In re J.A.

Filed 1/19/10 In re J.A. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christopher J. Sheldon, Judge. Reversed with directions.

Pamela J. Walls, County Counsel, and Prabhath D. Shettigard, Deputy County Counsel, for Plaintiff and Appellant.

Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Respondent T.A.

Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Respondent D.L.

Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Respondent M.S.

Konrad S. Lee, under appointment by the Court of Appeal, for Minors.

Plaintiff and appellant, the Riverside County Department of Public Social Services (the Department), appeals after the juvenile court dismissed a dependency petition that the Department had filed on behalf of J.A., D.A. and A.S., the three minor children of defendant and respondent T.A. (mother). In October 2008, mother and her boyfriend were arrested on drug charges. Mother requested that the children be placed with her sister. The children were almost immediately placed with the maternal aunt as requested, and the court later dismissed the petition without assuming jurisdiction over them. The Department appeals, arguing that the court erred in dismissing the petition. We reverse and remand with directions to reinstate the petition, and to make findings that the children are persons described by Welfare and Institutions Code section 300.^[1]

FACTS AND PROCEDURAL HISTORY

On or about October 21, 2008, mother and her current boyfriend were arrested by federal agents for drug-related charges, including sales and conspiracy to distribute illegal substances. Mother and the boyfriend were incarcerated as a result of the arrests. Law enforcement officers had alerted the Department of the imminent arrests, and a social worker went to the residence to take the children into protective custody.

Two days after the arrests, the Department filed a petition to declare the children dependents of the juvenile court, pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support).

In a detention hearing report dated October 23, 2008, the Department recommended removing the children from mothers custody. Under section 300, subdivision (b), the Department pointed out that mother had used methamphetamine daily for some time, including as recently as the day of her arrest. She and her boyfriend used the drugs in the home where the children also resided. The oldest child was aware of mothers drug usage. Mother had no means of support, but depended on her boyfriend to pay the rent; she also disclaimed any knowledge that drugs were being sold in the home, although both the boyfriend and mother were presently unemployed, and the boyfriend paid for all the expenses, including supplying mother and himself with drugs for daily use. Among other things, a large panel television in the home had been converted to a surveillance monitor of the approaches to the house. The oldest child had heard that the boyfriend was selling drugs over the internet; both the oldest child and the middle child reported that the boyfriend was using the computer on the day of the arrests. Law enforcement officers had apparently retrieved two laptop computers from the bathtub, where they had been thrown during the raid.

On the day of her arrest, mother informed the social worker that she wanted the children placed with her sister, the childrens maternal aunt. The oldest child also expressed his preference to live with his aunt.

The children were initially placed in a confidential foster home. The social worker interviewed the maternal aunt. The aunts adult daughter also lived in the home and cared for the younger children. The adult daughter would be the primary daytime caregiver for mothers children. The social worker initiated a referral for a relative placement assessment.

The juvenile court held a detention hearing on October 24, 2008. The court appointed attorneys for mother and the children, as well as the childrens fathers. Neither mother nor any of the three fathers were present in court, however, and counsel had not yet had an opportunity to meet with any of the parents, some of whose whereabouts were unknown. The court entered denials on the original petition on behalf of mother and the three fathers, and set a jurisdictional hearing. In the meantime, the aunt stood ready to take the children, as mother had requested at the time of her arrest, and the adult daughter was present in court. The court immediately ordered the children delivered to the aunts home. At this hearing, the court made no findings under section 319, subdivision (b)(1), of a prima facie case of substantial danger to the children to order them detained from parental custody.

In November 2008, the Department filed a report for the jurisdictional and dispositional hearing. The social worker indicated that the children were currently placed with the maternal aunt. As to section 300, subdivision (b) (failure to protect), the social workers report pointed to the arrests of mother and her boyfriend for drug use and sales, and noted that drugs, drug paraphernalia, and other items related to the drug charges were found on the premises, accessible to the children. Mother had no means of support, and her abuse of illegal drugs limit[ed her] ability to provide the children with adequate care, endanger[ed] the childrens safety and well being, and create[d] a detrimental home environment. The Department alleged that mother had neglected the children by exposing them to her boyfriend, who used and sold illegal drugs in the home.

As to the allegations of section 300, subdivision (g) (no provision for support), the Department alleged that all four parents (mother and each of the three fathers) were incarcerated or their whereabouts were unknown, thus failing to provide for the children.

The Department had submitted a referral to evaluate the maternal aunts home for the childrens placement with her. The children were stable and doing well in the aunts home. The aunt had reported to the social worker that the children d[id] not qualify for foster care income, as there were no [section] 319[, subdivision] (b)(1) findings made at the detention hearing. [The aunt] reported she loves the children dearly but feels it will be difficult to financially provide for the children if the children do not qualify for assistance. She also reported she does not want to disrupt the childrens lives again, as they have been through enough disruption in their lives.

The jurisdictional and dispositional report included the results of the initial relative assessment, which indicated that the maternal aunts home was clean and safe. Although some of the children, both mothers and the maternal aunts, were sharing rooms in the four-bedroom home, each child had his or her own bed. There was no significant criminal history of the aunt or her adult daughter. The children were well bonded in the home. The social worker also provided forms and advice to the caretakers to apply for Cal-Works financial assistance. The children had been placed in the aunts home as FM status, presumably referring to family maintenance services.

At the time of the initially scheduled jurisdictional and dispositional hearing, in November 2008, counsel for the fathers indicated that some of them had been unable to contact or meet with their clients. In one instance, the parole agency was not cooperating with counsel to verify the address of one of the fathers. In addition, mothers counsel requested a continuance to determine whether the maternal aunts financial assistance application had been approved. County counsel argued for the Department that, [i]f this is a designated placement by mother, thats an arrangement for care, the caretaker would not receive any funding by [the Department]. Its a voluntary placement by the mother. [] If they are not able to care for them financially, then its not an appropriate placement, would have to have removal findings in order to receive funding. Mothers counsel responded that the aunt had reported she would be stressed financially, but that she was looking into assistance from a non-Department source, i.e., Cal-Works. If the assistance were granted, then she would be able to take on the responsibility, and the placement would be appropriate. The court granted a continuance to verify the issues that were still unknown, and noted that it had not detained the children from mothers custody at the previous hearing.

The jurisdictional and dispositional hearing was eventually held in January 2009. At that time, mothers counsel indicated that the caretakers felt they had everything needed to care for the children, and asked that the petition be dismissed. The trial court found that the placement with the aunt was designated by mother and was appropriate, and therefore dismissed the petition.

County counsel protested that the Department took the position that mother was an offending parent, and that the right to designate placement did not apply to an incarcerated parent. The Departments position is she should not be entitled to make arrangements for care as there still would be detriment to the children because of her actions which resulted in the children being detained. The childrens attorney asked the court to terminate the petition. The caretakers apparently . . . are not eligible for foster care money anyway, they are on Cal-Works. So in terms of the money for the taking care of the kids, they are not relying on the Department for money or anything at this time. The court indicated that, its clear to me that under the designation statutes that there is nothere is no requirement that a person be offending or non-offending. In fact, the cases dont even discuss that. [] But if the parents incarcerated, has the ability to make arrangements for the care of their children, then that basically takes care of the Departments concerns, and in this matter I will honor that designation. The court declined to take jurisdiction over the children and dismissed the petition.

The Department filed a notice of appeal from the courts ruling.

ANALYSIS

I. The Trial Court Erred in Dismissing the Petition

The Department raises a several-fold attack on the trial courts order dismissing the dependency petition. First, the Department contends that the court violated its due process rights by making its ruling without receiving any evidence. Second, assuming that the court did receive the Departments proffered evidence, the courts refusal to accept jurisdiction was based upon a mistake of law, which should be reviewed de novo. Third, even if the court did not misinterpret the law (de novo review), it erred in dismissing the allegations under section 300, subdivision (g). Although the court treated the matter as if mother had essentially made provisions for the childrens care by designating a relative placement with her sister, the evidence did not support the conclusion that a proper relative designation had been made. Fourth, there was no basis upon which to dismiss the allegations under section 300, subdivision (b). Mothers conduct had endangered the children and, even if she had no further contact with the children for an extended period during her incarceration, the reasons that led to her incarceration remained unaddressed and, in the absence of an assertion of jurisdiction, would remain a continuing danger to the childrens safety.

The first point is unmeritorious. The Department did present evidence via its reports at the detention and jurisdictional and dispositional hearings. The court may not have expressly received the reports into evidence, but it did so implicitly. The reports were presented in due course, and were the source of virtually the only facts known in the case. Social study reports are admissible evidence on the issues presented at a jurisdictional hearing. (See  355.) The court did receive evidence, so there was no failure of due process.^[2]

The second claim, regarding the standard of review, is also incorrect. The sole question before the juvenile court was whether the minor children were persons described by section 300. ( 355, subd. (a) [At the jurisdictional hearing, the court shall first consider only the question whether the minor is a person described by Section 300].) The findings of the trial court are reviewed under the substantial evidence standard. (In re David M. (2005) 134 Cal.App.4th 822, 828.)

As to the third contention, it is arguable either way whether mothers stated wish that the children be placed with her sister, the childrens maternal aunt, was a proper designation to qualify as an arrange[ment] for the care of the children pursuant to section 300, subdivision (g). As has been noted in a number of cases, [t]here is no Go to jail, lose your child rule in California. (In re S.D. (2002) 99 Cal.App.4th 1068, 1077, citing In re Brittany S. (1993) 17 Cal.App.4th 1399, 1407; see also In re Isayah C. (2004) 118 Cal.App.4th 684, 696.) If the sole reason for a dependency petition is the incarceration of a parent, the agency must show that the parent is unable to arrange for the care of a minor child for the period of incarceration. If [the parent] could arrange for care of [the child] during the period of her incarceration, the juvenile court had no basis to take jurisdiction in this case, and [the agency] simply had no say in the matter. [Citation.] Additionally, it is irrelevant that [the parent] had not already arranged for [the childs] care at the time of her incarceration. Instead, the issue is whether, as of the time of the jurisdictional hearing, she could arrange for the care. [Citation.] (In re S.D., supra, 99 Cal.App.4th at pp. 1077-1078.)

Here, although the Department disputes whether mother made a proper arrangement for the childrens care, because the Department was still in the process of a full evaluation of the propriety of the placement with the maternal aunt, the arrangement mother had made was consistent with other cases finding such an arrangement for the childrens care satisfied section 300, subdivision (g). We do note that the evidence indicated the children were stable in the home, were well bonded to the relatives family, and were safe and adequately cared for.

The crux of the appeal rests, rather, on the fourth point, that even if the juvenile court could properly find no jurisdiction under section 300, subdivision (g), its refusal to take jurisdiction under section 300, subdivision (b), was not supported by the evidence. We agree.

When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency courts jurisdiction, a reviewing court can affirm the juvenile courts finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence. [Citations.] (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Here, of course, the trial court made findings dismissing jurisdiction, rather than asserting jurisdiction. Nevertheless, if the court erred as to one of the asserted grounds, such that no substantial evidence could support a finding that section 300, subdivision (b), did not apply, then a ground to assert jurisdiction remains, regardless of the correctness of dismissing other grounds stated in the petition.

Substantial evidence means evidence that is reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.) As previously noted, at the jurisdictional hearing, the sole question before the court was whether the children were person[s] described by Section 300. Section 300, subdivision (b), in pertinent part, requires the court to consider whether a child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . or by the inability of the parent or guardian to provide regular care for the child due to the parents or guardians mental illness, developmental disability, or substance abuse. . . .

Here, the evidence of mothers inability to care adequately for the children because of her substance abuse was substantial. Mother used illegal substances on a daily basis. Mother knew that both she and the boyfriend had no means of support, as both were unemployed, yet the boyfriend was able somehow to pay the rent and to supply her with methamphetamine. The couple had converted a large screen television into a surveillance monitoring system, and spent a significant amount of time on computer networking sites. The oldest child was aware of people he did not know coming into the home. Drugs and paraphernalia were found in the home. Mother knowingly and willingly exposed her children to both use and commercial sales of illegal drugs, both of which were ongoing in the home. The oldest child was aware of the drug usage in the home. The courts refusal to accept jurisdiction meant that mothers drug abuse issues were, and would remain, unaddressed and untreated. It is difficult to fathom why the court did not assert jurisdiction under section 300, subdivision (b), on these facts, which are identical to cases in which jurisdiction is routinely asserted. Mothers mere nomination of a caretaker might have addressed her ability to arrange for the childrens care under section 300, subdivision (g), but it did nothing to address the danger to the children from mothers active drug use and her exposure of the children to ongoing illegal drug-sale operations in their residence.

The finding that the allegations under section 300, subdivision (b), were unfounded by the mere expedient of nominating a caretaker for the duration of mothers incarceration was not supported by substantial evidence. To the contrary, the evidence before the court on the section 300, subdivision (b), allegations could only support a finding that the children were, indeed, persons coming within that provision. The court erred in dismissing the petition as to the grounds asserted under section 300, subdivision (b). Accordingly, the order of dismissal must be reversed.

Although we have found that substantial evidence supported the allegation under section 300, subdivision (b), the proceedings below were confusing and the bases of the trial courts ruling were rather unclear. Because the trial court decided the matter, in essence without considering anything beyond the social workers reports, there was or may have been additional evidence on the issues that the parties may have desired to present, had the court held a more extensive hearing. As mother points out, the evidence on section 300, subdivision (b), was uncontradicted only because of the abbreviated jurisdictional hearing, and the courts determination not to assert jurisdiction over the children. Therefore, on remand, we will direct the trial court to hold a new jurisdictional and dispositional hearing.

DISPOSITION

The order of the juvenile court, dismissing the dependency petition below, is reversed. The matter is remanded with directions to reinstate the petition and to hold a new jurisdictional and dispositional hearing, to determine whether the children were persons described by section 300, subdivision (b).

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKINSTER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ HOLLENHORST

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The Departments reliance on Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067 (Kimberly R.) is misplaced. Kimberly R. is distinguishable in several salient respects. There, the mother of the minor child had abused drugs and alcohol in the past and suffered from mental disorders; the agency filed a dependency petition and the child was declared a dependent, though maintained in the mothers custody. (Id. at p. 1071.) The mother hospitalized herself in an effort to gain stability. The juvenile court sustained a first supplemental petition at the time of the mothers hospitalization, to the effect that she was presently unable to care for the minor child. (Ibid.) Over the next period of months, the mother benefitted from treatment and was eventually able to regain custody, although the child was continued as a dependent. (Ibid.)

Then, the agency filed a second supplemental petition when the mother was delayed in picking up the child from school one day. The mothers therapist reported, however, that the mother was stable in her treatment and presented as a caring mother. The medical examination did not indicate the mother was abusing drugs. The agency requested dismissal of the second supplemental petition, over the objection of the minors counsel. (Kimberly R., supra, 96 Cal.App.4th at pp. 1071-1072.)

At a contested hearing, the agency stated that it could not prove the facts alleged in the second supplemental petition and requested dismissal. The trial court put the burden on the minors counsel to show why the petition should not be dismissed. (Kimberly R., supra, 96 Cal.App.4th at p. 1072.) The court heard witnesses and decided that something fishy had gone on, found the second supplemental petition true, removed the minor child from the mothers custody, and terminated her services. (Id. at p. 1075.) The mother appealed, arguing that the agency should have a right to dismiss its petition if it determined that the evidence which led it to file the petition was unreliable or insufficient. (Id. at p. 1076.) The trial court had put the burden on the wrong party; it was the agencys petition to support or not, and it bore the burden. Its admission that it could not sustain its burden, the mother argued, should have put an end to the matter. (Ibid.)

The appellate court noted that, although an agency has discretion whether to initiate a dependency proceeding by filing a petition, it did not have the absolute right to dismiss an original petition. (Kimberly R., supra, 96 Cal.App.4th at p. 1076, citing Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069, 1073.) Unlike an original petition, however, a supplemental petition does not affect the jurisdiction of the court. The court has already taken jurisdiction of a dependent child before the supplemental petition is filed. If [an] agency asks the court to remove a dependent child from a parent by supplemental petition and then changes its position, upon objection by minors counsel the agency should be required to show what evidence its investigation revealed before dismissal. Section 350 provides that at any hearing at which the agency bears the burden of proof, the agency and minors counsel will present evidence before it determines if the burden of proof has been met. As in Allen M., the court should decide if dismissing a supplemental petition is in the interest of justice and welfare of the child. (Allen M., supra, 6 Cal.App.4th at p. 1074.) We conclude the court . . . should have required the Agency to show cause why the supplemental petition should be dismissed. (Id. at pp. 1077-1078.) The appellate court found any error harmless, however, because all the evidence had been presented and there was no due process violation of the mothers or the agencys rights. (Id. at p. 1078.)

Kimberly R. does not support the Departments argument here. The instant case involves an original petition, i.e., pre-assertion of jurisdiction, not a supplemental petition, which arises after dependency jurisdiction has already been established. The Department was afforded a full opportunity to present any evidence it desired in its reports, and it in fact had done so. Kimberly R. does not support the assertion that the Department was denied due process.