Opinion
G054356
05-11-2017
In re E.C., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.C., Defendant and Appellant.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Auerlio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16DP1000) OPINION Appeal from an order of the Superior Court of Orange County, Caryl Lee, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Auerlio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minor.
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INTRODUCTION
We affirm the juvenile court's order asserting jurisdiction over E.C. (the minor), now one year old. Substantial evidence supports the juvenile court's findings that there was a substantial risk the minor would suffer serious physical harm or illness as a result of the inability of her mother, A.C. (mother), to care for the minor, and that mother had left the minor without care or support. Although mother left the minor in the care of an unrelated adult, that adult's unwillingness to cooperate with the social services agency, and later refusal to be considered as a caregiver for the minor due to her own health problems, support the juvenile court's findings.
This case presents the unfortunate situation where mother herself is currently a dependent child of the Los Angeles County Juvenile Court. She is struggling to resolve her own emotional problems while raising a newborn. We commend mother for attempting to find a caretaker for the minor when mother felt unable to provide for her, and we encourage mother to fully utilize the services offered by both the Los Angeles County and Orange County social services agencies in order to reunite with the minor.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Mother was declared a dependent child of the Los Angeles County Juvenile Court in April 2010; the minor's maternal grandmother's then-boyfriend had physically and sexually abused mother. Jurisdiction was terminated and mother was released into the custody and care of the maternal grandmother, who was ordered not to allow any contact between her boyfriend and mother. The juvenile court again exercised its jurisdiction over mother a few months later when the maternal grandmother allowed her then-boyfriend to have contact with mother, which resulted in further sexual abuse. Mother was later subjected to a psychiatric hold, had behavioral problems, attempted to commit suicide, abused alcohol and drugs, and made multiple attempts at running away. A few months before the minor's birth, mother was placed at a shelter in Orange County.
When the minor was five months of age, L.G., the mother of the maternal grandmother's current boyfriend, M.M., was allowed to take the minor from the shelter for an extended visit. As soon as L.G. left with the minor, mother left the shelter and failed to return. L.G. returned the minor to the shelter several days later. Because the minor could not stay at the shelter without mother, the Orange County Social Services Agency (SSA) took the minor into protective custody.
Mother contends that SSA forced L.G. to return the minor to the shelter. As is relevant to this issue, SSA's reports stated: (1) "[T]he child was due to return to [the] Shelter on Monday, September 5, 2016. The child's family members returned the child to [the] Shelter on September 7, 2016"; (2) the lead social worker at the shelter "stated the child was brought back to the shelter today by the maternal family. The mother has been AWOL'ed since Sunday 9/4/16. She reported the child cannot stay at the facility without the mother"; (3) the minor "was on a weekend pass with the maternal grandmother's boyfriend . . . and was taken back to the shelter on September 7, 2016, by the child's maternal family. The child is not allowed to stay at the shelter in her mother's absence"; (4) mother told the social worker that L.G. returned the minor to the shelter because the social workers at the shelter told her to do so; and (5) in explaining why L.G. and M.M. were not appropriate for placement of the minor, SSA noted they "were seen as uncooperative with Social Services in returning the child after the mother went AWOL." The evidence does not support mother's interpretation of what prompted L.G. and M.M. to return the minor to the shelter.
SSA filed a juvenile dependency petition, alleging the minor came within the juvenile court's jurisdiction pursuant to Welfare and Institutions Code section 300, subdivisions (b)(1) and (g). (All further statutory references are to the Welfare and Institutions Code.) The juvenile court detained the minor; she was placed in foster care.
The minor's alleged father was unaware of mother's whereabouts, and was not able to care for the minor; he also questioned his paternity, and had not sought visitation with the minor. The alleged father also had a history of substance abuse and of criminal activity. Shortly before the jurisdiction hearing, the paternal grandmother advised SSA that the alleged father was incarcerated; if he was released, he would likely be placed under house arrest.
The alleged father is not a party to this appeal, and will only be mentioned as necessary for an understanding of the facts of the case.
Mother told SSA, "she was willing to complete any and all services and expressed that she was unsure . . . if she wanted to reunify with her child. She offered that she needs time to get her life stabilized and preferred the baby be with family, until she was ready to care for her."
At the hearing, mother denied that she had abandoned the minor or failed to make arrangements for the minor's care. The day before the minor was returned to the shelter, mother, L.G., and M.M. had all signed an appointment of short-term guardian form. The appointment named L.G. and M.M. as the minor's short-term guardians and health care agents, effective immediately, and continuing until the appointment was revoked in writing or as required by law, or if a permanent legal guardianship was ordered. Mother claimed that L.G. and M.M. would have continued to care for the minor, but the shelter insisted that they return the minor. Mother testified that she intended that L.G. "get legal guardianship for my daughter until I get myself straight." Mother further testified that she and L.G. had discussed L.G. being the minor's legal guardian until mother turned 18 (at the time of the jurisdiction hearing, mother was not yet 17). Mother believed L.G. and M.M. could provide a safe home for the minor because they had looked out for mother and provided "advice and stuff like that" to her, although she had never lived with them.
Before the jurisdiction hearing, a social worker contacted L.G. to inquire about the minor being placed in her home. L.G. was "not happy" that all the adults living in her home would have to be "Live-Scanned" before such a placement could occur. Several days later, when SSA contacted L.G. about the minor's placement, L.G. explained that she would be unable to accept placement of the minor due to L.G.'s health problems.
Mother testified that she had been in drug treatment while living in the shelter, and had stayed clean for about two weeks after leaving. Mother then started using "crystal meth" and marijuana; she stopped crystal meth about two weeks before the jurisdiction hearing, but had continued smoking marijuana. Mother had stopped taking her antidepressant medication when she left the shelter, but was willing to take it again.
Mother admitted at the jurisdiction hearing that she was absent without leave from placement in her own dependency matter in Los Angeles County, and that she had violated the prohibition of unmonitored contact with the maternal grandmother.
Mother admitted that she was not currently able to care for the minor. She wanted to give custody to L.G. "[b]ecause I feel she's the right person for my daughter to be with." Mother testified that the maternal grandmother would also be an appropriate caregiver for the minor.
After an evidentiary hearing, the juvenile court found the allegations of the petition, as amended, to be true by a preponderance of the evidence, and found that the minor came within the court's jurisdiction, pursuant to section 300, subdivisions (b) and (g). The court further found by clear and convincing evidence that it would be detrimental to vest custody of the minor with mother. Reunification services were ordered for mother, and a review hearing was set.
DISCUSSION
Mother argues the juvenile court erred in finding that the minor was within its jurisdiction, pursuant to section 300, subdivisions (b) and (g). We review the jurisdiction order to determine whether the findings were supported by substantial evidence. (In re A.J. (2011) 197 Cal.App.4th 1095, 1103.) "'In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court.'" (Ibid.) We conclude there was substantial evidence to support the juvenile court's jurisdictional findings.
I.
SECTION 300, SUBDIVISION (b)(1)
"A juvenile court may determine a child is subject to the court's jurisdiction [pursuant to section 300, subdivision (b)] if it finds by a preponderance of the evidence that '[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness,' as a result of a parent's failure or inability to adequately supervise or protect the child, a parent's failure to provide the child with adequate food, clothing, shelter, or medical treatment, or a parent's inability to care for the child due to the parents' mental illness, developmental disability, or substance abuse. [Citation.]" (In re David M. (2005) 134 Cal.App.4th 822, 829.)
Whether a minor comes within section 300, subdivision (b) requires proof by a preponderance of the evidence "of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) "The third element 'effectively requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur). [Citations.]' [Citation.]" (In re David M., supra, 134 Cal.App.4th at p. 829.)
At the time of the jurisdiction hearing, mother admitted she was using drugs, and was not receiving treatment for her mental and emotional problems. She further admitted she was not then capable of taking care of the minor. Absent anything further, our analysis would end here.
Mother argues, however, that she had made appropriate arrangements for the minor's care. "'A parent's right to care, custody and management of a child is a fundamental liberty interest protected by the federal Constitution that will not be disturbed except in extreme cases where a parent acts in a manner incompatible with parenthood. [Citations.]' [Citation.] . . . Thus, the constitutional right of parents to make decisions regarding their children's upbringing precludes the state from intervening, in the absence of clear and convincing evidence of a need to protect the child from severe neglect or physical abuse. [Citations.]" (In re Isayah C. (2004) 118 Cal.App.4th 684, 696.) A parent's freedom to make decisions for his or her child generally allows the parent to leave a child with other caretakers. "[T]he need to establish dependency has not been shown merely because the custodial parent relies on the temporary custodial assistance of suitable third parties. [Citation.]" (Id. at p. 697.) "[T]he fact that a child has been left with other caretakers will not warrant a finding of dependency if the child receives good care." (In re Rocco M., supra, 1 Cal.App.4th at p. 824.)
The question thus becomes whether L.G. and M.M. were suitable third parties to provide temporary custodial assistance. Clearly, at the time of the jurisdiction hearing, L.G. was not a suitable caretaker, as she had refused to allow SSA to make necessary safety checks on the adults living in her home, and had ultimately advised SSA that she would not be able to take custody of the minor due to L.G.'s own health problems. Placement of the minor with either L.G. or M.M. was problematic because M.M. was the current boyfriend of the maternal grandmother. The maternal grandmother was subject to an order limiting her contact with mother (due to the maternal grandmother's failure to protect mother from physical and sexual abuse at the hands of a former boyfriend). The maternal grandmother's history would put the minor at a substantial risk of injury if they were in contact, and the maternal grandmother's relationship to L.G. and M.M. made such contact highly likely.
Mother argues that L.G. and M.M. would have continued to care for the minor but for SSA's interference. Mother fails to address the issue of L.G.'s health problems.
II.
SECTION 300, SUBDIVISION (g)
As relevant to this case, section 300, subdivision (g) provides: "The child has 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."
"Whether a parent can arrange for care is to be determined as of the date of the jurisdictional hearing." (In re J.O. (2009) 178 Cal.App.4th 139, 153; see In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134 ["The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm."].)
In this case, there is no question that mother could not arrange for the minor's care at the time of the jurisdiction hearing. Mother left the shelter at which she and the minor had been living together, which caused that placement to be terminated. The adult with whom mother had left the minor returned the minor to the shelter. Mother admitted she was currently unable to care for the minor. L.G. had removed herself from consideration as a caretaker. The alleged father had not established his paternity, and was either incarcerated or had recently been released to house arrest at the time of the jurisdiction hearing. And the maternal grandmother's history of failing to prevent the sexual and physical abuse of mother by the maternal grandmother's then-boyfriend made her an inappropriate caretaker for the minor.
DISPOSITION
The order is affirmed.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.