In re S.P. CA1/2 ( 2021 )

Filed 3/22/21 In re S.P. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re S.P., a Person Coming Under
the Juvenile Court Law.
LAKE COUNTY DEPARTMENT OF
SOCIAL SERVICES,
A160631
Plaintiff and Respondent,
v. (Lake County
Super. Ct. No. JV320539)
A.N.,
Defendant and Appellant.
At a family maintenance review hearing in this dependency, the
juvenile court ordered the minor, S.P., placed with his father and family
enhancement services for his mother, appellant A.N. (mother). Mother
argues that a supplemental petition under Welfare and Institutions Code
section 3871 was required to effect this change in placement and that her
right to due process was violated at the hearing. We affirm.
BACKGROUND
On August 9, 2018, the Lake County Department of Social Services
(Department) initiated these dependency proceedings with respect to then 19-
Further undesignated statutory references are to the Welfare and
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Institutions Code.
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month-old S.P. by filing a petition in the juvenile court pursuant to section
300, subdivisions (a), (b)(1) and (g). The petition alleged that mother had
untreated mental health issues and a history of engaging in domestic
violence with S.P.’s father.
On November 18, 2019, at a 12-month-review hearing, the juvenile
court ordered S.P. returned to his parents’ care under a plan of family
maintenance.
On February 27, 2020, the Department filed a Request To Change
Court Order pursuant to section 388, alleging that on February 2, a domestic
violence incident took place between the parents with S.P. present,
precipitated by mother’s non-compliance with her mental health therapy and
medication. The request indicated that S.P. had been temporarily placed
with his maternal grandmother, that father moved in with his sister and
brother-in-law, and that S.P. then went to live with him. The Department
asked the juvenile court to terminate maintenance services for mother and
instead offer her enhancement services, while continuing family maintenance
services for father. Because the Department sought the same relief at an
upcoming family maintenance review hearing, i.e., family maintenance
services for father and enhancement services for mother, the Department
later withdrew its section 388 petition.
The family maintenance review hearing ultimately took place on
July 1. At the hearing, mother’s counsel argued that switching mother from
maintenance to enhancement services would amount to a detention such that
the Department was required to file a supplemental petition pursuant to
section 387. After hearing argument, the juvenile court rejected this
argument, concluding that “the father has the child, so it’s not a custody—it’s
not a detention.” The juvenile court then ordered enhancement services for
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mother and maintenance services for father, as recommended by the
Department.
Mother appeals.
DISCUSSION
Section 387 provides: “An order changing or modifying a previous order
by removing a child from the physical custody of a parent, guardian, relative,
or friend and directing placement in a foster home, or commitment to a
private or county institution, shall be made only after noticed hearing upon a
supplemental petition.” And California Rules of Court, rule 5.560(c)
(rule 5.560(c)) provides: “A supplemental petition must be used if petitioner
concludes that a previous disposition has not been effective in the protection
of a child declared a dependent under section 300 and seeks a more
restrictive level of physical custody. For purposes of this chapter, a more
restrictive level of custody, in ascending order, is [¶] (1) Placement in the
home of the person entitled to legal custody; (2) Placement in the home of a
noncustodial parent; (3) Placement in the home of a relative or friend;
(4) Placement in a foster home; or (5) Commitment to a private institution.”
“Where the facts are undisputed and the sole question before us is one
of statutory interpretation, we apply a de novo standard of review. (Wolf [v.
Appellate Division of Superior Court (2019)] 38 Cal.App.5th [699,] 702;
People v. Guerra (2016) 5 Cal.App.5th 961, 966.) ‘In interpreting the
language of the [Rules of Court], we apply traditional rules of statutory
interpretation. [Citations.] . . . [T]he primary goal when interpreting a
statute or rule is to determine the drafters’ intent in order to give effect to the
rule’s purpose. [Citation.]’ (Harris [v. Appellate Division of Superior Court
(2017)] 14 Cal.App.5th [142,] 148.) ‘In the first step of the interpretive
process we look to the words of the statute themselves. . . . If the statutory
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language is clear and unambiguous, our task is at an end, for there is no need
for judicial construction.’ (MacIsaac v. Waste Management Collection &
Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082–1083.)” (Webster v.
Appellate Division of Superior Court (2020) 51 Cal.App.5th 676, 679–680.)
Mother argues that the Department was required to file a
supplemental petition under section 387 and rule 5.560(c) because “the
Department sought a more restrictive placement: the home of the person
entitled to legal custody, and/or the home of a relative,” i.e., S.P.’s paternal
aunt. Mother does not cite any authority for this proposition, nor does she
engage in any analysis of the text of rule 5.560(c).
We do not agree that the Department sought or was granted a more
restrictive placement at the July 1 hearing according to the plain text of
section 387 or rule 5.560(c). Certainly the juvenile court did not order
“placement in a foster home or commitment to a private or county
institution.” (§ 387.) Nor was placement ordered “in the home of a relative”
within the meaning of rule 5.560(c). Before the July 1 hearing, the court’s
placement order indicated, by checking the corresponding boxes on a Judicial
Council Form, that “[t]he child is placed, effective immediately, in the care
and custody of” both mother and “presumed father.” The court’s order after
the July 1 hearing used the same form and checked only the box for
“presumed father.” The juvenile court made no mention of the paternal aunt
at the hearing. The Department’s status report noted that father was living
with his sister, and found that father “is in a stable home environment where
he provides [S.P.] with consistency.” In short, the Department sought, and
the juvenile court granted, placement with father—not placement in the
home of a relative. And both before and after the hearing, S.P. was placed in
the “home of the person entitled to legal custody”—the least restrictive level
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of physical custody under rule 5.560(c). A supplemental petition under
section 387 was not required.
Mother also argues that her right to due process was violated because
she did not have the opportunity to cross-examine witnesses and to present
evidence at the July 1 hearing. But the Department did not call any
witnesses for mother’s counsel to cross-examine, and mother did not ask to
call any of her own witnesses or to introduce any evidence. In fact, at the
beginning of the hearing, the juvenile court asked whether the parties wished
to present “[a]ny other evidence or comment,” and mother’s counsel replied
“Argument, Your Honor.” Mother has not demonstrated any due process
violation.
DISPOSITION
The juvenile court’s order is affirmed.
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_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Stewart, J.
In re S.P. (A160631)
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