Opinion
A151853
03-29-2018
In re J.M., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. C.K., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. 5090-DEP)
C.K. (Mother) appeals following an order that removed her son, J.M. (Minor), from her care, placed him in the custody of his father, N.M. (Father), and dismissed the dependency proceedings. We reject Mother's arguments that the jurisdictional finding lacks substantial evidence and the dismissal order was unauthorized by law, but we agree with her contention that the visitation order effectively delegated to Father the discretion to allow visitation. We reverse and remand the visitation order, and otherwise affirm.
BACKGROUND
In January 2017, the Sonoma County Human Services Department (the Department) filed a petition under Welfare and Institutions Code section 300, subdivision (b)(1) regarding Minor, then 11 years old. As later amended, the petition alleged Mother "has a poly-substance abuse problem that prevents her from providing regular care for [Minor], to wit; [¶] Mother uses amphetamines, marijuana and benzodiazepines, and tested positive for these drugs as recently as January 25, 2017. Mother has exposed her child to marijuana smoke in closed spaces, has failed to assure regular school attendance for her child, and has had ongoing dispute with her landlord (family members) resulting in inadequate shelter for herself and her son, including lack of access to running water and plumbing, such that the child is required to defecate in a bucket that is left outside their shared bedroom." The petition identified Father, who lived in Virginia, as Minor's presumed father. Minor was detained and placed in a children's shelter.
All undesignated section references are to the Welfare and Institutions Code.
In advance of the jurisdiction/disposition hearing, the Department presented the following evidence. Mother admitted past drug treatment and, while initially denying current drug use, later admitted that she had recently relapsed. She agreed to a January 2017 drug test, which was positive for amphetamines, marijuana, and benzodiazepine. Mother stated she has a prescription for Xanax and uses marijuana medicinally. She admitted smoking marijuana in the same room as Minor, but claimed to so with the doors and windows open. County personnel observed marijuana on a shelf in Mother's home, accessible to Minor.
Mother lived with Minor in a rented room, apparently with two other adults and another child. Following a dispute with her landlords, Mother nailed the interior bedroom door shut, cutting off access to the bathroom and kitchen (a second door opened to the exterior of the house). Law enforcement personnel described the living conditions as a "disaster," with Mother and Minor defecating in a bag that was later brought outside for disposal. County personnel witnessed an open bucket by the door that looked like it contained urine and toilet paper. Mother admitted they were using buckets as a toilet but stated she always cleaned them right away and waste was not left standing in the buckets. The room, which contained a queen-sized bed and another bed on the floor with little space to walk through the room, was a fire hazard. Minor stopped attending school in December, although he wanted to attend. Mother said she withdrew Minor from school because medical and car problems prevented her from driving him, but she was preparing to homeschool him.
Mother had prior child welfare history in the State of Virginia, following a psychiatric hospitalization in 2010. At that time, Mother voluntarily placed Minor with his maternal great-aunt, whom he lived with for two years. In 2012, Minor was returned to Mother's custody and the court granted her request to move to California.
Father told the Department he wanted to care for Minor. Father's name was on Minor's birth certificate, he had held Minor out as his own, and he had provided Mother with financial support. He and Mother separated after Minor's birth. Father stated he told Mother that he wanted to be active in Minor's life, but Mother would not let him talk to Minor on the phone and returned presents he sent to Minor. Father was employed as a contractor and was in the National Guard. He lived in Virginia with his fiancé and their two-year-old son. His parents and extended family live nearby.
Minor told the Department he did not believe Mother had any problems and he wanted to return to her care. Although he initially refused Father's phone calls to the children's shelter, the social worker believed "there has been an absence of a relationship [between Father and Minor] rather than a negative one."
At the February 2017 initial jurisdiction/disposition hearing, the Department recommended Minor be placed with Father, with family maintenance services to Father and reunification services to Mother. Mother argued placement with Father would be detrimental to Minor because they did not have a relationship. The court set the matter for a contested hearing, found Father to be the presumed father, and authorized Minor to travel out of state to visit Father.
In March, Minor and a Department social worker traveled to Virginia for a weekend visit. Although Minor was resistant to the visit, it went well and he later told the social worker he enjoyed it and would consider going back. The Department reported that Father's home was safe and stable and Father was eager to have Minor placed with him. The juvenile court subsequently authorized Minor to travel to Virginia to reside with Father "for the immediate future."
In advance of the April 24 continued jurisdiction/disposition hearing, the Department changed its initial recommendation. It no longer recommended reunification services for Mother, and instead recommended removing Minor from Mother's care, placing him with Father, and terminating the dependency proceedings. The Department had provided Mother with multiple referrals, but Mother had failed to appear for admission to an inpatient program and failed to appear for a scheduled individual counseling appointment. Mother had tested positive for marijuana on February 1, tested positive for benzodiazepines and marijuana on February 10, and missed a subsequent test. Mother missed two visits with Minor, one visit ended early at Minor's request, and another was terminated by the Department due to concern that Mother was under the influence of drugs or alcohol.
Minor had moved to Virginia in mid-April. Although Minor was initially "angry and distressed" that he would be moving to Father's home, he "quickly accepted it." He was "adjusting," had become "fast friends" with a same-aged cousin, and was "integrating" into his new home and school. Minor's maternal great aunt, with whom he had previously lived during Mother's Virginia child welfare case, lived a few hours away from Father. The maternal great aunt and other maternal family members in the area were "overjoyed" to have Minor nearby. Father expressed a willingness to co-parent if Mother enters recovery.
At the April 24 continued jurisdiction/disposition hearing, Mother did not appear and the court continued the hearing so Mother's attorney could inform her about the Department's new recommendation. Mother again failed to appear at the May 10 continued hearing. Mother's attorney had no contact from Mother and stated he did not object to the court proceeding and would not be taking a position on her behalf. The court found true the allegations of the amended petition, removed Minor from Mother's custody, and placed him with Father. The court issued exit custody orders and dismissed all further proceedings.
DISCUSSION
I. Jurisdiction Finding
Mother argues the trial court's finding of jurisdiction under section 300, subdivision (b), lacks substantial evidence. We reject the challenge.
We need not decide whether, as the Department contends, Mother forfeited the challenge.
Mother first argues there was no current risk of harm at the time of the jurisdictional hearing because Minor was already living with Father. "To establish jurisdiction under section 300, subdivision (b), the risk of serious physical harm or illness from failure to support must exist at the time of the adjudication hearing." (In re Christopher M. (2014) 228 Cal.App.4th 1310, 1318.) Minor's residence with Father was temporary and in effect only because of the dependency proceedings. Mother contested Minor's placement with Father and there was evidence Mother had a court order permitting her to take Minor to California. Absent dependency jurisdiction, Mother could—and likely would—have demanded Minor be returned to her custody. (Cf. In re Kaylee H. (2012) 205 Cal.App.4th 92, 109 [no risk of future harm where, before the dependency petition was filed, parents voluntarily placed the minor with a temporary probate guardian and were not contesting permanent guardianship].) Accordingly, substantial evidence supports the juvenile court's finding of a risk of harm at the time of the jurisdiction hearing.
Mother argues Father could secure an order from a Virginia court to prevent Mother from taking Minor. We decline to find no current risk of harm because of a hypothetical order in a hypothetical case. Mother also argues Minor voluntarily went to live with Father and was currently enrolled in school in Virginia, but fails to explain the legal relevance of either point.
Mother next argues the record contains no medical evidence that secondhand marijuana smoke is harmful. We need not decide whether Minor's exposure to secondhand marijuana smoke alone would support the jurisdictional finding (compare In re Alexis E. (2009) 171 Cal.App.4th 438, 452 ["There is a risk to the children of the negative effects of secondhand marijuana smoke."] with In re Destiny S. (2012) 210 Cal.App.4th 999, 1004 ["the logical consequence of the department's argument [that exposure to secondhand marijuana smoke creates a risk of physical harm] would be to remove minor children from the homes of all smokers in Los Angeles County—regardless of what they smoke"]), because other evidence supports the finding. Most notably, there was evidence that Minor lived in unsafe and unsanitary living conditions (In re James C. (2002) 104 Cal.App.4th 470, 483 [substantial risk of harm from "filthy" and unsafe living conditions]), and that marijuana was left accessible to Minor and Mother used marijuana in front of Minor (In re Rocco M. (1991) 1 Cal.App.4th 814, 825 [parent created substantial risk of harm by "placing or leaving drugs in a location or locations where they were available to [the minor]" and "exposing [the minor] to her own drug use, thus impliedly approving such conduct"], abrogated on another ground in In re R.T. (2017) 3 Cal.5th 622, 629).
II. Dismissal
Mother argues the juvenile court's order dismissing the dependency proceedings was unauthorized by law. Mother points to section 361.2, subdivision (b)(1), which provides a juvenile court placing a child with a noncustodial parent and providing for that parent to have sole legal and physical custody-as the juvenile court did here-"shall then terminate its jurisdiction over the child." Mother argues the statute precludes a dismissal order. Assuming Mother has not forfeited this argument by failing to raise it below, we disagree.
"A dismissal terminates an action." (Estate of Garrett (2008) 159 Cal.App.4th 831, 838.) The statute directs the juvenile court to terminate its jurisdiction; it neither states nor suggests that the termination cannot be effected by dismissal. The dismissal order thus terminated the juvenile court's jurisdiction in accordance with section 361.2, subdivision (b)(1). (See In re A.B. (2014) 230 Cal.App.4th 1420, 1434-1435 [§ 361.2, subd. (b) gives juvenile court options to "grant [noncustodial] parent legal and physical custody and dismiss the case, continue custody subject to court supervision, or remove the child from that parent's custody" (italics added)].)
III. Visitation Order
The visitation order provides for supervised visitation "[a]s arranged by parents, with mother providing two weeks notice before visits. Visits to be in Virginia." Mother argues this order effectively delegates to Father the power to determine whether visitation will occur. We agree.
The order provides visits will be supervised by Minor's maternal great-aunt, who lives a few hours from Father.
As an initial matter, the Department argues Mother has forfeited the challenge by failing to object below. We exercise our discretion to excuse any forfeiture. "[A]n appellate court's discretion to consider forfeited claims extends to dependency cases . . . . Because these proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance." (In re S.B. (2004) 32 Cal.4th 1287, 1293.) In In re S.B., the Court of Appeal excused a parent's failure to object below to a juvenile court order that "delegated to the legal guardians the authority to either allow or prohibit visitation." (Id. at pp. 1293-1294.) Our Supreme Court found the Court of Appeal properly exercised its discretion to excuse the forfeiture because "an appellate determination on the validity of that delegation would add certainty and stability to the child's visitation." (Ibid.) Our review of the validity of the juvenile court's visitation order will similarly add certainty and stability.
"When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make 'exit orders' regarding custody and visitation. [Citations.] Such orders become part of any family court proceeding concerning the same child and will remain in effect until they are terminated or modified by the family court. [Citation.] [¶] The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the court and may not be delegated to nonjudicial officials or private parties. [Citation.] This rule of nondelegation applies to exit orders issued when dependency jurisdiction is terminated." (In re T.H. (2010) 190 Cal.App.4th 1119, 1122-1123.)
In In re T.H., the juvenile court placed the children with the mother, issued exit orders, and terminated the dependency proceedings. (In re T.H., supra, 190 Cal.App.4th at p. 1122.) This court found the exit order providing for supervised visitation "upon the 'agreement of the parents' . . . effectively delegates to mother the power to determine whether visitation will occur at all" because she "could conceivably agree to only one visit a year or less without violating the letter of the court's order." (Id. at p. 1123.) We remanded for the juvenile court to "exercise its discretion in formulating an order that establishes, at the very least, the amount of visitation to which father is entitled." (Id. at p. 1124.)
The visitation order here is similarly improper. It provides for visitation in Virginia "[a]s arranged by the parents." There is no minimum amount of visitation to which Mother is entitled, nor is there any provision for telephonic visitation (which the juvenile court could require to be supervised, like the in-person visits)—a particularly glaring omission in light of Minor's residence across the country. The provision that Mother give two weeks' notice does not change this analysis in light of the superseding provision that visitation is to be arranged by the parents and the absence of any minimum amount of visitation. That Father indicated a willingness to co-parent if Mother entered recovery is of no moment. The juvenile court found Mother was entitled to visitation and did not condition that entitlement on her recovery (or on Father's assessment of her recovery). The visitation order improperly delegates to Father "an effective veto power over" Mother's right to visitation. (In re T.H., supra, 190 Cal.App.4th at p. 1124.)
Accordingly, as in T.H., we will remand the visitation order. "Given that the family's circumstances may well have changed since the . . . hearing at which the dependency was terminated, the court should consider any relevant evidence proffered by the parties regarding the terms of the visitation order." (In re T.H., supra, 190 Cal.App.4th at p. 1124.)
DISPOSITION
The visitation order is reversed and remanded for further proceedings not inconsistent with this opinion. All other orders are affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.