In re S.C.
Filed 8/1/12 In re S.C. CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
In re S. C., a Person Coming
Under the Juvenile Court Law.
B237954
(Los Angeles
County
Super. Ct.
No. CK88342)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
HOLLIE H.,
Defendant and Appellant.
APPEAL from
a judgment of the Superior Court
of
County. Margaret Henry,
Judge. Affirmed.
______
Jamie A.
Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel, and
Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
______
Hollie H.,
mother of S. C., appeals from the judgment entered after the juvenile court
declared her daughter a dependent child and removed her from her parents’
custody. Although mother does not
contest the jurisdictional finding against father under Welfare and
Institutions Code section 300, subdivision (g),
and father does not appeal, she contends that the evidence is insufficient to
support the jurisdictional finding against her under section 300, subdivision
(b), and that, in any case, the court should not have removed the child from
her custody. We disagree and thus affirm
the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1.
Section 300 Petition and Detention
According
to the Department of Children and Family
Services (DCFS), the family came to its attention on November 9, 2010, based on a report alleging that
the child, then 14 years old, “was an alleged victim of Physical Abuse,
Emotional Abuse and General Neglect by her mother. Reporter stated that the child . . . has been
homeless, sleeping on buses and trains for the past ten days, this after an
altercation with her mother on 10/30/10. Child was disciplined for being
disrespectful. Child reported a history
of being hit on arms, face and being ‘beaten’ by her mother. . . . [¶] Reporter
also stated that child . . . ‘has issues with her mother’ but exaggerates the
abuse. . . . Reporter stated S. is associated with the ‘Roll’n 60’s Crip
Gang.’ Reporter stated S. had no visible
bruises or marks. Reporter was concerned
about mother, who had not reported her child . . . to be missing. The allegations of physical abuse, emotional
abuse and general neglect were deemed unfounded. The allegations of caretaker
absence/incapacity were deemed substantiated.”
Mother indicated that she had been released from prison several months
prior, she “does not have a good relationship with her daughter and daughter
wants to ‘run her own program.’ The
daughter ran away from home and mother did not file a police report. Mother is currently unemployed, but open to
services with the department and is very cooperative.”
After a
meeting on December 23, mother voluntarily signed a case plan, including
placement of her daughter with a foster family, family reunification between
mother and daughter, counseling for mother and daughter and monitored visits
between mother and daughter with daughter’s consent. During the supervision period, the child “has
been A WOLING, Probation pick-up, child has been reported to be stealing
and staying out past her curfew numerous times.”
On May 16, 2011, a school counselor
called the social worker, reporting that, although S. had been dropped from the
school roster on May 10, she nevertheless came to school that day. The social worker picked S. up from the
school and placed her in a group home.
On May 21, S. was arrested on a probation warrant and sent to juvenile
hall. She left juvenile hall on May 27
and then was placed in a foster home.
On June 1, the foster mother brought S. to the DCFS office, stating
that the child “had problems getting back to her residence at a reasonable
hour,” coming home at 1:00 a.m.
and 3:00 a.m. on separate nights. The social worker “contacted mother to see if
she wanted her daughter to return home.
Mother stated that she does want her daughter to return home, if he[r]
daughter would follow her house rules.
The child . . . was asked if she wanted to return to the home of her
mother with DCFS services in place. S.
refused to return home to her mother.”
The child then was placed in a new foster home and “agreed to abide
by the house rules and regulations.”
On June 6, the foster mother reported that the child had left
the residence that day and failed to return.
Neither mother nor father knew the child’s whereabouts.
On June 17,
while the child’s whereabouts still were unknown, DCFS filed a section 300
petition, under subdivisions (b) and (g), seeking juvenile court jurisdiction
over the child, who then was 15 years old.
As relevant, the petition alleged against mother under section 300,
subdivision (b), that she is “unable to provide ongoing care and supervision of
the child. The child refuses to reside
in the mother’s home and care. The
mother’s unwillingness and inability to provide ongoing care and supervision of
the child[] endangers the child’s physical health and safety, and places
the child at risk of physical harm, damage and danger.” Under section 300, subdivisions (b)
and (g), the petition alleged that father “has failed to provide the child
with the necessities of life, including food, clothing, shelter and medical
care. The father’s failure to provide
for the child[] endangers the child’s physical health and safety, and places
the child at risk of physical harm, damage and danger.”
At the
detention hearing, also on June 17, the juvenile court issued a protective
custody warrant for the child, found a prima
facie case for detaining her and ordered DCFS to provide family
reunification services. If the child
were located, the court ordered monitored visits for mother and unmonitored
visits for father and gave DCFS discretion to release the child to father or an
appropriate relative or extended family member.
2.
Disposition
In the
jurisdiction and disposition report, dated July 8, DCFS indicated that the
child’s whereabouts remained unknown.
According to father, “he has not heard from S. since she ran away from
placement on 6/6/11. He indicated in the
past the minor has contacted him and met with him to obtain money and
food. He stated, ‘She’s smart and knows
how to hide very well. When she calls me
she does so from a restricted number. In
the past I’ve met with her at a certain location and given her some cash to buy
food. She never tells me where she is or
who she’s staying with.’ The father
indicated he has not had any contact with his child since the above
mentioned date.” “The mother
reported she has posted flyers and spoken to some of S.’s friends in hopes of
finding her. She stated, ‘I know [the
child’s] claiming to be affiliated with the 60’s gang so I’ve gone to their
territory asking for my daughter. No one
is able to give me any information. I have
no idea where she could be.’ The mother
reported S. has not contacted her since she left placement.”
Regarding
the allegation against her, mother stated, “‘S. was distant and shy. She didn’t have a lot to say. I wasn’t really around for her when she was
growing up. I just got released
from jail last year and came home to a grown teenager. The first time I was incarcerated for
second degree robbery and got locked up for 5 years. S. was only a few months old. When I was released she was approximately 5
or 6 years old. Sixteen months later I
got incarcerated again for forgery and this time I was locked up for 9
years. When I returned home last year I
tried to work things out with her but it was difficult. The first day I was back she didn’t spend the
night at the house because she didn’t want to see me. She said she heard so many bad things about
me[.] I guess she was embarrassed of me.
“‘You have to understand my position. S. is 15 years old[.] I left her when she was a baby and I’ve been
out of her life for 14 years. When I
left her I knew she was going to be okay.
She was with her father and her auntie.
They took care of her until her auntie died when she was 7 years
old. After that my family picked up and
tried to raise her. I don’t know what
went wrong. When we were together her
father wasn’t into drugs or none of that.
So many things happened and went wrong while I was gone. I hate myself for not knowing any of this was
happening to my child and for not being there with her when she was growing up
and needed me the most. I knew coming
back home wasn’t going to be easy but it was almost like she challenged me
every step of the way.
“‘I think
it was my fault too because I couldn’t tell her what I meant. I couldn’t communicate with her. She asked me once if I regretted leaving her
and my honest answer was no. She didn’t
let me explain, she took it the wrong way and said I didn’t love her and
left. That’s when all the problems
became worse. I meant to tell her I
didn’t regret it because I didn’t want her to have the same lifestyle as
me. I wanted her to grow up with good
people and have a different life. She
took it as though I didn’t have any regrets for my actions or leaving her. I spoke to my pastor and other church members
about my situation. I know I shouldn’t
have said what I did the way I did.
A fifteen year old mind wouldn’t understand the complexity of my
answer. In her head she thought I didn’t
have any regrets for leaving her at all and that I never cared about her. That’s not at all what I meant.
“‘It’s not
that I don’t want my daughter because I do but I understand we need a lot of
help to work on our relationship. I want
her back and I’m willing to take her.
It’s just that I know she will leave my home if you guys place her
back without any counseling services. I
want to start on my counseling and have conjoint counseling with her. I want to work on our relationship. If she is found and if counseling services
are not yet available I will still take her in.
I would rather have counseling in place first but she’s my
daughter[.] I’ll still do anything for
her. I’m just scared she will leave
again.’
“The mother
further stated, ‘I know because of our history and the way she feels about me
not being in her life that she will run away.
The risks of her fleeing again without any services for us to work on
our relationship and our communication are very high. I’m scared of what can happen to her out
there. I don’t want her to go down the
same path as me.’ . . . ‘I want her to come back, I want her with me but she
doesn’t want the same. I cannot force
her to stay and I cannot control her behavior.
I would rather have her come back to the house once we have therapy in
place so we can work on our problems but if that’s not the case I’ll still take
her back. She’s my daughter and I will
never turn my back on her. . . . I do want her[.] I just want us to start our counseling. We both need that.’
“The mother
further reported she has tried to provide her daughter with the basic
necessities of life but the minor fails to take it. She stated, ‘I’ve given her everything you
could possibly think of[] since I’ve been out.
I’ve tried to spend time with her and talk to her. I’ve given her food and clothing but she turns
me down every time. I know she resents
me for the years I wasn’t with her. I
know she has a grudge for what I said about having no regrets. That’s why I think we need counseling to work
on our communication. Unfortunately she
is out of control and I don’t know how to communicate with her especially now
that she’s a teen. We need help and I’m
hoping you guys can help us.’”
Father
reported that “he was currently working on his housing situation and was
enrolled in a substance abuse program.”
He and his aunt cared for S. until she was seven when his aunt passed
away and he was incarcerated. “‘There
was really no relationship between S. and her mother. When her mother was released S. went to live
with her and I spoke to her once in a while.
I knew there was friction between them because S. is 15 years old and
has a careless attitude. She wants to be
grown and do whatever she wants. She
blames us for not being there for her and because of our history she feels as
though we have no right to parent her in any way. [¶] . . . I found out from S.
her mother didn’t want to continue to take care of her because of her
misbehavior. When I spoke to her mother
she told me it wasn’t that she didn’t want to care for her but she felt as
though they needed some kind of therapy and S. just didn’t want to
participate. Her mother said S. didn’t
follow her rules and wanted to come and go as she pleased. Soon after my daughter went to live with her
mother I received a call from her telling me she didn’t want to be there no
more. . . .’” Father said he could not
care for his daughter because he did not have a stable home and was dealing
with his substance abuse issues.
Neither
DCFS nor mother or father had located S.
DCFS reported, “The mother seems to be overwhelmed by this current case
but continues to be productive in making efforts to locate her daughter. . . .
The mother is devastated by the inability to effectively communicate [with] S.
but maintains a positive attitude and is willing to participate in services to
learn effective ways of parenting a teenager and tools for better communication. The mother understands S. has experienced
many traumas growing up and seems to blame herself for not being able to be
with her child throughout her childhood.
The mother is able to identify her strengths and weaknesses and is
persistent when asking for help and assistance.” DCFS coordinated with the probation officer
assigned to S., who indicated that the probation department was requesting
conjoint supervision with DCFS of S.
In an
interim review report, dated August 17, DCFS indicated that S.’s whereabouts
were still unknown, yet she was found on August 23 and placed in a group
home. The juvenile court recalled the
protective custody warrant.
In a second
interim review report, dated October 6, DCFS indicated that S. had been placed
in a foster home on September 8 and that mother had been arrested on August
17. According to DCFS, “S. reported that
she was sexually assaulted during the time she was absent from her placement
‘AWOL’ on 8/22/11 while in the company of some of her friends. The male friend forced her to have sex with
him in a vacant house.”
At the
adjudication hearing, on October 14, the juvenile court declared S. a
dependent, sustaining the allegation against mother under section 300,
subdivision (b), and the allegations against father under section 300,
subdivisions (b) and (g), and found clear and convincing evidence pursuant to
section 361, subdivision (c), to remove S. from her parents’ custody. According to the court, “the extent of progress
the parents have made toward alleviating or mitigating the causes necessitating
placement in foster care has been minimal.”
The court ordered family reunification services and monitored visitation
for mother and father. It gave DCFS
discretion to liberalize father’s visits and directed DCFS to provide mother
with visits a minimum of twice per month at her place of incarceration.
Mother
filed a timely notice of appeal. (§ 395,
subd. (a)(1); see In re Tracy Z. (1987)
195 Cal.App.3d 107, 112 [jurisdictional
findings reviewable on appeal from the judgment following disposition].)
DISCUSSION
Mother
contends that the evidence is insufficient to support the jurisdictional
finding against her under section 300, subdivision (b), and that, in any case,
the juvenile court should not have removed S. from mother’s custody because
mother could have made arrangement for S.’s care while she was
incarcerated. We disagree.
Under
section 300, subdivision (b), the juvenile court may adjudge a child a
dependent of the court when “[t]he 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 . . . to
adequately supervise or protect the child . . . .” “The purpose of section 300 is ‘to identify
those children over whom the juvenile court may exercise its jurisdiction and
adjudge dependents.’ [Citation.]” (In re
A.O. (2010) 185 Cal.App.4th 103, 110.)
“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 child, or a ‘substantial risk’ of such harm or
illness.” [Citation.]’ [Citations.]”
(In re James R. (2009) 176
Cal.App.4th 129, 135.) When the
jurisdictional finding is “based on the parent’s ‘inability . . . to adequately
supervise or protect the child[]’” DCFS must show “parental unfitness or
neglectful conduct.” (
1251, 1254.) To declare a child a
dependent under section 300, the juvenile court must find by a preponderance of
the evidence that the allegations are true.
(In re Matthew S. (1996) 41
Cal.App.4th 1311, 1318; see § 355, subd. (a).)
We review the court’s findings under section 300 for substantial
evidence and will affirm the judgment based on those findings if they are
supported by reasonable, credible evidence of solid value. (Matthew
S., at p. 1319.)
The
sustained section 300, subdivision (b), allegation against mother provided that
mother is “unable to provide ongoing care and supervision of the child. The child refuses to reside in the mother’s
home and care.” Substantial evidence
supports the sustained allegation. When
the juvenile court made its adjudication and disposition orders, mother was
incarcerated, and no evidence suggested when, or if, she might be
released. Mother was incarcerated for
much of S.’s life from the time she was an infant until she was 14 years old. When S. lived with mother as a teenager, she
ran away from home, and mother was unable to communicate with her and in fact
did not speak with her during the dependency proceedings, instead once again
becoming incarcerated about the same time S. was located.
In
re Precious D., supra, 189
Cal.App.4th 1251, on which mother relies, does not warrant a
different result. In that case, we
reversed a jurisdictional finding under section 300, subdivision (b), on
the ground that mother was unable to care for and supervise the child
because the only finding “critical of Mother’s parenting skills or conduct” in
relation to her incorrigible teenage daughter, who continued to run away from
home and from foster placements during a period of voluntary family
reunification, was that the mother and her daughter were not communicating. (Id.
at p. 1259.) The finding was “not
supported by substantial evidence because the record show[ed] that Mother
and [her daughter] were in daily telephone contact. DCFS’s jurisdiction/disposition report also
noted as a family strength that there
was ‘open communication between the mother and the child, despite the current
circumstances.’” (Ibid.) In addition,
“DCFS admitted that it sought dependency court jurisdiction because of
[the child’s] incorrigible behavior and her need for court-ordered
services, not because of any neglectful conduct by Mother. It is also apparent that there was no
neglectful conduct by Mother because Mother was not ordered to participate in
any services except family counseling with [the child], when [the child’s]
therapist deemed it appropriate.” (
DCFS made no claim that the mother was unfit to parent her
daughter. (Id. at p. 1259, fn. 2.) In this case, in contrast, mother was not in
contact with her child, and substantial evidence demonstrated that mother and
daughter were not communicating.
Moreover, unlike in In re Precious
D., where the mother had been involved throughout her child’s life, mother
here was incarcerated for most of her child’s life, even at the time of
adjudication. Thus, while
an incorrigible teenager without evidence of unfitness or parental neglect,
this case involves both unfitness and parental neglect.
Mother’s
argument that, even if jurisdiction were proper, the juvenile court should not
have removed S. from her custody pursuant to section 361, subdivision (c)(1),
also fails.
title="">[2] As noted, mother was incarcerated when the
juvenile court made its adjudication and disposition orders and thus unable to
care for S. Mother claims that, although
incarcerated, she should have been permitted to arrange for care of her
daughter, which her counsel informed the court might be possible with mother’s
fiancés sister. But that person was not
present in court, and no evidence exists that mother’s fiancés sister was
willing and able to care for S., particularly given S.’s emotional issues and
tendency to run away, or that S. knew or had any relationship with the fiancés
sister. The court thus did not err by
ordering removal under section 361, subdivision (c)(1).
DISPOSITION
The
judgment is affirmed.
NOT TO
BE PUBLISHED.
ROTHSCHILD,
J.
We concur:
MALLANO,
P. J.
CHANEY,
J.
name="_ftn1" title="">
references are to the Welfare and Institutions Code.
361, subdivision (c)(1), provides that a juvenile court can order removal of a
dependent child from his or her parent’s physical custody upon clear and
convincing evidence that “[t]here is or would be a substantial danger to the
physical health, safety, protection, or physical or emotional well-being of the
minor 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 . . . physical custody.”
