Opinion
F080882
10-27-2020
In re LIAM C., a Person Coming Under the Juvenile Court Law. MERCED COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ALLISON T., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. James N. Fincher, County Counsel, and Maile C. Dunlap, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 19JP-00097-A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Donald J. Proietti, Judge. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. James N. Fincher, County Counsel, and Maile C. Dunlap, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Franson, J.
-ooOoo-
Allison T. (mother) appeals from the juvenile court's October 15, 2019, jurisdiction and dispositional orders. Mother contends there is insufficient evidence to support the jurisdictional findings against her under Welfare and Institutions Code, section 300, subdivision (b), and the dispositional findings removing minor Liam C. from her custody. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
In the summer of 2019, mother lived with her five-year-old daughter, B. Mother claimed she primarily lived at maternal grandparent's home but, at times, with B.'s father, S.M. Maternal grandmother described the arrangement as mother living there only part-time. Searches through the county eligibility system showed mother to be homeless several times, most recently beginning in September 2018. Mother's three-year-old son, Liam, lived with his father, Jason C. (father), under a family law custody order which gave father sole physical custody and authorized mother weekend visits.
On August 1, 2019, the Merced County Human Services Agency (agency) received a referral alleging Liam, who lived with father, was being neglected or at risk of harm. Police officers received reports of multiple gun shots near father's home, and shell casings and a gun were found in the home. Father was arrested and placed in custody on various weapons charges. Father was alleged to have drug abuse and mental health issues. Liam was taken into protective custody at 4:00 a.m. and placed in an emergency foster home.
Mother testified that when she was contacted about Liam's removal, she was unable to meet with the agency as she was with a friend who needed a ride for dental treatment. Mother was not forthcoming about her living situation, did not allow the agency access to her home, did not maintain regular contact with the investigating social worker and did not drug test, as requested. Detention
On August 2, 2019, the agency filed a section 300 petition, alleging Liam was at risk of harm, pursuant to subdivisions (b)(1) and (g). The petition alleged specifically that Liam was in need of court protection due to father's weapons use at his home, and mother's mental health history and previous contact with the department.
At the detention hearing on August 5, 2019, mother was present with counsel. She requested custody of Liam but acknowledged her need to drug test and cooperate with the agency. The juvenile court found the agency established a prima facie case that Liam was in need of care and protection and temporarily removed him from parental custody. Mother was ordered to have visitation and required to submit to drug testing. The jurisdiction and disposition hearing was set for August 28, 2019. Jurisdiction/Disposition
The reports prepared for jurisdiction/disposition reported that, from 2004 to 2010, mother was married to A.G., and had two children with him. The relationship involved domestic violence. She was then married to A.T. from 2011 to 2016. She had her two children living with them, and she lost custody of the children due to domestic violence in her relationship with A.T.
Sometime later, mother became involved with father and they had Liam together in 2016. After Liam's birth, mother began exhibiting erratic behavior, due to an incident with her own mother, the difficulty associated with caring for B., whom she claimed had developmental delays, and in caring for Liam, who mother reported cried frequently for long periods of time. Social services became involved and, due to mother's mental health issues, father was given custody of Liam. The March 2, 2017, custody order gave mother weekend visits. According to father, mother was a good mother and spent almost every weekend with Liam. He reported mother had no mental health or substance abuse issues.
A social worker met with mother on August 16, 2019. Mother revealed her relapse into drug use earlier that summer and informed the social worker she had already scheduled an intake appointment for a drug recovery program. Mother acknowledged knowing of father's criminal history but claimed not to be aware of his criminal activities. Mother's drug test from August 5, 2019 was positive for amphetamine and methamphetamine.
An August 22, 2019, amended petition refined the language as to the claims regarding father's mental health.
By September 2019, Liam remained in foster care, where he was in good health, developmentally normal, and appeared to be emotionally sound. Mother was visiting Liam once a week, supervised. Mother asked that maternal grandmother be considered for placement for Liam.
At the contested jurisdiction/disposition hearing on October 15, 2019, mother testified in opposition to the agency recommendations. Mother testified that she had lived with maternal grandmother for seven years, with short episodes of living elsewhere. Mother testified she had a room for Liam at maternal grandmother's house. He had lived with her there previously for three years, and mother testified he was bonded to his sister, B., as the two were only 18 months apart.
Mother acknowledged she had a drug use problem but had been enrolled for about a month at a drug rehabilitation program under the supervision of a therapist. She acknowledged refusing to submit to a drug test in September, stating her counselor advised her not to drug test without being notified. She had not yet signed authorization papers for the program to release information to the agency. Mother stated she did not use methamphetamine regularly, claiming to have done so for the first time on August 1, 2019. She acknowledged that drug use could affect parenting, but she did not believe it was impacting her presently as she was in a program.
Mother testified that she was willing to participate in services, was enrolled in a parenting class, and had an intake appointment scheduled for mental health services. According to mother, she had had a mental health assessment in the past which concluded no mental health treatment was necessary.
At the conclusion of the hearing on jurisdiction, the juvenile court found mother not credible regarding her housing situation, her substance abuse, and her shared custody arrangement. It found the agency had established, by a preponderance of the evidence, that Liam came within the provisions of section 300. The juvenile court found mother "in desperate need to receive supervised services," and ordered the agency to provide mother with family reunification services and visitation.
As to disposition, the juvenile court found the agency had established, by clear and convincing evidence, that Liam's care and custody required that he be removed from parental custody, due to mother's mental health problems and father's criminal activity and mental health issues, and declared a dependent of the juvenile court. The juvenile court found that all reasonable efforts had been made to prevent or eliminate the need for Liam's removal.
DISCUSSION
I. SUBSTANTIAL EVIDENCE SUPPORTS THE COURT'S JURISDICTIONAL FINDING AGAINST MOTHER
Mother contends that the juvenile court's jurisdictional findings against her are not supported by substantial evidence. We disagree.
As an initial matter, we address the issue of whether we should decline to consider the jurisdictional challenge because only one statutory basis was necessary for the juvenile court to assert jurisdiction and mother only challenges the jurisdictional findings against her, and not against father.
"Because the juvenile court assumes jurisdiction of the child, not the parents, jurisdiction may exist based on the conduct of one parent only. In those situations, an appellate court need not consider jurisdictional findings based on the other parent's conduct." (In re J.C. (2014) 233 Cal.App.4th 1, 3.) Nevertheless, we may exercise our discretion to reach the merits of the other parent's jurisdictional challenge where "(1) the jurisdictional finding serves as the basis for dispositional orders that are also challenged on appeal; (2) the findings could be prejudicial to the appellant or could impact the current or any future dependency proceedings; and (3) the finding could have consequences for the appellant beyond jurisdiction." (Id. at p. 4.)
Here, the jurisdictional findings against mother are also a basis for the dispositional orders challenged on appeal. We thus exercise our discretion to consider the merits of mother's challenge to the jurisdictional finding pertaining to her but conclude that substantial evidence supports that finding.
With respect to mother, the juvenile court made a jurisdictional finding pursuant to section 300, subdivision (b)(1), which cited mother's mental health issues and history with the department. Mother contends there was insufficient evidence to support such a finding. We disagree.
The juvenile court's jurisdictional findings are determined by a preponderance of the evidence. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) The appellate court reviews the findings for substantial evidence. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) Under this standard, "we view the record in the light most favorable to the juvenile court's determinations, drawing all reasonable inferences from the evidence to support the juvenile court's findings and orders." (Ibid.) " 'The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed [the] other evidence." (In re Travis C. (2017) 13 Cal.App.5th 1219, 1225, citing In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Mother claims the agency failed to show that she suffered from mental health issues which placed Liam at risk of harm, alleging the allegation arose from circumstances which occurred in 2016. However, while mother claimed she had been assessed for mental health and needed no further treatment, she failed to provide proof of this. She also claims the agency failed to show that she failed to protect Liam from father, claiming he was the one who had primary custody and she was unaware of his criminal behavior. But she acknowledged she was aware of his criminal history. In addition, the juvenile court had before it evidence of mother's drug abuse and refusal to test, her refusal to cooperate with the agency at the time of Liam's removal, and her tenuous housing situation.
Although there must be a present risk of harm to the minor, the juvenile court may consider past events to determine whether the child is presently in need of juvenile court protection. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.) We conclude substantial evidence supports the juvenile court's jurisdictional findings as to mother.
II. SUBSTANTIAL EVIDENCE SUPPORTS THE ORDER REMOVING LIAM FROM MOTHER'S CUSTODY
Mother also claims it was erroneous for the juvenile court to order "removal" of Liam from mother's custody in its disposition order. We find no prejudicial error.
The dependency statutory framework distinguishes between a parent with whom the child was residing at the time a section 300 petition was initiated (custodial parent) and a parent with whom the child was not residing at the time (noncustodial parent). (In re Abram L. (2013) 219 Cal.App.4th 452, 460-461.) Section 361 governs removal of a child from a custodial parent whereas section 361.2 governs placement of a child with a noncustodial parent. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1422; In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1500; In re D'Anthony D. (2014) 230 Cal.App.4th 292, 303.) An order purporting to remove a child from the custody of a noncustodial parent is not authorized under the statutory scheme. (In re Julien H. (2016) 3 Cal.App.5th 1084, 1089 [court could not order child removed from father's custody if child was not residing with father at time petition filed]; In re Abram L., supra, at p. 460 [same]; In re Dakota J. (2015) 242 Cal.App.4th 619, 627-630 [error to order removal from parent who did not reside with child]; In re Anthony Q. (2016) 5 Cal.App.5th 336, 352 [same].)
The disposition report filed by the agency noted that section 361.2, subdivision (a) applied, as Liam did not reside with mother and she wished to have custody of him. The report recommended against this, stating placing Liam with mother would be detrimental to Liam. The juvenile court adopted these recommendations, finding that there were no reasonable means to protect Liam absent "removing him from the custody of the parent." While the juvenile court did not explicitly reference any statute, it repeatedly used the word "remove" to characterize its own order. Since it is undisputed that mother did not reside with Liam at the time the section 300 petition in this case was filed, the order purporting to "remove" Liam from mother's physical custody was erroneous.
However, despite the juvenile court's apparent error in ordering "removal" of Liam from mother's custody, reversal is not warranted unless the error was prejudicial. (In re D'Anthony D., supra, 230 Cal.App.4th at pp. 303-304 [error in failing to apply section 361.2 does not warrant reversal absent prejudice]; In re Nicholas T., supra, 217 Cal.App.4th at pp. 1507-1508 [same].)
As already noted, a noncustodial parent's request for placement after a child has been removed from a custodial parent or guardian is governed by section 361.2. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1820-1821.) Section 361.2, subdivision (a) provides that a child shall be placed with a noncustodial parent unless the juvenile court finds that doing so would be "detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2, subd. (a).) While the juvenile court does not specifically reference section 361.2 in its order, any error by the juvenile court in mischaracterizing its order as an order of "removal" is harmless where the juvenile court makes the requisite finding that would have supported denial of placement with mother.
Here, the juvenile court's detriment finding is supported by substantial evidence, contrary to mother's claim. The juvenile court's order denying a noncustodial parent's request for placement under section 361.2 requires a finding of detriment by clear and convincing evidence. (In re Luke M., supra, 107 Cal.App.4th at p. 1426.) Its finding of detriment is reviewed for substantial evidence. (Ibid.)
The juvenile court found mother's testimony not credible when testifying about where she lived, her history of drug use and her custody agreement for Liam. She claimed she lived with maternal grandmother and visited B.'s father. But maternal grandmother described mother as living with her part-time. Mother testified that she had signed releases of information and had her mental health assessment, which she claimed stated she had no need for treatment, but she did not provide these to the court. She also claimed she had an appointment that day for a mental health assessment. Mother claimed she shared custody of Liam with father, but her custody agreement was for visits only. She claimed not to use methamphetamine regularly, having only tried it recently by accident, and that marijuana was her drug of choice. She claimed to have started drug treatment a month ago but did not think her drug use affected her parenting. She failed to drug test initially, then tested positive, but then again refused to test, stating it was against her Constitutional rights, HIPPA and that she needed an okay from her counselor before doing so.
In determining whether or not to remove a child from parental custody, the juvenile court is also required to determine if reasonable efforts have been made to prevent or eliminate the need for removal and state on the record the facts that led the juvenile court to order removal. (§ 361, subd. (e).) Here, the juvenile court found no reasonable means to protect Liam and "[a]ll reasonable efforts have been made to prevent or eliminate the need for removal." While not specifically stating what reasonable efforts had been made to prevent removal, the jurisdiction and disposition reports, which the juvenile court read and considered, set forth the reasonable efforts, including service planning and referral.
"[W]here a child has a fit parent who is willing to assume custody, there is no need for state involvement unless placement with that parent would create a substantial risk of detriment to the child." (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1263, citing § 361.2, subd. (a).) The evidence presented at the contested hearing, as well as in the department's reports, all reflect that mother never gave the agency a chance to fully assess her to determine if she was a fit parent to assume custody. She was not available when Liam was first removed. While she stated at the detention hearing that she would like Liam to be released to her care, she acknowledged that she needed to drug test and cooperate with the agency. But she then failed to drug test and was equivocal about her drug use. She also failed to provide the mental health assessment she claimed to have, and she was not forthcoming about her living situation.
Such evidence, even when viewed in light of the clear and convincing standard of proof, constitutes substantial evidence in support of the juvenile court's finding that placement of Liam with mother would be detrimental to Liam's well-being.
DISPOSITION
The juvenile court's jurisdiction and disposition orders are affirmed.