Opinion
H045225
04-27-2018
In re M.G., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. R.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. DP002839)
R.G. (mother) appeals from the juvenile court's order in the juvenile dependency petition filed on behalf of seven-year-old M.G. (daughter). In that order, the juvenile court placed daughter with father, granted him sole legal and physical custody, authorized father to relocate to New Jersey, and terminated its jurisdiction over daughter.
The petitions also initiated a dependency on behalf of (now) 13-year-old A.G. (son), but the proceedings relating to him are not at issue in this appeal.
We find no error and will affirm the order.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Initial dependency petition and proceedings
On January 8, 2014, the Santa Cruz County Human Services Department (Department) filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), and (j) on behalf of daughter. In that petition, the Department alleged: (1) daughter was at risk of serious physical harm due to father's violent physical discipline; (2) mother failed to protect daughter from father's abuse; (3) mother's history of mental health and substance abuse issues interferes with her ability to safely care for her children; and (4) mother failed to care for son and consequently there is a substantial risk that daughter would be neglected as well.
Unspecified statutory sections are to the Welfare and Institutions Code.
The Department's February 11, 2014 jurisdiction/disposition report recommended that both daughter and son remain in mother's care, with mother to receive family maintenance services. The report noted mother's prior child welfare history, dating back to 2004, during her pregnancy with son, as well as her prior criminal history with multiple arrests on drug and alcohol charges. Father's criminal history was limited to traffic offenses. Mother submitted on the jurisdiction/disposition report, but father requested the matter be set for settlement conference.
Following the settlement conference on February 25, 2014, the petition was amended to remove the section 300, subdivision (a) allegation that father employed violent physical discipline. Father submitted on the amended petition and report. The juvenile court sustained the amended petition, declared the children dependents of the court, and ordered that they be placed in mother's care, with both parents receiving family maintenance services.
1. Six-month review
In the August 12, 2014 six-month review report, the Department noted that mother had obtained stable and secure housing and was "fully engaged" in her case plan. Her drug tests were negative, apart from positive tests for methadone in January and February.
Mother informed the social worker she wanted to discontinue taking methadone as well and did so at the end of February.
Father, who was residing in Ventura County at the time, completed his parenting education, but had not yet started counseling. He was initially resistant to engaging in counseling, but when the social worker explained it was required by his case plan, he expressed a desire to "get signed up . . . right away."
At the six-month review hearing, the juvenile court adopted the Department's recommendations to continue the children as dependents of the court, with both parents receiving an additional six months of family maintenance services.
2. Twelve-month review
The February 10, 2015 review report recommended that the children remain dependents of the court, with both parents continuing to receive family maintenance services. The report noted that mother was maintaining her sobriety and reached out for assistance when she struggled with limited resources. Father had reportedly moved to New York and the Department was attempting to contact him to provide referrals for services in his area. The Department requested an interim review hearing in 90 days for reassessment and possible dismissal.
At the hearing, the juvenile court adopted the Department's recommendations and set an interim review hearing for May 5, 2015.
At the interim review hearing, daughter's court appointed special advocate recommended that the matter be dismissed, but the Department disagreed due to mother's recent relapse with alcohol. The juvenile court did not dismiss the matter, and set an 18-month review.
3. Eighteen-month review
The July 28, 2015 review report again recommended that the children remain dependents of the court, with both parents continuing to receive family maintenance services. The report noted that mother was focusing on developing the tools needed to maintain her sobriety, but was struggling with stability relating to her seasonal farm labor work. Father had returned from the East Coast, and the Department was hopeful he would "begin attending to case plan requirements, participate in services, and begin to gain insight into how the use of aggression, physical discipline, and negative reinforcement may be detrimental to a child's development."
The parents submitted on the Department's review report, and the juvenile court adopted the Department's recommendations.
4. Twenty-four-month review
In its February 16, 2016 review report, the Department noted that mother had relapsed in August 2015 but was "hopeful that [she] will maintain her current stability and sobriety efforts while making better efforts to communicate her needs." Father was still in Santa Cruz County and had been visiting with daughter (supervised by mother), but needed to be "more consistent with participation on his case plan activities" and maintain "communication with the Department regarding his case plan needs."
According to the report, mother's "relapses and isolation" were due, at least in part, to her not "reach[ing] out for help in times of need."
At the hearing, the juvenile court adopted the Department's recommendations to continue the children as dependents of the court in mother's custody and continue family maintenance services to mother and father.
B. August 24, 2016 supplemental petition
The Department filed a section 387 supplemental petition recommending that the children be removed from mother's care, as she had relapsed with both alcohol and heroin and was leaving the children home alone without adult supervision. Mother refused drug testing in January, February and April 2016, tested negative in March and July 2016, but tested positive for codeine, morphine, amphetamines, and methamphetamines in June 2016. Her May 2016 test was inconclusive due to her tampering with the urine sample. The petition also noted that father was aware that daughter and son were being left home alone, but failed to intervene. The children were detained on August 25, 2016.
The matter settled prior to the contested hearing, and the juvenile court sustained the allegations of the supplemental petition, as amended. The children were continued as dependents of the court in out-of-home placement. Mother and father were to be provided with family reunification services, including supervised visitation.
The amendments to the petition were not substantive.
1. Six-month review
The April 11, 2017 six-month review report noted that mother was "unable to participate in case plan services" and told the social worker she was "unable to focus on her own substance abuse disorder and on herself while her children remained in foster care." Mother had more than 10 failed attempts to begin substance abuse treatment, and informed the Department she was expecting another child in June 2017. Father had progressed to having overnight visits with daughter and had completed his individual therapy. The Department recommended that mother and father receive further reunification services.
At the hearing, the juvenile court adopted the Department's recommendations to continue family reunification services for mother and father. Mother was permitted a minimum of twice-weekly supervised visitation, and father was allowed a minimum of twice-weekly unsupervised visitation.
2. Twelve-month review
On September 19, 2017, the juvenile court granted the Department's request for a continuance of the twelve-month review, setting October 3, 2017, for receipt of the report and October 10, 2017, for the review itself. The minute order also notes that counsel waived the 10-day rule.
The twelve-month review report, filed on October 3, 2017, recommended that daughter return to father's care, with mother provided supervised visits. The Department further recommended both parents receive family maintenance services. In the report, the Department noted that mother's participation in her case plan "has been minimal." Daughter had commenced an extended 30-day visit with father on September 13, 2017, and appeared "happy and healthy."
At the twelve-month review hearing on October 10, 2017, the juvenile court noted that father "is interested in relocating to New Jersey and the Department is looking into preparing the ICPC paperwork." Mother objected to the Department's recommendations and requested the matter be set for a settlement conference and contested hearing. The juvenile court scheduled the settlement conference and contested hearing for October 30, 2017.
On October 17, 2017, the Department served a memorandum on the court and all the parties, recommending that the juvenile court dismiss daughter's dependency and award legal and physical custody to father. Several days later, on October 25, the Department served a notice on all parties that the Department was recommending "dismissal for [daughter] to the father with physical and legal custody." This notice was followed by another memo to the court from the Department, filed on October 26, advising that mother had tested positive for morphine, methamphetamines, methadone, MDMA, and amphetamines on October 12, 2017.
At the twelve-month review hearing on October 30, 2017, mother's counsel requested a continuance so that she could "continue participating in the case plan and be able to present more evidence." Mother's counsel stated that mother was notified "on October 10th . . . about the changes of the Department's recommendation, and specifically about father's intention to move out of state," and was therefore requesting mediation, as well as objecting to the move-away.
Daughter's counsel objected to mother's requests, noting that mother and her counsel had been aware of father's intent to move to New Jersey since October 10, and had 20 days in which to object, request a continuance, or seek mediation. In addition, daughter's counsel noted that it would be detrimental for daughter to continue the matter, as father would be without local housing in two days if he could not relocate to New Jersey.
The juvenile court denied mother's requests, finding that she had sufficient notice of the Department's recommendations as to placing daughter with father and his intention to relocate. The court noted that mother would have the opportunity during the contested hearing to present evidence on why she believed it would be detrimental to daughter for her to move with father out of state.
The juvenile court admitted the Department's reports, memos, prior court orders, and mother's September 2017 visitation logs into evidence. Mother was the only person called to testify.
Mother testified that her visitation with daughter during the previous six months was sporadic, due to daughter's doctor appointments as well as daughter having lice. Mother said she had been attending counseling and completed a parenting class. She was participating in her children's education to the extent she was allowed. Mother further testified that she was participating in substance abuse treatment and had completed two separate programs.
Mother was opposed to the recommendation that daughter be allowed to move with father to New Jersey, and believed she had not been provided enough of an opportunity to "really bond" with daughter.
Following the close of evidence and final argument, the juvenile court ordered that father be given sole legal and physical custody of daughter. As to the move-away, the juvenile court found that it would not be detrimental to daughter and would be in her best interest to move with father to New Jersey. Mother was to receive a minimum of twice-yearly face-to-face supervised visits with daughter, with mother to travel for those visits, as well as twice-weekly telephone or video calls with daughter, monitored by father.
Mother timely appealed.
II. DISCUSSION
A. No error in denying mother's request for continuance
Mother argues the Department failed to provide her with notice of its recommendations at least 10 days prior to the hearing, and therefore she was entitled to a continuance of that hearing. Citing Judith P. v. Superior Court (2002) 102 Cal.App.4th 535 (Judith P.), mother asserts that the denial of a continuance constitutes structural error and is reversible per se. We disagree.
1. Applicable legal standards
Section 352, subdivision (a), provides in part: "Upon request of counsel for the parent . . . , the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (See Cal. Rules of Court, rule 5.550(a)(1).)
"Continuances in juvenile dependency proceedings are disfavored, particularly when they infringe on maximum time limits under the code." (In re David H. (2008) 165 Cal.App.4th 1626, 1635.) The moving party has the burden to demonstrate good cause for a requested continuance. (See Evid. Code, §§ 500, 550, subd. (b).)
"A reviewing court will reverse an order denying a continuance only upon a showing of an abuse of discretion." (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.) " ' ["]The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Under the abuse of discretion standard of review, a court's ruling will not be disturbed unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner. (Id. at p. 318.)
2. No structural error
In Judith P. the court terminated reunification services at the twelve-month review hearing in accordance with the recommendations of the social worker contained in the status report although neither the mother nor her counsel was served with a copy of the report until the morning of the hearing. The court stated, "[T]he impact of having less than the statutorily mandated minimum time within which to (1) confer with one's lawyer, (2) contact witnesses, (3) obtain documents, (4) prepare for examination and cross-examination, and (5) hone one's arguments, is impossible for either a trial court or an appellate court to assess. Thus, these factors indicate that the error is [structural] error." (Judith P., supra, 102 Cal.App.4th at p. 557.)
More recently, however, the California Supreme Court has cautioned against using the structural error doctrine in dependency cases. In In re James F. (2008) 42 Cal.4th 901 (James F.), the Supreme Court explained that the concept of structural error was developed in criminal cases: "In Arizona v. Fulminante [(1991)] 499 U.S. 279, a criminal case in which the erroneous admission into evidence of a defendant's coerced confession was at issue, the United States Supreme Court distinguished constitutional errors called ' "trial errors" ' that 'occur[] during the presentation of the case to the jury' and the effect of which can 'be quantitatively assessed in the context of other evidence presented in order to determine whether [they were] harmless beyond a reasonable doubt' [citation], from other, less common constitutional errors that are 'structural defect[s] affecting the framework within which the trial proceeds' so that they 'defy analysis by "harmless-error" standards' and can never be harmless [citation]. Structural defects requiring automatic reversal of a criminal conviction typically involve basic protections without which ' "a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair." ' " (Id. at p. 914.) Examples of structural defects include "total deprivation of the right to counsel, denial of the right of self-representation, trial before a judge who is not impartial, unlawful exclusion of members of the defendant's race from a grand jury, and denial of the right to a public trial." (Ibid.) Admission of an involuntary confession by a defendant, however, was a constitutional error "subject to harmless error analysis." (Ibid.)
As noted by the California Supreme court in James F., juvenile dependency proceedings and criminal proceedings are significantly dissimilar. "In a criminal prosecution, the contested issues normally involve historical facts (what precisely occurred, and where and when), whereas in a dependency proceeding the issues normally involve evaluations of the parents' present willingness and ability to provide appropriate care for the child and the existence and suitability of alternative placements. Finally, the ultimate consideration in a dependency proceeding is the welfare of the child [citations], a factor having no clear analogy in a criminal proceeding." (James F., supra, 42 Cal.4th at p. 915.)
In James F., prior to appointing a guardian ad litem, the juvenile court failed to explain the guardian's capacity and powers to the father and provided the father no meaningful opportunity to oppose the appointment. It was undisputed father's due process rights had not been satisfied. Therefore, the California Supreme Court looked to whether that due process violation constituted structural error—in which case the resulting order was reversible per se—or was the order subject to review under the harmless error standard. The court concluded that the juvenile court's due process error was not structural, and noted further that, because the father was never ready to assume custody of his son due to his demonstrated incompetence, "the result achieved here was certainly correct, and therefore just." (James F., supra, 42 Cal.4th at p. 918.) Harmless error analysis was appropriate because, unlike a case involving structural error, prejudice could be ascertained without " 'a speculative inquiry into what might have occurred in an alternate universe.' " (Id. p. 915.) "If the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required." (Id. at p. 918.)
The instant case is also amenable to a harmless error analysis. Several factors demonstrate that the juvenile court's decision was not arbitrary, capricious, or unreasonable.
First, and most importantly, is the fact that mother had more than 10 days' notice of the Department's recommendations that: (1) father have full legal and physical custody of daughter; and (2) father be allowed to move to New Jersey with daughter. Those recommendations were set forth in a memo to the court served on all parties on October 17, 2017. Mother's counsel admitted that, as of October 10, 2017, she and mother were aware that father intended to relocate to New Jersey and the Department was "chang[ing] [its] recommendation" as to daughter.
The document was not filed until October 30, 2017, for unexplained reasons.
Second, under section 352, the juvenile court is obliged to consider the impact on the minor in deciding whether to grant a continuance. In doing so, the juvenile court must take into account, among other things "a minor's need for prompt resolution of his or her custody status, [and] the need to provide children with stable environments." (Id., subd. (a).) Here, the juvenile court was informed that father was relocating to New Jersey, where he has "family and connections," because he was losing his housing in Santa Cruz County at the end of October. Father did not have "financial or economic opportunities" in Santa Cruz County and it was difficult for him to find housing in the area due to the high cost of living. Consequently, the juvenile court was presented with a choice of continuing the hearing, during which time both father and daughter would be without a place to live, or hold the hearing as scheduled.
Given the available evidence, the juvenile court did not abuse its discretion in denying mother's request for a continuance.
B. No abuse of discretion in terminating supervision
Mother next contends the juvenile court abused its discretion by terminating supervision over daughter. Mother argues that daughter had only been living with father on an extended visit for six weeks, and there was an investigation into possible child abuse stemming from statements daughter made during a supervised visit with mother in September 2017, as well as an allegation, admitted by father, that he pulled daughter's hair during an overnight visit in February or March 2017. There was little to no information presented regarding the move to New Jersey, such as where father and daughter would live, what services would be provided to them or even what employment prospects were available to father.
1. Applicable legal standards
"The burden of proof on the issue of termination rests with the party seeking to terminate jurisdiction and the decision whether to terminate jurisdiction falls within the sound discretion of the juvenile court." (In re Robert L. (1998) 68 Cal.App.4th 789, 794; In re J.S. (2011) 196 Cal.App.4th 1069, 1082.) When a decision is "committed to the sound discretion of the juvenile court, [its] ruling should not be disturbed on appeal unless an abuse of discretion is clearly established." (In re Stephanie M., supra, 7 Cal.4th at p. 318.) To warrant reversal, the challenged determination must exceed the bounds of reason. (Id. at pp. 318-319.)
We review the court's factual findings—including its underlying finding as to the need for continuing supervision—for substantial evidence. (In re A.J. (2013) 214 Cal.App.4th 525, 535, fn. 7; In re Austin P. (2004) 118 Cal.App.4th 1124, 1134 [appellate court reviewed record for substantial evidence indicating whether there was a need for continuing supervision].) "Under the substantial evidence rule, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; see also, e.g., In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order." (In re Diamond H., supra, at p. 1135.)
2. No abuse of discretion
Mother has failed to establish the evidence before the juvenile court was not "sufficiently substantial" to support the termination. (In re Diamond H., supra, 82 Cal.App.4th at p. 1135.) At the time of the twelve-month review hearing in October 2017, daughter had been a dependent of the court since January 2014, more than three-and-a-half years. The basis for that dependency was mother's substance abuse and failure to protect daughter from father's physical discipline. While father's initial participation in his case plan was sporadic and inconsistent, in June 2016, the Department noted improved progress on his individual therapeutic goals. By the end of January 2017, father had met his therapeutic goals and had transitioned to attending weekly counseling sessions with daughter.
While the April 2017 six-month review report discloses an incident during daughter's first 72 hour visit with father where he pulled her hair, the report states that father disclosed the incident to the therapist during a session. Father "appeared remorseful" and was "working on this behavior and ways to avoid it in the future in his sessions with [daughter] and [the therapist]." The Department formulated a safety plan with father and scheduled additional overnight visits before approving an extended visit. The report concluded that father "has stepped up and increased his level of involvement in [daughter's] life[,] . . . has expressed and followed through with his actions, his commitment to caring for [daughter]" as he "learn[s] how to deal with her sometimes difficult behaviors."
The other possible instance of child abuse noted by mother stems from a September 11, 2017, supervised visit between mother and daughter. During this visit, daughter told mother, " 'I miss you too, god didn't save my life.' " When mother asked what she meant, daughter replied, " 'he didn't save my life because dad was hitting me, that's why god didn't save me, I told my therapist . . . already.' " Daughter provided no other details and returned to coloring. There is no indication when father hit daughter, though her use of the past tense implies she could have been referencing the physical discipline which was a basis for the initial dependency petition. There is no indication that daughter showed mother or anyone else any bruising or other marks to suggest that father had recently hit her.
In May 2016, daughter reported that father hit her sometimes, but that allegation was investigated and determined to be unfounded.
While there may have been some evidence to support mother's position that termination was not appropriate in this case, there was substantial evidence to support the juvenile court's finding that placing daughter with father and terminating jurisdiction was the appropriate outcome. Once a dependent minor is "placed with [a parent] and [is] found not to be 'at risk' in that setting for any of the enumerated harms, the core predicate for juvenile court jurisdiction disappear[s]." (In re J.S., supra, 196 Cal.App.4th at p. 1082.)
Accordingly, the juvenile court did not abuse its discretion in terminating jurisdiction.
III. DISPOSITION
The order is affirmed.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Grover, J.