Filed 6/22/17 J.V. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



J.V.,

Petitioner,

v.

THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,

Respondent;

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Real Party in Interest.


E068051

(Super.Ct.No. J263481)

OPINION


ORIGINAL PROCEEDING; petition for extraordinary writ. Steven A. Mapes, Judge. Petition granted.
Dennis Moore for Petitioner.
No appearance for Respondent.
Jean-Rene Basle, County Counsel, Kristina M. Robb Deputy County Counsel, for Real Party in Interest.
Petitioner J.V. (father) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the trial court’s jurisdictional finding as to his child, N.V. (the child) and setting a Welfare and Institutions Code section 366.26 hearing. We vacate the section 366.26 hearing; reverse the trial court’s finding that the child came within section 300, subdivision (b), with respect to father; and remand the matter to the trial court to conduct a new disposition hearing with father as a nonoffending parent.
FACTUAL AND PROCEDURAL BACKGROUND
On December 29, 2015, the San Bernardino County Department of Children and Family Services (CFS) filed a section 300 petition on behalf of the child, who was seven months old at the time. The petition alleged that he came within section 300, subdivision (g) (no provision for support). It specifically alleged that the child’s mother (mother) was incarcerated and that “[t]he unknown father’s whereabouts, capacity, and willingness to care for the child [were] unknown.”
The detention report stated that CFS received a referral that there were two family members fighting over a baby boy whose mother was incarcerated. There was no legal proof of whom the child had been given to. The social worker interviewed the paternal aunt, J.S., regarding the situation. J.S. reported that mother was currently incarcerated, and when the child was born, mother gave him to the maternal grandmother (MGM). J.S. was contacted by the child’s older sister, I.S., who was in the care of the MGM. I.S. reported that she and her siblings, including the child, were abandoned by the MGM in an apartment with no food or running water. J.S. said she went to the apartment and took them into her care.
The social worker interviewed the MGM, who reported a different story. The MGM said that mother gave her the child when he was born. However, the MGM came upon hard times and asked J.S. for help. The MGM said she later requested to have the child back, but J.S. refused. According to the MGM, her friend told her that J.S. was drinking and driving with the child in the car. She also believed J.S. was using drugs. The social worker obtained a detention warrant to remove the child.
The court held a detention hearing on December 30, 2015, and detained the child in foster care.
On January 19, 2016, CFS filed a first amended petition, which alleged two different fathers—D.P. and father. It also added the allegation that the child came within section 300, subdivision (b), and specifically alleged that mother had a substance abuse history and criminal history.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on January 19, 2016, recommending that the court sustain the amended petition, that the child be removed and placed in out-of-home care, and that no reunification services be provided to father or mother. The social worker reported that mother and the other alleged father, D.P., were married at the time of conception and birth of the child. They were still married and were also both currently incarcerated. The social worker reported that father was currently incarcerated at High Desert Detention Center, with an unknown release date. However, the declaration of due diligence stated that father was incarcerated at the Adelanto Detention Center. Notice of the jurisdiction/disposition hearing and the first amended petition were sent to the facility in Adelanto.
The court held a jurisdiction/disposition hearing on January 20, 2016, and the matter was continued to February 10, 2016.
On February 10, 2016, father filed a statement regarding parentage declaring that he believed he was the child’s father, and that he wanted to be appointed an attorney. Father stated he was incarcerated before the child was born, and he had family that was willing to take care of the child while he was “locked up.”
At the further jurisdiction/disposition hearing held on February 10, 2016, father was not present and was not appointed counsel. The court found father to be the presumed father of the child. It also found that the child came within section 300, subdivisions (b) and (g). It declared the child a dependent of the court, removed him from parental custody, and denied reunification services to mother and father.
Six-month Status Review
The social worker filed a six-month review report on August 9, 2016, recommending that a section 366.26 hearing be set and adoption be the permanent plan. Father remained incarcerated. The child was doing well in his placement and was bonded with his caregiver. However, when outside of his comfort zone, he was easily frightened by others and needed to be held. These concerns were being addressed in therapy. The social worker noted that there was a relative going through the relative assessment unit (RAU) process who was willing to provide permanent care for the child.
On August 10, 2016, the court set a section 366.26 hearing for December 8, 2016.
At a hearing on September 12, 2016, the court ordered counsel to be appointed for father.
Section 388 Petition and Section 366.26
On November 7, 2016, father filed a section 388 petition, requesting that all jurisdictional and dispositional findings be vacated and another jurisdiction/disposition hearing be set. He contended that he was in custody at the time of the previous hearing, and he was not appointed counsel or given an opportunity to be transported. The court set a hearing for December 8, 2016.
On December 1, 2016, the social worker filed a section 366.26 report, recommending that parental rights be terminated and the permanent plan of adoption be implemented. The social worker reported that father and mother continued to be incarcerated, and the child had not had any contact with them. The child had been in a placement with relatives since May 12, 2016, and they wished to adopt him.
The court held a hearing pursuant to sections 388 and 366.26 on December 8, 2016, but it was continued in order to allow father to be transported.
A continued hearing was held on January 23, 2017. The court granted father’s section 388 petition, vacated the jurisdictional and dispositional findings as to him, and set a hearing for February 28, 2017. Father informed the court that his release date was March 8, 2019.
That same day, the social worker filed additional information for the court, and reported that, after the last hearing, he was contacted by a paternal aunt, Mrs. C.R. (the aunt), who was interested in providing a permanent home for the child. Her information was obtained and the RAU process began. The social worker arranged for biweekly visits. However, after visits with the aunt started, the child began displaying abnormal behavior, including anxiety, excessive crying, refusing to eat, and throwing tantrums. He constantly wanted to be held and to have frequent assurances that he was okay. The social worker attended a visit and observed that he looked scared and hardly engaged with the aunt, and he had no apparent attachment or bond with her. Thereafter, visits with the child were terminated. The child was seen by a therapist weekly, and he became stable again. The social worker recommended that the child remain in his current prospective adoptive placement.
The social worker filed a second amended petition with regard to father on February 27, 2017, and alleged that the child came within section 300, subdivisions (b) and (g). Specifically, the petition alleged that father had a criminal history that compromised his ability to properly parent the child, and that father was incarcerated until March 2019, making it impossible for him to provide for the child. The social worker also filed a detention report, which showed father’s criminal history as a list of numerous dates, two Health and Safety Code sections, various Penal Code sections, and one Vehicle Code section.
The social worker filed another jurisdiction/disposition report on February 24, 2017, again recommending that the court sustain the petition, deny services to father and mother, and set a section 366.26 hearing. The social worker reported that she interviewed father on February 21, 2017, and he said he recognized he would be unable to provide care for the child while he was incarcerated. However, he expressed his desire for the child to be placed with relatives during his incarceration. Father said he also recognized that he had an extensive criminal history, but he did not feel it was fair to judge his parenting ability on it. He said he planned on turning his life around and making permanent changes. He also reported that he had drug charges in the past, but he completed a drug treatment program five years prior and had been sober since then. He admitted he was involved with gangs in the past, but said he no longer associated with them.
The social worker further reported that the aunt was assessed and approved by the RAU. However, there was concern about the quality of attachment and bond between her and the child.
On April 3, 2017, the court held a contested jurisdiction/disposition hearing. Father was present and represented by counsel. His counsel made a motion for a directed verdict, based on CFS’s failure to meets its burden under section 300, subdivision (g), to show that father was unable to arrange care for the child. He also contested the section 300, subdivision (b) allegation with regard to father’s criminal history. County counsel noted that “mother’s case [was] already settled,” as there were allegations sustained against her, and the child was found to come under the Welfare and Institutions Code. Thus, she suggested that father could be considered a nonoffending parent, and they could strike both allegations and proceed to disposition. The court did not acknowledge the suggestion, but proceeded to review father’s criminal history, as listed in the second detention report. The court found that his criminal history was extensive and declined to give a directed verdict on that allegation. However, the court agreed to not sustain the allegation under section 300, subdivision (g). Father’s counsel argued that the detention report did not show convictions and argued that they could just be arrests. However, the court noted that father was currently incarcerated until 2019, and his most recent entry was in 2013. The court agreed that it did not know if father had 18 convictions, but it knew he had 18 contacts with law enforcement, and it considered that a criminal history. The court further concluded the fact that father was doing significant time in prison currently was enough for it to say his criminal history was extensive. The court sustained the section 300, subdivision (b) allegation and found the subdivision (g) allegation to be not true. It found father to be the presumed father but denied reunification services, pursuant to section 366.26, subdivision (e)(1), because the length of his incarceration exceeded the statutory time for services. The court set a section 366.26 hearing for August 8, 2017.
The court then asked father what his request on the disposition was, and father requested that the child be placed with the aunt. County counsel asked for the child to remain in his current home, noting that past visits with the aunt caused the child distress. The court noted that the law favored relative placements, so it ordered CFS to allow visits with the aunt and work toward the goal of relative placement. The court stated that the aunt was not doing anything inappropriate; rather, the child was just fearful. Since the court wanted to “follow the law of preference for family members,” it asked CFS to facilitate visits “to see if things change in that regard.” The court stated: “[L]et’s still try to work with the family and keep the child with the family. . . . I don’t want to give up on that, and the family’s done nothing wrong.” Thus, the court ordered that the child remain in his current home, but authorized placement with the aunt “if and when appropriate.”
ANALYSIS
There Was No Substantial Evidence to Support the Jurisdictional Finding
Father argues that there was insufficient evidence to support the jurisdictional finding under section 300, subdivision (b), which requires that 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, . . ..” (§ 300, subd. (b).) The court found true the allegation under section 300, subdivision (b), that father had “a criminal history which compromise[d] his ability to properly and appropriately parent his child.” We conclude the evidence was insufficient to sustain the allegation.
A. Standard of Review
“In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; . . .” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
B. The Evidence Was Insufficient
Father claims there was no substantial evidence to support the juvenile court’s jurisdictional finding under section 300, subdivision (b), which was that the child could suffer serious physical harm as a result of father’s failure or inability to protect him, due to his criminal history. Specifically, he argues that the only evidence of his criminal history was a list of dates and offenses in the reports and his current incarceration in state prison until 2019. He asserts that “[i]t is not known whether the dates and offenses were convictions or arrests,” and that there was no evidence he engaged in neglectful conduct, or that his conduct placed the child at substantial risk of suffering harm.
“Subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 823 (Rocco M.).) Because section 300, subdivision (b), also provides that “[t]he child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness,” there must be evidence that circumstances existing at the time of the hearing make it likely that the child will suffer some type of serious physical harm or illness in the future. (Rocco M., at p. 823; see In re Janet T. (2001) 93 Cal.App.4th 377, 388.)
There was no allegation and no evidence the child had ever suffered any physical injury or illness as a result of father’s criminal history. The issue, then, is whether the evidence supports the inference that as of the date of the hearing, the child was at substantial risk of serious physical harm or illness. (Rocco M., supra, 1 Cal.App.4th at p. 824.) There was no evidence to support a finding that the child was at risk of physical harm as a result of father’s criminal history, or that he would suffer any physical harm if the pattern of criminality continued. The only evidence of his criminal history was a simple list of dates and offenses in the reports and his current incarceration until 2019. The court acknowledged that the evidence did not show father had 18 convictions, but only that he had 18 “contacts” with law enforcement. The evidence showed that father had such contact with law enforcement for the following: possession of a controlled substance (Health & Saf. Code, §§ 11350, subd. (a), 11377, subd. (a)), possession of a counterfeit bank note (Pen. Code, § 475), receiving stolen property (§Pen. Code, § 496d, subd. (a)), buying stolen property (Pen. Code, § 496, subd. (a)), possession of a weapon (Pen. Code, §§ 12020 and 12024), evading a peace officer, with a disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a)), failure to appear (Pen. Code, § 1320), and violation of parole (Pen. Code, § 3056). With no other evidence, besides a bare list of dates and these offenses, it is difficult to say the child would be at substantial risk of physical harm, simply as a result of this history. Furthermore, as previously noted, the court declined to sustain the Welfare and Institution Code section 300, subdivision (g) allegation that the child had been left without any provision for support because father was currently incarcerated. The court acknowledged that there was a paternal relative—Mrs. C.R.—who had been approved. Thus, in effect, the court determined that father’s criminal history did not place the child at risk, with regard to not being able to provide for the child.
There is no question that father was incarcerated at the time of the jurisdictional hearing, and the evidence also showed he was incarcerated before the child was born. However, “[t]here is no ‘Go to jail, lose your child’ rule in California.” (In re S. D. (2002) 99 Cal.App.4th 1068, 1077.) Moreover, there was no evidence father ever harmed the child, since he had never met him.
We conclude there was insufficient evidence to support the court’s jurisdictional finding under section 300, subdivision (b), and therefore reverse the court’s true finding on that allegation.
We note that since we are reversing the court’s only jurisdictional finding as to father, he becomes a nonoffending parent. At the jurisdiction hearing, county counsel informed the court that jurisdictional allegations had been sustained as to mother, and she offered to proceed to disposition with father as a nonoffending parent. The court did not choose to do so at that time; however, it did order CFS to work with the approved relative, the aunt, in order to facilitate the goal of keeping the child with the family.
DISPOSITION
The petition is granted. The section 366.26 hearing is vacated. The trial court’s finding that the child came within section 300, subdivision (b), with respect to father, is reversed. The case is remanded to the trial court to conduct a new disposition hearing with father as a nonoffending parent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


McKINSTER
J.


We concur:


RAMIREZ
P. J.


FIELDS
J.