April
W. v. Superior Court
Filed
2/24/12 April W. v. Superior Court CA4/1
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE
DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
APRIL W.,
Petitioner,
v.
THE SUPERIOR
COURT OF SAN
DIEGO COUNTY,
Respondent;
D060202
(San Diego
County Super.
Ct. No. SJ11381A-C)
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Real Party in Interest.
PROCEEDINGS
in mandate to review temporary protective placement orders
entered at a detention
hearing, R.F. Frazier, Judge.
Petition denied.
April W.,
mother of the minor children, challenges findings and orders made at a
detention hearing under Welfare and Institutions Code
section 319.
title="">[2]
FACTUAL AND
PROCEDURAL BACKGROUND
April W. is the mother
of three children, Daniel D., age 8 years, Dylan D., age five years, and C.W.,
age two years. April's husband, Gary W.,
is the father of Dylan and C.W. Daniel's
alleged father was not involved in Daniel's life.
In 2004, Daniel was adjudged a dependent of the juvenile
court due to April's methamphetamine use and her practice of leaving him in the
care of others for long periods of time.
April completed a substance abuse
treatment program and reunified with Daniel in 2005.
In June 2011, the
Agency (Agency) received a referral alleging April and Gary were using
methamphetamine, and had left the children for two weeks in the care of the
children's maternal grandmother (Grandmother).
Grandmother was disabled, living on a fixed income and renting one room
in a home. The owner of the home, V.B.,
would not allow the children to reside in her home.
Grandmother believed that April and Gary
were using methamphetamine. Grandmother
had not observed any drug use by the parents but April's behaviors indicated
she was using drugs. April started using
methamphetamine 10 years earlier.
Grandmother reported that Gary
was a violent person who would do anything to hurt April. He slashed April's tires and refused to let
her access her cellular telephone.
V.B. said Grandmother was unable to manage the
children. They ran down the street
unsupervised and climbed tall trees in the neighbors' yards.
Daniel and Dylan told the social worker they witnessed
arguments between April and Gary,
and Grandmother and V.B. Daniel said he
slept on a dog bed.
April acknowledged she
and Gary had histories of methamphetamine use.
She denied current drug use but acknowledged she drank approximately two
beers every night. April did not submit
to a voluntary drug test. She told the
social worker she would test positive for Vicodin. April was homeless and was living out of a
truck. She did not want her children to
be exposed to those conditions. April
left the children with their grandmother knowing they were not permitted to
stay there. April said Gary
was threatening her and would not leave her alone.
Gary
acknowledged his relationship with April was strained and they were going to
divorce. He knew the children were not
welcome at V.B.'s home. Gary
said he witnessed April using methamphetamine and drinking vodka approximately
two weeks earlier. She had a history of
"disappearing" and leaving the children with Grandmother. Gary
said Grandmother had mental health issues.
On an earlier occasion he retrieved the children from Grandmother's care
because she was paranoid and believed people wanted to harm her.
The social worker
detained the children in protective custody and filed a petition under section
300, subdivision (b), on behalf of each child.
The children were detained with a paternal aunt.
On July 5, 2011, the court continued the detention
hearing for one day to allow Grandmother, who was in the hospital, to appear as
a witness. On July 6, Grandmother was
present in court when the hearing began.
April, through counsel, made a motion to dismiss the petitions (motion
akin to a demurrer) on the grounds the petitions lacked specificity and the
allegations were not sufficient to sustain findings under section 300,
subdivision (b). The court overruled the
demurrer.
The court admitted the social worker's reports in
evidence. The social worker testified
that on June 30, 2011, a
San Diego County Deputy Sheriff informed her the children could not stay in
V.B.'s home. The social worker spoke to
Grandmother, who confirmed that the children could not stay with her. The social worker decided to detain the
children in protective custody for several reasons, including April's history
of leaving the children for long periods of time, her history of substance
abuse, and reports she was currently abusing drugs. When the social worker met with April the
previous day, April's eyes were glassy and she was agitated. The social worker believed April was under
the influence. Further, Gary
had a drug-related criminal history. The
social worker was also concerned about possible domestic violence between the
parents. Daniel and Dylan reported their
parents fought, and April admitted that she and Gary argued constantly.
After the social worker testified, the court held a
lunch recess. When the hearing resumed,
April asked the court for a continuance to obtain retained counsel. She also informed the court Grandmother had
left the courthouse because she was not feeling well. April asked the court to continue the hearing
for a day to allow Grandmother to appear and testify. The court denied the request for a
continuance.
April offered a letter from V.B. stating the children
could remain in the home until August
1, 2011. The court sustained
objections to the admission of the letter as hearsay and lacking
authentication, and did not admit the letter in evidence.
The court determined there was a prima facie showing
that the children were persons described by section 300, subdivision (b), and
found that continued care in the home of a parent was contrary to the
children's welfare. The court further
found that the children were at substantial risk of danger to their physical or
emotional well-being, and there were no reasonable means to protect the
children without removing them from parental custody.
DISCUSSION
April argues the
juvenile court erred when it assumed jurisdiction because the petitions under
section 300, subdivision (b) were facially deficient. She contends the juvenile court abused its
discretion when it denied her request for a continuance to secure the presence
and testimony of Grandmother. April also
asserts the court erred when it detained the children in protective custody
instead of leaving the children in her care under a protective services plan.
A
The
Petitions State a Basis for Jurisdiction Under Section 300, Subdivision (b)
In dependency
proceedings, the parent of the child has a fundamental due process right to
notice of " 'the specific factual allegations against him or her with
sufficient particularity to permit him or her to properly meet the charge.'
" (In re Fred J. (1979) 89
Cal.App.3d 168, 175, quoting In re J.T. (1974) 40 Cal.App.3d 633, 639,
italics omitted.) A dependency petition must contain a "concise statement
of facts, separately stated, to support the conclusion that the child upon
whose behalf the petition is being brought is a person within the definition of
each of the sections and subdivisions under which the proceedings are being
instituted." (§ 332, subd.
(f).) If the parent believes that the
allegations, as drafted, do not support a finding that the child is described
by one or more of the subdivisions under section 300, the parent has the right
to bring a motion "akin to a demurrer." (In re
S.O. (2002) 103 Cal.App.4th 453, 460.)
When the facial sufficiency of a petition filed under
section 300, subdivision (b) is challenged on review, we construe the
well-pleaded facts in favor of the petition to determine whether the Agency
pleaded that the parents did not supervise or protect the children within the
meaning of section 300, subdivision (b).
Janet T. (2001) 93 Cal.App.4th 377, 386 (Janet T.); In re Nicholas B.
(2001) 88 Cal.App.4th 1126, 1133.)
A facially sufficient petition "does not require the pleader to
regurgitate the contents of the social worker's report into a petition, it
merely requires the pleading of essential facts establishing at least one
ground of juvenile court jurisdiction."
(In re Alysha S. (1996) 51
Cal.App.4th 393, 399-400.)
Here, the
social worker alleged:
"On
or about and between June 15, 2011 to present said child was destitute in that
the mother negligently and willfully failed and refused to provide said child
with the necessities of life, including, but not limited to, the child was left
with the maternal grandmother who cannot keep the child in the home where she
resides and the mother knew that the child was not able to remain there and it
was not a good environment for the child.
The mother is homeless and did not make contact with the grandmother to
arrange for proper care of the child.
The mother has a history of leaving her child with the grandmother for
long periods of time and said child is in need of the protection of the
Juvenile Court."
April
argues the petitions allege the children were described by section 300,
subdivision (b), because they were poor, and do not describe neglectful conduct
by the parents. We disagree. The children's petitions allege April
knowingly left the children in the care of a person who could not provide for
them, and did not make any arrangements or provisions for their care. The petitions further allege this was a
pattern of behavior by April, not an isolated incident.
Contrary to April's
assertions, the circumstances here are not similar to those in
Cal.App.4th 245 (V.M.). In that case, the father left the child in
the care of her maternal grandparents after the child's mother died, and made
arrangements to help support and visit his child. The grandparents were able to provide for the
child. (Id. at pp. 248-250.) The
reviewing court held that there was insufficient evidence to support the
jurisdictional finding the child was exposed to a substantial risk of serious
harm or illness as a result of any act or omission by the parent. (Id.
at p. 252.) Similarly,
Cal.App.4th 1154 (X.S.) does not
assist April. In that case, the
reviewing court held that the father's failure to provide for his then
eight-month old child until he learned he was biological father did not cause
the child to suffer, or create a risk the child would suffer, serious physical
harm. (Id. at p. 1160.) The child
was well cared for in the home of his grandmother, and it was the mother's
actions that brought the child into the dependency system. (Ibid.) Here, in contrast, the petitions state a
prima facie case that April left her children with a caregiver who was not able
to care for them in her home, and did not make any arrangements for their
support.
April also contends
this case is similar to Janet T., in
which the reviewing court held that the sustained allegations of the petition
were insufficient to establish juvenile court jurisdiction. (Janet
T., supra, 93 Cal.App.4th at
p. 392.) In that case, the petition
stated the mother had mental and emotional problems and did not send her
children to school, thus depriving them of an education and ongoing peer
relationships. (Id. at p. 387.) The
reviewing court stated no facts were alleged or suggested to indicate the lack
of school attendance subjected the children to physical injury or illness. Further, the allegation of mental illness did
not provide other facts to suggest how the mother's mental health problems
created a substantial risk to the children.
(Id. at pp. 388-389.) Here,
the statements of fact contained in the petitions allege the children were at
serious risk of physical harm or
illness because they were left for an extended period of time by their mother
in an untenable situation, without any provision for their support. The children no longer had a home or an
adequate caregiver. The alleged facts
suggest that the children, who were then ages seven, five and one years old,
would be at serious risk of physical harm or injury if left without adequate
support, day-to-day care, supervision, and protection.
notice of the specific factual allegations with sufficient particularity to
allow them to understand and contest the allegations. (In re Fred J., supra, 89 Cal.App.3d at p. 175.) B
The
Court Did Not Abuse Its Discretion When It Denied April's Second Motion for a
Continuance
April
contends the court abused its discretion when it denied her request on July 6,
2011 to continue the detention
hearing for one day to secure Grandmother's presence and
testimony. She contends the error is not harmless
because Grandmother would have
testified the children could stay
with her in V.B.'s home until August 1, 2011, and would
have authenticated V.B.'s letter
granting permission for the children to stay in the home.
April argues Grandmother's
testimony would show that April had ample time to locate a
place to stay for herself and the
children, and the children's detention in protective
custody was not necessary.
Under
section 352, the juvenile court may grant a continuance of any hearing only on
a showing of good cause and only if the continuance is not contrary to the
child's best interests. In considering
the child's best interests, the court must give substantial weight to the
child's need for prompt resolution of his or her custody status, the need to
provide children with stable environments, and the damage to a minor of
prolonged temporary placements.
(§ 352, subd. (a).)
Continuances are discouraged in dependency
cases. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.)
We review the denial of a
continuance for abuse of discretion. (In
re Elijah V., supra,
127 Cal.App.4th at p. 585.) The
reviewing court gives broad deference to the juvenile court's decision and
should interfere only if it finds that under all the evidence, viewed most
favorably in support of the ruling, no juvenile court could reasonably have
made that ruling. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
On this record April does not show the juvenile
court abused its discretion when it denied her second request to continue the
detention hearing. The court had
continued the hearing on July 5 to allow Grandmother to be present and
testify. She left during the proceedings
on July 6. By the time April asked for a
continuance to secure Grandmother's presence, the court had admitted the
Agency's reports in evidence and heard the testimony of the social worker. The Agency's reports included the social
worker's interviews with Grandmother, which were not favorable to April. April argues Grandmother's testimony would have shown that
the children could stay in V.B.'s home until August 1, and therefore temporary
removal from April's custody was not
required. April implicitly admits she
was not able to care for the children at the time of the detention
hearing. However, the issue before the
court was not whether the children were able to stay with Grandmother. Instead, it was whether there were any reasonable
means to protect the children's physical or emotional health without removing
them from the custody of their parents. (§ 319, subd. (b)(1).) The court could reasonably determine that
evidence showing Grandmother could care for the children until August 1 was not
material to the issue whether the children should be removed from parental
custody. As we discuss,
children encompassed more than April's lack of housing for herself and the
children, and would not be resolved by leaving the children in Grandmother's
temporary care. Further, to the extent Grandmother was
requesting temporary placement of the children to avoid their placement in
foster care, the court could reasonably determine the children's placement with
their paternal aunt met their immediate needs for a safe, stable placement in
the preferred home of a relative. Thus
April does not meet her burden to show that the court abused its discretion
when it denied her second request for a continuance of the
C
The
Court Did Not Err When It Detained the Children in Protective Custody
April contends there is
insufficient evidence to support the finding the children would be in danger in
her care. She asserts the children had
not suffered any serious physical harm in her care and there was no present
danger that would jeopardize their safety.
April contends the court did not consider alternatives to removal such
as placing the children in her or Grandmother's care on condition they receive
consistent psychological and in-home services.
Section 319, subdivision (b) governs the temporary
removal of the child from his or her parent at the detention hearing. It directs the court to "order the
release of the child from custody unless a prima facie showing has been made
that the child comes within [s]ection 300, the court finds that continuance in
the parent's or guardian's home is contrary to the child's welfare, and . . .
[t]here is a substantial danger to the physical health of the child or the
child is suffering severe emotional damage, and there are no reasonable means
by which the child's physical or emotional health may be protected without
removing the child from the parent's or guardian's physical custody." (§ 319, subds. (b) & (b)(1).)
Physical injury to a child is not a prerequisite to
removal under section 319, subdivision (b)(1).
The Legislature presumes that the provision of a home environment free from
the negative effects of substance abuse is a necessary condition for the
safety, protection, and physical and emotional well-being of the child. (§ 300.2.) Here, as set forth in the social worker's
reports, the record shows that the risks to the children in their parent's care
included inadequate supervision, parental substance abuse, volatility, chronic
instability and homelessness. April
exhibited signs of drug use at the initial hearing. Gary witnessed April using methamphetamine
and drinking alcohol two weeks before the detention hearing. April had a pattern of
"disappearing." The parents
acknowledged they had a contentious relationship, and there were reports that
Gary engaged in threatening or controlling behaviors with April. There is substantial evidence to support the
court's findings under section 319, subdivision (b)(1).
Further, the record supports the conclusion that placing
the children with Grandmother would not adequately protect the children's
physical or emotional hearth. There is
substantial evidence to show that Grandmother did not have suitable housing for
the children and could not manage their behaviors. Grandmother and V.B. had a contentious
relationship and argued in front of the children. Daniel did not have a bed; he slept on a dog
cushion. The children played in the
street unsupervised. Grandmother had
physical and mental health conditions, and had recently been hospitalized. She was not well enough to sit through a
her best for the children under difficult circumstances, it also supports the
finding that the children's temporary placement with Grandmother was not a
reasonable alternative to removal.
In view of the evidence of April's instability,
homelessness and substance abuse, we conclude there is substantial evidence to
support the court's findings there was a substantial danger to the children's
physical health and there were no reasonable means to protect their physical
and emotional health without removing the children from parental custody.
DISPOSITION
The petition is denied.
NARES, J.
WE CONCUR:
McCONNELL,
P. J.
HUFFMAN,
J.
name="_ftn1" title="">[1] Unless otherwise specified, further
statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] On November 15, 2011, this court deemed
April's opening brief a petition for writ of mandate. (See In
re Jennifer V. (1998) 197 Cal.App.3d 1206, 1209 [detention and
jurisdictional orders are not appealable orders under section 395].)
