In re Raul B.

 

 

 

 

 

 

 

 

 

Filed 7/25/13  In re Raul B. CA4/1

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 
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In re RAUL B., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,               Plaintiff and Respondent,               v.   JOSE R.,               Defendant and Appellant.	D063535       (Super. Ct. No. NJ12460B)

 

            APPEAL from
orders of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Diego
County, Michael J. Imhoff, Commissioner.  Affirmed.

 

            Toni Taylor
Buck, under appointment by the Court of Appeal, for Defendant and Appellant.

            Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and
Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.

            Joanne
Willis Newton, under appointment by the Court of Appeal, for Minor.

            Jose R.
appeals juvenile court jurisdictional and dispositional orders concerning his
son, Raul B.  He contends there was no
need for the court to retain jurisdiction at the dispositional hearing; the
decision was impermissibly based on his immigration status; and the services
the court ordered have no relation to the reasons it articulated for retaining
jurisdiction.  We affirm the orders.

FACTUAL AND
PROCEDURAL BACKGROUND

            In December
2012, the San Diego County Health and
Human Services Agency (the Agency) petitioned on behalf of two-year-old
Raul under Welfare and Institutions Code section 300, subdivision (b),href="#_ftn1" name="_ftnref1" title="">[1]
alleging his mother, Martha B., used methamphetamine, and she obtained the drug
for others and acknowledged Raul was with her when she purchased the drug.  The petition also alleged methamphetamine was
found in the truck in which Martha and Raul were residing, and Raul was dirty
and did not have proper shoes and clothing for the weather.  The court ordered Raul detained with Jose and
ordered supervised visitation for Martha.

            Jose said
he visited Raul several times each week and often cared for him on
weekends.  He said he did not know about
Raul's living conditions, but he had been worried about the people with whom
Martha associated and had noticed Raul was often dirty when Martha brought Raul
to visit.  He said he had asked Martha to
leave Raul with him because he knew she was unemployed, and he had obtained
paperwork to pursue custody orders, but had not followed through to seek
custody because he was afraid Martha would make good on her threats to have him
deported.  He said he had not suspected
Martha was using drugs in the past when they lived together.  Jose's sister (the aunt) lived with Jose and
cared for Raul while Jose was at work. 
The aunt said Jose often purchased new clothes for Raul because Martha
did not provide appropriate clothing.

            The social
worker reported Jose had been deported in the past because of his immigration
status.  He has had three prior arrests
and one criminal conviction for being under the influence of alcohol.  The social worker noted that when she saw
Raul at Jose's home, he appeared happy and content, but was thin and had dark
circles under his eyes.  The social
worker advised Jose to be proactive about maintaining Raul's health and
recommended Jose participate in parenting education.

            At the
jurisdictional and dispositional hearing, the court found the allegations of
the petition to be true.  It declared
Raul a dependent child of the court, ordered him placed with Jose under section
361.2, subdivision (b)(3), ordered Jose be provided with services and approved
his case plan, which included parenting education and training and random drug
testing.  It denied services for Martha
and continued jurisdiction.

DISCUSSION

            Jose
contends substantial evidence was not presented to show continued court
jurisdiction was necessary.  He argues
the court impermissibly considered his immigration status in retaining
jurisdiction, and the services the court ordered have no relation to the
reasons it articulated for continued jurisdiction.

            Section
361.2, subdivision (a) provides that when a court orders removal of a child
from a custodial parent under section 361, if the noncustodial parent requests
custody, the court must place the child with the noncustodial parent unless it
finds such placement would be detrimental to the child.

            Under
section 361.2, subdivision (b), the court then decides whether there is a need
for ongoing supervision.  If there is no
need for ongoing supervision, the court terminates jurisdiction and grants the
parent sole legal and physical custody. 
If there is a need for ongoing supervision, the court continues
jurisdiction.href="#_ftn2" name="_ftnref2"
title="">[2]  (In re
Austin P. (2004) 118 Cal.App.4th 1124, 1131.)  Under section 361.2, subdivision (b)(3),
"the court may order that services be provided solely to the parent who is
assuming physical custody in order to allow that parent to retain later custody
without court supervision . . . ."  "When deciding whether to terminate
dependency jurisdiction under section 361.2 following placement of a child with
a previously noncustodial parent, the court determines only whether there is a
need for continued supervision, not whether the conditions that justified
taking jurisdiction in the first place still exist . . . ."  (Bridget
A. v. Superior Court (2007) 148 Cal.App.4th 285, 315, fn. 19.)

            When the
need for continuing supervision is challenged on appeal, we consider the record
favorably to the order and determine whether substantial evidence supports the court's
order.  (In re Austin P., supra, 118 Cal.App.4th at p. 1134.)

            Substantial
evidence supports the court's decision to continue jurisdiction.  The court reasoned with continued court
jurisdiction Jose would be better equipped to deal with coercive tactics like
those Martha had used in the past when she threatened to report him to
authorities so that he would be deported. 
The court stated,

"I think with court supervision there is more
support that can be given to [Jose] that, should he be confronted with those
coercive tactics on the part of [Martha], he would feel that he has a support
system that he can turn to that he can trust in order to maintain custody of
his son.  And one of the elements under
[section 361.2] subdivision [(b)(3)] is for the court to order services to a
parent in order to support continued custody of the child with the parent into
the future."

 

            The record
shows continued supervision would support Jose's ability to maintain
custody.  It also shows parenting
education would be beneficial to Jose because Raul had shown some concerning
behaviors, including displaying aggression, throwing tantrums and having
delayed speech.  The aunt noted the
family was concerned that Raul was not speaking, but attempting to communicate
by grunting and pointing.  The order for
parenting education was appropriate to aid Jose to be successful in providing
care and maintaining custody in the future. 
It was also reasonable for the court to order substance abuse testing
because Jose had been arrested for abusing alcohol in the past, and he had
denied he had been aware of Martha's substance abuse when she was caring for
Raul.

            We reject
Jose's argument that the court erred by considering his immigration status in
deciding to continue jurisdiction. 
Section 361.2, subdivision (e) states that when the court orders removal
of a child from the custodial parent it shall order the care, custody, control
and conduct of the child to be under the supervision of the social worker who
may place the child "in the home of the noncustodial parent regardless of
the parent's immigration status." 
Raul was placed with Jose without regard to Jose's immigration status in
accordance with the statute.  The court
stated there was no dispute in the record that Raul should be placed with
Jose.  It considered his immigration
status only in the context of deciding that continued jurisdiction was
necessary based on the fact that Jose said he had been afraid to seek custody
of Raul in the past because Martha "often threatened to call the police or
immigration to have him deported . . . ."

            Substantial
evidence supports the court's order continuing jurisdiction and ordering
services as necessary to aid Jose in maintaining successful long-term custody
of Raul in the future.  Jose has not shown
error.



 

DISPOSITION

            The orders
are affirmed.

 

                                                           

HUFFMAN, J.

 

WE CONCUR:

 

 

                                                           

BENKE, Acting P. J.

 

 

                                                           

IRION, J.