Opinion
E070385
07-06-2018
A.S., Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest.
Marla C. Mahoney for Petitioner. No appearance for Respondent. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath D. Shettigar for Real Party In Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWJ1800032) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Judith C. Clark, Judge. Petition denied. Marla C. Mahoney for Petitioner. No appearance for Respondent. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath D. Shettigar for Real Party In Interest.
Petitioner A.S. (Mother) has filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, claiming that the juvenile court's jurisdictional findings under Welfare and Institutions Code section 300, subdivisions (b) and (g), and the court's finding of detriment to deny reunification services under section 361.5, are not supported by substantial evidence. For the reasons set forth below, we deny Mother's writ petition.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
On January 12, 2018, the Riverside County Department of Public Social Services (the Department) filed a section 300 petition on behalf of six-month-old K.P.
The Department received an immediate response referral that Mother was arrested for murdering K.P.'s father and her cousin. Mother was booked on January 10, 2018, for two counts of Penal Code section 187, felony murder, with special circumstances and was being held on two million dollars bail. Her release date was unknown.
Mother provided contact information of relatives for possible placement of K.P.; he had been in mother's care at the time of her arrest. Law enforcement requested that the child remain out of relative care due to the sensitive nature of the investigation, the fact that the families of the victims and the alleged perpetrators were "heavily enmeshed," and for safety concerns from placing K.P. with a relative. The maternal grandfather stated that his home was "divided" because one of the victims was his wife's niece; his daughter, Mother, was the alleged shooter.
On January 17, 2019, the juvenile court made detention findings and denied visitation to Mother. The court ordered immediate assessments of various relatives for placement.
On January 18, 2018, K.P. was placed with his paternal grandmother (PGM). K.P.'s father had held himself out to be the biological father of K.P., and PGM had been involved with K.P. since his birth and had bonded with the child. A DNA test later confirmed paternity. Therefore, the court entered judgment of paternity for Father. In PGM's care, K.P. ate well, was happy and adapted well to his new home.
On April 19, 2018, a contested jurisdiction/disposition hearing was held. The court found true allegation b-1, which stated that K.P. has suffered, or there will be a substantial risk that he will suffer, serous physical harm or illness, as a result or the failure or inability of his parent to supervise or protect the child adequately in that "[t]he mother has criminal history including but not limited to her arrest on January 10, 2018 for: two counts of PC 187—Murder and PC 190.2(a)(b)—Special Circumstances; such conditions place the child at risk of harm."
Mother offered stipulated testimony that "Mother loves [K.P.] very much. Mother was [K.P.'s] primary caretaker prior to her incarceration. And [K.P.] was an integral part of mother's extended family. And mother provided the social worker information about families that would have been available to care for [K.P.] during the course of mother's incarceration."
Mother's counsel requested that the juvenile court dismiss the dependency petition, citing In re S.D. (2002) 99 Cal.App.4th 1068 (S.D.). Counsel for the child and for the Department opposed Mother's request because Mother's criminal actions were much more severe than that of the parent in S.D., which involved check fraud.
The juvenile court found that it did have a basis to take jurisdiction under section 300, subdivision (b), in that "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 legal guardian to supervise or protect the child adequately." The court stated that Mother "is charged with the murder of the child's father . . . mother has engaged in behavior which will subject this child to a substantial risk of a lifetime of emotional illness and distress as a result of being deprived of the love, care, support, comfort, and relationship with the child's father. . . . [¶] . . . [¶] [T]his minor child also had a relationship with his father, and, so, this child is undoubtedly suffering the deprivation of that ongoing loving relationship."
The juvenile court also found true allegation g-1, which stated, "The mother is currently incarcerated, her exact release date is unknown and she is unable to provide care and support for the child."
The juvenile court adjudged K.P. a dependent of the court and removed physical custody from Mother. The court found "by clear and convincing evidence that the mother is a person described by 361.5(e)(1), and reunification services are denied as reunification services would not be in the best interests of the child..." The court recognized that mother had not been convicted, but stated, "the law recognizes that in certain offenses the anticipated term of incarceration is so substantial and the likely length of time . . . [¶] . . . to come to trial and that any potential resolution of this matter would still involve a term of incarceration far in excess of the maximum term for reunification services." The court then set a section 366.26 hearing.
On April 24, 2018, Mother filed a notice of intent to file writ petition and request for records to review order setting a hearing under section 366.26.
DISCUSSION
A. THE JUVENILE COURT'S JURISDICTIONAL FINDINGS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE
In her writ, Mother argues that there was insufficient evidence for the juvenile court to sustain the allegations under section 300, subdivisions (b) and (g). We disagree.
1. STANDARD OF REVIEW
The burden of proof at the jurisdictional hearing is preponderance of the evidence. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; § 355.) On appeal, the standard of review is substantial evidence. " 'The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child who is the subject of a petition comes under the juvenile court's jurisdiction . . . . On review, this court will view the juvenile court record in the light most favorable to that court's order. . . . We may not reweigh or express an independent judgment on the evidence, but must decide only whether sufficient evidence supports the findings of the juvenile court. . . . Issues of fact and credibility are matters for the trial court alone; we may decide only " ' "whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact." ' " ' " (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) In applying the substantial evidence test, we construe all reasonable inferences in favor of the juvenile court's finding. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600.) Moreover, "the parent has the burden of showing there is insufficient evidence to support the order." (In re N.M. (2011) 197 Cal.App.4th 159, 168.)
2. SUBSTANTIAL EVIDENCE SUPPORTS THE COURT'S SECTION 300 , SUBDIVISION (b)(1) FINDING
Mother asserts that the evidence was insufficient to sustain the allegations of the petition under section 300, subdivision (b)(1).
Under section 300, subdivision (b)(1), a child that comes within the following description is within the jurisdiction of the juvenile court, and may be adjudged a dependent of the court:
"The child had 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. . . . The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness." (§ 300, subd. (b)(1).)
The juvenile court, in finding the b-1 allegation as true, provided the following supporting facts: "The mother has criminal history including but not limited to her arrest on January 10, 2018 for: two counts of PC 187—Murder and PC 190.2(a)(b)—Special Circumstances; such conditions place the child at risk of harm."
In this case, on January 10, 2018, Mother was arrested for two counts of murder with special circumstances. Mother's release date was unknown. The child's father was one of the victims. Despite being her six-month-old child's primary caregiver, Mother participated in the murder of the child's father and Mother's cousin, leaving K.P. without a caregiver. Mother "engaged in behavior which will subject this child to a substantial risk of a lifetime of emotional illness and distress as a result of being deprived of the love, care, support, comfort, and relationship with the child's father." Moreover, K.P. was in Mother's care at the time of her arrest and was taken into protective custody based on law enforcement's concerns regarding his safety with any relative given the nature of the investigation. By murdering Father and a maternal relative, Mother exposed K.P. to harm from retaliation and retribution.
In finding jurisdiction under section 300, subdivision (b)(1), the juvenile court stated "with regards to the section that indicates 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 parent or legal guardian to supervise or protect the child adequately, I do believe that there is sufficient evidence here from which this court can take jurisdiction on that issue." The court noted that Mother was "charged with the murder of the child's father." Although mother had not been convicted yet, the court noted that "[a]s things stand right now, she has been arraigned and is facing charges and is incarcerated for the offense. There is an officer who has found sufficient probable cause to arrest mother for that offense, and there's information contained in the report about the circumstances and nature of the particular offense and mother's involvement with regards to that. From that, that is sufficient [evidence] for this court to find for purposes of jurisdiction that mother had engaged in behavior which will subject this child to a substantial risk of a lifetime of emotional illness and distress as a result of being deprived of the love, care, support, comfort, and relationship with the child's father." The court then went on to note that, "[a]dditionally, studies show that children who grow up without a father, you know, miss substantial input with regards to their development milestones. That is especially true for young men." The court further stated, "here, the evidence that's presented before [this] court shows that this minor child also had a relationship with his father, and, so, this child is undoubtedly suffering the deprivation of that ongoing loving relationship."
In her writ, Mother states the court's finding, as outlined above, "may have been appropriate if the evidence provided to the court outlined mother's alleged involvement in the death of the child's father, however, other than the fact that mother was arrested, there simply was no evidence presented to the court that outlined mother's alleged involvement in the offenses." We agree with mother that the court's finding was sufficient to provide a finding under section 300, subdivision (b)(1). However, we disagree with Mother that there was "simply no evidence" to support the court's finding.
At the contested jurisdiction/disposition hearing, counsel for the Department indicated that the "Department is relying on a JD report that was filed February 14th of 2018, as well as an addendum to that report that was filed March 15 of 2018. [¶] Additionally, we're proceeding on the first amended petition—oh, I'm sorry—there is a second amended petition that the parties are aware of and have been provided copies, and I would ask that the court receive and file that and proceed on that petition." Mother's counsel stated, "[o]n behalf of mother, we have no objection to the Department's evidence." In the jurisdiction/disposition report filed on February 14, 2018, it clearly noted that K.P. "was left without a caregiver after the mother was arrested on suspicion of murder. [Mother] was arrested with three other individuals involved in the murder of the child's alleged father , [P.P.]. [Mother] is facing two counts of Murder and two counts of Murder with Malice with a special circumstances enhancement. [Mother's] arrest placed her child in a harmful setting." (Boldface and italics added.) The addendum report filed on March 15, 2018, provided the same information regarding Mother's arrest for the murder of the child's father.
Based on the above, we find that substantial evidence supports the court's finding of jurisdiction under section 300, subdivision (b)(1).
3. SUBSTANTIAL EVIDENCE SUPPORTS THE COURT'S SECTION 300 , SUBDIVISION (g) FINDING
Additionally, Mother asserts that the evidence was insufficient to sustain the allegations of the petition under section 300, subdivision (g).
Under section 300, subdivision (g), a child that comes within the following description is within the jurisdiction of the court, and may be adjudged a dependent of the court: "The child has been left without any provision for support; . . . the child's parent has been incarcerated or institutionalized and cannot arrange for the care of the child." (§ 300, subd. (g).)
In finding the g-1 allegation as true, the juvenile court provided the following supporting facts: "The mother is currently incarcerated, her exact release date is unknown and she is unable to provide care and support for the child."
Mother relies on S.D., supra, 99 Cal.App.4th 1068, to support her contention that the incarceration of a parent, without more, cannot provide the sole basis for dependency jurisdiction. In S.D., the juvenile court sustained a dependency petition solely based on the mother's arrest for credit card fraud under section 300, subdivision (g). (S.D., at pp. 1070-1071, 1075.) The appellate court reversed the court's jurisdictional finding because the evidence failed to show that the mother was unable to arrange for the care of her daughter during her incarceration. (Id. at p. 1079.) The facts in this case are different.
In this case, the juvenile court acknowledged that under S.D., supra, 99 Cal.App.4th 1068, "an allegation under subdivision (g), standing alone, the court could not take jurisdiction." However, in this case, the court found true the allegations under section 300 subdivisions (b) and (g). Mother was arrested for two counts of murder with special circumstances, not for credit card fraud. And, one of Mother's victims was K.P.'s father—which permanently deprived the child of having a relationship with his father. Unlike the mother in S.D., Mother was not a "small-time" criminal. (Id. at p. 1070.)
At the detention hearing, the child's counsel stated that "[t]his is not just a 'Go to jail, lose your kid' case. That's not what this is about. If we look at this case in a vacuum, perhaps that would be what it is. But this mom is accused of murdering the father of this child. And part of what she did in this court is implicating a co-par[ticipant] of her as possibly being the father of the baby . . . causing this case to be longer and furthering the pain and anguish of the actual paternal grandparents, paternal relatives of this child. [¶] . . . [¶] And, so, for her to just say that she's simply in custody and therefore she shouldn't lose custody of her child, that case just doesn't work, because there's so many different factors than that case."
The Department's counsel agreed with K.P.'s counsel. She too stated that this case was distinguishable from S.D., supra, 99 Cal.App.4th 1068. Counsel stated "the court is aware that the allegations here are very serious and possibly couldn't be any more serious. And mother's conduct in this matter, being involved with the other people that she was involved with and putting herself in a position like this to take the life of the father of her child or somehow participant in the killing of the father of her child, shows extreme recklessness and lack of care, generally. [¶] But, additionally, she now is in custody for an unknown period of time."
The court agreed with counsel for the Department and K.P. After finding that it had jurisdiction under section 300, subdivision (b), the court noted, "So, with those findings of this court, then the (g) allegation is not standing alone. And mother is incarcerated and she is unable to provide care and support for the child. I recognize that she may very well have family members that she could identify and designate for whom she would be—believes the child could be appropriately placed in their care—but given the nature of the particular criminal action and the emotional if not physical consequences that will come to this child as a result of the deprivation of a parent, that is not sufficient for the court to find that the Department has failed to meet their burden of proof with regards to this matter."
Based on the above and the totality of the circumstances—that mother was not only arrested but was arrested for the murder of the child's father—we find that substantial evidence supports the trial court's finding of jurisdiction under section 300, subdivision (g).
B. THE JUVENILE COURT'S ORDER DENYING REUNIFICAITON SERVICES TO MOTHER IS SUPPORTED BY SUBSTANTIAL EVIDENCE
Mother contends that "the evidence did not support a finding that it was detrimental to the child for Mother to be offered reunification services."
Section 361.5, subdivision (e)(1), states: "If the parent or guardian is incarcerated . . . the court shall order reasonable services, unless the court determines by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered[,] the likelihood of the parent's discharge from incarceration, institutionalization, or detention within the reunification time limitations described in subdivision (a), and any other appropriate factors."
"Section 361.5 subdivision (e)(1) does not require that each listed factor exist in any particular case, nor does it specify how much weight is to be given to a factor bearing on detriment, listed or not." (Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 18.)
Mother contends that the court erred in denying reunification services because the court failed to make a detriment finding, and the court focused "solely on that nature of the allegations against mother and the potential length of time mother might be incarcerated." We disagree with mother.
In denying services to mother, the court stated: "As provided under 361.5, this court does find by clear and convincing evidence that the mother is a person descried by 361.5(e)(1), and reunification services are denied as reunification services would not be in the best interests of this child, [K.P.]."
Even though the juvenile court did not make an express finding of detriment, we can imply the necessary finding if substantial evidence in the record supports the finding. (In re Corienna G. (1989) 213 Cal.App.3d 73, 83 [a finding of detriment may be implied]; In re G.P. (2014) 227 Cal.App.4th 1180, 1196 [same].)
In this case, substantial evidence supports a finding of detriment. Here, K.P. was six months old at the time of detention. By the time of the disposition hearing he was nine months old and had been out of mother's care for three months with no visitation. At this young age, it is probable that the child did not have a significant relationship with mother. The social worker also reported that K.P. was doing very well in his placement with PGM. Moreover, the court considered the nature of the offenses—two counts of felony murder, one of the victims being the child's father, with special circumstances—and the likelihood that Mother's incarceration would exceed the maximum time limits for reunification. Moreover, a detriment finding may be implied form the record when the court denied all visitation. (In re Daniel C.H. (1990) 220 Cal.App.3d 814, 838.) Here, the court ordered no visitation for Mother while she was in custody. In making this determination, the court stated: "With regards to mother's request for visitation, at this time this court is not going to grant mother's request for visitation. The reality is, as I previously stated, this child is less than a year old. Visitation at the jail takes place via telephone. This child is not verbal or able to participate in that communication. Being taken into the jail environment would substantially expose this child, [K.P.], to a number of bacterial issues that exist within the jail, and it would not be appropriate for a child of this young of an age and immune system in that regard. Visitation is for the benefit of the child, not for the benefit of the mother, and this child cannot participate in this visitation through the glass. And so this court does not find that it would be appropriate for that to take place."
Based on the above, we find that substantial evidence supports a finding of detriment under section 361.5, subdivision (e)(1).
DISPOSITION
The writ petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: SLOUGH
P. J. FIELDS
J.