IN RE R.T.

Appellant’s Petition for Review

Cal.May 13, 2015

$226416 Supreme Court No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re R.T., a Person Coming Underthe Juvenile Court Law. ) Court of Appeal No. B256411 Juvenile Court No. DK03719 LOS ANGELES COUNTY DEPARTMENTOF CHILDREN AND FAMILY SERVICES, , SUPREME COURT Plaintiff and Respondent, 825) ' F | L E D v. MAY 13 2015 LISA E., Frank A. McGuire Clerk Defendant and Appellant. Deputy ) PETITION FOR REVIEW NANCY RABIN BRUCKER State Bar No. 101213 11661 San Vicente Boulevard, Suite 500 Los Angeles, CA 90049 (310) 476-0965 Attorney for Objector/Appellant, Lisa E. Appointed by the Court of Appeal under The California Appellate Project, Los Angeles Independent Case System TABLE OF CONTENTS TABLE OF AUTHORITIES. ........ecccesssesesesseseeessaeesetseseseenereeennesssessensenseneeeyli PETITION FOR REVIEW........:csccssssscessseeeeessesneerereseaessnensenseeessesessnesssensenseey 1 INTRODUCTION........:ccesccsscesereesrsrerscsseenseeseeenenesseeesseseeeaeauseecnaeeesereseesaneacogs2 STATEMENTOF THE CASE........cceccessesssssssteesseeeneeneesersnenneeseenseeneensesansanegs4 NECESSITY FOR REVIEW........::csssssssssssesseneessanesseceeesssassrsesensessaessessesnante6 ARGUMENT.......ccccsccssssccssecssnsesseccescesessscesseeeseeneneessarensesereneesseeessenesanensesenegees6 L IN THE ABSENCEOF PARENTAL FAULT UNDERSECTION300, SUBDIVISION (b) THERE CAN BE NO DEPENDENCYJURISDICTION.................6 I. LISA ADEQUATELY SUPERVISED AND PROTECTED HER CHILD...ccccseeeneertenretereneees 16. CONCLUSION......ccccccecccsssecsrecsseseesesenseseseanesnsesnnsersieseersresssaseauenssessneessseseenes 17 WORD COUNTCERTIFICATE...cceeccecceseessneeeeneeteeeereessrennnensee aeenneens 19 TABLE OF AUTHORITIES CASES Cynthia D. v. Superior Court (1993) 5 Call.4th 242.00... eeeeeesesseseeeseneeees 8,9,10,11,15 In re Henry V. (2004) 119 Cal.App.4th 522.00... csecsseseessseeseeeeestenstesceseens 11 Inre Marquis D. (1995) 38 Cal.App.4th 1813 .......eecseseeseeseteerenseneetseeeens 11 In re Nolan W. (2009) 14 Cal4th 1217... ccccecescsesecseessnseseeeseneseeeneneeeneneneey 8,9 Inre Paul E. (1995) 39 Cal.App.4th 996... :cccessssecessrerseenensneseseenenenesenes 12 In re Precious D. (2010) 189 Cal.App.4th 1251...cessesteeeeeeeneeeseneens 1.2,3,5,8,12,13, 14,15,18 In re Vonda M. (1987) 190 Cal.App.3d 753......:cccssessessrsrerseesesseetecneeteneaes7 Inre Z.K. (2011) 201 Cal.App.4th 51... eeeesseetsssssesseseseseeneenentesnsneeneatens 15 CALIFORNIA STATUTES Welfare and Institutions Code Section 300.......ccscccccssceessssccesssssssssccceseceeessesseseeeeseessnssseeesennes 1,3,4,6,9,17 Section 300.2........cccceccssscssssceesseceecesneseesseeecesscessnsenenseeseneseats7 Section 360.......cccccsscssscessessssccssseceeesesstseseeeseeseeesssesenseereeaeenees9 Section 361... cecsecscsseccsssescecesesccsressesseneeesseesnesesseersnseneeeseens 10 Section 362.......cccccscsccccsesssccsesreceesssssesesecessesesseesesteeserseeees9 Section 361 .2.....cceccccscessscessseceesesseeecesseeseeseseesaseesseaenerseeeeres9 SeCtiONn 362.......ceccecsessscessseessssceccesssncesseseeeececesseeeesesseeseseeeeses9 Section 361.5.....ccccecccecessccesssssssnnnececcescscsesesseseeseeeeseseraneeeeeneee 5,10 Section 366.21... cecessecsccessecsssrceseseessssenseeseeeseseseseneeseeereeees 10 Section 366.26... .ccccccscsscssssseseceeneeeseessceesseseecseeessesstareraeenetees 8,10 Section 390.......ccccessscecccsscsseececeesseeeseesssseeeseeeesseeseeesnaseneeesees9 Section 601 ........ccescsscscsccessssececeseseceessesseeeeeceseeseeseseesersneeses 8 CALIFORNIA RULES OF COURT Rule 8.500.......ccccccssssccsscssesssecssresenecsesseeseecssasenaeeessessneeseeenennes2.,6 OTHER AUTHORITIES Second College Edition of The American Heritage Dictionary, copyright 1981 by the Houghton Mifflin Co., p. 179...16 ii PETITION FOR REVIEW TO THE HONORABLE TANI GORRE CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA ISSUES PRESENTED FOR REVIEW 1. Under Welfare and institutions Code section 300, subdivision (b), dependencyjurisdiction may be based on a parent’s “failure or inability...to adequately supervise or protect the child.” Division One,in the case ofIn re Precious D. ((2010) 189 Cal.App.4th 1251) heldthis language requires parental unfitness or neglectful conduct. Division Two in the instant case held this language does not require “parentalfault.” Doessection 300, subdivision (b) authorize no-fault, strict lability dependencyjurisdiction? 2. Under Welfare andInstitutions Code section 300, subdivision (b), dependency jurisdiction maybe based on a parent’s “failure or inability to adequately supervise or protect the child.” When the parentutilizes an array of resources but cannot controlthe child’s behavioris supervision or protection inadequate? 3. n addition to resolving the conflict between R.T. and Precious D., on the constitutionality of the application of section 300, subdivision (b) in the circumstances presentedhere, review is necessary to resolve the reviewing courts’ conflicting use of terms — detriment, parental unfitness, parental fault — to describe the predicate for assumption of dependency jurisdiction and to uniformly define that predicate. INTRODUCTION Pursuant to rule 8.500(a)(1) of the California Rules of Court, Appellant andPetitioner, Lisa E. respectfully requests that this Court review the published decision of the Court of Appeal, Second Appellate District, Division Two, In re R. T. (4/2/15), No. B256411. A copy of the opinion is attached hereto as Appendix A. The motherin the case ofJn re Precious D. was confronted with an out-of-control teenage who even DCFS' could not control. Wn re Precious Los Angeles County Department of Children and Family Services. D., supra, 189 Cal.App.4th at pp. 1254-1256.) DCFS argued that Welfare and Institutions Code section 300, subdivision (b)’ jurisdiction based on a parent’s “failure orinability...to adequately supervise or protect the child” did not require that a parent be unfit or neglectful in causing serious physical harm to a child or risk of such harm. (Id. at pp. 1253-1254.) The Precious D. court held that subdivision (b) required parental unfitness or neglect. (/d. at p. 1261.) The circumstancesin the instant case, Jn re R T, are virtually identical to those in the Precious D. case: Richshawn wasanincorrigible teenager who mothercould not control, notwithstanding the efforts she made. (Slip Opn.at pp. 2, 3.) DCFS again arguedthat “failure or inability...to adequately supervise or protect the child, meant that a child could be described as abused undersection 300, subdivision (b) without regard to conductby the parent. (Slip Opn.at p. 3.) The R. T. court concludedthe first prong of subdivision (b) described an abused child “without limiting such jurisdiction to cases of parentalfault.” (Slip Opn.a p.2.) Precious D. and R. T. came to diametrically opposed statutory All further statutory references are to the Welfare and Institutions Code unless otherwise identified. interpretations of the same provision based on essentially identical facts. Division Two further found that mother’s inability to protect her child from harm or risk of harm through no fault of her own constituted a finding of “unfitness”, which satisfied the due process requirement that a finding of unfitness be made at somepointin the proceedings before parental rights are terminated. (Slip Opn. at pp. 7-9.) STATEMENT OF THE CASE On February 21, 2014, DCFSfiled a petition pursuantto section 300, subdivision (b) alleging, in essence, that mother ws unable to provide appropriate care and supervision of Richshawndueto her chronic runaway behaviorandacting out, that Richshawn refused to return to her mother’s home, and that mother’s inability to provide appropriate parental care of Richshawn endangered Richshawnandplaced herat risk of herm. (CT 1- 5.) On April 23, 2014, the petition was sustained as pled. Richshawn was declared a dependentofthe court, removed from the custody of mother and placed under the custody of DCFS for suitable placement. Mother was granted reunification services. (CT 166-168) Mothertimely appealed from those findings andorders. (CT 169- 170.) She argued that the juvenile court was wrong whenit asserted jurisdiction over an incorrigible child under section 300, subdivision (b), when there was no finding that mother abused or neglected Richshawn or that Richshawn wasat risk for abuseor neglect. Motherfiled her Opening Brief on September 24, 2014. Respondent’s Brief was filed on November3, 2014 and Appellant’s Reply Brief was filed on December 12, 2014. Along with the Reply Brief, on December 12, 2014, motherfiled a Request For Judicial Notice of the court minute order ofNovember 20, 2014, which reflected the juvenile court’s order terminating the dependency case as Richshawn had reached the age of eighteen. At the same hearing, the juvenile court opened a new case for Richshawn as a non-minor dependent. The Request for Judicial Notice was granted on January 5, 2015. The case was submitted after oral argument on February 24, 2015. On April 2, 2015, the Opinion wasfiled. Division Two disagreed with the decision in Precious D. and held that“no showingofparental blameis required before a juvenile court may assert dependency jurisdiction overa child at substantial risk of physical harm or illness due to her parent’s ‘failure or inability...to adequately supervise or protect’ her.” Division Two further found that Richshawn’s majority did not moot the appeal“becausethe juvenile court’s assertion ofjurisdiction over R.T. mayreflect adversely on mother’s suitability to act as a caregiver to R T’s two children in any future dependency proceedingsinvolving those children (for whom mother had cared in the past.).” NECESSITY FOR REVIEW Review is sought pursuant to Rule 8.500(b) to secure uniformity of decision andto settle an important question oflaw. ARGUMENT I. In the Absence of Parental Fault under Section 300, subdivision (b), There Can Be No Dependency Jurisdiction A. “No Fault” Jurisdiction is Contrary to Legislative Intent and Supreme Court Decision Division Twoheld that there is sufficient basis for jurisdiction under Welfare andInstitutions Code section 300, subdivision (b), when a child is at risk of harm orillness as a result of the failure or inability of a parent to adequately supervise or protect the child without regard to parental fault. (Slip Opn.at p.11.) The decision breaks new ground that undermines the current legal underpinnings of California dependency law. Division Two rejected DCFS’s argument that mother ‘abdicated’ her parentalrole by placing R.T. with her grandparents and by declining the Department’s invitation to voluntarily consentto jurisdiction. Division Two found that mother’s decision to put R. T with the maternal grandparents — “the very same placement the Department later made—was not neglectful or blameworthy.” Division Two further found that mother’s decision “not to voluntarily accedeto jurisdiction wasalso not evidence of neglect or culpability.” (Slip Opn. at p 4.) And, yet, even though Division Twodid not find motherto be neglectful, blameworthy or culpable,it determinedthatjurisdiction could be established under subdivision (b). Division Tworelied on the case ofIn re Vonda M.(1987) 190 Cal.App.3d 753 for the principal “Dependencyjurisdictionis not about fault.” (Slip Opn.p. 8.) The Vonda M. case involved an offending parent and a non- offending parent. Thecase did notraise the issue of whether dependency jurisdiction could be invokedin thefirst instance with no showing of parental fault. Without question, the purpose of the dependencystatute is to provide maximumprotection for children whoareat risk. But, contra to Division Two’sassertion that “the Legislature’s explicit declaration that dependencyjurisdiction is to be read “broadly”, citing to section 300.2, that section makesit very clear that the protection is focused on a very specific group of children: “Children whoare currently being physically sexually, or emotionally abused,being neglected, or exploited, and to ensure the safety protection, and physical and emotional well- being of children whoare atrisk of that harm.” (Sec. 300.2 (emphasis added).) Dependencylawis not for the protection of children who are juvenile delinquents or near delinquents. That was the point ofPrecious D. That court explicitly noted that juvenile courts possess the resources to deal with an incorrigible minor under the delinquency provisions of the Code, section 601et seg. (In re Precious D., supra, 189 Cal.App.4th at p. 1261.) Division Two, however, expressly disagreed with the holding in Precious D.(Slip Opn.at p.11.) Division Tworejectedthe jurisdiction oriented Precious D. case becauseit derived from the analysis of section 366.26 termination cases. (Slip Opn.at p.7.) The opinion then examined,in isolation from its overall context, the first prong of subdivision (b)in its role as a “first, and preliminary, step in its protective duties.” (Slip Opn. at pp. 5-7.) But, as the Supreme Court stated in Cynthia D., an individual statutory section cannotproperly be understood except in the context of the entire dependency process of whichit is a part (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253 [a section 366.26 termination case].) The Supreme Court made the same observation again in the case of Jn re Nolan W. — “Given the complexity of the statutory scheme governing dependency, a single provision ‘cannotproperly be understood except in the context of the entire dependencyprocess of whichit is a part.’” (In re Nolan W. ((2009) 14 Cal.4th 1217, 1235.) The holding that dependencyjurisdiction can be had without limiting such jurisdiction to cases of parental fault is explicitly contrary to Legislative intent and to the Supreme Court’s holding in Cynthia D. and consequently erroneous. B. Removal ofa Child is No Substitutefor an Express Finding that a Parent is Unfit The Supreme Court has madeclearin Cynthia D., and Nolan W., the individual provisions taken together comprise an integrated and comprehensive statutory scheme governing California dependencylaw. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at pp. 247-250, 253; In re Nolan W., supra, 45 Cal.4th at p. 1235.) Finding that a minoris a child described by one of the subdivisions of section 300 is the first step. The next step is a decision among several possible dispositional options, including, in general, (I) dismiss the petition (Section 390); (ii) order informal supervision (Section 360, subd.(b)); (iii) leave the child with the parent (Section 362, subd.(b)); (iv) remove the child from the physical custody ofthe parent (Section 361, subd.(c)) and, (v) place the child with the noncustodial parent (Section 361.2, subd. (a)) If the child is not left with the custodial parent (Section. 362, subd. (b)), the child must be formally removed from the physical custody ofthat parent. (Section 361., subd. (c).) As an alternative to foster care, the child may be placed with the noncustodial parent. (Section 361.2, subd.(a).) When a child is removed from a parent’s custody, the mother and the presumed fatherare typically entitled to receive reunification services in order to reunify with the child as a family. (Section 361.5) The parent ha s between six and eighteen monthsto reunify with the child. (Section 366.21.) If the child is not reunified with a parent, the court orders a hearing to determinea plan to provide a permanent, stable homefor th e child. (Section 366.26.) A child can only be removedfrom the custody of a parent upon a finding by clear and convincing evidence -- “There is or would be substantial danger to the Physical health, safety, protection or physical or emotional well-being of the minorifthe minor were returned homeandthere are no reasonable means by which the minor’s physical health can be protected without removing the minor form the minor’s parent’s...physical custody.” (Section 361, subdivision (c).) Thedrafts ofthe legislation intended“to eliminate duplication between the regular review hearings andthe ‘termination hearing’. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 250.) Thus, “the critical decision regarding parentalrights will be madeat the dispositional or review hearing,that is, the minor cannotbe returned homeandthat 10 reunification efforts should not be pursued.” (/bid.) The schemerequires:(1) a court finding of serious injury or a substantial risk of serious future injury to the minor; (2) a finding by clear and convincing evidencethatthere is substantial danger to the physical health of the minor in order to removethe child from parental custody; and (3) repeated findings by a preponderance of the evidence that return would create a substantial risk of detrimentto the well-being ofthe child. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at pp. 25-255.) The numberandquality of the judicial findings that are necessary preconditionsto termination of parental rights convey to the fact finder “the substantive certainly about parent unfitness and detriment required” before the juvenile court can consider the termination of parentalrights. (Id. at p. 356.) By thattime,the danger to the child “from parental unfitness” is well established. (/bid.) Removalof a child from a parent’s custodyis not substitute for or an alternative to an express finding that a parent is unfit or inadequate. It is a critical finding in the comprehensive statutory scheme.(Jn re Marquis D. (1995) 38 Cal.App.4th 1813, 1829; In re Henry V. (2004) 119 Cal.App.4th 522, 525 [“the high standard ofproof by which this finding must be made is an essential aspect of the presumptive, constitutional right of parents to 11 care for their children”].) Consequently, as happenedin the instantcase, the child could be removed from the custodial parent becausethe child’s well-being remain ed in substantial dangerdueto the parent’s inability to provide the level o f services the department deemed appropriate, without regard to the parent ’s conduct. The child could also be removed because the child remained incorrigible without regard to the omissions and commissionsof the pa rent. Should the services offered to the parent and to the child prove insufficient to resolve the child’s behavioral problems within eighteen months, termination ofparental rights becomes a highly realistic possibility. (In re Paul E. (1995) 39 Cal.App.4th 996, 1001[Once a child is removed, termination ofparental right becomea distinct possibility unless, at some pointprior to the end of reunification services, the child is returned.”].) The parent who lost custody without wrongdoing would lose parental rights withoutthere ever having been a showing of parental unfitness. The Precious D. court pointed out that no-fault jurisdiction could lead to the termination of the parental rights over an incorrigible child without a constitutionally required finding of unfitness: “Dependency jurisdiction might be asserted over an incorrigible child whose parent is neither unfit or neglectful. Such a jurisdictional finding might then be the 12 basis for the child’s removal and for an order requiring reunif ication services that are either unnecessary or doomedto failure due to i ncorrigible conduct on the child’s part, and then for the ultimate terminati on of parental rights. Thus, parental rights might be terminated and t he family unit destroyed without any finding of unfitness or neglectful cond uct. Such a result would not comport with federal due process principles. ( /n re Precious D., Supra, 189 Cal.App.4th at p. 1261 ) Division Two did not agree. It found that parental fault did not ha ve to be shown in order to makea finding of “unfitness”: “Precious D. reasonedthat the assertion of dependency jurisdiction based on parent’s blameless inability to control her daughter madeit possible for that parent’s right overthat child to be terminated without any finding of parental unfitness (Precious D., supra, 189 Cal.App.4th at pp. 12600- 1261.) We are unpersuadedbythis argument for two reasons: First, this argument conflates parental ‘unfitness’ with parental culpability. But they are not the same. ‘Unfitness’ is concerned whether a parentis able to protect the welfare of her child; culpability is concerned with why...Second, when ‘unfitness’ is properly defined, thereis 13 no danger that allowing a juvenile court to assert jurisdiction over a child based on the parent’s failure or inability...to adequately supervise or protect the child from a substantial risk of physical harm orillness will result in the termination ofparental rights without a finding by clear and convincing evidenceofparental unfitness.” (Slip Opn at p.8. While acknowledging that “Precious D. correctly noted that a juvenile court’s assertion of dependencyjurisdiction over a childis made only by a preponderanceofthe evidence”, Division Two contendedthat an “assertion ofjurisdiction is ‘merely a first step’ in a multi-step process tha t may or maynotlead to the termination of parental rights...and due proc ess requires only that a finding of parental unfitness be made ‘at some point i n the proceedings...before parental rights are terminated.” Consequently, Division Two concludedthatthere is “no danger that dependency proceedingswill reach the stage where parental rights are terminated without a finding of parental unfitness.” Division Two concludedin the Opinion,“today there will still be at least one such finding ofparental unfitness. This satisfies due process”’. (Slip Opn. at p. 10.) 14 Numerous examplesofthe variety of terms used to describe the circumstances permitting state intervention in the parent/child relationship can be found. In Cynthia D. v. Superior Court (93) 5 C4th 242, 254, the Court — addressing the constitutional predicate for termination of parental rights under California’s statutory scheme — referred to parental“fault” and parental “inadequacy.” In Precious D., the reviewing court appeared to use the terms “parental unfitness” and “neglectful conduct” interchangeably. (In re Precious D., supra, 189 CA4th at p. 1260.) In Jn re Z.K. (2011) 201Cal.App.4th 51, 65) the reviewing court, citing other intermediate appellate court decisions, noted that California’s dependency scheme no longerusesthe term “parental unfitness,” requiring instead a finding of “detriment”before a child can be removed from parental custody. In R.7., the reviewing court indicated that “parental unfitness” and “parentalfault” are not equivalents. Selection of one term to describe the predicate for state action to intervenein family life and the definition of that term is necessary to the consistent application of California’s statutory dependency scheme from detention through selection and implementation of a permanentplan. 15 C. No Fault Jurisdiction will result in No Fault Termination of Parental Rights in SomeSituations Little imagination is required to predict child protective agencies will increasingly cast petition allegations in termsofthe language of the first prong of subdivision (b) if only harm or risk of harm need be established while parental responsibility and causation requirements can easily be ignored. In other words, nofault,strict liability based jurisdiction will inevitably lead to the termination ofthe parentalrights of parents who are notat fault. Il. Lisa Adequately Supervised and Protected her Child Theholding in R. T.raises the question of whatconstitutes adequate parental supervision and protection. Is it a question ofthe severity of the child’s behavior, the financial resourcesa parentis able to devote to correcting the problems,the parent’s ability to procure and utilize available public resources, steps the parent took to address the problem, whether the steps resolved the situation, or whether the child comes within the delinquencyprovisions ofCalifornia Juvenile law? The word “adequate”is defined as: “1. Able to satisfy a requirement; suitable. 2. Barely satisfactory or sufficient.”(Second College Edition of The American Heritage Dictionary, copyright 1981 by the Houghton Mifflin Company, p.179.) This case embodies the arbitrary 16 nature of a standard of “adequately” to describe child abuse. Even underthe Court’s interpretation ofthe first prong of section 300, subdivision (b), the circumstances of this case required reversal because mother had doneeverything she could do. She contacted law enforcement when Richshawn was missing, she sought help from DCFS, and she placed Richshawnin the homeofthe maternal grandparents hoping that change oflocation would help. (Slip Opn.,at p.2.) Nothing worked. DCESran into the same issues when they placed Richshawnin a group home, where she ran from, and DCFSultimately placed her back in the homeofthe maternal grandparents. (Slip Opn.at p. 3.) What more could mother have done, have done differently, or failed to do to prevent or correct the problems? In this case, the answeris nothing. Mother took appropriate steps and contacted proper authorities in order to deal with her daughter’s problematic behaviors. Mother’s parenting of Richshawn was morethan adequate. CONCLUSION The opinion applies the incorrect substantive law as well as the incorrect standard of review. The juvenile court’s desire to provide services to Richshawn wasnot a substitute for compliance with the statute. 17 The determinationin R. T. is explicitly contrary to the conclusion reached in Precious D, These contrasting opinions demonstrate the questions presented are importantandarenot settled. Furthermore,selection of one term to describe the predicate for state action to intervene in family life and the definition of that term is necessary in dependency proceedings from detention through selection of a permanentplan. Accordingly, appellant respectfully requests that this Court grant her Petition for Review. DATED:May 12, 2015 Respectfully Submitted, x Jo Nancy Rabin Brucker, Attorney For Appellant/Petitioner Lisa E. 18 WORD COUNT CERTIFICATE I certify Appellant’s Petition For Review contains 3,570 words, excluding tables, calculated by the word processing program usedto generatethis brief. Dated: May 12, 2015 Natoy'Rabin Brucker 19 PROOF OF SERVICE STATE OF CALIFORNIA COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of eighteen and not a party to the within action. My business addressis 11661 San Vicente Boulevard, Suite 500, Los Angeles, CA 90049. On May12, 2015, I served the foregoing APPELLANT’S PETITION FOR REVIEWonthe parties in this action by placing a true and correct copy thereof in a sealed envelope to the following addresses: SEE SERVICE LIST ATTACHED [X] BY MAIL I caused such envelope with postage thereon fully prepaid to be placed in the United States mail at Los Angeles, California. [] HAND DELIVERY [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the aboveis true and correct. Executed on May 12, 2015, at Los Angeles, California. ? tipfot Nancy Rabin Brucker SERVICE LIST Office of the Clerk Edelman Children’s Court 201 Centre Plaza Drive Monterey Park, CA 91754 (For the Honorable Marguerite Downing, Judge) Office of the County Counsel Juvenile Appeals Division 201 Centre Plaza Drive Monterey Park, CA 91754 Lisa E. (addressonfile) (Appellant and Mother) Rohini Khanna, Esq. Los Angeles Dependency Lawyers 1000 Corporate Center Drive, Ste. 430 Monterey Park, CA 91754 (Trial counsel for Appellant and Mother) Jasminder Deol, Esq. Children’s Law Center 201 Centre Plaza Drive Monterey Park, CA 91754 (Trial Counsel for Minor) California Appellate Project 520 South Grand Avenue Fourth Floor Los Angeles, CA 90071 Claw, Coark © pepe ck Secend Aepellak Distr’ Divisrny Ter B00 FS. BPAY SA jes plugeles, CA Gce/2 APPENDIX “A” Filed 4/2/15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION TWO In re R.T., a Person Coming Underthe B256411 Juvenile Court Law. (Los Angeles County Super. Ct. No. DK03719) LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. LISA E., Defendant and Appellant. APPEALfrom orders of the Superior Court of Los Angeles County. Marguerite D. Downing, Judge. Affirmed. Nancy Rabin Brucker, under appointment by the Court of Appeal, for Defendant and Appellant. Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel, and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minor. * oR KOK OK K A “rebellious” and “incorrigible” teen repeatedly runs away from home,placing herself and her infant daughterat “substantial risk [of] . . . serious physical harm.” (Welf. & Inst. Code, § 300, subd. (b)(1).). Canthe juvenile court assert dependencyjurisdiction over the teen on the ground that her mother, who tried everything she could, wasstill unable “to adequately supervise or protect” the teen? ([bid.) In re Precious D. (2010) 189 Cal.App.4th 1251 (Precious D.) said “no,” reasoning that the first clause of section 300, subdivision (b)(1), requires proof of parental culpability. We respectfully disagree, and hold that the language,structure, and purpose of the dependencystatutes counsel against Precious D’s conclusionthat this provision turns ona finding of parental blameworthiness. Whena child thereby faces a substantial risk of serious physical harm, a parent’s inability to supervise or protect a child is enoughbyitself to invoke the juvenile court’s dependencyjurisdiction. FACTS AND PROCEDURAL HISTORY Lisa E. (mother) gave birth to R.T. in 1996. When R.T. was 14, she began running away from homefor daysat a time, not attending school, falsely reporting that her mother abusedher, and at least on one occasion throwing furniture. At least one of her absencesnecessitated a visit to the hospital. R.T. also began having children—one when she was 15 (who becamea dependent ofthe court) and another a few yearslater. Mother made efforts to supervise and safeguard R.T.: She went looking for R.T. whenevershe left home; she arranged for R.T. to live with mother’s parents because R.T.’s grandfather used to work with troubled juveniles and because R.T.’s false reports were made when R.T. and mother werealone; she called the police for help; and she asked the Los Angeles County Department of Children and Family Services (Department) for assistance, although she declined to voluntarily submit R.T. to the Department’s jurisdiction. Notwithstanding these efforts, R.T. remained “rebellious,” “incorrigible,” and “out of control.” / All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. The Departmentfiled a petition to declare then-17-year-old R.T. a dependent of the juvenile court on the ground that she faced “a substantial risk [of] . . . serious physical harm orillness, as a result of the failure or inability of [mother] to adequately supervise or protect” her. (§ 300, subd. (b)(1).) The juvenile court asserted jurisdiction over R.T., denying mother’s motion to dismiss the petition. The court reasoned that “the mother can’t control [R.T.], so she has given her off to grandparents and they can’t control her either.” The court then issued a dispositional order authorizing the Departmentto place R.T. elsewhere while reunification services were provided, and the Department placed her back with her grandparents. Mothertimely appeals. DISCUSSION Motherarguesthat the juvenile court erred in asserting dependencyjurisdiction over R.T. (and, by extension, erred in making its dispositional order premised onthat jurisdiction) because (1) the first clause of section 300, subdivision (b)(1), as interpreted in Precious D., supra, 189 Cal.App.4th 1251, requires proof that the parent’s inability to supervise or protect her child stems from being “unfit or neglectful” (id. at p. 1254; see also In re James R. (2009) 176 Cal.App.4th 129, 135, quoting In re Rocco M. (1991) 1 Cal.App.4th 814, 820), and (2) there was insufficient evidence that she was unfit or neglectful because she did herbest to control R.T. 3 It is critical to clarify what Precious D. meant by “unfit or neglectful.” Precious D. involved facts strikingly similar to this case—namely, an incorrigible teen 2 While this appeal has been pending, R.T. turned 18. We grant mother’s request to judicially notice the court documentsso indicating. R.T.’s majority does not mootthis appeal becausethe juvenile court’s assertion ofjurisdiction over R.T. mayreflect adversely on mother’s suitability to act as a caregiver to R.T.’s two children in any future dependency proceedings involving those children (for whom motherhas caredin the past). (Accord, In re Daisy H. (2011) 192 Cal.App.4th 713, 716.) 3 In re James R. and In re Rocco M. add nothingto the analysis because they refer to “neglectful conduct by the parent in one ofthe specifiedforms” and thus do no more 3 whorepeatedly endangered herself by running away from home, and a mother who“tried everything” to no avail. (Precious D., supra, 189 Cal.App.4th at p. 1257.) Thus,the mother in Precious D. was in no way neglectful, but was “unfit” insofar as she was unable to supervise or protect her daughter. Thus, by “unfit,” the Precious D. court was looking not only to the reason for the parent’s unfitness, but also for some proofthat the parent be blameworthyor otherwise at fault. (Ud. at p. 1259 [concluding there was no basis to be “critical of Mother’s parenting skills or conduct’’}.) Like the mother in Precious D., mother in this case was neither neglectful nor blameworthy in being unable to supervise or protect her daughter. The Department argues that mother “abdicated”her parental role by placing R.T. with her grandparents and by declining the Department’s invitation to voluntarily consent to jurisdiction. But mother’s decision to put R.T. with her more experienced grandparents—the very same placement the Department later made—wasnotneglectful or blameworthy. Her decision not to voluntarily accedeto jurisdiction was also not evidence of neglect or culpability. Because there was no neglect or blameworthy conduct, and becauseit is undisputed that R.T’s behavior placed her at substantial risk of serious physical harm or illness, the propriety of the juvenile court’s assertion of dependencyjurisdiction turns on a single question: Must a parent be somehow to blamefor her “failure or inability” to adequately supervise or protect her child, when that inability creates a substantial risk of serious physical harm or illness, before a juvenile court may assert dependency jurisdiction pursuantto the first clause of section 300, subdivision (b)(1)? This is a question of statutory interpretation we review de novo. (Nguyenv. Western Digital Corp. (2014) 229 Cal.App.4th 1522, 1543.) Our review is informed, but not controlled, by the decision of our sister Court of Appeal on this question. (The MEGA Life & Health Ins. Co. v. Superior Court (2009) 172 Cal.App.4th 1522, 1529.) than recharacterize the statutory groundsas “neglect.” (In re James R., supra, 176 Cal.App.4th at p. 135; In re Rocco M., supra, 1 Cal.App.4th at p. 820.) 4 I. Statutory construction In answering the question presented bythis case, we start with the statutory language. (Riverside County Sheriff's Dept. v. Stiglitz (2014) 60 Cal.4th 624, 630 (Stiglitz).) The first clause ofsection 300, subdivision (b)(1), confers dependency jurisdiction over a child who “has suffered, or there is a substantial risk that the child will suffer, serious physical harm orillness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child.” (§ 300, subd. (b)(1).) Thetext itself does not speak to whether the parent mustalso be to blameforthis “failure or inability.” Wemustinterpret this silence in the manner most consonant with the legislative intent behind this provision. (Stiglitz, supra, 60 Cal.4th at p. 630.) Two indicia—one implicit and one explicit—point to the conclusion that this clause of section 300, subdivision (b)(1) has no culpability requirement. The language weare interpreting is just one of manyprovisionssetting forth various grounds for dependencyjurisdiction. Someofthese provisions require a showing that the parent acted intentionally. (See § 300, subds. (a) [parent’s “nonaccidental” “inflict[ion]” of physical harm on child], (c) [child suffered, or is at substantial risk of suffering, serious emotional damage “as a result of” the parent’s conduct], (d) [parent’s sexual abuseofchild], (e) [parent’s infliction of severe physical abuse on a child under five years old], (g) [parent incarcerated or voluntarily surrendered child at safe surrender site], (i) [parent subjected child to acts of cruelty].) Under other provisions, negligent conductby the parent will suffice. (See § 300, subd. (b)(1) [second clause; parent’s “willful or negligent failure” to supervise or protect child when leaving child with another person]; ibid. [third clause; parent’s “willful or negligent failure” to provide “adequate food, clothing, shelter, or medical treatment”); id., subd. (d) [parent did not protect child from sexual abuse, when parent knew or should have knownofrisk]; id., 4 Forclarity’s sake, we will refer to “parents,” but our discussion applies equally to “guardians.” subd. (e) [same, as to severe physical abuse of child underfive years old]; id., (1) [same, as to acts of cruelty]; id., (j) [parent’s “abuse or neglect” caused death of anotherchild]; id., (g) [parent’s whereabouts are unknown].) Andforstill others, dependency jurisdiction is appropriate when the parentis not to blame. (See § 300, subd.(c) [child is suffering, or at substantial risk of suffering, serious emotional damage, and “has no parent or guardian capable of providing appropriate care”]; In re Alexander K. (1993) 14 Cal.App.4th 549, 557 [this clause of section 300, subdivision (c), requires “no parental fault or neglect”); In re Roxanne B. (2015) 234 Cal.App.4th 916, 921 [same]; § 300, subd. (g) [when child “has been left without any provision for support”]; D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1128-1129 (D.M.)[this clause of section 300, subdivision (g), need not be willful]; § 300, subd. (b)(1) [fourth clause; parent’s 66. “inability . .. to provide regular care for the child” due to parent’s “mental illness”or “developmental disability”’].) Where, as here, the Legislature has expressly made parental culpability an element of some grounds for dependency jurisdiction but not an elementof others, we generally infer that the omission of a culpability requirement from a particular ground was intentional. (In re Ethan C. (2012) 54 Cal.4th 610, 638 [“When languageis included in one portion ofa statute, its omission from a different portion addressing a similar subject suggests that the omission was purposeful.”] (Ethan C.).) This inference is even stronger whenthe differential treatment appears in the same section and, indeed, the very same subdivision—subdivision (b)(1)}—weare interpreting. This inference becomes compelling when read in conjunction with the Legislature’s explicit declaration that dependencyjurisdiction is to be read broadly: “(T]he purposeof the provisions of this chapter relating to dependentchildrenis to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children whoareatrisk of that harm.” (§ 300.2.) Construingthe first clause of section 300, subdivision (b)(1) to require a showing of parental fault, as mother urges, not only ignores these indicia oflegislative intent, but also tasks the judiciary with drawing lines better drawn by the Legislature. Mother argues that her inability to supervise or protect R.T. is not blameworthy,but that a parent’s inability to supervise or protect a younger child might be. “At somepoint,” motherreasons, “the order of human growth and development”shifts the blame from parent to child. If we were to recognize a culpability element, we would have to fix that point. But where would weplace it, and whatcriteria would we use in doing so? This blameworthinessline, if it is to be drawnat all, is a policy decision within the special competenceof the legislative branch, not the judicial branch. Whenreadin light of these considerations, the text and purpose ofthe first clause of section 300, subdivision (b)(1) point to the conclusion that a showing of parental blameis not required. II. Countervailing arguments Mother offers two argumentsthat, in her view, compel usto reject the statutory analysis set forth above. A, Constitutional avoidance Motherassertsthat the interpretation ofthe first clause of section 300, subdivision (b)(1) is governed bya different and weightier canon of statutory construction—namely, the “cardinal” rule that a statute should, where possible, be construed in a mannerthat avoids doubts aboutits constitutionality. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1373.) This canon wasthe basis for Precious D.’s ruling. (Precious D., supra, 189 Cal.App.4th at pp. 1260-1261.) Natural parents have a “fundamentalliberty interest . . . in the care, custody, and managementoftheir child[ren].” (Santosky v. Kramer (1982) 455 U.S. 745, 753 (Santosky).) Consequently, due process guarantees that the state may not terminate a 5 Ofcourse, the assertion ofjurisdiction on this basis is specific to R.T., and is not a global finding that motheris unfit as to other children. (Jn re Cody W. (1994) 31 Cal.App.4th 221, 225-226 (Cody W.).) parent’s rights with respectto her child without first making (1) a showing of parental unfitness, (2) by clear and convincing evidence. (/d. at pp. 747-748,758, 760, fn. 10; Guardianship ofAnn S. (2009) 45 Cal.4th 1110, 1130 (Ann S.); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254 (Cynthia D.).) Precious D. reasonedthat the assertion of dependencyjurisdiction based on parent’s blameless inability to control her daughter madeit possible for that parent’s right over that child to be terminated without any finding of parental unfitness. (Precious D., supra, 189 Cal.App.4th at pp. 1260-1261.) Weare unpersuadedby this argument for two reasons. First, this argumentconflates parental “unfitness” with parental culpability. But they are not the same. “Unfitness” is concerned whethera parentis able to protect the welfare ofher child; culpability is concerned with why. As noted above, unfitness can stem from a parent’s willful acts, her negligence, or acts entirely beyond hercontrol and for which she is not culpable (such as suffering from a developmental disability). The decisions governing the constitutional constraints on the terminationofparental rights define “unfitness” with reference to the child’s welfare, not the culpability of the child’s parents. (See Santosky, supra, 455 U.S.at p. 766 [noting “state’s parens patriae interest in preserving and promoting the welfare of the child”]; accord, In re Vonda M. (1987) 190 Cal.App.3d 753, 757 [“the imposition ofjuvenile dependency jurisdiction must depend uponthe welfare ofthe child, not the fault of or lack of fault of the parents”].) Indeed, if unfitness were synonymouswith fault, all of the grounds for dependency jurisdiction having no elementof parental blame would beconstitutionally suspect. (See § 300, subds. (b)(1) [fourth clause], (c), (g).) Second, when “unfitness” is properly defined, there is no danger that allowing a juvenile court to assert jurisdiction over a child based on the parent’s “failure or inability . . . to adequately supervise or protect the child” from a substantial risk of physical harm orillness will result in the termination of parental rights without a finding, by clear and convincing evidence, of parental unfitness. Precious D. correctly noted that a court’s assertion of dependencyjurisdiction overa child is made only by a preponderanceofthe evidence. (§§ 300, 355.) But the assertion ofjurisdiction is 8 “merely a first step” (Ethan C., supra, 54 Cal.4th at p. 617) in a multi-step process that mayor may notleadto the termination ofparental rights (Cynthia D., supra, 5 Cal.4th at pp. 247-250 [detailing steps]), and due process requires only that a finding ofparental unfitness be made “‘at somepointin the proceedings. . . before parental rights are terminated’” (Ann S., supra, 45 Cal.4th at p. 1134,italics omitted; Jn re Z.K. (2011) 201 Cal.App.4th 51, 66). Under California law, there is no danger that dependency proceedings will reach the stage where parental rights are terminated withouta finding of parental unfitness. The parental rights of mothers and “presumed”fathers not having custody oftheir children may be terminated only upon finding, by clear and convincing evidence, of their unfitness made at the permanencyplanning hearing conducted pursuantto section 366.26. (In re T.G. (2013) 215 Cal.App.4th 1, 20 [“[A] court maynot terminate a nonoffending, noncustodial mother’s or presumed father’s parental rights without finding, by clear and convincing evidence, that awarding custody to the parent would be detrimental.”]; Cody W., supra, 31 Cal.App.4th at p. 225 [finding of “detriment”is “equivalent[to] a finding of unfitness’”], citing In re Jasmon O. (1994)8 Cal. 4th 398, 423; In re G.P. (2014) 227 Cal.App.4th 1180, 1193 [same].) The parental rights of parents having custodyof their children, like motherin this case, may also only be terminated at a permanency planning hearing. (§ 366.26, subd.(c).) Although no finding of unfitness need be madeatthat hearing for custodial parents (In re Amanda D. (1997) 55 Cal.App.4th 813, 819; In re Jason J. (2009) 175 Cal.App.4th 922, 931, fn. 3), there are only four procedural pathsto that hearing for custodial parents and each them of requires a finding, by clear and convincing evidence, of parental unfitness. A section 366.26 hearing may be convened(1) after a child (a) is removedfrom her parent upona finding, by clear and convincing evidence, on oneofsix groundsofunfitness (§ 361, subds. (c)) and (b) is not returnedto her parent’s custody for at least 12 months (§§ 366.26, subd. (c)(1), 366.21, subd. (g), 366.22, subd.(a), 366.25, subd.(a)(3)), (2) after a child is removed due to the parent’s incarceration or abandonment without support and upona finding, by clear and convincing evidence, that 9 (a) the parent’s whereabouts are unknownand(b)the parenthasnot contactedor visited the child for at least six months (§§ 366.26, subd. (c)(1), 366.21(e)), (3) after a finding, by clear and convincing evidence, that services to reunify the parent and child are unwarranted for one of 16 different reasonsall involving parental unfitness (§ 361.5, subd.(b)) or that reunification services with an incarceratedorinstitutionalized parent would be detrimentalto the child (§ 361.5, subd. (e)(1); see generally §§ 366.26, subd.(c)(1), 361.5, subd. (f)), or (4) after finding that the parent has been convicted (beyond a reasonable doubt) of a felony indicating parental unfitness (§ 366.26, subd. (c)(1)). More than twenty years ago, our Supreme Court observedthat “[b]y the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness.” (Cynthia D., supra, 5 Cal.4th at p. 253.) As outlined above, today there will still be at least one suchfinding of parental unfitness. This satisfies due process. Weaccordingly conclude there is no constitutional imperative for engrafting a blameworthiness elementto the first clause of section 300, subdivision (b)(1). B. Blurring ofdelinquency and dependencyjurisdiction Mother next argues that her daughter’s intransigenceis better viewed as an issue of truancy undersection 601 that falls under the juvenile court’s delinquencyjurisdiction, rather than an issue of dependency. (See § 601, subd. (a) [delinquency jurisdiction may be asserted over minor “whopersistently or habitually refuses to obey the reasonable and properordersof his or her parents . . . or who is beyondthe control of[his or her parents]”]; People v. Rice (1970) 10 Cal.App.3d 730, 736 [runaways qualify under section 601].) To construe section 300 to apply in this situation, mother fears, will empowerthe Department to choose which jurisdiction—dependencyor delinquency—to invoke, and will thereby empower the Departmentto nullify section 601 through disuse. However, the power to decide whichjurisdictional basis to invoke has long resided with the executive branch. To be sure, the courts have a say in choosing which jurisdictional basis—dependencyor delinquency—to exert once the executive branch has invoked both. (§ 241.1; D.M., supra, 173 Cal.App.4th at p. 1127.) But the courts have 10 no say in which jurisdiction the executive chooses to invokeinthefirst place. To the contrary,“it rests in the discretion of the executive branch employees—social workers, probation officers, and the district attorney—whetherto file such petitions, not the juvenile court.” (D.M., at p. 1127; §§ 290.1 [invocation of dependency jurisdiction entrusted to probation officers and social workers], 650 [invocation of delinquency jurisdiction entrusted to probation officers or district attorneys].) Whatourinterpretation ofthe first clause of section 300, subdivision (b)(1) doesis recognize a bigger galaxy of cases in which the executive will get to decide between invoking truancy and delinquencyjurisdiction (under sections 601 and 602, respectively) on the one hand, and dependencyjurisdiction on the other. But this larger galaxy iS entirely consistent with the Legislature’s expressed intent that dependencyjurisdiction be broadly construed (§ 300.2), and in no way nullifies section 601. For these reasons, we respectfully disagree with the decision in Precious D., and hold instead that no showing of parental blame is required before a juvenile court may assert dependency jurisdiction over a child at substantial risk of physical harm orillness due to her parent’s “failure or inability . . . to adequately supervise or protect”her. (§ 300, subd. (b)(1).) DISPOSITION The jurisdictional and dispositional ordersof the juvenile court are affirmed. CERTIFIED FOR PUBLICATION. HOFFSTADT Weconcur: , Acting P. J. ASHMANN-GERST CHAVEZ 11