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California Court of Appeals, Fourth District, Second Div. v. S.C. (In re E.A.)

California Court of Appeals, Fourth District, Second Division
Aug 24, 2023
No. E080661 (Cal. Ct. App. Aug. 24, 2023)

Opinion

E080661

08-24-2023

In re E.A. et al., Persons Coming Under the Juvenile Court Law. v. S.C., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,

Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County. No. RIJ2200185 Dorothy McLaughlin, Judge. Dismissed.

Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.

Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

FIELDS J.

INTRODUCTION

S.C. (mother) contends there was insufficient evidence to support the juvenile court's order at a Welfare and Institutions Code section 364 hearing continuing dependency jurisdiction over her children, E.A. and C.A. (the children). Mother also argues that the court and the California Court of Appeals, Fourth District, Second Division (DPSS) failed to comply with the duty of inquiry under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California statutes, particularly Welfare and Institutions Code section 224.2. After filing the briefing, mother's counsel submitted an update that the juvenile court ordered the dependency proceedings terminated with sole physical and legal custody to mother. Thus, we dismiss the appeal as moot.

All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.

FACTUAL AND PROCEDURAL BACKGROUND

On March 3, 2022, DPSS filed a section 300 petition on behalf of the children, alleging they came within subdivision (b) (failure to protect). E.A. was four years old at the time, and C.A. was one. The petition specifically alleged that mother and Er.A., the children's father (father), engaged in domestic violence in the children's presence; father abused alcohol and exhibited volatile behavior while under the influence; mother neglected the children's health and safety in that she minimized the impact of domestic violence on the children, bailed father out of jail, and continued to engage in verbal altercations with him; and mother abused controlled substances.

Father is not a party to this appeal.

That same day, the social worker filed an out of custody and initial hearing report, recommending that the court find the children came within section 300, subdivision (b), and order that they remain in the parents' custody under a plan of family maintenance. The social worker also recommended the court find that ICWA may apply to this case. On August 16, 2021, mother reported she had Indian ancestry on the maternal side of her family, but she was not registered and did not know which tribe.

The social worker reported that DPSS received an immediate response referral stating that mother called the police because she and father had an argument. Mother was reportedly holding their son, C.A., when father threw a glass bottle, and it hit her on the back of the head. Mother and father (the parents) were intoxicated, and father was arrested for domestic battery.

The social worker interviewed mother, who said she and father were having a barbeque and drinking beer. She said she was not drunk, but father was. They argued, and she said she "felt a slug on the back of [her] head," but did not know if it was a hand or a bottle that hit her. Mother said she had told father she did not like him drinking and thought he should talk to someone about it. She further said she would probably bail him out of jail since he was the sole provider and had to go to his 52-week domestic violence classes from a previous arrest for domestic violence. Mother said she planned to keep her children safe by leaving the house if father drank again. The social worker informed mother of family maintenance voluntary services and provided her with a counseling resource for her to enroll in domestic violence services.

The social worker interviewed father at the detention center, and he confirmed that he and mother were having a barbeque, and he drank some beer and shots of hard liquor. He said mother became angry with him because, while he was cleaning the grill, he was listening to music and a music video with women came on, and she was jealous. He admitted to having "slightly shoved" her, but denied hitting her. Father said he was arrested because mother reported that he hit her, and there was a no-negative contact restraining order against him. The social worker advised him of family maintenance voluntary services, asked him to complete an alcohol intake assessment to see if he needed services, and told him to continue with his 52-week domestic violence classes.

The social worker additionally reported there had been a previous referral received on February 19, 2021, alleging domestic violence. The parents were arguing, and father threw a plate of food at mother, pulled her hair, and then pinned her down. Their child, E.A., was with mother, and she began walking away from father. Father was arrested.

On December 23, 2021, the social worker made an unannounced home visit. She completed a visual body check on the children, and they had no marks or bruises. Mother reported that both she and father were participating in domestic violence services and were communicating better. She also reported that father was attending his outpatient drug and alcohol classes, but had not attended the last couple of weeks because he got a new job.

The social worker had another home visit on January 31, 2022, and mother informed her that she stopped attending the domestic violence classes due to father's work schedule, and she was dropped from the class. Father stopped attending his alcohol classes and was dropped. Mother further reported that the domestic violence charges against father had been dropped, but he was still attending his domestic violence classes from his prior case. The social worker informed them that they needed to resume their services.

The social worker had mother do an on-demand drug and alcohol test. Mother tested positive for marijuana and cocaine. She disputed the results and said she did not use cocaine but admitted she did smoke a little marijuana the weekend before she tested. The social worker had her do another on-demand test that day, and she tested positive for cocaine again. Mother continued to deny using cocaine.

During a home visit on February 15, 2022, father started arguing with mother, in front of the social worker. They continued arguing until the social worker interjected and told them they would benefit from conjoint counseling. The social worker subsequently informed the parents that, due to the concerns of substance abuse, risk of domestic violence, and the young ages of the children, DPSS determined the family would benefit from consistent supervision by DPSS and the court. The social worker noted that there had been two incidents of domestic violence within the last year. She concluded that the parents would benefit from services to help mitigate the domestic violence and substance abuse concerns and that the safety of the children may be supported by DPSS's supervision and the provision of services, while they remain in the parents' care.

On March 18, 2022, the court held a hearing, and county counsel submitted on the report filed and requested that the court order the children to remain in the parents' home and set a jurisdiction hearing for April 11, 2022. All parties submitted on DPSS's recommendation. The court declared father the presumed father of the children and noted that he and mother both filed ICWA forms indicating no Indian ancestry. It adopted all the recommended findings and orders and ordered the children to remain in the parents' custody. The court also ordered mother to submit to hair follicle drug testing and father to submit to random and on-demand drug testing.

Jurisdiction/Disposition

The social worker filed a jurisdiction/disposition report on April 14, 2022, recommending that the court sustain the petition, declare the children dependents, and order family maintenance services be provided to the parents. The social worker reported that ICWA did not apply, noting that both parents denied Indian ancestry on April 12, 2022. The social worker also noted that on February 18, 2021, father was charged with misdemeanor battery on a cohabitant/spouse, he was convicted, and the case remained active.

The social worker reported that the parents lived together, but were not married, and had been together for six years. Mother said she used to drink a lot and admitted using "a little" cocaine. She said she was an unemployed, stay-at-home mom, and father was the family's provider. Mother admitted that they had domestic violence incidents in the past, and when asked why she did not think about getting a restraining order, she said, "Because he's my baby's dad."

The social worker reported that service referrals were submitted for mother and father on March 21, 2022. Mother reported she continued to participate in her substance abuse and domestic violence services, as well as on-demand drug testing. Father reported he continued to attend his 52-week domestic violence classes and was participating in random drug testing.

The social worker reported that DPSS received mother's hair follicle test results on April 12, 2022, and she tested positive for cocaine. The social worker spoke with mother that day, and mother said she had not used since February 2022. The social worker then had her do an on-demand test, and the results were pending.

The social worker noted that although mother tested positive for cocaine, she was attending all her services and appeared motivated to work towards her sobriety. Thus, the social worker recommended the court sustain the petition, declare the children dependents, and order family maintenance services. The social worker added that mother and father participated in the development of their case plans and agreed to participate in all the recommended services. Mother's case plan included the requirements that she participate in general counseling to address topics relating to her involvement in the current dependency, her relationship with the children, and other topics as needed, and complete programs in domestic violence, parenting education, and substance abuse. Father's case plan included the requirements that he complete a domestic violence program, a parenting education program, and a substance abuse program.

On April 19, 2022, the court held a jurisdiction/disposition hearing. DPSS filed a first amended petition that day and asked the court to find the allegations in that petition true. The first amended petition contained the same allegations as the original petition, except that it struck the allegation regarding mother neglecting the health and safety of the children. Both mother and father submitted waiver of rights forms and submitted on the amended petition. The court sustained the first amended petition, declared the children dependents, and maintained them in the parents' custody on a plan of family maintenance. The court set a section 364 hearing for October 19, 2022, and warned the parents to participate in everything they were being asked to participate in and stay away from drugs. DPSS subsequently requested the court continue the hearing to November 29, 2022. The court continued the hearing.

Section 364 Review

The social worker filed a status report on November 16, 2022, recommending the court order another six months of family maintenance services and authorize DPSS to terminate dependency jurisdiction "via exparte." The social worker reported that mother and the children moved out of the home they were sharing with father in late August since a dog that was living there had attacked him. Mother did not feel safe living with an aggressive dog, so she and the children moved into her sister's home, with father's financial support. Mother denied a romantic relationship with him and said they were just "co-parenting." Father also denied being in a romantic relationship with mother any longer, and he currently lived in his sister's home.

The social worker additionally reported that mother completed her parenting education, domestic violence, and substance abuse programs, but the social worker still needed to verify the actual completion of the domestic violence program. The social worker stated that when she reviewed the case plan with mother, mother said she did not know she had to complete general counseling. So, the social worker submitted a core services referral for general counseling on November 7, 2022. Mother also said she did not know she was supposed to be drug testing; so, the social worker submitted an updated drug testing referral on November 7, 2022, as well.

As to father, the social worker reported that he had not enrolled in a parenting education class and had not completed a domestic violence program, as required by his case plan. He completed a substance abuse treatment program on August 24, 2022. The social worker further reported that father was required to submit to random drug testing, but he had five "no shows" from May 2022, July 2022, and August 2022. He tested positive for amphetamines/methamphetamines on June 23, 2022. On October 10, 2022, he tested positive for cocaine metabolite. Father denied having a substance abuse problem. The social worker additionally reported that father completed his 52-week domestic violence program with the Riverside County Probation Department.

The social worker also noted that although the parents were no longer residing together, they would still do things together with the children (e.g., go to the zoo). When mother learned that father recently tested positive for cocaine, she said she was shocked because she thought he was doing so well. She said she would do whatever she needed to do to protect the children.

The social worker concluded mother would benefit from completing her case plan services, and there was a need for DPSS to continue supervising her to ensure the children were safe and their needs were being met. The social worker noted a strong attachment between mother and the children, and they were well cared for, with no concerns. Regarding father, the social worker was very concerned since he had missed half of his random tests, and he produced a positive result for cocaine, right after he graduated from his substance abuse program. She concluded that he would benefit from additional time to complete his case plan and a more intensive program, such as Family Preservation Court. Father denied having a substance abuse problem and reported he was not willing to participate in Family Preservation Court.

The court held a section 364 hearing on November 29, 2022, and the children's counsel set the matter for contest. Counsel asked the court to order a hair follicle test and random and on-demand testing for father. Mother's counsel said mother was extremely upset by father's behavior, and she asked DPSS to assess giving her sole physical and legal custody. The court set the matter for January 9, 2023. It ordered a hair follicle test for father, but not random or on-demand testing since those were already included in the case plan. As to mother, the court noted that while a domestic violence certificate was produced, completion of the program had yet to be verified. The court further noted that mother said she did not know she had to complete a general counseling program or submit to random drug testing. The court asked DPSS to address these issues in an addendum report, prior to the hearing.

The court held a hearing on January 9, 2023, and county counsel requested a continuance to February 7, 2023. Counsel for father informed the court that the social worker was out sick, and thus no referral had been given for the hair follicle test. The court ordered a hair follicle test and continued the matter to February 7, 2023. It also asked father and mother if they had Indian ancestry, and they both said no.

The social worker filed an addendum report on February 2, 2023, and continued to recommend the court order another six months of family maintenance services and authorize DPSS to terminate dependency jurisdiction "via exparte." She reported that father's hair follicle test results came back positive for benzoylecgonine. A lab technician explained that benzoylecgonine was a metabolite of cocaine, meaning that cocaine was found in father's specimen. The technician added that the results were considered "high over the limit." The social worker called father to discuss the results and first asked him if he had consumed any drugs or taken prescription medication, and he said no. Even when she revealed that he tested positive for benzoylecgonine, he denied using drugs since the last time he tested positive on October 10, 2022. The social worker additionally reported that father was sent for random drug testing on January 11, 2023, and January 25, 2023, and he tested negative for all substances both times.

The court held a contested section 364 hearing on February 7, 2023. County counsel submitted on the reports that had been filed and requested the court to order family maintenance services for six more months. Counsel for the children made an oral motion for detention of the children from father only, noting his positive drug test results, denial of drug use, and no shows at drug testing. Mother's counsel agreed with the motion, but also asked the court to close the case with juvenile custody orders, giving mother custody of the children. The court denied the oral motion without prejudice.

Mother testified on her own behalf. She said her case plan required her to take parenting classes, a substance abuse class, and participate in therapy. She said she received certificates of completion for her parenting and substance abuse classes, and that she had counseling with a therapist in her substance abuse program. Mother said that when she received her certificate of completion, it was her understanding that she completed her counseling requirement as well as her substance abuse treatment, and she did not feel she needed additional therapy. Mother added that she also completed domestic violence counseling.

Mother testified that she was no longer living with father. She separated from him in June 2022, because they were not getting along. At that time, she had no concerns that father was using drugs and thought he was complying with his case plan. Mother said when she read the social worker's report that father tested positive, she decided to remain away from father for the sake of the children. Mother said it was her desire to have the case closed and to get physical custody of the children. She said she would let father visit the children with her supervision, and she would be able to tell if he was under the influence of alcohol or controlled substances.

Counsel for the children cross-examined mother and clarified that she attended individual counseling as part of her substance abuse program. When asked what skills she learned from the counseling, she said she "learned [her] self-worth, [her] coping skills, whether [she] felt depressed, stressed, lonely, sad."

County counsel also cross-examined mother and asked if she recalled the social worker discussing her case plan with her regarding counseling as one of the services required, and mother said yes. Mother further confirmed that in October 2022, she talked about her case plan status with the social worker, and they discussed general counseling. Mother said she mentioned to the social worker that she was receiving counseling along with her substance abuse classes. However, when the social worker asked mother about the general counseling class, mother said she was not aware, but "figured it was all together."

On redirect examination, mother's counsel asked mother if the social worker told her she had to complete counseling, in October 2022. Mother said the social worker mentioned it, but mother told her she was already doing her programs and therapy in her substance abuse program. The social worker said she would look into it, and then never mentioned it again.

After mother testified, county counsel addressed the court to provide an update and said he had confirmed with the social worker that she received a certificate of completion for the domestic violence program requirement and verified completion. Thus, DPSS was not contesting that mother had met that requirement. However, DPSS had not received anything with regard to the general counseling requirement, so that remained outstanding.

The social worker then testified. She said she was concerned about father's positive hair follicle test result and his denial that he used any drugs. She further said the positive result and denial posed a safety risk to the children. The social worker recommended another six months of family maintenance services. She suspected that the parents were together, even though they were saying they were separated. The social worker said she had safety concerns about father, but not mother. She explained that she wanted to continue providing services to father to help him, because if he did not recover and mother had custody of the children, he would still be a part of their lives, and there would be no one to protect the children. The social worker felt that mother was really protective of father and noted she would call her and advocate for him all the time.

After hearing argument from counsel, the court adopted the recommended findings and orders, including ordering another six months of family maintenance services and authorizing DPSS to terminate dependency jurisdiction "via exparte." The court also ordered a referral to substance abuse treatment for father and random and on-demand testing. The court explained that it was not detaining the children from him since he had two recent tests in January 2022 that were negative for all substances. As to mother, the court noted she had made significant progress in her case plan, but it found the issue of the general counseling versus what she had done "to be somewhat confusing." The court said it was very possible that mother "had a misunderstanding." It recalled saying back in November that it was not clear what needed to be completed for the general counseling requirement. The court concluded: "So this is all to say I understand it is mother's wish that this case terminates today/ Unfortunately I think there was some miscommunication or some misunderstanding about all components, so I will continue the family maintenance out." The court then set the next section 364 hearing for August 7, 2023.

On August 7, 2023, mother's counsel filed a letter informing this court that the juvenile court ordered the dependency proceedings terminated with sole physical and legal custody to mother. Thus, he requested the dismissal of her appeal as moot.

DISCUSSION

The Appeal is Moot

Mother's counsel has requested this court to dismiss the appeal, since the juvenile court has now ordered the dependency proceedings terminated with sole physical and legal custody to mother. We dismiss the appeal as moot.

As a general rule, it is a court's duty to"' "to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." '" (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541; see In re N.S. (2016) 245 Cal.App.4th 53, 59 (N.S.).) "An appellate court will dismiss an appeal when an event occurs that renders it impossible for the court to grant effective relief." (N.S., at pp. 58-59.)

Mother contends there was insufficient evidence to support the court's order continuing dependency jurisdiction over the children and that the court and DPSS failed to comply with the duty of inquiry under ICWA and related California statutes.

However, the court has now terminated its dependency jurisdiction with sole physical and legal custody given to mother, and ICWA consequently does not apply. (See In re J.B. (2009) 178 Cal.App.4th 751, 759 ["[T]he legislative intent behind ICWA expressly focuses on the removal of Indian children from their homes and parents, and placement in foster or adoptive homes."].)

Since there is no effective relief we can grant, we will dismiss the appeal. (N.S., supra, 245 Cal.App.4th at pp. 58-59.)

DISPOSITION

The appeal is dismissed.

We concur: RAMIREZ P. J., MENETREZ J.


Summaries of

California Court of Appeals, Fourth District, Second Div. v. S.C. (In re E.A.)

California Court of Appeals, Fourth District, Second Division
Aug 24, 2023
No. E080661 (Cal. Ct. App. Aug. 24, 2023)
Case details for

California Court of Appeals, Fourth District, Second Div. v. S.C. (In re E.A.)

Case Details

Full title:In re E.A. et al., Persons Coming Under the Juvenile Court Law. v. S.C.…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Aug 24, 2023

Citations

No. E080661 (Cal. Ct. App. Aug. 24, 2023)