Isabelle C.
Filed 5/8/13 In re Isabelle C. CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
>
In re ISABELLE C. et al., Persons Coming Under the Juvenile Court Law. | |
KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. MIGUEL C., Defendant and Appellant. | F066168 (Super. Ct. Nos. JD128758-00, JD128765-00) |
THE COURT
name="_ftnref1" title="">*
APPEAL from
orders of the Superior Court of
Jack A.
Love, under appointment by the Court of Appeal, Defendant and Appellant.
Theresa A.
Goldner, County Counsel, and Paul E. Blackhurst, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
Miguel C.
(father) appeals orders of the juvenile court removing his daughters Brittany,
age 15, and Isabelle, age 7, (together the children) from father’s care
following true findings made on a supplemental
petition under Welfare and Institutions Code section 387.
evidence to support the juvenile court’s finding that the previous placement
with father was ineffective in protecting the children and removal from
father’s custody was necessary to prevent substantial danger to them. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Dependency Petition December 24, 2008
Father and
Christine C. (mother)
name="_ftnref3" title="">[2] had a prior history of substance abuse and
neglect prior to the filing of a section 300 petition in Los Angeles on
December 24, 2008. A temporary
guardianship had been granted in June of that year as both father and mother
were incarcerated. Brittany had
difficulty in school, possibly due to father and mother running from law
enforcement and running from state to state to avoid warrants. There was also concern that both Brittany and
Isabelle had been sexually abused. At
the time, father also had several referrals and open cases as the alleged
father of Kaycee and Bryan R. who lived with their mother.
The
referral received in December of 2008 alleged that mother had overdosed on
prescription medication while on a bus with Brittany and Isabelle, travelling
from Chico, California to New Mexico to visit father, who was on probation in
that state. The initial petition
followed. The children were found to be
dependents and detained.
Father told
the social worker that, while mother had a past addiction to pain medication,
he did not believe she overdosed on medication on the bus. Instead, he believed she was kicked off the
bus because she was sick. According to
father, his recent drug charge was for a criminal conviction he suffered when
he attempted to fill a forged prescription for mother. Father claimed not to know it was forged;
mother insisted that father knew.
Father
wanted the children returned to his custody.
The department noted its concern of father’s representation of mother’s
substance abuse as well as his own lengthy criminal history, which included
warrants and failure to appear citations, indicating a lack of regard for rules
and the law.
Six-Month Status Review August 21, 2009
In May of
2009, Brittany, age 12, was assessed for mental health treatment and found as
suggestive of chronic Adjustment Disorder with Depression. She had been through multiple foster care
placements; she was forced to move often with father and mother; she suffered
irregular school attendance; and she was often left to care for Isabelle. According to her foster mother, Brittany’s
15-year-old brother called her more often than her father or mother did.
In the
report prepared in anticipation of the six-month review hearing pursuant to
section 366.21, subdivision (e), father admitted a substance abuse problem that
had caused him to exercise poor judgment affecting his children. Father indicated a desire to have his daughters
come live with him in New Mexico and an Interstate Compact to the Placement of
Children (ICPC) was ordered. But father
later said he did not want the ICPC to start as he did not want the friends he
was staying with to have to participate.
Father hoped to have permanent housing by May of 2009.
An interim
hearing was held October 28, 2009, to address the ICPC. The ICPC was denied by New Mexico because it
would not approve the home with mother residing there. New Mexico’s protective services also
determined father was an unfit parent due to his history of child neglect and
failure to make progress in his service plan, which included substance abuse
treatment and complying with conditions of his probation. Father had been attending weekly NA meetings.
Further
information received from New Mexico indicated that, even if mother moved out,
father would allow her to move back in.
Both father and mother had a history of prescription drug abuse. The children had missed a great deal of
school while in their parents’ care and neither father nor mother followed
through with their voluntary services case plan. The social worker indicated that the family
had moved to Oregon and had no further information on them.
Review February 19, 2010
A report
prepared in anticipation of the 12-month review hearing pursuant to section
366.21, subdivision (f), set for February 19, 2010, recommended termination of
reunification services to both father and mother. Father and mother continued to live together
in New Mexico, although father stated he was attempting to get his probation
transferred to California and was willing to leave mother if the girls were
placed with him.
The report
stated that father had not been compliant with his probation terms. He failed to attend counseling regularly and
would not admit any wrongdoing on mother’s part. The social worker felt that both father and
mother had little insight into the reasons the children were detained or the
need to continue jurisdiction. Father
and mother both insisted that mother had passed out on the bus due to illness
and not due to an overdose. Both offered
a litany of excuses for their minimal participation in counseling, and both had
recently terminated counseling because they were unable to get along with their
respective therapists.
After
Brittany’s disruptive behavior escalated, an ex parte application for a
psychological evaluation was granted in March of 2010. Brittany was verbally abusive toward her
sister and defiant toward adults. She
continued to suffer from involuntary bed wetting.
Contested Review Hearing April 9, 2010
A contested
review hearing was held April 9, 2010.
By this time, father and his adult son had moved in with his adult
stepdaughter in Yuba City. The juvenile
court terminated services to mother, continued services to father and
transferred the matter to Sutter County, where father was living.
A June 3,
2010, addendum stated that father, Brittany and Isabelle were now attending the
Strengthening Families Program together and father was participating in weekly
Al-Anon meetings and a codependency group as part of his probation terms. Brittany and Isabelle were in individual
therapy and had recently completed physical and dental exams.
Eighteen-Month Review Hearing August 10, 2010
At the 18-month
review hearing, held August 10, 2010, the department now recommended that the
children be placed with father under a family maintenance plan. Father and daughters appeared well bonded and
all saw reunification as a goal. Father
recognized mother’s noncompliance as an obstacle to reunification and separated
from her to get the girls back, but he still would not admit to any wrongdoing
on her part.
Section 364 Review Hearing
February 8, 2011
By the time
of the section 364 review held February 8, 2011, father had obtained housing
separate from his stepdaughter. But due
to a reduction in his hours at work, he was now in need of bus passes, food,
and clothing from the department. Father
was attempting to get extensive necessary dental care for Brittany. He was proactive in his daughter’s education
and requested therapy for both of them to address the bed wetting issue. Father cooperated with the department and
“demonstrated responsibility, compliance and good parenting practices.†The juvenile court agreed with the
department’s recommendation for further family maintenance services due to the
“lengthy generational child welfare history and … current impoverished
situation ….â€
Section 364 Review Hearing September 20, 2011
By the time
of the second section 364 review hearing in August of 2011, father was moving
again and the matter had to be continued.
Father did not appear at the subsequent hearing and counsel had not
heard from him. The matter was again
continued.
The report
in anticipation of the hearing stated that father and the girls had moved to a
second apartment in Yuba and were now living in Robbins, California with
father’s older son Ryan. Poverty
continued to be an issue, and the family was supplied with food and school
clothing. Both Brittany and Isabelle had
attended a number of schools due to the constant moves and transportation
issues. Father was described as loving
and dedicated, but beleaguered by poverty and unable to attain stability in
employment, housing, finances or education.
Father
again did not appear at the rescheduled review hearing September 20, 2011, and
counsel had not heard from him. County
counsel thought father was considering a move to Bakersfield where he had
family. The juvenile court ordered family
maintenance services continued for father and ordered that he was to sign the
case plan within 30 days.
Section 387 Petition March 28,
2012
Brittany
was detained on March 26, 2012, and a supplemental section 387 petition filed
two days later. The petition alleged
that Brittany was sexually abused by her brother Ryan; that mother was again
residing with the family; father, mother, and Ryan had all hit Brittany; father
was complicit in mother’s attempts to buy drugs off the street; and father and
mother had allowed Brittany to live with a friend after she informed them of
Ryan’s sexual assault on her.
A referral
received from a medical social worker March 26, 2012, stated that father had
been waiting for mother outside the healthcare facility after mother was taken
there after she purchased five methadone tablets on the street. Mother’s address was the same as that for
father. According to father, mother
visited but did not live with him or the children.
Father
denied all allegations, stating only that Brittany had been experiencing
behavioral problems since the family entered a shelter in December of
2011. Father claimed that prior to
making the allegations, Brittany had set fire to Ryan’s mattress.
The
juvenile court determined there was no sufficient basis for jurisdiction under
section 387 and dismissed the petition on May 31, 2012, and continued the case
under family maintenance. The matter was
transferred to Kern County, father’s county of residence.
Transfer In Hearing July 2, 2012
At the time
of the transfer in hearing July 2, 2012, father was living with his mother and
looking for a home in Kern County. The
juvenile court specifically ordered that mother was not to be in father’s home. When a Kern County social worker spoke with Brittany
on September 13, 2012, she stated that she had run away to Yuba to be with a
friend, she got “tired†of that situation, returned home and was ready to go
back to school. Father stated that he
intended to register Brittany for school the following day. Isabelle was already attending a local
school.
On October
11, 2012, father was arrested after attempting to sell a stolen truck. Law enforcement was called the next day when
no one came to pick up Isabelle at school.
It was discovered that Brittany and Isabelle had been cared for by Ryan
since father had been arrested. Brittany
and Isabelle were taken into protective custody and Brittany then ran away and
her whereabouts were still unknown.
Section 387 Petition October 16, 2012
A section 387
petition was filed October 16, 2012, after Brittany ran away from the
children’s center where she was detained.
Father admitted that mother “comes and goes†from the home, but he
claimed not to know whether or not she was abusing drugs.
At the
combined section 387 jurisdiction/disposition hearing November 2, 2012, counsel
for father argued that, while father had been incarcerated for a substantial
portion of time, he was willing to do whatever it took to have family
maintenance reinstated or dependency jurisdiction terminated. Counsel for the children argued for continued
family maintenance and that father “probably figured out that mom cannot be
visiting without a social worker.â€
Counsel for the department requested an amendment of the first allegation
in the petition, which was granted and then submitted on the issue of
jurisdiction. Father submitted on the
issue of jurisdiction as well and submitted a waiver of rights. The juvenile court specifically questioned
father on the waiver of rights and father stated he understood the “nature of
the allegations†and “the consequences†if the allegations were found
true.
On the
issue of disposition, counsel for father indicated “the same argument†as
initially stated. When the juvenile
court stated that the recommendation was to terminate custody, counsel for the
department stated there had been no change in the recommendation. When asked if he had anything further,
father’s counsel responded, “I don’t, your Honor.â€
The
juvenile court ordered Brittany and Isabelle removed from father’s
custody. The juvenile court found that
father had made no progress toward alleviating or mitigating the causes for out
of home placement. It noted that he had
received 24 months of family reunification services and ordered them
terminated. The juvenile court found
the children were not proper subjects for adoption and ordered a “planned
permanent living arrangement†for them.
DISCUSSION
Father
submitted to jurisdiction on the section 387 petition, but argues there was
insufficient evidence to support the findings to remove the children from his
custody. We disagree.
Before the
juvenile court can change or modify a previous order by removing a minor from
the physical custody of a parent and directing foster care placement, there
must be a hearing on a supplemental petition.
(§ 387, subd. (a).) A
petition under section 387 need not allege any new jurisdictional facts, or
urge different or additional grounds for dependency because there already
exists a basis for juvenile court jurisdiction.
(In re Joel H. (1993) 19
Cal.App.4th 1185, 1200; In re John V. (1992)
5 Cal.App.4th 1201, 1211.) The only fact
necessary to modify a previous placement is that the previous disposition has
not been effective in protecting the child.
(§ 387, subd. (b); In re Joel
H., supra, at p. 1200.)
In the
jurisdictional phase of a section 387 proceeding, the court determines whether
the factual allegations of the supplemental petition are true and whether the
previous disposition has been effective in protecting the child. (Cal. Rules of Court, rule 5.565(e)(1).) If the court finds the allegations are true,
it conducts a dispositional phase to determine whether removal of custody is
appropriate. (Cal. Rules of Court, rule
5.565(e)(2).)
When a
section 387 petition seeks to remove a minor from parental custody, the
juvenile court must apply the procedures and protections of section 361. (In re
Paul E. (1995) 39 Cal.App.4th 996, 1001-1003.) Thus, before a minor can be removed from the
parent’s custody, the court must find, by clear
and convincing evidence, there is “a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of the minor
[or would be] 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 ….â€
(§ 361, subd. (c)(1); In re
Javier G. (2006) 137 Cal.App.4th 453, 462.)
A removal order is proper if it is based on proof of: (1) parental
inability to provide proper care for the minor; and (2) potential detriment to
the minor if he or she remains with the parent.
(In re Jeannette S. (1979) 94
Cal.App.3d 52, 60.) The parent need not
be dangerous and the minor need not have been harmed before removal is
appropriate. The focus of the statute is
on averting harm to the child. (
530, 536.) The agency has the burden of
proof at a section 387 disposition hearing to show reasonable efforts were made
to prevent or eliminate the need for removal.
(In re Javier G., supra, at p.
463.) We review the court’s
jurisdictional and dispositional findings for substantial evidence. (In re
Henry V. (2004) 119 Cal.App.4th 522, 529; In re Heather A. (1996) 52
Cal.App.4th 183, 193.)
Here, the
section 387 petition alleged the previous order placing the children with
father had been ineffective in protecting them because father was arrested for
possession of a stolen vehicle, leaving the children alone in the home without
an immediate caretaker. The petition
further alleged that father had been allowing mother into the home, in direct
conflict with a court order. Mother had
a long history of controlled substance abuse, which led to the children’s
dependency in the first place.
The social
study in support of the petition explained that law enforcement was called when
no one came to pick up Isabelle at school.
It was then learned that father had been arrested for attempting to sell
a stolen truck. It was apparent that
mother was often in the family home, in direct conflict with a court
order. At the time of father’s arrest,
the children were left in their 18-year-old brother Ryan’s care, even though
Brittany earlier claimed Ryan had sexually assaulted her. The home in which Ryan cared for the children
was dirty, had only one bed, and very little food in the house. Substantial evidence supports the court’s
jurisdictional findings on the section 387 supplemental petition.
Substantial
evidence also supports a finding there was or would be a substantial danger to
the minor’s physical health, safety, protection or physical or emotional
well-being to warrant an out-of-home placement.
(§ 361, subd. (c)(1).) The
court’s order placing the children with father was conditioned on mother not
being allowed into the home because she had an untreated drug problem. By having direct contact with mother and
allowing her to have access to the children, father disregarded the court’s
order and also placed the children in the same situation that led to their
initial dependency and removal from parental custody. Father and mother’s constant run-ins with the
law led to a history of hopping from state to state and county to county,
resulting in psychological and behavioral issues for Brittany. Under these circumstances, the juvenile court
could reasonably find father had not accepted responsibility for their problems
and thus, the children remained at risk if placement with father
continued.
Further,
reasonable efforts were made to prevent or eliminate the need for removal. (§ 361, subd. (c)(1).) Father received 24 months of family
reunification services. Despite these
services and despite father’s professed understanding that he was not to have
mother in the home, he still allowed her to stay there. And he failed to keep from participating in
criminal behavior leading to his arrest and leaving the children in the care of
their older brother Ryan. Under these
circumstances, the court was entitled to disbelieve any further assurances from
father that he would protect the children.
DISPOSITION
The orders
are affirmed.
name="_ftn1" title="">* Before
Kane, Acting P.J., Franson, J., and Peña, J.
name="_ftn2" title="">[1] All
further statutory references are to the Welfare and Institutions Code.
