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In re Katelyn P.

California Court of Appeals, Fourth District, First Division
Feb 28, 2011
No. D058104 (Cal. Ct. App. Feb. 28, 2011)

Opinion


In re KATELYN P., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. CHRISTINA P., Defendant and Appellant. D058104 California Court of Appeal, Fourth District, First Division February 28, 2011

NOT TO BE PUBLISHED

APPEAL from findings and orders of the Superior Court of San Diego County, No. NJ014348, Peter L. Fagan, Juvenile Court Referee.

HALLER, J.

Christina P. appeals an order removing her daughter from her custody under Welfare and Institutions Code section 361, subdivision (c)(1). We affirm.

Further statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

Christina P. is the mother of Katelyn P., who was born in January 2008. Christina and Katelyn lived with Christina's father, William P. (the grandfather), and Christina's two younger brothers. Approximately five years before Katelyn's birth, Christina overdosed on methamphetamine and continued to display "some cognitive impairment, " including memory lapses.

Katelyn's alleged father denied parentage and did not participate in her dependency proceedings.

In November 2009, the San Diego County Health and Human Services Agency (the Agency) received a referral alleging that Katelyn, who was not yet two years old, wandered outside her apartment on an ongoing basis without adult supervision, usually in the parking lot of the apartment complex. The social worker substantiated the referral for general neglect and offered community-based services to Christina, which she initially accepted and later declined.

On June 4, 2010, Katelyn was found unsupervised outside her apartment. She had a white powdery substance on her hands and face. On June 5, the Agency investigated a report that Katelyn was alone and crying on the sidewalk near a busy street. On June 23, a passerby found Katelyn on the sidewalk of a busy thoroughfare near the freeway, called the police and reported that Katelyn had nearly stepped into traffic. Police detained Katelyn in protective custody.

On June 23, 2010, the Agency initiated dependency proceedings on Katelyn's behalf. The social worker was concerned about Christina's delayed manner, her difficulties talking and answering questions, and her inability to follow basic instructions for supervising Katelyn.

At the detention hearing, the juvenile court ordered the Agency to consider Katelyn's relatives' homes for detention, including the grandfather's home. The court gave the Agency discretion to allow Christina to reside in a relative's home with Katelyn, on the condition that Christina's contact with Katelyn was supervised.

In a meeting on July 1, 2010, Christina told the social worker that she would prefer Katelyn to remain in the foster home rather than being placed with her grandfather. Christina could not explain the reasons for her preference. The grandfather said he would "take his name off the list" if Christina wanted Katelyn to stay in the foster home. He agreed to be considered for placement if the foster placement failed. The grandfather said he would need his sons' assistance to care for Katelyn.

The social worker observed that Katelyn appeared to have a close bond with her grandfather. She reached for him during visits and cried when he left. Katelyn did not readily go to Christina.

On July 14, 2010, Christina told the social worker she wanted Katelyn to stay with her family.

At a court proceeding on July 19, 2010, the Agency told the court the grandfather did not want to be considered for placement. The grandfather, who was present, said he was interested in providing a home for Katelyn. The court asked the social worker to speak with the grandfather to see whether he was willing to care for Katelyn. The court ordered the Agency to clarify the placement issue and provide an update to the court.

The jurisdiction/disposition hearing was held on August 17, 2010. Christina submitted on the Agency's court report. Her attorney stated the family was worried because the Agency had not yet inspected the grandfather's home and they would like the inspection to be expedited. After taking jurisdiction under section 300, subdivision (b), the court removed Katelyn from parental custody and placed her in foster care under a plan of family reunification services. The court gave the Agency discretion to place Katelyn with her grandfather.

APPELLATE PROCEEDINGS

On December 21, 2010, minor's appellate counsel informed this court the Agency placed Katelyn with her grandfather on December 9. On February 1, 2011, this court asked the parties to submit letter briefs regarding their position on whether this case should be dismissed as moot. The Agency submits the appeal is moot. Christina and minor's counsel state the appeal is not moot and inform this court that the Agency has removed Katelyn from her grandfather's care.

An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the reviewing court to grant the appellant effective relief. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.) Because Katelyn is no longer placed with her grandfather and we are not fully apprised of the circumstances of that placement, we conclude that the case is not moot.

DISCUSSION

There is Substantial Evidence to Support the Child's Removal from Parental Custody Under Section 361 , Subdivision (c)(1)

Christina contends that the court erred when it removed Katelyn from her custody. She argues the Agency did not explore available reasonable means to prevent Katelyn's removal from the home. Christina asserts her family members were a significant resource to help protect Katelyn and their assistance would have enabled Katelyn to stay in her home.

A dependent child may not be taken from the physical custody of the parent under section 361, subdivision (c)(1), unless the court finds that there is clear and convincing evidence that there is or would be a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if returned home, and there are no reasonable means to protect the child's physical health without removing the child. (§ 361, subd. (c)(1); In re Henry V. (2004) 119 Cal.App.4th 522, 528; In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)

In determining whether a child may be safely maintained in the parent's physical custody, the court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention. (In re Cole C. (2009) 174 Cal.App.4th 900, 917; see In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1043-1044.) The court also considers whether there are any reasonable protective measures and services that can be put into place to prevent the child's removal from the parent's physical custody. (§ 361, subd. (c)(1); see §§ 202, subd. (a), 16500.5, 16501, 16501.1; 42 U.S.C. §§ 629, 629a.)

In reviewing the court's findings and orders under section 361, subdivision (c)(1), we employ the substantial evidence test, keeping in mind the heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)

We are not persuaded by Christina's argument the court erred when it removed Katelyn from her home. Before the Agency initiated dependency proceedings, Katelyn lived with her mother, grandfather and two young uncles. Katelyn went to preschool Monday through Friday from 10:00 a.m. to 5:00 p.m. The grandfather acknowledged he helped Christina care for Katelyn. The apartment manager stated she had received many complaints that Katelyn was wandering the streets near the freeway and beach. The grandfather was home on June 5, 2010, when Katelyn was found on a sidewalk next to a busy street. He told the social worker he and Christina were responsible for Katelyn's care on that date.

On June 8, 2010, the Agency received a second report that Katelyn was wandering outside unsupervised. The social worker spoke with Christina and the grandfather about the need to properly supervise Katelyn. They agreed that Christina would not leave Katelyn unsupervised and that the grandfather or another family member would watch Katelyn if Christina was not available. Christina and the grandfather signed the safety plan.

On June 23, 2010, Christina allowed Katelyn to wander out of their apartment, through the apartment complex and onto the sidewalk of a highly traveled thoroughfare, without supervision. Witnesses reported that Katelyn was walking along on the sidewalk within three feet of traffic for approximately five minutes before Christina arrived. Katelyn was covered from head to toe in laundry detergent.

The record shows that the grandfather was fully informed of Katelyn's wandering and Christina's inability to properly supervise her. He agreed to take measures to protect his two-year-old granddaughter, yet within weeks of his agreement with child protective services, Christina failed to properly supervise Katelyn. The grandfather made arrangements for Katelyn's aunt to help Christina on June 23, but the aunt went to work, leaving Katelyn with inadequate supervision. The grandfather acknowledged he could not care for Katelyn by himself, and his teenage sons' ability to help him was limited by their busy schedules. Katelyn already attended preschool during the week, thus the addition of a daycare program would not alleviate the family's burden to care for her. The record supports the finding that Katelyn's family had not been able to help Christina properly supervise Katelyn, which led to a substantial danger to Katelyn's physical health, safety, protection and well-being.

Under those circumstances, even if the Agency had promptly inspected the grandfather's home for placement, the court could have reasonably determined there were no reasonable protective measures that could have been put into place to prevent Katelyn's removal from Christina's physical custody. (§ 361, subd. (c)(1).) Christina's argument implies she would remain in the household with her father and Katelyn, but that situation would not have been significantly different than under the voluntary services plan. (In re Cole C., supra, 174 Cal.App.4th at p. 917 [the court may consider the parent's past conduct and current circumstances].)

To the extent Christina argues the Agency erred when it did not promptly evaluate other relatives' homes for placement under section 361.3, any error is harmless. The court would not have placed Katelyn with a relative without removing her from Christina's custody under section 361, subdivision (c)(1).

We conclude there is substantial evidence to support the findings that there was, or would be, a substantial danger to Katelyn's health, safety and well-being if she were returned home, and that there were no reasonable means at the time of the disposition hearing to protect Katelyn's physical health without removing her from parental custody. (§ 361, subd. (c)(1).)

DISPOSITION

The findings and orders are affirmed.

WE CONCUR: McCONNELL, P. J., NARES, J.


Summaries of

In re Katelyn P.

California Court of Appeals, Fourth District, First Division
Feb 28, 2011
No. D058104 (Cal. Ct. App. Feb. 28, 2011)
Case details for

In re Katelyn P.

Case Details

Full title:In re KATELYN P., a Person Coming Under the Juvenile Court Law. SAN DIEGO…

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

Date published: Feb 28, 2011

Citations

No. D058104 (Cal. Ct. App. Feb. 28, 2011)

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