In re LJ.S.
Filed 3/19/13 In re LJ.S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL,
FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re LJ.S., et al., Persons Coming Under the Juvenile
Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff
and Respondent,
v.
JEROME S., SR.,
Defendant
and Appellant.
D062622
(Super. Ct.
Nos. SJ11279A, D)
APPEAL
from an order of the Superior Court
of
County, David D. Oberholtzer, Judge. Affirmed.
Jerome S. (Father)
appeals an order issued at a contested 12-month permanency hearing placing two
of his four children with their mother, Lu. S. (Mother). He contends the juvenile court violated his
failed to return all four children to his care.
He also asserts the juvenile court erred when it failed to terminate
jurisdiction under Welfare and Institutions Code section 364. (Undesignated statutory references are to the
Welfare and Institutions Code.) We
reject his assertions and affirm the order.
FACTUAL
AND PROCEDURAL BACKGROUND
Father
and Mother never married, but have four children together: daughters A.S. (born 2001), LJ.S. (born 2004)
and L.S. (born 2007); and son J.S. (born 2006).
Father and Mother have a history of drug use and domestic violence. A.S., LJ.S. and L.S. had open cases with the
Agency (Agency) between 2002 and 2008.
Ultimately, jurisdiction was terminated and these three children were
placed with Father.
In
April 2011, protective custody warrants were issued for all four children based
on allegations of neglect and abuse by Father.
The Agency filed dependency petitions under section 300, subdivision (b)
as to A.S. and LJ.S., the two children at issue in this appeal. The petitions were based on allegations of
and alcohol abuse and mental health concerns regarding Father. (The record does not contain any records
pertaining to L.S. or J.S.; however, they are reflected as being dependent
children in all subsequent Agency reports.)
A.S. and LJ.S.
were placed in the home of a paternal aunt.
They were later moved to a foster home.
The juvenile court made true findings on amended versions of the
petitions. At the contested disposition
hearing in July 2011, the juvenile court declared A.S. and LJ.S. dependents,
ordered them placed in the care of relatives, and ordered the parents be
provided with supervised visits. By
February 2012, A.S. and LJ.S. were living in a foster home.
A June 2012 status
review report stated that Mother had graduated from a residential substance
abuse treatment, was actively participating in therapeutic groups and Narcotics
Anonymous, submitted negative drug screen tests, and had moved to McAllister
Sober Housing, after a transition stay with Father. Meanwhile, Father moved into a new apartment
and had full-time, flexible hour employment at a shipyard. He also submitted negative drug screen
tests. A.S. and LJ.S. were living in a
foster home, L.S. and J.S. were living with the paternal aunt and both parents
had weekly, unsupervised overnight visits with the children.
At
a Team Decision Meeting in July 2012, Mother indicated that reunification with
all four children would be overwhelming.
Mother suggested she reunify only with A.S. and LJ.S., and that L.S. and
J.S. be reunified with Father. Father
wanted all four children placed with him.
The Agency recommended that all four children remain together and
reunify with Father.
At the contested 12-month
permanency hearing in August 2012, the juvenile court received into evidence
Father's stipulated testimony and several agency reports. It also heard testimony from A.S. (then 11
years old) and LJ.S. (then 8 years old).
The juvenile court ordered A.S. and LJ.S. placed with Mother, and the
two younger children, J.S. and L.S., placed with Father, with the understanding
there would be "a great deal of interchange."
While the court believed both
parents were capable of taking care of all of the children, A.S. and LJ.S.
indicated that they wanted to live with Mother because it would be fairer to
the parents. Because the four children
had been split up for quite some time, the court stated,
" . . . their bonding ha[d] been modified, to a
certain extent. I'm not splitting them,
I'm just keeping the status quo."
The court concluded this arrangement was in the children's "better
interest," to alleviate any tension the children felt about being fair to
both parents. It ordered counsel to
submit a visitation proposal to the court.
It also found the case plan update to be appropriate, and ordered the
parents to comply with the case plan.
Father timely appealed.
DISCUSSION
Father
asserts the juvenile court erred when it found that it would be in the best
interests of the children to place A.S. and LJ.S. with Mother, while returning
L.S. and J.S. to his care while continuing services to both parents. He first contends that the juvenile court's
order violated his right to substantive due process because it unduly
interfered with his fundamental parental rights. We reject this argument.
Parents
have a fundamental liberty interest in the care, custody, and management of
their child. (Santosky v. Kramer (1982) 455 U.S. 745, 753; In re Marilyn H. (1993) 5 Cal.4th 295, 306.) "Substantive due process prohibits
governmental interference with a person's fundamental right to life, liberty or
property by unreasonable or arbitrary legislation." (In re
Marilyn H., supra, 5 Cal.4th
at p. 306.) However,
" ' "[t]he doctrine of substantive due process 'does not
protect individuals from all [governmental] actions that infringe liberty or
injure property in violation of some law.
Rather, substantive due process prevents "governmental power from
being used for purposes of oppression," or "abuse of governmental
power that shocks the conscience," or "action that is legally
irrational in that it is not sufficiently keyed to any legitimate state
interests." ' " (
(2009) 177 Cal.App.4th 837, 856.)
Father's
conclusory argument fails to show that the juvenile court's order violated his
right to substantive due process. Moreover, his contention fails to recognize
that children "have fundamental interests of their own that may diverge
from the interests of the parent."
(In re Jasmon O.
(1994) 8 Cal.4th 398, 419.) In a
situation where a child has been abused or neglected by a parent, "the
child's interest must be given more weight." (Cynthia D.
v. Superior Court (1993) 5 Cal.4th 242, 254.)
The juvenile court
was required to order that the children be returned to the physical custody of
their parent unless it found that the return of the children to their parent
would "create a substantial risk of detriment to the[ir] safety,
protection, or physical or emotional well-being." (§ 366.21, subd. (f).) Father essentially argues that because he was
the previous custodial parent, the juvenile court had no choice but to return
A.S. and LJ.S. to his care after finding it would not be detrimental to do
so. Father, however, presented no
authority to support this assertion and we have found none. Upon a finding of no detriment, the juvenile
court had the authority to return the child "to the physical custody of
his or her parent." (§ 366.21,
subd. (f).) The statute does not specify
that the child must be returned to the prior custodial parent.
Here, the juvenile court expressly
found that both parents
were capable of taking care of all of the children; nonetheless, it found that
it was in the best interests of the children to place the two older girls with
Mother and the two younger children with Father. Father does not challenge the juvenile
court's finding that the children would not suffer detriment if placed with
Mother. Accordingly, the only issue
before us is the trial court's decision to split the children between the
parents. We review the issue of
placement at a section 366.21 review hearing to see if substantial evidence
supported the juvenile court's finding.
(See In re Alvin R.
(2003) 108 Cal.App.4th 962, 974.) We
must consider the record most favorably to the juvenile court's order and
"affirm the order if supported by substantial evidence even if other
evidence supports a contrary conclusion."
(In re L.Y.L. (2002) 101
Cal.App.4th 942, 947.)
We
note that this case presents a rare situation where both parents were able to overcome substance abuse issues. Accordingly, we join the juvenile court and
counsel in commending the parents for the positive changes they appear to be
making for the benefit of their children.
Under these circumstances, the testimony of the two eldest daughters
that they wanted to live with Mother, while not determinative, constituted "powerful
demonstrative evidence" that it would be in their best interest to allow
them to do so. (
Cal.App.4th 1074, 1087.) The trial
court's statements at the hearing indicate that it placed a great deal of thought
into its decision to split the children between the parents. On this record, there was substantial
evidence to support the juvenile court's finding that placing A.S. and LJ.S.
with Mother was in their best interest.
Finally, should the circumstances change, section 388 provides the
substantive due process mechanism to address a change in placement. (In re
Marilyn H., supra, 5 Cal.4th
at p. 309.)
Citing
In re Gabriel L. (2009) 172
Cal.App.4th 644, Father next argues that when children are returned to their
parents at a 12-month review, the court must proceed pursuant to section
364. He contends that all four children
should have been returned to him and dependency jurisdiction should have been
terminated under section 364. We
disagree.
Section
364 applies when a child is placed under the supervision of the juvenile court
but "is not removed from the physical custody of his or her
parent." (§ 364, subd. (a);
p. 649.) Where, as here, children
are removed from parental custody, the court must schedule a hearing under
section 366.21. (§ 366.21,
subd. (f); Bridget A. v.
Superior Court (2007) 148 Cal.App.4th 285, 305.)
In any event, even
assuming without deciding that the juvenile court was required to proceed under
section 364, the question under this statute is "whether continued
supervision [was] necessary." (§ 364, subd.
(c).) Under this statute, the
court is required to "terminate its jurisdiction unless the social worker
or his or her department establishe[d] by a preponderance of evidence that the
conditions still exist which would justify initial assumption of jurisdiction
under Section 300, or that those conditions are likely to exist if supervision
is withdrawn." (
Notably, the
juvenile court found the case plan update was appropriate and ordered that both parents comply
with it. Father did not challenge this
order on appeal, nor did he argue below that the juvenile court should
terminate jurisdiction. The case plan
update required that both Mother and Father continue participating in
individual therapy, receive parenting education through therapy and participate
in substance abuse testing. Mother had
the additional requirement that she continue substance abuse services. Thus, even if section 364 applied, the
juvenile court impliedly found that while the parents had progressed, they
required continuing supervision.
DISPOSITION
The order is affirmed.
McINTYRE, J.
WE
CONCUR:
NARES,
Acting P. J.
IRION,
J.
