In re Dylan M.
Filed 1/30/14 In re Dylan M. CA3
NOT TO BE
PUBLISHED
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Lassen)
----
In re
DYLAN M., a Person Coming Under the Juvenile Court Law.
C074228
(Super. Ct. No. J-5946)
LASSEN
COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES,
Plaintiff and
Respondent,
v.
SHANNON
S.,
Defendant and
Appellant.
Shannon
S., mother of 12-year-old Dylan M., appeals
from the order of the juvenile court sustaining the petition, adjudging the minor a dependent, and
ordering placement out of the home.
(Welf. & Inst. Code, §§ 355, 356, 358, 395.)[1] Mother argues that the jurisdictional finding pursuant to
section 300, subdivision (g) (hereafter section 300(g)) and the dispositional
order are not supported by substantial evidence and that failure to comply with
the notice provisions of the Indian Child
Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) compels
reversal. The Department of Health and
Social Services (Department) has conceded the ICWA notice error and we reverse
to permit compliance with the ICWA. We
further conclude the juvenile court did not properly consider whether the
provisions of section 300(g) were satisfied at the time of the jurisdictional
hearing and reverse to permit the juvenile court to apply the proper standards
in evaluating whether the minor comes within the provisions of section 300(g).
FACTUAL BACKGROUND
Mother
began serving a sentence in local custody in March 2012 with a release date in
2015. To provide care for the minor
while she was in custody, mother attempted to create an informal guardianship
with the maternal grandmother and left the minor in her care. Father is in custody in state prison with a
possible release date of 2014.
The
minor was diagnosed with
Type I diabetes in 2010 and there were ongoing reports of inadequate care of
the minor by mother and the maternal grandmother. The minor was hospitalized in February 2013
for hyperglycemia and again in March 2013 for hypoglycemia. The Department placed the minor in foster care due to the
maternal grandmother’s inability to provide adequate care for the minor to
maintain consistent blood
levels thereby placing him at risk of serious physical harm.
The
Department filed a petition on March 6, 2013, alleging the
minor came within the provisions of section 300(g) because mother and father
were currently incarcerated and “unable to arrange or provide the [minor] with
ongoing care and supervision.”[2] In a discussion with the social worker the
same day, mother identified Vanessa A. and Glenn M. as possible placements for
the minor but provided no current contact information for either one. The court ordered the minor temporarily
detained.
The
jurisdiction report stated the most recent referrals—when the minor was
hospitalized for wildly fluctuating glucose levels—resulted from the minor
being responsible for monitoring his own glucose levels and for maintaining a
proper diet. Mother had made an informal
guardianship plan when she was incarcerated but the document expired after six
months and could not be renewed. The
minor told the social worker he needed someone to monitor his care. The minor was happy in his foster placement
and did not want to move.
An
addendum stated that the minor told mother he did not know Vanessa A. and
refused to visit with her but would consider living with her if things did not
work out in his current placement. On April 29, 2013, mother again identified Vanessa as a person with whom she could
arrange temporary care for the minor while she was incarcerated. The social worker spoke with Vanessa the next
day and Vanessa confirmed her interest in providing care for the minor. In subsequent discussions, Vanessa told the
social worker she was aware of the minor’s diagnosis but not of the specifics
of his medical needs and care. Vanessa
also told the social worker that her sister would provide some supervision when
her work and school schedule required her to be home late. A criminal background check showed Vanessa’s
most recent conviction was in 2008. The
Department concluded that mother could not arrange for a home which would not
be detrimental to the minor based on Vanessa’s criminal history.
At
the contested jurisdictional hearing, mother’s counsel called Vanessa A., who
testified she knew mother and the minor because her mother and the maternal grandmother
were friends and she had seen the minor frequently before she moved to Sacramento and had
some contact with mother and the minor thereafter. Vanessa testified she has two children and
her older child remembered the minor. She acknowledged her past criminal and
substance abuse history but testified she had been drug and alcohol free for
the last five years. Vanessa testified
she was working and going to college and had daycare available for her own
children and also arranged her schedule to be able to pick them up from
school. She and her sister had discussed
the minor’s special medical needs and she was willing to learn how to monitor
him and meet his needs. She had some
familiarity with dealing with diabetes management because her mother was
diabetic.
Mother
testified she had known Vanessa A. since they were teenagers and that her home
would be a good place for the minor because she had her life together, was
raising her own children, and would look out for the minor’s well-being.
The
Department argued any placement arranged by mother had to be adequate and
placement with Vanessa A. did not meet that standard. Mother’s counsel responded that only
appropriate care and supervision was required and a guardianship was not
necessary. The court stated that the
objective of dependency proceedings was to return the minor to the parent but
this was currently not possible because both parents were in custody. The court sustained the section 300(g)
allegation stating: “[T]he custodian
with whom the child was left was unable to provide appropriate care for the
child and the child’s special needs, that the child’s mother was unable to
provide the child with ongoing care and supervision as she’s currently
incarcerated and by leaving the child with her mother, her mother was unable to
provide adequate care for the child and his special needs, and such an ability
to provide care and supervision for the child on the part of the mother
endangers the child’s physical and emotional health, safety and well-being and
places the child as risk of physical and emotional harm and damage.” The court did not consider whether mother
currently could arrange for the care of the minor.
Following
the jurisdictional hearing, mother’s counsel filed points and authorities
regarding whether the section 300(g) allegations could be contested at
jurisdiction. Counsel cited authority
for the proposition that all mother had to do at jurisdiction was to provide a
plan for the minor’s care.
The
Department responded that, under the cited authorities, the plan had to be
suitable and adequate and argued that the Department and the minor had to be
able to review the suitability of the plan.
The Department, relying on section 361.3, which governs consideration of
relative placement by the Department and the court, argued that Vanessa A. had
not been approved and thus could not be considered an appropriate caretaker for
the minor.
The
disposition report stated that mother identified Vanessa A. as a caretaker for
the minor and Vanessa said she was willing to care for the minor. In his foster placement, the minor no longer
controlled his medical supplies, testing or injections and no longer had the
dramatic blood sugar fluctuations that had led to his detention. His grades were improving and he felt less
stressed. The Department recommended
bypassing services to both parents due to the length of their respective
criminal sentences. The Department was
considering guardianship as a permanent plan for the minor and assessed Vanessa. Vanessa was aware of the minor’s special
needs and that she needed more information to manage his care. The Department needed to complete an
assessment of Vanessa’s home and do background checks on her roommates and
sister who lived there before placement could occur. The report concluded mother was now able to
arrange for the minor’s ongoing care and supervision with a non-related
extended family member who was willing to accept guardianship for the minor. The report suggested Vanessa was an appropriate
caretaker for the minor but that a complete guardianship assessment was needed
before the Department could recommend her appointment and requested the
dispositional hearing be continued.
In
an addendum report, the Department changed the recommended disposition to
long-term foster care for the minor.
Further investigation of Vanessa A.’s home disclosed that in addition to
Vanessa, her children and her sister, another couple and their children were
living in the three-bedroom, two-bath home.
Vanessa said the second couple was going to move but the moving date was
not specified. The home was clean and
sanitary but the sister and the adult male each had convictions in 2011 for
driving under the influence. Because the
convictions were recent and nonwaivable, Vanessa could not be approved for
guardianship. Mother had no other care
provider alternatives.
At
the dispositional hearing, the court, treating the points and authorities as a
motion for guardianship, denied the motion, bypassed services, and placed the
minor in long-term foster care with the current caretaker.
DISCUSSION
I.
Section 300(g)
Mother
contends the juvenile court should not have asserted jurisdiction over the
minor because she was able to arrange for the minor’s ongoing care at the time
of the jurisdictional hearing.
The
juvenile court asserted jurisdiction over the minor pursuant to section 300(g),
which contains four disjunctively stated bases for jurisdiction.[3] The provision relevant here
is: “[T]he child’s parent has been
incarcerated or institutionalized and cannot arrange for the care of the child
. . . .” The provision
requires proof of only those two elements.
No additional proof of risk of harm or inadequacy of a prior custodian
is necessary as the risk to the minor is apparent by the existence of the two
elements. Several cases have construed
this provision. We review the cases to
distill the relevant principles to be applied by the juvenile court in ruling
on whether jurisdiction has been established under the relevant clause of
section 300(g).
Soon
after the provision was enacted, it was construed in In re Aaron S. (1991) 228 Cal.App.3d 202. In Aaron
S., the father was incarcerated and sent a letter to his counsel stating he
wanted the minor cared for by the paternal grandmother. (Id.
at pp. 206-207.) At the
jurisdictional hearing, the court found the minor came within the provisions of
section 300(g) “ ‘in that the minor has been left with no provision for support
by reason of the parent’s incarceration or institutionalization,’ ” sustained
the petition, removed the minor and approved placement with the paternal
grandmother. (Aaron S., at p. 207.)
Applying the plain language of the statute, the Court of Appeal for the
First Appellate District, Division Two, concluded that “section 300,
subdivision (g) applies when, at the time of the hearing, a parent has been
incarcerated and does not know how to make, or is physically or mentally
incapable of making, preparations or plans for the care of his or her child.” (Id. at
p. 208.) The court found that the
juvenile court did not focus on the father’s present ability to arrange care for the child, but on his past
actions. (Ibid.) The court held that
the statute required proof that the parent was unable to arrange for care at
the time of the hearing, not that the parent failed to do so at some prior
point in time. The court also concluded
that the juvenile court had improperly combined two of the disjunctive clauses
of the statute in making its ruling. (
intend dependencies to be established under section 300(g) “where the
incarcerated parent is able to make suitable arrangements for his or her [child’s]
care.” (Aaron S., at p. 212.)
A
second case, In re Monica C. (1995)
31 Cal.App.4th 296, dealt primarily with adequacy of reunification
services but also discussed section 300(g) as it applied to the Department of
Social Services’ (DSS) involvement with the family. The mother was in custody when she gave birth
to Monica C. and entrusted the infant to the maternal great-aunt. (Monica
C., at p. 299.) In two
subsequent incarcerations the mother again arranged for the maternal great-aunt
to assume custody while she was in prison.
(Ibid.) At some point, the maternal great-aunt filed
a petition for guardianship, which triggered a home evaluation and DSS
concluded the maternal great-aunt and her husband did not have the physical
abilities to provide appropriate long-term care for Monica. (Ibid.) After the guardianship petition was denied,
DSS subsequently filed a dependency petition relying on “the questionable
inference” that, since appellant had made a poor choice in leaving the child
with the great-aunt, she could be found generally to be incapable of arranging
for the care of the child. (
DSS did allow the minor to remain with the maternal great-aunt but
ultimately recommended a foster placement with adoption as a permanent plan,
citing the ages of the maternal great-aunt and her husband (57 and 64) as a bar
to long-term placement. (
arrange for the child’s care, mother gave DSS names of two alternate
caretakers. (Id. at p. 302.) DSS did
not investigate either person but told one that unless she was willing to adopt
the child before the mother was released from prison, there was “ ‘no
chance’ ” of being appointed as a guardian. (Id. at
p. 302.) The court relied on
requires only that an incarcerated parent arrange adequately for the child
during the period of incarceration. “It
is irrelevant whether or not the caretaker is a suitable long-term placement.” (Monica
C., at p. 305.) Consequently,
an aging relative who might not qualify for long-term custody might still be
able to provide adequate care during the length of a parent’s prison term. (Ibid.) “Before a child comes within the jurisdiction
of the juvenile court, section 300, subdivision (g), permits an incarcerated parent
to make suitable short-term
arrangements for care of the child, extending only to the expected duration of
the sentence; but after the juvenile court intervenes, the court must make a
will ordinarily extend well beyond the sentence term.” (Monica
C., at p. 308.)
In
In re S. D. (2002) 99 Cal.App.4th
1068, the parents left the two-year-old minor with a relative when they went
out to dinner. (Id. at p. 1071.) The
relative was arrested and police took the minor into custody. (Id. at
p. 1072.) The next day the mother
was arrested. (Ibid.) The petition alleged mother was incarcerated and neither
parent was available to care for the minor, but there was no allegation or any
evidence that the mother was unable to arrange for the child’s care during her
incarceration. (Id. at p. 1071.) In
fact, mother had several options for the minor’s care. (Ibid.) The minor was briefly placed with a maternal
aunt after the detention hearing and again after the 12-month review
hearing. (Id. at pp. 1072-1073, 1075-1076.) The court dismissed the section 300,
subdivision (b) allegations leaving section 300(g) as the sole basis for
jurisdiction. (In re S. D., at p. 1074.)
In assessing mother’s claim of ineffective assistance of counsel for
failing to assert a defense to section 300(g), the court stated that, if the
mother could arrange for care of the minor during the period of her
incarceration, the juvenile court had “no basis to take jurisdiction” and the
agency “had no say in the matter.” (
The court found it was “irrelevant that [the mother] had not already
arranged for [the minor]’s care at the time of her incarceration.” (In re
S. D., at p. 1077, citing Aaron
S., supra, 228 Cal.App.3d
208.) The court framed the issue as
“whether, as of the time of the jurisdictional hearing, she could
p. 1078.) The court held that (1)
the issue under section 300(g) is whether the parent could arrange for care,
not whether the parent had done so; and (2) the agency had the burden of proof
and must establish that the parent could
not arrange for care. (
1079.) The court emphasized that, under
the statute, the parent is not required to affirmatively prove the caretaking
arrangements are suitable. (
requires only that the parent is able to make the arrangements and if
the agency wishes to challenge the suitability of the arrangement it must
proceed under another of the clauses in section 300(g), which requires proof of
unsuitable placement and that the parent cannot be located. (In re
S. D., at p. 1079.) If the
parent is in custody and can be located, however, the parent has the opportunity
to make other arrangements if the first arrangements do not work out. (Ibid.)
that the arrangement for care should take.
Some guidance on that question is found in In re Athena P. (2002) 103 Cal.App.4th 617, where the mother
challenged the sufficiency of the evidence to support jurisdiction under
section 300(g). The parents were
arrested. (Athena P., at p. 621.)
While in custody, the mother gave birth to Athena and sent her to live
with the grandparents. (
custody arrangement but the documents were never filed and the specifics of the
arrangement were not known. (
In finding substantial evidence supported the jurisdictional finding,
the court observed that the mother had tried and failed to make the
grandparents temporary legal guardians and never made any further effort to
complete an arrangement for care of Athena.
(Id. at p. 629.) The failure left the grandparents with no
legal authority to consent to medical treatment, authorize vaccinations, enroll
the child in daycare or prove they were entitled to her custody should that
prove necessary, thus the mother was, and remained, unable to arrange for the minor’s
care. (Ibid.)
Finally,
in Maggie S. v. Superior Court (2013)
220 Cal.App.4th 662, the mother was incarcerated when she gave birth to
the minor. (Id. at p. 665.) The
mother had designated, in writing, two relatives who declined to care for the minor
and her godmother who was willing to do so.
(Id. at p. 672.) Due to incomplete information about the
designation, the juvenile court took jurisdiction over the minor. (Ibid.) The court concluded the juvenile court erred
because the mother was able to arrange for the care of the child at the time of
the jurisdictional hearing. (
The court also stated that the parent was not required to prove the
suitability of the placement. (
From
these cases and the requirements of the statute itself, we discern several
guiding principles when applying the “incarcerated or institutionalized” clause
of section 300(g). First, the time to
assess whether the parent is able to make arrangements for care of the minor is
as of the time of the jurisdictional hearing.
Second, the disjunctive clauses of section 300(g) cannot be combined
with each other or another subdivision of section 300 as each provides a
separate basis for jurisdiction. Third,
the agency has the burden of proving that the parent cannot arrange for the
care of the child. Fourth, the care that
is contemplated is short-term, not long-term, and a caretaker who might not be
appropriate to provide long-term care may well be able to provide short-term
care. Fifth, no particular form of
arrangement is required so long as the parent is able to make an arrangement
that will either transfer sufficient legal custody to the caretaker or provide
for securing parental consent to deal with such matters as medical care, school
enrollment and the like and gives the caretaker the right to custody of the
child while the parent is incarcerated.
Sixth, the parent is not required to prove suitability of the placement
under this clause of section 300(g). The
statute does not require that the arrangement be adequate or suitable although
some cases have suggested this is the case.
Finally, if the arrangement fails, the incarcerated parent must be given
another opportunity to arrange care.
Applying
these guidelines to the case before us, it is apparent that the court and the
parties misunderstood what was required to establish jurisdiction under the
“incarcerated or institutionalized” clause of section 300(g). The Department’s focus was on establishing
guardianship or requiring mother to satisfy the criteria for relative placement
in section 361.3. By its terms, this
section is applicable only to a placement by the Department, not to a custody
arrangement by a parent.[4] While mother was asked to
identify another caretaker for the minor when the placement with the maternal
grandmother failed, no one actually asked mother what her arrangement for care
by that caretaker would be. There was
confusion over whether the ability to arrange for the minor’s care was to be
assessed at jurisdiction or disposition.
The court’s ruling on jurisdiction dealt with mother’s arrangement for
the minor’s past care, not her current attempts, if any, to arrange for his
care with Vanessa A. or another person.
The ruling also appears to conflate the requirements of the incarceration
clause of section 300(g) with the more expansive requirements of section 300,
subdivision (b) and the unwilling/unable adult custodian clause of section
300(g).
Due
to the confusion, the record is unclear whether the Department actually proved
mother was unable to arrange for the care of the minor at the time of the
jurisdictional hearing. Reversal is
required for the juvenile court to assess whether to exercise jurisdiction over
the minor pursuant to section 300(g) under current circumstances.
II.
The ICWA Compliance
Mother
contends, and the Department concedes, that notices to the identified Indian
tribes were not included in the record.
The Department further notes that several deficiencies were found in the
notices which were sent and acknowledges that new notices must be sent.
The
ICWA protects the interests of Indian children and promotes the stability and
security of Indian tribes by establishing minimum standards for, and permitting
tribal participation in, dependency actions.
(25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and the Department have an
affirmative duty to inquire at the outset of the proceedings whether a child
who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a).) If, after the petition is filed, the court
“knows or has reason to know that an Indian child is involved,” notice of the
pending proceeding and the right to intervene must be sent to the tribe or the
Bureau of Indian Affairs if the tribal affiliation is not known. (25 U.S.C. § 1912; § 224.2,
subd. (a); see Cal. Rules of Court, rule 5.481(b).) Proof of notice must be filed with the
juvenile court. (Cal. Rules of
Court, rule 5.482(a)(2)(B) & (b).)
Failure to comply with the notice provisions and determine whether the
ICWA applies is prejudicial error. (In
re Desiree F. (2000) 83 Cal.App.4th 460, 472; In re Kahlen W.
(1991) 233 Cal.App.3d. 1414, 1424.)
At
the detention hearing mother claimed she may have Cherokee ancestry and that father
may have “Blackfoot” ancestry.[5] Although the Department represented that it
had provided the ICWA notices in both April and May 2013, the record contains
no documentation of notices to or responses from the tribes or any inquiry into
father’s Indian heritage. Based upon
this record we accept the concession, reverse the judgment and remand for
further proceedings regarding compliance with the ICWA.
III.
Dispositional Orders
Mother
contends that, assuming jurisdiction was established, substantial evidence did
not support the dispositional orders because the evidence did not support
removal of the minor from her custody.
When
the sufficiency of the evidence to support a finding or order is challenged on
appeal, even where the standard of proof in the trial court is clear and
convincing, the reviewing court must determine if there is any substantial
evidence—that is, evidence which is reasonable, credible and of solid value—to
support the conclusion of the trier of fact.
(In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason
L. (1990) 222 Cal.App.3d 1206, 1214.)
In making this determination we recognize that all conflicts are to be
resolved in favor of the prevailing party and that issues of fact and
credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d
at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the
evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th
295, 318-319.)
“A
dependent child may not be taken from the physical custody of his or her
parents . . . unless the juvenile court finds clear and convincing
evidence of any of the following circumstances listed in paragraphs (1) to (5),
inclusive . . . .” (§ 361,
subd. (c).) In arguing the case, the
parties rely on paragraph (1) of this subdivision which states, in relevant
part: “There is or would be a
substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned home, and there
are no reasonable means by which the minor’s physical health can be protected
without removing the minor from the minor’s parent’s or guardian’s physical
custody.” (§ 361, subd.
(c)(1).) However, the paragraph which is
applicable here is paragraph (5), which provides: “The minor has been left without any
provision for his or her support, or a
parent who has been incarcerated or institutionalized cannot arrange for the
care of the minor, or a relative or other adult custodian with whom the
child has been left by the parent is unwilling or unable to provide care or support for the child and the
whereabouts of the parent is unknown and reasonable efforts to locate him or
her have been unsuccessful.” (§ 361,
subd. (c)(5).)
The
finding necessary for removal in this case is identical to that for
jurisdiction except for the increased burden of proof, i.e., clear and
convincing rather than a preponderance.
(Cf. §§ 361, subd. (c), 355, subd, (a).) Because of the confusion surrounding the
jurisdictional findings, we are unable to determine whether substantial
evidence would support removal. If, on
remand the juvenile court again asserts jurisdiction over the minor, it can
then make appropriate findings and orders for disposition. We note that should removal become necessary,
the Department and the court will be constrained by the statutes and rules
relevant to long-term placement and the choices will, as we have seen, be more
limited than mother’s choices for a short-term placement.
DISPOSITION
The
judgment is reversed and the matter is remanded to the juvenile court. The juvenile court is instructed to determine
whether, based upon the facts currently in existence, a jurisdictional petition
based upon section 300(g) can be properly pleaded and proved. If, after that determination, the court
retains jurisdiction, the juvenile court must determine whether the tribes were
properly noticed. If notice was proper,
and there either was no response or the tribes determined that the minor is not
an Indian child, the juvenile court shall then proceed to decide upon the
appropriate disposition for the minor.
However, if a tribe determines the minor is an Indian child and the
court determines the ICWA applies to this case, the juvenile court is ordered
to conduct the dispositional hearing in conformance with all provisions of the
ICWA.
BUTZ ,
J.
We concur:
ROBIE , Acting P. J.
MAURO , J.
[1] Undesignated statutory
references are to the Welfare and Institutions Code.
[2] The petition also alleged
the minor came within section 300, subdivision (b) because mother made an
inappropriate plan for the minor’s care in March 2012. However the court did not sustain this
allegation, leaving the sole basis for jurisdiction section 300(g).
