In re Carl H. ( 2017 )

Filed 1/23/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re CARL H., a Person Coming Under
the Juvenile Court Law.
SAN FRANCISCO HUMAN SERVICES A147220
AGENCY,
Plaintiff and Respondent, (City & County of San Francisco
v. Super. Ct. Nos. JD153221, JD153222)
N.B.,
Defendant and Appellant;
CARL H., a Minor, etc.,
Objector and Appellant.
In re HARMONY F., a Person Coming
Under the Juvenile Court Law.
SAN FRANCISCO HUMAN SERVICES A147335
AGENCY,
Plaintiff and Respondent, (City & County of San Francisco
v. Super. Ct. Nos. JD153221, JD153222)
N.B. et al.,
Defendants and Appellants;
HARMONY F., a Minor, etc.,
Objector and Appellant.
N.B. (Mother) and her daughter Harmony F. appeal from juvenile court
orders establishing jurisdiction over Harmony and bypassing family reunification
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I and II B of the discussion.
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services for Mother. The court found that Mother‘s neglect contributed to the
death of Harmony‘s baby sister Melody and that there was no clear and convincing
evidence that offering Mother reunification services was in Harmony‘s best
interest. Mother asserts neither finding is supported by the record and that the
denial of reunification services was an abuse of discretion. Harmony also
challenges the denial of reunification services. Harmony‘s father, Kevin F., joins
in their arguments.
In a separate appeal1 Mother challenges the juvenile court‘s assertion of
jurisdiction over her son Carl Jr. Carl Jr. contends the court erred when it
dismissed his petition after establishing dependency jurisdiction over him. He also
asserts the bypass of services for Mother was an abuse of discretion.
Assessed under the relevant legal standard, the record supports the court‘s
jurisdictional findings and the bypass of services to Mother. However, the
dismissal of Carl Jr.‘s dependency case because findings were unsustained as to his
custodial parent was error. We therefore reverse in part, affirm in part and remand
to the juvenile court for further proceedings.
BACKGROUND
Events Preceding Melody’s Death
Raised by a mother who struggled with addiction, Mother‘s childhood was
marked by abuse and neglect. When she was 13 years old she began an abusive
and violent relationship with Carl Sr., then a 20-year-old high school dropout.
Their child, Carl Jr., was born when Mother was 14.
While she was still a minor, Mother left Carl Sr. and was in a relationship
with Kevin F. That relationship, too, was characterized by domestic violence.
1
On our own motion, we deemed it appropriate to consolidate the two appeals for
consideration and disposition because they involve common and interrelated issues of
fact and law. (See People v. Dixon (1993) 20 Cal. App. 4th 1029, 1033 fn. 2.)
2
Mother and Kevin F. had two children: Harmony F., born March 2012, and
Melody F., born November 2013.
The family, including both fathers, had at least 13 referrals to CPS for
physical and emotional abuse and neglect before Melody died in 2015. In 2012
Carl Sr. learned that Kevin F. was hitting Carl Jr. and calling him names. This led
to fighting between the two men and CPS intervention. To protect her son, Mother
gave Carl Sr. full custody of Carl Jr. with visitation for her every other weekend.
From then until December 2014, father and son lived with Carl Jr.‘s paternal
grandfather. However, both parents used the maternal grandmother (Grandmother)
as a respite caregiver. Carl Jr. thus stayed with Grandmother when Carl Sr. was
arrested in January 2013 and again in May 2014, and she watched Carl Jr. when
Carl Sr. ran errands. Grandmother also looked after all three children at least two
weekends a month when Mother had to work and Kevin F. was unwilling to take
care of their daughters.
In February 2014 Carl Jr., then six years old, was staying with Grandmother
while his father was incarcerated. Grandmother asked the boy to pick up a
methadone pill she had dropped. Carl Jr. picked up the pill and swallowed it. He
was immediately taken to the hospital, and survived.
Following this incident, protective services worker Jonathan Newsome
interviewed family members at the hospital and later in Grandmother‘s home. The
home was extremely cluttered but did not appear dirty. Newsome did not see any
inappropriately stored medications or other overt safety hazards. Mother said she
lived in an HUD-approved apartment but was temporarily living in a hotel while
repairs were being made. She had a court date in family court the next month to
change Carl Jr.‘s custody arrangement. Mother told Newsome she could care for
her son full time with help from a cousin and other family members. With Carl Sr.
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incarcerated, Newsome determined the hospital could release Carl Jr. to Mother‘s
care.
The San Francisco Human Services Agency (the Agency) convened a team
decision making meeting with Mother, Grandmother and Carl Sr. to address the
children‘s safety. They agreed the children would not return to Grandmother‘s
home until it was properly cleaned and organized. Grandmother agreed not to
take medications in front of the children or leave them within the children‘s reach.
Carl Sr. agreed not to yell at his son or abuse him emotionally, verbally or
physically, to use age-appropriate tools for discipline and redirection, and to follow
up with services that had been ordered in his criminal case. Carl Jr. was to remain
in Carl Sr.‘s care and his sisters would remain with Mother, ―with a significant
amount of services for both mother and father.‖
Newsome wrote that ―mother appears to be very resilient yet at the same time
overwhelmed. She is working, attending school, and caring for her children when
at all possible. She appears to be utilizing the support she has at her disposal but
the Department can only hope that her children don‘t suffer with [her] busy and
ambitious schedule. It has been very clearly presented that so long as the
[Grandmother‘s] home is in [its] current state (extreme clutter), the children are not
allowed to be cared for there.‖ Newsome concluded the children were not at an
imminent risk in Mother‘s care, ―and therefore the Department feels that closing
the referral after having connected the family to DR and Safe Care services is
appropriate.‖
On June 6, 2014, Protective Services Worker Jane Phan visited
Grandmother‘s home after hearing that Carl Jr. was staying there with Mother
while Carl Sr. was in jail for non-compliance with court-ordered domestic violence
classes, and that the house was so severely cluttered it was unsafe. Mother had left
Kevin F. after he physically assaulted her while she was holding 7-month-old
4
Melody. Mother reported she was working with Homeless Prenatal and SafeCare
workers and asked for help obtaining other services.
On June 10 Phan spoke with Carl Jr. and his father in their home at the
paternal grandfather‘s house. Carl Jr. said that during his weekends with Mother
he stayed at Grandmother‘s home. He did not stay at Mother‘s house because
Kevin H. lived there. Carl Sr. told Phan he would drop Carl Jr. off at
Grandmother‘s house for visits with Mother. He said there was some clutter there
and mentioned Carl Jr.‘s February 2014 methadone incident, but overall he had
―no concerns‖ about Grandmother. The Agency concluded no action was required.
In December 2014 Carl Sr. got into a fight with the paternal grandfather. As a
result, he and Carl Jr. moved out of the grandfather‘s home and moved in with
Grandmother. He later told a social worker he did not think living at
Grandmother‘s was a problem because Carl Jr. was now older and understood not
to take her medications.
Melody’s Death
On April 17, 2015, Mother dropped Harmony and Melody off with
Grandmother. Carl Sr. got home around midnight and went to sleep in an upstairs
bedroom. Mother came back around 2:30 a.m. She checked on the children, who
appeared to be fine. In the morning Grandmother discovered that Melody was not
breathing and called an ambulance. Melody, then 17 months old, died that
morning from acute methadone toxicity.
The incident was investigated by protective services worker (PSW) Nicole
Lock. On July 16 she and PSW Alicia Rodriguez conducted an unannounced visit
to Grandmother‘s home. The home ―was extremely cluttered and there was a
current hoarding issue in the home. Although there is space to walk around the
home, the undersigned immediately determined that the home was not safe for
children to reside. . . . [T]he home was filled with racks of clothes in the living
5
room, boxes of clothes, paperwork, piles of other various items. The undersigned
also observed medication containers on the piano, on the coffee table, and in brown
grocery bags on the floor of the living room. . . . [T]he bedroom downstairs cannot
be used for sleeping due to tremendous clutter.‖ In the room where Melody spent
her last night there were ―a lot of medication bottles kept on the side of the bed
table, on top of the dressers, and there were miscellaneous pills on top of the
furniture.‖ Some of the medications were within the children‘s reach.
Lock pointed out various safety concerns and told Carl Sr. that
Grandmother‘s home was inappropriate for children. Carl Jr. said he never left his
son alone or unsupervised in the house, and that he had nothing to do with
Melody‘s death.
In a forensic interview on July 20, Carl Jr. said his father and Grandmother
smoked cigarettes and ―blunts,‖ which were long and brown ―and they put some
type of stuff, green stuff in it.‖ In addition, both Grandmother and her mother
(―Nanny‖), who also lived in the house, had pills, like methadone, stomach pills,
―pooping pills,‖ headache pills and pain pills. Carl Jr. knew where the pills were
kept. He said ―all three of us—all the children can get into them, ‗cause they need
to put them in a safe place with a lock, that‘s where they need to put them, so no
one can get to the pills and take one.‖ Asked if that had ever happened, Carl Jr.
answered: ―I picked one up off the floor and took one‖ and ―that‘s what happened
with my sister. [¶] . . . [¶] The one that died.‖
Carl Jr. said Nanny kept a pill bottle, as well as cookies and ―a lot of stuff‖ on
her bed, so he thought Melody probably woke up and got a methadone pill from
there. He knew the bottle contained methadone because ―every time—she has me
read the bottle. [¶] . . . [¶] And she has me make her pills too.‖ He explained that
he usually prepared Nanny‘s pills when her caregiver did not come to work. The
6
last time he remembered giving Nanny her pills was when he was seven, but he
stopped doing it after the February 2014 incident.
Carl Jr. said he thought Grandmother kept methadone in three bags on the
floor. She also had ―hecka pills‖ in a pill box. It was ―so easy‖ to get into
Grandmother‘s pills, ―all you have to do is lift the thing up and take a pill.‖
When the interviewer asked Carl Jr. about the rules at Grandmother‘s house,
he replied ―No running in the house. [¶] . . . [¶] That‘s it.‖ Asked specifically if
there were rules about the pills, lighters, cigarettes or blunts, he said ―Nope.‖
The Dependency Petitions
The Agency filed petitions on behalf of Carl Jr. and Harmony alleging failure
to protect under section 300, subdivision (b) because: parents allowed them to live
in a home where dangerous medications were left within easy access despite Carl
Jr.‘s methadone poisoning in February 2014; the home was highly cluttered, with
medication containers on various surfaces and the living room floor; Mother failed
to adequately supervise the children by frequently leaving them at Grandmother‘s
home with Grandmother or Carl Sr. despite the earlier incident and warnings from
the Agency; and Kevin F. was living in a residential facility and failed to protect
his daughters.2 Both children‘s petitions alleged sibling abuse pursuant to section
300, subdivision (j) and that Mother caused another child‘s death through abuse or
neglect pursuant to section 300, subdivision (f). The children were detained in the
care of a relative.
Jurisdiction/Disposition Report
The Agency‘s combined Jurisdiction/Disposition report recommended that
Harmony remain with caretaker Iona V., that no reunification services be provided
2
Additional subdivision (b) allegations that Mother had a history of depression
and psychiatric hospitalization (b-6) and related to the 13 prior referrals (b-5) were later
stricken .
7
to Mother pursuant to section 361.5, subdivision (b)(4), and that the court set a
permanent planning hearing because the caretaker was willing to adopt her. The
Agency recommended that Carl Sr. participate in therapy to address his unstable
lifestyle, anger management issues and involvement in domestic violence;
complete a parenting education program; and obtain and maintain suitable housing
for himself and Carl Jr. for a reasonable period of time to be considered for
reunification.
Jurisdiction/Disposition Hearing
The combined jurisdiction/disposition hearing extended over multiple days,
between November 9, 2015 through January 13, 2016. The Agency called the
medical examiner, several child welfare workers and in-home service providers,
and the forensic interviewer to testify to the facts recounted above, which are
essentially undisputed.
PSW Newsome testified about his investigation of the February 2014 incident
involving Carl Jr. and the safety plan generated at the team decision making
meeting. He had ―made it very clear,‖ and Mother understood, that the children
were not to be at Grandmother‘s home until it was cleaned. Newsome also went
over medication safety with Mother and Grandmother and spoke to Grandmother
about properly storing her medicines. PSW Lock testified that Mother
acknowledged after Melody‘s death that she was aware of the safety plan and
requirements for storing medications at Grandmother‘s.
Child protection worker Myeshia Griece prepared the reports for the hearing.
The Agency recommended out-of-home placement with reunification services for
Carl Sr. and Kevin F., but not Mother. Carl Sr. was unemployed and had no other
income. Griece believed he could benefit from services ―so that he could identify
particular risks that he places his child in.‖ She had concerns about ―the decisions
that he makes as a parent in the risk that he places his child in. . . . because he left
8
his child in a home where the child was dispensing medication as if he was an
adult‖ although he had other options for places to live. Carl Sr. also exposed Carl
Jr. to marijuana: ―He knew what it looked like; he knew the process of putting the
stuff in. [¶] So yes, that is definitely a concern.‖ Moreover, Carl Sr. had not
followed up on referrals to parenting, substance abuse, housing and other services.
Addressing the out-of-home placement recommendation for Carl Jr., Griece
testified that despite having other housing options Carl Sr. placed his son at risk by
choosing to live in an unsafe home. She believed even if they lived elsewhere Carl
Jr. would remain at risk with his father, but Carl Sr. would benefit from services to
―strengthen his parenting as well as helping him with making better judgment calls
with regard to his child‘s safety.‖
Griece also recommended out-of-home placement for Harmony. Kevin F.
had anger management issues and lacked a stable home and lifestyle. He drank ―a
lot‖ and abused other substances. Although he had been in substance abuse
treatment, he refused to sign releases authorizing the Agency to access information
about it, and his behavior indicated ongoing drug use. Griece‘s supervisor later
elaborated that at every contact with him, Kevin F. appeared to be either under the
influence or coming down off of a substance. He had not participated in any of the
services he had been offered.
Griece testified that the Agency considered Mother responsible for Melody‘s
death. After the February 2014 incident with Carl Jr., Mother ―had a lot of things
going on and she placed yet another minor, that was much younger, at risk as well
because she didn‘t-because she didn‘t take the proper steps to ensure that the house
was safe prior to her kid going over there and visiting with the grandmother. . . .
[E]ven with her participating in SafeCare, and different things like that, it just
seems that there‘s something more that needs to happen with regards to ensuring
Harmony‘s safety.‖ But Mother also demonstrated strengths: ―Mom appears to be
9
a hard worker. You can definitely tell that she loves her kids. She‘s been able to
maintain stable employment.‖ Mother always provided for the children‘s food,
clothing and shelter when they were in her care. Mother voluntarily participated in
Agency-recommended services before Melody‘s death, including services
specifically related to home safety, and there was no evidence Mother abused
substances.
In June 2014 Mother told Phan she would not leave Melody at Grandmother‘s
home without supervision, but the night before Melody died she did just that,
without checking Grandmother‘s home for safety. That was of concern ―[b]ecause
of the previous incidents and the constant clutter and the minor‘s accessibility to
the medication.‖
Griece felt it was appropriate for Mother to have a relationship with the
children but that it would be detrimental for them to be in her care. ―I honestly
believe—it‘s the Agency‘s understanding and opinion that [Mother] has placed the
minors at risk several times; and at this time, it would be in the child‘s better
interest to be in a safer environment than what [Mother] can provide at this time.
This is the second child that‘s ingested Methadone within a year span—a little over
a year span.‖ Griece was concerned Mother would place the children at risk if she
had unsupervised visits with them, ―making decisions that [weren‘t] necessarily in
the kids‘ best interest with regards to letting the kids go to her mother‘s home, the
domestic violence that she‘s experienced.‖ Griece expected the children would be
placed with relatives.
The parties stipulated to several facts about Carl Jr.‘s level of understanding
and his actions. He: (1) understood safe medication storage, and ―[s]pecifically,
that medicines are to be kept away from children, preferably in a locked box‖; (2)
understood he should not touch medications and that children should stay away
from them; (3) ―has stated that he will never take adult medications again‖; (4)
10
―has not touched his grandmother or great-grandmother‘s medications since
February 2nd, 2014; and (5) if he did ―help organize an adult‘s medications, it was
before the February 2014 incident.‖ Carl Jr.‘s counsel urged the court to take
jurisdiction of both children and offer Mother reunification services: ―I think
bypassing the mother would further traumatize the minors. I think separating these
children from their mother would make the tragedy worse.‖ Counsel‘s report
noted it was unclear how long the current relative caretakers would be able to care
for the children.
Carl Sr. testified that he gained full custody of Carl Jr. in 2012 due to
domestic violence at Mother‘s home with Kevin F., and Mother had visitation at
Grandmother‘s house every other weekend. It was during one of those weekends,
while Carl Sr. was incarcerated, that Carl Jr. ingested methadone. After that
incident, he told Carl Jr. not to touch medication ―don‘t even look at it, don‘t go
near it, how dangerous it was.‖ Carl Jr. said he understood and would not do it
again. When Carl Sr. moved into Grandmother‘s house in January 2015 he
―indicated to grandmother to keep the medicine up, keep‘em out of reach of kids
and children and so forth.‖ He had other housing options with relatives in Tracy
and Millbrae, but Tracy was too far away and his cousin in Millbrae was ―going
through a bit of a situation‖ with his wife, so he ―didn‘t feel like that was the best
situation for my son to be in.‖
Asked if he saw any issues with Carl Jr. living in Grandmother‘s home, Carl
Sr. said ―Other than the past incident, no. I mean, I understand his grandmother
loves him to death. She wouldn‘t purposely harm him or anything like that.‖ He
was asked about the condition of the home, and said he had cleaned up the
bedroom he shared with Carl Jr. so ―our living situation was a little bit different
than the rest of the house.‖ He had ―moved out numerous . . . black big trash bags,
there was a few of those in the room that I moved out. There was at least close to
11
10 boxes I moved out of the room, numerous clothes, clothes items, trash a little bit
and just numerous items.‖ Carl Sr. denied that his son ever prepared Nanny‘s
medication. He did not believe Carl Jr. would take adult medicines again ―basing
off my son‘s character. I‘m not basing it on every eight-year-old. . . . I feel like my
son is a little bit above his age. I see my son like a 10- or 11-year-old, but he‘s
only eight. He is a smart cookie.‖
Carl Jr.‘s relationship with Mother was ―[v]ery important. . . . Nice, caring,
loving, very cuddly. I mean, like a mother should be to a son or a daughter. She‘s
very loving and caring.‖ Carl Jr. ―loves her to death sometimes more than me. He
wants to be with his mom. He doesn‘t want to be without her, that‘s for sure. It
would hurt him more for her to be taken away from him than reunited.‖ Although
the custody schedule called for Mother to visit every other weekend, visits were
actually more frequent: ―To be honest with you, me and her have an agreement,
she can see him whenever she wanted to. It wasn‘t really scheduled. I mean, it
was court ordered for her to see him every other weekend, but she could always
call up and say, I want to see Little Carl and she would be able to do that.‖
After Carl Sr. and Carl Jr. moved into Grandmother‘s house, Carl Sr.
estimated he was there 95 percent of the time. ―I was supposed to be there every
day. At the time, I wasn‘t working. I didn‘t have a job. I wasn‘t doing too much
but taking care of my son. So I was pretty much there all the time. Not all the
time, but with my son, I was.‖ There were times ―[w]hen I would go to the store
or maybe sometimes I might go out with friends for an hour or two; but other than
that, I was there. I rarely needed to go out.‖ He left Carl Jr. in Grandmother‘s care
fewer than five times between January and July 2015.
Mother‘s sister Jewel described Mother as ―a very loving and caring mother.
She always puts the best interest of her kids first. She will do whatever she can for
her children. She works hard to provide for her kids. Her goal is to just not be a
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product of the system. She does whatever it takes to try to ensure that her kids are
well taken care of.‖ After the February 2014 incident she, Mother and Iona
cleaned Grandmother‘s house and cleared out some of the clutter. Mother had
always been overprotective, and was especially so since Melody‘s death. She had
no social life ―because she has kids to take care of‖; it would be very unusual for
her to go out to bars or clubbing. She did not know if Mother went out to dinner
and a club the night Melody died.
Jewel said the children were doing ―horrible‖ since they were removed: ―they
cry a lot. I‘ve never seen Carl cry, like really break down and cry, saying he
misses his parents as much as I‘ve seen now. Even talking to the kids on the
phone. I talk to them probably every other day at least, and every time I talk to
Harmony, she‘s like, where‘s my mom, Ti-Ti? She with you? Is my mom with
you? Can I talk to her? Can you call her? I want to see her. . . . [¶] She just cries.‖
The sisters are very close. Mother and the children could live with Jewel if
they could not stay with Iona. Jewel would help her with parenting.
Rebecca is Mother‘s sister-in-law. She testified that Mother was ―an
excellent mom. She‘s an A-1 mom‖ and ―super patrol mom. She is safety number
one when she‘s with her kids.‖ Jewel said Mother worked overtime and sacrificed
to make sure the children had what they wanted. Asked whether Mother had an
active social life, she said ―no, I don‘t see that. I see a mom who works, comes
home to her kids, [gets] up the next morning, and goes back to work.‖
Jurisdictional Rulings
On December 29, the court announced its jurisdictional findings. It first
stated its findings on Carl Jr.‘s petition. It found untrue the (b)(1) allegation that
the parents put Carl Jr. at risk of harm because dangerous medications were left
within the easy reach of children at Grandmother‘s home: ―I do not find that [Carl
13
Jr.] was put at threat by the charge in (b)(1). Just from the evidence that I heard
during the course of the proceedings the child seemed to be aware.‖
The court also found untrue the (b)(2) allegation that Grandmother‘s home
was highly cluttered, with little room to move around and medications left out.
The court cited the testimony that Carl Sr. cleaned out the room he shared with his
son and that some sporadic efforts had been made to clean the house. Although the
court found the home was indeed cluttered, it found the ―cluttered nature of the
place‖ was not a threat because Carl Jr. ―seemed to be able to negotiate that aspect
of the home.‖
The court also found untrue the (b)(3) allegation that Mother frequently left
Carl Jr. with Grandmother or Carl Sr. at Grandmother‘s house despite the known
danger that he would have access to methadone. The court explained ―again,
because this is an older child, I am not going to find that that is true. I don‘t think
the supervision was inadequate. I believe, as I understood from the testimony, that
father was on-site most of the time. There was occasion that he was not. The
Court was disappointed that father did not expand his role in supervision regarding
the other children, but that is not what is charged here.‖ The court also found
untrue the parallel (b)(4) allegation that Carl Sr. failed to protect Carl Jr. from
exposure to unguarded medications, again because Carl Jr. ―was very well aware
of the issues in regards to medication.‖
But the (f)(1) allegation that Mother caused another child‘s death through
abuse or neglect was found true by clear and convincing evidence that Melody died
from ingesting drugs left within her reach despite Mother being on notice of the
possible danger after the incident with Carl Jr. ―Now, the reason I‘m finding it in
regards to mom is because mom was the supervising adult in regards to what
happened. She‘s the one that knows and she‘s the one that has this allegation.
Father does not.‖
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Finally, over the Agency‘s objection, the court found untrue the subdivision
(j)(1) sibling abuse allegation premised on Melody‘s death and the children‘s
exposure to hazards in the home. After a recess, the court attempted to clarify its
reason for striking this allegation.3 ―I did re-review the 300 (j) section, and that‘s
the reason I knocked it out with regards to . . . [Carl Jr.]. It says that ‗the child‘s
sibling has been abused or neglected as defined,‘ and it lists particular subsections,
which was not the basis of the (j) section, but it also continues, ‗The court shall
consider the circumstances surrounding the abuse or neglect of the sibling, the age
and gender of each child, and the nature of the abuse or neglect of the sibling.‘
And so those were the reasons that I did not find it to be applicable.‖ The court
reiterated its view that Carl Jr. ―would not have ingested based on [his] hard-
earned experience, which was his own.‖
The Agency disagreed. Counsel argued that Carl Sr. put his son ―in a
situation that an eight-year-old4 shouldn‘t be required to make a determination that
one drug is potentially fatal and one isn‘t. And there was actually testimony by
3
The allegation was substantially the same in each child‘s petition. Harmony‘s
petition read: ―The minor‘s sister Melody [F.] was found dead in the home by firefighters
in April of 2015, and an autopsy documented that Melody, who was one year old, had
methadone in her system at the time of her death. The relative‘s home in which the baby
died (and where this minor has frequently been left with relatives) has been found to have
substantial amounts of medication, including methadone, in bags on the floor, and in
other locations throughout the home to which the children have easy access.‖ The
subdivision (j) allegation in Carl Jr.‘s petition read: ―The minor‘s half-sibling Melody
[F.] was found dead by firefighters in April of 2015, and an autopsy documented that
Melody, who was one year old, had methadone in her system at the time of her death.
The relative‘s home in which the baby died (and where this minor has been residing with
his father) has been found to have substantial amounts of medication, including
methadone, in bags on the floor, and in other locations throughout the home to which the
children have easy access.‖
4
Carl Jr. was six years old when he ingested Grandmother‘s methadone in 2014
and eight years old at trial.
15
Carl Jr. in his CASARC DVD four days after his sister passed away that he
continued to place medication in a medication container for his grandmother
months after Cal Jr.‘s initial ingestion.‖ The court responded: ―I fully considered
what you‘re saying, but it did not seem to me that given the circumstances that
[Carl Jr.] stood in the same shoes as the—well, the poor—well, the other younger
kids. And so after reading Rocco M.,[5] I felt that I was compelled to make the
finding that I did.‖
On December 29 the court found that Carl Sr. was a non-offending custodial
parent and announced its intent to return Carl Jr. to his care. The Agency believed
the child was still at risk, but that he had to be returned to his father‘s care because
no allegations were sustained as to Carl Sr. The court declared Carl Jr. a
dependent child and dismissed his petition in favor of family law custody orders
specifying that the parents share joint legal custody with sole physical custody
awarded to Carl Sr. The ―Custody Order—Juvenile—Final Judgment‖ filed
January 4, 2016, reflects the termination of juvenile court jurisdiction over Carl Jr.
with supervised visitation for Mother.
The court sustained each of the allegations of Harmony‘s petition, including
the allegation under subdivision (j) (sibling abuse) and subdivision (f) (causing
another child‘s death through abuse or neglect), and found by clear and convincing
evidence that Mother should have known, and probably did know, that there was
methadone in Grandmother‘s home.
Disposition/Harmony
On December 28 the Agency filed an addendum disposition report authored
by Protective Services supervisor Pamela Connie. She outlined the long history of
abuse in Mother‘s relationships with both fathers, noting that all three children
5
In re Rocco M. (1991) 1 Cal. App. 4th 814.
16
were exposed to ongoing domestic violence. She reported that Kevin F. and his
family had objected to Mother using Grandmother for childcare ―due to
[Grandmother] not changing their diapers when needed, clothing them
appropriately for the weather and feeding them. . . . [M]other thought that the
conditions in which her mother lived were normal because that‘s what she grew up
in. . . . A home which is frequently cluttered, has questionable individuals coming
in and out, and has all the characteristics of an active addict. I would like to point
out that [Grandmother] is an active addict although she may have stopped abusing
illegal narcotics years ago, she is still using high doses of methadone and has
numerous prescribed narcotics.‖
She discussed Carl Sr.‘s presence in the home at the time of Melody‘s death:
―Mr. [H.] stated that Melody and Harmony were not his responsibility although he
[has] known them their entire life and they are the half siblings to his son. Such
callous disregard for children‘s lives and wellbeing is not something that a known
service can address.‖
After consulting with numerous Agency personnel, trauma specialists, and
mental health professionals, Connie determined that Mother needed intensive
trauma-focused treatment. ―It is the opinion of everyone consulted that [Mother]
will need years of trauma therapy and will have to work very diligently to address
her lifelong traumas. It is my opinion that [Mother] will not be able to parent or
participate in her children‘s care until she addresses her trauma. The Agency is
requesting that no services be offered to [Mother] because it will take years of
treatment before [she] is at a minimal sufficient level of parenting; especially a
child, Harmony, with multiple special needs.‖
Connie strongly disagreed with a suggestion that Carl Sr. needed only to
obtain appropriate housing to reunify with his son. ―I wholeheartedly disagree
with any such assessment as [Carl Sr.] has had a sexual relationship with a minor,
17
physically abused [Mother] in front of their son, chose to live with his son in an
unsafe house when he had access to appropriate housing, and felt that it wasn‘t his
responsibility to care for his son‘s two young siblings in the home where he lived.
[Carl Sr.] needs to demonstrate his ability to make decisions in the best interest of
his son and that demonstration should [be] monitored over a significant period of
time. Carl Jr. has parented himself long enough.‖
At the hearing Connie recommended that Harmony live with a relative under
Agency supervision and that reunification services be offered to Kevin F., but not
to Mother. She reiterated the Agency‘s belief that Mother would need extensive
therapy in order to put her children‘s needs ahead of her own and that it would take
well beyond 24 months of services to enable Mother to safely and adequately care
for her children. Nonetheless, it was in both children‘s best interest to maintain an
ongoing relationship with her. Iona was an excellent caregiver and the children
were doing remarkably well in her home.
Mother called social workers Nicole Lock and Bonnie Gordon and her sister
Iona. Lock and Iona testified positively about Harmony‘s attachment to Mother.
Iona testified that after the incident with Carl Jr. Mother made sure that
medications were kept out of his reach. Iona was available and willing to provide
Mother with whatever support she needed, including a place to live.
Bonnie Gordon, a private social worker, testified that Harmony would benefit
if mother received services even if they did not reunify. Therapy would improve
Mother‘s coping skills and ability to deal with past trauma, which in turn would
allow her to be more present for Harmony. Domestic violence services could
prepare her to be a good role model for Harmony, while joint work with a therapist
would help improve their relationship. Gordon recommended intensive trauma-
focused treatment, which she said can produce significant gains in as little as three
18
to twelve weeks. Gordon believed that, with intensive therapy, Mother could
provide a minimum sufficient level of care within twelve months.
The children‘s counsel called private social worker Abbie McGowan.
McGowan reviewed the reports and met with Harmony twice, including during a
visit with Mother. She testified that Harmony was attached to her mother and
Mother was attentive and appropriate during visits. McGowan recommended that
Mother receive intensive reunification services for Harmony‘s benefit, and
repeated Gordon‘s recommendation that Harmony attend therapy with Mother.
Asked why she thought it was in Harmony‘s best interest that Mother receive
services, she testified that Mother had a lot of issues to work on and she needed
support to be able to be there for Harmony and help her in a more positive way.
Moreover, Harmony would be traumatized if she were not allowed to reunify.
Further separation from Mother would be difficult for her, and it would be
detrimental not to let her continue developing their relationship.
Dispositional Rulings
The court found by clear and convincing evidence that Melody‘s death was
due to Mother‘s neglect and found there was no clear and convincing evidence that
reunification would be in Harmony‘s best interest. It approved Harmony‘s
placement with Iona V. and set dates for six and twelve-month review hearings.
Kevin F. was ordered to obtain and maintain suitable housing and complete
reunification services including a residential drug treatment program, therapy to
address anger management and domestic violence, and parenting education.
Mother was granted therapeutic or supervised weekly visitation.
Harmony, Carl Jr., Mother, and Kevin F. filed timely appeals, which we
consolidate for argument and disposition.
19
DISCUSSION
I. Jurisdiction
As noted above, on Carl Jr.‘s petition the court dismissed the subdivision (b)
(failure to protect) and (j) (sibling abuse) allegations and sustained the subdivision
(f) allegation that Mother‘s negligence caused Melody‘s death. The court
sustained Harmony‘s petition in toto. Mother and Carl Jr. challenge certain of the
court‘s findings. We conclude the juvenile court properly found the children to be
within its jurisdiction.
A. The Allegations under Section 300, subdivision (f)
As to both children, Mother contends the subdivision (f) allegations lack
sufficient evidentiary support. As to Carl Jr.‘s petition, she also asserts the
subdivision (f) finding that she caused Melody‘s death is fatally inconsistent with
the court‘s rejection of the failure to protect allegations under subdivision (b), and,
alternatively, that neither provision applies to her because she was not Carl Jr.‘s
custodial parent. Carl Jr. contends the court erred in finding the subdivision (b)
allegation in his petition untrue on the basis of his age and experience.
Our starting point is the evidentiary basis for the finding that Mother ―caused
the death of another child through . . . neglect.‖ ( § 300, subd. (f).) ―When
sufficiency of the evidence to support a finding is challenged on appeal, the
appellate court determines if there is any substantial evidence to support the
finding.‖ (In re Ethan N. (2004) 122 Cal. App. 4th 55, 64 (Ethan N.).) ― ‗ ―[O]ur
review requires that all reasonable inferences be given to support the findings and
orders of the juvenile court and the record must be viewed in the light most
favorable to those orders. [Citation.]‖ ‘ [Citations.] ‗Evidence sufficient to support
the court‘s finding must be reasonable in nature, credible, and of solid value; it
must actually be substantial proof of the essentials that the law requires in a
particular case. [Citation.]‘ [Citation.] ‗[W]e . . . must uphold the trial court‘s
20
findings unless it can be said that no rational factfinder could reach the same
conclusion.‘ ‖ (In re Athena P. (2002) 103 Cal. App. 4th 617, 628–629.)
Unlike other subdivisions of section 300, subdivision (f) does not require
evidence of a nexus between the circumstances leading to a child‘s death and a
current risk to the responsible parent‘s living children. (In re Ethan C. (2012)
54 Cal. 4th 610, 637–639 (Ethan C).) This difference reflects the Legislature‘s
apparent determination that a parent‘s ―neglectful or abusive responsibility for a
child fatality may inherently give rise to a serious concern for the current safety
and welfare of living children under the parent‘s . . . care, and may thereby justify
the juvenile court‘s intervention on their behalf without the need for separate
evidence of findings about the current risk of such harm.‖ (Id. at p. 638.)
―[T]the neglect by which a parent or guardian ‗caused the death of another
child‘ may include the parent‘s or guardian‘s breach of ordinary care, and need not
amount to criminal negligence.‖ (Ethan C., supra, 54 Cal.4th at p. 637.) In this
context, ―cause‖ means the parent or guardian‘s wrongful acts or omissions ― ‗were
a substantial factor in bringing [the child‘s death] about. [Citations.] If the actor‘s
wrongful conduct operated concurrently with other contemporaneous forces to
produce the harm, it is a substantial factor, and thus a legal cause, if the injury, or
its full extent, would not have occurred but for that conduct. Conversely, if the
injury would have occurred even if the actor had not acted wrongfully, his or her
conduct generally cannot be deemed a substantial factor in the harm.‘ ‖ (In re Mia
Z. (2016) 246 Cal. App. 4th 883, 892, quoting Ethan C., supra, 54 Cal.4th at p.
640.)
Here, the evidence supports the court‘s findings that Mother‘s negligent
conduct was a substantial factor in Melody‘s death. Mother knew the
circumstances of Carl Jr.‘s methadone poisoning at Grandmother‘s home. She
knew Grandmother was on methadone. It was made very clear to her after Carl
21
Jr.‘s methadone poisoning that the children could not be safely left at
Grandmother‘s until the house was cleaned out and all medications were safely
stored out of their reach. Mother had participated in services specifically related to
home safety. She told social worker Phan she would not leave Melody at
Grandmother‘s home and on at least some occasions after the incident with Carl Jr.
she refused to let Grandmother watch the children there. But the night before
Melody‘s death, Mother left the children to be cared for in Grandmother‘s house
without ensuring that the home was safe for the children. The court reasonably
found this constituted neglect, and that it was a legal cause of Melody‘s death.
―The issue is not whether Mother knew the exact instrumentality that posed a risk
to [the child], but whether Mother should have appreciated the risk of death to
which she exposed [her]. . . .‖ (In re Mia Z., supra, 246 Cal.App.4th at p. 893
[subdivision (f) finding sustained where an unsupervised toddler was crushed by a
gate after wandering from home].)
Mother relies on other evidence to argue that she reasonably believed she
could safely leave the children with Grandmother. For example, she points to
evidence that at certain times social workers found no safety threats in the house
and closed referrals; that the Agency never outright forbade her from leaving the
children in Grandmother‘s home; that she and her sisters cleaned the home up after
Carl Jr.‘s hospitalization; and she participated in the SafeCare program. She also
maintains there simply was not enough evidence showing how Melody obtained
and ingested Grandmother‘s methadone—e.g., where it was, how much she took,
the location of other family members at the time, the exact condition of
Grandmother‘s home that day, whether the responding paramedics saw
medications near Melody‘s body—to prove Mother‘s neglect. In essence, Mother
is asking us to reweigh the evidence. We cannot. The record set forth above
contains sufficient evidence to affirm the trial court‘s findings. If supported by
22
substantial evidence, the judgment or finding must be upheld, even though
substantial evidence may also exist that would support a contrary judgment and the
dependency court might have reached a different conclusion had it determined the
facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal. App. 4th
212, 228; In re Misako R. (1991) 2 Cal. App. 4th 538, 545.)
Mother makes the same argument as to Carl Jr.‘s petition. She says the
court‘s factual findings under subdivision (f) are inconsistent with its findings
under subdivision (b), and therefore that the judgment must be reversed. Not so.
Verdicts are deemed inconsistent when they are ― ‗beyond possibility of
reconciliation under any possible application of the evidence and instructions.‘ ‖
(Oxford v. Foster Wheeler LLC (2009) 177 Cal. App. 4th 700, 716.) The court
found the subdivision (b) ―failure to protect‖ allegations of Carl Jr.‘s petition not
true because it believed Carl Jr. was mature enough to navigate the hazards in
Grandmother‘s household, and Carl Sr. supervised him ―on-site‖ most of the time.
It sustained the subdivision (f) allegation because it found Mother‘s behavior was a
substantial factor in causing 17-month-old Melody‘s death when she left her
unsupervised at Grandmother‘s home after the incident with Carl Jr. These
findings are not factually irreconcilable.6
Mother also argues that the court erred in applying section 300, subdivision
(f) to her with respect to Carl Jr.‘s petition because she was not Carl‘s custodial
parent.7 Here too, she is mistaken. A child comes within juvenile court
jurisdiction under subdivision (f) if his or her parent ―caused the death of another
6
We choose not to treat this argument as forfeited for appeal by counsel‘s failure
to raise it below, although any confusion about the court‘s factual findings could and
should have been addressed before the juvenile court.
7
Mother also makes this argument about Carl Jr.‘s subdivision (b) allegations, but
as the court found those allegations not proven we see no reason to address it.
23
child through abuse or neglect.‖ There is no requirement that the parent whose
neglect caused the child‘s death have physical custody of the surviving child.
Accordingly, the substantial evidence that Mother‘s negligence was a substantial
factor in Melody‘s death supports the court‘s finding of jurisdiction under
subdivision (f) regardless of whether Mother was Carl Jr.‘s custodial parent.
―Once the child is found to be endangered in the manner described by one of the
subdivisions of section 300 . . . the child comes within the court‘s jurisdiction,
even if the child was not in the physical custody of one or both parents at the time
the jurisdictional events occurred. [Citation.] For jurisdictional purposes, it is
irrelevant which parent created those circumstances.‘ ‖ (In re I.A. (2011)
201 Cal. App. 4th 1484, 1491–1492.)
Finally, Carl Jr. argues the court erred in finding untrue the jurisdictional
allegation under subdivision (b)(1) that ―the parents have failed to protect the
minor adequately in that he has been residing in the home of a relative (the
maternal grandmother) in which supplies of dangerous medications are left within
easy access of children. The minor stated that ‗all the children can get into‘ the
medication. The minor had previously been hospitalized (in February of 2014)
after ingesting the same relative‘s methadone pill. A sibling Melody F. also died
in the home . . . and an autopsy documented that Melody had methadone in her
system at the time of her death.‖ Carl Jr. argues the court‘s dismissal of this
allegation because he ―seemed to be aware‖ of the risks of ingesting drugs left
around the house does not support its conclusion that the conditions of
Grandmother‘s home did not place him at substantial risk of harm.
We understand the Agency‘s disappointment that a juvenile court could reach
such a conclusion about an eight-year-old boy under these circumstances.
Nonetheless, we will not address this finding because the court asserted
jurisdiction over Carl Jr. pursuant to subdivision (f). That jurisdiction is unaffected
24
by the court‘s ruling on the subdivision (b) allegations, whether or not it would
withstand appellate review were the issue squarely before us. ― ‗ ―[T]he minor is a
dependent if the actions of either parent bring [him] within one of the statutory
definitions of a dependent.‖ ‘ [Citation.] For this reason, an appellate court may
decline to address the evidentiary support for any remaining jurisdictional findings
once a single finding has been found to be supported by evidence.‖ (In re I.A.,
supra, 201 Cal.App.4th at p. 1492; In re Alexis E. (2009) 171 Cal. App. 4th 438,
451; In re Shelley J. (1998) 68 Cal. App. 4th 322, 330; Randi R. v. Superior Court
(1998) 64 Cal. App. 4th 67, 72.)
II. Disposition
A. Carl Jr.
After sustaining the subdivision (f) allegation regarding Mother‘s role in the
death of Carl Jr.‘s sibling, the court declared him to be a dependent of the court,
then immediately dismissed his dependency petition with orders specifying that
Carl Sr. was to retain physical custody. Carl Jr. asserts the court erred in
dismissing the petition because further findings were required by rule or statute,
and the court could not return Carl Jr. to his father‘s care without ordering services
required by law. He also suggests the court erroneously believed the law
compelled it to dismiss his petition because Carl Sr. was a ―non-offending‖
custodial parent. We agree the dismissal was error.
1. Background
After the jurisdictional rulings, the parties and court turned to the
appropriate disposition for Carl Jr. While the thread of the discussions is difficult
to untangle, it seems clear that in varying measures the participants shared
confusion over the relevant law. It was suggested, although without any clear
resolution, that the untrue finding on the failure to protect allegations directed to
Carl Sr. deprived the court of jurisdiction to do anything but return the boy to his
25
father‘s custody. After addressing visitation issues, the court indicated it was
inclined to dismiss Carl Jr.‘s dependency petition and place him with Carl Sr. This
was explored during later colloquy:
―[Mother‘s Counsel]: ―[M]y understanding of what happened, if it helps the
Court, and this is not because it impacts me at all, is I understood that there was a
no—[Carl Sr.] was a non-offending parent and, therefore, the Agency agreed that
the case by law should be dismissed. [¶] [The Court]: And that‘s in its entirety?
[¶] [Agency‘s Counsel]: And, your Honor, my understanding is, is that under—
what we discussed yesterday was that under 361, I believe it is, is that the
Agency‘s—there were no petition counts with regards to father. The Agency—by
law since there is no petition counts as to father, father is a non-offending parent, I
think that—the Agency continues to believe that there is still a risk to this child. [¶]
[The Court]: Of course. No, no, I understood that you objected to my findings.
[¶] . . . . [I]n this case mom is the center of it. Then configured around mom . . . [¶]
is the two fathers, that there are (sic) domestic violence conflict or conflict between
the two fathers, and within that is the children, which is why I‘m making the
decisions I‘m making, because the law requires me to. But that‘s the—the
difficulty of making decisions in regards to [Carl Sr.] was because of this
configuration. I understand that. [¶] . . . [¶] But the law tells me that I am not
supposed to look at the best families. I‘m not supposed to look at what‘s—I‘m
supposed to look at what—if there‘s a violation in regards to the petition. So that‘s
what I did. [¶] . . . [¶] So it‘s my understanding that that petition then is
dismissed.‖
2. Analysis
First, we reject the argument raised by both the Agency and Carl Sr. that
Carl Jr. forfeited his right to challenge the dismissal on appeal by acquiescing or
failing to object to it at trial. ―Where, as here, ‗the facts are not disputed, the effect
26
or legal significance of those facts is a question of law,‘ which ‗is not
automatically subject to the doctrine of forfeiture.‘ ‖ (In re Rebecca S. (2010)
181 Cal. App. 4th 1310, 1314.) We decline to deem this important issue forfeited
because it appears that all participants in the proceedings were unclear on the
governing law, and an appellate determination on the validity of the dismissal
could bear upon whether this child and family get the supervision, support and
stability offered by our dependency system. (See In re S.B. (2004) 32 Cal. 4th
1287, 1293–1294; In re Rebecca S, supra at pp. 1313–1314.)
―A section 300 dependency hearing is bifurcated to address two distinct
issues. First, at the jurisdictional hearing, the court determines whether the child
falls within any of the categories set forth in section 300. If so, the court may
declare the minor a dependent child of the court. [Citation.] Then, at the
dispositional hearing, the court must decide where the child will live while under
its supervision, with the paramount concern being the child‘s best interest.
[Citation.] The juvenile court has broad discretion to decide what means will best
serve the child‘s interest and to fashion a dispositional order accordingly.‖ (In re
Corey A. (1991) 227 Cal. App. 3d 339, 345–346.)
Once the juvenile court has found the minor comes within its jurisdiction
under section 300, it may choose among a number of alternative courses of action
in selecting an appropriate disposition. ―In most cases at the disposition hearing
the court determines what services the child and the family need to be reunited and
free of court supervision. The court may enter an order ranging from dismissal of
the petition (§ 390; rule 5.695(a)(1)) to declaring dependency, removing physical
custody from the parents and making a general placement order for the child
(§ 361; rule 5.695(a)(7)). If appropriate, the court may declare the child a
dependent and, without removing the child from his or her home, order family
maintenance services to ameliorate the conditions that made the child subject to the
27
court‘s jurisdiction. (§ 362, subd. (a); rule 5.695(a)(5).) Alternatively, if the court
determines by clear and convincing evidence there is a substantial danger to the
physical health, safety, protection or physical or emotional well-being of the child
if the child remains in his or her home and there is no other reasonable means to
protect the child (§ 361, subd. (c)(1)-(4); rule 5.695(d) [removal of custody—
required findings]), in the absence of a noncustodial parent who desires custody
(see § 361.2), the child must be removed from the physical custody of his or her
parents and placed ‗under the supervision of the [county] social worker who may
place the child‘ ‖ in an appropriate home. (§ 361.2, subd. (e); Bridget A. v.
Superior Court (2007) 148 Cal. App. 4th 285, 302–303.)
Here, the court‘s dismissal of the petition is problematic for a number of
reasons. First, it does not comply with the statutory requirements for dismissal.
Section 361.2, which the Agency suggests as a basis for the court‘s ruling, applies
only when the court places the dependent child with a parent ―with whom the child
was not residing at the time that the events or conditions arose that brought the
child within the provisions of Section 300.‖ (§ 361.2, subd. (a).) Carl Sr. was Carl
Jr.‘s custodial parent when Melody died, so section 361.2 is inapplicable on its
face.
Pursuant to section 390, which Carl Sr. and the Agency assert as authority
for the court‘s action here, the juvenile court may ―dismiss the petition or may set
aside the findings and dismiss the petition if the court finds that the interests of
justice and the welfare of the minor require the dismissal, and that the parent or
guardian of the minor is not in need of treatment or rehabilitation.‖ But a petition
may not be dismissed under section 390 unless the court makes the statutorily
required findings, namely: (1) ―that the interests of justice and the welfare of the
minor require the dismissal‘ and (2) ―that the parent or guardian of the minor is not
in need of treatment or rehabilitation.‖ (See Los Angeles County Dept. of Children
28
and Family Services v. Superior Court (2008) 162 Cal. App. 4th 1408, 1418 (Los
Angeles CFS) italics omitted; In re Natasha H. (1996) 46 Cal. App. 4th 1151, 1156–
1157 (Natasha H.); (Cal. Rules of Court, rule 5.695.) ―Such dismissals are rare and
usually occur only when the goal of protecting the child has been achieved without
court intervention.‖ (Abbott, et al., Cal. Juvenile Dependency Practice (2015)
§ 5.15, p. 318.)
Here, as in Natasha H., the court did not make the required findings. Nor
could it. Despite the availability of other housing options, Carl Sr. chose to place
his young son at risk by living with Grandmother, even after Carl Jr. was poisoned
by the methadone left freely around the house in reach of the children. He exposed
his son to marijuana. He had a sexual relationship with Mother when she was a
minor, impregnating her when she was 13 or 14 years old. He abused her in front
of their son. He exhibited callous disregard for the lives and wellbeing of his son‘s
young half-sisters when they were in Grandmother‘s home, feeling no
responsibility to protect them from obvious hazards there. He lacked appropriate
housing. None of that was seriously disputed. On this record, it is difficult to
understand how a trier of fact could conclude Carl Jr.‘s welfare and the interests of
justice demanded that the court terminate its dependency jurisdiction. As Connie
wrote, ―[Carl Sr.] needs to demonstrate his ability to make decisions in the best
interest of his son and that demonstration should [be] monitored over a significant
period of time. Carl Jr. has parented himself long enough.‖
Nor, contrary to Carl. Sr.‘s argument, does subdivision (a) of rule 5.695
authorize the dismissal of a petition without the findings required by section 390.
The rule permits the court at disposition to ―(1) [d]ismiss the petition with specific
reasons stated in the minutes.‖ The term ―specific reasons‖ plainly refers to the
findings required by section 390, which rule 5.695 implements. Any other
interpretation would be inconsistent with the legislative intent expressed in the
29
statutory enactment, and therefore invalid. (See Los Angeles CFS, supra, 162
Cal.App.4th at p. 1420; California Court Reporters Assn. v. Judicial Council of
California (1995) 39 Cal. App. 4th 15, 23–26.)8
The Agency‘s suggestion that section 362, subdivision (c) authorizes the
dismissal is equally unpersuasive. It provides: ―If a child is adjudged a dependent
child of the court, on the ground that the child is a person described by Section
300, and the court orders that a parent . . . shall retain custody of the child subject
to the supervision of the social worker, the parents or guardians shall be required to
participate in child welfare services or services provided by an appropriate agency
designated by the court.‖ This provision says nothing about the court‘s power to
dismiss a dependency, and in any event seemingly would not apply where, as here,
the court made no provision for Agency supervision.
Carl Sr.‘s remaining arguments are also meritless. He claims the court did
not find Carl Jr. to be a dependent of the court, but it clearly did. He contends
there was no clear and convincing evidence to support removing Carl Jr. from his
custody as required under section 361, subdivision (c),9 but there is no challenge
here to the court‘s placement of Carl Jr. in his custody. The question, rather, is
whether the court erred when it dismissed the petition. Section 361, subdivision
(c) has no bearing on that question.
8
While rule 5.695 specifies seven potential dispositions the court may order, four
of these include a declaration of dependency while three, including the option of
dismissal, do not. While we need not resolve the question, it bears asking whether rule
5.695 authorizes the court to dismiss a petition once, as here, it has declared the child a
dependent of the court.
9 Section 361, subdivision (c) states that ―[a] dependent child shall not be taken
from the physical custody of his or her parents or guardian or guardians with whom the
child resides at the time the petition was initiated, unless the juvenile court finds clear and
convincing evidence‖ of one of five situations (six, if the child is an Indian child) set out
in subdivisions (c)(1)-(6).
30
Lacking an apparent statutory basis and unjustified by the factual
circumstances, the dismissal of Carl Jr.‘s adjudicated dependency must be reversed
and the matter remanded to afford the court the opportunity to consider, in light of
current circumstances, the array of dispositional options available for his support.
(See, e.g., § 360, subd. (b) [informal supervision with participation in services];
§ 362, subd (c) [adjudication of dependency with placement in home subject to
supervision and services]; § 16506 [availability of family maintenance services];
Abbott, et al., Cal Juvenile Dependency Practice (2015) § 5.15 et seq., pp. 318.322;
Seiser & Kumli, Seiser & Kumli on California Juvenile Courts Practice and
Procedure § 2.123-2.124, pp. 2-372—2-379 (Matthew Bender 2016).)
B. Denial of Reunification Services
Mother, Carl Jr. and Harmony assert the court abused its discretion when it
bypassed reunification services for Mother. Here, we must disagree.
―Section 361.5, subdivision (a) generally provides that in dependency cases
parents shall be entitled to reunification services ‗whenever a child is removed
from a parent‘s . . . custody,‘ ‗[e]xcept as provided in subdivision (b).‘ Section
361.5, subdivision (b) provides a detailed list of circumstances in which such
services need not be provided, commonly known as ‗bypass‘ provisions. The
bypass provisions constitute a legislative acknowledgement that ‗ ―it may be
fruitless to provide reunification services under certain circumstances.‖ ‘ ‖ (D.T. v.
Superior Court (2015) 241 Cal. App. 4th 1017, 1033.) One such set of
circumstances arises when the court finds by clear and convincing evidence that
―the parent or guardian of the child has caused the death of another child through
abuse or neglect.‖ (§ 361.5, subd. (b)(4).) Upon such a finding, the court ―shall
not order reunification‖ for that parent unless it finds by clear and convincing
evidence that reunification is in the child‘s best interest. (§ 361.5, subd. (c).)
31
Thus, when the court has sustained a jurisdictional allegation under section
300, subdivision (f) the parent must affirmatively show that reunification would be
in the child‘s best interest. (Mardardo F. v. Superior Court (2008) 164
Cal. App. 4th 481, 492.) ―To determine whether reunification is in the child‘s best
interest, the court considers the parent‘s current efforts, fitness, and history; the
seriousness of the problem that led to the dependency; the strength of the parent-
child and caretaker-child bonds; and the child‘s need for stability and continuity.
[Citation.] A best interest finding requires a likelihood reunification services will
succeed; in other words, ‗some ―reasonable basis to conclude‖ that reunification is
possible.‘ ‖ (In re Allison J. (2010) 190 Cal. App. 4th 1106, 1116; In re William B.
(2008) 163 Cal. App. 4th 1220, 1228–1229.)
Mother and Harmony argue, in essence, that uncontradicted evidence
compelled a finding it was in the children‘s best interests to provide Mother
reunification services. ―When sufficiency of the evidence to support a finding is
challenged on appeal, the appellate court determines if there is any substantial
evidence to support its finding. [Citation.] Moreover, the court cannot reverse the
juvenile court‘s determination, reflected in the dispositional order, of what would
best serve the child‘s interest, absent an abuse of discretion.‖ (Ethan N., supra,
122 Cal.App.4th at pp. 64–65.) And when the party asserting a claim of
insufficient evidence had the burden of proof at trial, ―the question for a reviewing
court becomes whether the evidence compels a finding in favor of the appellant as
a matter of law. [Citations.] Specifically, the question becomes whether the
appellant‘s evidence was (1) ‗uncontradicted and unimpeached‘ and (2) ‗of such a
character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.‖ (In re I.W. (2009) 180 Cal. App. 4th 1517, 1528
(I.W.).)
32
The court‘s application of these principles in I.W. seems particularly relevant
here. It wrote: ―[A]s in many dependency cases, the case posed evidentiary
conflicts. And, as is common in many dependency cases, this case obligated the
juvenile court to make highly subjective evaluations about competing, not
necessarily conflicting, evidence. . . . [T]he juvenile court considered the
conflicting, competing evidence and essentially discounted mother‘s evidence in
concluding that mother had failed to carry her burden of proof. It is not our
function to retry the case. We therefore decline mother‘s implicit invitation to
review the record so as to recount evidence that supports her position (reargument)
with the object of reevaluating the conflicting, competing evidence and revisiting
the juvenile court‘s failure-of-proof conclusion.‖ (In re I.W., supra,
180 Cal.App.4th at pp. 1517, 1528.) Here, in view of Connie‘s testimony that
Mother could not reunify within the reunification period, ―[t] his is simply not a
case where undisputed facts lead to only one conclusion.‖ (Id. at p. 1529.)
Harmony also asserts the court erroneously based its decision on a
conjecture that her placement with maternal aunt Iona V., and, with it, Mother‘s
access to frequent visitation, would become permanent. Not so. The court
exhaustively reviewed the evidence to reach its determination that reunification
was not in Harmony‘s best interest. While it mentioned its expectation that there
would be visitation, nothing in the record suggests, as Harmony claims, that this
expectation ―form[ed] a significant basis for the court‘s decision to deny
reunification services as purported mitigation of the detriment.‖ To the contrary,
the court concluded based on all the evidence that Mother could not, and would not
within the reunification period be able to, provide Harmony with the parenting she
needed. The record supports its determination, and we are not free to conclude
otherwise.
33
Mother‘s assertion that the court should have provided her with services to
help her reunify with Carl Jr. is also unavailing, although for a different reason.
By express statutory requirement, ―[f]amily reunification services shall only be
provided when a child has been placed in out-of-home care, or is in the care of a
previously noncustodial parent under the supervision of the juvenile court.‖
(§ 16507, subd. (b)) Carl Jr. was neither placed in out-of-home care nor with a
previously noncustodial parent. Rather, he was returned to the custody of his
father, his custodial parent. Accordingly, there was no legal basis for the court to
provide Mother with services designed to help her reunify with her son.
DISPOSITION
The order dismissing Carl Jr.‘s petition is reversed and the matter is
remanded to the juvenile court for further proceedings. In all other respects, we
affirm. Carl. Sr.‘s motion to strike a portion of Carl Jr.‘s reply brief is denied.
Mother‘s request for judicial notice of post-disposition orders regarding visitation
or, alternatively, to introduce those orders as postjudgment evidence, is denied
without prejudice to mother‘s right to incorporate and address any such orders
should she seek modification of the juvenile court‘s orders upon grounds of
changed circumstances pursuant to section 388. (See In re Zeth S. (2003)
31 Cal. 4th 396, 413–414; cf. In re N.S. (2016) 245 Cal. App. 4th 53.)
34
_________________________
Siggins, J.
We concur:
_________________________
Pollak, Acting P.J.
_________________________
Jenkins, J.
In re H.F. et al., A147335/A147220
35
36
Trial Court: City & County of San Francisco Superior
Court
Trial Judge: Honorable Newton J. Lam
Linda J. Harvie, First District Appellate Project, for Defendant and Appellant, N.B.
Jacob I. Olson, First District Appellate Project, for Defendant and Appellant, K.F.
Donna Wickham Furth, First District Appellate Project, for Appellant, Carl Jr.
Seth Forrest Gorman, First District Appellate Project, for Appellant, Harmony F.
Jeremy Sugerman, Office of the City Attorney, for Plaintiff and Respondent, San Francisco
Human Services Agency.
Leslie A. Barry, First District Appellate Project, for Respondent Carl Sr.
37