Opinion
A131614
01-12-2012
In re JENNY M., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Plaintiff and Respondent, v. TIMOTHY M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. J40547)
INTRODUCTION
Timothy M. appeals from orders of the Solano County Superior Court finding his 16-year-old daughter Jenny M. to be a person described by Welfare and Institutions Code section 300, subdivision (b) and removing her from his care. (§ 361, subd. (c)(1).) He contends the orders must be reversed as the jurisdictional and dispositional findings were not supported by substantial evidence. He further contends reversal is required because the court's findings that the Solano County Department of Health and Social Services (department) had complied with the notice and active efforts requirements of the Indian Child Welfare Act (ICWA) were not supported by substantial evidence. In addition to arguing that substantial evidence supports the jurisdiction and disposition findings, the department asks us to take judicial notice of the September 9, 2011, return of Jenny to her father's care. The department contends such return renders moot any errors with regard to disposition and ICWA compliance. We agree that Jenny's return to father's care renders appeal of the disposition order and the ICWA issues moot. We shall affirm the jurisdiction order.
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code and all rule references are to the California Rules of Court.
BACKGROUND
Jenny is a developmentally delayed teenager who has a history of running away from home, drinking alcohol, getting into trouble with the police, and being exploited by others. She had lived with her father since she was two years old. Also living in the home were her three adult sisters and two uncles.
The detention report filed December 10, 2010, related that, on December 1, the police removed Jenny from an apartment where she was reported to have been staying with an adult male and being sexually exploited by him and his friends. She admitted to drinking to excess and passing out. Her parents decided she should reside with her mother for two to three weeks. She left her mother's home on December 6, and did not return. The parents did not contact law enforcement to report Jenny as missing. Father stated he was unaware she was gone until 11:00 p.m. the following night when mother notified him. On December 8, Jenny's aunt reported to the department that Jenny was missing. At the time the detention report was prepared, Jenny's whereabouts were unknown. The report recommended that the court detain Jenny out of home as her parents were unable to ensure her safety.
The detention report related Jenny's prior child welfare history, including that she had been sexually molested by her mother's boyfriend, while in her mother's care, and that reports had been received that Jenny had been in a sexual relationship with the mother's former boyfriend, who provided her alcohol, since at least June of 2008. Attached to the detention report were various reports, psychological assessments and police reports regarding Jenny, including a joint assessment report of the department and the Solano County Probation Department, Juvenile Services Division prepared in September 2010, as part of a section 241.1 evaluation of Jenny. At the time of the evaluation, Jenny was in custody at the county's juvenile detention facility, having failed to appear for a hearing relating to charges of petty theft (Pen. Code, § 484, subd. (a)) and battery on an officer and emergency personnel (Pen. Code, § 243, subd. (b)). The joint assessment report related that Jenny had been evaluated by two different psychologists who determined that she was incompetent and unable to understand the consequences or the purpose of the proceedings. It further related that Jenny had been hospitalized about one year before for attempting suicide, that she had been diagnosed in 2009 with depression, and was prescribed and had been taking Prozac. She had been recently diagnosed with an IQ of 63. The joint assessment report concluded that Jenny's "delinquency appears to be derived from lack of supervision in the home and due to her limited cognitive abilities." It recommended that Jenny be enrolled in school with a plan for her to stay with her paternal aunt (the aunt) or maternal grandmother after school until her father returns from work, and that her father be encouraged to comply with services offered through the North Bay Regional Center (Regional Center) and any voluntary services provided by the department. Father agreed to voluntary family maintenance services offered by the department at that time. Father also reported that he was temporarily working two jobs.
According to the December 10, 2010 detention report, father had been offered a voluntary family maintenance services case plan on October 13, 2010. The plan included securing counseling for Jenny, ensuring she had medical insurance, medication management, monitoring of her safety and provision for her special needs by working with the Regional Center. Father had refused to follow through with the services offered by juvenile probation, the Regional Center, the department and Jenny's school. The Regional Center case manager stated she offered father the necessary paperwork for respite care and day care services. If these services were in place, the father would be allowed to secure medical insurance for Jenny based on her special needs. (Emergency Medi-Cal would allow Jenny to receive mental health counseling, medication evaluation and management.) Father did not follow through with the request and did not turn in the necessary paperwork and the aunt stated she did not follow through with that paperwork because Jenny was not in her home, was running away, and she did not want to take money from the state under fraudulent means. Father admitted he was aware Jenny had not attended school regularly for a long time. Jenny's Individualized Education Plan (IEP) placed her in a special day class for children with developmental difficulties and the school district had offered door-to-door transportation to and from school. Jenny's aunt had attempted to ensure Jenny attended school by providing supervision after school, but Jenny either did not attend school or left the school area without permission after a few periods. While Jenny's whereabouts were unknown on many days, neither the aunt nor father would call law enforcement, as they believed it would do no good.
Father stated he was aware of Jenny's special needs, her alcohol abuse, attempted suicide in March 2009, lack of insurance, lack of medication, and failure to attend school. He stated he works 12 hours a day and observed that Jenny wants to be like her older sisters and have a boyfriend and that she leaves home because she is home alone. He stated he would not be in court to address the detention and would find it difficult to participate in services. Father "further stated that he has been available for his daughter during her probation court dates, juvenile hall, three . . . days of mental health treatment at Kaiser in 2009, her running away and her refusal to cooperate with him and his sister [Jenny's aunt]. He stated he is 'done' trying to protect her [Jenny], as he has to work . . . 12 hours a day and is not at home. He further stated Jenny does not listen to him and does as she pleases and has for the past two . . . years. [Father] questioned whether Jenny could be arrested for her actions or at least placed in a secure environment to keep her safe." "On December 8, 2010, [father] stated he has been there for his daughter for all of her probation and criminal actions and he does not believe he can control his daughter. [H]e expressed his desire for his daughter to be in a secure facility."
The detention hearing was held on December 13, 2010, and Jenny was detained out of home.
The jurisdiction report filed February 8, 2011, related that Jenny was detained on December 13, 2010, and was placed at a group home in Sacramento on December 14. The department recommended her detention be continued and that the court exercise its jurisdiction over Jenny, finding true allegations under section 300, subdivision (b), as to father as follows:
"b-1) The father . . . , is unable to adequately supervise and protect the minor . . . , who is developmentally delayed and has mental health issues, from the child's dangerous behaviors, including: chronic runaway and teenage prostitution. The parent's inability to protect places the minor at substantial risk of serious abuse and illness."
"b-2) The father . . . , has failed to follow through with needed services for the minor . . . . Such services have been offered through the Probation Department, Child Welfare, the minor's school and North Bay Regional Services. The parent's actions place her at substantial risk of abuse and neglect."
Supporting evidence cited in the jurisdiction report included a summary of the prior child welfare history for Jenny, including three referrals that speak to her contact with the mother's former adult boyfriend and his alleged sexual involvement with her, as well as her drinking of alcohol with him; a December 1, 2010 report on her involvement with prostitution; a referral documenting concerns with her school attendance and father's lack of proper supervision; as well as reference to unsuccessful termination of voluntary family maintenance offered to father. The report referenced the psychological assessments and their conclusions and police reports describing an incident where the mother's 38-year-old former boyfriend was seen by a witness having sexual intercourse with an intoxicated Jenny; a runaway report dated August 6, 2010, filed by father and one filed October 21, 2010, by her aunt; reports by Jenny of alleged sexual assaults by different men at various times, and numerous police contacts relating to Jenny's being involved in sexual relations with adult men. The report also described an individual with whom Jenny had been in contact over the past three months, who solicited her to perform sex acts. She acknowledged having sex with a number of strange men and that she will exchange sex for alcohol. The contact log for Jenny from the police department dated from March 2003 until December 2010, contained 33 contacts for her, of which four were for runaway. During the 2010 school year, she was enrolled for 57 days, but only attended 14 days. Of those 14 days, she attended only two full days. On January 15, 2011, the group home in which she had been placed took the children out to a local bowling alley. Jenny asked to use the bathroom and left the bowling alley. A missing persons report was filed and Jenny returned to the group home on January 18, 2011. Jenny reported she was doing very well at the group home since her return on January 18, 2011, and attributed this to being able to attend school as of January 24, 2011.
Father "consistently reported that his daughter would not run away from home but that she would run away from school." He agreed she needed higher level of supervision. He was aware of and very concerned about her sexual encounters with adult males. He stated he had attended the majority of Jenny's school IEP meetings. He also maintained that the social worker never followed through with voluntary family maintenance services, failing to meet with the family in late October 2010, to provide mental health service referrals. He reported that he had Kaiser for Jenny through his employer. He stated he had requested help getting Jenny involved with extra curricular activities and the social worker never followed through. He also reported Jenny was not actually eligible for Regional Center services until September 2010, and nothing happened with them until Jenny went down hill. Father had signed the case plan on October 13, 2010. The representative of the Regional Center reported that she worked with Jenny when Jenny was in father's home. She reported doing the assessment and trying to provide respite and day care services for the family, but father never followed through on the paperwork for these services to begin. Jenny's aunt reported she attended school IEP meetings at times, but that father would sometimes attend. She reported that the Regional Center workers never followed through with getting services into place and that she was prepared to help father raise Jenny and was okay with Jenny coming to her home after school. The school counselor confirmed Jenny's sporadic attendance at school. She reported that father had attended about half of the IEP meetings and that the aunt had attended in his place more recently. On February 2, 2011, a staff member of the group home reported Jenny was doing very well there since her January 18, 2010 return from running away. The jurisdiction report commended father "for his regular visitation with his daughter as it is clear that he does care and love his daughter." It also commended him for the fact "that he works very hard to support his family." The report stated the "current concerns that remain are that the father does not have a realistic expectation for his teenage daughter, and especially does not have realistic plans for her supervision and care given her developmental needs, vulnerability, and negative life experiences thus far." The department recommended that father work with the social worker, the mother and the paternal aunt to develop a concrete supervision plan before the child's return. The social worker opined that "the risk for further abuse and neglect of this child remains high." Without further court involvement the parents will not put a supervision plan in place that will provide a reasonable attempt to prevent Jenny from running away and being further victimized.
The report also related that the mother "has had limited involvement in her daughter's life" over the 14 years that Jenny had lived with her father. Jenny reported she had regular contact with her mother via telephone and she sometimes would visit with her mother. A confidential pleading addendum report was also filed February 8, 2011, incorporating various police reports.
At the contested jurisdiction hearing held February 9, 2011, the court admitted into evidence the jurisdiction report and confidential addendum filed February 8, 2011, and the detention report and confidential addendum filed December 10, 2010. The sole witness was social worker Brian Bouknight. He testified that when a social worker met with father on October 13, 2010, regarding the case plan, father had already completed most of the objectives of the case plan. Of the remaining items, the social worker identified that father would complete paperwork at the social security office and make sure Jenny had an updated IEP. Jenny denied there was any abuse or neglect in her home and told the social worker that father tells her to go straight to her aunt's home after school. She didn't like staying at home, however, and would leave. She had stopped taking her medication, but knew her father wanted her back on it. Of the Regional Center paperwork components that father had failed to complete, the first was the Supplemental Security Income Medi-Cal for Jenny. The second component was to obtain respite/day care so that the aunt could be paid for taking care of Jenny. Father continued to believe that Jenny was not running away from his home, but from the school and he saw it as a school problem. Nor did he indicate how he thought the plan for after-school care of Jenny by the aunt would work any better than it had in December. Father suggested an ankle monitor. In Bouknight's review of the case notes, he saw no notations about father indicating any effort on father's part to personally supervise Jenny. After the Regional Center meeting was cancelled due to Jenny's juvenile hall detention, the Regional Center attempted to make contact with father to get services in place. However, the Regional Center case worker reported that she had made numerous attempts to contact father to get paperwork signed and put in place, but that was never accomplished. Jenny had reported that part of her wanting to run away was about being bored. Bouknight was unaware of any efforts made by father to set up extra curricular activities for Jenny while she was in father's care.
At the end of the jurisdictional hearing, the court took the matter under submission. On February 10, 2011, the court made its findings and order, finding as to father the allegations set forth in section 300, subdivision (b), allegation b-1, to be true by a preponderance of the evidence and finding the allegations stated in section 300, subdivision (b), allegation b-2, to be not sustained. The court found true the allegations of section 300, subdivision (b), allegation b-3, against mother. The court stated that Jenny "has a greater need of parenting supervision and direction than her parents can adequately provide. Her unmet needs creates a very high substantial risk of serious physical harm or illness." The court stated it did not view father in a critical light. The court concluded that father was able to meet his other daughters' needs, because of the lack of information concerning them. It also found father was aware of Jenny's needs and her behaviors. "He has made himself available to her school, probation, court, Juvenile Hall stays and mental health treatment. However, he states he is done trying to protect her as he has to work 12 hours a day and is not home. He has thought of her being arrested or at least placed in a secure environment to keep her safe. Despite his efforts, [father] is not able to provide [Jenny] with constant parental supervision, access to health and fulfilling relationship with peers, activities to keep her from being bored, enrollment in [a] school environment in which she can succeed and accountability for her own behavior." Regarding the ICWA, the court found that "[t]he child may be an Indian child, and notice of the proceeding and the right of the tribe to intervene was provided as required by law. Proof of such notice was filed with this court." It found "notice of the proceedings was provided to the Bureau of Indian Affairs as required by law. Proof of such notice was filed with this court." The court also found "[t]he Solano County Child Welfare Services has made active inquiries to obtain information regarding the child's Indian Ancestry" and "[t]he Department has exercised due diligence to determine the child's Indian ancestry and has complied with the notice provisions of the ICWA."
The February 23, 2011 disposition report recommended Jenny's detention be continued, that she continued to be adjudged a dependent child under section 300, subdivision (b), and that family reunification services be provided to father, Jenny, and the mother, with discretion in the department to return the child to either parent under a plan of family maintenance services. Jenny continued in her group home placement. Father reported he would like his daughter to return to his care and would like help with her receiving regular therapy and medication. On February 14, the social worker from the group home reported a concern that Jenny had been wandering off from the class and that she had been found earlier in the week by a school resource officer, behind the tennis courts with a boy. A Regional Center representative reported that she had gone to an IEP meeting regarding Jenny that was to occur at the high school on February 17, but the meeting did not occur as father was absent. Father had previously refused to sign the form allowing the IEP to happen without his presence, stating he would attend. Jenny was currently provided with weekly individual therapy at the group home. An addendum to the disposition report was filed March 25, 2011, describing the results of a family/permanency team meeting held on March 10, 2011, identifying problems and safety concerns and ways to mitigate them. Participants included Jenny, father, the aunt, Jenny's mother, her maternal grandmother, and representatives of the Regional Center, the group home, and department social workers. On March 22, Bouknight left a message for father regarding meeting with him about progress on key action items thus far. Bouknight was to meet with father at his home on March 28, to discuss father's progress. The department remained concerned that father was not willing to make changes in his life and schedule to meet Jenny's needs and be able to keep her safe in his care, and it continued to recommend Jenny remain in out of home care and that family reunification services be provided.
The contested disposition hearing was held March 29, 2011. Father could not be present as he had to work. Counsel appeared on his behalf. The court had read and considered the various reports and took judicial notice of testimony at the jurisdictional hearing. Social worker Bouknight testified once more. He testified that the parenting class that had been arranged for father had been cancelled and the other class of which he was aware didn't fit father's schedule. Bouknight was going to follow up to try to find a parenting class that would work for father's schedule. Bouknight testified about the family and permanency team meeting held March 10. At the meeting, weekend home passes for Jenny were discussed and agreed to. The Regional Center had access to classes more geared toward working with a child like Jenny and father was to call and check into those classes. At the meeting with father, the night before the disposition hearing, father told Bouknight that he did not have the phone number for the Regional Center worker and had not called in the preceding three weeks. Among the concerns that needed to be addressed were father's failure to attend IEP meetings. The aunt might be able to take his place at times, but she could not make decisions in his behalf, unless father gave her the ability to do so. They had discussed requesting a form from the school district to give her those rights at the meetings. The evening before the jurisdiction hearing, father told Bouknight he wanted Bouknight to locate a contact person at the school district for them and they did not feel they could contact the school until Jenny was enrolled. Bouknight opined that father's ability to take time from work to come to the IEPs was not where it needed to be. Bouknight stated he had begun to see some changes just beginning, including father's looking into activities for Jenny to be involved in while at home. Bouknight related that he heard nothing different from father regarding Jenny's running away, as father continued to believe the problem with Jenny running away was her running from school and that the school was not doing anything to prevent her from running away. He opined that nothing had changed enough to allow Jenny to return to her home at that point and that the same thing would happen were she to return home: she would run away, get into trouble, and be unsafe.
The department continued to recommend out of home placement, services to the family, and Jenny's eventual return home. Jenny's attorney advised the court that Jenny very much would like to return home to her father's care. However, her attorney asked the court not to make that decision at that time. Jenny's counsel stated that despite father's strong feelings for Jenny, he was "saying and doing the same things or saying the same things and not doing the same things that brought us here in December." Father's counsel requested that Jenny be returned to his care and that jurisdiction be terminated. Mother's counsel stated her support for Jenny's being returned to father. The court ruled it would follow the department's recommendation, finding that Jenny was still at risk, that father's parenting "does need to be improved before the risk is alleviated to the point where she can return home." The court ordered the continued detention of the minor, finding circumstances that justify her removal under section 361, subdivision (c)(1), by clear and convincing evidence. At the conclusion of the disposition proceedings, it found that Jenny might be an Indian child and that notice had been provided to the tribes and the Bureau of Indian Affairs (BIA) as required. The court also found that reasonable efforts had been made to prevent or eliminate the need for removal and that the department had made active efforts to find out about the child's Indian status. The court ordered reunification services for both parents, leaving it to the continued discretion of the department to place Jenny with either parent on five days notice. It advised the parties of their appeal rights.
This timely appeal followed.
DISCUSSION
I. Substantial Evidence Supports the Jurisdiction Order
A. Standard of Review
Father contends there was insufficient evidence to support the jurisdictional finding that Jenny is a person described in section 300. That finding must be supported by a preponderance of the evidence. (§ 355; rule 5.684(f).) Our review of this challenge to the sufficiency of the evidence is guided by familiar principles: In dependency proceedings, as in other areas of the law, when asked to review the sufficiency of the evidence, our power begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, supporting the conclusion of the trier of fact. We resolve all conflicts in favor of the respondent and we indulge all legitimate inferences to uphold the verdict, if possible. (In re Precious D. (2010) 189 Cal.App.4th 1251, 1258-1259; In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
The question is whether substantial evidence supports the finding that Jenny was, at the time of the jurisdiction hearing, a person described in section 300, subdivision (b). As we observed in In re Rocco M., supra, 1 Cal.App.4th at p. 820: "The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." B. Inability to Adequately Supervise or Protect—Parental Unfitness or Neglect
Section 300, provides in part: "Any minor who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] . . . [¶] (b) 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 or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse. . . ." (Italics added.)
Father maintains that there was no showing of parental unfitness or neglect on his part. He relies upon In re Precious D., supra, 189 Cal.App.4th 1251, a case, like this, involving an incorrigible teenager. There, the court held "in light of the dependency statutory scheme and federal due process principles, parental unfitness or neglectful conduct must be shown in order to assert dependency court jurisdiction under that part of section 300(b) providing for jurisdiction based on the parent's 'inability . . . to adequately supervise or protect the child.' " (Id. at p. 1254.)
In In re Precious D., supra, 189 Cal.App.4th 1251, 17-year-old Precious lived with her mother and two half sisters. "When Precious was 16 years old, she started associating with the 'wrong crowd,' talked to 'older guys' on the phone, met up with people she met on the phone, misbehaved, missed classes, and started running away from home. [Her] mother suspected that Precious was engaging in prostitution, but Precious denied it." (Id. at p. 1254.) Each time Precious had run away from home, the mother had filed a police report, except for the second time when mother thought that Precious would come right back. (Id. at p. 1257.) On one occasion the mother searched Precious's room to find out where she was staying, mother and other family members went looking for her, showing her picture and asking people about her. The mother sent Precious to live with her maternal aunts on two occasions, but Precious ran away from their homes. (Ibid.) In March 2009, Precious ran away and refused to return home. (Id. at p. 1254.) The mother said she had " 'tried everything with Precious,' " wanted Precious to come home, but wanted her to get some help first. (Id. at p. 1257.) Precious's mother acknowledged she needed support to help her address Precious's mental health needs. (Id. at pp. 1254, 1257.) The mother signed a voluntary family reunification contract and Precious was placed in a foster home. She ran away the next day. Precious was placed in a second foster home where she continued to act out, leaving without permission, refusing to follow house rules, skipping classes, and sending threatening and inappropriate messages to her family. The mother and Precious spoke by telephone daily, but Precious refused to see the mother or her half sisters. (Id. at p. 1255.) During a psychiatric assessment, Precious stated she wanted to hurt herself and was admitted to a psychiatric hospital on a 72-hour hold. She was diagnosed with major depression, but released three days later, without medication being prescribed. A team decision-making meeting was held to determine whether Precious needed a higher level of care or whether she could be returned home with intensive services. A safety plan was created including family therapy and placement of Precious in a group home where appropriate mental health services would be provided. Placed in the group home, Precious continued to threaten to run away. She was suspended from school because of her disruptive behavior. (Id. at pp. 1255-1256.) The mother felt she was in need of services to help her control Precious's behaviors and expressed a willingness to participate in reunification services. Family therapy called for by the safety plan was never initiated because Precious refused to see her mother. (Id. at p. 1257.) The juvenile court denied mother's request to dismiss the petition and its assertion of jurisdiction, finding a substantial risk of physical harm based on Precious's "behavior of running away, being AWOL [absent without leave], being incorrigible, and her mother has the inability to supervise or protect her daughter because the parent, the mother, and the daughter are not communicating." The court concluded that Precious was at risk of being abused or neglected, "some of which is through her mother's inability to control her and some of which is Precious's behavior of not wanting to comply." (Id. pp. 1257-1258.) As to the disposition, the department agreed a parenting class would not benefit mother and the court acknowledged that " 'we're all very clear that the issue's Precious, not [Mother].' " (Id. at p. 1258.)
The Court of Appeal reversed the jurisdiction and disposition orders of the juvenile court, concluding substantial evidence did not support the jurisdictional finding where the only finding that could be construed as critical of the mother's parenting skills or conduct was that she and Precious were not communicating—a finding that was not supported by the record, which showed they were in daily telephone contact. Further, the "jurisdiction/disposition report noted as a family strength that there was 'open communication between the mother and the child, despite the current circumstances.' " (Id. at p. 1259.)
Although similar in many respects to the facts in this case, there are critical distinctions between the attitude and conduct of the mother in In re Precious D., supra, 189 Cal.App.4th 1251, and that of father here, such that substantial evidence supports the court's finding of jurisdiction over Jenny. In In re Precious D., there was no indication the mother was not available to supervise Precious. She actively tried to locate Precious when she ran away. She tried everything she could to help her daughter. She wanted to participate in services and asked for help to meet her daughter's health needs. (Id. at pp. 1254, 1257.) "DCFS [the Department of Children and Family Services] admitted that it sought dependency court jurisdiction because of Precious's incorrigible behavior and her need for court-ordered services, not because of any neglectful conduct by Mother." (Id. at p. 1259.)
Here, father did not think he could control Jenny. When she ran away he did not file police reports because he believed it would be "no use." Of Jenny's 33 contacts with the police department, only four were reports that Jenny had run away. Father made no effort to know where she went or to control her behavior, other than telling her to stay home, stay away from the men who assaulted and exploited her, and to stop drinking. When she got into trouble, he took her phone away. He knew Jenny had friends, but did not ask her about them because she did not like him asking. Historically, he relied on Jenny's aunt and Jenny's adult sisters to provide supervision while he was at work. This plan was demonstrably unsuccessful. He relied on Jenny's aunt to pick Jenny up from school and take her back to the aunt's house. However, on most days, Jenny did not even go to school and when she did, she would leave school before the end of the school day and often leave her aunt's home. Jenny's older sisters regularly left her home alone. In implementing a voluntary family maintenance plan to help the family following Jenny's arrest for theft, the department stated it believed Jenny's delinquency resulted from a lack of supervision in the home, as well as her limited cognitive abilities. By the date of the jurisdiction hearing, father had been offered extensive services, by the school through Jenny's IEP, as well as referrals by the department, including mental health evaluations, counseling, medication and food stamps. The Regional Center offered services, to include respite care, but father never followed through with the paperwork, despite numerous requests. The Regional Center case manager referred to this as "one of her hardest cases" as a result of father's lack of follow through.
Unlike Precious D., supra, 189 Cal.App.4th 1251, where the court and the department acknowledged that the problem was not attributable to the mother, but solely to Precious and her mental health and incorrigible behavior, here there was ample evidence that father's conduct—particularly his failure to be present for Jenny or to arrange for consistent and constant supervision—contributed mightily to the problem. Further, as was not the case with the mother in Precious D., father's attitude contributed to his inability to supervise or protect Jenny. The jurisdiction report relayed the social worker's concerns that father "does not have a realistic expectation for his teenage daughter, and especially does not have realistic plans for her supervision and care given her developmental needs, vulnerability, and negative life experiences thus far." Father appeared to have difficulty accepting that Jenny's capacity is limited. After she was detained in juvenile hall, father was concerned about her prolonged stay there. When asked about Jenny's behaviors, he stated he hoped she had learned her lesson and would stay out of trouble. Father also stated to the social worker that he was " 'done' trying to protect" Jenny. We find substantial evidence on this record for finding father neglectful and for the court's jurisdictional finding that father was not able to adequately supervise or protect Jenny. Such evidence includes father's statement, that he was " 'done' trying to protect" her, taken in conjunction with his working 12-hour days, his telling the social worker he had considered having Jenny arrested to keep her safe, his belief that notifying police when she ran away would do no good, his refusal to inquire about her friends because she would not like it, his failure to require her to attend school, while blaming the school, rather than his own insufficient supervision efforts, and his failure to attend many of Jenny's IEP meetings or to give authority to the aunt to act for him. C. Additional Substantial Evidence Claims
Father also contends the jurisdiction finding was not supported by substantial evidence because the court: (1) improperly attributed failures to father that were a direct result of his poverty; (2) improperly attributed to father, a responsibility that was the school's and not his; (3) improperly considered emotional harm; (4) impermissibly speculated that father could provide constant parental supervision; (5) indulged the unsupported conclusion that father had failed to engage in available services; and (6) improperly based its decision on father's statement that he was "done" trying to protect Jenny, where the statement did not apply at the time of the jurisdiction hearing. We disagree.
First, we reiterate that we are conducting a substantial evidence review. Even if the court relied in part on factors not sufficiently supported by the evidence, the presence of other evidence supporting the court's jurisdictional findings would suffice. Moreover, we believe the factual findings of the court were supported and warranted the sustaining of jurisdiction over Jenny.
1. The court did not improperly attribute to father failures that were a direct result of his poverty. This is not like In re G.S.R. (2008) 159 Cal.App.4th 1202, in which the court terminated parental rights because of father's homelessness, which flowed directly from his poverty. Arguably, almost any failing of an impoverished parent may be attributed directly or indirectly to their poverty. Here, however, the court based its jurisdictional finding on father's conduct and his attitude, not his poverty, if in fact he was impoverished. As described above, father was offered numerous community services and there is no evidence he was expected to pay for anything. Nevertheless, he found it difficult to avail himself of these services. He was not penalized for working, as he suggests. The court commended him for providing for his family. Nevertheless, father chose to work two jobs and overtime, keeping him out of the house for 12 hours per day. Father shared a home with his adult daughters and two of Jenny's uncles, but was still unable to provide adequate supervision. Father has not established that the finding of jurisdiction was attributable to his poverty.
It is worth noting that Jenny's need for constant supervision began as early as July 2007 and continued thereafter. Father was laid off on May 8, 2008, and only began his current jobs in April 2010. The record does not indicate why he was unable to supervise her during the time he was unemployed.
2. Nor did the court base its findings on responsibilities that were the school's, rather than father's. The court found that, despite his efforts, father was not able to provide Jenny with constant parental supervision, access to health and fulfilling relationship with peers, activities to keep her from being bored, enrollment in a school environment in which she can succeed and accountability for her own behavior. Father contends that the responsibility for ensuring Jenny succeeds in school was the school district's and not father's. We view the court's finding as reflecting the court's concern that Jenny was not attending school and that father was not ensuring that she even got to school in the morning. Although father maintained he attended IEPs, evidence was presented that at least half of the IEPs were attended by the aunt, who had no power to make decisions on his behalf, so nothing could be implemented. Father does not explain why he did not take advantage of the school's offer of door-to-door transportation.
3. Nor did the court improperly base it's finding on emotional harm to Jenny. Although it referred to father's inability to provide Jenny with "access to health and fulfilling relationship with peers, activities to keep her from being bored," jurisdiction was firmly based on the court's finding that Jenny "has a greater need of parenting supervision and direction than her parents can adequately provide. Her unmet needs creates a very high substantial risk of serious physical harm or illness." This is not a case where the court based jurisdiction on emotional harm to Jenny. Rather, there was evidence of a direct and real threat of serious physical harm to Jenny from father's inability to provide the supervision and protection she needed.
4. Nor was the jurisdictional finding improperly based on speculation that father could provide constant supervision in the future, with assistance by the department. At the time of the jurisdiction finding, it was undisputed that Jenny needed constant supervision. It was also undisputed that father worked two jobs and overtime and had no concrete plan for supervising Jenny, other than the same arrangement of relying on Jenny's aunt that had failed in the past. Father presented nothing to suggest he would do things differently or seek other means to supervise Jenny in the future. The court's findings were not based on mere speculation, but on its realistic view of what would happen should Jenny return without a concrete plan for her supervision in place.
5. Father mistakenly asserts that jurisdiction was based on an unsupported conclusion that father had failed to engage in available services. The court did not base jurisdiction on the allegation b-2, that "father . . . , has failed to follow through with needed services for the minor . . . . Such services have been offered through the Probation Department, Child Welfare, the minor's school and North Bay Regional Services. The parent's actions place her at substantial risk of abuse and neglect." Rather, the court sustained the jurisdictional allegation b-1, that "The father . . . , is unable to adequately supervise and protect the minor . . . , who is developmentally delayed and has mental health issues, from the child's dangerous behaviors, including: chronic runaway and teenage prostitution. The parent's inability to protect places the minor at substantial risk of serious abuse and illness."
Although the court determined that the evidence did not warrant sustaining jurisdiction on the basis of b-2, the record contains substantial evidence that father did not avail himself of services that were offered through various resources, including the offer of respite care through the Regional Center and transportation through the school. He attended only half of the IEPs and did not give the written authorization to allow Jenny's aunt to agree to actions on his behalf. This evidence further supports the findings made by the court under b-1 that father was unable to supervise and protect Jenny, placing her at substantial risk.
6. Father claims that his previous statement that he was " 'done' trying to protect" Jenny, was impermissibly used by the court in finding jurisdiction. We disagree. Although it may be that father's attitude had changed in the two months between Jenny's detention and the jurisdiction hearing, that determination was for the trial court. Any conflict in the evidence was for the trial court to resolve and the court could well have concluded that the comment, taken in context, reflected an underlying attitude by father that he could not supervise and protect Jenny and that he was unwilling or unable to make the efforts that would be required to do so.
We conclude that substantial evidence supports the court's jurisdictional finding.
II. The Appeal of the Disposition Order is Moot
Father contends the evidence is not sufficient to support the disposition order continuing to remove Jenny from his custody.
Before filing its respondent's brief in this appeal, the department notified this court that after the six-month pre-permanency hearing, the department had placed Jenny with her father pursuant to the authority given it by the court in orders filed following disposition and the juvenile court had ordered Jenny returned to the physical custody of father by an order filed September 9, 2011. (It appears that Jenny was returned to father after she went AWOL from her group home placement.) Father agreed to a "Safety Plan" containing various conditions allowing him to maintain Jenny safely in his home with family maintenance services.
Among other things, father agreed to enroll her into high school in a specific district and to transfer Jenny's mental health and psychiatric services to Kaiser as soon as Jenny returned from being AWOL, to contact the Regional Center to receive behavioral support services as soon as she returned and to participate in offered services, to complete all necessary paperwork and be present for all meeting related to Jenny's IEP, to ensure Jenny attends school daily or that she has an appropriate excuse, and to submit an application for her at a specific after-school program. Father took responsibility for supervising Jenny at all times and/or making arrangements for her aunt or other responsible adult to supervise her. He agreed not to allow her access to her iPod or to his cell phone.
The department provided copies of the juvenile court's "Findings and Orders" filed on that date, requesting that we take judicial notice of the same and contending that return of Jenny renders issues raised by father moot, except for his challenge to the jurisdiction of the juvenile court. We take judicial notice of the "Findings and Orders" filed September 9, 2011. (Evid. §§ 459, 452, subd. (d).)
Father's challenges to the disposition order are moot. As explained by Witkin: "An action that involves only abstract or academic questions of law cannot be maintained. [Citation.] And an action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal would be without practical effect, and the appeal will therefore be dismissed." (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 749, p. 814.)
The group home placement has been superseded by the return of Jenny to father. Reversal of the disposition order would have no practical effect. "[A] reviewing court may exercise its inherent discretion to resolve an issue rendered moot by subsequent events if the question to be decided is of continuing public importance and is a question capable of repetition, yet evading review. [Citations.] We decide on a case-by-case basis whether subsequent events in a juvenile dependency matter make a case moot and whether our decision would affect the outcome in a subsequent proceeding. [Citations.]" (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.) Father's challenge to the disposition findings and order removing Jenny from his care do not raise issues of general public interest or matters likely to affect his future rights. (Compare In re Michael D. (1996) 51 Cal.App.4th 1074, 1081, fn. 2. )
Father contends return of the child while jurisdiction continues does not moot his appeal. That is true with respect to his challenge to jurisdiction, which continues; but is not the case here with respect to his challenge to the court's out-of-home disposition order.
Father contends the issue is not moot because Jenny could be re-removed from his custody under a section 387 supplemental petition without the need for a new finding by clear and convincing evidence. None of the cases cited by father support this claim. Rather, In re Paul E. (1995) 39 Cal.App.4th 996, 1001-1003, expressly rejected the claims of the social services agency that section 361 does not apply to supplemental petitions filed under section 387 [where the child is not removed from the parental home when the court initially established dependency jurisdiction, the supplemental petition is not a "new" adjudication of dependency and the same protections that govern removal of a child from parental custody the first time around should remain in effect]; see also Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1077 ["The standard for removal on a supplemental petition is the same as removal on an original petition: the agency must show by 'clear and convincing evidence . . . [t]here is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor' if left in parental custody 'and there are no reasonable means by which the minor's physical health can be protected without removing the minor from [parental] physical custody.' (§ 361, subd. (c)(1))"]; but cf. In re A.O. (2010) 185 Cal.App.4th 103, 111-112 [stating that section 361 does not always apply at the disposition phase of a hearing on a section 387 petition where the standard was met on the initial removal and detention, but concluding that the court had applied the clear and convincing standard on the section 387 petition].) Should Jenny be removed from father's custody in the future, the juvenile court will have to reconsider Jenny's suitable placement under the facts and circumstances that exist at that time.
Nor are we persuaded by father's other claims that the detention order is not mooted because re-removal would affect the length of time he would be able to receive reunification services. (See In re N.M. (2003) 108 Cal.App.4th 845, 853-854.) "The fact a parent had custody during part of the total period does not stop the limitation period in section 361.5 from continuing to run." (Id. at p. 854.) We fail to see how reversal of the disposition order would restart the clock on services here, which run from the date of the jurisdictional hearing or 60 days after the child was initially removed from parental custody, whichever is earlier. (§§ 361.5, subd. (a)(1)(A), 361.49.)
Father also contends he could be subjected to substantial reimbursement costs pursuant to section 903, subdivision (a), if the removal order is not reversed, but instead found to be moot. This assertion is entirely speculative and we are not persuaded the statute is likely to be applied to this father, given that it is imposed only on persons with the ability to pay. (§ 903, subd. (c).)
III. ICWA
Father contends the record does not support the court's findings that the provisions of ICWA have been satisfied. The department contends that any failure to comply with the provisions of ICWA was harmless error, as Jenny was returned to her father's care. We conclude that father's ICWA challenge was mooted by the return of Jenny to his custody.
ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912; Welf. & Inst. Code, § 224.) By its terms, the notice and substantive provisions of ICWA apply only when foster care placement is sought. (25 U.S.C. §§ 1903(1)(i), 1912(a); Welf. & Inst. Code, §§ 224, subd. (b), 224.1, subd. (d).) Because the juvenile court has returned the minors to appellant and foster care is not sought, the provisions of ICWA are no longer in play. Should Jenny be removed again in the future, appellant may raise the issue of possible further compliance with the juvenile court at that time.
DISPOSITION
The jurisdiction order is affirmed. The appeal from the disposition order is dismissed as moot.
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Kline, P.J.
We concur:
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Haerle, J.
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Richman, J.