San Diego Cnty. Health & Human Servs. Agency v. E.A. (In re E.A.)
| Decision Date | 12 June 2018 |
| Docket Number | D073041 |
| Court | California Court of Appeals Court of Appeals |
| Parties | IN RE E.A. et al., Persons Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency et al., Plaintiffs and Respondents, v. E.A. et al., Defendants and Appellants. |
William Hook, San Diego, under appointment by the Court of Appeal, for Defendants and Appellants.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent San Diego County Health and Human Services Agency.
Neale B. Gold, San Diego, under appointment by the Court of Appeal, for Plaintiff and Respondent Z.A.
Patti L. Dikes, under appointment by the Court of Appeal, for Plaintiff and Respondent J.A.
When 14-year-old E.A. and her 11-year old sister, M.A. (together minors or children), came to the attention of the San Diego County Health and Human Services Agency (Agency), they had been living in what the Agency describes as "deplorable" conditions. Minors, who are United States citizens, were living with their parents in Tijuana in an abandoned home with no electricity, no potable water, and with cockroaches crawling near minors' bed. The children had not been to school for over a year. They looked anorexic because J.A. (Mother) and Z.A. (Father) (together parents) fed them only one meal a day.
When ruling in dependency proceedings, " ‘the welfare of the minor is the paramount concern of the court.’ " ( In re B.D. (2007) 156 Cal.App.4th 975, 983, 67 Cal.Rptr.3d 810.) At the time of the dispositive hearing in this case, there was no evidence that the above-described conditions had changed.
However, misinterpreting Welfare and Institutions Code 1 section 300, subdivision (g), and misapplying Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069, 8 Cal.Rptr.2d 259 ( Allen M. ), the juvenile court dismissed the dependency petitions. Minors appeal.
On appeal, the Agency concedes the court erred, but claims we should affirm because the errors are harmless. We conclude the court's errors are prejudicial and, therefore, we reverse with directions to deny the Agency's motion to dismiss the petitions.
E.A. and M.A. are United States citizens. In 2016 minors and their parents were living in Tijuana when their parents' neglect came to the attention of the Mexican Department of Integrity of Families (DIF).
They lived in an abandoned home with no potable water, no hot water, and no running water for the toilet. Minors told DIF their parents hardly worked, Father used marijuana and drank alcohol, and he taught E.A. to smoke marijuana. M.A. told DIF that Mother slept all day, used marijuana, and drank alcohol. Minors had not attended school for over a year. They asked their parents to enroll them in school, but parents refused.
DIF determined that parents were "addicted" to marijuana and removed minors from parents' custody "due to general neglect." Minors lived at a DIF shelter in Tijuana until March 2017.2 During that time, DIF informed parents about the process for reunification. Parents acknowledged they had been made aware of dates and times for a DIF psychological evaluation and socioeconomic study, but they did not show up for either. Parents did not contact, visit, obtain updates, or reunify with the children—"thus abandoning them in the DIF shelter" for seven months. DIF asked the Agency to become involved because minors were United States citizens who were abandoned by parents.
The Agency brought the children to San Diego and filed a dependency petition for each under section 300, subdivision (g) (hereafter section 300(g) ).3 E.A. told the social worker that she did not want to return home and be hungry again. M.A., who had been cutting herself, told the social worker "parents were addicts and she was afraid" of going hungry again. She told the social worker that parents "would use the money they made to buy their marijuana, alcohol, and cigarettes."
The social worker also spoke with minors' 17-year-old brother, who said that parents had allowed M.A. to be cared for by unrelated men, one of whom was a child molester. One of those men tried "to do things" with M.A., but when E.A. told parents the next day, "they blew her off, they said don't say stuff like that, it's not funny."
During its investigation, the Agency learned that in May 2014 Mother had been released from jail for drug trafficking, and both parents were "working for the cartel." Father's criminal history includes a 2009 conviction for possessing marijuana for sale.
The Agency searched for parents but could not locate them. The Agency also unsuccessfully tried to reach parents by telephone. The social worker contacted the children's maternal grandmother, who was living in Southern California (Grandmother), as someone who might be a caregiver.
At the detention hearing, the juvenile court found a prima facie showing had been made that minors were persons described in section 300(g). The court gave the Agency discretion to detain minors with an approved relative or nonrelative extended family member. Addressing minors, the court said, "I know you guys have been through a lot, and that's going to change." The court promised, "Things are going to get better."
In early April parents' whereabouts were still unknown. The Agency detained minors with Grandmother. Both children "voiced their strong opinion about not wanting to return to their parents." They were also "adamant about not wanting to talk to or see their parents." The social worker stated that under parents' care, minors' "medical, dental, educational, and developmental needs were neglected." Parents had not inquired about minors' well-being since August 2016 and had failed to return the social worker's voice mail messages.
On April 24 parents were located in Tijuana. Meanwhile, Grandmother had taken minors to the dentist, library, and had a meeting with a school counselor to enroll them in summer school. Minors enjoyed living with Grandmother and stated they did not want any communication with parents.
On May 23 the social worker informed Father, who was in Tijuana, of the proceedings and that minors were living with Grandmother. The children were doing well in school and were now interested in speaking to their parents, but not living with them. The social worker scheduled a time for Father to call the children, but he did not call.
At the June 14 jurisdictional hearing, parents appeared in court by telephone. The court appointed separate counsel for each, ordered parents to have supervised visits, and continued the hearing to July 5.
In preparation for the July 5 hearing, the social worker scheduled interviews with parents. Mother did not show for her appointment, but Father attended his. Father said the allegations in the dependency petition were "all lies." He said there was always food and the house was messy only because they had recently moved. Father claimed that he had tried to communicate with minors while they were in DIF's custody, but DIF did not allow him to visit. Father denied having any criminal history. When the social worker confronted him with his conviction for possessing marijuana for sale, Father stated he did not know about the conviction.
In June the social worker called Mother three times regarding her missed appointment, but Father answered each call, giving different excuses why Mother was unavailable. The social worker also scheduled parental phone calls with minors—but parents did not call at the appointed times.
The social worker also arranged to have DIF evaluate parents' home. At the July 5 hearing, the Agency requested a continuance to give DIF time to do so. Father's lawyer said his client wanted custody. The juvenile court continued the hearing to "get to the bottom of this."
Meanwhile, Father still had not called minors, claiming he had lost the contact information. On July 18, the social worker reminded Father of the call-in procedure. She also asked him to drug test and to inform Mother she also had to drug test. Father did not show up for the drug test. Mother failed to show up for appointments with the social worker and also failed to drug test.
Minors were thriving with Grandmother. E.A. was attending summer school, and the children were also being tutored. Minors were taking swimming lessons, and M.A. was learning guitar.
Grandmother told the social worker that parents were not calling as scheduled. M.A. said she was "tired of always waiting for them [to call] when they don't even call." E.A. stated "the parents don't care about them so she doesn't want to have any contact." Both girls "expressed their feelings about not wanting to reunify with their parents, and instead, would want to remain with ... [G]randmother." Grandmother was willing to adopt or have guardianship.
By August 15 parents still had not called minors and had not drug tested. The Agency still waited for DIF's home evaluation. At the August 22 hearing, parents appeared by telephone. Father's lawyer requested a trial on the section 300(g) petition—advising everyone that Father "is requesting custody of the girls."
As the pretrial conference approached, parents called minors, but not at the scheduled times. Father told the social worker that DIF had not contacted him for the home evaluation. He also said he has two part-time jobs. Again, the social worker asked Father to drug test; however, Father said he could not get time off work to go to the testing facility. Mother promised to drug test the next day. But both parents failed to drug test and did not call minors as scheduled.
At the pretrial conference, the Agency's attorney stated she was still waiting for the results of DIF's home evaluation. Minors' attorney said, "I would like to put all parties on notice that at the trial I will be requesting the Court...
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