In re Ethan S.
Filed 1/31/14 In re Ethan S. CA1/1
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opinion has not been certified for publication or ordered published for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 ONE
In re Ethan S., a Person Coming Under the Juvenile Court Law.
HUMBOLDT COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES,
Plaintiff and
Respondent,
v.
Shawn S.,
Defendant and Appellant.
A139349
(Humboldt
County
Super. Ct. No.
JV040182)
Appellant Shawn S.
counsel and terminating dependency jurisdiction as to his son Ethan S.,
following the selection of relative guardianship as the permanent plan. He claims his son’s status as an
court abused its discretion in dismissing dependency jurisdiction. We affirm.
Statement of the Facts and
Procedural History
name="_ftnref1" title="">[1]
“Shawn S. (Father) is the father of
Ethan S. (now age 11). Ethan was the
subject of a September 2004 dependency
petition, based on an allegation of caretaker absence or incapacity. (Welf. & Inst. Code, § 300, subd. (g).)
his son because he was participating in a residential drug
court in November 2004. Father was
offered reunification services with a
case plan that required him to complete his inpatient substance abuse program
and follow all recommendations for aftercare. Father successfully completed his treatment
program and the dependency was terminated in February 2006.
“On June 3, 2011, a second dependency petition was filed alleging that Father was
frequently consuming alcohol in the home to the point of passing out. He had also physically abused Ethan when he
was drunk.
“At the jurisdiction hearing held on
July 28, 2011, the juvenile court sustained the petition as amended. The jurisdiction report filed by the Humboldt
County Department of Health & Human Services (Department) concluded that
Father ‘has unaddressed alcohol issues that render him unable or unwilling to
provide adequate care for his son.’ A
supplemental report stated that Father had been arrested on July 12, 2011, and charged with stealing a bottle of tequila from a supermarket. At the time of his arrest, he had another
individual’s prescription medication in his pocket.
“At the uncontested disposition
hearing, held on August 23, 2011, Ethan was again
declared a dependent of the juvenile court. The court found Father’s unaddressed substance
abuse issues rendered him unable to provide regular care or supervision for the
child. Reunification services were
ordered for Father.
“At the six-month status review
hearing, the Department reported that Ethan was doing well in his placement in
the home of his paternal grandfather. Father
had completed a parenting class and was participating in the Alcohol and Other
Drugs program (AOD). He had
approximately three months left of a 52-week alcohol-abuse program called HART.
He had served his jail time for the
shoplifting charge and had completed his community service. He had moved into a clean and sober house. Visitation was reportedly going well. However, there were concerns that Father was
misusing his prescription medications, possibly mixing them with alcohol or
trading them for alcohol. The court
found returning Ethan to Father was not appropriate at that time, as Father
still needed to stabilize his addiction.
“The Department’s report filed for
the 12-month status review hearing notes that Father was kicked out of a clean
and sober house in April 2012 after sustaining three positive tests for
alcohol. He had moved into another clean
and sober house and had not had any positive tests as of the date of the
report, which was September 4, 2012. He had completed the HART program and was
participating in weekly 12-step program meetings and activities. He was also participating in weekly therapy
with Ethan and was trying to obtain housing. Ethan continued to do well in his grandfather’s
home and reportedly had expressed concerns about returning to his father’s
care. The Department recommended the
court order six more months of reunification services.
“At the 12-month review hearing held
on September 4,
2012, the juvenile court adopted the
findings and orders recommended by the Department. Father’s reunification services were continued.
“A contested 18-month review hearing
was held on March
27, 2013. The Department’s report prepared for this
hearing notes Ethan had left a message with a social worker stating that he
wished to live with Father. However,
Father’s voice could be heard in the background coaching Ethan on what to say. Subsequently, the boy reported that he wanted
to stay with his grandfather. Ethan also
stated that during the last six months there had been several incidents where
Father was under the influence during their visits and Ethan had contacted his
grandfather to pick him up early. In
October 2012, Father had sold some items to a pawn shop and when he received
the money asked Ethan if it would be ok for him to buy alcohol. That same month, they were at a movie and
Father pulled a bottle of alcohol out in the theater and asked Ethan not to
tell anyone. Father had been arrested
for public intoxication on November 28, 2012. A police report regarding the incident states
Father was so intoxicated that he could not walk, stand up, or communicate his
name. The social worker reported that
Father had left numerous phone messages rambling about things that did not make
sense. He appeared to be under the
influence as his speech was slurred. At
the hearing, the social worker testified that Ethan’s grandfather, who is also
Father’s employer, had reported on numerous occasions that Father appeared to
be under the influence while he was at work. The last time he reported this was about a
month prior to the hearing.
“The juvenile court agreed with
Father’s attorney that Father had done everything the Department had asked him
to do over the past 18 months. However,
the plan had not been successful. In
particular, he had suffered two alcohol-related arrests, and his son had
reported incidents in which he had been drinking alcohol in his presence. The court stressed that Ethan needed to be in
a safe, alcohol-free home and that the grandfather was able to take care of the
child’s needs. The court concluded
Father had completed his case plan, but his behaviors had not changed and he
was still unable to provide a safe home for Ethan. The court scheduled a permanency planning
hearing pursuant to section 366.26.†(
County, supra, A138265.)
On May 2, 2013,
Father filed a writ petition seeking an order directing the juvenile court to
vacate its section 366.26 order and restore reunification services. He claimed the lower court erred in finding
that returning Ethan to him would create a substantial risk of detriment to the
child’s well-being. He also asserted the
court abused its discretion in denying him additional reunification services
because the finding that he received reasonable reunification services was not
supported by clear and convincing evidence. (Shawn
S. v. Superior Court of Humboldt County, supra, A138265.)
On June 24, 2013, we filed our opinion denying Father’s writ petition on the
merits.
On June 14, 2013, the juvenile court received a report prepared for the section 366.26
hearing. The Department’s social worker
wrote that the Yurok Tribe (Ethan is an enrolled member of this tribe through
his mother’s side of the family) was
supportive of a permanent plan of guardianship with the paternal grandfather. The social worker reported the grandfather had
arranged for Ethan to have frequent contact with both of his parents. Ethan visited Father each weekend on Friday
night, returning on Sunday. The boy also
had regular contact with his mother during the week. The grandfather had a good relationship with
both of Ethan’s parents and was supportive of them maintaining positive
relationships with Ethan. The
grandfather was committed to being Ethan’s legal guardian He maintained a home for Ethan and was
financially stable. Ethan wanted to live
with his grandfather permanently, and wanted his grandfather to become his
legal guardian.
The Department recommended the
juvenile court select guardianship without dependency as the permanent
plan. The social worker proposed that
the letters of guardianship would provide for the parents to have unsupervised
day or overnight visitation on weekends, or as otherwise arranged with the
grandfather. The parents would not be
allowed to visit Ethan if they were under the influence of alcohol or drugs.
On July 19, 2013, Father filed a petition seeking to change the juvenile court
orders terminating reunification services and setting a section 366.26 hearing.
The court granted a hearing on the
petition and, at the selection and implementation hearing conducted on July 24, 2013, the court simultaneously considered testimony in support of the
section 388 petition.
Indian Child Welfare Act
representative Angela Sundberg was present for the Yurok Tribe at the combined
section 388 and section 366.26 hearing. Sundberg joined with the Department’s
recommendations. Specifically, she
observed that the grandfather had shown he was able to facilitate Ethan’s connection
to his Indian culture and community, and had helped him maintain a relationship
with both of his parents. She indicated
the Tribe was very happy with Ethan’s current situation, and would like to see
it continue.
After considering testimony from
Father, as well as comments from counsel, the juvenile court ordered a
permanent plan of guardianship without dependency and calendared a confidential
guardianship status review hearing. It
found that termination of parental rights would be detrimental to Ethan because
Father had maintained regular visitation and contact with him and Ethan would
benefit from continuing the relationship.
The court further noted Ethan’s status as an Indian child also supported
the finding that termination of parental rights would not be in his best
interest. The court made other related
findings, and relieved Father’s counsel.
It also made the following visitation order: “Unsupervised visitation for parents, to
include day and weekend visits, a minimum of five hours per week; time, place,
and manner to be as directed by the guardian, so long as parents are clean and
sober . . . . This appeal followed.
Father claims the juvenile court
abused its discretion when it dismissed dependency jurisdiction and relieved
his counsel. Relying on
1013 (K.D.), he asserts these orders
must be reversed because the court’s order terminating its dependency
jurisdiction is “ ‘fatally inconsistent’ †both with the finding that
termination of parental rights would be detrimental to Ethan, as well as the order
regarding continued visitation. We
disagree.
The facts of this case differ significantly
from the facts at issue in K.D., supra. There, the child’s foster parent was
appointed his guardian in a non-relative
guardianship. (124 Cal.App.4th at pp.
1017–1018.) The Court of Appeal reversed
an order terminating dependency jurisdiction following the establishment of a
permanent plan of guardianship under section 366.26. (K.D.,
at p. 1020.) The juvenile court had
found that preserving the child’s relationship with his parent was in the
child’s best interest, however, the parties’ circumstances indicated regular
parent-child visitation would be difficult, primarily because the guardian and
child had moved from California to the Midwest. (Id. at pp. 1017, 1019.) The
appellate court held the lower court was obligated to maintain dependency
jurisdiction and hold regular review hearings to monitor whether regular
visitation was occurring. (
Here, Ethan’s grandfather is his
guardian and thus this is a relative guardianship. When considering whether to terminate
dependency court jurisdiction, section 366.3, subdivision (a), distinguishes
between relative and non-relative guardianships. It provides, in relevant part: “Following establishment of a legal
guardianship, the court may continue jurisdiction over the child as a dependent
child of the juvenile court or may terminate its dependency jurisdiction and
retain jurisdiction over the child as a ward of the legal guardianship, as
authorized by Section 366.4.
appointed the legal guardian and the child has been placed with the relative
for at least six months, the court shall, except if the relative guardian
objects, or upon a finding of exceptional circumstances, terminate its dependency
jurisdiction and retain jurisdiction over the child as a ward of the
guardianship, as authorized by Section 366.4. . . .†(Italics added.) Thus, in non-relative
guardianships, the juvenile court has the discretion to continue or
terminate jurisdiction. (§ 366.3, subd.
(a).) In contrast, here, the court was
jurisdiction unless either the guardian objected, or the court found there were
exceptional circumstances that would merit continued court and agency supervision
of the child. (§ 366.3, subd. (a);
1470, 1475–1476.) It is uncontested that
Ethan’s grandfather did not object to terminating dependency court
jurisdiction. And while Father asserts there
are exceptional circumstances meriting continued court supervision, no such
showing can be inferred from the record
Father maintains “exceptional
circumstances†exist here due to Ethan’s status as an Indian child. However, representatives of the Yurok Tribe consistently
expressed satisfaction with the grandfather’s efforts to further Ethan’s
connection to his Indian heritage. Father
also speculates that because Father works for the grandfather’s business, he (the
grandfather) “might well begin to limit [Father’s] visitation time with Ethan
without substantial cause for doing so.†Substantial evidence does not support this contention. As a child of a parent with protracted
substance abuse problems, Ethan’s circumstances were, unfortunately, fairly
typical. The record shows, however, that
his grandfather had facilitated visitation in accordance with court orders
throughout the dependency proceedings.
The social worker reported the visitation plan appeared to be working. Thus, the circumstances in this case are both
legally and factually dissimilar to K.D.,
supra. We conclude the juvenile
court did not abuse its discretion in terminating dependency jurisdiction and relieving
Father’s counsel.
Disposition
The orders are
affirmed.
_________________________
Dondero,
J.
We concur:
_________________________
Margulies,
Acting P. J.
_________________________
Banke, J.
is derived, in part, from the earlier writ opinion filed in this case on June 24, 2013 (Shawn S. v. Superior Court
of Humboldt County (June 24, 2013, A138265) [nonpub.
opn.]). The court takes judicial notice
of this opinion. (See Evid. Code, §§
452, subd. (d), 459.) Passages from the
earlier opinion are set forth in quotation marks.
to the Welfare and Institutions Code.
