In re A.H.
Filed 2/26/10 In re A.H. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re A.H., a Person Coming Under the Juvenile Court Law. | B218027 |
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.D., Jr., Defendant and Appellant. | (Los Angeles Super. Ct. No. CK18584) |
APPEAL from the judgment of the Superior Court of Los Angeles County. Marilyn H. Mackel, Commissioner. Reversed.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
Robert Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
E.D., Jr. (father) and R.H. (mother) are the parents of three-year-old A.H. Father appeals a juvenile court judgment declaring his daughter a dependent of the juvenile court. He contends there is no substantial evidence to support the courts jurisdictional finding. The Department of Children and Family Services (DCFS) agrees there is no substantial evidence justifying dependency jurisdiction. We, too, agree and reverse the judgment.
FACTS AND PROCEDURAL HISTORY
A.H. was originally brought to the attention of the juvenile court because her older half-sister, K.N., had behavioral problems. K.N. had been living with her maternal grandmother since she was 18 months old because her mother (R.H.) could not take care of her.
When the social worker investigating K.N.s problems learned mother had a child living in her home, the worker assessed the home and had mother and father tested for alcohol and drugs. Not only were the tests negative, but the social worker found the home spacious, impeccably clean and free of safety hazards. He also found A.H. to be well-cared for. As a result, A.H. was released to her parents.
Nonetheless, about a week later DCFS filed a dependency petition alleging, among other things, that mother had a history of using drugs, made an inappropriate plan for K.N.s care by placing her with the maternal grandmother, and was unwilling to care for K.N., thereby placing A.H. at risk of emotional and physical harm. The petition was amended a month later to include allegations about fathers 2006 dependency case concerning his other children (two of whom are now adults), and further allegations that K.N.s unique behavior problems placed A.H. at risk of harm.
At the August 2009 jurisdiction hearing, the juvenile court struck all of the historical allegations concerning mother and father, but sustained allegations that K.N.s unique behavioral problems and mothers unwillingness to care for K.N. placed A.H. at risk of harm (counts b-3 and g-3). The remaining sustained allegations concern K.N. and her father, D.N.
The present appeal followed.
DISCUSSION
Welfare and Institutions Code section 300, subdivision (b),[1]allows jurisdiction where [t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . . Section 300, subdivision (g), allows jurisdiction where [t]he child has been left without any provision for support . . . .
A child may be declared a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent. (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) But even if a child is at risk for neglect, there must still be evidence of a substantial risk of harm to that childs sibling in order to justify jurisdiction over the sibling. (See In re Rubisela E. (2000) 85 Cal.App.4th 177, 197-199; In re Rocco M. (1991) 1 Cal.App.4th 814, 823-824.) A juvenile courts jurisdiction determination is reviewed for substantial evidence. (In re James C. (2002) 104 Cal.App.4th 470, 482.)
Father argues the juvenile court erred in its jurisdictional finding because there was no substantial evidence A.H. was at any risk of harm as a result of K.N.s behavioral problems because they never lived in the same household and were never similarly situated. DCFS agrees with fathers position, stating: [K.N.] has not lived with Mother for at least ten years, while [A.H.] has spent her entire life with Mother and Father. Moreover, [inasmuch] as the juvenile court dismissed the allegations against Mother and Father concerning their past dependency cases (and [DCFS] has not appealed), the remaining allegation is not sufficient to justify dependency jurisdiction.
We agree with father and DCFS. The record reveals that while sibling K.N. has many behavioral problems, she has not lived with mother since she was 18 months old, and there is no indication she ever lived with father. Mother made arrangements with the maternal grandmother, who agreed to care for and support K.N. in her home and has been taking care of her for the last 10 years.
In contrast, A.H. has always lived with her parents in a different part of Los Angeles County. There is no evidence in the record that her parents have ever placed A.H. at risk of any harm. To the contrary, DCFSs own investigation revealed her parents home was spacious, impeccably clean and free of safety hazards and that A.H. was well-cared for. A.H. was released to her parents and has remained with them throughout the proceedings.
In short, A.H. and K.N. are not similarly situated, as the parties agree. The fact mother agreed to have maternal grandmother care for K.N., who now has serious behavioral problems, does not mean her half-sibling A.H. is at risk of harm The maternal grandmothers difficulty in dealing with K.N.s behavior does not mean mother and father have placed A.H. at risk and need the juvenile courts intervention to protect A.H. There simply was no evidence indicating either that K.N.s behavior placed A.H. at risk of harm or that A.H. was left without any support. Accordingly, the juvenile courts judgment must be reversed.
DISPOSITION
The juvenile courts judgment sustaining jurisdiction over A.H. is reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
RUBIN, J.
WE CONCUR:
BIGELOW, P. J. FLIER, J.
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[1] Further citations are to the Welfare and Institutions Code.
