Persons Coming Under the Juvenile Court Law. Sonoma Cnty. Human Servs. Dep't v. Superior Court of Sonoma Cnty. (In re J.S.)
| Decision Date | 19 November 2014 |
| Docket Number | A142662 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re J.S. et al., Persons Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT et al., Petitioners, v. THE SUPERIOR COURT OF SONOMA COUNTY, Respondent; JAMES G., Real Party in Interest. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. Nos. 4312-DEP, 4313-DEP)
In this dependency case, twins J.S. and K.S. (Minors) were removed from their mother's custody and placed in foster care. Although identified as Minors' presumed father, James G. (Father) did not directly participate in the dependency proceedings until about a year and a half after their original detention when he filed a petition under Welfare and Institutions Code section 3881 seeking visitation and objecting to any adoption plan for the children. At the time of his section 388 petition, Father was hospitalized, having suffered a massive stroke, and was physically incapacitated with only limited ability to communicate through head and eye movements. After a hearing,the juvenile court "placed" the Minors with Father pursuant to section 361.2, subdivision (a) (section 361.2(a)), retaining jurisdiction (§ 361.2, subd. (b)(2)). The Sonoma County Human Services Department (Agency) and Minors (collectively Petitioners) challenge that order by petition for writ of mandate. They argue that section 361.2(a), which provides for preferred custodial placement with a nonoffending parent, has no application here and that Minors' "constructive" placement with Father was an abuse of discretion in these circumstances. We issued an order to show cause and stayed the placement order pending our decision. We hold that, under the circumstances presented here, the juvenile court was required to consider placement of the Minors with Father, and to grant such placement absent clear and convincing evidence of resulting detriment to the children. We find, however, that the court applied an incorrect standard in assessing detriment and remand for further consideration under the correct legal standard.
In August 2012, Marin County Health and Human Services (Marin HHS) filed a petition pursuant to section 300, subdivision (b), based on conduct of the two-year-old Minors' mother (Mother).2 At the detention hearing, the juvenile court in Marin County declared Father to be the presumed father and appointed counsel to represent him. The jurisdiction report stated that in January 2010, about two months after Minors were born, Father was arrested for choking Mother. Mother obtained a restraining order that allowed peaceful contact between the parents. Father was back in the home by the following July, and two unsubstantiated reports of domestic violence were lodged four months later. Father was arrested for domestic violence against Mother in March and June of 2011. Minors reportedly had no contact with Father after June 2011, when they were about 19 months old. In October 2012, the court sustained the petition.
Notice of the September 2012 jurisdiction hearing was mailed to Father's appointed counsel, but not to Father, whose address was listed as "Hospitalized" and "Hospital in Coma address currently unknown." The jurisdiction report provided an address for Father on Ocean Parkway in Bolinas. At hearings in September and October, Father's counsel said she had not been able to contact Father and asked the other parties if they had contact information for him. Mother's counsel stated during an October hearing that "[F]ather was incarcerated and . . . subsequently suffered a stroke . . . ."
On December 13, 2012, Marin HHS filed a subsequent petition3 alleging that on three occasions in October and December, Mother was found asleep and unresponsive with the children in her care. The court sustained the petition as amended at hearing in January 2013. Around the same time, Minors were placed in a "foster-adopt" home in Marin County.
Notices of the detention, jurisdiction and disposition hearings regarding the subsequent petition were mailed to Father at the Bolinas address and returned undelivered. In December, Mother disclosed during a hearing that the Bolinas address was the family's former home when she, Minors and Father lived together. Mother said she thought Father was in a coma in a hospital in Marysville or Susanville. She said Father's family lived in Fairfax and provided phone numbers for Father's mother and his adult daughter. About the same time, the social worker and Father's counsel reported they had not been able to contact Father. The social worker said letters sent to the Bolinas address continued to be returned undelivered, Father's relatives were withholding information about Father's whereabouts, and a search of prison and parole records and Zabasearch.com were not fruitful.
The social worker said she had spoken with Father's relatives in January or February 2013. Father's mother said she had no way of communicating with Father, although she received his mail at an address in Fairfax. Father's brother and sister reported that Father had suffered a massive stroke, remained hospitalized, and could only communicate by blinking his eyes. They did not disclose Father's location but expressed interest in relative placement.
In March 2013, the court granted the request of Father's counsel to appoint a guardian ad litem (GAL) for Father to facilitate contact. In April, Father's counsel reported that she and the GAL still had not spoken with Father, and the court granted her request to formalize the GAL appointment in a written order, again to facilitate contact. The written application for the GAL's appointment provided an accurate Healdsburg District Hospital address for Father.4
At the April 2013 disposition hearing, the court and parties agreed to defer any findings as to Father until after "everybody's had a chance to visit with the father." The court ordered removal of the Minors from Mother's care and reunification services for Mother. Mother appealed the order, and this court affirmed the removal order in early 2014. (In re J.S. (Feb. 13, 2014, A138506) [nonpub. opn.].)
In May 2013, Minors were informally returned to Mother's care at her residential treatment facility, where they remained until about July. In September, a Marin HHS section 388 petition was granted to formally order their return to her care. The case wastransferred to Sonoma County in October because Mother and Minors had moved there. Upon the case's transfer, the court in Marin County relieved Father's GAL of her appointment. The GAL had reported in September that she still had not made contact with Father and that Father's relatives still had not disclosed his location. Notices of Marin HHS's section 388 petition and the October hearing on transfer were sent to Father at the Bolinas address and returned undelivered.
In December 2013, the Sonoma County Superior Court accepted the transfer and appointed new counsel for Mother, Father and Minors. A new GAL was appointed for Father.5
In February 2014, the Agency filed a section 387 supplemental petition alleging Mother had tested positive for methamphetamine and seeking Minors' removal from her custody. Notice of the detention hearing was sent only to Father's counsel and GAL; Father's personal address was listed as unknown. At the detention hearing, Father's counsel told the court, "[N]either the [GAL] nor I have heard back from him or his family." The children were detained, and the Agency ultimately recommendedtermination of services because Mother would not be able to complete her planned four-month residential treatment program before the 18-month time limit on services expired.
The combined jurisdiction and disposition report and an addendum were sent only to Father's appointed counsel and GAL; Father's address was listed as "Whereabouts unknown." The social worker reported that she had not located Father and his sister had not responded to requests for assistance. While the sister's home had been approved for placement by Marin County, Minors did not bond with her during multiple visits and remained with their former Marin County foster parents.
In May 2014, before the jurisdiction and disposition hearing on the supplemental petition was held, Father's counsel filed a section 388 petition asking the court to order visitation for Father, consider Father's relatives for placement, and rule out adoption at a possible permanent plan at the section 366.26 hearing. He wrote, "Contrary to various reports, Presumed (non offending) [Father's] whereabouts are known, and have been for about a year. . . . [¶] According to Father's Case Management Supervisor . . . Father was admitted to Healdsburg District Hospital October 30, 2012, after falling and suffering a seizure July 29, 2012 in Marysville. He has been at this facility since then. . . . [¶] . . . [¶] [I]n April 2013, [Father's] attorney filed an application for [GAL], and listed Father's address as the Healdsburg hospital, with phone number. . . . Minutes from the Dispositional Hearing in April, 2013 indicate that the Marin [GAL] would be in contact with him, but apparently that never happened. Subsequent reports from Marin and then Sonoma County continued to list Father's whereabouts as unknown, and as of April 18, 2014, no social worker had seen Father. [¶] . . . [¶] . . . [After the transfer...
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