Filed 1/5/18 In re A.O. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re A.O., a Person Coming Under the Juvenile Court Law.

ALAMEDA COUNTY SOCIAL SERVICES AGENCY,
Plaintiff and Respondent,
v.
A.O.,
Defendant and Appellant.

A150780

(Alameda County
Super. Ct. No. JD02745701)


A.O. (Minor) appeals an order of the juvenile court dismissing a dependency petition filed on her behalf by the Alameda County Social Services Agency (the Agency). We shall reverse the order.
I. BACKGROUND
The original dependency petition, filed November 4, 2016, alleged Minor’s mother, D.S. (Mother) was periodically unable to provide care and supervision for Minor due to her alcohol use; that she had gotten into a car accident while under the influence of alcohol, with Minor in the car; and that she had received informal family maintenance services from March to October 2016, which had not ameliorated her problem with alcohol. Minor’s father lived outside California and had limited contact with her. Minor was 13 years old.
According to the Agency’s initial hearing report, Mother hit the center divider of a freeway while driving under the influence of alcohol in March 2016. Her blood alcohol level was four times the legal limit. Minor was in the car. The Alameda County Emergency Response Unit investigated the incident, and a Team Decision Making (TDM) meeting took place, at which it was decided Minor would remain in Mother’s care with a safety plan, under which neither Minor nor Mother would get in a car if Mother was under the influence of alcohol, and they would call a maternal uncle or a maternal cousin (Cousin) for help if needed.
The family received informal family maintenance services, and another TDM meeting took place in early October 2016. Mother reported that she continued to drink alcohol. She had not yet followed her outpatient counselor’s recommendation that she enter a 28-day residential program. Her attendance at the outpatient program had been inconsistent. At the TDM meeting, Mother agreed to continue with the outpatient program and to complete paperwork to enter a 28-day residential detoxification program, and Minor would stay with Cousin while Mother was in the residential program. The case would be referred for court-ordered family maintenance services.
Mother told the social worker at the beginning of November 2016 that she had completed the paperwork for the residential program. Despite her desire not to be away from home during the holidays, she was willing to enroll in the program during that time if there was an opening. She said the outpatient program had been helpful but that she had not attended meetings regularly since mid-September. She intended to attend outpatient group meetings again soon. She had been attending therapy, and said she was trying to reduce her alcohol consumption but it had been difficult to do so.
In late October 2016, Mother and Minor had been involved in a conflict. Mother told the social worker she had found out that Minor had posted inappropriate material on Instagram, they got into an argument, and Mother pushed Minor away. Mother said she had been drinking but was not intoxicated.
The Agency recommended that Minor remain in Mother’s home and that family maintenance services be provided. In its November 2016 jurisdiction/disposition report, the Agency noted that the maternal uncle told a social worker that Minor was starting to challenge rules set by Mother. Minor’s therapist expressed concern that Mother’s alcohol use had caused arguments between her and Minor. Minor had voiced frustrations with Mother’s drinking and had told her therapist that she acted out in order to get Mother’s attention. The therapist did not have any safety concerns about Minor. Mother acknowledged that she needed to stop drinking alcohol, and said she was waiting for an opening at the residential program. She had started going to outpatient group classes, and planned to continue doing so.
Minor told the social worker she wanted Mother to stop drinking and that when Mother drank, she was “not herself.” Minor said she got into arguments with Mother when Mother was drinking, but they had not argued since the incident in late October. She had sometimes left the house without informing Mother when Mother was drinking, but had agreed to call family members for help in the future, rather than leaving the house. Minor was willing to live with Cousin while Mother was in the residential program.
On the date of the scheduled jurisdiction/disposition hearing, the Agency reported that Minor had left Mother’s home two days previously. The matter was continued for two weeks. When Minor did not return, the matter was continued again. The Agency had received reports Minor was staying with a friend’s family.
A social worker made contact with Minor at school on December 5, 2016. Minor refused to return to Mother’s care. She said she was staying with the family of a friend, but she did not have the address. She said she was safe and her basic needs were being met. She said she was tired of Mother’s drinking, that she and Mother had argued over Thanksgiving break, and that Mother had hit her and sat on top of her to restrain her. The juvenile court issued a protective custody warrant.
The principal at Minor’s school reported that Minor had started to miss school recently, that she had recently been suspended, and that she had been disruptive at school. A student at the school said Minor had been living with the student’s family for a few days, but that she had stolen money from the student’s mother and was no longer welcome in the house.
The matter was continued twice more as the Agency tried to contact Minor.
According to a January 2017 addendum report, Minor went to Mother’s house on Christmas and told her she was living with a “new family.” Minor had new pants and shoes and was with another girl. A parent called Mother and told her she was caring for Minor. The principal of Minor’s school reported that Minor was frequently missing classes. Her behavior was disruptive and she often smelled of marijuana. Minor told school staff she was staying with a classmate; according to the principal, the classmate lived in an unsafe neighborhood and there had recently been a shooting at the home. Minor also reported staying with the family of another friend, who had recently been suspended from school.
According to a February 1, 2017 addendum report, Minor was staying with a friend, and the Agency was assessing the home as a foster placement. Minor was still refusing to return to Mother’s care. She did not want to go to any other foster home, and she refused to be placed in protective custody. The mother of the friend with whom Minor was staying said she was willing to care for Minor and that she had her own bed and closet space at the home.
Minor was present at a February 2, 2017 hearing, at which the matter was again continued in order to allow the Agency time to evaluate Minor’s placement with her friend’s family.
At the continued jurisdiction/disposition hearing on February 22, 2017, the Agency reported that Minor had not yet come into the custody of the Agency or into an approved home. The Agency told the court it had not been able to approve the family with which Minor was living as a foster placement and that approval could take some time. It asked the court to dismiss the petition. The juvenile court dismissed the petition and recalled the warrant.
II. DISCUSSION
Minor contends the trial court erred in dismissing the petition. According to Minor, the evidence shows unequivocally that she is a person described by Welfare and Institutions Code section 300, subdivision (b)(1) and is in need of the protection of the juvenile court. We agree that the order must be reversed, although on a more limited ground than urged by Minor.
At a jurisdictional hearing, the juvenile court must “make a finding, noted in the minutes of the court, whether or not the minor is a person described by Section 300 . . . . If it finds that the minor is not such a person, it shall order that the petition be dismissed and the minor be discharged from any detention or restriction theretofore ordered.” (§ 356.)
The Agency argues we should affirm the dismissal order because substantial evidence supports a conclusion that Minor was not described by section 300. That is, according to the Agency, the evidence did not show that, at the time of the hearing, Mother was continuing to abuse alcohol or that alcohol abuse put Minor at substantial risk of harm. The problem with this argument is that there is no indication the juvenile court made a finding that Minor was not described by section 300. Although Mother’s counsel told the court at the February 22 hearing that she had been participating in outpatient services and had been testing negative for alcohol and drugs, no such evidence was presented to the court, and there was no evidentiary basis for a finding that Mother was no longer using alcohol. (See In re Zeth S. (2003) 31 Cal.4th 396, 413-414, fn. 11 [unsworn statements of counsel are not evidence].) The addendum reports prepared in January and February 2017 in advance of the continued hearing discussed Minor’s situation, but—aside from a recommendation that Mother enter a detoxification program—were silent on Mother’s efforts to overcome her problems with alcohol. The evidence about Mother’s alcohol use indicated that, as of November 2016, she was still drinking. Whether or not more recent evidence would have shown Mother was addressing her drinking problem satisfactorily, such evidence was not presented. There is no basis to conclude the juvenile court implicitly found that Mother had done so and that as a result Minor was not a person described by section 300. Rather, the basis of the Agency’s request to dismiss the petition was that Minor had left Mother’s home and was living in a home that had not been approved by the Agency.
The Agency contends on appeal that there was no evidence Mother’s alcohol use was putting Minor at substantial risk of harm: Mother and Minor had not argued in months, and Minor was living in the home of a friend, where she was “safe and cared for.” However, it appears from the record that the reason Minor ran away from home was Mother’s drinking—the very problem that underlay the dependency petition. Moreover, it is not clear Minor was “safe and cared for.” The Agency had not been able to approve the friend’s home as a foster placement for Minor, and there is cause for concern about Minor’s well-being in the time since she left home—she was skipping class, she had been disruptive at school, she often smelled of marijuana, and there had been a recent shooting at the home where she was staying. Indeed, at the hearing, the Agency argued that it was “in a very difficult position to be made responsible for [Minor] while she’s not in agreement with being placed in a place that we consider to be safe.”
The Agency now dismisses these concerns on the ground that Minor “simply had decided to reside with her friend’s family and not with Mother.” That is not a basis to dismiss a petition. In considering a minor who had already been adjudged a dependent, the court in In re I.G. (2014) 226 Cal.App.4th 380, 388, stated, “it is the juvenile court, not the dependent minor, that is charged with the statutory duty of making placement decisions in the minor’s best interests.” Similarly, the court in In re Natasha H. (1996) 46 Cal.App.4th 1151, 1158, noted: “Obstinacy and defiance test the patience of adults charged with the tending to the needs of minor children. Under the trial court’s reasoning the more obstinate the child the greater the justification for terminating jurisdiction. We disagree. As much as the minor might wish to be rid of court supervision, and as frustrating as her conduct might be to [the agency] and the court, her misbehavior and lack of cooperation do not justify termination of her dependency status absent extraordinary circumstances not present here that make it in her best interest to do so. [Fn. omitted.]” Here, of course, Minor had not yet been adjudged a dependent. But the Agency had filed a petition alleging Mother’s drinking placed Minor at risk of harm; Minor had run away from home; there was evidence that she did so because of Mother’s drinking; and she was living in a home the Agency had been unable to approve as a placement. There is no basis to conclude that Minor—a child in need of protection—could free herself of the prospect of court supervision simply by moving in with someone else without permission.
An agency may seek to dismiss a dependency petition before the trial court has taken jurisdiction. However, when it seeks to do so over the child’s objection, “ ‘the juvenile court must determine whether dismissal is in the interests of justice and the welfare of the minor.’ [Citation.]” (Taylor M. v. Superior Court (2003) 106 Cal.App.4th 97, 105-106; see also Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069, 1074; Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1077-1078.) Nothing in the colloquy suggests the juvenile court here made such a finding, either express or implied. In fact, the Agency never suggested Minor’s welfare would be promoted by dismissal; rather, its position was that although Minor was not in a safe situation, it should not be responsible for her because of her refusal to cooperate.
The Agency also argues that the juvenile court could not properly assert jurisdiction over Minor because she was not in the Agency’s care. It relies upon In re Baby Boy M. (2006) 141 Cal.App.4th 588 (Baby Boy M.).) Baby Boy M. does not assist the Agency. The mother there gave birth to a baby and promptly gave him to his biological father. (Id. at p. 593.) The mother believed the father lived in Atlanta, but did not know his address or telephone number. (Id. at p. 594.) Despite the baby’s absence, the Department of Children and Family Services filed a petition on his behalf, based on harm suffered by the mother’s older children. (Id. at p. 594.) The juvenile court declared the baby a dependent child and entered dispositional orders. (Id. at pp. 595-596.) The appellate court reversed, holding the court should not have proceeded to jurisdiction and disposition hearings before locating the baby, stating, “The benefit of waiting until the child is present (or at least his location is known and his living situation assessed) is that it avoids decisionmaking by the court that may ultimately prove not in the child’s best interests.” (Id. at p. 601.) Here, of course, Minor’s location was known; the Agency was in contact with the family with which she was living; it was assessing the home for placement; and Minor had appeared at the February 2, 2017 hearing. The rule of Baby Boy M. would not preclude the juvenile court from taking jurisdiction over Minor.
We recognize that the standard of review of a juvenile court’s order terminating dependency jurisdiction is substantial evidence. (In re Marcus G. (1999) 73 Cal.App.4th 1008, 1014.) However, it appears that the juvenile court’s ruling was not based on factual findings either that Minor did not fall within section 300 or that dismissal was in the interests of justice and Minor’s welfare, but on an erroneous legal conclusion that Minor’s refusal to live in an approved home justified dismissal of the petition. The order dismissing the petition must be reversed.
III. DISPOSITION
We shall therefore reverse the order dismissing the petition and direct the trial court to conduct further proceedings consistent with this opinion.





_________________________
Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.