In re Jordan C.

Filed 2/23/07 In re Jordan C. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Dalina C. appeals from a juvenile court order providing that Dalinas son Jordan C. remain a dependent of the juvenile court. The Humboldt County Department of Health and Human Services (the Department) agrees with Dalina that there is insufficient evidence to support the challenged order. Accordingly, we reverse.

II. STATEMENT OF FACTS

On September 11, 2003, the Department filed a petition, pursuant to Welfare and Institutions Code section 300, subdivisions (b), (g) and (j),[1] on behalf of eight-year-old Jordan and his five-year-old sister, D. The childrens mother, Dalina, admitted the allegations in an amended petition including that (1) she was unable to care for the children because of her drug use, (2) she had been arrested several weeks before the petition was filed and left the children without provision for support, and (3) her substance abuse had prevented her from appropriately caring for the childrens half-siblings.[2] The court exercised jurisdiction over the children on November 14, 2003.

Jordan and D. were placed in separate foster homes. After Dalina was released from jail, she entered a residential treatment program that was expected to last a year. The Department worker who interviewed Dalina at the facility described her as stable, insightful and motivated, as well as articulate, resourceful and well poised. Dalina expressed the desire and intention to correct the issues which resulted in the dependency and to create a stable home for her children.

According to the disposition report, both parents were heavily reliant on illegal substances and both had extensive arrest records for burglary and possession. The parents had failed to provide stable housing for the children and were not currently available to provide adequate care. The childrens Court Appointed Special Advocate (CASA) filed a report in advance of the disposition hearing recommending that Jordan and D. be placed together in a foster home after the end of the school year. The CASA described Jordan as enthusiastic and a delight to be with. She likened him to a sponge because he soaks up all there is to see and learn. Although bright, Jordan had missed a lot of school and was behind for his age. He was sad much of the time and was very hungry for love, attention and approval. On January 28, 2004, the juvenile court removed Jordan from his mother, declared him a court dependent and ordered that reunification services be provided to both parents.

A six-month status review report indicated that Dalina had graduated from Humboldt Recovery Center in June 2004, and was working for Home Supportive Services and living in her employers home. The children could not live with her there and remained in separate foster care homes. Dalina was looking for housing, and working on the other issues that had led to the removal of her children. An addendum report filed in advance of the six-month review revealed that Dalina had violated her probation by leaving her aftercare program at the recovery center and failing to maintain contact with her probation officer. She turned herself in voluntarily and it was anticipated that she would be placed in another recovery program. After a review hearing conducted on September 7, 2004, the court continued Jordan as a dependent and ordered that he and his sister be placed together in the home of a maternal cousin.

Jordan was moved to the home of his mothers cousin in Lake County on September 14, 2004, and D. joined him there on the 29th. On October 3, 2004, Jordan was involved in an altercation during which he went into the kitchen, picked up a knife and used it to threaten an older cousin. Jordan was arrested and taken to juvenile hall. The relative refused to accept him back into her home. Jordan was moved to the Childrens Center in Eureka. Jordans CASA visited him there and reported that he had been severely traumatized during his short stay with his relatives and that he was at a critical point at this time. The CASA expressed the opinion that Jordon needed time and assistance from the Childrens Center so he could successfully transition back into foster care or he will be in danger of an endless and destructive revolving door in which he goes into a foster home, acts out, and is removed until his placement choices become limited.

The CASA reported that, prior to Jordons move to Lake County, she and Jordans foster mother had spoken at length to the moms cousin about Jordan and told her that both he and his sister had a pattern of saying they would get a knife if they felt threatened and backed into a corner, and that the situation could be defused by giving Jordan support and helping him get in touch with his feelings. According to the CASA report, Jordan had received only a couple of days notice that he would be moved from the foster home where he had lived for one year. When the relative came to pick him up, Jordan was afraid and hid in the yard. In the two and one-half weeks that Jordan lived in the relatives home prior to the October 3 incident, Jordan ran away three times. He reported that he was bullied constantly and nobody would help him. Jordan told the CASA that both the cousin who threatened him and that boys father had physically abused him. The Department case worker told the CASA she had been aware of this situation yet the Department had done nothing to address it.

The 12-month review report, which was signed on November 8, 2004, stated that Jordan was awaiting placement in another foster home. The report characterized Jordans behavior while living in Lake County as troubling, and advised that services were likely needed to assist him in controlling his increasingly aggressive behavior and his anger problems. Dalina was incarcerated awaiting admittance to a recovery program that satisfied the requirements of her probation. The Department reported that Dalina had made progress in her case plan, but that her current incarceration and the requirement that she complete a one-year treatment program would prevent her from caring for her children in the near future. The 12-month review hearing was held on March 3, 2005. By that time, Dalina had entered an 18-month program at Streams of Living Waters. The juvenile court adopted the Departments recommendations, terminated reunification services and scheduled a permanent plan hearing pursuant to section 366.26.

In a March 2005 section 366.26 report, the Department recommended a permanent plan of long term foster care with a specific goal of returning Jordan to his mothers care. According to the report, Dalina had changed programs since the 12-month review and was currently participating in the Healthy Moms program and living in an approved home. She was caring for her three-year-old twins and had visitation with both Jordan and D. The Departments primary concerns about Dalinas ability to provide a stable home for all four of her children stemmed from her history of failing to maintain sobriety and her current inability to accurately access the risks to her children. The Department acknowledged, however, that Jordans behavior problems and his lack of academic progress during the past two years were likely impediments to adoption and also recognized that terminating Dalinas parental rights would devastate both mother and son.

A section 366.26 hearing was held for Jordan on June 30, 2005. By that time, D. had been returned to her mothers care, family maintenance services were ordered and a section 366.26 hearing for her was no longer needed. The court selected a permanent plan of long term foster care for Jordan with a goal of returning him to Dalina and scheduled a post permanent plan hearing for December 29, 2005. The following month, Dalina filed a petition pursuant to section 388 to modify Jordans permanent plan by placing him in her care and affording her family maintenance services. According to the petition, Jordan did not function well in foster care and was doing well on extended visits with mother, and nobody objected to the proposed modification except for Jordans father who was incarcerated at the time.[3]

On July 28, 2005, the juvenile court granted Dalinas section 388 petition, ordered that Jordan be placed with Dalina, vacated the post permanent plan hearing and scheduled a six-month status review for January 26, 2006.

In its six-month status review report, the Department recommended that Jordans dependency be continued and that the family be afforded an additional six months of family maintenance services. The Department reported that it recently learned that Dalina had not been attending school regularly or checking in with her probation officer as required by her case plan. The probation officer was concerned that Dalina may be using again. Jordans behavior at school had improved; his current school did not express significant concern about violent or aggressive tendencies. However, Jordan had recently been suspended for bringing a knife to school. Jordans father, who had been released from prison, was now having unsupervised visits with him and D.

The Department expressly acknowledged that Dalina had addressed the problems which resulted in this dependency. In this regard, the report states: Although there are

significant issues that need [to be] addressed, the undersigned social worker has observed Dalina to be very vocal in regards to her needs, and she was becoming increasingly resourceful and communicative. Dalina has taken full responsibility for the issues that brought her family to the attention of the Court. She has stated that her children have been through a lot and although she did not seem to completely understand the effects violence and drugs had on the children, she was attempting to alleviate the effect that this has had on them.

The report states that Dalina met all of the objectives and responsibilities of her previous case plan. Despite this acknowledgement, the Department advised that it had concerns about this family that it could not address if Jordans dependency was terminated. There were two open referrals regarding the family that the Department had not yet had the opportunity to investigate. In addition, the Department was concerned by Dalinas probation officers recent report that she had all of a sudden stopped participating in probation requirements. Finally, the Department wanted to hold a Team Decision Making meeting with the family and various service provider in order to provide the family with services that might assist in assuring the family needs were met.

Jordans CASA filed a report in anticipation of the review hearing in which she recommended six more months of family maintenance services. The CASA acknowledged that Dalina wanted the best for Jordan but expressed concern about the big load she had to carry and about her ability and/or willingness to see the depth and severity of Jordans problems. Jordan had made little academic progress since the dependency was established, his behavior problems continued, and he displayed symptoms of post traumatic stress disorder. The CASA viewed Jordans recent suspension because of the knife incident as a cry for help. She was concerned that Dalina minimized Jordans problems and was not sufficiently diligent about getting him help. The CASA also expressed concern about the decision to allow unsupervised visits with Jordans father. She believed that it was causing Jordan to experience mixed feelings and memories of past traumas.

A contested hearing was held on April 11, 2006. The first witness was Jordans teacher, Deborah Dukes. Dukes described Jordan as an extremely active child who had trouble concentrating. He had significant gaps in his knowledge and was very disruptive although his disruption was generally good-natured. Since the beginning of the school year, Jordans behavior had changed. Initially, he was very physically aggressive and verbally defiant. That aggression had subsided and Jordan was now more internalized. He would frequently go into shut down mode during which he would become closed physically and non-responsive. Dukes testified that Jordan was at risk both in terms of his behavior and his academic progress. Although Jordan was not cognitively delayed, he was not making any academic progress. He often refused to do work which made assessment difficult. Dukes believed that Jordan was functioning at between a first and third grade level depending on the subject. Dukes testified that Dalina had sat in on a few of Jordans classes and attended some meetings concerning him. However, it was Dukess opinion that Jordan would benefit from a higher level of parent involvement.

Margaret Halliday testified that she had served as Dalinas probation officer since September 2004. Halliday testified that Dalina was in complete compliance with her probation requirements and that Halliday had considered requesting an early termination of probation because of Dalinas excellent compliance. Dalina had successfully completed her programs through Healthy Moms and was going to school to obtain a certificate in cosmetology. Halliday described Dalina as a model probationer at this time who is doing [her] very best, and has done everything Ive asked her to do.

Wendy Smith, the social worker assigned to this case, testified that, since the status review report was prepared, the Department had investigated the two referrals referenced in her report and determined that both were unfounded. In addition, Smith had the opportunity to follow up with Dalinas probation officer and her concerns had been alleviated. Also a team meeting had been held during which the Department was informed that Dalinas drug tests were clean and that some services to Jordan had been terminated because of his behavioral improvement in school. Smith conceded at the hearing that all of the criterion necessary for dependency to be terminated . . . has been met. Jordans emotional problems and problems at school were not concern[s] in regards to termination of dependency. Smith also testified that, if the dependency was terminated, Jordan could still receive counseling through Children Youth and Family Services and would continue to have an aid in the classroom. The only service the family would no longer have was a wrap facilitator.

At the conclusion of the review hearing, county counsel acknowledged that the Departments concerns had been alleviated and submitted the matter without argument. Dalinas counsel requested that the dependency be terminated and the fathers counsel concurred. The minors counsel acknowledged Dalinas progress but urged the court to continue the dependency because of Jordans significant problems and his need for additional resources and services.

The trial court ordered that Jordan would remain a court dependent. It stated that terminating the dependency would leave Jordan in crisis and that it would not be doing its job if Jordan was left with even one less service. The court also reasoned that it would not be fair to Dalina to leave her in a situation in which shes doing all that she can do, but still wont succeed in resolving Jordans problems. In the courts view, an evaluation was necessary in order to clearly identify the services that would meet Jordan and Dalinas needs.

Explaining its decision, the court stated: We have to look at what were doing this for. Why did we become involved in Jordans life in the first place? And if hes not better off today -- I mean, frankly, maybe all his problems are relating to his time in foster care; they have nothing to do with the mother at all. But if we dont leave Jordan better off, and we just leave the mess that may have been created, frankly, by us -- Im not even saying the mom had anything to do with it -- but if we dont make him better off, then weve done nothing for him. Weve all gotten our paychecks, weve all done our jobs, and Jordan is the one that suffers.

An April 11, 2006, minute order prepared in conjunction with the hearing reflects that the trial court found that Dalina did comply with the case plan and made substantial progress toward alleviating or mitigating the causes necessitating placement out of the home. However, the court also stated that Dalina was required to meet all the needs of the child both at school and at home before dependency would terminate, and it found that Jordan had not made sufficient progress. The court also found that a lack of reasonable services [had] been provided to or offered to the parent(s) to aid the mother to overcome the problems which led to the intervention of the Court and that Family Maintenance services continue to be appropriate. Therefore, the court continued Jordans dependency and directed the Department to meet with Jordans school and to prepare an amended case plan with services to determine what is hindering the minors learning ability and also to assist the mother.

III. DISCUSSION

Dalina contends there is insufficient evidence to support the April 11, 2006, order continuing Jordans dependency. The Department agrees and so do we.

Neither the transcript of the April 11 hearing nor the courts minute order references the provision of the Welfare and Institutions Code pursuant to which that status review was conducted. The parties, however, agree that the hearing was or should have been conducted pursuant to section 364.

Section 364, subdivision (a) states that [e]very hearing in which an order is made placing a child under the supervision of the juvenile court pursuant to Section 300 and in which the child is not removed from the physical custody of his or her parent or guardian shall be continued to a specific future date not to exceed six months after the date of the original dispositional hearing. Subdivision (c) further provides that, at the continued hearing, the juvenile court shall terminate its jurisdiction unless the social worker or his or her department 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. . . .

In the present case, when Jordan was placed under the supervision of the juvenile court, he was removed from the physical custody of his mother and, therefore, section 364 did not apply at that time. However, in July 2005, the court granted Dalinas section 388 petition and modified its prior orders by returning Jordan to his mothers care. When read in conjunction with the courts continuing orders, the July 2005 order was an order which placed Jordan under the supervision of the juvenile court and which did not remove him from the physical custody of his mother. Therefore, the status review conducted after the July 2005 order was entered was governed by section 364. (See In re N.S. (2002) 97 Cal.App.4th 167, 171-172 [section 364 applies when the dependent child though initially removed is subsequently returned to the physical custody of a parent].)[4]

Since section 364 applied at the April 11, 2006, status review hearing, the juvenile court was required to terminate jurisdiction over Jordan unless the Department established by a preponderance of evidence that the conditions still exist[ed] which would justify initial assumption of jurisdiction under Section 300, or that those conditions [were] likely to exist if supervision [wa]s withdrawn. . . . ( 364, subd. (c).)

The Department did not show nor did it even contend that the conditions which resulted in this dependency still existed or were likely to recur if jurisdiction was terminated. Indeed, on appeal, the Department concedes that [t]here was no evidence presented that the problems which brought Jordan into the system, [Dalinas] substance abuse and leaving her children with inappropriate caregivers while incarcerated, were still at issue. Appellant was clean and sober; her children were living with her and she was taking care of her children. Therefore, the April 11, 2006, order continuing Jordans dependency must be reversed.

Our conclusion that the order continuing Jordans dependency is not supported by the evidence and must be reversed makes it unnecessary to address Dalinas numerous other claims of error.

IV. DISPOSITION

The April 11, 2006, order is reversed and this case is remanded to the juvenile court for further proceedings consistent with this opinion.

_________________________

Haerle, Acting P.J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

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[1] Undesignated statutory references are to the Welfare and Institutions Code.

[2] One half-sibling was already a court dependent.

[3] Jordans father objected to the petition on the ground that he was due to be released from prison in the near future and he felt that a placement with him would be in Jordans best interest.

[4] In re Nicholas H. (2003) 112 Cal.App.4th 251 is inapposite because, in that case, the dependent child was removed from one parent and placed with a previously noncustodial parent. (Id. at pp. 263-264.)