In re M.V.

Filed 5/23/06  In re M.V. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  Becky Dugan, Judge.  Reversed and remanded with directions.

            Appellate Defenders, Inc. and Laura L. Furness, under appointment by the Court of Appeal, for Defendant and Appellant Michael V.

            Richard Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant Cara H.

            Joe S. Rank, County Counsel, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

            Sharon M. Jones, under appointment by the Court of Appeal, for Minor.

            Cara H. and Michael V., hereafter mother and father, respectively, of three-year-old M.V., appeal from a juvenile court jurisdiction and disposition order.  Mother contends that there was insufficient evidence to support the court's jurisdictional findings under Welfare and Institutions Code section 300, subdivisions (b) and (g).^[1]  Both parents contend that the court violated section 361.3 when it failed to place M.V. with her maternal grandmother, Barbara H. (hereafter grandmother).  Father also contends that the court erred by denying him reunification services.  M.V. joins in respondent's brief, but argues that we should remand with directions to the juvenile court to order an assessment of grandmother as a possible placement.

            We conclude that there is insufficient evidence to support the juvenile court's jurisdictional findings under subdivision (b), and that the court's jurisdictional findings under subdivision (g) are based on the court's erroneous belief that the testimony of a key witness was corroborated by the testimony of another witness.  We reverse the jurisdiction order and remand for a new jurisdiction hearing solely on the allegations pursuant to subdivision (g).

FACTUAL AND PROCEDURAL HISTORY

            A dependency petition was filed as to M.V. on June 13, 2005, alleging, pursuant to subdivision (b), that mother was incarcerated and had left the child in the care of grandmother, who was unable to care for the child.  The petition alleged that mother knew, or reasonably should have known, that M.V. would be at risk of serious physical harm if placed with inappropriate relatives and failed to make stable caretaking plans for the child upon her arrest, thus placing the child at risk of serious physical harm.  It alleged that grandmother gave the child to other relatives who are suspected drug abusers and who had made verbal threats to other family members.  The petition alleged, also pursuant to subdivision (b), that father, whose whereabouts were unknown, was not part of M.V.'s household and had failed to provide adequate food, clothing, shelter, medical care, support and/or protection.  The petition alleged, pursuant to subdivision (g), that mother was incarcerated and unable to provide adequate care and support and that father, whose whereabouts were unknown, had failed to provide care and support.

            The parents' older child had been a court dependent and was ultimately adopted in 2002 after their parental rights were terminated.  M.V. had previously been made a court dependent a few days after her birth because her mother tested positive for methadone.  Mother completed her case plan, and the dependency was dismissed in February 2004.

            In May 2005, M.V. and her mother were living in the home of grandmother in Riverside County.  Mother left M.V. with grandmother while she went to Orange County with M.V.'s father to look for an apartment for themselves and M.V.  She anticipated leaving M.V. with grandmother for two weeks at the most.  However, she was arrested for robbery and jailed.  She was unable to call grandmother because grandmother's telephone was blocked for long distance calls.  Father did call grandmother and told her that mother had been arrested.  He told her that he wanted his 24-year-old daughter, Amanda, to care for M.V.^[2]  He had given Amanda some money so that she could afford to move into an apartment.  Amanda was then living with her father-in-law, but was able to move into an apartment within a few days.^[3]

            Grandmother had sent M.V. to stay with her son Billy and his wife Arlene for the weekend.  M.V. often spent the weekend with Billy and Arlene and their children.  Amanda contacted Arlene to say that she would be picking M.V. up within a couple of days.  Arlene agreed to keep M.V. at her house until Amanda could pick her up.  Amanda could not afford gasoline to drive to Hemet to pick up M.V. and take her to her home in San Diego.  However, she arranged for a friend, Desiree, to pick M.V. up and take her to Amanda's house.  Desiree did pick M.V. up from Billy and Arlene's house.  Instead of delivering M.V. to Amanda, Desiree took the child to her house.  She kept her there for several days and then contacted the Riverside County Department of Public Social Services (DPSS) to report that she had the child.  When DPSS arrived to take M.V. into custody, Desiree and her husband stated that they would like to have her placed with them.

            Two referrals to DPSS regarding M.V. were made during May 2005, alleging that grandmother had physically abused M.V. and that she was unable to care for the child.  A police officer went to grandmother's residence to discuss the allegations with her.  She denied the allegations of abuse and denied that she was unable to care for the child.  The officer reported that M.V. appeared healthy, well and clean.

            As of the date of the jurisdiction and disposition hearing, M.V. was in a foster home where she was happy and doing well.  The court had ordered visits with both parents, who were being held in local custody.

            The court found all allegations of the petition true, except the allegation that the maternal uncle and aunt had made threats to other family members.  It amended the subdivision (g) allegation concerning the father to allege that he was incarcerated and unable to arrange for care of the child.  It denied the request of both parents that M.V. be placed with grandmother, finding that grandmother was unable to care adequately for M.V.  The court made a general placement order, vesting DPSS with custody and the discretion to determine an appropriate placement.  It ordered reunification services for mother, but not for father.  It ordered DPSS to assess other maternal and paternal relatives for placement.

            Each parent filed a timely notice of appeal.

DISCUSSION

The Court's Jurisdictional Findings as to the Subdivision (g)

Allegations are Based on â€