In re A.F.
Filed 6/28/12 In re A.F. CA1/3
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
In re A.F.,
a Person Coming Under the Juvenile Court Law.
SAN
FRANCISCO HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
A.F.,
Defendant and Appellant.
A131827
(San
Francisco County
Super. Ct. No. 508845)
After
several hearings, the juvenile court issued an order on March 4, 2011, terminating its
on a petition filed by the San Francisco Human Services Agency (agency). A.F. seeks reversal of the order on the
grounds of abuse of discretion and insufficient
evidence, and the agency’s failure to provide him with information to which
he is entitled pursuant to section 391 of the Welfare and Institutions Code.
dependency jurisdiction over A.F.
However, we conditionally reverse the order, and remand the matter so
that the court may ensure that A.F. receives the information to which he is
entitled pursuant to section 391.
FACTUAL AND
PROCEDURAL BACKGROUND
name="_ftnref2" title="">[2]
When
A.F. was born in January 1992, both he and his mother tested positive for
cocaine. The juvenile court detained him
when he was 14 days old based on the agency’s section 300 dependency petition
alleging, among other things, his mother’s history of
the court’s jurisdiction as a dependent.
A.F. remained a dependent in foster care throughout his childhood,
except for one month when at the age of thirteen he was returned to his
mother’s care with family maintenance services.
On March 18, 2008,
when A.F. was 16 years old, he was placed with his current caretaker in the East
Bay.
During
his childhood, A.F. was developmentally delayed and as he got older he had
behavioral problems. He was diagnosed
with attention deficit disorder, oppositional defiant disorder, as well as mild
mental retardation. The agency provided A.F. with individual and
family therapy services, and he was treated with psychotropic medications by
psychiatrists. Despite years of therapy
and various medications, A.F. continued to have difficulties with his
impulsivity and aggression.
On
September 15, 2010, the
agency filed a JV-180 petition pursuant to section 388, requesting dismissal of
the dependency proceeding and termination of the court’s jurisdiction over
A.F. The agency alleged that since the court’s
July 27, 2010, order
continuing the dependency, A.F. had turned 18 years old and had received his
high school certificate of completion.
A.F.’s case was being managed by the East
Bay Regional Center
and A.F. was in “a regional center vendorized home for adults.” The agency indicated that termination would
be better for A.F. because all of the services necessary to assist him had been
arranged and East Bay
Regional Center
would be managing his case. The agency
also submitted a “dismissal report/388,” in which the agency’s social worker
stated that A.F.’s caretaker, his foster parent since 2008, had “converted the
placement to an adult vendorized facility in order to maintain [A.F.] in the
home. He has all of the services in
place that he needs. East
Bay Regional Center
[is] providing case management services, funding for the home, and ha[s]
applied to be his representative payee.
His mental health services and mental health needs have been transferred
to the appropriate placement county. . . . Funding is in place through Medi-Cal. East
Bay Regional Center
now provides all case management services.
All of [A.F.’s] needs are being managed by East
Bay Regional Center.”
On
December 16, 2010, A.F.’s
counsel filed a trial brief opposing the agency’s dismissal request. According to counsel, although A.F. had
reached the age of 18 and completed high school, there was “a prospect of harm”
if dependency was terminated because he was in a period of transition and needed
the assistance of the agency and court-appointed counsel to secure needed
mental health services. According to
counsel, A.F.’s psychiatrist and psychotherapist were no longer treating him,
and he had not yet been assigned a new psychiatrist and no referral had been
made for a new psychotherapist. Without
the continued mental health services, A.F. had “a real likelihood of
homelessness and other problems.” A.F.
was “compliant with services” and he wanted to remain a court dependent until
he was “stable.”
On
December 17, 2010, the
court held a contested hearing. The
agency’s social worker testified that dismissal was recommended because A.F.’s
“case management services were [then] being provided by the East Bay Regional
Center,” funding for his home was “in place,” his mental health services had
been transferred to Contra Costa County, he was attending a post-high school
educational institution at the Contra Costa College campus, and his “SSI was
active.” At the time of the hearing,
A.F.’s psychiatrist was no longer treating him, and Contra
Costa County
was to provide a new psychiatrist.
A.F.’s psychotherapist was also no longer treating him, and East
Bay Regional Center
“would be responsible for finding” A.F. a new psychotherapist. A.F. had received a high school certificate
of completion and he was currently living in a stable placement in Richmond. He had been in that placement for two years,
and his caretaker had done an excellent job of taking care of A.F. There had been no reports of any misconduct
that would rise to the level of potential harm to A.F. in that placement. The social worker confirmed the agency was
not paying for A.F.’s foster care.
Instead, East Bay
Regional Center
was receiving payments directly from SSI and any other sources, which payments
were then given to A.F.’s caretaker.
A.F.’s
caretaker testified that A.F. had been in her care since 2008. Due to A.F.’s condition, he would need
supervision basically for the rest of his life.
At the time of the hearing, the caretaker was no longer receiving any
agency funds for A.F.’s care. Instead,
she was receiving funds from a vendor agency associated with the East
Bay Regional Center. The caretaker’s home had been re-licensed as
a home for disabled persons so that the caretaker could continue to care for
A.F. The caretaker indicated that in
order for A.F. to remain in her home, he would have to take his medication, see
his mental health providers, he must not damage property, and “the violence has
to stop in the community, confronting . . . women.” However, A.F. would not lose his housing with
the caretaker if there was a delay in mental health services because of a
change in providers. At the time of the
hearing, A.F.’s psychotherapist’s internship had ended. A.F.’s former psychiatrist had made a
referral for psychotherapy, but said
“It’s going to take time,” and gave an approximation “anywhere from
about six months.” According to the
caretaker, the East Bay
Regional Center
had not offered to provide A.F. with psychotherapy services. The caretaker was told that East
Bay Regional Center
would not be able to do anything until A.F. was 21 or 22 years old. On cross-examination, the caretaker admitted
she did not know for certain that A.F. would not be assigned a new
psychotherapist. A.F. was at that time
attending an educational program to help with his transition from high school
to the young adult college program that was offered by the West
Contra Costa County
school board. He had been expelled from
attending classes on the Contra Costa
College campus because of
inappropriate conduct. However, he was
allowed to attend classes at the Transition
Center in Richmond. While A.F. was in the caretaker’s home, he
had a social worker and services through the agency. The caretaker believed that the agency should
stay involved in A.F.’s case because she claimed that he had no other services
as East Bay
Regional Center
was “not doing anything.” The caretaker
believed that keeping the agency involved would assure A.F.’s receipt of
services because a former agency social worker had been able to arrange for
needed services.
A.F.
testified that he was happy in his current placement, and attending school at a
transition program which was “going good.”
He was taking his medication, it was helping him, and as soon as he was
assigned a therapist or a psychiatrist he would start seeing both.
After
hearing counsel’s arguments, the court tentatively ruled it would dismiss the
dependency proceeding after the agency completely filled out a JV-365 form
and provided A.F. with all the documents he was entitled to receive before
dismissal. The court requested A.F.’s
counsel to continue her representation for three months. In so ruling, the court stated it was
confident psychiatric services for A.F. would continue. However, the court was not so confident
psychotherapy services would continue, and was “very concerned” that the agency
had not confirmed continuation of those services before it requested
dismissal. “This is not exactly one of
those cases that is totally driven by the law.
It’s very much a factor in this case and I think [A.F.’s] history really
militates in favor of his continued participation in therapy. I haven’t heard from one witness today who
thinks that [A.F.] doesn’t need therapy, including [A.F.] himself. [¶] So I
would be interested in having [counsel] bird-dog that issue in particular, and
secondarily, just keep track of the psychiatry referral for the
medication. I feel confident that
[A.F.’s former psychiatrist] is taking care of that, also based on what I have
heard and what I have read. [¶] And the school piece also is troubling. I don’t know if there will ever be a
resolution of that in three months or six months, but I would like [counsel] to
see what she can do.”
On
January 7, 2011, the parties appeared in court to discuss, among other
things, the sufficiency of the
information in the agency’s JV-365 form.
The court directed the parties to file written submissions: A.F.’s counsel was to indicate the
deficiencies in the form and the agency was to respond to the alleged
deficiencies. The parties complied with
the court’s request for written submissions.
order directing the agency to “correct and augment the Health and Education
Passport” in certain respects by February 18, 2011. The parties were directed to return to court
on February 24, 2011 for the court’s final decision on dismissal, which would
be “based on the adequacy of [A.F.’s] Health and Education Passport, and the
adequacy of the plan for provision of psychiatric care for [A.F.] post
dismissal.”
On
February 24, 2011, the parties appeared in court. The agency’s counsel indicated the agency had
attempted to comply with the court’s request to update A.F.’s Health and
Education Passport, but A.F.’s counsel continued to have objections and was
asking for supplemental material. A.F’s
counsel indicated the updated Health and Education Passport appeared “to still
be inadequate and lacking in a lot of information.” The education portion still lacked
information as to grade levels and information for many years, and there were
still wide gaps in the medical history.
In
response to the court’s queries, counsel addressed the agency’s compliance with
the court’s order regarding the adequacy of the Health and Education Passport
information given to A.F. A.F.’s counsel
noted the court’s order had not addressed her arguments that A.F. did not have
his medical history earlier than approximately age 14, or his birth
history. The court replied, “That was
not put in the Court’s order for a reason.
The Court is not ordering that.”
A.F.’s counsel also objected to dismissal because A.F.’s psychotherapy
was not in place. Counsel conceded A.F.
had a “referral . . . from his former psychiatrist to a community
mental health location,” but therapy had not yet started. Counsel had not been able “to figure out
whether something additional need[ed] to be done.” The agency’s counsel indicated that even if
the court dismissed the dependency, the agency would work with A.F.’s counsel,
“adding leverage to make sure [counsel] ha[d] the full force of the government
to make sure that [A.F.] g[ot] a smooth transition to the appropriate
therapist.”
The
court ordered dismissal of the dependency proceeding and termination of its
jurisdiction, and continued the assignment of A.F.’s counsel for three months
from February 24, 2011. On March 4,
2011, the court filed its order dismissing the dependency proceeding and
terminating jurisdiction over A.F. The
order also provided that A.F.’s “counsel shall stay on the case for three
months.” A.F. timely appealed from the
order.
DISCUSSION
Court’s Termination of Its Jurisdiction
A.F. argues the
juvenile court abused its discretion in terminating its jurisdiction because
there was insufficient evidence that termination was in his best interest or
the interest of justice, and there was evidence that termination would give
rise to reasonably foreseeable harm to him.
According to A.F., the court terminated its jurisdiction at a time when
he had no regular, ongoing therapeutic support services in place, and there
were no assurances that such services would be arranged through either the East
Bay Regional Center or the Contra Costa County Health Services. Without both psychiatric and psychotherapy
services in place, there was a foreseeable risk A.F.’s behavior would
deteriorate because of gaps in his psychotropic medication regimen or receipt
of psychotherapy services. We conclude A.F.’s
arguments are unavailing.
Once
a juvenile court has acquired jurisdiction over a minor, “it may retain
jurisdiction until the dependent child turns 21. Under section 303, ‘[t]he court may retain
jurisdiction over any person who is found to be a dependent child of the
juvenile court until the ward or dependent child attains the age of 21
years.’ Conversely, under section 390,
the dependency petition may be dismissed any time before the minor reaches age
21 ‘if the court finds that the interests of justice and the welfare of the
minor require the dismissal . . . .’ ” (In re
Holly H. (2002) 104 Cal.App.4th 1324, 1330.) “In 2000, the Legislature added section 391
. . . in response to concerns that dependent children who had reached
the age of 18 were being removed from the dependency system before they had
adequate skills or resources to support themselves . . . . [Citation.]”
(Id. at
pp. 1330-1331.) “Section 391
contains a legislative directive that before jurisdiction of the juvenile court
over a dependent child who has reached age 18 is terminated, certain minimal
assistance and documentation be afforded the youth.” (Id.
at p. 1333.) The juvenile court had
the authority to continue jurisdiction if the agency had not provided the
required assistance and documentation “and termination of jurisdiction would be
harmful to the best interests of the child.”
(§ 391, subd. (c).) However,
the continuation “shall only be ordered for that period of time necessary for
the county welfare department to meet the requirements” of providing the required
assistance and documentation. (
As
conceded by A.F., we review an order terminating jurisdiction for an abuse of
discretion. (In re Robert L. (1998) 68 Cal.App.4th 789, 793-794; see
at p. 1333.) In so reviewing the
court’s order, “when two or more inferences can be reasonably deduced from the
facts, we may not substitute our decision for the juvenile court’s
decision. [Citation.]” (In re
Josiah S. (2002) 102 Cal.App.4th 403, 419.)
Additionally, to the extent A.F. asks us to assess the sufficiency of
the evidence, our power as an appellate court “begins and ends with a
determination as to whether or not there is any substantial evidence, whether
or not contradicted, which will support the conclusion of the trier of
fact. [Citation.] All conflicts must be resolved in favor of
the [agency] and all legitimate inferences indulged in to uphold the decision,
if possible. We may not reweigh or
express an independent judgment on the evidence. [Citation.]
In this regard, issues of fact and credibility are matters for the
[juvenile] court alone.
[Citation].” (
Services v. Superior Court, supra, 122 Cal.App.4th at p. 646.)
Contrary
to A.F.’s contentions, we conclude the juvenile court used the appropriate
standard in making its ultimate decision granting the agency’s petition to
terminate the court’s jurisdiction. The
record contains sufficient evidence to support a finding that termination did
not pose any existing or reasonably foreseeable future harm to A.F.’s
welfare. Although it is clear A.F.
needed ongoing mental health services, the juvenile court could reasonably
conclude the East Bay Regional Center had appropriately arranged for the
continuation of A.F.’s mental health services.
On this record, we cannot conclude the juvenile court abused its
discretion in terminating its jurisdiction.
II. Sufficiency of Section
391 Documents
As part of its
petition to terminate jurisdiction, an agency is required to submit a report to
the court verifying that the dependent child has been given a summary of his
health and mental health history, as described in section 16010, subdivision
(a). (§ 391, subd. (b)(2).)
and Education Passport, dated February 23, 2011, does not contain an adequate
summary of his health and mental health history as required pursuant to
sections 391 and 16010, subdivision (a).
As noted by A.F., the challenged document, among other things, does not
contain well child examination information before 2006 (when A.F. was 14 years
old), and past health issues before 2007 (when A.F. was 15 years old). We are not persuaded by the agency’s argument
that the failure to provide A.F. with the omitted information before the ages
of 14 and 15 years of age is “de minimus.”
The statutory provisions do not limit the summary of information to the most
recent four or five years of a child’s dependency. Nor is it the responsibility of A.F.’s
court-appointed counsel to review the agency’s dependency files to locate the
information that the agency is statutorily required to provide to A.F. Accordingly, we will conditionally reverse
the order terminating jurisdiction and direct the juvenile court to ensure that
the agency provides A.F. with all the required information to which he is
entitled pursuant to section 391.
DISPOSITION
The March 4, 2011,
order terminating jurisdiction is reversed and the matter is remanded to the
juvenile court with directions to order the agency promptly to comply fully
with the requirements of section 391.
When the court is satisfied the agency has fully complied, it shall
reinstate the order terminating jurisdiction.
_________________________
McGuiness,
P.J.
We concur:
_________________________
Pollak, J.
_________________________
Jenkins, J.
name="_ftn1" title="">[1] All further unspecified statutory references
are to the Welfare and Institutions Code.
Operative as of January 1, 2012, section 391 has been rewritten
regarding the continued dependency of youths from the ages of 18 to 21. (Stats. 2010, ch. 559, § 28, operative
Jan. 1, 2012; amended by Stats. 2011, ch. 459, § 11, eff. Oct. 4, 2011,
operative Jan. 1, 2012; Stats 2011, ch. 464, § 2.5.) However, for convenience, we refer in the
present tense to the version of the section as it existed at the time of the
proceedings in the juvenile court. (See
411, 416 [“when the Legislature gives both an operative date and an effective
date, the operative date is the date upon which the directives of the statute
may be actually implemented”].)
resolve this appeal.
