Opinion
A148100
02-15-2017
In re D.G., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. D.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. JD003398
The juvenile court dismissed D.G.'s dependency case several months before his 20th birthday. (See Welf. & Inst. Code, §§ 303, 391). D.G. appeals, contending: (1) the court erroneously assumed it lacked discretion to continue jurisdiction over him as a nonminor dependent; and (2) the evidence established terminating dependency jurisdiction was not in his best interests. We disagree and affirm.
All undesignated statutory references are to the Welfare and Institutions Code. The juvenile court has discretion to retain jurisdiction over a dependent until he or she "attains the age of 21 years." (§ 303, subd. (a); see also In re Shannon M. (2013) 221 Cal.App.4th 282, 284.)
FACTUAL AND PROCEDURAL BACKGROUND
D.G. was born in May 1996. He is "mentally delayed" and suffers from "behavioral and emotional difficulties." The court declared D.G. a dependent in 2001 (§ 300, subds. (b), (j)). The following year, the court terminated reunification services and ordered a permanent plan of long term foster care. In 2008, D.G. became eligible for services from Golden Gate Regional Center (GGRC).
In May 2013, D.G. — then almost 17 — left school without permission and "physically assaulted a 74-year-old man by pushing him against a fence and hitting him with a closed fist." D.G. was arrested, but later released to his maternal grandmother on the condition he wear a GPS monitor and remain supervised by an adult. D.G. "AWOL'ed and cut the GPS monitor off his ankle." Eventually, D.G. was returned to custody; a psychological evaluation concluded he needed to be in a "locked facility that specializes in working with minors with low IQ, emotional issues, and conduct problems." In September 2013, San Francisco Human Services Agency (Agency) filed a supplemental petition pursuant to section 387 seeking to have D.G. placed at KidsPeace, a residential facility in Pennsylvania. The Agency opined D.G. would be "best served" at KidsPeace "due to several arrests since May of this year . . . ." The court sustained the supplemental petition and approved the placement.
In early 2014, the Agency recommended D.G. remain under juvenile court jurisdiction when he turned 18 because he needed "to continue receiving treatment at KidsPeace until he is ready to transition back into society." The Agency noted D.G. was eligible for long term foster care benefits under AB 12 because he was completing secondary education or a program leading to an equivalent credential, and because he was participating in a program designed to remove barriers to employment. In April 2014, the court entered an order continuing jurisdiction over D.G. as a nonminor dependent after he "attain[ed] 18 years of age." In March 2015, D.G., then 19, returned to San Francisco. Shortly thereafter, he was arrested and charged with "premediated attempted murder, robbery, and contributing to the delinquency of a minor." D.G. faced "a maximum possible sentence of 12 years."
AB 12 is shorthand for California Fostering Connections to Success Act, which allows "California to take advantage of newly available federal funding for extended foster care benefits for certain nonminor dependents who were under an order of foster care placement when they turned 18 (§ 11400 et seq.; see 42 U.S.C. § 675(8))." (In re Shannon M., supra, 221 Cal.App.4th at p. 285.) D.G.'s eligibility for AB 12 benefits is not at issue on appeal. (See In re A.A. (2016) 243 Cal.App.4th 765, 775 [discussing eligibility requirements].)
In August 2015, the Agency recommended dismissing the dependency and terminating jurisdiction over D.G. According to the Agency, it was not in D.G.'s best interests to continue dependency jurisdiction. The Agency observed D.G. was incarcerated, and jail was "not an approved placement." The Agency also noted D.G.'s incarceration rendered him ineligible for AB 12 benefits. In a January 2016 addendum report, the Agency again recommended dismissal, noting D.G. "remains incarcerated with no release date and . . . jail is not an approved placement. Furthermore, he is unable to fulfill the eligibility criteria to remain under AB12 or extended foster care. The Agency has provided [D.G.] the information he needs in order to re-enter the foster care system under AB12 if he chooses before 21 years old."
D.G. pled to a robbery charge and was scheduled to be released in December 2016, approximately five months before turning 21.
In opposition, D.G.'s counsel urged the court to maintain dependency jurisdiction. According to counsel, the court should retain jurisdiction because D.G. needed the court's assistance "now more than ever" and because "there is 'existing and reasonably foreseeable future harm'" to him under section 391. Counsel noted D.G.'s "recent past" made it "clear" that terminating dependency jurisdiction would put D.G. "at risk of harm" and urged the court to prepare "a transitional plan" for D.G.'s release. Court Appointed Special Advocate Owen Hege argued the system — which had "failed" D.G. — should not "throw him aside now when he need[ed] assistance the most." Hege urged the court to retain jurisdiction.
In reply, the Agency noted D.G. was ineligible for AB 12 benefits "[d]ue to his incarceration." As to section 303, the Agency argued there was no indication "ongoing" dependency jurisdiction "during the time of [D.G.'s] incarceration will actually help [D.G.] or safeguard his wellbeing." The Agency urged the court to dismiss the dependency but to allow D.G.'s counsel to remain appointed for the "purposes of working with GGRC to develop a plan for [D.G.'s] care once he turns 21[.]" Finally, the Agency noted D.G. would be eligible for AB 12 benefits after his release from custody, and he could "avail himself" of those "benefits until his 21st birthday."
At a March 2016 hearing, counsel for the Agency noted there were "two avenues under which a person over 18 can remain a dependent. First is AB 12. [D.G.], due to his incarceration, is not eligible to be under AB 12. The argument that [D.G.'s] counsel made in his papers is whether he would remain a dependent under section 303." Counsel for the Agency continued: "What I am hearing the court saying is that you are declining to do that and dismissing the matter and keeping Ms. Bryon appointed as [D.G.']s counsel and you are asking that Mr. Hege remain involved?" The court responded, "Yes." The court dismissed the dependency and terminated jurisdiction, appointed D.G.'s counsel to coordinate a transition plan for D.G., and ordered Hege to remain the Court Appointed Special Advocate.
The court observed "the system has not done well by [D.G.]. He's not done well by himself. . . . I think he was originally charged in his adult case with . . . attempted murder with gang allegations. It was a very serious offense." The court continued, "the public defender's office has social workers much like HSA . . . so that defendants won't be released on the streets. The . . . public defenders also have two social workers for that very same purpose. [¶] So no one has really addressed why . . . there can't be a plan through the public defender's office before this young man is released. [¶] What I am reading from Mr. Hege's report and . . . from attorneys for the non-minor dependent is that the system hasn't done its job, that HSA hasn't done its job. And if that's true, why would they do any of a better job now by my making them have some sort of plan which may or may not be a good one when I can tell you, the social workers in the public defender's office come up with a lot of great plans." The court opined, "to keep HSA involved at this point while [D.G.'s] in custody doing time for a strike robbery doesn't make sense to me."
The written order after hearing (form JV-367) states that continuing dependency jurisdiction is not in D.G.'s best interests, and that D.G. did not meet AB 12's eligibility criteria.
DISCUSSION
"Dependency jurisdiction does not automatically terminate at age 18 [citation], and the decision to retain or terminate jurisdiction generally remains within the sound discretion of the juvenile court [citation]. Since 1976, the juvenile dependency scheme has specifically provided that '[t]he court may retain jurisdiction over any person who is found to be a ward or a dependent child of the juvenile court until the ward or dependent child attains the age of 21 years.' [Citation.]" (In re Shannon M., supra, 221 Cal.App.4th at p. 292, quoting § 303, subd. (a).) At the dismissal hearing, D.G. was almost 20 years old.
Section 391 "establishes requirements" for hearings terminating dependency jurisdiction. (In re Shannon M., supra, 221 Cal.App.4th at p. 295, fn. omitted; see also Cal. Rules of Court, rule 5.555.) Among other things, "section 391 requires the court to hold a hearing before terminating dependency jurisdiction (§ 391, subds. (a), (b)); requires the department to verify that it provided the nonminor dependent with certain documents and assistance (§ 391, subds. (b)(3), (4), (e), (f)), and requires the department to ensure the nonminor dependent's presence at the hearing if possible (§ 391, subd. (b)(1)) and to report on 'whether it is in the nonminor's best interests to remain under the court's dependency jurisdiction' (§ 391, subd. (b)(2))." (In re Shannon M., at pp. 299-300.)
"In deciding whether to terminate jurisdiction over a youth who has reached majority, the court, after first determining whether the department has met its obligations under section 391, must consider whether termination would give rise to an existing or reasonably foreseeable future harm to the young adult. . . . [I]f there is a prospect of such harm, the court must decide whether retaining jurisdiction would ultimately serve the best interests of the child. But in evaluating the youth's best interests, and in balancing the multitude of factors that should influence the exercise of its discretion, the court must take into account that the person is no longer a minor and that his or her preferences are entitled to the increased respect due those of an adult." (In re Holly H. (2002) 104 Cal.App.4th 1324, 1336.) "The burden of proof on the issue of termination rests with the party seeking to terminate jurisdiction and the decision whether to terminate jurisdiction falls within the sound discretion of the juvenile court. We reverse only where the hearing officer has 'exceeded the bounds of reason.' [Citation.]" (In re Robert L. (1998) 68 Cal.App.4th 789, 793-794; Shannon M., supra, 221 Cal.App.4th at p. 289, citing In re Robert L.)
D.G.'s first claim is the court operated under the mistaken assumption it could not continue dependency jurisdiction because D.G. was ineligible to participate in AB 12. We are not persuaded for two reasons. First, a "'"trial court is presumed to have been aware of and followed the applicable law. [Citations.]"' [Citation.]" (In re Julian R. (2009) 47 Cal.4th 487, 499.) Here, we presume the court was aware it could continue jurisdiction under section 303, irrespective of D.G.'s eligibility for AB 12 benefits. Second, careful inspection of the parties' moving and opposition papers and the reporter's transcript demonstrates the court was aware of — and exercised — its discretion in terminating dependency jurisdiction under the relevant statutes. (Cf. In re Tamika C. (2005) 131 Cal.App.4th 1153, 1168 [lower court did not consider child's best interests and applied "the wrong burden of proof to the question of whether dependency should be terminated"].)
The Agency submitted two reports noting it was not in D.G.'s best interests to continue dependency jurisdiction (§ 391, subd. (b)(2)). In opposition, counsel for the minor urged the court to continue jurisdiction and referenced section 391 and the best interests standard. The Agency's reply and its comments at the dismissal hearing clarified the court had discretion to maintain dependency jurisdiction irrespective of D.G.'s ineligibility for AB 12. And the court's observation that the Agency "hasn't done its job" and that it did not "make sense" to "keep HSA involved at this point" are an implicit conclusion that it was not in D.G.'s best interests to continue the dependency. The court did not — as D.G. claims — misunderstand the law or fail to recognize it had discretion to continue the dependency. Indeed, the court exercised its discretion to formulate a plan to retain Hege, an "invaluable" participant, as D.G.'s Court Appointed Special Advocate.
Next, D.G. contends the evidence established it was not in his "best interests to have his case dismissed." We disagree. The question before us is whether the trial court "'exceeded the bounds of reason'" in dismissing the dependency. (In re Robert L., supra, 68 Cal.App.4th at pp. 793-794.) The answer is no. D.G. was a dependent for approximately 15 years. During that time, he left school without permission, and committed several crimes. At the time of the dismissal hearing, D.G. was incarcerated on felony charges. D.G. and the court agreed the system had "not done well" by D.G. and it is not clear what services, if any, the Agency could provide while D.G. was incarcerated. The juvenile court was within its discretion to conclude terminating dependency jurisdiction would not give rise to an existing or reasonably foreseeable future harm, particularly where the court continued appointment of D.G.'s attorney and Court Appointed Special Advocate, and where D.G. was eligible for GGRC services. (See In re Aaron S. (2015) 235 Cal.App.4th 507, 519-520 ["As it is axiomatic that it would be detrimental for any nonminor dependent to stop receiving services, the mere assertion of such detriment without any proof of reasonable participation by the nonminor in his or her case plan does not demonstrate that the court abused its discretion"]; In re Holly H., supra, 104 Cal.App.4th at p. 1337 [no abuse of discretion in terminating dependency].)
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P.J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.