisions (b) and (g) and adjudged the child a
dependent of the court.
Regarding disposition, the court ordered that no reunification services be provided
to the mother. First, the court found that under section 361.5, subdivision (b)(12), the
mother had been convicted of a violent felony. Second, the court found that under
section 361.5, subdivision (b)(13), the mother had a history of extensive, abusive, and
chronic drug or alcohol use and had resisted prior court-ordered treatment or had failed or
refused to comply with treatment. Third, the court found that under section 361.5,
subdivision (e)(1), the mother was incarcerated and reunification services would be
detrimental to the child. The court set a selection and implementation hearing for
October 2, 2014.
The Department noted that if the mother became eligible for a child/parent
program before that date, she could file a section 388 petition. The juvenile court
10
encouraged the mother to try to get into such a program and indicated the court would
“take another bright look at this” if she was successful.
The juvenile court next turned to the maternal grandmother’s pending motions.
The court noted that the maternal grandmother had become disruptive earlier in the
proceedings and had voluntarily left the courtroom. The court then denied the maternal
grandmother’s section 388 petitions, finding them factually unsupported. The court also
denied the maternal grandmother’s request for de facto parent status. The court found
that although the maternal grandmother had cared for the child for 20 days, “that was not
a substantial period.” Further, the court found that the maternal grandmother would not
be an appropriate candidate for de facto parent status because of her criminal history and
drug use, which was documented by the Department and referenced in a letter from the
mother.
H. Writ Petitions
Both the mother and maternal grandmother filed notices of intent to file writ
petitions.
The mother filed her initial writ petition on July 14, 2014. On July 24, 2014, the
mother filed a supplemental petition for extraordinary writ.
The maternal grandmother requested an extension of time in which to file her writ
petition, and this court granted the extension to July 21, 2014. On July 22, 2014, this
court received the maternal grandmother’s writ petition. On July 31, 2014, this court
received two supplemental writ petitions from the grandmother, which we will also
consider.
The Department filed a letter brief opposing the mother’s writ petition on
August 8, 2014. The Department noted that neither the mother nor the grandmother had
served any petitions on the Department, but that this court had e-mailed the Department
11
two of the mother’s writ petitions. The Department therefore addressed only those
petitions in its letter brief.10
On August 18, 2014, the maternal grandmother filed a motion to augment the
record, which included the following material: (1) a letter from the maternal
grandmother to the trial court dated March 14, 2014; (2) the maternal grandmother’s
objections and corrections to the investigation report; (3) the maternal grandmother’s
objections and corrections to the jurisdiction/disposition report; (4) the maternal
grandmother’s declaration in support of terminating jurisdiction; (5) a media story about
how the maternal grandmother and her boyfriend were released without being charged in
connection with the sailboat incident; and (6) a media story about a Florida kidnapping
involving a sailboat. The motion to augment is granted. We have considered those
materials.
III. DISCUSSION
A. The Mother’s Contentions
The mother first claims the juvenile court erred by asserting jurisdiction over the
child because the allegations of the petition are untrue. The mother contends that she had
made arrangements for the maternal grandmother and the maternal uncle to care for the
child, but when the maternal grandmother turned herself in on January 14, 2014, the
sheriff’s department did not allow the maternal grandmother to contact the maternal uncle
to come pick up the child.
“At the jurisdictional hearing, the dependency court’s finding that a child is a
person described in section 300 must be supported by a preponderance of the evidence.
10
On August 18, 2014, the maternal grandmother attempted to file a reply to the
Department’s letter brief, on behalf of the mother. We decline to permit the filing of that
reply because the maternal grandmother, “who is not an attorney, cannot represent
another party in the action.” (See Evans v. Evans (2008) 162 Cal. App. 4th 1157, 1162,
fn. 1.)
12
[Citations.] We review the dependency court’s jurisdictional findings for substantial
evidence, and review the evidence in the light most favorable to the dependency court’s
findings and draw all reasonable inferences in support of those findings. [Citation.]” (In
re John M. (2013) 217 Cal. App. 4th 410, 418.)
Here, pursuant to section 300, subdivision (b), the Department had alleged that the
child was at risk of serious harm because (1) the mother failed to arrange for safe and
suitable care of the child during her incarceration, (2) the mother failed to protect the
child from the maternal grandmother, whose “history of substance abuse and reckless
behavior placed [the child] at risk of physical harm,” and (3) the mother’s own “ongoing,
unresolved substance use” placed the child at substantial risk of serious physical harm.11
Pursuant to section 300, subdivision (g), the Department had alleged that the mother was
“incarcerated and unable to arrange for appropriate care of her child.”12 The juvenile
court sustained the allegations under section 300, subdivisions (b) and (g).
11
Section 300, subdivision (b)(1) provides that jurisdiction may be taken if “[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” four circumstances: “[1] the failure or inability of his or
her parent or guardian to adequately supervise or protect the child, or [2] 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 [3] by the
willful or negligent failure of the parent or guardian to provide the child with adequate
food, clothing, shelter, or medical treatment, or [4] by the inability of the parent or
guardian to provide regular care for the child due to the parent’s or guardian’s mental
illness, developmental disability, or substance abuse.”
12
Section 300, subdivision (g) provides that jurisdiction may be taken under four
circumstances: “[1] The child has been left without any provision for support;
[2] physical custody of the child has been voluntarily surrendered . . . ; [3] the child’s
parent has been incarcerated or institutionalized and cannot arrange for the care of the
child; or [4] a relative or other adult custodian with whom the child resides or has been
left is unwilling or unable to provide care or support for the child, the whereabouts of the
parent are unknown, and reasonable efforts to locate the parent have been unsuccessful.”
13
Below, the mother cited Maggie S. v. Superior Court (2013) 220 Cal. App. 4th 662
(Maggie S.), where the mother similarly gave birth to the child while incarcerated and
similarly claimed the juvenile court erred in taking jurisdiction over the child pursuant to
section 300, subdivisions (b) and (g) because she had made arrangements for the child’s
care. (Id. at p. 664.) In Maggie S., the mother had identified the child’s godmother as a
prospective placement for the child, and the godmother was initially willing to care for
the child, but the Department did not inform the court of this possible arrangement at the
time of the jurisdiction hearing. Because there was no substantial evidence that
placement of the child with the godmother would present a serious risk of physical harm
to the child and because the mother had made arrangements for the child’s care, the
juvenile court erred by taking jurisdiction under section 300, subdivisions (b) and (g).
(Maggie S., supra, at p. 673.)
As the juvenile court found, the instant case is distinguishable from Maggie S.
Here, although the mother made arrangements for the child to be cared for by the
maternal grandmother, substantial evidence supports the court’s finding that such
placement presented a serious risk of physical harm to the child. First, as noted in the
Department’s memo regarding relative placement, the mother knew that the maternal
grandmother had a warrant for her arrest and thus that the child could be left without a
caretaker at any time. Second, the mother knew that the maternal grandmother had a
criminal history and a history of substance abuse. Attached to the Department’s memo
regarding relative placement was a letter from the mother to the maternal grandmother
dated February 4, 2014. In the letter, the mother advised the maternal grandmother to
“quit drugs completely” and that God did not want to “subject” the child to the “hard
lifestyle” that the maternal grandmother lived. “The provision of a home environment
free from the negative effects of substance abuse is a necessary condition for the safety,
protection and physical and emotional well-being of the child.” (§ 300.2.) When a child
is “of ‘tender years,’ ” evidence of substance abuse by the parent or guardian “ ‘is prima
14
facie evidence of the inability of [the] parent or guardian to provide regular care resulting
in a substantial risk of harm.’ [Citations.]” (In re Christopher R. (2014) 225 Cal. App. 4th
1210, 1219.)
Because the mother was incarcerated and had arranged for the child to be cared for
by the maternal grandmother, who was at risk of being incarcerated herself while caring
for the child and who was a known drug user, substantial evidence supports the trial
court’s determination that it was appropriate to take jurisdiction over the child pursuant to
section 300, subdivision (b).
We observe that there is some conflict in the case law regarding the requirements
for jurisdiction under section 300, subdivision (g) based on an allegation that “the child’s
parent has been incarcerated or institutionalized and cannot arrange for the care of the
child.” Some courts have interpreted this provision as inapplicable when the parent can
arrange for the child, even if the arrangement is not suitable. (See, e.g., In re S. D. (2002)
99 Cal. App. 4th 1068 (S. D.); Maggie S., supra, 220 Cal.App.4th at p. 673.) Other courts
have interpreted this provision as permitting the court to take jurisdiction based on a
finding that the incarcerated parent is not “able to make suitable arrangements for his or
her children’s care.” (In re Aaron S. (1991) 228 Cal. App. 3d 202, 212, italics added; see
also In re Monica C. (1994) 31 Cal. App. 4th 296, 305.) Because we have already found
that substantial evidence supports the juvenile court’s determination of jurisdiction under
section 300, subdivision (b), we need not reach the issue of whether the evidence also
supports the court’s decision to take jurisdiction under section 300, subdivision (g).
The mother’s second claim is that the sheriff’s department conspired with the
social worker to mislead the maternal grandmother into believing she would be released
on her own recognizance and to seize the child despite no signs of abuse or neglect. The
mother quotes the following language from S. D., supra, 99 Cal.App.4th at page 1077:
“There is no ‘Go to jail, lose your child’ rule in California. [Citation.]” Thus, it appears
mother is challenging the jurisdictional findings. As explained above, substantial
15
evidence supports the juvenile court’s decision to take jurisdiction of the child under
section 300, subdivision (b).
The mother’s third claim is that the juvenile court erred by having a jurisdictional
hearing on February 11, 2014 without the presence of the mother, the mother’s counsel,
or a court reporter. The record does not support this claim. The jurisdictional hearing
was held on June 6, 2014, not February 11, 2014. While the clerk’s minutes state that the
February 11, 2014 proceeding was “Jurisdictional Hearing/Receipt of Report”
(capitalization omitted), the minutes further reflect that the only thing that occurred on
that date was that the jurisdictional report was “received and lodged by the Court.” The
clerk’s minutes reflect that the next court date would be for the setting of the
jurisdictional hearing.
The mother’s fourth claim is that her due process rights were violated at the
June 6, 2014 jurisdiction/disposition hearing because she had no opportunity to be heard,
to call witnesses, to present evidence, or to cross-examine witnesses. The record does not
support this claim. The mother testified at the jurisdiction/disposition hearing, and the
maternal grandmother testified on her behalf. The mother presented documentary
evidence concerning the Community Prison Mother Program as well as a letter from her
aunt, the child’s caretaker. The mother’s trial counsel cross-examined the Department’s
witnesses.
The mother’s fifth claim is that the juvenile court should have appointed a
guardian ad litem. The mother did not raise this claim below, and she does not cite any
authority for this claim. To the extent she is claiming the child should have had a
guardian ad litem, we note that “[f]or dependency proceedings, counsel that is appointed
for a minor serves as the child’s guardian ad litem. [Citations.]” (In re Cole C. (2009)
174 Cal. App. 4th 900, 910; see also In re Charles T. (2002) 102 Cal. App. 4th 869, 879
(Charles T.).) Here, the child was represented by separate appointed counsel throughout
the proceedings. Nothing in the record indicates that a separate guardian ad litem should
16
have been appointed. (See Charles T., supra, at p. 879 [“in cases where the minor’s
counsel discovers interests of the minor outside the dependency which may result in
separate adversarial proceedings, the court will be required to appoint a separate
guardian ad litem”].) Later in her petition, the mother states that a CASA (California
Appointed Special Advocate) should have been appointed for the child. Again, no such
claim was raised below, and the mother provides no authority to support this argument.
The mother cites “In re Miguel S. (2005) 137 CAL APP 4th,” but we find no case called
In re Miguel S. in volume 137 of the California Appellate Reports, Fourth Series.
The mother’s sixth claim is that the juvenile court erred by failing to get an
express waiver from the mother when she waived the reading of the petition, the
amended petitions, and the advisement of rights. The record does not support this claim.
Because the mother was not present at the detention hearing held on January 17, 2014,
the court reserved “the issue of reading and advisement” of the petition. The mother was
present at the February 18, 2014 hearing, when the “[r]eading and advisement of the [first
amended] Petition” was waived. The mother was also present at the March 17, 2014
hearing, when the “[r]eading and advisement of the [second amended] Petition” was
waived.
The mother’s seventh claim is that the juvenile court did not provide the mother
with the opportunity to be present at all hearings. The mother states she was only
transported to five out of 12 hearings. The record shows that the mother was personally
present at many hearings, including the jurisdiction/disposition hearing, and she was
represented by counsel at all other hearings. The mother, who was incarcerated, did not
have the right to be present at all hearings. (See In re Jesusa V. (2004) 32 Cal. 4th 588,
599 [other than hearing on termination of parental rights, an incarcerated parent’s
presence is not mandatory; other hearings may “ ‘proceed without attendance by the
prisoner-parent’ ”].)
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The mother’s eighth claim is that the juvenile court erred by assuming jurisdiction
over the child without proof that the child had suffered any risk of serious illness or
injury. As explained above, substantial evidence supports the juvenile court’s decision to
take jurisdiction of the child under section 300, subdivision (b).
The mother’s ninth claim is that the Department fraudulently stated that the
maternal grandmother had been the subject of prior dependency cases. The mother points
to nothing in the record supporting this claim. Moreover, as explained above, even
without evidence that the grandmother had been the subject of prior referrals to the
Department, substantial evidence supports the juvenile court’s decision to take
jurisdiction of the child under section 300, subdivision (b).
The mother’s tenth claim is that the juvenile court erred by reading the
dispositional report prior to the jurisdiction hearing. The mother cites to “In re Gladys.”
We believe the mother is referring to In re Gladys R. (1970) 1 Cal. 3d 855, which
involved a section 600 proceeding (i.e., juvenile delinquency). In that case, the court
held that “Welfare and Institutions Code sections 701, 702, and 706 prohibit the judge
from reading the social report before the jurisdictional hearing. [Citation.]” (Id. at
p. 860.) As this is a section 300 proceeding (i.e., juvenile dependency), we find no merit
to the mother’s claim.
The mother’s eleventh claim is a repeat of her third claim: that the juvenile court
erred by having a jurisdiction hearing on February 11, 2014 without the presence of the
mother, the mother’s counsel, or a court reporter. As noted above, the record does not
support this claim. The February 11, 2014 proceeding involved only the juvenile court’s
receipt of the jurisdiction report.
The mother makes several additional claims in her supplemental petition.
First, the mother claims she was denied reunification services because of her
conviction of DUI with bodily injury. To the extent she is challenging the court’s finding
that this was a violent felony, we note that pursuant to Penal Code section 667.5,
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subdivision (c)(8), a “ ‘violent felony’ ” includes “[a]ny felony in which the defendant
inflicts great bodily injury on any person other than an accomplice . . . .”
Second, the mother generally challenges the sufficiency of the evidence to support
jurisdiction. As explained above, substantial evidence supports the juvenile court’s
decision to take jurisdiction of the child under section 300, subdivision (b).
Third, the mother challenges the denial of reunification services, citing Renee J. v.
Superior Court (2002) 96 Cal. App. 4th 1450 (Renee J.). That case involved the denial of
reunification services pursuant to section 361.5, subdivision (b)(10), which applies when
the juvenile court has ordered “termination of reunification services for any siblings or
half siblings of the child because the parent or guardian failed to reunify with the sibling
or half sibling.” That provision is not applicable in this case and thus Renee J. does not
support the mother’s writ petition.
Fourth, the mother states that she wants her aunt to be the child’s guardian. This
will be an option the juvenile court may select at the permanency planning hearing. (See
§ 366.26, subd. (b); In re Celine R. (2003) 31 Cal. 4th 45, 53.)
B. The Maternal Grandmother’s Contentions
Most of the maternal grandmother’s claims repeat the mother’s claims. As
explained above, we find no merit to any of those claims. Moreover, the only claims that
the grandmother may raise relate to the petitions and motion that she filed on her own
behalf; she lacks standing to raise any issues on behalf of the mother. (See In re Aaron R.
(2005) 130 Cal. App. 4th 697, 704-705 (Aaron R.).)
There are a number of other procedural defects in the maternal grandmother’s writ
petitions. First, as previously noted, her petitions were not timely filed. (See fn. 2, ante.)
Second, the maternal grandmother apparently did not serve a copy of any of her petitions
on the Department. Third, to the extent she is challenging the denial of her section 388
petitions and her request for de facto parent status, such orders are generally reviewable
by appeal, not writ. (See Aaron R., supra, 130 Cal.App.4th at pp. 702-703; In re
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Michael R. (1998) 67 Cal. App. 4th 150, 154; but see In re Jessica K. (2000) 79
Cal. App. 4th 1313, 1317 [writ petition may be filed as to the denial of section 388 petition
if an appeal is not an adequate remedy].) Despite these procedural defects, in the
exercise of its discretion, this court will review the merits of the maternal grandmother’s
writ petitions. We therefore turn to the question of whether the trial court abused its
discretion by denying the maternal grandmother’s section 388 petitions and by denying
the maternal grandmother’s request for de facto parent status. (See Aaron R., supra, at
pp. 705-706; In re Merrick V. (2004) 122 Cal. App. 4th 235, 256 (Merrick V.).)
In her section 388 petitions, the maternal grandmother claimed the allegations
about her involvement in a kidnapping and swimming away from the Coast Guard were
not true, that the child was unhappy in her initial foster home placement, that she and the
mother had not been present at the February 11, 2014 hearing, and that she had been
denied access to case files. “In order to grant a petition pursuant to section 388, there
must be a substantial change in circumstances regarding the child’s welfare and the
requested modification of the prior order must be in the child’s best interests. [Citation.]”
(In re Heraclio A. (1996) 42 Cal. App. 4th 569, 577.) Here, the maternal grandmother did
not make any showing of changed circumstances as to the problems that led to the child’s
removal. Moreover, nothing in the maternal grandmother’s section 388 petitions
overcame her ineligibility for placement based on her criminal history. (See § 361.4,
subd. (d)(2).) Thus, the trial court did not abuse its discretion by denying her section 388
petitions.
We next turn to the question of whether the juvenile court abused its discretion by
denying the maternal grandmother’s request for de facto parent status. “Whether a
person should be accorded de facto parent status depends on an assessment of the
particular individual and the facts of the case. [Citation.] The court should consider the
applicant’s adherence to the role of a parent and whether he or she has information that
would be helpful to the court in making its placement orders. [Citation.] Factors the
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court should consider in assessing a de facto parent application are whether: ‘(1) the
child is “psychologically bonded” to the adult; (2) the adult has assumed the role of a
parent on a day-to-day basis for a substantial period of time; (3) the adult possesses
information about the child unique from the other participants in the process; (4) the adult
has regularly attended juvenile court hearings; and (5) a future proceeding may result in
an order permanently foreclosing any future contact with the adult.’ [Citations.]”
(Merrick V., supra, 122 Cal.App.4th at p. 256.)
Here, the maternal grandmother “ ‘regularly attended juvenile court hearings.’ ”
(Merrick V., supra, 122 Cal.App.4th at p. 256.) However, she had assumed the role of a
parent on a day-to-day basis for only 20 days, which the trial court reasonably determined
was not “ ‘a substantial period of time.’ ” (Ibid.) The trial court could also reasonably
determine that the child, who was only three weeks old at her removal, was not
“ ‘ “psychologically bonded” ’ ” to the maternal grandmother. (Ibid.) Additionally, the
trial court could reasonably determine that, because the child was placed with other
maternal relatives who wanted to support the mother in her efforts to maintain contact
with the child, future proceedings would not “ ‘result in an order permanently foreclosing
any future contact with’ ” the maternal grandmother. (Ibid.) Finally, on this record,
nothing supported a finding that the maternal grandmother “ ‘possesse[d] information
about the child unique from the other participants in the process.’ ” (Ibid.) Thus, the trial
court did not abuse its discretion in denying the grandmother’s request for de facto parent
status.
C. The Mother’s Stay Request
In her writ petition, the mother indicates she is requesting a temporary stay. The
mother states that she is appealing her conviction for driving under the influence with
great bodily injury and asserts that “nothing should happen until it is decided.” However,
the mother has not provided any information concerning an appeal from her criminal
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case, and we have not located any pending appeal in this court. Thus, we deny the
mother’s request for a stay in the instant matter.
IV. DISPOSITION
The petitions for extraordinary writs and request for stay are denied.
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___________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
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MIHARA, J.
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MÁRQUEZ, J.