In
re M.V.
Filed
10/19/12 In re M.V. CA6
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule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
SIXTH
APPELLATE DISTRICT
In re M.V., a Person Coming
Under the Juvenile Court Law.
H037611
(Santa
Cruz County
Super. Ct. No. DP002472)
SANTA CRUZ COUNTY HUMAN
SERVICES DEPARTMENT,
Plaintiff and
Respondent,
v.
L.V.,
Defendant and
Appellant.
In this appeal
of the juvenile court’s jurisdictional
order, the mother of a dependent child argues that the juvenile court
failed to obtain a knowing, intelligent, and voluntary waiver of her
evidence to support the court’s jurisdictional findings.
We
conclude, on this record, that the mother did not submit on the issue of
jurisdiction at the contested jurisdiction hearing. The juvenile court was therefore not required
to obtain a waiver of trial rights as a part of that
the court’s order on jurisdiction, and will affirm the judgment.
Factual
and Procedural Background
Appellant
L.V. (Mother) is the mother of M.V. (Child), a boy who was 15 years old at the
time of the proceedings at issue.
Child’s father is deceased.
Beginning
in early 2011, Child lived with a friend and his friend’s mother (T.B.) because Mother was homeless, unemployed,
undergoing treatment for breast cancer, and disabled from a motorcycle
accident. Mother received income of at
least $800 per month in Social Security
friends, who would not permit Child to stay in their home. Mother had suggested at that time that Child
sleep in her car. By the end of May
2011, T.B. had received little financial contribution from Mother and could no
longer afford to provide for Child. T.B.
contacted the Santa Cruz County Human Services Department (the Department), and
on June 8, 2011, Child was
taken into protective custody and placed in a group home.
The
Department filed a petition on Child’s behalf under section 300 of the Welfare
and Institutions Code.
name="_ftnref2" title="">[2] The petition alleged serious physical harm,
failure to protect, and failure to provide support (§ 300, subds. (a),
(b), (g)). On June 13, 2011, the court conducted a detention
hearing, at which time it appointed counsel for Mother and Child. Mother denied the allegations of the
petition. The court found that a prima facie
showing had been made that continuing Child in Mother’s care would be contrary
to Child’s welfare. The court ordered
Child detained, with temporary placement under the care and supervision of the
Department, pending disposition or other order of the court. The court ordered supervised visitation and
set the matter for further hearing.
In its July
2011 jurisdiction/disposition report to the court, the Department recommended
that Child be declared a dependent, that he remain in out-of-home care, that
family reunification services be
provided to Mother, and that the court order a psychological evaluation of
Mother.
At the
initial jurisdiction and disposition hearing on July 12, 2011, Mother disagreed with the Department’s
recommendations and requested a settlement conference. After the parties were unable to reach an
agreement at the settlement conference on August 16, 2011, the court set the case for a contested
hearing on September 20, 2011. The court set dates for the exchange of
discovery and witness lists, and Mother filed written objections to hearsay
evidence in the social worker’s report (§ 355, subd. (c)).
At the
start of the September 20 hearing, the court announced that the matter was “set
for a contested hearing†regarding jurisdiction and disposition and asked
whether the parties had resolved any issues.
Counsel for the Department
stated, “[M]y understanding is that there will be merely argument.†Counsel for the Department and for Mother
advised the court that the Department would modify the allegations of the
petition and Mother would withdraw her hearsay objections. The modifications consisted of striking all
allegations of serious physical
harm under section 300, subdivision (a), and amending the allegations under
section 300, subdivision (b), as italicized below.
As
modified, the petition alleged in paragraph b-1 that Child:
“has suffered or
there is substantial risk that he will suffer, serious physical harm
. . . by the willful or negligent failure of [Mother] to provide
[Child] with adequate shelter.
. . . [Mother] is currently homeless and is couch
surfing with friends who will not allow [Child] to stay in their home. Therefore [Mother] expects [Child] to sleep
in her car, and believes [it is] his responsibility to find his own place to
live. Between January and May 2011, [Mother] refused housing assistance
. . . because she did not consider it ‘a good enough’ situation,
and blames [Child] for their homeless situation.â€
Paragraph g-1 of
the petition alleged that Child has been left without provision for support,
since his “previous caretaker is no longer able or willing to provide care or
support for him, and [Mother] does not have a reasonable plan [for] his living
arrangement.â€
The
petition alleged in paragraph b-2 that in May 2011,
“while Mother
was driving [Child] to a medical appointment [Mother] hit [Child] in the head
and the arm whereupon he jumped out of the slowly moving vehicle. A few days later[,] Mother engaged in an
argument with [Child] and when [Child] got out of the car[,] [Mother]
accelerated behind him, frightening him.
[Mother’s] violent and aggressive behaviors place [Child] at substantial
risk of further serious physical harm.â€
Paragraphs
b-3 and b-4 of the petition alleged that Mother was unable to provide regular
care for Child due to problems relating to her mental health and substance
abuse:
“[Mother] has
displayed irrational and erratic behaviors as demonstrated by driving to
[Child’s] previous living arrangement and throwing [Child’s] clothing all over
the driveway. [Mother] has also made
comments to [Child] such as ‘someone should take you out into the woods and
teach you a lesson’ and ‘I should have aborted you.’ †“[Mother] consumes alcohol and smokes
Mother’s
counsel informed the court that “Mother is not submitting, but we are not going
to present evidence.†Mother’s counsel
stated that Mother was “working very intensively to obtain housing†“with two
separate agencies†and the social worker.
Regarding the alleged substance abuse, Mother’s counse argued that
Mother “has a medical marijuana card because of her medical condition.†Mother’s counsel said, “We are hopeful that
the Court will consider her comment while making a decision today. We still are not submitting. My client denies the allegation, but like I
said, we are not going to produce evidence.â€
Mother’s
counsel also stated, “On disposition[,] mother is submitting. She is engaged in services and is looking
forward to participate and complete [sic]
the case plan. She’s especially hopeful
for joint sessions of counseling and visitation. [¶]
. . . She is willing to
participate and reunify with her son.â€
Counsel stated that Mother “is willing to continue participating in all
the decisions and being told about medical appointments[
as well as educational issues for [Child].
By the way, she is in touch with the group home, with his school, and
will continue. This is part of her case
plan. She [is] participating in
[Child’s] life. With this comment we are
submitting on the petition.â€
After
hearing comments from Child’s attorney and speaking with Child about his
interest in guitar, the court referenced a private fund for enrichment
activities for dependent children and suggested Child talk to his attorney and
the social worker about applying for a grant to purchase a guitar and guitar
lessons. The court talked to Child about
school and told him he needed “to start having some conversations†with Mother
and his high school counselor about his education and his educational plans
after high school. Child, who was still
in the group home, told the court he had a friend who offered his home as a
placement option and the court directed him to explore that option with the
social worker.
The court
asked Mother’s counsel, “[A]nything further?â€
Counsel responded, “Your Honor, like I said, we are not going to
introduce evidence.
[¶] . . . . [¶]
[Mother] was hopeful that the Court will not find the petition true, but
she is agreeing to the changes of the language.
And with these comments, I will submit to the court.†Mother’s counsel added that Mother was available
for a psychological evaluation.
The court
sustained the allegations of the petition, found that Child was described by
section 300, and assumed jurisdiction over Child. On the issue of disposition, the court
ordered Child removed from Mother’s custody and placed him under the care,
custody and control of the Department.
The court ordered reunification services for Mother, including weekly
visitation, and referred Mother for evaluation by a court-appointed
psychologist.
Discussion
Mother contends
that the jurisdictional order must be reversed because (1) the court accepted a
submission without obtaining Mother’s knowing, intelligent, and voluntary
waiver of trial rights, and (2) there is insufficient evidence to support the
court’s finding of jurisdiction.
1. Advisement and Waiver of Trial Rights
“A
dependency proceeding is civil in nature and is designed not to prosecute the
parent, but to protect the child.
[Citation.] Nevertheless, a
parent’s fundamental right to care for and have custody of her child is
implicated and may not be interfered with without due process of law. [Citations.]
Among the essential ingredients of due process are the right to a trial
on the issues raised by the petition, the right to confront and cross-examine witnesses,
and to compel the attendance of witnesses.
By adopting rule [5.682], the Judicial Council recognized these rights
are essential to a fair jurisdictional proceeding.†(In re
Monique T. (1992) 2 Cal.App.4th 1372, 1376-1377 (Monique T.), citing In re
Malinda S. (1990) 51 Cal.3d 368, 383-384 & fn. 17, superseded by
statute on another ground as stated in People
v. Otto (2001) 26 Cal. 4th 200, 207; see Historical Notes, 23 Pt. 2, West’s
Ann. Court Rules (2006 ed.) foll. rule 5.682, p. 97 [former rule 1449,
cited in Monique T., was renumbered
rule 5.682].) A parent must be advised
of these rights at the initial stages of the proceedings. (Cal. Rules of Court, rule 5.534(k)
further rules citations are to the Cal. Rules of Court.)
Uncontested Jurisdiction
Hearings
A parent
may personally waive a contested hearing on the jurisdictional issues in a
dependency proceeding by admitting the allegations of the petition, pleading no
contest, or submitting the determination to the court. (Rule 5.682(d), (e);
explain rights; parent must personally waive trial rights; attorney cannot
waive for parent].) When accepting an
admission, a no contest plea, or a submission, the juvenile court must advise
the parent of his or her due process rights and obtain a knowing and
intelligent waiver from the parent.
name="_ftnref5" title="">[5] (Rule 5.682(b), (c), (f);
400, 404.)
The
Judicial Council has adopted form JV-190 entitled “Waiver of Rights – Juvenile
Dependency†for courts to use in taking admissions, no contest pleas, and
submissions. Paragraph 4 of the form,
entitled “Waiver of Rights†contains a list of the trial rights set forth in
rules 5.534(k)(1) and 5.682(b), with boxes for the parent to initial,
indicating that the parent is “giving up†each of those rights. Paragraph 5 of the form contains boxes for
the parent to initial, indicating that he or she understands the consequences
of the admission, no contest plea, or submission. Paragraph 7 of the form requires the parent’s
attorney to declare that he or she has explained the rights and consequences of
an admission, no contest plea, or submission to the parent. Since Mother denied the allegations of the
petition and requested a contested hearing, form JV‑190 was not used in
this case.
After the
parent has admitted the allegations of the petition, pleaded no contest, or
submitted on the social worker’s report, rule 5.682(f) requires the court to
make specific findings, including as to the knowing and intelligent waiver of
trial.
Contested Jurisdiction
Hearings
If the
parent denies the allegations of the petition, as Mother did here, the court
must hold a contested hearing to determine whether the allegations of the
petition are true. (§ 355; rule
5.684(a).) The rules governing contested
hearings on section 300 petitions are set forth in rule 5.684. Unlike rule 5.682, which requires the court
to advise of trial rights and obtain a waiver before accepting an admission, no
contest plea, or submission, rule 5.684 does not require a separate advisement
of trial rights at a contested
hearing on jurisdiction. This makes
sense: When parents request and go
forward with a contested jurisdiction hearing, they are by definition
exercising their trial rights.
Standard of Review
Citing
case is reviewed for an affirmative showing that the waiver is voluntary and
intelligent under the totality of the circumstances.†As we shall explain, resolution of this issue
turns on whether Mother submitted on the question of jurisdiction. Since this is essentially a factual matter,
we apply the substantial evidence standard of review.
Analysis
Mother
argues that the juvenile court was required to advise her of her trial rights
and obtain a waiver because “[t]here was a submission in [M]other’s case.†She argues that “at times counsel described
what was occurring as a submission and at times as not a submission. In fact, however, it was a submission in that
[Mother] offered neither evidence nor any meaningful argument in opposition to
the jurisdictional allegations.â€
We disagree
with Mother’s basic premise that what occurred here was a submission. At the detention hearing on June 13, 2011, Mother denied the
allegations of the petition. The written
order for the detention hearing indicates that Mother was advised of her trial
rights at that time.
name="_ftnref7" title="">[7] The court set the matter for a jurisdiction
hearing on July 12, 2011,
and ordered the Department to lodge its report with the court one week before
that date.
The case
returned to court three times on the issue of jurisdiction. At the initial hearing on July 12, 2011, Mother disagreed with
the Department’s recommendation that Child be declared a dependent of the court
in out-of-home placement and requested a settlement conference. Nothing in the record suggests that Mother
admitted any of the jurisdictional allegations of the petition, pleaded no
contest, or submitted on the report at that time.
At the
settlement conference on August 16,
2011, the parties were unable to resolve jurisdictional issues, and
the court set a “contested hearing†for September
20, 2011. The court also
established deadlines for the exchange of discovery and witness lists and
concluded the hearing by stating, “So we’re set for trial.†As before, nothing in the record of the
settlement conference suggests that Mother made any admissions, pleaded no
contest, or submitted on the report at that time. In preparation for the contested hearing,
Mother filed written evidentiary objections to the social worker’s report.
At the
beginning of the third hearing on September
20, 2011, which is described in the minute order as a “Contested
Hearing on Jurisdiction and Disposition,†the court stated, “We are here for
the hearing regarding jurisdiction and disposition. It’s set for a contested hearing.†The court next inquired whether the parties had
“resolved any issues along the way.â€
Counsel for the Department told the court that the Department had agreed
to amend the petition and that Mother had agreed to withdraw her evidentiary
objections to the social worker’s report.
The amendments to the petition were stated for the record and the court
confirmed Mother’s agreement to withdraw her hearsay objections. Counsel for the Department asked the court to
admit the social worker’s report and an addendum into evidence. The social worker who prepared the report was
present at the contested hearing and remained available for
cross-examination.
Mother’s
counsel stated, “[Mother] is not submitting, but we are not going to present
evidence.†Thus, Mother’s counsel made
it clear that although the parties had stipulated to the amendment of the
petition and she had withdrawn her evidentiary objections, Mother was not
submitting on the petition. Counsel next
presented arguments to the court regarding Mother’s efforts to obtain housing
and Mother’s medicinal marijuana use.
Both arguments addressed jurisdictional allegations in the amended
petition. Mother’s counsel concluded her
argument on jurisdiction by reiterating, “We still are not submitting. My client denies the allegation, but like I
said, we are not going to produce evidence.â€
Mother
contends that in spite of her counsel twice telling the court that Mother was
not submitting, what occurred at the contested hearing was in fact a submission
because counsel’s argument focused on agreed upon amendments to the
petition. We are not persuaded. Mother does not cite any legal authority for
the proposition that whether a submission occurred depends on the quality or
scope of counsel’s argument. The
juvenile court must be able to rely on counsel’s express representations that
Mother was not submitting her case; the court should not be required to assess
the nature of counsel’s argument to determine whether a submission was actually
intended. That Mother elected not to
present any evidence or cross-examine the social worker, does not mean she did
not exercise her trial rights.
Mother’s
reliance on Monique T. is
misplaced. In that case, the mother’s
attorney told the court at the jurisdiction hearing that the mother waived
reading of the petition and advisement of rights and was prepared to submit on
the petition. The attorney also told the
court that she had explained the mother’s trial rights to her client and that
she was satisfied that the mother understood both her trial rights and the
consequences of a submission. The
juvenile court found that the mother understood her rights and had voluntarily
waived them. The appellate court
concluded that “it was error to accept a waiver of [the mother’s due process]
rights based only on counsel’s representations†and held that the court should
have explained the rights to the mother and obtained her personal waiver. (Monique
T. supra, 2 Cal.App.4th at
p. 1377.) This case is distinguishable
from Monique T. because Mother did
not submit on the petition and she exercised her trial rights by going forward
with the contested hearing.
Mother
argues that what occurred at the September 20 hearing should be construed as a
submission since her counsel stated both that she was submitting and that she
was not submitting. However, the
reporter’s transcript confirms that counsel’s statements were not inconsistent,
as the case was set for hearing on both jurisdiction and disposition. In contrast to counsel’s multiple statements
about not submitting on jurisdiction, and after making arguments on those
issues, Mother’s counsel stated, “On disposition[, M]other is submitting.†At the end of the contested hearing, counsel
stated, “[Mother] was hopeful that the Court will not find the petition true,
but she is agreeing to the changes of the language. And with these comments, I will submit to the
Court.†It appears from this record that
Mother had elected to submit on issues of disposition, in the event the court
ruled against her on jurisdiction. This
does not mean that she was also submitting on jurisdiction, and Mother’s
counsel clearly reiterated that position.
Counsel’s concluding sentence quoted here was simply a signal that she
had completed her argument.
Our
decision should not be construed as limiting a parent’s right to change course
and admit the allegations of the petition, plead no contest, or submit on the
social worker’s report at any time during a contested hearing. But that is not what occurred here. Mother’s counsel made it clear that Mother
was not submitting on jurisdiction, and the court was entitled to rely on those
representations.
The record
of the contested hearing on jurisdiction and disposition supports the
conclusion that Mother exercised her trial rights at the hearing. The juvenile court was, therefore, not
required to advise Mother and obtain a waiver of those very rights.
2.
Sufficiency of the Evidence to Support the Jurisdictional Findings
The court
sustained the amended petition on the basis of section 300, subdivisions (b)
and (g). Subdivision (b) provides in
relevant part that the court may find a child to be a dependent of the court
when the “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 . . . parent . . . to adequately supervise
or protect the child, . . . or by the willful or negligent failure of
the parent . . . to provide the child with adequate food, clothing,
shelter, or medical treatment, or by the inability of the parent
. . . to provide regular care for the child due to the parent’s
. . . mental illness, . . . , or substance abuse. No child shall be found to be a person
described by this subdivision solely due to the lack of an emergency shelter
for the family.†Subdivision (g) of
section 300 provides in relevant part that a child may be found a dependent of
the court if the “child has been left without any provision for support;
. . .†The allegations of the
petition focused on Child’s lack of shelter and support, arguments between
Mother and Child, Mother’s erratic behavior, and her use of alcohol and
marijuana.
“The basic
question under section 300 is whether circumstances at the time of the hearing
subject the minor to the defined risk of harm.â€
(In re Nicholas B. (2001) 88
Cal.App.4th 1126, 1134.) “Proof by a
preponderance of evidence must be adduced to support a finding that the minor
is a person described by Section 300†at the jurisdiction hearing. (§ 355, subd. (a).) “When a dependency petition alleges multiple
grounds for its assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s 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.â€
(In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
Standard of Review
“On appeal,
the ‘substantial evidence’ test is the appropriate standard of review for both
the jurisdictional and dispositional findings.â€
(In re J.K. (2009) 174
Cal.App.4th 1426, 1433.) Thus, we must
uphold the court’s jurisdictional findings unless, after reviewing the entire
record and resolving all conflicts in favor of the respondent and drawing all
reasonable inferences in support of the judgment, we determine there is no
substantial evidence to support the findings.
(In re Veronica G. (2007) 157
Cal.App.4th 179, 185, citing Monique
T., supra, 2 Cal.App.4th at p.
1378.) Substantial evidence is “relevant
evidence as a reasonable mind would accept as adequate to support a
conclusionâ€; it is “reasonable in nature, credible, and of solid value.†(In re
J.K., supra, 174 Cal.App.4th at p. 1433.)
“When a
finding of fact is attacked on grounds that it is not supported by substantial
evidence, the power of an appellate court begins and ends with a determination
as to whether there is any substantial evidence, contradicted or
uncontradicted, which will support the findings. [Citation.] . . . The
reviewing court looks to the evidence supporting the successful party and must
disregard any contrary showing.
[Citation.] When two or more
inferences can reasonably be deduced from the facts, we are without power to
substitute our deductions for those of the trial court. The testimony of a single witness, even a
party, is adequate to support the trial court's findings. [Citation.]
All the evidence most favorable to respondent must be accepted as true,
and that unfavorable discarded as not having sufficient verity to be accepted
by the trier of fact. If the evidence so
viewed is sufficient as a matter of law, we must affirm the judgment.†(In re
Cheryl E. (1984) 161 Cal.App.3d 587, 598 (Cheryl E.).)
Analysis
This case
first came to the Department’s attention in April 2011. At that time, Mother told the social worker
that Child had been living with T.B. for two months, and that Mother and Child
had been “chronically homeless,†which contributed to stress in their
relationship. The social worker reported
that Mother focused on how their homelessness and her illness affected her and
showed very little insight into how those issues affected Child. Mother told the social worker that she wanted
Child to come home and “was hopeful about housing.†She also agreed in writing to provide for
Child’s basic needs while he lived with T.B.
At the end
of May 2011, Mother told the social worker that she had “not had a permanent
living situation since 2008†and had been “couch surfing with her son except
for six months†(January through July of 2010) when they lived in a family
shelter. While she lived in the shelter,
she worked with Families in Transition (FIT) but they were unable to find
suitable housing.
In early
June 2011, T.B. told the social worker that she had agreed that Child could
live with her as long as Mother provided financial and medical support and that
during the approximately three months that Child lived with her, the only
support Mother provided was a transit card and $200, which “only covers about
half of what he eats in a month . . . .â€
The social
worker spoke with Mother on June 7, 2011, shortly before child was taken into
custody. Mother blamed her housing
situation on “the system†and not her own actions. Mother reported that FIT had found her a
studio apartment for $800 per month, which she turned down because her income
was about $1,100 per month and she did not feel comfortable sharing a studio
with her son. Mother had also refused an
offer to rent a room for $500 a month, stating that she could not share a room
with her son and it was not good enough for them.
had put up obstacles to finding a place to live. The social worker opined that Mother was not
realistic about the cost of housing in the county and noted that Mother “does
not have a reasonable plan for her son and expects him to live in the car with
her . . . .†Both Child
and T.B. told the social worker that Mother was “couch surfing†in the home of
some elderly people who did not like Child and would not let him sleep inside
their residence. Consequently, he would
have to sleep in Mother’s car. T.B.
reported that during the time Child resided with her, Mother made no effort to
find housing for herself or Child.
Child
reported that Mother drank whiskey more than twice a day and acted drunk, but
said that Mother only admitted to drinking “little amounts.†Child also reported that Mother smoked
marijuana “once in a while.†(Mother
initially denied alcohol and drug use, but then admitted that she used medical
marijuana while on chemotherapy.) This
evidence supports the inference that Mother was purchasing alcohol with money
that should have been used for Child’s support.
There was
also evidence to support concern about Mother’s mental health. Child reported Mother’s mental state was
deteriorating “due to what she’s been going through,†apparently referring to
the cancer treatment and earlier motorcycle accident. Child and T.B. both reported incidents of
Mother’s erratic behavior, such as strewing Child’s clothing over the driveway,
and accelerating the car behind Child after they had argued. T.B. reported that one reason she could no
longer allow Child to live with her was Mother’s behavior, which was upsetting
and frightening to T.B., her son, and Child.
In early June 2011, Mother told the social worker that she and Child
“need[ed] separation to deal with each of their issues, her mental health and
physical health.†The social worker
expressed concerns about Mother’s mental health based on her demeanor during
their interviews and telephone contacts; Mother presented as nervous and upset,
angry and crying.
Citing
(1987) 193 Cal.App.3d 283 (Hasnen),
and David B. v. Superior Court (2004)
123 Cal.App.4th 768 (David B.),
Mother argues that “[h]omelessness alone is not grounds for dependency
jurisdiction.†And citing
Cal.App.4th 1202 (G.S.R.) and
not grounds for dependency jurisdiction.
the record strongly suggested that the only reason the father had not obtained
custody of his two sons was his financial inability to obtain suitable
housing. (G.S.R., supra, at p.
1212.) The court noted that “poverty
alone, even abject poverty resulting in homelessness, is not a valid basis for
assertion of juvenile court jurisdiction.
As the Legislature expressly stated in section 300, subdivision (b), ‘no
child shall be found to be a person described by this subdivision solely due to
the lack of an emergency shelter for the family. . . .’ Put differently, indigency, by itself, does
not make one an unfit parent and ‘judges [and] social workers . . .
have an obligation to guard against the influence of class and life style
biases.’ †(Ibid., citing Cheryl E.,
at p. 607.)
This case
is distinguishable from G.S.R. and
sought the custody of their children, visited them regularly, and complied with
the social services agency’s requirements, but had difficulty providing
appropriate housing. (
terminating parental rights reversed; boys resided with paternal grandmother
and father saw them nearly every day; agency never provided services to assist
with finding affordable housing]; David B.,
supra, 123 Cal.App.4th at pp.
772-773, 792-793 [order referring case for permanency planning reversed; father
worked, visited regularly, & did everything agency required during
reunification; agency never told father he would have to move to obtain
custody].)
More than
merely failing to provide support, Mother affirmatively stated that she would
not support Child. She reneged on her
promises to T.B. and the Department that she would support her son. During the months that Child lived with T.B.,
Mother made no effort to find a living situation where both she and Child would
be welcome. Similarly, between detention
and the contested jurisdiction hearing, there was no evidence of efforts by
Mother to find suitable housing for herself and Child.
Contrary to
Mother’s assertions, and unlike G.S.R.,
the juvenile court did not base its jurisdictional finding on poverty or
homelessness alone. As we have noted,
the petition alleged multiple grounds for jurisdiction, including Mother’s
failure to provide food, clothing, shelter, and support; and Mother’s alleged
mental illness and substance abuse, as evidenced by Child’s statements and
Mother’s erratic behavior. Finally,
although the court had ordered weekly visitation at the time of detention and
at each subsequent hearing, there was no evidence that Mother visited Child or
availed herself of the opportunity to participate in joint counseling with
him. Thus, there was substantial
evidence to support the court’s order on jurisdiction, and the conclusion that
the order was not based solely on homelessness or poverty.
As we have
noted, the purpose of a dependency proceeding is not to prosecute the parent,
but to protect the child. Rather than
focusing on the need to protect and support her child, Mother appears to
believe that Child should help to support her.
Mother’s lack of insight on this point is illustrated by the assertion
in her appellate brief that Child “is now 16 years of age. [He] could obtain a work permit, find
employment preparing orders at a fast food outlet, packing groceries at a food
chain, or other such work so that he could contribute to the living expenses of
the family. Doing so might permit
[Child] to embark on manhood knowing that he did not fail his mother at such a
time. In the long run, such a course
might do more toward forming [Child] as a responsible adult than would
fulfillment of his desire to play the guitar.â€
While age appropriate employment may indeed provide valuable experience
for a teen, the needs of the child must not be subordinated to those of the
parent.
Disposition
The order
on jurisdiction and disposition is affirmed.
________________________
GROVER,
J.
WE CONCUR:
__________________________
PREMO, ACTING P.J.
________________________
BAMATTRE-MANOUKIAN, J.
name="_ftn1" title=""> [1] The record was inconsistent regarding
Mother’s monthly income, with reports of $800 in Social Security disability and
other reports of $1,100 income.
name="_ftn2" title=""> [2] Further statutory references are to the
Welfare and Institutions Code.
