Opinion
B301767
06-25-2020
In re H.D., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MARIA R., Defendant and Appellant.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP05370) APPEAL from an order of the Superior Court of Los Angeles County, Steff R. Padilla, Juvenile Court Referee. Affirmed. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
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Mother has four children. This appeal concerns only H.D., mother's daughter born in August 2009. H.D. lived with mother until the dependency court placed her in her father E.D.'s custody. H.D.'s father (who was not the father of mother's other children) lives in Nevada with his wife and son. After ordering H.D. placed in father's custody, the juvenile court continued jurisdiction to ensure that H.D. received therapy. When satisfied that father would continue H.D.'s therapy, the juvenile court terminated jurisdiction over her. Mother appeals from that order.
Mother demonstrates that the juvenile court erred in applying Welfare and Institutions Code section 364, rather than section 361.2, when it terminated jurisdiction over H.D. Section 361.2 applies because the juvenile court removed H.D. from her custodial home. Nevertheless, the standards for terminating jurisdiction under the two statutes are similar, and H.D. demonstrates no prejudice from the application of the wrong statute. We thus affirm the juvenile court's order terminating jurisdiction.
All statutory citations are to the Welfare and Institutions Code.
BACKGROUND
Prior to the current dependency proceedings, the Los Angeles County Department of Children and Family Services (DCFS) received several referrals, which proved inconclusive. Allegations of general neglect were substantiated in May 2012 based on mother's failure to provide a safe and clean home for the children. Mother admitted that she failed to clean the home adequately.
1. DCFS Files Two Petitions; The Juvenile Court Sustains All Allegations
DCFS filed a section 300 petition on August 23, 2018. W.T. was mother's male companion and the father of H.D.'s two younger half siblings. DCFS alleged that W.T. sexually abused H.D. W.T. put H.D.'s hand on his penis and attempted to "have sexual relations" with her. He also tried to kiss H.D. and remove her clothing. DCFS alleged that mother failed to protect H.D. from W.T.'s sexual abuse.
When interviewed by a social worker, H.D. reported that W.T. tried to kiss her and remove her clothing. H.D. reported that after H.D. told mother about W.T.'s conduct, mother did not allow W.T. into the family home. H.D. told maternal grandmother that W.T. wanted to have sex with her. H.D. told a nurse that W.T. forced her to touch his penis and asked her to remove his clothing saying, " 'Let's have sex.' "
On January 10, 2019, DCFS filed a supplemental petition alleging that mother's home was in a "filthy, unsanitary and unsafe condition in that trash and dirty clothes were found scattered and cluttered on the floor throughout the children's home. The home emitted an odor of feces and urine."
The social worker interviewed the children outside the home because she was "unable to cope with the strong odor." The social worker observed that H.D. appeared to have a dirty face and dirty hands and nails. The social worker observed the home "in unsanitary and hazardous condition . . . [with] a strong urine and foul odor." The social worker observed trash on the floor, dirty walls, a cluttered kitchen, dirty dishes, as well as dirty mattresses and bedding.
The juvenile court sustained all allegations in both petitions. 2. The Juvenile Court Placed H.D. in Father's Custody
On January 9, 2019, the juvenile court released H.D. to father's custody. Just over a week later, DCFS asked that the case remain open "for the adjustment period."
In September 2019, DCFS requested the juvenile court terminate jurisdiction over H.D. The juvenile court did not immediately terminate jurisdiction, explaining: "[I]t's not about mom the reason I'm keeping the case open . . . . I want to make sure H[.D.] has received the services to have a healthy response to the dysfunctional relationship with her mother." Father's counsel argued that father would ensure H.D. received the necessary treatment. The court stated, "I'll come back in 30 days to see if that's the case. We'll come back . . . . I think that's an excellent suggestion."
Meanwhile, DCFS reported that H.D. enjoyed living with her father and stepmother. H.D. "does her chores in the home, goes to school daily, practices good body hygiene and is respectful." H.D. saw a therapist, who recommended she continue therapy to process "fear, worry, and concern she is experiencing regarding her relationship with her mother, past vicarious traumas, and her acclimating to her new placement with her father." H.D. refused to speak to mother, explaining only that mother was "mean" to her. 3. The Juvenile Court Terminated Jurisdiction Over H.D.
On October 17, 2019, the juvenile court held a hearing. Mother did not appear. Mother's counsel argued: "The mother is aware that it's not a practical reality that this child is going to be dragged unwilling to visits to see her. . . . [¶] [M]other's request would be that reunification services continue, in lieu of that, if the case is, in fact, to close, given the lack of risk with the father, the mother would ask that the visits not be required to occur within a therapeutic setting only because, given the difficulty in ever arranging those visits when the case is open and under supervision, it's highly unlikely the mother would have any contact if those are conditioned on a therapeutic setting once the case closes."
H.D.'s counsel argued that H.D. was enrolled in therapy and her father and stepmother planned to continue having H.D. visit a therapist after the juvenile court terminated jurisdiction.
The juvenile court concluded that it would terminate jurisdiction, but agreed with mother that her visits did not require a therapeutic setting. The juvenile court's order terminating jurisdiction references section 364. The juvenile court awarded father sole legal and sole physical custody. Mother was provided monthly monitored visits in H.D.'s city of residence.
DISCUSSION
It is undisputed that the juvenile court erred in applying section 364 when it terminated jurisdiction. Section 364 does not apply when, as in this case, the dependent child was removed from her custodial home. (In re Sarah M. (1991) 233 Cal.App.3d 1486, 1493-1494, disapproved on another ground in In re Chantal S. (1996) 13 Cal.4th 196, 204; see also In re Maya L. (2014) 232 Cal.App.4th 81, 98.) Instead of applying section 364, the juvenile court should have applied section 361.2. (In re Maya L., at p. 99.)
The determination of the applicability of a statute is a legal question. (See People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5.) In general, we review legal questions de novo. (In re Destiny D. (2017) 15 Cal.App.5th 197, 205.) Here, the parties agree that the juvenile court applied the wrong statute.
Section 364 provides in pertinent part: "(a) Every hearing in which an order is made placing a child under the supervision of the juvenile court pursuant to Section 300 and in which the child is not removed from the physical custody of his or her parent or guardian shall be continued to a specific future date not to exceed six months after the date of the original dispositional hearing. . . . [¶] . . . [¶] (c) After hearing any evidence presented by the social worker, the parent, the guardian, or the child, the court shall determine whether continued supervision is necessary. The court shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn. . . . "
Section 366.21, subdivision (e)(6) provides: "If the child had been placed under court supervision with a previously noncustodial parent pursuant to Section 361.2, the court shall determine whether supervision is still necessary. The court may terminate supervision and transfer permanent custody to that parent, as provided for by paragraph (1) of subdivision (b) of Section 361.2." Section 361.2 subdivision (b)(1) provides: The juvenile court may "[o]rder that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child. The custody order shall continue unless modified by a subsequent order of the superior court. The order of the juvenile court shall be filed in any domestic relation proceeding between the parents."
The standard for terminating jurisdiction under section 364 is similar to the standard for terminating jurisdiction under section 361.2. (In re Maya L., supra, 232 Cal.App.4th at p. 99.) "In both instances, the court must 'determine whether continued supervision is necessary.' [Citation.] However, for a child placed with a noncustodial parent under section 361.2, . . . the court need not consider whether ' "the conditions still exist which would justify initial assumption of jurisdiction . . . ." ' " (In re Maya L., at p. 99.)
As the parties agree, the juvenile court applied the wrong statute. We therefore determine if that error was prejudicial. (In re Sarah M., supra, 233 Cal.App.3d at p. 1495.) Mother acknowledges that "if the evidence on the appropriate issue was undisputed and supports a finding that there is no need for continued supervision, this Court may affirm the order terminating jurisdiction."
This is what happened in In re Janee W. (2006) 140 Cal.App.4th 1444. In that case, the juvenile court applied section 364 when it should have applied section 361.2. (In re Janee W., at pp. 1450-1451.) The undisputed social workers' reports demonstrated that the children were adjusted to living with their father, who had not previously had custody over them, and that their father provided a safe residence. (Id. at p. 1452.) Therefore, the juvenile court's continuing supervision of the children was unnecessary and the juvenile court's reliance on the wrong statute was harmless. (Id. at p. 1453.)
Similarly here, mother suffered no prejudice from the juvenile court's misapplication of section 364. Under both sections 364 and 361.2, the juvenile court had to determine whether the juvenile court's continued supervision was necessary prior to terminating jurisdiction. Mother identifies no evidence supporting the conclusion that continued supervision was necessary. The juvenile court cautiously extended its jurisdiction until it determined that father would ensure H.D. regularly visited a therapist. Although on appeal (for the first time), mother implies that father would discontinue therapy if the juvenile court terminated jurisdiction, no evidence supports mother's argument.
As in In re Janee W., the evidence here was undisputed. H.D. was living with her father, who was nonoffending. Father provided H.D. with a safe home. Father and stepmother ensured that H.D. attended therapy. There was no evidence that H.D. was at any risk in father's care. The undisputed evidence showed no need for continued juvenile court supervision. In sum, mother demonstrates no prejudice from the juvenile court's error in referencing section 364 instead of section 361.2.
Mother's counsel conceded that father posed no risk to H.D.
Mother's claim that there was a need for continuing jurisdiction because H.D. had unresolved emotional issues and refused to visit mother is unpersuasive. The undisputed evidence demonstrated that father was addressing H.D.'s emotional needs by enrolling her in therapy. H.D.'s therapist developed specific goals for her continued therapy including improving H.D.'s relationship with mother. In sum, mother has failed to show that continued jurisdiction was necessary to address H.D.'s emotional needs.
The fact that H.D. refused to visit mother does not support the contention that she needed the protection of the juvenile court. Even if, as mother argues, that "preservation" of mother's relationship with H.D. "hinged" on the juvenile court's supervision, mother cites no authority for the proposition that a juvenile court is required to continue jurisdiction to "preserve" a parent's relationship with a child who is refusing to visit that parent. Absent a risk of harm to H.D., the juvenile court did not err in terminating jurisdiction. (See In re Chantal S., supra, 13 Cal.4th at p. 204 [dependency court jurisdiction continues as necessary for child's protection]; see also In re Sarah M., supra, 233 Cal.App.3d at p. 1500 [continuing jurisdiction not warranted merely to work out custody or visitation issues].)
Respondent argues that mother forfeited her right to pursue on appeal a challenge to the juvenile court's misapplication of section 364 because mother did not object on that basis below. We need not decide whether the forfeiture doctrine applies when the juvenile court resolves a case under a statute inapplicable to the circumstances of that case. Even if the issue were technically forfeited, we would have discretion to consider the issue on the merits. (In re Anthony Q. (2016) 5 Cal.App.5th 336, 345.) --------
DISPOSITION
The order terminating jurisdiction over H.D. is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
CHANEY, J.