In
re D.W.
Filed 7/27/12 In re D.W.
CA2/1
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION ONE
In re D.W., a Person Coming Under the Juvenile Court Law.
B235909
(Los
Angeles County
Super. Ct.
No. CK88476)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and
Respondent,
v.
M.A.,
Defendant and
Appellant;
ALBERT W.,
Defendant and
Respondent.
APPEAL from orders of the Superior
Court of
County. Valerie Skeba,
Referee. Reversed.
Maureen L. Keaney, under appointment
by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, Acting County Counsel, and Jeanette
Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
Marissa Coffey, under appointment by
the Court of Appeal, for Defendant and Respondent.
_____________________________________
M.A. (Mother) appeals from the
August 29, 2011 jurisdictional and dispositional orders of the
pursuant to Welfare and Institutions Code section 300, subdivision (b) (failure
to protect), arising out of Mother’s arrest in a high-speed car chase and
subsequent incarceration.
name="_ftnref1" title="">[1] The Department of Children and Family
Services (DCFS) filed a letter of non-opposition to the appeal, conceding that
the court’s jurisdictional and dispositional orders “conflict with
relevant case law.” Albert W. (Father)
contends that substantial evidence supported the court’s jurisdictional and
dispositional orders. We agree with Mother
and DCFS that the court erred in asserting jurisdiction over D.W. on the basis
that she is currently incarcerated and unable to care for D.W.
We reverse the jurisdictional
and dispositional orders of the court.
On June 28, 2011, DCFS filed a petition pursuant to
section 300, subdivision (b) on behalf of D.W., born in 2007, alleging in
pertinent part that Mother is incarcerated and failed to make an appropriate
plan for D.W. by placing her in the care of maternal grandmother, who on a
prior occasion had physically abused Mother.
DCFS filed a first amended petition on July 28, 2011.
The amended and sustained petition alleged in its entirety that
“[Mother] is incarcerated and is unable to care for [D.W.]”
Mother was arrested in a high-speed
chase on March 13, 2011. While “still in the car from the chase,”
Mother phoned maternal grandmother and asked her to take care of D.W. and pick
up D.W. from home, where a maternal cousin was looking after her. In June 2011, Mother told DCFS that she would
be in jail for a few years and that she wanted D.W. placed with maternal
grandmother or maternal great aunt. In
late June 2011, after a team decision meeting, D.W. was placed with maternal
great aunt. At the June 2011 detention
hearing, the court ordered D.W. detained with maternal great aunt and
reunification services to be provided to Mother and Father. DCFS reported that maternal great aunt, who
was “caring” and “nurturing,” provided a stable, secure, and safe environment
for D.W.
Father submitted to jurisdiction at the jurisdictional/dispositional
hearing on August 29, 2011. The court did not agree with DCFS that
Mother’s plan to place D.W. with maternal grandmother after Mother’s arrest was
inappropriate. It stated that Mother’s
plan was appropriate, but Father was “nonoffending and is entitled to
custody.” The court amended the petition
to reflect that Mother is “currently incarcerated and unable to care for the
child.” The court sustained the amended
petition, dismissed all counts related to Father, and adjudged D.W. a dependent
of the court, finding that there was “[n]o reasonable means to protect [D.W.]
without removal from the custody of [Mother]” and that Mother was “going to be
incarcerated for over three years.” The
court ordered parenting, individual counseling, and family preservation
services for Father; unmonitored visits for maternal grandmother four hours
every other week; and permitted maternal grandmother to take D.W. to visit Mother.
This appeal followed.
DISCUSSION
We agree with Mother and DCFS that
the juvenile court erred in adjudging D.W. a dependent child under section 300,
subdivision (b) on the basis that Mother is incarcerated and is unable to care
for D.W.
Section 300,
subdivision (b) provides a basis for juvenile court jurisdiction if “[t]he
child has suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result
of the failure or inability of his or her parent or guardian to adequately
supervise or protect the child, or the willful or negligent failure of the
child’s parent or guardian to adequately supervise or protect the child from
the conduct of the custodian with whom the child has been left
. . . .”
“A
jurisdictional finding under section 300, subdivision (b) requires: ‘“(1) neglectful conduct by the parent
in one of the specified forms; (2) causation; and (3) ‘serious
physical harm or illness’ to the child, or a ‘substantial risk’ of such harm or
illness.” [Citation.]’ [Citations.]
The third element ‘effectively requires a showing that at the time of
the jurisdictional hearing the child is at substantial risk of serious physical
harm in the future (e.g., evidence showing a substantial risk that past
physical harm will reoccur).’
[Citation.]” (
129, 135.)
Here, there simply is no evidence of
serious physical harm or illness or a substantial risk of such harm to D.W. to
bring her within the provisions of section 300, subdivision (b). Further, the factual allegations of the
petition do not allege that Mother failed to supervise or protect D.W., and the
court made no such findings.
Nevertheless, Father argues that jurisdiction over D.W. was properly
asserted because by leading police on a high-speed chase Mother caused substantial
risk of harm to D.W. because Mother could have died or been imprisoned, citing
11 and In re James C. (2002) 104
Cal.App.4th 470. Those cases do not
assist Father. In In re Alexis H., the appellate court determined that the mother’s
conduct, including letting the father of one of the minors use and store drugs
within access of the minors and fighting with the appellant father, had
endangered the minors sufficiently to establish jurisdiction. (In re Alexis H.,
appellant in any event admitted he was in prison for drug possession. While in
prison, he cannot care for or supervise his children, rendering his
imprisonment enough for the court to exercise jurisdiction under section 300, subdivision (b).” (
300, subdivision (b) could be asserted based on the mother’s conduct in
permitting the minors to live in filthy and unsanitary conditions with a
convicted sex offender. Again in dicta,
the court noted that being incarcerated, the father could not supervise or
adequately protect the minors from the deplorable conditions, including a
filthy home, untreated medical and dental conditions, living in a
residence with a convicted sex offender, and lack of supervision of toddlers. (In re James
C., supra, 104 Cal.App.4th at p.
483.) The court then used language from
section 300, subdivision (g)—which we discuss post—stating, “The juvenile court could infer that
the father was either unable or unwilling to arrange for the care of the
children.” (In re James C., at pp. 483–484.)
Here, by contrast, D.W. was not
found in filthy or dangerous conditions caused by Mother’s failure to protect
or supervise. Nor did Mother allow
others to use and store drugs within D.W.’s access. Instead, Mother arranged for her to be cared
for by maternal aunt, who provided a safe, nurturing, loving environment, or by
maternal grandmother. And Father was
determined to be nonoffending by the court and D.W. ultimately was placed in
his custody.
Under section 300, subdivision (g),
a minor can be adjudged a dependent of the court if, among other things, “the child’s parent has been
incarcerated or institutionalized and cannot arrange for the care of the
child.” “There is no
‘Go to jail, lose your child’ rule in California.” (In re
S.D. (2002) 99 Cal.App.4th 1068, 1077.)
If a parent can arrange for care of the minor during the period of
incarceration, the court has no basis to take jurisdiction. (
As previously discussed, the record shows that Mother arranged for care
of D.W. by maternal grandmother or maternal great aunt. DCFS placed D.W. with maternal great aunt and
the juvenile court determined that placement with maternal grandmother was an
appropriate plan. Therefore, an order
finding jurisdiction under section 300, subdivision (g), would not have been supported
by substantial evidence.
DISPOSITION
The
August 29, 2011 jurisdictional and
dispositional orders are reversed.
NOT TO BE PUBLISHED.
MALLANO,
P. J.
We concur:
CHANEY, J.
JOHNSON, J.
name="_ftn1" title="">[1] Statutory
references are to the Welfare and Institutions Code.
