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In re A.G.

California Court of Appeals, First District, Fifth Division
Apr 27, 2009
No. A123999 (Cal. Ct. App. Apr. 27, 2009)

Opinion


In re A.G. et al., Persons Coming Under the Juvenile Court Law. T.H., Petitioner, v. THE SUPERIOR COURT FOR THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; SAN FRANCISCO COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party in Interest. A123999 California Court of Appeal, First District, Fifth Division April 27, 2009

NOT TO BE PUBLISHED

City & County of San Francisco Super. Ct. Nos. JD06-3412, JD06-3412

Jones, P.J.

T.H. (mother) has filed a petition for an extraordinary writ under California Rules of Court, rule 8.452, seeking review of the juvenile court’s decision to terminate reunification services and set a hearing under Welfare and Institutions Code, section 366.26 to determine whether her parental rights as to her children A.G. and J.A. should be terminated. Mother contends (1) the trial court applied an incorrect standard when making its decision, and (2) the court’s ruling is not supported by substantial evidence. We conclude the juvenile court did not commit any prejudicial errors and will deny the petition.

All further rule references will be to the California Rules of Court.

Unless otherwise indicated, all further section references will be to the Welfare and Institutions Code.

I. FACTUAL AND PROCEDURAL BACKGROUND

T.H. is the mother of two sons, A.G., who was born in January 2003, and J.A. who was born in October 2005.

In November 2006, petitions were filed alleging both children were dependent children within the meaning of section 300. As is relevant here, the petitions alleged the children were at risk because mother had a substance abuse problem, an anger management problem, a criminal history, and mental health problems. The petitions were sustained at a hearing in February 2007. At disposition, the court ordered the children removed from mother’s custody and that mother be provided reunification services including substance abuse classes and psychological help.

Mother made significant progress in addressing the problems that led to the dependency. At the six-month review hearing held in August 2007, the court set a hearing to determine whether mother could regain custody of her children. Then in October 2007, the court ruled mother had made enough progress that the children could be returned to her custody, although it ordered that the dependency remain in place.

Unfortunately, that progress was short lived. In August 2008, a supplemental petition under section 387 was filed alleging that the prior disposition had been ineffective because (1) mother failed to follow her case plan, (2) one of the children had been exposed to a domestic violence incident, (3) mother did not have suitable housing.

A hearing on the section 387 petition was conducted on January 8, 2009. Mother did not attend the hearing and most of the testimony was provided by her case worker, John Huynh. He testified that mother had failed to comply with an aftercare drug program and that she failed to obtain regular drug testing. More disturbingly, Huynh said that A.G. had been present during a serious domestic violence incident between mother and J.A.’s father. Huynh also said mother had missed several visits with her children even though she had been provided with transportation funds.

At the conclusion of the hearing the court sustained the petition, ordered that the children be removed from mother’s custody, terminated reunification services, and set the matter for a hearing on May 6, 2009, to determine whether mother’s parental rights should be terminated.

II. DISCUSSION

A. Whether the Court Applied the Correct Standard

The juvenile court may remove a child from a parent’s custody pursuant to a section 387 petition only where the court finds, by clear and convincing evidence, that there is a substantial danger to the physical or emotional health of the minor and there are no means by which the minor can be protected without removal. (In re Paul E. (1995) 39 Cal.App.4th 996, 1000-1001.) The juvenile court here made the required finding as to both children, however, the court did not state the standard it had applied when reaching that conclusion. Mother now contends the court’s order must be reversed because the court did not articulate the standard it applied.

A fundamental rule of appellate review is that a judgment or order is presumed to be correct. (In re Sade C. (1996) 13 Cal.4th 952, 994.) One aspect of that rule is that we are required on appeal to resolve all ambiguities in favor of affirmance. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We are also required by statute to presume that an official duty has been regularly performed. (Evid. Code, § 664.) Our Supreme Court has stated specifically that these rules “encompass[ ] a presumption that the trial court applied the proper burden of proof in matters tried to the court. [Citations].” (Ross v. Superior Court (1977) 19 Cal.3d 899, 914; see also People v. Clements (1962) 202 Cal.App.2d 284, 286, People v. Stroud (1969) 273 Cal.App.2d 670, 678-679.)

Applying those principles here, absent evidence to the contrary, we must presume the court applied a clear and convincing standard when making its decision even though it did not expressly state it had done so. We find no error on this ground.

B. Sufficiency of the Evidence

Mother contends the evidence was insufficient to support the conclusion that her children were at risk of physical harm or emotional damage if they were not removed from her custody.

“On a challenge to an order removing a dependent child from his or her parent, we are limited to whether the order is supported by substantial evidence. We view the record in the light most favorable to the order and decide if the evidence is reasonable, credible and of solid value.” (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078.) “[I]ssues of fact and credibility are the province of the trial court.” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) Furthermore, and importantly, “The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 739, 748, fn. 6.)

Here, there was ample evidence that the children would be at risk if they were left in mother’s custody. The record indicates and the trial court found that mother had a long-term drug problem that she was failing to address adequately. She failed to complete several aftercare treatment programs, and failed to submit to regular drug testing. In addition, the record indicates and the court found that one of the children had been exposed to an incident of serious domestic violence. The trial court reasonably could conclude that the children would be at substantial risk of physical or emotional harm if they were left in the custody of a parent who was struggling with ongoing drug addition and domestic violence issues. The court’s ruling is supported by substantial evidence.

The primary case upon which mother relies, In re Paul E., supra, 39 Cal.App.4th996 does not compel a different conclusion. In that case, jurisdiction was declared over a four-year-old, possibly autistic child due to the dirty and unsanitary conditions of the home. While the parents improved the living conditions, the caseworker remained concerned about their ability to function as parents. The unsanitary conditions had been remedied, but the house was still messy and dirty. The caseworker took the child into custody because the parents’ failure to “‘progress in recognizing the dirty condition of the house demonstrate[d] that they were limited by their own ability.’” (Id. at p. 1000.) The appellate court reversed the dispositional order removing the child from the parents’ custody, finding that chronic messiness by itself and apart from any unsanitary conditions or resulting illness or accident is not clear and convincing evidence of a substantial risk of harm. (Id. at p. 1005.)

Here, we are not dealing with chronic messiness, but with a mother who is struggling to overcome ongoing drug and domestic violence issues. Paul E. is not controlling on these very different facts.

We conclude the court’s ruling is supported by substantial evidence.

III. DISPOSITION

The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894.) Petitioner is barred in any subsequent appeal from making further challenges to orders terminating reunification services and setting a hearing under section 366.26. (§ 366.26, subd. (l).) Because the section 366.26 hearing is set for May 6, 2009, our decision is final as to this court immediately. (Rule 8.490(b)(3).)

We concur: Simons, J., Bruiniers, J.

Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

In re A.G.

California Court of Appeals, First District, Fifth Division
Apr 27, 2009
No. A123999 (Cal. Ct. App. Apr. 27, 2009)
Case details for

In re A.G.

Case Details

Full title:In re A.G. et al., Persons Coming Under the Juvenile Court Law. T.H.…

Court:California Court of Appeals, First District, Fifth Division

Date published: Apr 27, 2009

Citations

No. A123999 (Cal. Ct. App. Apr. 27, 2009)