Kimberlee S. v. Superior Court

Filed 10/25/07 Kimberlee S. v. Superior Court CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Kimberlee S. seeks writ review of the respondent courts order denying her reunification services with her one-year-old son and setting a permanency planning hearing. She contends that there is insufficient evidence to support the courts jurisdictional finding under Welfare and Institutions Code[1] section 300, subdivision (b) that there is a substantial risk that her son will suffer serious physical harm or illness as a result of her failure or inability to adequately supervise or protect him. We disagree.

On April 28, 2007, Kimberlees son was brought into protective custody by the Oakland Police Department after being found in a home that was described as filthy and uninhabitable. The officer who detained the child reported that the house smelled of urine and feces and that there was garbage throughout. The child was barefoot, extremely dirty and appeared to be wearing a soiled diaper. The child had been left with a woman and other individuals that appear to [have been] complete strangers. The woman with whom the child had been left did not know the name of the childs caregiver or when she would be back to pick him up.

After investigating, the Alameda County Social Services Agency (the agency) learned that approximately five months prior, Kimberlee had left her son with a woman who although not biologically related to the child considers herself to be the childs maternal grandmother. The fictive grandmother explained that she had an informal agreement with the parents who gave her custody of the minor[]. [She] stated that she did not know the whereabouts of the parents and that they were not appropriate caretakers of the minor. She informed the agency that [t]he parents sign[ed] over custody to her due to the mother using drugs in the street and the father going in and out of prison. She indicated that she has been trying to get the minor updated with his immunizations because the mother never brought him for his immunizations. The minor is also delayed because the mother has neglected the minor. The minor is only now learning to walk because he wasnt given the opportunity to learn how to walk since [they] lived in a vehicle. She described the mother to be a drug addict and on the streets. The fictive grandmother explained that the day the child was detained, she left him with a babysitter because her daughter had been in a car accident. She did not think the babysitter would take the minor into the house. . . . She did not know how severe the car accident scene was so she didnt want to bring the minor and expose him to the accident scene. . . . [I]f she knew the babysitter was going to take the minor into the house, she would not have left the minor with her. She acknowledged using bad judgment when she allowed the child to stay with the babysitter.

On May 2, 2007, the agency filed a petition for dependency under section 300, subdivisions (b), (g) and (j). The petition alleges under subdivision (b), among other things, that 1. The parents are unable to provide adequate care for the minor, to wit: [] a) The mother has a long history of substance abuse where the minors sibling was born with a positive toxicology screen for methamphetamine. [] b) The mother failed to provide the minor with adequate medical care where he is not up to date with his immunizations. [] c) The mother has a transient lifestyle and does not have a stable place of abode. [] d) The father has a history of substance abuse and criminal history where he is on parole. [] 2. The caretaker . . . placed the minor in an unsafe environment when she left the minor in the home of the babysitter whose home is considered to be uninhabitable . . . . [] . . . [] 4. The minor was found in the home and he was observed to be dirty with a foul odor. The petition alleges under subdivision (g) that [t]he parents exact whereabouts are unknown and their ability to provide care for the minor is unknown. Finally, the petition alleges under subdivision (j) that [t]he parents have prior [child protective services] history where the minors sibling . . . was removed from their care due to substance abuse issues and was permanently planned. At a hearing held on the same day, the court ordered the childs further detention. Kimberlee did not attend the detention hearing.

On June 20, at the contested jurisdictional hearing, the childs fictive grandmother testified that on April 28, she left the child with her friend for only 45 to 65 minutes and that when she returned the minor had already been detained by the police. She explained that she did not live at the house where the minor was found and that in her home the child had his own room, with a bed and toys. She had recently begun taking him to a wellness center in Oakland for medical care. Kimberlee attended the jurisdictional hearing but did not testify. After reviewing the evidence, the court stated, Theres really no dispute here that the mother . . . [is] unable to care for the minor at the present time. Theres simply no question about that, and the mother acknowledged that by making other arrangements for [her son]. [] So then the subsidiary question becomes whether the mother made what Court of Appeals decisions call appropriate arrangements for the care of her child, and the issue is whether leaving him with [his fictive grandmother] was an appropriate arrangement under the law. [] I think its a close question frankly. I think the mother had [her sons] best interest at heart, but I simply cant accept the situation as being appropriate given the incredibly poor judgment that [the fictive grandmother] used on the date the child was left with persons that she simply didnt know. Thereafter, the court found true the subdivision (b) and (j) allegations set forth above and modified the subdivision (g) allegation to state that mother admits her inability to care for the child.

The dispositional hearing was held on August 1. Kimberlee did not attend. The court denied reunification services to Kimberlee and set a permanency planning hearing pursuant to section 366.26. The parties were advised that if any party wished to seek appellate review of the order setting the hearing he or she must file a notice of intent to seek a writ within seven days of the hearing. Within seven days a notice of intent was filed on Kimberlees behalf.[2]

Initially, we reject Kimberlees suggestion that she is personally capable of caring for her son. To the contrary, the record overwhelmingly supports the trial courts finding that she is unable to do so at this time. Moreover, it is undisputed that Kimberlee has taken no steps to resolve her problems with substance abuse and transient housing that led to the termination of her parental rights of the minors sibling. Accordingly, substantial evidence supports the courts finding that Kimberlee is unable to provide regular care for her son due to her substance abuse.

Likewise, the record supports the courts finding that she failed to make appropriate arrangements for her sons care in her absence. A parents failure to make appropriate arrangements for a childs care in his or her absence constitutes neglect under section 300, subdivision (b).[3] (See In re Robert P. (1976) 61 Cal.App.3d 310, 316 [mother neglected two-year-old child by leaving him with 17-year-old son of a motel manager for two days].) In In re Athena P. (2002) 103 Cal.App.4th 617, 622, 629-630, the court held that in situations requiring long-term care of a child, appropriate arrangements include creation of a proper legal relationship between the minor and the caretaker. In that case, an incarcerated mother sent her child to live with her grandparents but failed to file the proper documents to create a temporary legal guardianship. This was not a satisfactory arrangement. The grandparents got custody as a matter of fact, but not as a matter of law. As a result, they had no authority to consent to medical treatment for Athena. Legally, they could not so much as authorize her necessary childhood vaccinations. They had no authority to enroll her in day care or in school. If she wandered away or got lost, they could not prove that they were entitled to have her returned to them. These were all aspects of the care of a preschool child. (Ibid.) While the court in Athena P upheld the courts jurisdiction under section 300, subdivision (g),[4] and thus did not decide whether the same evidence would support jurisdiction under subdivision (b), the appropriateness of a mothers arrangements for the long-term care of her child should be measured by the same standard whether the mother is unable to care for her child due to incarceration or due to substance abuse. In both instances, the long-term nature of the relationship places significantly greater responsibility on the caregiver and formal documentation is necessary to protect the interests of the child.

Here, Kimberlee left her son with his fictive grandmother for more than five months without informing the grandmother of her whereabouts and without making appropriate legal arrangements to provide for the child. Kimberlee argues that the April 28th incident was an isolated incident and that she was not negligent in leaving her son with his fictive grandmother. But Kimberlee essentially abandoned her child without making proper arrangements for his care. This is not excusable even assuming that the fictive grandmother is an otherwise responsible caregivera questionable assumption based on the lack of judgment demonstrated on April 28. In all events, substantial evidence supports the juvenile courts orders.[5]

Disposition

The petition for extraordinary relief is denied. This opinion shall become final immediately upon filing. (Cal. Rules of Court, rule 8.264(b)(3).)

_________________________

Pollak, Acting P. J.

We concur:

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Siggins, J.

_________________________

Horner, J.*

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

[2] Kimberlee did not personally sign the notice of intent as required by rule 8.459(e)(3) of the California Rules of Court. Thereafter, however, her attorney submitted a declaration explaining, Soon after the disposition hearing, I did have face to face contact with the petitioner and I did explain to the mother that she had a right to file a notice of intent to file a writ petition within seven days. . . . [] The mother did want me to pursue the notice and writ petition. However, when I called the mother to set up a meeting so she could sign the notice, then her phone was disconnected. The phone remained disconnected for eight days. . . . [] I did not want to take a chance on missing the seven day requirement to file the notice; therefore, I signed and filed the notice on my clients behalf. [] Subsequent to my filing the notice, I have had regular contact with the mother. The mother still wants to pursue the writ petition and to maintain her parental rights. Although it is questionable whether Kimberlee has established good cause to be relieved of her failure to personally sign the notice of intent (see Lisa S. v. Superior Court (1998) 62 Cal.App.4th 604), we have nonetheless considered the merits of her petition.

[3] Section 300, subdivision (b) authorizes the juvenile court to exercise its jurisdiction where The 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, . . . or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's . . . substance abuse.

[4] Section 300, subdivision (g) authorizes the juvenile court to exercise its jurisdiction where The child has been left without any provision for support; physical custody of the child has been voluntarily surrendered pursuant to Section 1255.7 of the Health and Safety Code and the child has not been reclaimed within the 14-day period specified in subdivision (e) of that section; the child's parent has been incarcerated or institutionalized and cannot arrange for the care of the child; or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful.

[5] Kimberlees prayer for relief seeks an order granting her reunification services. Her petition, however, includes no argument challenging the courts finding under section 361.5, subdivision (b)(10) that she is not entitled to such services, and the record certainly suggests that she is not. In any event, any contention to the contrary has been waived.

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.