In re A.O.

• Decision Date: 28 May 2010
• Docket Number: No. B218741.,B218741.
• Citation: 109 Cal.Rptr.3d 899,185 Cal.App.4th 103
• Parties: In re A.O., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Aaron O., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

185 Cal.App.4th 103

109 Cal.Rptr.3d 899

In re A.O., a Person Coming Under the Juvenile Court Law.Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Aaron O., Defendant and Appellant.

No. B218741.

Court of Appeal, Second District, Division 1, California.

May 28, 2010.

COPYRIGHT MATERIAL OMITTED.

Andre F.F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant.

Robert E. Kalunian, Acting County Counsel, and Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Byron G. Shibata, Deputy County Counsel, for Plaintiff and Respondent.

MALLANO, P.J.

Aaron O. (Father) appeals from an order on a supplemental petition (Welf. & Inst.Code, § 387) terminating a home of parent order and removing his daughter A.O. from his care after his arrest and incarceration and placing A.O. with Father's wife (Stepmother) in the same house in which A.O. had been living with Father and Stepmother before Father's arrest. ¹ We affirm the order sustaining the section 387 petition because substantial evidence supports the juvenile court's finding that the previous home of parent order was no longer effective to protect A.O. We also hold that a basis to avoid the assertion of dependency court jurisdiction over a child under section 300, subdivision (g)-the incarcerated parent's making an appropriate arrangement for the care of the child by a relative or friend-is inapplicable to a supplemental petition under section 387 because section 300, subdivision (g) deals with the initial imposition of dependency court jurisdiction over a child, which is not at issue on a section 387 petition to terminate a home of parent order. ²

BACKGROUND

Until he was incarcerated in 2007, Father provided financial support for A.O.'s older sister, J.O. (born in 1993), ³ and A.O. (born in 1995). A.O. lived with Father until May 1996. In 2007, the children were living with Joy M. (Mother) and her husband in Las Vegas, Nevada. In an August 2007 visit to the paternal grandmother in Los Angeles, the children disclosed to the paternal grandmother that they had been sexually abused by their maternal step-grandfather in Nevada. The children were detained by the Los Angeles County Department of Children and Family Services (DCFS) and placed first in foster care and then with a maternal cousin. At the time of the detention hearing in August 2007, Father was incarcerated in the county jail, but he attended the hearing and was afforded monitored visits with the children while in local custody. Stepmother was allowed to transport the children and monitor their visits with Father.

In October 2007, the juvenile court sustained a petition declaring the children dependents of the juvenile court pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (d) (sexual abuse), based on their sexual abuse by the maternal step-grandfather, Mother's knowledge of the sexual abuse and failure to take action to protect the children, and Mother's beating of J.O. when J.O. disclosed the sexual abuse to her. The children were removed from parental custody and placed in the custody of DCFS for suitable placement; they remained placed with the maternal cousin. Although Mother was afforded reunification services, she did not visit the children or appear in court during the proceedings below, so her reunification services were terminated in November 2008; Mother sporadically had telephone contact with her children.

The juvenile court dismissed with prejudice all allegations in the petition against Father, who was afforded family reunification services and monitored visitation once a week, with Stepmother as the monitor. ⁴ Because Father was to be incarcerated at the state prison in Chino, the juvenile court did not order him to attend any programs. At the jurisdictional and dispositional hearing, Father testified that while he was incarcerated, he had made arrangements with Stepmother to provide the children with clothes, food, and whatever they needed, and Stepmother did so. He was bonded to his daughters and they wanted to be back in his custody. The court stated that because Father was nonoffending, he should be considered for placement after his release from custody and request for custody.

In August 2008, Father was paroled from prison. In September 2008, both children were placed in Father and Stepmother's home for an extended visit. Because of J.O.'s disruptive behavior, she was removed from Father's home and placed at Rosemary's Children's Service, a group home. In its October 2008 status review report, DCFS noted that Father was willing to participate in any program to help him deal with his children's behavioral problems and that he was able to provide a stable home for them. In a November 2008 interim review report, DCFS reported that A.O. was doing well in Father's home and that Father recently began parenting classes to help him deal with parenting a teenager. On November 21, 2008, the juvenile court ordered A.O. placed with Father under DCFS supervision and with family maintenance services.

A May 2009 status review report stated that there were no incidents of abuse or neglect of A.O., but Father was experiencing housing and financial difficulties. A.O. was not certain whether she wanted to live with Father because of an isolated incident when father raised his voice to her during a visit with J.O., whom Father believed was a bad influence on A.O. DCFS reported that the family was compliant with family preservation services, including in-home counseling. Father had contacted a mental health agency for services for A.O., but the agency had not responded.

On June 7, 2009, Father was with some of his friends when he was arrested for burglary and violating parole. Stepmother and A.O. were at Stepmother's sister's house when Father was arrested. The maternal grandmother notified DCFS of Father's arrest on June 10, 2009. Stepmother wanted to continue to care for A.O. and signed an affidavit stating so and also agreeing to comply with requests by DCFS and all court orders.

On June 23, 2009, DCFS filed a supplemental petition under section 387 alleging that the previous disposition for A.O. had not been effective for her protection because Father “is unable to provide the child with ongoing care and supervision in that on 6/7/09, the father was incarcerated for burglary and violation of parole and is currently incarcerated. The father's inability to provide the child with ongoing care and supervision endangers the child's physical and emotional health and safety and places the child at risk of physical and emotional harm and damage.” The petition noted that A.O. was detained on June 18, 2009, and placed with her Stepmother in the same home where A.O. had been residing with Father and Stepmother.

According to the July 6, 2009 jurisdiction/disposition report for the supplemental petition, Father “has a history of illicit drug use including criminal history of convictions for drug-related offenses which impaired his ability to provide the minor with regular care. Further, father's poor judgment as to violating parole endangers the minor's physical safety and emotional well being and creates a detrimental home environment.” A.O. told DCFS that she wanted to remain in Stepmother's care, but if she is moved, she would like to live with the maternal grandmother or close to her in Pomona. Stepmother told DCFS that she was willing to do whatever was necessary for A.O. to remain in her care. A June 26, 2009 progress report from the in-home counseling agency reported that the family had been participating consistently in the program until May 2009, when Father missed all four weekly counseling sessions; the agency reported that services will be terminated due to noncompliance.

After an August 27, 2009 hearing, the juvenile court sustained the supplemental petition, removed A.O. from Father's custody, and ordered her suitably placed with Stepmother. The juvenile court found by clear and convincing evidence that a substantial danger existed to A.O.'s physical health and she was suffering severe emotional damage and there was no reasonable means to protect her without removal from Father.

The juvenile court rejected the request of Father and A.O.'s counsel to dismiss the supplemental petition on the ground that Father had made an appropriate plan for A.O. to reside with Stepmother. Father's counsel argued that he was entitled to oppose the section 387 petition on the same grounds as if the petition were filed under section 300, subdivision (g).

In sustaining the petition, the juvenile court explained: “If the father had been arrested and had made a plan that was appropriate, I think that would be a different situation than what we have now. [¶] ... [¶] Based upon the evidence that I have, I don't know if the father spoke to the stepmother about caring for the child, but the department got an affidavit from the stepmother saying the stepmother would care for the child, make sure she was in school, and take care of her in an appropriate fashion. [¶] I think this is different. I think the father put himself in a position. This was an HOP father [home of parent order]. So for me now to find that he made an appropriate plan based upon himself getting arrested for burglary-he does have a long criminal history-that essentially, I would be keeping a home-of-parent father order. And I don't think that's appropriate at this point in time. [¶] And so I'm going to sustain the [supplemental petition]. I don't agree with [Father's counsel] and [A.O.'s counsel] with respect to their analysis of the law and how I should apply the law with respect to the 387 [petition]. So I am sustaining this.”

On appeal from the order sustaining the supplemental petition, Father challenges the sufficiency of the evidence. He argues that because he had made an...