California Court of Appeal Jul 10, 2015 No. D067330Unpublished
Filed 7/10/15 In re G.B. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re G.B., a Person Coming Under the Juvenile Court Law. D067330 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J518969) Plaintiff and Respondent,
v.
G.L.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Kenneth J.
Medel, Judge. Affirmed.
Katherine A. Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Emily K. Harlan, Deputy County Counsel, for Plaintiff and Respondent.
G.L. (Mother) appeals from an order of the juvenile court making dispositional
findings on a juvenile dependency petition filed by the San Diego County Health and
Human Services Agency (the Agency) on behalf of her minor son, G.B. (born 2005).
Mother contends substantial evidence did not support the court's removal order. She also
asserts the juvenile court erred by failing to make required findings under Welfare and
Institutions Code section 361.2 and improperly terminated jurisdiction. (Undesignated
statutory references are to the Welfare and Institutions Code.) She seeks reversal of the
Although the bias of the statute is on family preservation, not removal (In re Hailey T.
(2012) 212 Cal.App.4th 139, 146), " ' "[t]he parent need not be dangerous and the minor
need not have been actually harmed before removal is appropriate. The focus of the
statute is on averting harm to the child." [Citation.] The court may consider a parent's
past conduct as well as present circumstances. [Citation.]' " (In re John M. (2012) 212
Cal.App.4th 1117, 1126.) The juvenile court's jurisdictional findings represent "prima
facie evidence the child cannot safely remain in the home." (In re Hailey T., at p. 146.)
Although the juvenile court's findings must be made on clear and convincing evidence,
"[o]n review, we employ the substantial evidence test, however bearing in mind the
heightened burden of proof." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) We
consider the entire record to determine whether substantial evidence supports the juvenile
court's findings. (Ibid.)
Based on this record, the juvenile court could reasonably find G.B.'s welfare
required his removal from Mother. As Mother points out, it was undisputed that G.B.
was very bonded to her and wanted to return to her care. These facts, however, are not
directly relevant to whether substantial evidence supported the juvenile court's
5
determination that removal of G.B. from Mother's custody was necessary for G.B.'s
safety. On this point, Mother is silent.
Mother lived in motels, denied any criminal involvement and claimed she had
been arrested based on her relationship with her boyfriend. Although she dated her
boyfriend for a year, she claimed to have no knowledge of his involvement in any
criminal activities. The federal complaint, however, indicated that police intercepted a
telephone call where the boyfriend noted that Mother sold drugs for the criminal
operation. The juvenile court could appropriately consider Mother's level of denial when
determining the risk to G.B. if he were to be placed with her. (In re Esmeralda B. (1992)
11 Cal.App.4th 1036, 1044 ["[R]ecogniz[ing] that denial is a factor often relevant to
determining whether persons are likely to modify their behavior in the future without
court supervision."].)
Mother's past conduct is a good predictor of her future behavior. (In re T.V.
(2013) 217 Cal.App.4th 126, 133.) G.B. reported that he had seen the "green stuff" and
"white stuff" in a nightstand and that Mother smokes the "green stuff." Mother would
leave when he came home from school and, when she came back, would fall asleep even
though he had asked her for help with his homework. Although she had been released
from incarceration by the time of the disposition hearing, nothing in the records
suggested she had a place to live, had ended the relationship with her boyfriend or was no
longer using illegal substances. The juvenile court could reasonably conclude Mother's
admitted marijuana use since the age of 15 and G.B.'s easy access to illegal substances
reflected a continuing inability to ensure G.B.'s safety. (In re Rocco M. (1991) 1
6
Cal.App.4th 814, 825 [juvenile court "is entitled to infer that [11-year-old] child . . . is
subjected to a substantial risk of serious physical harm when he or she is placed in an
environment allowing access to drugs, with nothing to prevent him from succumbing to
the temptation to ingest them"].)
We reject Mother's suggestion that G.B. could have been safely maintained in her
care under family maintenance services given the representations of counsel and the
maternal grandmother that Mother was located in Northern California, was restricted in
her ability to travel to back to San Diego County and criminal charges against her had not
yet been resolved. Nor is there evidence in the record that G.B. could have been placed
in Mother's custody at a sober living house or a drug treatment facility. Additionally, the
maternal grandmother represented to the court that Mother was not due back in court
until 2016, which suggested to the court that Mother was in some type of program.
We conclude that the evidence was sufficient to demonstrate a substantial danger
to G.B.'s physical health, safety, protection, or physical or emotional well-being existed if
he remained in Mother's custody and there were no reasonable means of protecting G.B.
short of removing him from Mother.
Mother also asserts reasonable efforts were not made to keep G.B. in her care.
We reject this assertion.
Mother was released from jail in late October 2014 and requested "potential"
placement of G.B. with her at the pretrial settlement conference in November 2014 where
counsel represented that she was looking into residential programs where G.B. could stay
with her. At the disposition hearing in early December, however, Mother was still facing
7
future criminal proceedings and submitted on the recommendation that G.B. be placed
with Father. At the continued disposition hearing in late December, Mother provided no
update on her living arrangements and did not request that G.B. be placed with her. On
this record, the court could have reasonably concluded that Mother lacked the desire or
capability to care for G.B.
II. Termination and Exit Orders
Mother asserts the juvenile court erred when it terminated jurisdiction after
placing G.B. with Father because it: (1) failed to make required findings under section
361.2, subdivision (c) and the lack of required findings was not harmless error; (2)
improperly terminated jurisdiction despite substantial evidence showing a need for
continuing jurisdiction to monitor G.B.'s placement with Father; and (3) abused its
discretion when it issued exit orders awarding Father physical custody concurrently upon
its termination of jurisdiction. As we shall explain, we reject these contentions.
Subdivision (a) of section 361.2 requires the court to place a child with a
nonoffending parent if that parent requests custody unless it determines "placement with
that parent would be detrimental to the safety, protection, or physical or emotional well-
being of the child." If a child is placed with the previously noncustodial parent, the court
then "decides whether there is a need for ongoing supervision. If there is no such need,
the court terminates jurisdiction and grants that parent sole legal and physical custody."
(In re Austin P. (2004) 118 Cal.App.4th 1124, 1135.)
If the juvenile court gives custody to the nonoffending parent it may (1) terminate
jurisdiction, (2) retain jurisdiction and order a home visit, or (3) retain jurisdiction and
8
provide reunification services to one or both parents. (§ 361.2, subd. (b).) Subdivision
(c) of section 361.2, requires findings, either in writing or orally on the record, as to the
basis for the juvenile court's determination under subdivisions (a) and (b).
As a preliminary matter, county counsel asserts Mother forfeited any error
regarding the juvenile court's articulation of its findings under subdivision (c) of section
361.2 by failing to raise this issue below. Our review of the record shows that when the
juvenile court ordered G.B. removed from Mother's custody, it adopted the findings of
the social worker's report, including the finding that placement with Father would not be
detrimental. At the continued disposition hearing later that month, Father noted that the
court previously found it would not be detrimental to have G.B. placed with him and
asked the court to terminate jurisdiction. County counsel and G.B.'s counsel agreed.
Although Mother objected to termination of jurisdiction, she never complained about the
adequacy of the juvenile court's findings and thus forfeited any error.
Even absent the forfeiture, the juvenile court's failure to explain the basis for its
finding is reversible error only if the error "resulted in a miscarriage of justice." (Cal.
Const., art. VI, § 13.) Meaning " 'it is reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of the error.' " (In re J.S.
(2011) 196 Cal.App.4th 1069, 1078.)
Mother contends that had the juvenile court complied with section 361.2,
subdivision (c), it would have answered the question differently whether to terminate its
jurisdiction. Mother notes that G.B. had lived with Father for only 16 days at that point
and his ability to care for G.B. was unknown. She also complains the court failed to take
9
into account Father's criminal history, G.B.'s significant behavioral issues and great bond
with Mother. We disagree.
Father requested custody and the court was required to make that placement unless
it found the placement would be detrimental to G.B. (§ 361.2, subd. (a).) Mother does
not challenge the juvenile court's finding of no detriment. Upon making this placement,
the juvenile court had three options: (1) terminate jurisdiction, (2) retain jurisdiction and
order a home visit, or (3) retain jurisdiction and provide reunification services. (§ 361.2,
subd. (b).) The determination whether to terminate juvenile court jurisdiction is reviewed
for an abuse of discretion, and the factual question of whether continued court
supervision is necessary is reviewed for substantial evidence. (In re A.J. (2013) 214
Cal.App.4th 525, 535, fn. 7.)
Here, there was no abuse of discretion in terminating juvenile court jurisdiction
and substantial evidence supported the determination that continuing court supervision
was not necessary. Father has housing and a good job earning a decent salary with health
benefits. Although Father had a number of arrests, the most recent being in 2008 and
2010, he suffered only two convictions. He reported being more mature and in control of
his life with the goal of having a happy home. The paternal grandmother reported that
Father had made lots of changes in his life, was eager to care for G.B. and she had no
concerns about his ability to care for G.B. Father's ex-wife described him as "a good
father that loves his children." She reported that Father used to drink, which led to
problems, but that he no longer drinks and is "a changed person." Father planned on
10
maintaining connection with maternal and paternal family members by visiting and
phone calls.
An addendum report prepared 16 days after G.B.'s placement with Father noted
that G.B. attended two days of school before beginning winter break. Although G.B. did
not like his first day of school, after the second day he had made friends, liked the school
and looked forward to returning after the winter break. Father had located two options
for afterschool childcare, identified a therapist to see G.B. and enlisted a school counselor
to check on G.B. At the continued hearing, G.B.'s counsel reported that her investigator
had spoken to G.B. with G.B. stating "for now he likes living in Texas" and had "a great
Christmas." Although there were some adjustment issues, Father was trying to set up
more structure for G.B.
This evidence supported the juvenile court's termination of jurisdiction and Mother
presented no affirmative evidence to support her request for continued jurisdiction. Nor
did she raise Father's criminal history, G.B.'s behavioral issues or her bond with G.B. at
the dispositional hearing as reasons for continuing jurisdiction. Rather, the juvenile court
noted how impressed it was by Father's preparations to have G.B. with him. There is no
reason to suspect the juvenile court would have changed its opinions had it been required
to articulate more reasons for its decision.
Mother also contends that substantial evidence revealed a need for continuing
jurisdiction and the court improperly terminated jurisdiction. We disagree that the record
contains evidence showing a need for continuing jurisdiction. Nonetheless, even if such
evidence exists the question is whether sufficient evidence supported the juvenile court's
11
contrary conclusion that continued supervision was not necessary. As noted above,
ample evidence supported the contrary conclusion that supervision was no longer
necessary. Accordingly, we find no abuse of discretion in the court's termination of
jurisdiction. Because the juvenile court properly terminated jurisdiction, we reject
Mother's final contention that the court abused its discretion when it awarded physical
custody to Father in its exit orders issued concurrently upon its termination of
jurisdiction. Simply put, because G.B. was no longer at risk, he no longer needed the
protection of the juvenile court. (In re Sarah M. (1991) 233 Cal.App.3d 1486, 1500,
overruled on other grounds in In re Chantel S. (1996) 13 Cal.4th 196, 204.) Moreover,
Mother's parental rights remained intact and, if necessary, the family court has the ability
to modify the custody orders. (§ 361.2, subd. (b)(1); In re Sarah M., at p. 1494.)
DISPOSITION
The orders are affirmed.
MCINTYRE, Acting P. J. WE CONCUR:
AARON, J.
IRION, J.
12
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the juvenile court's orders removing the minor from the mother's custody, placing him with his father, and terminating dependency jurisdiction. The court held that substantial evidence supported the removal and that the juvenile court did not abuse its discretion in terminating jurisdiction.
Issues
Whether substantial evidence supported the juvenile court's order removing the minor from the mother's custody.
Whether the juvenile court erred by failing to make required findings under Welfare and Institutions Code section 361.2, subdivision (c).
Whether the juvenile court abused its discretion by terminating dependency jurisdiction and issuing exit orders.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The juvenile court could reasonably conclude Mother's admitted marijuana use since the age of 15 and G.B.'s easy access to illegal substances reflected a continuing inability to ensure G.B.'s safety.”
“The determination whether to terminate juvenile court jurisdiction is reviewed for an abuse of discretion, and the factual question of whether continued court supervision is necessary is reviewed for substantial evidence.”
“Simply put, because G.B. was no longer at risk, he no longer needed the protection of the juvenile court.”