Opinion
B166189.
11-20-2003
In re EDUARDO A. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. OMAR A., Defendant and Appellant.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, Jerry M. Custis, Deputy County Counsel, for Plaintiff and Respondent.
In this dependency case, the presumed father, Omar A. (Father), appeals from the jurisdictional and dispositional orders regarding his sons, Eduardo A. and Antonio A. We reverse and vacate the orders, and dismiss the dependency petition with prejudice as to Eduardo and Antonio.
BACKGROUND
This is an unusual dependency appeal in that none of the interested persons — neither the dependent children (Eduardo and Antonio), their de facto parents (Juan T. (maternal uncle) and his wife Angela T.), nor their Father — lives in California.
Father and the late Maria T. (Mother) had four sons together (Daniel A., age 16; Raul A., age 12; Eduardo, age 11; and Antonio, age 9), all of whom were born in Mexico. Mother and Father were never married.
In 1996, Mother left Mexico and came to the United States with Daniel, Raul, Eduardo, and Antonio, seeking a better life. Father remained in Mexico, where he has another family consisting of his wife (Ana Maria) and their two children (Sandra, age 23, and Diego, age 19). According to Father, he was unaware of Mothers plan to leave Mexico with their four sons. He testified that "when [he] came back from work, she was not here." Father also testified that after Mother and the boys left for the United States, he "could not locate them" and she did not contact him for four years. Father testified that after Mother called him, he sent her money in 2000 and asked her to return to Mexico with their sons, but she had refused.
Father testified by telephone at the contested jurisdictional hearing.
While in the United States, Mother gave birth to another child, Edwin T. (age 6). Edwin, whose father is unknown, was also adjudicated a dependent child in the proceedings below. Edwin is not a party to this appeal.
The main events that triggered these dependency proceedings were Mothers unexpected death in Los Angeles in August 2001, and Fathers inability, allegedly due to financial and visa problems, to come to the United States to collect Eduardo and Antonio. After learning of Mothers death, Father sought the help of the Mexican Consulate to have his sons returned to him in Mexico. Father testified that it was his expectation that all of his four sons would be returned to him by the Consulate. For some reason, however, the Consulate only arranged for the return of the two older boys, Daniel and Raul. Father also testified that he had sought help from the foreign ministry and "[s]upposedly they were going to go to court on my behalf, but I believe they never did it." Accordingly, Daniel and Raul are now living with Father (along with Fathers wife Ana Maria, and children, Sandra and Diego), while Eduardo and Antonio are still in the United States with their maternal uncle Juan T. and his wife Angela T., who now live in Utah.
The Los Angeles County Department of Children and Family Services first became involved with Fathers four sons and Edwin during Mothers hospitalization in Los Angeles in August 2001. With the Departments approval, Daniel, Raul, Eduardo, Antonio, and Edwin went to stay with Juan and Angela, who were then living in Los Angeles. When Mother died from a brain hemorrhage in August 2001, the Department arranged for the five boys to stay with their maternal uncle, Gabriel T., in Utah, and their case was closed.
By October 2001, Gabriel was no longer able to care for the boys. According to Juan, the maternal familys long term plan was for the boys to live with their maternal "grandmother in Mexico. But that plan fell through when their grandmother fell seriously ill." The boys maternal grandmother returned to Mexico after leaving Eduardo, Antonio, and Edwin at Juan and Angelas home in Los Angeles. Through arrangements made by the Mexican Consulate, Daniel and Raul were sent from Utah to Fathers custody in Mexico. There is nothing in the record to indicate that Father knew, in advance, that the Mexican Consulate would fail to return all four sons.
Eduardo, Antonio, and Edwin, who were now staying with Juan and Angela, came to the Departments attention for a second time in February 2002, when Angela informed the Department of their return from Utah and that she and Juan were no longer able to care for them. Juan and Angela, who have three children of their own, were then living in a two bedroom apartment that lacked sufficient beds for all six children. In addition, Juan and Angela had failed to enroll the boys in school since their return from Utah in October 2001.
At Juans request, Father sent a letter granting Juan and Angela temporary custody of Eduardo and Antonio, who were then enrolled in school in Los Angeles.
On March 11, 2002, the Department detained Eduardo, Antonio, and Edwin and placed them in foster care. The detention report stated that the boys had been detained because their Mother was deceased, their respective Fathers had failed to come forward to care for them, and their relatives were unable to provide them with a stable home.
On March 12, 2002, Angela informed the Department, that "she has changed her mind and would like to care for the children again." The Department began working with Angela and Juan to provide appropriate sleeping arrangements for all six children.
The Department contacted Father in Mexico, who "stated that he would like to have his sons live with him, but that he does not have the money to come to the United States to get them, nor does he have a green card to travel in and out of the United States." When Father asked the social worker for help in obtaining a visa, he was told that the Department could not assist him in that regard.
In April 2002, the Department reported that Eduardo and Antonio had spoken to Father on the phone. According to the report, Eduardo said that Father "`asked if I wanted to live with him. I told him that I wanted to stay with my aunt. He told me to stay with my aunt and then he will come and pick me up. He told me he will show me Mexico." Antonio said that he wanted to live with his aunt, "`because [Father] told me somebody is coming to get us . . . My dad told me . . . he told me a little bit. He told me to wait with my aunt because he will come and get us."
Before the jurisdictional hearing was held, the court released Eduardo, Antonio, and Edwin to Juan and Angela, and granted their unopposed petition to be named as de facto parents on May 28, 2002.
In September 2002, the court received a home study report on Father from the Municipal System of Development of the Family in Nezahualcoyotl, Mexico, Department of Social Services (DIF). The DIF report stated that Fathers home was presently too small to accommodate Eduardo and Antonio, but recommended a follow-up visit in 20 days to evaluate the two new bedrooms and bathroom that Father was adding to his home. In all other respects, the DIF report had nothing negative to say about placing Eduardo and Antonio with Father and his family (which now included Daniel and Raul) in Mexico. (By the time of the jurisdictional hearing in March 2003, Father testified that the two new bedrooms were almost finished, and the new bathroom needed only a door and a shower.)
Before the jurisdictional hearing, Angela and Juan informed the Department of their desire to move to Utah to find larger, affordable housing and be nearer to relatives. They also expressed a desire to adopt the three boys if possible. Eduardo and Antonio told the social worker that they wanted to move to Utah with Aunt Angela and Uncle Juan, and did not want to return to Mexico. In September 2002, the juvenile court approved the move to Utah and the Department arranged for the local Department of Children and Family Services in Utah (Utah DCFS) to supervise the boys placement. The Utah DCFS reported that Juan and Angela had expressed concern about being unable to attain legal residence status in the United States.
Fathers attorney telephoned Father to inform him of Eduardo and Antonios preference to stay with Juan and Angela in Utah, and asked him if he would acquiesce to their placement in return for a promise of visitation. Fathers attorney reported to the court on September 30, 2002, that Father remained unwilling to relinquish custody of Eduardo and Antonio, and wanted them returned just as Daniel and Raul had been returned. Father informed his attorney that although Daniel and Raul did not initially want to return to Mexico either, they were now doing well. Counsel reiterated that Father has been repeatedly denied permission to enter the United States to get his children. Counsel further stated that "Father is nonoffending in this petition. [¶] The Mother, apparently, about six years ago, absconded with these children and brought them to the United States. He had no idea where they were until the Mother passed away and he was made aware of their location. It is his position that he is a good father, will be a good father, and I believe that aside from his residence being small, that everything else in this — in the home study . . . — was good, and this man has all of the conveniences that you would expect — I mean including a television and telephone. [¶] He is not poverty stricken. He works, his wife works, and this is our contest. . . ."
As originally pleaded, the petition alleged jurisdiction over Eduardo and Antonio under Welfare and Institutions Code section 300, subdivisions (b) (parents failure to provide for the children had caused or created the risk of serious physical harm or illness) and (g) (the children were left without any provision for support). The petition contained two counts, (b-1) and (g-1), regarding Eduardo and Antonio. (The petition also contained two counts, (b-2) and (g-2), regarding Edwin, which are not at issue in this appeal.) Counts (b-1) and (g-1) alleged, in identical language, that Eduardo and Antonio "have no parent or legal guardian to provide ongoing care, custody and/or control of the children in that [Mother] is deceased and [Father] is unable to care for the children at this time. Further, [Father] has failed to provide the children with the basic necessities of life including, but not limited to food, clothing, shelter and medical care. Such failure and inability on the part of [Father] endangers the childrens physical and emotional health and safety and places the children at risk of physical and emotional harm and damage." (Emphasis added.)
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
Section 300, subdivision (b) provides for dependency jurisdiction where, among other things, the child has suffered, or is at substantial risk of suffering, serious physical harm or illness as a result of the parents failure or inability to adequately supervise or protect the child, or by the parents willful or negligent failure to provide adequate food, clothing, shelter, or medical treatment.
Section 300, subdivision (g) provides for dependency jurisdiction where: (1) the child has been left without any provision for support; (2) the child has been voluntarily surrendered; (3) the childs parent has been incarcerated or institutionalized and cannot arrange for the childs care; or (4) the relative or other adult custodian with whom the child lives or has been left is unwilling or unable to provide care or support for the child, the parents whereabouts are unknown, and reasonable efforts to locate the parent have been unsuccessful.
At the contested jurisdictional hearing in March 2003, the Department amended counts (b-1) and (g-1) by deleting the above underscored language, thereby eliminating the allegation that Father "is unable to care for the children at this time."
The Department nevertheless recommended against returning Eduardo and Antonio to Fathers custody in Mexico because: (1) "The Fathers not nonoffending. Theres an allegation that he failed to provide. Obviously if the Mother absconded with the children so he didnt have an opportunity to provide, thats one thing"; and (2) "the children Eduardo and Antonio A[.] have not seen their Father since 1996, have no relationship with him at this time, do not wish to return to Mexico to live with him, and are suffering anxiety as a result of the uncertainty of their placement."
A. Evidence of Past Failure to Provide Support — Counts (b-1) and (g-1)
At the contested jurisdictional hearing, the Department sought to establish that Father had failed in the past to support Mother and the boys both while in Mexico and the United States. At the jurisdictional hearing, Father (who appeared telephonically) was cross-examined on: (1) whether his children with Mother were conceived while he was still married to and living with his wife, Ana Maria, and their two children, Sandra and Diego (Father testified that he was with Mother while divorced from Ana Maria, but that he remarried Ana Maria after Mother left Mexico); (2) whether he had supported Daniel, Raul, Eduardo, and Antonio before they left Mexico (Father testified that he supported them while in Mexico); (3) whether he had sent Mother money in the United States (Father testified that he sent money in 2000, but that "[i]n Mexican pesos it would be relatively very little because our money becomes very little if youre going to send it there"; (4) whether he was aware that Mother had sometimes gone to a food bank to feed her children in the United States (Father replied, "No, she always told me that they were fine"); (5) whether it was true that he had fractured Mothers nose and twisted her leg in Mexico as reported by the maternal grandmother (Father testified that Mother had fractured her nose while making the bed and had twisted her ankle by accidentally falling down the stairs); and (6) whether it was true that Mother had called him to beg him to come to the United States and help her and the children (Father denied any knowledge of Mothers illness and testified that about a year before her death, Mother had asked him to come to the United States, but he had urged her to return to Mexico with the children).
According to the Departments report, maternal grandmother told the social worker that Mother "`. . . came here because she was in need of a lot of things. [Mother] wanted [Father] to come with her but he often made excuses and said that he didnt want to leave his other children in Mexico . . . [.] [Father] now states that it was because [Mother] made him a fool, that she was with others . . . [.] His anger now is with Edwins birth because she was with another man . . . [.] She suffered here, and waited for him to come. She begged him and begged him to come, but he would always make excuses . . . [.] How can she ha[ve] taken the children from him, if he knew where she was . . . . They lived together for a little while when the oldest child was born . . . yes, he used to hit her. He fractured her nose . . . another time her leg was twisted . . . she didnt understand and I dont know how but she would get pregnant again and again and they did not live together because he had another lady . . . [.] Maternal grandmother further stated that when the family resided in Mexico that the childrens father gave the mother `very little money to care for the children, and that it was with the family support that mother was able to provide for the children. Maternal grandmother stated that mother came to the United States to search for a better life, and she had many illusions that he would come and meet her here with the children, but that he never did."
Following Fathers testimony, Fathers attorney requested that the court strike counts (b-1) and (g-1). Counsel stated that because "Mother took the children and left, . . . the Department is wanting to penalize this father for being unable to follow the Mother and the children from Mexico when they left unbeknownst to him, and to abandon his other children who remained in Mexico to go with these children. And he testified that he was unable to come. He tried to come. He even attempted to support. [¶] I think that its unconscionable for Department to try and penalize this man for being unable to support a family that has to live within the standards of the United States of America with pesos that hes earning in Mexico when these people flee to the United States to try and get a better life. Thats why they come here. No one gets supported in the United States from Mexico; its always the other way around. And here the Department is asking this man to be penalized and use it as a count for him not to get his children back because he cant support a family in the United States with the pittance that he would make in Mexico. Its just disgusting."
The deputy county counsel responded that "whats disgusting is that this man, according to [m]aternal grandmother, carried on with his wife, did not support these children even when they were living in Mexico, forcing her to flee to the United States, where apparently she had other family. He acknowledges that he sent her a little bit of money once, and his purported explanation for why it was impossible for him to send money is because of the exchange rate which makes absolutely no sense whatsoever. It is what it is when it gets to the United States. [¶] The grandmother [originally] wasnt going to say anything [negative about Father]. She herself very much wanted the children to go back to Mexico until she fell ill, so she has no reason to lie about him, as far as that goes, as far as placement of the children. She indicates that she wasnt going to say anything to protect her daughter, but now that shes made these charges, shes going to tell the truth which is that he fractured [Mothers] nose and twisted her leg, I guess breaking it. Im unclear. [¶] His explanation that her nose apparently just spontaneously fractured while she was making the bed is ludicrous. He does admit that her leg was twisted. He said she slipped down the stairs. [¶] He would have this court believe that maternal grandmother is lying, that he wasnt continuously with his wife, and that he did live with the mother of the children. The grandmother says thats not true: he didnt live with the mother of the children, he had another wife, and that he was extremely angry with the mother when he found out that she had a child [Edwin] with another man, the T[.] child, and, therefore, I dont think theres any reason to believe that he would treat that child [Edwin] well, based on what the grandmother says was his reaction to the fact that the mother had a child in the United States with another man. [¶] He made no efforts — he made no efforts to obtain custody of his children while they were with the Mother. He made no efforts to assist the Mother while she was ill. He said she didnt know — he didnt know that she was ill. He found out that she died after she died. The caretakers of the children for the five or six months before the case came into the court said he made no efforts to send them any financial assistance. [¶] He seemingly was perfectly fine with the children remaining with [Juan and Angela] during that time period. I dont see any reason for this court to believe anything that he says . . . ."
Father, however, testified that maternal grandmother had wanted to bring the children to Mexico so she could have custody. When cross-examined as to whether maternal grandmother wanted to bring the children to Mexico, Father replied: "Well, I believe that was her intention, but I talked to her, and her intention was to keep my children, but I told her that those were my kids, and Id have to be the one taking care of them. And that could be one of the causes why shes trying so that they are not given to me." In their motion for de facto parent status, Uncle Juan and Aunt Angela agreed that the familys long term plan was for maternal grandmother to have custody in Mexico.
B. The Court Initially Sustained Counts (b-1) and (g-1)
The trial court announced it would sustain counts (b-1) and (g-1), as amended: "This guy, from the beginning, has asked for custody of the children once we got ahold of him. Its interesting the Mexican Consulate actually took the older kids and took them back to Mexico, but they didnt take the younger kids. And so the older kids were up here for a while with the same relatives I think the younger kids were with. [¶] And the Mexican Consulate itself did take the older kids back to dad but didnt take the younger ones. I wont read too much into that, but thats what happened. [¶] When you read all the reports as to what was going on with these people, I think theres a lot of circumstantial evidence that in part supports what Dad says and in part doesnt support what Dad says. Mom fell down the stairs and hurt her leg, Mom changed the bedclothes and broke her nose, Mom told her therapist there was domestic violence and he wasnt supporting the children. And you have to think why was she telling her therapist these things. [¶] Father gives things very similar to what men in domestic violence say — she slipped, she fell, she accidentally got hurt. I tend to put more credibility that it actually was a violent relationship. He was asking for money, she was in constant contact with him. And then he got mad at her when she had the last baby . . . Edwin T[.] which wasnt his, and thats when she left. So I think that all has a kind of ring of truth about where the parties were. [¶] So I dont think that Father was with [Mother]; I think he was always with this first lady [Fathers wife]. I dont believe he really got divorced. I think — hes living in Mexico, most of the people who live down there tend to be Catholics. They tend to not like to get divorced. They may have more than one wife, more than one significant relationship, and thats fine, but thats different than actually getting a divorce. So I dont think he ever divorced this lady [his first wife]. I think hes back with her. I think hes always been with that wife. In fact, I think these kids arent aware of the two oldest children from that marriage, actually the half siblings. [¶] So, you know, its problematic. I think its hard because the older siblings who were returned recently did have a relationship with the children that are here at least the two older boys, and I think theyd like to be together. [¶] The D.I.F. — the home inspection we actually involved the Mexican Consulate throughout the case. The Mexican Consulate inspected Fathers home. They didnt actually recommend placement at that time. They didnt think it was adequate. There were at least six people, and two of them were out of town, so maybe there was like eight people living there. So the Mexican evaluation was not positive for Fathers home. [¶] Some of the things they were recommending still havent been done. Obviously were not there to see, but even he agreed that the bathrooms not complete and the bedrooms are almost done, but not quite. So that wasnt done. I dont think he was supporting the children even when they were down there, and I think thats why Mom left. So I think that as to paragraph b-1, it should be sustained as suggested by county counsel. [¶] I can understand why he didnt send money up here. There is a horrible exchange rate, you get nothing. Its probably impossible to send pesos to the United States in any meaningful fashion. But I think that he really wasnt supportive. I think thats why she left with the children. And I think he hasnt emotionally supported them. So b-1 could be sustained as amended by the county counsel." The court also stated: "G-1 will be sustained as amended . . . ."
Juan Martinez, LCSW, Ph.D., Clinical Services Director at Para Los Ninos, told the Departments social worker "that he knew all the children well as [Mother] began using the center for child care prior to Edwins birth, until shortly before her death. Dr. Martinez reported that the child Antonio had behavioral problems and therefore counseling was recommended, and due to this reason, [Mother] began sessions with Dr. Martinez. It was reported that Dr. Martinez worked with [Mother] for about 2 years `on and off. [¶] Dr. Martinez was interviewed with regards to the allegations that the childrens mother . . . relocated with the children to the U.S. against the children and the fathers will. Dr. Martinez stated that the childrens father `always knew where they were . . . [because] he used to call her and ask her for money . . . [.] I would speak to her about that because she barely had any money to pay for her own food and he used to call her asking that she send money over there. At times, she used ou[r] food bank here at Para Los Ninos. . . [.] Yes, [Mother] came here by herself, but there was a history of domestic violence . . . I spoke to two other mother[s] of the Center that also knew [Mother] well when she was alive. . . . I asked them if they remembered this, if she was a victim of domestic violence. They answered `Yes. I didnt speak much to her about this because by the time she came to me, she had left him and this was no longer an issue. But she did mention that she was a victim of domestic violence, that he had another woman, and did not help her to take care of the children . . . [.] In fact, the last time I saw her, she told me that he had never sent a penny to her . . . ."
The petition contained no allegation of domestic violence.
Mother did not leave Mexico after Edwins birth. Mother gave birth to Edwin in the United States, several years after she left Mexico.
The DIF report listed only six occupants of the home: Father, his wife, their two children, and Daniel and Raul. At the time of the DIF study, Daniel and Raul were visiting a relative. There is nothing in the DIF report to indicate that eight people were living in the home.
The petition contained no allegation, however, that Father is presently unable to support his children.
C. Addition of Count (b-3) to the Petition
At the jurisdictional hearing, it was undisputed that due to their long absence from Mexico, Eduardo and Antonio have no present relationship with their Father, do not want to go back to Mexico, and want to stay in Utah with Juan and Angela. Father testified, however, that Daniel and Raul, who have been living with Father for over a year, have told Father "that once [Eduardo and Antonio] see us, they [Eduardo and Antonio] would like to stay with us instead of staying with the aunt and uncle." The trial court sustained its own objection to this testimony, calling it "speculation."
One reason Eduardo and Antonio want to remain with Juan and Angela is to remain with Edwin. At the jurisdictional hearing, Father asked if he "could intervene for . . . the little brother of my kids" by having Edwin placed with him along with Antonio and Eduardo. Edwins placement, however, is beyond the scope of this appeal.
The Department argued that Edwin and Antonio were suffering anxiety as a result of their uncertainty over their placement. A letter from their therapist, Teresa Chavarin, contained a sentence regarding this claim. Based on Chavarins letter, the deputy county counsel asked the court to add count (b-3) to the petition, "that basically says that the children Eduardo and Antonio A[.] have not seen their Father since 1996, have no relationship with him at this time, do not wish to return to Mexico to live with him, and are suffering anxiety as a result of the uncertainty of their placement."
Chavarins letter stated that Eduardo and Antonios "[t]herapy sessions have predominately focused on addressing issues related to the permanent placement of the minors since the uncertainty of their placement is creating anxiety for the minors. Based on interviews and observations, the minors appear well adjusted to living with their aunt and uncle Angela and Juan T[.] They also appear to have developed a positive relationship with Mrs. T[.] The minors respond well to Mrs. [T]s directives and respond when limits are implemented. The three minors continue to express their wish to remain under their aunt and uncles care and appear enthusiastic about relocating to the state of Utah with them. Mrs. T[.] continues to embrace the three minors as members of her family and remains interested in continuing to care for Jose Antonio, Jesus Eduardo and Edwin. [¶] Based on the information provided above, I recommend the minors Jose Antonio, Jesus Eduardo and Edwin remain under Mr. and Mrs. T[.]s care. I also recommend the Department of Children and Family Services continue to financially assist the family through their stay in Utah to minimize any financial stress that may result from caring for three additional minors." (Emphasis added.)
In proposing to add count (b-3) to the petition, the deputy county counsel noted the new count could be added as either count (b-3) under subdivision (b) of section 300, or as count (c-1) under subdivision (c) of section 300, stating that "if the court would feel more comfortable making that a c-1, I think that would be appropriate." (Section 300, subdivision (b) deals with serious physical harm or illness, whereas subdivision (c) deals with serious emotional damage to the child.)
The trial court permitted the amendment as count (b-3), rather than (c-1), stating: "I dont think it should be a c, though, because there wasnt a c count, but I think it can be a b count [in] that his failure to be there for the children has caused these problems . . . ." Accordingly, a new count (b-3) was added, which stated: "Eduardo [and] Antonio have not seen their Father, Omar A[.], since 1996, have no relation[ship] w[ith] him at this time, have no desire to live w[ith] Father [and] are suffering anxiety over the uncertainty of their placement, which places them at risk of both harm [and] danger."
Fathers attorney argued that the evidence failed to support the facts alleged in count (b-3). Counsel pointed out that Chavarins earlier letter dated August 20, 2002, had stated that Antonio and Eduardo "have expressed curiosity about meeting their biological father and about residing in Mexico; however, they maintain their stance to remain with their aunt and uncle Angela and Juan T[.]"
Fathers attorney also argued the allegations failed to establish jurisdiction under subdivision (b). Counsel stated: "[W]hats this poor man supposed to do? [¶] It seems sort of unfair to completely cut him off and have a petition sustained against him because someone took his kids away and he hasnt been able to get them back. And because the kids were young, now were going to have a petition sustained against him for that? And he was unable to do anything about it. [¶] I just dont think that this is jurisdictional. And I think that, you know, something else needs to be worked out here. So I would ask the court not sustain any language and dismiss this."
The court sustained count (b-3), stating that Fathers "failure to be there for the children has caused these problems that they havent seen him, they dont really have any relationship with him, they dont want to go with him, theyre very anxious and uncertain, theyve lost their Mother, and so I think that his absence and causing the absence has caused them harm under b-3, and that would be sustained as amended to conform to proof." The court pointed out that because the children are ages "[t]en and eight, and theyve been gone for six to eight, seven years, so they were really small children with little memory. So I think it would be traumatic to have them returned to someone with whom they have no relationship."
D. The Dismissal of Count (b-1)
At this point, the court had sustained three counts, (b-1), (g-1), and the newly added count (b-3). Fathers counsel (Ms. Apt) moved for reconsideration of counts (b-1) and (g-1), arguing there was insufficient "evidence to sustain an allegation that this father failed to support his children while they lived with him in Mexico. [¶] And I dont think that any failure to support them here in the United States can really be attributed to him considering the difference in standards of living and earning capacities. You know, I dont think we have any evidence that this man didnt do as much as he was possibly capable of doing with regard to financial support of these children. So I would ask that the court reconsider the courts finding with regard to his failure to support the children financially."
Ms. Apt further stated: "Im just saying that I dont think theres adequate evidence here to really make that finding against the Father. I think that there is adequate evidence for the other finding, b-3, that the court made, but it just seems unfair to, you know, make a jurisdictional finding with regard to something we have very little evidence of, and a lot of which is beyond this mans control and abilities."
The deputy county counsel argued there was sufficient evidence to sustain counts (b-1) and (g-1): ". . . Father, by his own admission, sent one sum of money over the course of the last seven years to the United States. The grandmothers statement is [Father] always had the other woman, that he wasnt taking care of his children and the Mother, hence her need to come to the United States. [¶] [Father] admitted that [Mother] begged him to follow her [to the United States]. The court found that [Fathers] rendition of [Mother] having spontaneously having her nose fracture while [Mother] was making the bed was not credible. I dont think that theres any reason [not] to give — [not] to affix credibility to the statements of [Mothers] therapist whos the clinical director of Para Los Ninos as well as the maternal grandmother who wanted the children to go to Mexico herself and, therefore, has no impetus whatsoever not to tell the truth as juxtaposed against this man who has very, very little, if any, credibility. [¶] And I think the evidence is overwhelming that in the short duration of these childrens young lives, hes contributed virtually nothing to their support. And they are eight and ten years old, respectively, about to turn nine and eleven. We sustain that language routinely with regard to parents who make partial support payment on a regular basis. [¶] This man, by his own admission, has not provided any support except for one payment since theyve been in the United States. And, yes, he disputes the grandmothers rendition of what life was like in Mexico, and testified before this court — and the court has already said that the court doesnt believe him — that he did leave his wife and he did live with the mother and the children, supported the mother and the children. [¶] And then after the mother and the children left, guess what, he got back together with his wife who he divorced, and theyre all living happily ever after. And the court already said the court doesnt believe that. He had another family. He had a woman with whom he was married. The mother has had a very unfortunate life. She was the mistress, and then she died."
The court then ruled: ". . . I am going to grant the motion, but only as to b-1. Ill dismiss b and keep it as a g. Im keeping the failure to support as a g-1. [¶] . . . [¶] . . . So g-1 is sustained as amended on the language proposed by Miss Webster [deputy county counsel]. B-1 is dismissed in the furtherance of justice."
After the court dismissed count (b-1), the court explained that count (g-1), which is identical in language to count (b-1), was properly sustained. The court stated: "And the other thing is that dad is a carpenter. He installs kitchens. And, quite frankly, if he came up here hed make a lot more for the family down here than hes making staying down there with them, so I also think the g count is well sustained."
The court, however, made no mention of potential immigration or visa problems.
E. Jurisdictional Ruling
After the court dismissed count (b-1), Fathers attorney again requested that the court refrain from assuming jurisdiction over Eduardo and Antonio, and return them to Father, who "believes that the children should be returned to him, and he has a constitutional right to his children . . . . [¶] This is very much like the case of Elian Gonzalez where the mother left Cuba, took the child with her . . . to the United States, and the child was eventually returned to the father. So, you know, the similarities are very close here, and Fathers asking that the court return his children to him."
The court rejected this analogy, stating: "Well, I see a major difference in the case of Elian Gonzalez since he was plucked out of the water as he was leaving Cuba and hed been out of his dads presen[ce] a couple weeks, whereas this child has been out of his Fathers presence six years. [¶] Ms. Webster: Seven. [¶] The Court: Seven years. And the Mother was alive for most of that time, so I think theres a laches issue on that part, so thats part of the reason for b-3."
The court stated that it was assuming jurisdiction over Eduardo and Antonio "under Welfare and Institutions Code sections 300[, subdivisions] (b) and (g). The court finds by clear and convincing evidence there exists a substantial danger to the physical health of the children, and there is no reasonable means to protect them without removal from the Fathers custody. Mom is deceased. The Department made reasonable efforts to prevent removal."
F. Dispositional Order
At the disposition hearing, the court acknowledged it was Fathers contention that governmental corruption in Mexico had allegedly resulted in his inability to regain custody of Eduardo and Antonio. The court stated: "Like I said, the Mexican government returned the older children to Father and didnt return these children, and then they did an investigation and didnt . . . recommend that these children be returned either. I know Father attributes that to the corruption of the system. Im not so cynical that I can assume that a negative report is a result of a failure to pay a bribe. [¶] . . . [¶] . . . You know, I mean I can see where a positive report could be the result of having paid it, but Im not sure that I will assume that failure to pay means you automatically get dinged. It might be, but Im not willing to make that assumption."
According to the Departments report, Father "spoke of the Mexican government as being corrupt, and stated that if he had paid them, perhaps the Home Study would have said different. He stated that he plans to come to the United States and `fight for my children, though when asked he stated that he had no immediate plans, nor a visa to enter the U.S."
The court found it was not "in the childrens best interest to be returned to Mexico. Theyve been away from this gentleman for many, many, many years, and I have questions about the nature and . . . character of the relationship when they were down there."
The court granted custody of the children to the Department for suitable placement with a relative. The court granted Father reunification services and visitation consisting of: (1) unmonitored overnight visits in Mexico and Utah; (2) sibling visitation in the United States and Mexico; (3) conjoint counseling with the children by telephone; and (4) regular telephone calls for the siblings and Father.
Father has appealed from the jurisdictional and dispositional orders.
DISCUSSION
Before addressing the issues briefed by the parties, we briefly note the significance of the juvenile courts dismissal of count (b-1), which, as amended, alleged jurisdiction under section 300, subdivision (b) based solely on Fathers past conduct in allegedly failing to support his children. The court correctly dismissed this count, having earlier stricken the allegation that Father was unable to support the children at this time.
"While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. (See In re James B. (1986) 184 Cal.App.3d 524, 529 . . . ; [citation].) Thus the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; `[t]here must be some reason to believe the acts may continue in the future. (In re Jennifer P. (1985) 174 Cal.App.3d 322, 326 . . . ; [citations].) Moreover the fact that a child has been left with other caretakers will not warrant a finding of dependency if the child receives good care. (See In re Antonio F. (1978) 78 Cal.App.3d 440, 452 . . . ; [citation].)" (In re Rocco M. (1991) 1 Cal.App.4th 814, 824, fn. omitted.)
At the contested jurisdictional hearing, the Department focused primarily on Fathers past behavior — did he beat Mother, did he impregnate Mother while married to another woman, did he support Mother and the boys while in Mexico, did he know of Mothers plan to leave Mexico, did he send Mother money in the United States, and did he refuse to come to the United States to help Mother and the boys when she became ill? The reporters transcript indicates that the deputy county counsel believed maternal grandmothers (hearsay) accusations as opposed to Fathers denials (under oath), and called Fathers past behavior "disgusting."
The record shows that the juvenile court initially sustained count (b-1) because it believed Father had physically abused Mother, was not a credible witness, and should have done more to support Mother and the boys financially, including immigrating (possibly illegally) to the United States to earn a better living.
Upon Fathers motion for reconsideration, however, the juvenile court dismissed count (b-1). Dismissal was proper because (as will be further discussed below) the record contains no evidence linking Fathers past bad acts and omissions with present circumstances, such that the juvenile court could intelligently conclude the children, at the time of the hearing, are at substantial risk of serious physical harm or illness if returned to Fathers custody. (See In re Rocco M., supra, 1 Cal.App.4th at p. 824.) There is no allegation in the petition that Father had physically abused anyone. Even assuming that Father had abused Mother in the past, as reported by maternal grandmother, a physically abusive parents past conduct, standing alone, is insufficient reason to believe the abusive acts will continue in the future. (Ibid. ).
I
Jurisdictional Finding Under Subdivision ( b)
Under section 300, subdivision (b), a child falls within the jurisdiction of the juvenile court when, in relevant part, the court finds the child has suffered, or is at substantial risk of suffering, serious physical harm or illness as a result of the parents failure or inability to adequately supervise or protect the child, or the parents willful or negligent failure to provide adequate food, clothing, shelter, or medical treatment. In this case, due to the dismissal of count (b-1) (failure to support), the sole remaining basis for jurisdiction under subdivision (b) is count (b-3), which alleged that "the uncertainty of their placement is creating anxiety for the minors."
On appeal, Father challenges the facial validity of count (b-3), contending it fails to state a basis for jurisdiction under section 300, subdivision (b). In addition, Father contends the evidence was insufficient to support a jurisdictional finding under subdivision (b).
The Department contends Father has failed to raise a valid facial challenge to the petition, stating: "For one thing, he argues not only the form of the b-3 count but the evidence supporting it. . . . For a second, after the jurisdiction trial[,] the court granted the Departments motion to conform the petition to the evidence by adding Count b-3. . . . In fact, Count b-3 did not even come into existence until after the close of the evidence. The pleaded Count b-3 thus contained the same matter as the evidence. [¶] For a third, father not only did not object or demur to the form of Count b-3 but conceded on the record it adequately supported jurisdiction." (Italics omitted.)
The Departments contentions are not persuasive. First, we know of nothing that would preclude Father from challenging both the form of count (b-3) and the evidence supporting it. Second, while count (b-3) was added at the jurisdictional hearing to conform to proof, that does not limit our review to that of looking only for substantial evidence. Third, we believe Fathers attorney did object to the sufficiency of count (b-3) when she argued below that the allegation was "unfair" and not "jurisdictional."
In reviewing the facial validity of count (b-3), we "apply the rules akin to a demurrer. [Citation.]" (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1133.) "We construe the well-pleaded facts in favor of the petition in order to determine whether the [Department] pleaded facts to establish [Father] failed to supervise or protect the children within the meaning of section 300, subdivision (b)." (In re Janet T. (2001) 93 Cal.App.4th 377, 386.)
Section 332, subdivision (f) requires a dependency petition to contain a "concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the petition is being brought is a person within the definition of each of the sections and subdivisions under which the proceedings are being instituted." In order for a child to fall within the definition of section 300, subdivision (b), "there must be evidence `indicating the child is exposed to a substantial risk of serious physical harm or illness." (In re Janet T., supra, 93 Cal.App.4th at p. 388, quoting In re Rocco M., supra, 1 Cal.App.4th at p. 823.)
Count (b-3) alleged that "Eduardo [and] Antonio have not seen their Father, Omar A[.], since 1996, have no relation[ship] w[ith] him at this time, have no desire to live w[ith] Father [and] are suffering anxiety over the uncertainty of their placement, which places them at risk of both harm [and] danger."
On its face, count (b-3) fails to allege that Eduardo and Antonio are presently at substantial risk of serious physical harm or illness due to Fathers neglect. Count (b-3) merely states that Eduardo and Antonio are "suffering anxiety over the uncertainty of their placement." Anxiety alone is not the same as serious physical harm or illness (or the risk thereof). In this case, the petition failed to allege (and the evidence failed to show) there is a risk of serious physical harm or illness due either to Fathers failure or inability to adequately supervise or protect, or his willful or negligent failure to provide. That the boys were anxious due to "the uncertainty of their placement" is a far cry from the serious physical harm or illness required in section 300, subdivision (b).
The focus of count (b-3) is not on Fathers neglect, but on Eduardo and Antonios subjective reaction (anxiety) to their uncertain placement. Count (b-3) does not allege that the boys anxiety is in any way Fathers fault. As in In re Nicholas B., supra, 88 Cal.App.4th 1126, 1136, "[h]ere, we also have a child who does not want to see his parent[] and a trial court that ultimately holds the parent[] responsible without a supporting allegation in the petition." (Ibid.) The juvenile courts order sustaining count (b-3) contains the "unstated presumption . . . that emotional disturbance in the child was attributable to the fault of the parent." (Ibid.) The petition, however, fails to allege how Fathers conduct caused Eduardo and Antonio anxiety, let alone serious physical harm or illness.
The Departments position is that if jurisdiction does not exist under section 300, subdivision (b) due to the absence of an allegation of serious physical harm or illness, then we may still affirm because jurisdiction exists under section 300, subdivision (c), which addresses a childs serious emotional damage. Apparently, the Department equates count (b-3)s allegation of "anxiety" with an allegation of serious emotional damage. Subdivision (c), however, does not cure the defect in this petition because it also requires a causal connection between parental fault and the childs serious emotional damage. (In re Nicholas B., supra, 88 Cal.App.4th at p. 1136, fn. 11.)
Jurisdiction exists under section 300, subdivision (c), "`(1) when parental action or inaction causes the emotional harm, i.e., when parental fault can be shown; and (2) when the child is suffering serious emotional damage due to no parental fault or neglect, but the parent or parents are unable themselves to provide adequate mental health treatment. [¶] In a situation involving parental "fault," the petitioner must prove three things: (1) the offending parental conduct; (2) causation; and (3) serious emotional harm or the risk thereof, as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior." (In re Nicholas B., supra, 88 Cal.App.4th at p. 1136, fn. 11.) In this case, there is nothing in the record to support an allegation that Fathers wrongful conduct has caused the boys serious emotional harm or the risk thereof. On the contrary, everything in the record indicates that the boys are healthy and well-adjusted. While the Department relies upon the social workers opinion that it would be detrimental to the boys emotional well-being to send them to Mexico, and that separating them from Edwin would cause them serious emotional damage, her opinion is not evidence.
The Departments contention that Fathers counsel failed to demur or object to the sufficiency of the pleading and conceded jurisdiction under section 300, subdivision (b), as alleged in count (b-3), lacks merit. Although the words "demur" or "object" were not used, Fathers counsel repeatedly argued that the petition was unfair and failed to confer jurisdiction. This was a sufficient objection to preserve the issue for appeal.
In seeking reconsideration of the order sustaining counts (b-1) and (g-1), Fathers counsel referred to count (b-3), stating: "Im just saying that I dont think theres adequate evidence here to really make that finding against the Father. I think that there is adequate evidence for the other finding, b-3, that the court made, but it just seems unfair to, you know, make a jurisdictional finding with regard to something we have very little evidence of, and a lot of which is beyond this mans control and abilities." (Italics added.)
According to the Department, counsels statement quoted above constituted a judicial admission conceding the existence of jurisdiction under section 300, subdivision (b). The record, however, does not support a finding of such a concession. Counsels statement had no adverse impact on the judicial process and failed to contradict an earlier factual assertion. (See Tuchscer Dev. Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1245.) Father never disputed the fact of his sons desire to stay in the United States. He did, however, consistently dispute whether this was a sufficient basis for the juvenile court to exercise jurisdiction over his boys. In addition, Father never disputed the fact of his sons anxiety from the uncertainty of their placement. He did, however, consistently challenge the juvenile courts right to assume jurisdiction based on the boys anxiety over their placement. Rather than concede jurisdiction, Fathers counsel again objected, at the close of the proceedings, to the courts jurisdiction by citing the Elian Gonzales case.
We may not ignore the defect in this pleading as immaterial or unnecessary to establishing jurisdiction. "[A] facially sufficient petition is necessary. This does not require the pleader to regurgitate the contents of the social workers report into a petition, it merely requires the pleading of essential facts establishing at least one ground of juvenile court jurisdiction." (In re Alysha S. (1996) 51 Cal.App.4th 393, 399-400.)
Given the petitions failure to allege a proper basis for jurisdiction under subdivision (b), we reverse and vacate the jurisdictional finding under subdivision (b).
II
Jurisdictional Finding Under Subdivision ( g)
Under subdivision (g), a child falls within the juvenile courts jurisdiction when he has "been left without any provision for support." In this case, the juvenile court sustained count (g-1), which alleged that Eduardo and Antonio had been left without any provision for support in that Mother "is deceased" and "[Father] has failed to provide the children with the basic necessities of life including, but not limited to food, clothing, shelter and medical care. Such failure and inability on the part of [Father] endangers the childrens physical and emotional health and safety and places the children at risk of physical and emotional harm and damage."
In explaining its order sustaining count (g-1), which is identical to the dismissed count (b-1), the juvenile court stated: "And the other thing is that dad is a carpenter. He installs kitchens. And, quite frankly, if he came up here hed make a lot more for the family down here than hes making staying down there with them, so I also think the g count is well sustained."
Apparently, the juvenile court sustained count (g-1) based on its finding that Father had failed to provide for the children in the past. The problem with this rationale is that "[w]hile evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. {Citations.]" (In re Rocco M., supra, 1 Cal.App.4th at p. 824, fn. omitted.)
The Department contends that Fathers failure to provide was so severe as to constitute abandonment under Family Code section 7822, which is one of the requirements for declaring a child free from parental custody and control. The record, however, fails to support this contention.
Family Code section 7822 is found in part 4 of the Family Code, which is titled "Freedom from Parental Custody and Control." The purpose of part 4 "is to serve the welfare and best interest of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the childs life." (Fam. Code, § 7800.) Under part 4 of the Family Code, proceedings may be brought to have a minor declared free from the custody and control of either or both parents. (Fam. Code, § 7802.)
It is undisputed that upon learning of Mothers death, Father immediately sought to regain custody of all four of his sons. If the Mexican Consulate had returned all four boys as Father anticipated, this dependency petition would never have been filed. Similarly, if Father had possessed the funds and visa to travel here to collect Eduardo and Antonio, this petition would not have been filed. The record shows that Father, who is a carpenter with a 7th grade education, has been trying to regain custody of his sons by seeking help from Mexican authorities and complying with the DIFs report by enlarging his home. Given Fathers persistent efforts to regain custody of his sons upon learning of Mothers death, we find no factual basis to blame him for having failed to regain custody. The fact that Eduardo and Antonio were left without a parent in the United States to care for them upon Mothers death is simply not, on this record, attributable to Fathers neglect.
The Department contends the evidence supports jurisdiction under another aspect of subdivision (g), in that the Department detained the boys after Angela and Juan stated they were no longer able to care for them. A separate basis for dependency jurisdiction under subdivision (g) exists where the relative or other adult custodian with whom the child lives or has been left is unwilling or unable to provide care or support for the child, the parents whereabouts are unknown, and reasonable efforts to locate the parent have been unsuccessful. While it is true that the boys were detained because of Angelas statement that she and Juan could no longer care for them, it is not true (and was not alleged) that Fathers whereabouts were unknown and reasonable efforts to locate him were unsuccessful.
The fact that the statute requires proof that the parent cannot be located is significant. "Of course, the fact that this provision requires not only proof of an unsuitable placement, but also that the parent cannot be located, suggests that even if the initial arrangements do not work out, [even] an incarcerated parent (who certainly could be located) would have the opportunity then to make other arrangements." (In re S.D. (2002) 99 Cal.App.4th 1068, 1079.)
In this case, exactly one day after the boys were detained because Angela had reported that she and Juan were unable to care for them, Angela told the social worker that she and Juan had changed their minds and wanted the boys back. By April 2002, two months later, the boys were again placed in Juan and Angelas home after more beds were purchased. Given their quick change of heart and the present placement of the boys with Juan and Angela, we conclude no basis exists to find jurisdiction under this aspect of subdivision (g). (See In re S.D., supra, 99 Cal.App.4th at p. 1079.)
Finally, the Department contends jurisdiction exists under subdivision (g) due to the DIF report that Fathers home was too small to accommodate Eduardo and Antonio. The DIF report also stated, however, that a follow-up visit was needed to inspect the enlargements to the home. At the jurisdictional hearing, Father testified that the two new bedrooms were almost finished and the new bathroom needed only a door and a shower. Given that the two bedroom apartment of Juan and Angela was adequate to house six children and two adults, Fathers four-bedroom home (with separate dining room, kitchen, and living room) surely must also be adequate.
We conclude the order sustaining jurisdiction under subdivision (g) of section 300 is not supported by substantial evidence and must be reversed and vacated.
III
The Dispositional Order
Given our determination that jurisdiction over Eduardo and Antonio does not exist in this case, the dispositional order must be reversed and vacated as moot with regard to Eduardo and Antonio.
DISPOSITION
The jurisdictional and dispositional orders are reversed and vacated with regard to Eduardo and Antonio. The dependency petition (§ 300) is dismissed with prejudice as to Eduardo and Antonio.
We concur: SPENCER, P.J., VOGEL (Miriam A.), J.