San Bernardino Cnty. Children & Family Servs.
v.
D.H. (In re D.H.)

This case is not covered by Casetext's citator
COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWONov 6, 2018
E070017 (Cal. Ct. App. Nov. 6, 2018)

E070017

11-06-2018

In re D.H. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.H., Defendant and Appellant.

Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J271568 & J271569) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.

I. INTRODUCTION

In this case, two juvenile court dependents, S.H. and D.H. (the girls), were removed from parental custody but were later returned to the physical custody of their father, defendant and appellant, D.H. (Father). At a review hearing on February 14, 2018, plaintiff and respondent, San Bernardino County Children and Family Services (SBCFS), recommended that the girls remain with Father and that the court terminate its jurisdiction, but the girls' counsel asked the court to continue its jurisdiction.

The court continued its jurisdiction based on concern for the girls' safety. Father and the girls had recently moved into the paternal grandmother's home in Los Angeles County, and the paternal grandmother had a substance abuse history and a history with child protective services. Before the girls were returned to Father, Los Angeles County Children and Family Services (LACFS) deemed the paternal grandmother's home unsuitable for the girls. Although SBCFS has visited the home and found it safe, the court ordered SBCFS to investigate why LACFS had deemed the home unsuitable. In this appeal from the February 14 order continuing juvenile court jurisdiction, Father claims (1) insufficient evidence supports the court's determination that its continued jurisdiction was necessary, and (2) the court erroneously placed the burden on Father to show that juvenile court jurisdiction was no longer necessary.

Welfare and Institutions Code section 364 requires the juvenile court to conduct a review hearing for a dependent child in parental custody, and establishes a presumption in favor of terminating juvenile court jurisdiction at the review hearing. The statute does this by placing the burden on the party seeking continued jurisdiction (here, the children) to show by a preponderance of the evidence that continued jurisdiction is necessary. (In re Aurora P. (2015) 241 Cal.App.4th 1142, 1147, 1154-1156; § 364, subd. (c) (hereinafter § 364(c).) The courts' determination that continued jurisdiction is or is not necessary is reviewed for substantial evidence. (In re Aurora P., supra, at p. 1156.)

Undesignated statutory references are to the Welfare and Institutions Code.

Here, we conclude substantial evidence supports the court's determination that its continued jurisdiction and supervision of the family was necessary to ensure the girls' safety, given that there were unanswered questions concerning whether the girls would be safe in the paternal grandmother's home. We also conclude the court did not, as Father claims, place the burden on Father to show that juvenile court jurisdiction was no longer necessary. Thus, we affirm the order continuing juvenile court jurisdiction.

II. BACKGROUND

A. The Initial Los Angeles County Proceedings

In November 2011, LACFS filed a petition for S.H., then age two, D.H., then age nine months, and their two older half siblings, alleging their mother and Father abused marijuana and kept an unsanitary home, placing the children at a substantial risk of harm. (§ 300, subd. (b).) Father is not the father of the girls' older half siblings, and those children are not subjects of this appeal. The mother is not a party to this appeal.

In May 2010, LACFS began receiving referrals for the family, including Father. A February 2011 referral alleged the mother and Father kept an unsanitary home and smoked marijuana in the presence of the children. The parents tested positive for marijuana, but Father denied he smoked marijuana around the children. In March 2011, the parents agreed with LACFS to complete a six-month voluntary family maintenance plan which included substance abuse counseling and drug testing. By September 2011, the parents had not completed the plan and were given an additional 90 days to complete the plan, but they failed to do so.

In 2007, before the girls were born, LACFS received a referral concerning the mother and one of her two older children.

In November 2011, Father was age 22 and unemployed. Despite the family maintenance plan, he had not participated in substance abuse counseling, and he had several "no show" drug tests and several negative drug tests. He also tested negative for drugs in December 2011. That month, LACFS reported the parents could "still benefit from supervision to ensure parents comply with substance abuse counseling and testing."

By January 2012, the family was living with S.H.'s godmother and was expected to stay there until it stabilized. At a February 2012 jurisdictional hearing, the Los Angeles County Juvenile Court dismissed the November 2011 petition, over county counsel's objection, after finding insufficient evidence that the children were at a substantial risk of harm at the time of the hearing.

Two months later, in April 2012, LACFS received a referral alleging the family was living in a garage with no utilities, the four children were "dirty and hungry all the time," were roaming the neighborhood without shoes, and were being left alone in the garage. The parents again tested positive for marijuana, and one week later Father tested positive at a lower level. The parents claimed they were living between the paternal grandmother's home and a paternal great-aunt's home, and they enrolled in substance abuse treatment services.

In May 2014, another LACFS referral alleged that the four children and the mother were homeless and sometimes stayed in the maternal grandmother's home. Mother was suspected of spending her tax refund on drugs, and she refused to submit to an on-demand drug test. The record does not indicate whether Father was living with the family at the time of the May 2014 referral. B. The Riverside County Proceedings

In July 2015, the Riverside County Department of Public Social Services (RCDPSS) filed a petition alleging the mother was abusing marijuana, had left the four children with an elderly man who could not care for them, and Father knew or should have known the mother was abusing marijuana and should have intervened on behalf of the girls. (§ 300, subd. (b).) In July 2015, S.H. was age six and D.H. was age four. The petition also alleged that the parents had failed to benefit from their 2011 voluntary family maintenance plan with LACFS.

When contacted by RCDPSS, Father reported he lived in Los Angeles, and he allowed the girls to stay with their mother because he had a full-time job but no childcare, and one of the girls' two older half siblings would care for the girls when the mother was not present. Father said he was not surprised to hear that the mother left the children alone for long periods, because she had a new boyfriend. Father also did not believe the mother used marijuana around the children or cared for them when she was under the influence. The children were found in a dirty back room of the elderly man's home, wearing filthy clothes. When the mother returned to the home, she appeared to be under the influence and admitted daily marijuana use.

At the July 2015 detention hearing on the RCDPSS petition, Father asked the court to release the girls to his care. He was living with the paternal grandmother in Los Angeles; he was working "on call" after being laid off from his full-time job; and he tested negative for drugs on July 30. The mother expressed concerned about placing the girls with Father, because she claimed Father often left the girls alone with the paternal grandmother, who had occasionally used corporal punishment on the girls. The juvenile court found a prima facie showing had been made that the four children were described in section 300, subdivision (b), and detained them outside parental custody. The court noted that Father reasonably should have known about the girls' living conditions, but he did nothing to help the girls even though he was not working full time. The court ordered RCDPSS to assess Father's Los Angeles home with the paternal grandmother for placement.

In October 2015, the court sustained the allegations of an amended petition, which continued to allege that Father had failed to protect the girls (§ 300, subd. (b)) and ordered the girls and their stepsiblings removed from parental custody. Father was granted reunification services for the girls, including random drug testing and an outpatient substance abuse program. His case plan objectives included staying free of illegal drugs and showing he could live free from drug dependency. He was still using marijuana and planned to renew his expired medical marijuana card. The court adopted the case plan without amendment, but ordered RCDPSS to assess Father for whether he needed a substance abuse program.

At the six-month review hearing in June 2016, the court found reasonable services had not been provided to the parents during the initial six-month period, but the court also found reasonable services were currently being provided. The children were continued as dependents, outside parental custody. C. Further Los Angeles County Proceedings

In June 2016, the children's cases were transferred to Los Angeles County. Father was still living in Los Angeles County with the paternal grandmother, and the mother had been moving back and forth between Riverside and Los Angeles Counties. Father had completed vocational training and was employed, working nights. In January 2016, Father had a new baby. He regularly visited the girls until February 2016, but stopped visiting them at that point due to his new child and work schedule. Father agreed he would regularly visit the girls again.

At the 12-month review hearing in September 2016, the juvenile court in Los Angeles County terminated the mother's services but continued Father's services for the girls. The court found Father had consistently and regularly visited the girls and had made satisfactory progress toward alleviating and mitigating the causes necessitating the girls' out-of-home placement. Father was enrolled in individual counseling and an outpatient substance abuse program. He tested negative for drugs four times between July 6 and September 8, and he was reported to be "a positive person" who "willingly shows efforts in trying to complete the requirements and necessities of his case." The girls were living with a maternal aunt. LACFS assessed the paternal grandmother's home and initially found it suitable for placement, but noted that the paternal grandmother's live scan still had to be completed.

At the 18-month review hearing in March 2017, LACFS recommended terminating Father's services for the girls on the ground Father did not have suitable housing for the girls. LACFS reported that the paternal grandmother's home, where Father had been living, was not suitable for the girls, and a denial of that placement was pending. The girls were "thriving" with the maternal aunt, who was willing to be their legal guardian.

Before the 18-month review hearing, Father and the girls' paternal great-aunt, who lived in Victorville, advised LACFS that the paternal great-aunt was willing to allow Father and the girls to live with her, and Father moved to the great-aunt's home before the 18-month review hearing, in order to facilitate the return of the girls to his care. Father and the girls had been having consistent, unmonitored visits since October 2017, and LACFS had no concerns about the visits. Father had completed most of his case plan, including an outpatient treatment program, a 12-week parenting course, and drug testing.

As of March 30, 2017, Father tested negative for substances six times, positive for alcohol one time, and failed to show for seven drug tests between October 12, 2016, and February 28, 2017. He reported he did not know why he received no show results for five days between October 12, 2016, and January 26, 2017. He reported receiving no show results on February 14 and 27, 2017, because the testing center had a power outage on February 14 and was closed on February 27. --------

At the 18-month review hearing, the court expressed surprise that LACFS was recommending terminating Father's services, given that Father had completed most of his case plan. The court ordered LACFS to assess the paternal great-aunt's home for placement and continued the 18-month review hearing to May 4, 2017. Meanwhile, in April 2017, LACFS visited the paternal great-aunt's home and found no safety concerns. On April 24, the girls were returned to Father's care. On May 4, the court ordered Father to complete his case plan and ordered LACFS to provide Father with drug testing referrals near his new Victorville home. The court set a section 364 review hearing in November 2017, but in June 2017, the girls' cases were transferred to San Bernardino County. D. The San Bernardino County Proceedings

A section 364 hearing was held in San Bernardino County on November 3, 2017. SBCFS reported Father had completed his case plan and had been willing to undergo random drug tests since the girls' cases were transferred to San Bernardino County. All of Father's recent drug tests had been negative.

Father even appeared at SBCFS offices, reporting he was not being called often enough to drug test and saying he wanted to be sure he was drug testing as often as he was required. The family welcomed SBCFS each time it visited the paternal great-aunt's home, announced and unannounced, and the paternal great-aunt reported that Father and the girls were "a joy to have" in her home. Father was unemployed but was looking for work and taking very good care of the girls. The girls liked living in the paternal great-aunt's home and were very close to Father.

Thus, SBCFS recommended that the girls remain with Father and that the court dismiss the girls' cases. The girls' counsel objected to the dismissal of the cases and terminating juvenile court jurisdiction. The girls' counsel was concerned that Father had a "seven-year CFS drug history"; believed Father had only been drug testing for 30 days, and did not believe that was enough time to determine whether Father was maintaining his sobriety. The court continued the review hearing to January 8, 2018, and set it contested by the girls.

By the time of the January 8, 2018, hearing, Father and the girls had moved to the paternal grandmother's home in Los Angeles County and were no longer living with the paternal great-aunt in Victorville. At the hearing, the girls' counsel told the court she had not been advised of the move and noted that LACFS had previously deemed the paternal grandmother's home unsuitable, and that was why Father had moved to Victorville. The court continued the hearing to February 14 and ordered SBCFS to communicate with LACFS concerning the suitability of the paternal grandmother's home. The court also ordered Father to drug test on January 8; Father did so and the test was negative.

On February 14, SBCFS filed a "CFS 6.7" report showing it had visited the family in the paternal grandmother's home. The paternal grandmother admitted having a history with child protective services and a previous substance abuse problem, but she claimed she had been clean and sober for two years. She had two jobs; she worked in a restaurant during the afternoons and as a caretaker during the evenings. Father was still looking for employment and supervising the girls when they were not in school. He had not left the girls in the paternal grandmother's care. The girls said they were happy to be with Father and that the paternal grandmother was helpful, and they liked her. SBCFS's risk assessment for the girls was "moderate" and there were no safety concerns. SBCFS continued to recommend that the girls remain with Father and that their cases be dismissed.

At the February 14 review hearing, the court received SBCFS's November 3, 2017, review report and its February 14 CFS 6.7 report into evidence. The girls' counsel did not present any affirmative evidence and proceeded by argument. The girls' counsel said she did not understand why SBCFS was recommending dismissal of the cases, given that the risk assessment was "moderate." She also noted that the CFS 6.7 report showed Father had missed several drug tests. She asked the court to keep the cases open and require Father to obtain suitable housing. County counsel pointed out that Father had drug tested three times since January 8; he tested negative on January 30 and February 8, and on January 18 he went to the testing site but they refused to test him.

The court noted Father had drug tested "for the most part" and ordered him to continue to drug test. But the court also noted that the CFS 6.7 report did not address why LACFS had found the paternal grandmother's home unsuitable, whether that had changed, or why SBCFS was now deeming the home suitable. Because the suitability and safety of the paternal grandmother's home was unclear, the court refused to dismiss the girls' cases and continued its jurisdiction over the girls. The court found that conditions justifying initial assumption of jurisdiction under section 300 either still existed, or were likely to exist if court supervision was withdrawn. The court authorized SBCFS to dismiss the cases by approval packet, and set a further section 364 hearing on August 14, 2018. Father appeals from the February 14 order.

III. DISCUSSION

A. Applicable Legal Principles

When a child has been declared subject to juvenile court jurisdiction pursuant to section 300 but is in the physical custody of his or her parent, section 364 requires the court to hold a review hearing to determine whether continued juvenile court jurisdiction is necessary. (In re N.S. (2002) 97 Cal.App.4th 167, 171-172.) Section 364(c) "establishes 'a statutory presumption in favor of terminating jurisdiction and returning the children to the parents' care without court supervision.'" (In re Aurora P., supra, 241 Cal.App.4th at p. 1155.) When, as here, the social services agency recommends terminating jurisdiction but the children seek continued jurisdiction, the children have the burden to show by a preponderance of the evidence that conditions still exist which would justify the court's initial assumption of jurisdiction, or that those conditions are likely to exist if jurisdiction is terminated. (Id. at pp. 1154-1156.)

Section 364(c) requires the juvenile court to determine whether to terminate or continue its jurisdiction based on all of the evidence presented to it, whether by the social worker, the parent, or the child. (In re J.F. (2014) 228 Cal.App.4th 202, 210.) We review a juvenile court's decision to terminate or continue its jurisdiction for substantial evidence. (In re Aurora P., supra, 241 Cal.App.4th at pp. 1155-1156.)

Substantial evidence is evidence that is reasonable, credible, and of solid value. (In re B.T. (2011) 193 Cal.App.4th 685, 691.) Under the substantial evidence standard, we do not reweigh the evidence, evaluate its credibility, or draw inferences contrary to the court's findings; instead, we uphold the challenged order if substantial evidence supports it. (In re Michael G. (2012) 203 Cal.App.4th 580, 589.) B. Substantial Evidence Supports the February 14 Order Continuing Jurisdiction

Father claims insufficient evidence supports the juvenile court's February 14, 2018, order refusing to dismiss the girls' cases and terminate its jurisdiction. He argues the girls did not meet their burden of showing "conditions still exist which would justify [the court's] initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn." (§ 364(c).) We disagree. Substantial evidence shows the girls were likely to be at a substantial risk of harm if the court had terminated its jurisdiction without requiring SBCFS to further investigate the paternal grandmother's home and determine whether the girls would be safe in that home.

The juvenile court in Riverside County initially assumed jurisdiction over the girls based on evidence that the parents abused marijuana and that Father knew or reasonably should have known the mother was placing the girls at risk of harm in the elderly man's home, but Father did nothing to protect the girls. (§ 300, subd. (b).) The evidence before the court at the February 14 hearing showed Father and the girls had only recently moved into the paternal grandmother's home in Los Angeles County, even though LACFS reported in March 2017 that the home was unsuitable for the girls, and a denial of that home for placement was pending.

The suitability of the paternal grandmother's home was moot after Father moved into the paternal great-aunt's home in Victorville. Indeed, Father's entire purpose in moving into the paternal great-aunt's home was to facilitate LACFS's return of the girls to his care, and LACFS returned the girls to Father only after he moved into the paternal great-aunt's home. But SBCFS's November 3, 2017, and February 14, 2018, reports utterly failed to explain why Father and the girls had moved into the paternal grandmother's home. This was a curious omission, given that the family had been doing so well with the paternal great-aunt.

The reports also did not explain why LACFS had deemed the paternal grandmother's home unsuitable for the girls. The record shows LACFS initially found the paternal grandmother' home suitable, but that was before the paternal grandmother's live scan was completed. At some point, SBCFS discovered that the paternal grandmother had a history with child protective services and a substance abuse history, and had only been clean and sober for two years. But SBCFS did not explain and apparently failed to investigate the nature of the paternal grandmother's history with child protective services, or her ability and willingness to remain sober.

Thus, on February 14, the court had reason to be concerned for the girls' safety in the paternal grandmother's home—even though Father reportedly never left the girls alone with the paternal grandmother and SBCFS had visited the home and found it suitable and safe. Father was seeking employment and was likely to leave the girls alone with the paternal grandmother. Based on all of the evidence before it, the court reasonably determined that the conditions that justified the initial assumption of jurisdiction over the girls were likely to recur or exist if the court terminated its jurisdiction. (§ 364(c).) To be sure, Father had completed his case plan and had resolved his substance abuse problem, but he had shown poor judgment in the past by leaving the girls in mother's care, and the court reasonably believed it was likely that the girls' safety would again be at risk if the court terminated its jurisdiction without further investigating whether the girls would be safe in the paternal grandmother's home. C. The Court Did Not Require Father to Show Jurisdiction Should be Terminated

Father further claims the court erroneously placed the burden on him to show that jurisdiction should be terminated. Again, we disagree. Nothing about the court's comments at the February 14 hearing or its order indicate that the court placed the burden on Father to show that the court should terminate its jurisdiction.

Father points to the court's statement that "I want to be able to have . . . affirmative evidence and a definite answer with respect to the suitability of the paternal grandmother's home based on it being found not suitable by Los Angeles previously, and I'm not sure what has changed about that" as evidence that the court placed the burden on Father to show that continued juvenile court jurisdiction was unnecessary. Father also notes that SBCFS visited the paternal grandmother's home and found it suitable.

Father misconstrues the court's comments. The girls' counsel claimed continuing jurisdiction was necessary to ensure the girls' safety, given that SBCFS had inadequately investigated the paternal grandmother's home. The court based its decision to continue its jurisdiction on SBCFS's reports, and SBCFS's manifest to adequately investigate the paternal grandmother's home. The court did not place the burden on Father to show that the court's continued jurisdiction was no longer necessary.

Father also asserts that "[p]rior substance use with nothing else does not constitute court jurisdiction." (In re Destiny S. (2012) 210 Cal.App.4th 999, 1003.) But the court here was not faced with "prior substance use with nothing else." It was faced with a situation in which the girls were living in the paternal grandmother's home which LACFS had found unsuitable, and there were unanswered questions concerning the paternal grandmother's child protective services history, her substance abuse history, her ability and willingness to remain sober, and whether the girls would be safe in her home.

IV. DISPOSITION

The February 14, 2018, order continuing juvenile court jurisdiction over S.H. and D.H. is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS


J. We concur: CODRINGTON


Acting P. J. SLOUGH


J.