Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. CK78034, Marguerite Downing, Judge.
Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Byron G. Shibata, Deputy County Counsel, for Plaintiff and Respondent.
ARMSTRONG, J.
In this appeal, Daniel P. challenges the juvenile court's order finding that it has jurisdiction over his 14-year-old daughter, Melissa, under Welfare and Institutions Code section 300, subdivision (g). We find substantial evidence for the jurisdictional finding, and so affirm the order.
Further statutory references are to this code.
FACTUAL AND PROCEDURAL BACKGROUND
Melissa was born in February 1996. Her mother, Anita V., and her father separated shortly thereafter. Since that time, Daniel has not contacted or visited Melissa, supported the child, or otherwise participated in his daughter's life.
Anita subsequently married Ernesto E.; the couple had a daughter Anna Marie, in October 1998. Anita and Ernesto separated in 2004.
At the time that this family came to the attention of the Department of Children and Family Services (DCFS), the two minors lived with their mother; a family law order awarded primary physical custody of Anna Marie to Anita; and Daniel was then, or was soon-to-be, incarcerated.
The referral which precipitated the DCFS's involvement with this family concerned Anna Marie's report that she had been sexually molested by her maternal grandfather, an allegation to which her grandfather ultimately confessed, resulting in his arrest. DCFS filed a petition under section 300, subdivisions (a), (b), (d), (g), and (j) of section 300. Two allegations concerned Daniel: under subdivision (b), he was alleged to have failed to provide Melissa with the necessities of life, putting her at risk of physical and emotional harm and damage, while under subdivision (g), he allegedly failed to provide Melissa with "the necessities of life including food, clothing, shelter and medical care, " again risking her physical and emotional well-being.
At the time the petition was filed, on July 9, 2009, Daniel's whereabouts were unknown. A due diligence search was conducted, which indicated that Daniel had been arrested on July 3. At the jurisdictional hearing on September 22, Daniel appeared in court and reported that he had been sentenced to "four years with 80 percent to prison." On September 29, the juvenile court sustained allegations as to mother under subdivisions (b), (d), and (j), finding that mother knew or should have known that Anna Marie had been sexually abused by her grandfather, and failed to protect both of her children. After finding that the minors were persons described by section 300, the court put the matter over for a contested disposition. The court also continued the jurisdiction/adjudication hearing as to Daniel. Anna Marie was released to Ernesto, while Melissa remained in an out-of-home placement. Melissa was subsequently placed in mother's home, under DCFS supervision.
At the continued hearing as to Daniel, Melissa's paternal aunt, Rosa P., testified that she was ready, willing and able to care for Melissa during Daniel's incarceration. Rosa testified that she lived in a three bedroom, two bath house with a "back house;" four people in addition to Rosa live in the home: Rosa's (and Daniel's) mother, father and brother, and Rosa's soon-to-be-adult daughter. Rosa also stated that, before seeing Melissa at a DCFS monitored visit the previous month, she had last seen Melissa when the child was three months old.
Daniel requested that the juvenile court strike the allegation under section 300, subdivision (b) as there was no causation between the alleged negligence and the issues which brought the child to the dependency court. Daniel further argued that there was no basis for jurisdiction under subdivision (g) of section 300 because Daniel was able to make appropriate arrangements for Melissa's care during his incarceration. Consequently, he requested that the court order that Melissa be released to him, as the non-offending parent, pursuant to the authority of In re Isayah C. (2004) 118 Cal.App.4th 684.
The juvenile court dismissed the subdivision (b) count, but sustained the subdivision (g) allegation. Daniel appeals the finding of jurisdiction under section 300, subdivision (g).
DISCUSSION
A finding of jurisdiction under section 300 is reviewed for substantial evidence. We review the entire record to determine whether there is substantial evidence to support the juvenile court's findings, drawing all reasonable inferences in support of the findings and viewing the record in the light most favorable to the juvenile court's order. (In re Cole C. (2009) 174 Cal.App.4th 900, 915-916.)
Section 300, subdivision (g) provides for dependency jurisdiction when, among other things, "... the child's parent has been incarcerated or institutionalized and cannot arrange for the care of the child...." Daniel maintains that the trial court erred in finding jurisdiction under this clause, relying principally on the holding of In re S. D. (2002) 99 Cal.App.4th 1068.
Other bases for jurisdiction under subdivision (g) are when "The child has been left without any provision for support; physical custody of the child has been voluntarily surrendered pursuant to Section 1255.7 of the Health and Safety Code and the child has not been reclaimed within the 14-day period specified in subdivision (e) of that section" or when "a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful." (Welf. & Inst. Code, § 300, subd. (g).)
In In re S. D., supra, 99 Cal.App.4th 1068, two days after the dependency petition was filed, the two-year-old minor was placed in the home of his maternal aunt, with whom he and his mother had previously lived. Though the aunt lived in Missouri, the incarcerated mother stated that she was willing to forego visitation with her young son if doing so would keep the boy in the care of the family rather than being placed in foster care. Notwithstanding that mother had made arrangements for the minor's care during her period of incarceration, in a home already found suitable by the Orange County Social Services Agency ("SSA") and with a caregiver well known to the child, the trial court asserted jurisdiction under section 300, subdivision (g). The appellate court found that the SSA had failed to plead and prove facts supporting assertion of jurisdiction under subdivision (g), for the evidence established that mother had indeed arranged for the care of the minor during her incarceration. (Id. at p. 1077.) The facts of that case, however, are in no way analogous to those present here: Unlike the situation in In re S. D., supra, Melissa was not living with father at the time of her detention and in fact had never been cared for by him; had not previously lived in Rosa's home, and indeed, did not know Rosa at all; and was not a toddler too young to comment on her proposed placement. Daniel's reliance on In re S. D. is thus misplaced.
In re Aaron S. (1991) 228 Cal.App.3d 202 likewise provides no support for Daniel's position. In that case, the two-year-old minor was detained on allegations that the mother's substance abuse problem and inability to control the child without resorting to physical abuse put the child at risk of harm. An amended dependency petition alleged jurisdiction as to father under section 300, subdivision (g) as follows: "The minor has been left with no provision for support by reason of the parent's incarceration or institutionalization in that... the father of said minor is incarcerated." (Id. at p. 206.) Among the evidence presented at the jurisdiction hearing was that father wanted the child to be cared for by his paternal grandmother, and the Department of Social Services recommended this placement for the child. Despite this evidence, and despite the fact that the child was in fact placed with the paternal grandmother, the juvenile court found jurisdiction as to father under section 300, subdivision (g). The appellate court reversed: "The language of section 300, subdivision (g), demonstrates that the Legislature did not intend dependencies to be established under this statute where the incarcerated parent is able to make suitable arrangements for his or her children's care." (Id. at p. 212.) Both In re S. D., supra, and In re Aaron S. stand for the common sense conclusion thatwhere the incarcerated parent requested that the child be placed in a relative's care, and the child is actually placed in that relative's care, there is no basis for a finding that the parent was unable to arrange for care.
The additional cases cited by Daniel do not encompass a review of a juvenile court's ruling that a child is subject to the court's jurisdiction based on the parent's incarceration and inability to arrange for care of the child. Thus, for example, In re J.O. (2009) 178 Cal.App.4th 139 and In re Matthew S. (1996) 41 Cal.App.4th 1311 addressed the sufficiency of the evidence to support a ruling that the father was subject to the juvenile court's jurisdiction because his child had been left without any provision for support under section 300, subdivision (g), while In re Isayah C., supra, 118 Cal.App.4th 684 concerned the sufficiency of the evidence to support the disposition order denying custody to a non-offending parent under section 361, subdivision (c). These cases provide no assistance to this court in reviewing the issue before us on this appeal.
In short, although Daniel identified his sister as a person who could take care of Melissa during his incarceration, the trial court was not prepared to place Melissa in Rosa's home. Rosa was a total stranger to Melissa, who, quite understandably, was reluctant to accept the placement. Moreover, five adults already resided in Rosa's three-bedroom house, raising questions about the suitability of the proposed housing. Substantial evidence supports the trial court's rejection of father's proposed alternative care for Melissa.
DISPOSITION
The order is affirmed.
We concur: TURNER, P. J., MOSK, J.