Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for writ of mandate. Randolph Hammock, Referee, L.A.S.C. No. CK79519.
Robert E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy and John Savittieri, Deputy County Counsel, for Petitioner.
No appearance for Respondent.
Law Office of Tim Martella, Eliot Grossman and Lori Davis for Real Party in Interest Miguel F.
Los Angeles Dependency Lawyers, Law Offices of Katherine Anderson and Victoria Doherty for Real Party in Interest Apolonia S.
Children’s Law Center of Los Angeles, CLC2 and Martha Matthews for minor Blanca S.
OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE
THE COURT:
The juvenile court abused its discretion by dismissing the Welfare and Institutions Code section 300 petition as to the minor, Blanca S. Accordingly, the petition is granted.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the first instance.” (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240–1241; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222–1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the parties were notified of the court’s intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
FACTUAL AND PROCEDURAL BACKGROUND
Blanca S. is 14 years old and she is missing, having run away from her foster home on December 12, 2009. Since she was 10 years old, Blanca has had a history of running away, gang affiliation, and drug use. Her mother Apolonia S. (Mother) was unable to control Blanca’s behavior.
Mother was detained by immigration in March 2007, and deported to Mexico. Blanca did not want to go to Mexico. Mother, by way of a notarized letter, left Blanca in the care and custody of her sister and her husband, Blanca’s aunt and uncle.
This case came to the attention of the Department of Children and Family Services (DCFS) on October 5, 2009 as a referral that Blanca was being molested by her uncle.
On or about October 23, 2009, DCFS filed a section 300 subdivisions (b)[failure to protect], (d)[sexual abuse], and (g)[no provision for support] petition which alleged that Mother made an inappropriate plan for the ongoing care and supervision of Blanca by placing the minor in the care of her maternal aunt and uncle, resulting in the sexual abuse of the minor by her uncle. The petition also alleged that Mother and Father (Miguel F., whose whereabouts are unknown) failed to provide Blanca with the necessities of life, including food, clothing, shelter and medical care.
On October 26, 2009, Blanca was detained and placed in a foster home.
On December 12, 2009, Blanca ran away from her foster home.
On December 24, 2009, the juvenile court issued a protective custody warrant.
On January 8, 2010, at the adjudication/jurisdiction hearing, DCFS urged the juvenile court to assume jurisdiction over Blanca pursuant to section 300, subdivisions (b), (d), and (g). In support of the statutory allegations, DCFS argued there was evidence that (1) the Mother’s plan in leaving the minor with the aunt and uncle, where Blanca was molested, was inappropriate; (2) Mother lacked financial support and in-person contact with Blanca, and had limited telephonic contact with the minor during Mother’s two-year deportation; and (3) the minor had a need for DCFS and juvenile court supervision given her extensive problems and lack of parental support. The juvenile court, finding Mother’s plan for the minor’s ongoing care and supervision imperfect, but adequate, dismissed the section 300 petition in its entirety. The dismissal was stayed until January 15, 2010.
DCFS filed the petition on January 13, 2010, and Presiding Justice Mallano issued a stay of the dismissal order.
DISCUSSION
Standard of Review
The standard of review when examining a juvenile court’s jurisdictional findings is the substantial evidence test. (In re Tania S. (1992) 5 Cal.App.4th 728, 733.) A reviewing court considers whether there is evidence of reasonable, credible and solid value that would support the juvenile court’s findings. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)
The juvenile court’s order dismissing the section 300 petition is without support. The evidence supports jurisdiction under section 300, subdivisions (b) and (g).
Without conceding the point, DCFS does not challenge the juvenile court’s decision against a finding that the minor had been sexually abused by her uncle.
The jurisdictional allegation pursuant to section 300, subdivision (b) is supported by substantial evidence. A child may be found a dependent if, under subdivision (b) of section 300, “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... to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent... to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left....”
It was undisputed that: (1) Blanca was having major behavioral problems since the age of ten; (2) by the age of ten, Blanca was affiliated with a gang and running away; (3) by Blanca’s own account, which was not disputed by anyone, she used marijuana and crack cocaine on a daily basis and consumed alcohol; (4) she was sexually active and currently wanted to get pregnant. She had run away previously because she thought she was pregnant; and (5) she had a history of running away and her current whereabouts are unknown.
Blanca is a troubled youth and is at risk of harm. Given the serious nature of Blanca’s behavioral problems, which had been ongoing for years prior to Mother’s deportation, Mother’s plan for Blanca’s ongoing care was inadequate. Given the minor’s history, of which Mother was aware, placing her in the care of an aunt and uncle, without any provision for support, without keeping in close contact with the child, without at least attempting to provide some sort of supportive services, placed Blanca at risk. The aunt and uncle were ill-equipped to handle Blanca’s behaviors.
The jurisdictional allegation pursuant to section 300, subdivision (g) is supported by substantial evidence. Section 300, subdivision (g) jurisdiction is warranted where: “The child been left without any provision for support... or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful.”
Father provided Blanca with no support, no home, no relationship. He saw her once in August 2009, but failed to call thereafter as he had promised. His whereabouts remain unknown, despite DCFS’s efforts to locate him. Mother, on the other hand, did make a plan for Blanca after Mother’s deportation, but the plan was inadequate. The aunt and the uncle are no longer appropriate caretakers.
In this case, there is substantial evidence to support a finding for jurisdiction under section 300, subdivisions (b) and (g).
DISPOSITION
THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of January 8, 2010, dismissing the Welfare and Institutions Code section 300 petition as to Blanca S. and to issue a new and different order sustaining same, in Los Angeles Superior Court case No. CK79519, entitled In the Matter of Blanca S.
The temporary stay order is hereby terminated.
MALLANO, P. J. ROTHSCHILD, J. CHANEY, J.