In re Carlos G.

Filed 3/1/07 In re Carlos G. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from an order of the Superior Court of Los Angeles County. Steven L. Berman, Judge. Reversed and remanded with instructions.

Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Fred Klink, Deputy County Counsel, for Plaintiff and Respondent.

Dulce G. (mother), mother of 11-year-old Carlos, 9-year-old Erick, and 7-year-old Ericka, appeals an order of the juvenile court continuing the courts jurisdiction over her children.^[1] The Los Angeles County Department of Children and Family Services (DCFS) concedes that the juvenile court erred in continuing its jurisdiction, we therefore reverse the order and vacate all subsequent orders.

CONTENTIONS

Mother contends that the juvenile court erred in refusing to terminate jurisdiction over her children at a hearing under Welfare & Institutions Code section 364^[2]where it was shown that mother had successfully completed her family preservation program and that the conditions which gave rise to the courts initial assumption of jurisdiction no longer existed. Mother further contends that the trial court erred in issuing a restraining order against her boyfriend, Alfredo H. (Alfredo), which failed to comport with the requirements of section 213.5.

FACTS AND PROCEDURAL HISTORY

1. Initial detention and section 300 petition

Carlos and his siblings initially came to the attention of DCFS on April 20, 2004, when sheriffs deputies were called to a school in Lakewood after mother failed to pick up Carlos and Erick. Deputies went to the familys residence and determined that Ericka, who was then five years old, had been left home alone. The children were detained. When mother arrived at the Lakewood sheriffs station, she explained that she had arranged for a babysitter for Ericka, but that she had to leave for work before the babysitter arrived. She stated that when the babysitter arrived, Ericka would not let her into the home. Mother further stated that someone from Headstart was supposed to pick up the boys, and that she did not know why they were not picked up. All three children were observed to be clean and healthy with no visible bruises.

On April 23, 2004, DCFS filed a petition pursuant to section 300, subdivisions (a), (b), (g), (i), and (j) on behalf of the children. The petition alleged that the childrens father, Ponciano G.,^[3]had physically abused the minors by striking and threatening to strike the minors with a belt, had assaulted mother in the presence of the minors, and had failed to provide the minors with the necessities of life. The petition also alleged that mother had failed to protect the children from physical abuse by their father, had failed to pick up Carlos and Erick in a timely manner, and had occasionally left Ericka at home alone without adult supervision. At the detention hearing on April 23, 2004, the juvenile court detained the minors but permitted mother to have unmonitored visitation. The court also gave DCFS discretion to release the minors to mother after verification that she had an appropriate and responsible babysitter to care for the children while mother worked.

On May 14, 2004, DCFS filed a first amended petition alleging that father had a history of alcohol and substance abuse which rendered him incapable of providing care for the minors. DCFS exercised its discretion and released the minors to mother.

The continued jurisdictional hearing took place on May 17, 2004. Ponciano G. could not be located, and the counts against him were dismissed. Mother pleaded no contest to the amended language of the petition, and the court sustained allegations that she knew of the minors physical abuse by father and failed to protect them; that she failed to pick up Carlos and Erick from school in a timely manner; and that she had on prior occasions left Ericka at home without supervision.

A disposition hearing was held on July 2, 2004, at which the trial court ordered that the children be placed with mother under DCFS supervision, that mother attend parent education classes, and that mother participate in domestic counseling for victims and individual counseling to address case issues.

2. The section 364 review hearings

By September 2, 2005, DCFS reported that mother was in full compliance with all previous court orders. She had completed a family preservation program, and the social worker visited the home and found the children happy and well cared for. Mother had received in-home counseling and her counselor reported that she had learned to promote a healthy environment for her children. She had a stable residence and had secured appropriate daycare for the minors. DCFS recommended termination of jurisdiction.

At the section 364 hearing on September 2, 2005, the court raised concerns that the children were having problems in school, that some of their dental records were not up to date, and that the court did not have some of the school reports that it had ordered. In addition, at the time of the hearing mother was eight months pregnant. The father of the unborn child was Alfredo, mothers boyfriend, who was living with mother and her children. Alfredo submitted to a Live Scan background check which revealed a 2004 charge of driving under the influence (D.U.I.). Alfredo had been sentenced to 36 months of probation.

Despite the recommendation of DCFS, the juvenile court refused to terminate jurisdiction. The court cited concerns over the childrens performance in school, and stated that it wanted to see school reports. The court further indicated that it wanted to see a report addressing Alfredos compliance with his D.U.I. probation, whether or not he had a drivers license, and whether or not he was in compliance with the appropriate programs. The court further ordered that Alfredo not drive the children unless he was legally licensed and insured. The court set a further section 364 review hearing to address those issues for October 28, 2005.

On October 28, 2005, DCFS reported that the minors continued to do well in mothers home. However, Ericka had disclosed to a social worker that Alfredo had hit her on her legs with a belt, and that he also hit Erick and Carlos when they misbehaved. Further, the social worker learned that Alfredo was due to complete his probation in January 2005 but had not yet done so. He would need to complete three court ordered programs and pay a fine or do community service. Due to these concerns, DCFS recommended that the juvenile court maintain jurisdiction for another three months. At the hearing, the trial court ordered that Alfredo move out of appellants home and not move back into the residence until he showed proof of compliance with his probation conditions, completed parenting classes, and completed alcohol testing and rehabilitation.

Both mother and Alfredo expressed unwillingness to comply with the courts order that he move out of the home. Mother was financially dependent on Alfredo and needed him to take care of the children when she gave birth. However, after DCFS detained the children due to noncompliance with the courts order, mother and Alfredo went to the DCFS office and completed an affidavit which stated that he was moving out of her house. In court on November 7, 2005, Alfredo requested that he be allowed to return to mothers home. The childrens attorney informed the court that the children told her that the corporal punishment had stopped, and that the children referred to Alfredo as father. On behalf of the children, the childrens attorney also requested that he be allowed to return to the family home. The childrens attorney further stated that DCFS was not opposed to allowing Alfredo to move back into the family home, and noted that mother was dependent on him financially. The trial court stated that it would allow Alfredo to move back into the family home if he showed evidence of one clean alcohol test. The court would also permit Alfredo to continue to reside in mothers home and have unmonitored contact with the minors as long as he was participating in counseling and parenting classes, testing clean, and showing progress in his programs.

Further section 364 hearings were held on May 8, 2006, and June 8, 2006. On May 8, 2006, Alfredo was not in compliance with the courts orders, but counsel for mother and counsel for the children asked that jurisdiction be terminated and Alfredo be allowed to return to the family home. Mothers counsel reminded the court that Alfredo was not in the original petition. Childrens counsel also stated that mother and Alfredo now had a child together, and that the Carlos, Erick and Ericka wanted him to return to the residence. On June 8, 2006, Alfredo was still not in full compliance with the courts orders. The court noted that Alfredo had not completed the alcohol program, and counsel for the children again reminded the court that Alfredo was not the reason that the court had taken jurisdiction of the children. After further discussion between the court, Alfredo, and counsel regarding Alfredos compliance with court ordered programs, mothers attorney asked that the court set a contested hearing on the issue of terminating jurisdiction. The childrens counsel joined in the request.

3. The contested section 364 hearing

The contested hearing took place on June 27, 2006. DCFS reported that Alfredo had complied with three components of his D.U.I. program, but he had not yet provided proof of his enrollment in the alcohol rehabilitation program. Alfredo was participating in parent education, which was scheduled to conclude on July 5, 2006. During an early morning unannounced visit to the family home, the social worker did not find Alfredo in the home, but she did find adult male clothing in mothers closet. Mother denied that Alfredo was living in the home but claimed that Alfredo arrived at her house early in the morning to get ready for work.

DCFS recommended that jurisdiction continue until Alfredo completed his court ordered alcohol rehabilitation program and parent education program. Further, DCFS believed that all three minors were in need of physical examinations. It requested that Alfredo remain outside the family home until he provided verification of his enrollment in the alcohol rehabilitation program.

At the hearing, mothers counsel and the childrens counsel requested that Alfredo be permitted to live in the family home. The juvenile court inquired of Alfredo how he got to court that morning, and he admitted that he drove without a license. The court did not believe mothers denial that Alfredo was living in the family home. On its own motion, the court issued a restraining order keeping Alfredo at least 50 yards from mothers home. The court found that continued jurisdiction was necessary and set another section 364 review hearing.

On July 5, 2006, mother filed a timely notice of appeal.

DISCUSSION

I. The juvenile courts retention of jurisdiction

A. Applicable law

In any matter in which a child has been declared a dependent of the court, the court must hold review hearings. (Cal. Rules of Court, rule 5.710(a).) Section 364 authorizes review hearings in juvenile dependency matters when a minor is not removed from parental custody. (In re N.S. (2002) 97 Cal.App.4th 167, 171.)

Under section 364, subdivision (c), the court shall determine whether continued supervision is necessary. The court shall terminate its jurisdiction unless the social worker . . . establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn. We review a courts decision not to terminate jurisdiction for substantial evidence. (In re N.S., supra, 97 Cal.App.4th at p. 171.)

When a child has been declared a dependent of the court under section 300 and new facts or circumstances arise, other than those under which the original petition was sustained, which give the trial court reason to retain jurisdiction of the matter, the petitioner shall file a subsequent petition. ( 342.) Thus, section 342 requires a new petition where completely new circumstances come to light that are wholly unrelated to the conduct or circumstances alleged in the sustained petition. (In re Rodger H. (1991) 228 Cal.App.3d 1174, 1183.)

B. DCFS concedes that substantial evidence did not support the trial courts decision to continue to exercise jurisdiction

In its brief to this court, DCFS concedes that mother is correct with respect to her contention that section 364 required termination of jurisdiction, and that section 342 required the filing of a new petition for the court to continue to exercise jurisdiction.

The first amended petition that the trial court sustained alleged counts under section 300, subdivisions (b) and (j). Those counts pertained to mothers failure to pick up her children from school and failure to provide adequate supervision for Ericka. The counts pertaining to the childrens biological father, who had ceased to be a part of their lives, were dismissed on May 17, 2004. As DCFS explains in its brief, no evidence was presented at the hearings on September 2, 2005 and October 28, 2005, that the conditions that gave rise to the courts assumption of jurisdiction still existed. By the time of these hearings, mother was in compliance with all court ordered programs and there was no evidence that she continued to neglect her children. Instead, after October 28, 2005, the focus of attention for DCFS and the court was Alfredo, his use of corporal punishment, and his failure to comply with the terms of his probation.

Alfredo was not among the factors that gave rise to the courts original assumption of jurisdiction. Thus, Alfredos presence in the childrens lives would be a new fact under section 342. Thus, under section 342, a new petition would be required in order for the trial court to continue to exercise jurisdiction in this matter.

Because DCFS concedes that substantial evidence does not support the trial courts decision to continue its jurisdiction past the October 28, 2005 hearing, we decline to address mothers contentions that the actions of the trial court violated the doctrine of separation of powers and denied mother due process of law. [W]e do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us. (See Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230, citing People v. Williams (1976) 16 Cal.3d 663, 667.)

II. The restraining order

Mothers second contention is that the trial court exceeded its authority by issuing a restraining order against Alfredo which failed to comport with the requirements of section 213.5. DCFS disagrees with this contention. However, DCFS concedes that because it has agreed that the trial court should have terminated its jurisdiction at the October 28, 2005 hearing, the legality of court orders entered thereafter is rendered moot.

Because we hold that the trial court should have terminated its jurisdiction on October 28, 2005, the June 27, 2006 restraining order is vacated. (See, e.g., International Assn. of Heat etc. Workers v. Superior Court (1982) 132 Cal.App.3d 1, 7 [where trial court lacked jurisdiction to issue temporary restraining order, the order cannot support a contempt proceeding].) We therefore do not address the debate between the parties as to whether the trial court exceeded its authority in entering the order.

DISPOSITION

The trial courts October 28, 2005 order continuing jurisdiction is reversed. The trial court is directed to vacate that order and enter an order terminating jurisdiction over Carlos, Erick and Ericka. All subsequent orders of the trial court, including the restraining order against Alfredo, are vacated.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

CHAVEZ

We concur:

_______________________, P. J.

BOREN

_______________________, J.

ASHMANN-GERST

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^[1] Mother has a fourth child who was born after the incidents giving rise to this case occurred. Mothers fourth child is not a part of this appeal.

^[2] All further statutory references are to the Welfare & Institutions Code unless otherwise indicated.

^[3] Ponciano G. is not a party to this appeal. His whereabouts were unknown during the proceedings and he never appeared at any of the hearings. The most recent information that DCFS could locate was that he had been released from jail the previous year and turned over to the Immigration and Naturalization Service. It was unclear whether he was deported or not.