San Diego Cnty. Health & Human Servs. Agency v. A.R. (In re N.O.)
| Decision Date | 30 January 2019 |
| Docket Number | D074064 |
| Citation | 31 Cal.App.5th 899,243 Cal.Rptr.3d 206 |
| Parties | IN RE N.O., a Person Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. A.R. et al., Defendants and Respondents; N.O., a Minor, etc., Appellant. |
| Court | California Court of Appeals Court of Appeals |
Patricia K. Saucier, under appointment by the Court of Appeal, for Minor and Appellant.
Katherine A. Clark, under appointment by the Court of Appeal, for Defendant and Respondent A.R.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant and Respondent S.G.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Welfare and Institutions Code section 3641 governs status review hearings for dependent juveniles who remain or are placed back in the physical custody of their parents or guardians. Subdivision (c) of section (hereinafter, section 364(c) ) provides that the juvenile court "shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn."
Thus, when a child welfare agency such as respondent San Diego County Health and Human Services Agency (Agency) opposes termination of dependency jurisdiction, it bears the burden to show by a preponderance of the evidence the existence of the conditions set forth in section 364(c) to continue jurisdiction. Otherwise, the court "shall terminate its jurisdiction." (Ibid .) In the instant case, however, Agency not only did not oppose termination of dependency, but rather recommended it. Instead, it was counsel of dependent child N.O. (Minor) who opposed termination of jurisdiction over the objection of Minor's parents.
Complicating this case is the fact that it involved the coordination of welfare agencies from Mexico and the United States, after Mexico declined to exercise jurisdiction over Minor, who was detained in California when Minor's mother A.R. (Mother) was arrested at the international border for transporting a large amount of marijuana. Minor was ultimately placed by a California juvenile court with maternal grandmother in Mexico. A few months after her arrest, Mother was released from custody and returned to Mexico, where she participated in services through the agency Desarrollo Integral de la Familia (DIF), which services were ordered and overseen by the juvenile court and Agency. Because Mother made substantial progress in services under her Agency care plan, Minor was returned to Mother's care.
After a domestic violence (DV) incident between Mother and Minor's father S.G. (Father) in late December 2016 came to light in February 2017, Agency recommended Mother receive DV services, which were to be administered through DIF because Mother could no longer cross the border into the United States. When the court terminated jurisdiction in May 2018 it was unclear whether Mother had participated in such DV services. However, perhaps more important for purposes of this appeal, it also was unclear whether DIF had offered Mother such services, or believed they were even necessary.
Indeed, the record shows in the months leading up to Agency's November 2017 recommendation that jurisdiction over Minor be terminated pursuant to section 364(c), DIF ignored the myriad requests of Mother—who had separated from Father, and moved from Ensenada to Tijuana without giving him a forwarding address—(i) to assess Minor, as required by Agency and ordered by the juvenile court, and (ii) to inform Mother whether she needed DV services and if so, where they would be provided and what type of services she would be offered. Equally important, the record also shows that during much of Minor's dependency, the communication of information from DIF to Agency was often delayed, with Agency sometimes receiving months-old information, or in some cases, no information at all, despite its admitted dependence on DIF.
Minor's counsel opposed Agency's November 2017 recommendation to terminate jurisdiction, noting Agency had not personally seen Minor since late May 2017 and Mother since late July 2017, and further noting Mother had then stopped returning phone calls and e-mails from Minor's counsel and Agency, the last contact between Mother and Agency being in late September 2017. Agency nonetheless recommended termination of jurisdiction because a social worker from DIF had assessed Mother and Minor, also in late September 2017, and had reported Minor was continuing to do well in her care, where Minor had been placed since December 2016; Mother had completed all services ordered by Agency under its original care plan; there was no evidence Mother and Father had reunited; and DIF had been unresponsive to Mother and Agency regarding whether it would provide Mother DV services, as noted.
After multiple continuances of the section 364 review hearing, the juvenile court on March 8, 2018, granted Minor's counsel one last continuance, noting that it was "comfortable" closing the case based on the information then available to it and that it did not appear additional information regarding Minor would be forthcoming from DIF. The court suggested Agency reach out to DIF to make Minor's case a "priority" to "verify the minor and the mom are okay." When Agency at the April 5, 2018 continued review hearing again reported that it had no new information from DIF regarding Minor, at the request of Minor's counsel the court set a contested hearing for May 23, 2018.2
At the contested hearing, the court found that Minor had not met her burden under section 364(c) to show that conditions still existed that would justify the court's initial assumption of jurisdiction over her; that there was no reason to continue the review hearing until minor was found, as requested by Minor's counsel; and that it therefore was required to terminate jurisdiction.
On appeal, Minor contends the juvenile court's finding that conditions no longer existed in May 2018 that would justify the initial assumption of dependency over Minor in August 2015 was not supported by substantial evidence; that the court abused its discretion in not continuing the family maintenance review hearing until Minor was found and assessed; and that the juvenile court violated Minor's statutory right to counsel under section 317.
As we explain, we conclude Minor failed to satisfy her burden to show at the contested hearing that conditions still existed which would justify the initial assumption of jurisdiction of her under section 300. Based on this conclusion, we reject Minor's contention that the court abused its discretion in refusing to continue the section 364 review hearing until Minor was found. We also conclude the court did not violate Minor's statutory right to counsel when it refused to continue the hearing, as the record shows Minor's counsel at all times vigorously advocated on Minor's behalf to ensure her safety and welfare. Affirmed.
As noted, in August 2015 Mother was arrested at the international border for smuggling a large amount of marijuana from Mexico into the United States. Fifteen-month-old Minor was in Mother's car at the time of her arrest. Mother denied knowledge of the presence of drugs in the car, stating instead she thought she was transporting money across the border. Mother was eight weeks pregnant with Father's baby at the time of her arrest.
Agency filed a dependency petition under section 300, subdivision (b)(1), alleging that Minor had suffered, or there was a substantial risk that she would suffer, serious physical harm or illness by her parents' willful or negligent failure to provide her with adequate food, clothing, shelter, supervision, or medical treatment arising out of the August 2015 incident. At Minor's August 31, 2015 detention hearing, the court found Agency made a prima facie showing on the petition and detained her.
At Minor's September 22, 2015 jurisdiction and disposition hearing, the court stated it retained jurisdiction of the case pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act ( Fam. Code, § 3400 et seq. ) because the family courts in Tijuana and Ensenada, Mexico, had declined to exercise jurisdiction over Minor. In November 2015 the court sustained the petition's allegations based on a finding of clear and convincing evidence, and also granted Agency's ex parte request to place Minor with maternal grandmother in Ensenada, after she received a favorable home evaluation from DIF. During this same general timeframe, Mother was released from custody and returned to Mexico.
At the contested disposition hearing on December 17, 2015, the juvenile court found by clear and convincing evidence that Minor should be removed from parents' custody pursuant to section 361.5, subdivision (a)(3) because there was, or would be, a substantial danger to her physical health, safety, protection, or physical or emotional well-being if she was returned home. The court declared Minor a dependent of the court and placed her in Agency's care and custody. Mother and Father were ordered to participate in reunification services in Mexico through DIF, which would be overseen by Agency.
In its June 14, 2016 report for the six-month review hearing, Agency stated that Mother and Father were living together in Ensenada, working at a supermarket, attending parenting classes through DIF, and visiting Minor weekly. Agency noted during this reporting period that Mother had "successfully completed 12 psychological sessions" through Instituto Municipal De la Mujer de Ensenada, where it "was reported that these sessions...
To continue reading
Request your trial
-
L.A. Cnty. Dep't of Children & Family Servs. v. L.C. (In re M.S.)
...bearing the burden of proving the existence of conditions justifying further supervision failed to meet that burden. (In re N.O. (2019) 31 Cal.App.5th 899, 925 (N.O).) In the latter situation, "the question is 'whether the evidence compels a finding in favor of the appellant[s] as a matter ......