Opinion
E082216
05-10-2024
In re J.E., a Person Coming Under the Juvenile Court Law. v. A.E., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J296332 Cara D. Hutson, Judge. Affirmed.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
McKINSTER ACTING P. J.
A.E. (adoptive mother) appeals from the trial court's order assuming dependency jurisdiction over her 13-year-old son, J.E. (Welf. &Inst. Code, § 300, subds. (b)(1) [risk of physical harm], (g) [child left without adequate support].) Adoptive mother, a neighbor at the time, adopted J.E. out of earlier dependency proceedings about 10 years ago. The present proceedings arose in March 2023 when J.E.'s biological mother, T.S., whose parental rights had been terminated in the earlier proceedings, left J.E. at a freeway offramp after a disagreement with her boyfriend. T.S. later reported that despite J.E.'s adoption by adoptive mother, J.E. resided with her (T.S.) since the age of four, which was shortly after T.S. lost her parental rights. Upon investigation, CFS concluded that, after adoptive mother adopted J.E., she "re-homed" him with T.S. and others for much of his childhood, including most recently when she moved without him to Nevada three years ago.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
CFS expressed a "guarded" prognosis for reunification given that adoptive mother did not seem committed to having J.E. back in her care, which J.E. opposed anyway. Indeed, at the combined jurisdiction and disposition hearing, adoptive mother submitted a written waiver of reunification services. The juvenile court then took jurisdiction over J.E. and in its dispositional order removed him from adoptive mother's custody and found that reunification services need not be provided where she declined them.
On appeal, adoptive mother does not challenge the juvenile court's disposition and does not seek reunification with J.E., but instead asserts only that the court lacked any basis for jurisdiction over J.E. As we explain, the evidence supports jurisdiction over J.E. where adoptive mother had not arranged a safe caretaker for him. We therefore affirm the challenged order.
FACTUAL AND PROCEDURAL BACKGROUND
J.E. first became a dependent of the juvenile court in 2010 when he was around six months old. Concerns regarding domestic violence, the mother's (i.e., T.S.'s) untreated mental health issues, her substance abuse, and her criminal conduct including stabbing J.E.'s biological father prompted those proceedings in Riverside County. (§ 300, subds. (b), (g).) The court eventually terminated the biological parents' rights before J.E. was three years old, and adoptive mother then adopted J.E.
J.E. next came to the attention of child protection services in March 2023. Acting on an immediate response referral, San Bernardino County Children and Family Services (CFS) learned that T.S. put 13-year-old J.E. out of her vehicle at a freeway offramp at night after a disagreement and then drove off. Police officers found J.E. at school the next day; he explained that a concerned shopkeeper near the offramp called a rideshare that took him home. T.S., in contrast, did not return home that night, but instead, unaware that J.E. had returned home, reported J.E. missing the next day. J.E. told the officers that T.S. had "'put [him] out on the freeway'" after she had been "'taking her anger out on me'" following an earlier verbal dispute with her boyfriend, who was not in the car. T.S. was arrested for child endangerment, and CFS took J.E. into custody under exigent circumstances because J.E. had no appropriate caregiver available.
When asked about adoptive mother's whereabouts, J.E. reported he did "not remember much about living" with her and "had not lived with her since he was young." CFS located adoptive mother in Henderson, Nevada. She moved there in 2020 without J.E.; she denied knowing he was living with T.S. Adoptive mother acknowledged a "strained" relationship with J.E., describing him as "defiant" and "rebellious." When she moved away, she allowed him to live with his paternal grandmother (Mrs. M) in Carson. Adoptive mother sent Mrs. M "about $400 a month" for J.E.'s care.
Adoptive mother clarified that she relinquished physical custody of J.E. well before she departed for Nevada in 2020. He had not lived with her since at least 2017 and, between 2017 and 2020, she knew J.E. lived alternately with T.S. and Mrs. M. Adoptive mother described the termination of T.S.'s parental rights as having been based on a "failed . . . drug test." She believed T.S. "was testing clean" once adoptive mother adopted J.E., but she did not require T.S. to show she addressed the extensive issues that required termination of T.S.'s parental rights. The record hints that adoptive mother may have also "raised" T.S. She testified that when asked at the time of J.E.'s adoption, "'Are you okay with [him] being around his biological mom [i.e., T.S.] and his grandmother [i.e., Mrs. M],'" she "told them . . . 'I don't have a problem with that,' because, you know, I raised her. And she lost her child because she failed the drug test, not because of abuse."
J.E. put the date he had last lived with adoptive mother at some time "before he was 7 years old," and T.S. suggested it was earlier still because she had J.E. in her care from when was "about 4 years old." In social worker interviews, J.E. remained steadfast that he "does not want to live with [adoptive mother] or return to her home." He refused any contact or visits with her. Adoptive mother was 65 years old and had adopted several other children over the years. She was currently a foster parent in Nevada with two children in her care, one age 15 and the other under a year old.
Adoptive mother said she believed that on the date J.E. was left by the roadside, Mrs. M had simply left J.E. in T.S.'s care while Mrs. M was in Jamaica. Mrs. M, however, reported that J.E. did not live with her after adoptive mother moved away to Nevada, but instead with T.S. Adoptive mother acknowledged that "throughout the years [J.E.] had on and off visits with his mother and . . . grandmother." To her knowledge, T.S. "did not endanger the child." Adoptive mother had been sick before moving to Nevada, on top of J.E. acting "defiant and not wanting to follow her rules and expectations." Mrs. M volunteered at that time to "keep him in her home" and adoptive mother agreed "due [to J.E.] having issues in her home."
Adoptive mother had not spoken to J.E. for months before the roadside incident; every time she tried to reach him by telephone at Mrs. M's, he was unavailable and Mrs. M would not arrange a return call. Nor would Mrs. M provide updates on J.E.'s schooling. Adoptive mother claimed her inability to reach J.E. concerned her enough to contemplate calling the police. She never did so. She also claimed she was unaware of any arrangement for J.E. to live with T.S., but at the same time expressed concern that T.S. and Mrs. M would "constantly" fight, exposing J.E. to those disputes. Adoptive mother did not act on this concern either.
Adoptive mother admitted to social workers that, as to Mrs. M, "maybe [she] should not have trusted someone that was not being upfront and honest with her." Regarding J.E.'s placement, she stated she "loves the child and wants him to do well," but was "not sure if being in her home is the best thing for [J.E.], given that he was unhappy with her strict structure and expectations." The social worker's last report to the juvenile court before the jurisdiction and disposition hearing noted that adoptive mother "was open" to reunification services and "would like to have the child back, if he wants to return to her home and accepted some of her conditions or rules in the home." (Italics added.)
She did not specify those conditions, but instead reversed course. At the hearing in September 2023, adoptive mother, with the assistance of counsel, submitted a written waiver of reunification services. The waiver by its terms "advised the Court" that adoptive mother "is not interested in receiving family maintenance or family reunification services or having [J.E.] returned to or placed in her custody, and she does not wish to receive family maintenance or family reunification services." (Italics added.) The court accepted the waiver.
Adoptive mother testified at the hearing that she provided for J.E. financially, "mak[ing] sure" that "he got his money," including "money to buy clothes and whatever he need[s] to be taken care [of]." This included calling the "Adoption Assistance Program" to have them "dispense" J.E.'s Medicaid coverage to Mrs. M "because she told me she needed all that stuff." Adoptive mother testified she also sent Mrs. M "a notarized letter stating that she could have [J.E.] in her care." Mrs. M earlier told CFS she had reached out to adoptive mother for the letter so she could enroll J.E. in school and get benefits.
Adoptive mother further testified that Mrs. M made any decisions to "let [J.E.] go back and forth to his [biological] mom" and, for her part, from the time she adopted J.E., adoptive mother "was never told verbally [that J.E.] can't go around his mom." Adoptive mother concluded her testimony by affirming that she "love[s] [J.E.]," but that if he "came back to my home I know it will be detrimental because he says he doesn't want to go with me. He just keeps repeating it."
Following argument by counsel, including by appointed minor's counsel who supported CFS's petition for dependency jurisdiction, the juvenile court found without comment that J.E. qualified for court protection as a dependent child.
DISCUSSION
Adoptive mother challenges the juvenile court's jurisdictional finding, which we review for substantial evidence. (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) As is well-settled, "The substantial evidence standard is a difficult hurdle for an appellant or writ petitioner. 'If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm.' [Citation.] A reviewing court is in no position to judge the credibility of witnesses or reweigh the evidence, and therefore must resolve all evidentiary conflicts in favor of the juvenile court's findings." (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1128 (D.M.).)
The juvenile court's dependency jurisdiction may rest on a single ground. (§ 300 ["A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court," italics added].) In other words, the "reviewing court may affirm [dependency jurisdiction] if the evidence supports the decision on any one of several grounds." (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.)
The court found J.E. to be a dependent child under both subdivisions (b) and (g) of section 300. Subdivision (b) provides for juvenile court jurisdiction when "[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 . . . [¶] [t]he failure or inability of the child's parent or guardian to adequately supervise or protect the child." The juvenile court similarly may protect a child as a court dependent when he or she "has been left without any provision for support" (§ 300, subd. (g)), which does not require a finding of willful abandonment. (D.M., supra, 173 Cal.App.4th at pp. 1128-1129).
More specifically, section 300, subdivision (g) applies when the parent proves "unable to provide or arrange care for the child." (In re J.O. (2009) 178 Cal.App.4th 139, 153-154 (J.O.); see, e.g., In re Monica C. (1994) 31 Cal.App.4th 296, 305 [issue is whether parent "arrange[d] adequately for the care of the child"].) "Whether a parent can arrange for care is to be determined as of the date of the jurisdictional hearing." (J.O., at p. 153.)
Section 300, subdivision (g) alone supports the juvenile court's ruling when, as here, the evidence shows want of an adequate caretaker. (D.M., supra, 173 Cal.App.4th at pp. 1127-1128.) Adoptive mother concedes that T.S., the biological mother, "was an inappropriate caregiver," but protests that she "did not leave [J.E.] with her," but rather with J.E.'s grandmother, Mrs. M. The juvenile court, however, could take little comfort in this supposed distinction for several reasons.
First, adoptive mother knew that in the immediate three years before she departed for Nevada J.E. was not only in Mrs. M's care, but T.S.'s. As adoptive mother herself described in her testimony, J.E. was continuously "back and forth between his grandmama, me and his [mama]." The record also amply supports the conclusion that adoptive mother permitted J.E. to reside in T.S.'s care back to his early childhood. Nothing suggests adoptive mother sought to curtail T.S.'s time with J.E. or take precautions for J.E. around T.S., nor that she instructed Mrs. M to do so. Everything instead indicates she condoned the contact. With this history, adoptive mother's attempt to shift blame to Mrs. M for time J.E. spent with T.S. rings hollow.
Second, the risk to J.E. in T.S.'s care was palpable, as reflected by her arrest for child endangerment in not only leaving him by the roadside, but also in not bothering to ensure or learn whether he returned home safe that evening. Adoptive mother admitted she was aware of disconcerting statements from T.S. like "she was going to live her life, and no one would change that." While adoptive mother suggested T.S. tested negative for illicit drugs in the aftermath of losing J.E., no independent evidence supported that assertion or adoptive mother's supposition that drugs were the sole basis for termination of T.S.'s parental rights.
To the contrary, the record indicates that in the prior dependency T.S. not only "stabbed the father," had "an extensive mental health history [dating back to] her teenage years," failed to take her psychotropic medication, "tends to get aggressive," and missed random drug tests, but also, according to her probation officer, faced charges for "battery and vandalism" regarding an incident she had with her mother, as well as "an automatic prison term if she has another violation." As minor's counsel pointed out below at the jurisdiction hearing, "There was a definite reason why the mother did not get the child back and, unfortunately, it was not just because of one drug test."
Third, the juvenile court's ruling regarding inadequate provision for support is further buttressed by the fact that, while adoptive mother expressed unnervingly little concern about T.S., she did express concerns about Mrs. M and yet did nothing. In contrast to adoptive mother's blithe attitude towards T.S., she was concerned about conflict between Mrs. M and T.S. in front of J.E., and its potential effect on him. Still, she did not address the conflict.
Of greater concern, adoptive mother could not reach J.E. in Mrs. M's care, prompting her to consider calling the police. Yet she did not. As CFS's petition alleged, adoptive mother's failure to provide support for J.E. included "being unaware of the child's whereabouts." In the face of Mrs. M's extensive history of allowing T.S. unrestricted access to J.E., and adoptive mother's own misgivings about Mrs. M, which the juvenile court reasonably could also share, the evidence supports the conclusion that Mrs. M was not an adequate caretaker for J.E. at the time of the jurisdictional hearing.
Nevertheless, adoptive mother suggests the juvenile court could not conclude she left J.E. without "any viable placement options" when she "was amenable to him returning to her home if he would act better." By the jurisdiction hearing, however, at which time the juvenile court had to evaluate any parental arrangements for J.E.'s care, adoptive mother decided ultimately against "having [him] returned to or placed in her custody." She proposed no alternatives besides T.S. or Mrs. M, and thus, in a very real, tangible manner, made no provision for J.E.'s support. She left the question of where a 13-year-old child would go and who he would reside with to the juvenile court.
In D.M., similarly, "[n]early seven months after the social worker advised [the adoptive parents there] to form a plan to handle [their adoptive daughter]'s release from juvenile hall, and nearly five months after she had been released, [the adoptive parents] still had not secured alternative placement for their daughter by the time of the jurisdiction hearing." (D.M., supra, 173 Cal.App.4th at p. 1129.) The daughter there, suffering from reactive attachment disorder and posttraumatic stress syndrome from prior sexual abuse, neglect, and trauma, had acted out against her adopted family's dogs in an awful, fatal manner (inadvertent poisoning). She was "extremely remorseful," "'very salvageable'" according to two expert mental health witnesses, and "fearful of being abandoned" again, this time by her adoptive parents. (Id. at pp. 1121-1122.) The adoptive parents, however, made it "'clear they want[ed] no part of a future relationship with her'" and "proffered no relatives or suitable adults to assume responsibility for C.M." (Id. at p. 1122.)
In D.M., the reviewing court concluded that "regardless of petitioners' reasons . . . 'their actions left [C.M.] with no home and nowhere to go,' thus falling squarely within section 300, subdivision (g).'" (D.M., supra, 173 Cal.App.4th at p. 1129.) The same is true here. Substantial evidence supports the juvenile court's conclusion J.E. required the court's protection as a dependent child.
DISPOSITION
The juvenile court's order assuming jurisdiction over J.E. is affirmed.
We concur: CODRINGTON J., RAPHAEL J.