R.B. v. Super. Ct.
Filed 2/7/13 R.B. v. Super. Ct. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION THREE
R.B.,
Petitioner,
v.
SUPERIOR COURT OF
LOS ANGELES
COUNTY,
Respondent;
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Real
Party in Interest.
B245586
(Los
Angeles County
Super. Ct.
No. CK76077)
ORIGINAL PROCEEDINGS in
mandate. Philip L. Soto, Judge. Petition denied.
Law Office of Timothy Martella Los
Angeles Dependency Lawyers, Rebecca Harkness and
Hans Wei-Han Chen for Petitioner.
No appearance for Respondent.
Office of the County Counsel, John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, Navid
Nakhjavani, Deputy County Counsel, for Real Party in Interest.
R.B.
(father) seeks writ review of jurisdictional findings and
dispositional orders removing four-year-old S.P. from
his custody, denying family reunification services and setting a permanency
planning hearing (Welf. & Inst. Code, § 366.26) on February 20, 2012.
Mother has three children, four-year-old
S.P., three-year-old Z.P. and one-year-old A.G.
(the Department) indicate S.P. previously was taken into protective custody on
January 23, 2009, after mother left the child with an unrelated adult
female who was under the influence of methamphetamine. S.P. was released to father. Mother failed to reunify and, in December of
2009, the juvenile court granted father sole custody of S.P.
On February 28, 2010, the Department
received a referral alleging general neglect of Z.P. and he was detained from
mother on July 1, 2010. On
July 6, 2010, the Department filed a dependency petition which alleged neglect
of Z.P. due to mother’s drug abuse.
Mother fled with Z.P. and the juvenile court issued a protective custody
warrant for Z.P.
In December of 2011, A.G. was detained after
he was born with a positive toxicological screen for methamphetamine. The juvenile court declared A.G. a dependent
child and denied mother family reunification services.
On May 29, 2012, the Department received a
referral indicating mother, a parolee with an outstanding arrest warrant, had
been located in a motel in Chino. Police
officers found methamphetamine and drug paraphernalia in mother’s motel room
within access of S.P. and Z.P. Mother
was arrested for violation of parole. S.P.
and Z.P. were taken into protective
custody and placed in foster care.
Mother admitted to a social worker she had
smoked methamphetamine that morning and that she habitually used
methamphetamine after she absconded with Z.P. from a rehabilitation facility in
2010. Mother stated father recently had
been taken into custody and father’s girlfriend, Heather, brought S.P. to the
motel to visit mother and Z.P. Mother
indicated S.P. just happened to be visiting when the officers arrived.
On June 1, 2012, the Department filed a
based on mother’s permitting the child to have access to drugs and drug
paraphernalia, mother’s history of substance abuse and father’s incarceration
and failure to make an appropriate plan for her
care. (§ 300, subds. (b) &
(g).)
When interviewed for the jurisdiction
report, mother indicated S.P. and Heather had just arrived when the police
appeared. Mother described Heather as a
good person and indicated Heather was present to monitor mother’s visit with
S.P. Mother believed father had made an
appropriate plan for S.P.’s care as S.P. had lived with Heather since the child
was four months of age and S.P. calls Heather mom.
Father stated he was not aware he was going
to be remanded the day he was taken into custody as father had gone to court on
the case several previous times. Father
stated Heather went to mother’s motel only to meet paternal great-grandmother. Father believed mother had duped Heather into
thinking paternal great-grandmother would be present to take custody of
S.P. Father claimed he had made an
appropriate plan for S.P.’s care as Heather is the only mother S.P. knows. Father stated Heather’s children are doing
well and she is the mother of father’s son. Although father and Heather no longer were
together, father described Heather as a “great mom.†Father asked that S.P. be placed in Heather’s
care and stated he had given Heather a “notarized letter.†Father had a long criminal history and
indicated he faced the possibility of six years and four months in prison.
A social report filed June 22, 2012, indicated Heather was interviewed
after the Department received a referral alleging she neglected and failed to
supervise her children. Heather
indicated social workers visited her home and advised her a letter from father
giving Heather custody of S.P. was ineffective because it was not
notarized. Believing social workers
would not remove S.P. from the care of a relative, Heather called S.P.’s
paternal great-grandmother who indicated she would “come down and getâ€
S.P. Mother thereafter told Heather the
paternal great-grandmother would be present at mother’s motel room to take
custody of S.P. Shortly after Heather
arrived with S.P., police officers arrested mother. Heather indicated she has known father for 15
years and was in a relationship with him for two years, they have remained
friends and they have a three-month-old son.
Heather indicated she recently visited father in jail and had the letter
regarding custody of S.P. notarized.
Heather indicated she has been a consistent mother figure to S.P. and
wished to care for her.
The Department concluded the allegations
against Heather were unfounded. However,
Heather’s criminal history included a conviction of burglary and a criminal
waiver was required before her home could be evaluated for the placement of
S.P.
Reports filed August 16, 2012, indicated
father had pleaded no contest to a violation of Penal Code section 22210,
manufacturing, importing or selling any instrument or weapon of the kind
commonly known as a billy, and had been sentenced to two years in state prison,
doubled to four years due to a prior conviction within the meaning of Penal
Code section 667, subds. (b)-(i), and had been granted presentence custody
credit of 138 days.
On August 16, 2012, the juvenile court
granted father monitored telephone calls with S.P. as arranged by the social
worker.
On September 7, 2012, father appeared in
custody and the juvenile court conducted a contested
adjudication. The parties stipulated
father would testify he gave custody of S.P. to Heather and the plan was for
Heather to care for S.P. until father’s release. Counsel for the Department argued Heather took
S.P. to mother’s motel room and remained there despite the presence of drugs
and drug paraphernalia. Also, the plan
for S.P.’s care was inappropriate because Heather was not in a position to
obtain medical care or make decisions on the child’s behalf.
The juvenile court sustained the petition
and continued the matter for a contested disposition hearing.
The disposition report indicated mother
recently had tested positive for methamphetamine and a parole warrant had
issued a for her arrest. Father waived
his appearance for the disposition hearing.
At the hearing, counsel for the Department
asked the juvenile court to deny mother and father family reunification
services, noting father had been sentenced to four years in state prison and
would not be able to reunify with S.P. within the statutorily allotted
time. Counsel for S.P. joined in the
Department’s request. Father’s counsel
objected to the denial of family reunification services for the record and
conceded father faced “quite a lengthy criminal sentence.â€
The juvenile court declared S.P. a dependent
and ordered her removed from parental custody.
The juvenile court denied father family reunification services pursuant
to section 361.5, subdivision (e)(1), noting the length of father’s incarceration
prevented reunification. The juvenile
court also ordered mother and father not to have contact with S.P. until they
had contacted the Department and pending further order of the juvenile court.
CONTENTIONS
Father contends the jurisdictional findings
were not supported by substantial evidence, father was entitled to family
reunification services and the order for no contact with S.P. was an abuse of
discretion.
DISCUSSION
1.
The
uncontested allegations sustained as to mother support dependency jurisdiction
as to S.P. even if the allegations as to father were reversed.
As noted by the Department, a jurisdictional
finding against one parent is good against both. (In re
I.A. (2011) 201 Cal.App.4th 1484, 1491; In
re P.A. (2007) 155 Cal.App.4th 1197, 1212; In re Alysha S. (1996) 51 Cal.App.4th 393.) Because there are sustained allegations
against mother which are not contested, reversal of the jurisdictional
findings as to father “will have no practical impact on the pending dependency
proceeding, thereby precluding a grant of effective relief.†(In re I.A.,
supra, at p. 1491.)
However, even overlooking the uncontested
sustained allegations, substantial evidence supports the jurisdictional
findings as to father.
2.
The
jurisdictional findings as to father are supported by substantial evidence.
section 300, the juvenile court must find the allegations of the petition
true by a preponderance of the evidence.
(In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318; §
355, subd. (a).) Jurisdictional findings
are reviewed for substantial evidence.
We resolve all conflicts and make all reasonable inferences in favor of
the order under review. (In re David
M. (2005) 134 Cal.App.4th 822, 828; In re Savannah M. (2005)
131 Cal.App.4th 1387, 1393; In re Sheila B. (1993)
19 Cal.App.4th 187, 199.)
As
relevant here, section 300, subdivision (g), permits juvenile court
jurisdiction when “the child’s parent
has been incarcerated . . . and cannot
arrange for the care of the child . . . .â€
In re Aaron S. (1991) 228 Cal.App.3d 202 explained, “[S]ection
300, subdivision (g) applies when, at the time of the hearing, a
has been incarcerated and does not know
how to make, or is physically and mentally incapable of making,
preparations or plans for the care of his or her child.†(Id.
at p. 208.)
Father claims he made suitable arrangements
by placing S.P. in Heather’s care.
Father notes the referral against Heather was deemed
unfounded and claims Heather was monitoring a court-ordered visit
with mother when police arrived and arrested mother.
However, after social workers advised
Heather a letter father gave her regarding custody of S.P. was ineffective,
Heather attempted to place the child with paternal great-grandmother. Heather stated she took S.P. to mother’s
motel room only to transfer custody of the child to paternal
great-grandmother. Father similarly
stated his belief mother had lured Heather to the motel on the false pretense
paternal great-grandmother would be there to take custody of S.P.
Thus, although father claims his plan was to
leave S.P. with Heather, the record indicates Heather’s plan was to transfer
custody of S.P. to paternal great-grandmother.
Further, Heather had a burglary conviction which necessitated a waiver
before the Department could assess her home for placement of S.P. Additionally, although father and Heather
spoke of the notarized letter father had provided Heather regarding the care
and custody of S.P., the record does not indicate the document granted authority
to make medical or educational decisions for S.P.
For these reasons, the juvenile court
properly could conclude father failed to make an appropriate plan for S.P.’s
care during his period of incarceration, thereby
rendering S.P. a dependent child within the meaning of section 300,
subdivisions (b) and (g). (See In re Alexis H. (2005) 132
Cal.App.4th 11, 16; In re Athena P. (2002)
103 Cal.App.4th 617, 629-630.) These
circumstances also support the juvenile court’s removal of S.P. from father’s
custody. (See § 361, subd. (c)(5).)
3.
The
dispositional orders are supported by the record.
The juvenile court denied father family
reunification services, citing the length of his prison sentence. Father contends this order, as well as the
order directing father not to contact S.P. without first contacting the
Department and having the matter brought before the juvenile court to address
visitation, was erroneous.
We disagree.
Regarding the denial of family reunification
services, section 361.5, subdivision (e)(1) states, in pertinent part: “If the parent or guardian is incarcerated
[or] institutionalized, . . . the court shall order reasonable services unless
the court determines, by clear
and convincing evidence, those services would be detrimental to the
child. In determining detriment,
the court shall consider the age of the child . . . the length of the sentence
. . . the likelihood of the parents’ discharge from incarceration or
institutionalization . . . within the reunification time limitations . . . .â€
Here,
father was sentenced to a second strike term of four years in prison. He therefore was entitled only to 20
percent custody credit against the term.
(Pen. Code, § 667, subd. (c)(5).) Given that father had only a few months of
presentence custody credit, it is apparent father will be incarcerated well
beyond the maximum reunification period which, absent extraordinary circumstances, must end 18 months after
the child is detained. (
L. v. Superior Court (1998) 64
Cal.App.4th 1377, 1388.) Given these facts and S.P.’s young age, we
find no abuse of the juvenile court’s discretion in the denial of family
reunification services.
With respect to the order directing father
not to have contact with S.P. until father contacted the Department and the
matter was brought before the juvenile court, father forfeited the right to
raise this issue on appeal as he failed to object in the juvenile court. (See In
re S.B. (2004) 32 Cal.4th 1287, 1293 fn. 2.)
Moreover, the juvenile court did not deny
father visitation. It merely delayed a
determination of the parameters of father’s visitation pending father’s contact
with the Department and a further hearing.
Because visitation with father would require transporting S.P. to the
prison where father is incarcerated, it was not unreasonable for the juvenile
court to require father to contact the Department before the juvenile court
establishing a visitation schedule. (See
In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104 [“The juvenile court
has broad discretion to determine what would best serve and protect the child’s
interest and to fashion a dispositional order in accordance with this
discretion.â€].)
DISPOSITION
The petition for extraordinary
writ is denied. This decision is
immediately as to this court. (Cal. Rules of Court, rule 8.490 (b)(3).)
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
KLEIN,
P. J.
We concur:
CROSKEY,
J.
ALDRICH,
J.
name="_ftn1" title="">[1] Subsequent unspecified statutory
references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] R.B. is not the father of Z.P. or A.G.
