In re Noe F.
Filed 1/16/13 In
re Noe F. CA2/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION ONE
In re NOE F.,
a Person Coming Under the Juvenile Court Law.
B238278
(Los Angeles County
Super. Ct. No. CK90175)
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Appellant,
v.
EMMA M.,
Defendant and Appellant;
NOE S.,
Respondent.
APPEAL
from an order of the Superior Court of
County.
Marguerite D. Downing, Judge.
Reversed.
John
F. Krattli, County Counsel, Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and
Appellant.
Michelle
L. Jarvis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Linda
S. Rehm, under appointment by the Court of Appeal, for Respondent.
——————————
Emma
M. (Mother) challenges the dependency court’s jurisdictional and dispositional
orders finding she was unable to arrange for her child Noe F.’s (Noe) care
after Mother was arrested and incarcerated on a
supports the allegation under Welfare & Institutions Code section 300,
subdivision (b)
name="_ftnref1" title="">[1]
that she was not able to protect Noe because Mother was incarcerated and failed
to make arrangements for Noe’s care. She
further argues that the dependency court erred in giving Noe S. (Father)
custody of Noe without making the findings required under section 361.2
regarding placement with Father.
Department of Children and Family Services (DCFS) cross-appeals, and filed
a letter brief in which it does not concede error, but stated it does not
oppose a reversal of the court’s jurisdictional and dispositional orders. We reverse.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Mother,
born in April 1991, is an active member of the Compton Varrio Segundo
gang. Father, born in March 1992, is
also a member of the same gang, and at the time of Noe’s detention, was
incarcerated for two counts of attempted murder. Noe was born in November 2010, and was 10
months old at the time of detention.
On
September 29,
2011, the Los Angeles County Sheriff’s
Operation Safe Streets (OSS) Team executed a search warrant at an address in Compton relating to
several assaults with a deadly weapon that had occurred in Paramount. One of the warrants pertained to Mother, who
was believed to be a coconspirator in an attempt to dissuade witnesses from
testifying in court. Mother was arrested
and placed in a patrol car. During a
search of the home, sheriffs found children in the home, and contacted DCFS’s
Multi-Agency Response Team (MART) and requested MART to investigate the welfare
of the children found in the home.
Mother claimed she did not know why the police had come to her house,
and denied being engaged in any criminal or gang activity. Mother told the social worker she lived at
the house, which belonged to Griselda S. (paternal grandmother). Paternal grandmother’s boyfriend Mauricio R.
(Mauricio) also lived there. Although
Mother knew Father was incarcerated, she claimed not to know why, and claimed
he no longer associated with a gang.
Mother
denied any substance abuse or mental health history. Mother was Noe’s primary caregiver, and she
did not work. When asked who could care
for Noe due to Mother’s arrest, Mother identified her preferences: DCFS should ask paternal grandmother if she
could care for Noe; if paternal grandmother could not, then Mother’s own mother
Teresa M. (maternal grandmother) could care for Noe. Mother told DCFS that maternal grandmother’s
house had been raided in the past.
Paternal grandmother stated that she had a child with Mauricio named
Alex, and she had been renting a room to Mother for a couple of months. Paternal grandmother stated that Father was
incarcerated on charges that were unfounded.
When asked whether she could care for Noe, paternal grandmother
responded that she worked during the day and her live-in boyfriend worked at
night, she had her own child, and could not care for Noe. Paternal grandmother suggested placing Noe
with maternal grandmother. Mauricio
reiterated that he and paternal grandmother could not care for Noe.
Noe
was happy and in good health. Given the
situation, DCFS took Noe into protective custody based on Mother and Father’s
inability to provide for his care. The
next day, Maternal grandmother expressed her desire to have Noe placed with
her.
DCFS
learned that the family had previous DCFS history. In March 2011, a referral alleged that Noe
was the victim of severe neglect based on an incident in which a rival gang
member (who lived near Father) came to maternal grandmother’s house and shot at
the back of Father’s car. The case was
closed as unfounded.
Further,
in February 2001, maternal grandmother’s nine-month-old child died as the
result of physical abuse at the hands of maternal grandmother’s boyfriend
Leandro G. DCFS concluded that maternal
grandmother was unaware of the abuse, and DCFS found that allegations of
maternal grandmother’s abuse of Mother and her sibling Manuel were unfounded. A June 2007 referral that maternal
grandmother had hit Mother with a belt was found to be unsupported, and DCFS
concluded there was no need for continued intervention as the children were not
at risk of harm. Maternal grandmother
had a 1993 conviction for petty theft for which she received one year of
probation and a fine.
In
October 2005, an unfounded referral was made regarding maternal grandmother’s
child Gabriel.
Father
had a criminal background dating back to 2006 that included petty theft,
possession of an unregistered firearm, possession of ammunition, and
vandalism. Father was either released to
his parents or received probation for these charges. Father’s most recent charge was the pending
charge for two counts of attempted murder.
Mother’s criminal history disclosed charges for robbery, theft, and
failure to appear. Father was currently
incarcerated at Men’s Central Jail.
The
petition filed October 4, 2011 against Mother and Father alleged failure to
protect and no provision for support (§ 300, subds. (b), (g)) based upon Mother
and Father’s failure to make provision for Noe’s care upon their incarceration.
At
the detention hearing held October 4, 2011, the court ordered a prerelease
investigation for maternal grandmother, and found a prima facie case for Noe’s
detention.
DCFS’s
October 12, 2011 prerelease investigation report stated that Noe was placed in
foster care. Mother told DCFS she wanted
Noe placed with maternal grandmother. If
Noe could not be placed with maternal grandmother, Mother wanted him placed
with her aunt Julia M. (maternal great-aunt) or a paternal aunt and uncle,
Irene and David L.
Maternal
grandmother informed DCFS she had been babysitting Noe since his birth. Maternal grandmother was a stay-at-home
mother who cared for her two special needs children (Omar, age seven and Samuel
age nine). Both children attended
school. Samuel had a speech delay, and
Omar was autistic. Maternal grandmother
was Catholic and attended church every two months, and was in the process of
moving to a new home in Moreno Valley.
Maternal grandmother was financially able to provide for the children,
and denied using corporal punishment.
She stated she would assist in Mother and Father’s reunification and
visitation. Maternal grandmother
currently resided in a two-bedroom, one-bath home. The home was clean and appropriately
furnished, with functioning smoke detectors.
The backyard was fenced and appropriate for children. DCFS could not recommend release to maternal
grandmother without a waiver of her criminal history.
At
the October 12, 2011 prerelease hearing, the court requested DCFS to assess
possible placement with Noe’s maternal great-aunt and to obtain waivers of
maternal grandmother’s criminal history, and continued the matter to October
26, 2011 for a pretrial resolution conference.
DCFS’s
last minute information stated that the social worker had completed the home
assessment of maternal great-aunt at her home in Buena Park. Maternal great-aunt worked full time at Amway
in shipping and receiving, and lived in a one-story house with her adult son
Carlos and her high-school aged daughter.
Maternal great-aunt arranged for a crib for Noe, and told the social
worker Noe would be placed in daycare while she was at work. Maternal great-aunt’s live scan was
clear. DCFS filed an additional last
minute information on October 28, 2011 which provided an update on Noe’s
proposed day care, establishing that it was licensed.
At
the October 28, 2011 hearing, the court ordered Noe placed with maternal
great-aunt. The matter was set for
adjudication November 29, 2011.
DCFS’s
report filed November 29, 2011 for the jurisdictional hearing stated that
maternal great-aunt had taken Noe to see his parents every other weekend. Mother and Father were happy to see Noe.
At
the hearing, dependency investigator Jamitka Williams testified that Noe was
currently placed with maternal great-aunt.
Williams had spoken to four or five relatives of Mother concerning
placement. Paternal grandmother had
stated she did not want to care for Noe because of her work and living
situation.
Mother
testified that at the time of her arrest, Noe was present. She asked DCFS to assess several of her aunts
and uncles for placement. She did not
have any concerns about Noe’s placement with maternal great-aunt, but did not
want him to remain there. She believed
he was better off with maternal grandmother, who was her first choice for his
placement. Mother requested the court to
dismiss the petition on the grounds that incarceration is not grounds for
jurisdiction unless the parents are unable to arrange for the care of the
child, and nothing required the parent to establish the suitability of the
proposed care plan. Here, Noe had not
been placed with maternal grandmother because of day care concerns; yet the
previous allegations against maternal grandmother were deemed unfounded. As a result, Mother believed maternal
grandmother was an appropriate placement for Noe. Father sought dismissal of the counts alleged
against him on the grounds he was incarcerated at the time. The parties stipulated that paternal
grandmother was willing to take Noe. The
court found that Mother had not made an appropriate plan, and sustained the
allegation under section 300, subdivision (b) as to Mother, and dismissed the
other allegations against her. The court
found Father was nonoffending, and dismissed the allegations against him.
DCFS’s
report for the dispositional hearing
of December 12, 2011 stated that Noe was bonded, attached and happy in the care
of maternal great-aunt. Noe attended
daycare from 9:00 a.m. to 4:00 p.m. Monday through Thursday and from
9:00 a.m. to 12:00 p.m. on Friday.
At
the contested disposition hearing, Noe’s counsel pointed out that at the
jurisdictional hearing, the court found Father to be nonoffending. Further, Father was able to make a plan to
leave Noe in paternal grandmother’s care, and paternal grandmother was willing
to care for Noe. Counsel stated that
currently, paternal grandmother’s home was not approved, but she would comply
with ASFA
title="">[2] standards and Noe would be able to be placed with her. Counsel requested that Father be allowed to
make this plan for Noe’s care. Mother’s
counsel joined, and asked the court to enter an order allowing both parents to
make a plan for Noe’s care, and asked the court to consider a home of parent
order for Father.
The
court granted Father custody of Noe, and ordered Father to cooperate with
family maintenance services, to enroll in a parenting program, and to go to a
gang diversion program. Father was given
unmonitored visitation. The court
ordered reunification services for Mother consisting of parenting classes,
individual counseling, and monitored visitation. The court did not terminate
jurisdiction. Mother objected to the
home of parent order for Father, and the court stated that Father was
nonoffending.
Mother
timely appealed. DCFS cross-appealed.
DISCUSSION
I. Jurisdiction
Mother
argues that the fact that she was incarcerated was not a basis for finding that
she would cause Noe serious physical harm or illness under section 300,
subdivision (b) simply because she was unable to make an appropriate plan for
his care based on the fact maternal grandmother previously had a child who died
while in her care and the paternal grandmother had indicated she was unable to
care for Noe. Mother points out that she
identified several relatives for Noe’s care, and Noe was eventually placed with
one of the relatives she suggested. We
agree.
At the
jurisdictional hearing, the dependency court’s finding that a child is a person
described in section 300 must be supported by a
187, 198.) On appeal, in reviewing a
challenge to the sufficiency of the dependency court’s jurisdictional findings,
our power begins and ends with a determination as to whether substantial evidence
exists, contradicted or uncontradicted, supporting the dependency court’s
determinations. We review the evidence
in the light most favorable to the dependency court’s findings and draw all
reasonable inferences in support of those findings. (Elijah
R. v. Superior Court (1998) 66 Cal.App.4th 965, 969; In re Basilio T. (1992) 4 Cal.App.4th 155, 168.) Thus, we do not consider whether there is
evidence from which the dependency court could have drawn a different
conclusion but whether there is substantial evidence to support the conclusion
that the court did draw. (
177, 194–195; In re Stephanie M.
(1994) 7 Cal.4th 295, 318–319.)
“Section
300, subdivision (b) provides a basis
for . . . jurisdiction if the child has suffered, or there
is a substantial risk the child will suffer, serious physical harm or illness
caused by the parent’s inability to provide regular care for the child because
of the parent’s mental illness, developmental disability or substance abuse.†(In re
James R. (2009) 176 Cal.App.4th 129, 135.)
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 minor, or
a ‘substantial risk’ of such harm or illness.â€
(In re Rocco M. (1991) 1
Cal.App.4th 814, 820.) “Subdivision (b)
means what is says. Before courts and
agencies can assert jurisdiction under section 300, subdivision (b), there must
be evidence indicating that the child is exposed to a substantial risk of serious
physical harm or illness.†(
393, 399.)
Here,
we find insufficient evidence supports the court’s finding of jurisdiction
based upon section 300, subdivision (b).
Mother is correct that her incarceration, without more, cannot provide a
basis for jurisdiction (In re S.D. (2002)
99 Cal.App.4th 1068, 1077). Further,
Mother had identified two suitable placements for Noe: Noe’s maternal grandmother and paternal
grandmother. The allegations against
maternal grandmother based upon the death of a child were deemed unfounded;
after initially expressing her inability to care for Noe, paternal grandmother
agreed that she could care for Noe. As a
result, there was no basis to assert jurisdiction over Noe based upon Mother’s
care choices.
II. Removal
Order from Mother and Placement with Father
Mother
contends the dependency court erred in removing Noe from her custody because it
failed to follow the dictates of section 361, and similarly erred in placing
Noe with Father because the court failed to make the statutorily required
findings under section 361.2 when it placed Noe with the non-offending parent.
361
Section
361, subdivision (c)(1), provides children “shall not be removed from the home
in which they are residing at the time of the petition unless there is clear
and convincing evidence of a substantial danger to the [children’]s physical
health, safety, protection, or physical or emotional well-being
which the [children] can be protected without removal.†(In re
Jasmine G. (2000) 82 Cal.App.4th 282, 288.)
“A removal order is proper if it is based on proof of parental inability
to provide proper care for the minor and proof of a potential detriment to the
minor if he or she remains with the parent.
[Citation.] The parent need not
be dangerous and the minor need not have been actually harmed before removal is
appropriate. The focus of the statute is
on averting harm to the child.
[Citations.]†(
1127, 1136.) Additionally, section 361,
subdivision (c)(5) provides for removal of a child from the parent’s custody if
the parent is incarcerated and unable to arrange for the child’s care.
On
appeal from a dispositional order removing a child from her parent, we apply
the substantial evidence standard of review, keeping in mind that the trial
court was required to make its order based on the higher standard of clear and
convincing evidence. (
1635, 1654.)
Here,
for the same reason we find the court did not err in sustaining the petition as
to Mother, insufficient evidence supports removal of Noe from Mother’s
custody. Mother identified two suitable
caregivers, Noe’s grandmothers, both of whom were willing to take the child.
B. Section
361.2
Section
361.2, subdivision (a), provides in part that “[w]hen a court orders removal of
a child pursuant to Section 361, the court shall first determine whether there
is a parent of the child, with whom the child was not residing at the time that
the events or conditions arose that brought the child within the provisions of
Section 300, who desires to assume custody of the child.†The section provides that “[i]f that parent
requests custody, the court shall place the child with the parent unless it
finds that placement with that parent would be detrimental to the
or emotional well-being of the child.â€
(§ 361.2, subd. (a).)
The
term “‘custody’†as used in section 361.2, refers to the parent’s “right to
make decisions pertaining to the child†and to have “legal possession of the
child.†(In re Austin P. (2004) 118 Cal.App.4th 1124, 1130–1131.) “‘Placement’†refers to the “address where
the child shall live during the dependency proceeding.†(Id.
at p. 1131.) Thus, under section 361.2,
subdivision (a), the court examines whether it would be detrimental to
temporarily place a child with the nonoffending noncustodial parent; under
subdivision (b), the court decides whether that placement should be permanent
and whether the court’s jurisdiction should be terminated. (In re
Austin P., at p. 1131.)
In
enacting subdivisions (a) and (b) of section 361.2, “the Legislature envisioned
a two-step process: [First,] under
subdivision (a), the court examines whether it would be detrimental to
temporarily place a child with the nonoffending noncustodial parent; [second,]
under subdivision (b), the court decides whether that placement should
permanent and whether the court’s jurisdiction should be terminated.†(In re
Austin P., supra, 118 Cal.App.4th
at p. 1131.) In assigning custody of the
child to either parent, “the court’s focus and primary consideration must
always be the best interests of the child.â€
(In re Nicholas H. (2003) 112
Cal.App.4th 251, 268.)
“[W]hen
a noncustodial parent is incarcerated, the [dependency] court must proceed
under section 361.2 to determine whether the incarcerated parent desires to
assume custody of the child. Unlike
section 361.5, section 361.2 does not distinguish between an offending and
nonoffending parent, and the court applies section 361.2 without regard to the
characterization of the parent as offending or nonoffending.†(In re
V.F. (2007) 157 Cal.App.4th 962, 965–966.)
If a noncustodial, incarcerated parent seeks custody of the child, the
court must determine whether placement with that parent would be detrimental to
the child’s safety, protection, or physical or emotional well-being. (§ 361.2, subd. (a).) Among the factors
in determining detriment are the noncustodial, incarcerated parent’s ability to
make appropriate arrangements for the care of the child and the length of that
parent’s incarceration. (
In
Isayah C., supra, 118 Cal.App.4th at p. 700, the court held that the
dependency court may consider placing a child with a noncustodial, incarcerated
parent under section 361.2 if that parent seeks custody of the child, the
parent is able to make appropriate arrangements for the child’s care during the
parent’s incarceration and placement with the parent is not otherwise detrimental
to the child. The Isayah C. court based its decision on the case law that held the
juvenile dependency system has no jurisdiction to intervene “when an
incarcerated parent delegates the care of his or her child to a suitable
caretaker†and there is no other basis for jurisdiction under section 300. (Ibid.) At disposition, the length of a parent’s
incarceration may be a factor in determining detriment under sections 361,
subdivision (c) and 361.2, subdivision (a), but a finding of detriment cannot
be based solely on the fact a parent is incarcerated. (In re
S.D., supra, 99 Cal.App.4th at p.
1077.)
Here,
after it dismissed the allegations against Father, the court found him to be
nonoffending and granted him custody of Noe, but did not make any statutorily
required findings. As we have reversed
the court’s jurisdictional and dispositional order as to Mother, we must
reverse the court’s order granting custody to Father.
The
jurisdictional and dispositional order finding jurisdiction based upon
Emma M.’s care choices, removing Noe F. from Emma M.’s custody, and
granting custody to Noe S. is reversed.
NOT
TO BE PUBLISHED.
JOHNSON,
J.
We concur:
MALLANO,
P. J.
CHANEY,
J.
name="_ftn1" title="">[1] All statutory references herein are to the Welfare & Institutions
Code unless otherwise noted.
name="_ftn2" title="">[2] ASFA refers to the Adoption and Safe Families Act of 1997 (42
U.S.C. § 670 et seq.), which establishes federal guidelines for foster care and
relative care placements. (
929, 932, fn. 1.)
