J.L. v. Sup. Ct.

Filed 10/25/06 J.L. v. Sup. Ct. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ. George L. Orndoff, Judge.

Judith A. Sanders, for Petitioner.

No appearance for Respondent.

Peter D. Moock, County Counsel, and Kyle Sand, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 38-38.1) to vacate the orders of the juvenile court denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1] as to her daughter O. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

On June 24, 2006, at approximately 1:33 a.m., police responded to a report of a possible abandoned child. The responding officer found then 14-month-old O. in a baby stroller in an alleyway known to police as a high crime area frequented by drug and alcohol abusers. The reporting party, a male passerby, told the officer he heard O. crying and stopped to investigate. He stayed with her for about 15 minutes waiting for someone to return for her before he called the police. Another witness told the officer that she was watching her children play in the area where O. was found at either 7 p.m. or 8 p.m. and that she did not see the stroller nor did she hear a baby crying while she was in her house.

The police officer approached the stroller and found O. sleeping in a fetal position. Her skin was warm and she was slightly shaking. While the officer was evaluating O.’s condition, a woman named Linda approached and identified herself as O.’s great-grandmother. Petitioner, then 16 years old, O. and petitioner’s 13-year-old brother lived with Linda in her house nearby. Linda stated that, on the morning of June 22, petitioner left with O. When petitioner had not returned with O. by the following morning, Linda reported them missing.

The officer contacted an ambulance and O. was transported to the hospital. She showed no signs of injury or abuse and was released to a social worker from the Kings County Human Services Agency (agency).

Later that day, police officers located petitioner and her brother Jimmy at a public swimming pool. Petitioner refused to provide a statement but Jimmy confirmed that he and petitioner left home three days prior but separated, each going to stay with friends. Jimmy did not see petitioner again until sometime on June 23. Petitioner explained to Jimmy that she left O. in an alley near their house. She then left Jimmy to go get O. Jimmy did not see petitioner again until the morning of June 24. Petitioner told Jimmy that when she returned to the alley to get O. she saw the police cars and ran away. The officer arrested petitioner and booked her into the Kings County Juvenile Center on charges of deserting a child with intent to abandon and child cruelty with the possibility of injury/death.

The agency filed a dependency petition on O.’s behalf alleging that petitioner placed her at risk of serious physical harm by abandoning her (§ 300, subd. (b)) and that petitioner was incarcerated and could not provide support for her (§ 300, subd. (g)). The juvenile court ordered O. detained and set a jurisdictional/dispositional hearing for August 9, 2006. Meanwhile, petitioner was convicted of willful harm or injury to a child and sentenced to six years at the California Youth Authority (CYA). According to the intake liaison at the CYA, petitioner would have to serve at least two years of her sentence before she would be eligible for parole. In its jurisdictional/dispositional report, the agency recommended the court deny petitioner reunification services because she abandoned O. (§ 361.5, subd. (b)(9)) and because reunification would be detrimental given petitioner’s incarceration (§ 361.5, subd. (e)(1)).

The matter was set for a contested hearing, which was conducted on August 24, 2006. Petitioner’s position at trial was that she did not abandon O. and that reunification would not be detrimental. Petitioner testified that O. was with her the entire time she was gone from her grandmother’s home until around 11:30 p.m. on June 23 when she accompanied Jimmy back to her grandmother’s house. As she was leaving with O., she saw Jimmy leaving the house again. It was around midnight and O. was sleeping and had been fed. So petitioner pushed the stroller under a tree by a fence because she wanted to look for her brother and she did not want to push O. in the stroller anymore. She testified she had no sooner walked down the alley and down a street and returned when she heard the police sirens and saw the ambulance. She became scared and upset and left to go to her friend’s house. She claimed she intended to return for O. However, she made no effort to find out what happened to O. and did not know what happened to O. until she was located by the police.

Following argument, the court denied petitioner reunification services as recommended by the agency and set a section 366.26 hearing for December 20, 2006. This petition ensued.

DISCUSSION

Petitioner argues the juvenile court erred in denying her reunification services pursuant to section 361.5, subdivisions (b)(9) and (e)(1). We need only conclude that substantial evidence supports one basis for denial of services in order to affirm the court’s denial order. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) In this case, we conclude the court properly denied services under both subdivisions.

Under section 361.5, subdivision (b)(9) (subdivision (b)(9)), the juvenile court may deny reunification services if it makes the following three findings: (1) the child is described by section 300, subdivision (g); (2) the parent “willfully abandoned“ the child; and (3) that abandonment constituted a “serious danger,” meaning that without intervention by others, the child would have sustained severe or permanent disability, injury, illness or death. Subdivision (b)(9) does not define what “willful abandonment” is but does state what it is not, “ ‘willful abandonment‘ shall not be construed as actions taken in good faith by the parent without the intent of placing the child in serious danger.”^[2]

In this case, the first finding was established when the juvenile court found jurisdiction, in part, based on section 300, subdivision (g) (subdivision (g)), which provides in relevant part: “[T]he child’s parent has been incarcerated or institutionalized and cannot arrange for the care of the child.”^[3] More specifically, the court sustained allegation g-1, which stated: “The mother, [J.L.], is currently incarcerated in the Kings County Juvenile Center and cannot arrange for the care of the child, [O.].” Petitioner erroneously argues that in order to deny her services pursuant to subdivision (b)(9), the subdivision (g) finding had to be based on an act of abandonment rather than incarceration. Instead, subdivision (b)(9) only requires a finding that a child “has been found to be a child described in subdivision (g) of Section 300.“ (Fn. 2, ante; italics added.) This is clearly established by the fact of petitioner’s incarceration, which remained true throughout the proceedings below.

Further, the third finding, i.e., whether leaving O. in the alley “constituted a serious danger,” was also established on the record. Leaving a 14-month-old in a high crime area for several hours in the early morning would certainly have resulted in O.’s injury or death but for the intervention of the passerby.

The real issue with respect to denial of services under subdivision (b)(9) in this case is whether petitioner “willfully abandoned” O. or whether her action was the immature act of a teenage mother made in good faith. To make that determination, petitioner asks this court to look beyond the plain language of subdivision (b)(9) and consider two other definitions of abandonment. The first derives from Family Code section 7822, subdivision (a) under which a court may find abandonment where “the child has been left without provision for a period of six months , or without communication from the parent , with the intent on the part of the parent to abandon the child.”^[4] Petitioner concedes that this definition of abandonment was never engrafted into subdivision (b)(9). Therefore there is no reason to consider it and we decline to do so.

The second source petitioner suggests we consider is Webster’s New International Dictionary in which the act of abandonment as applied to this case would require an intent to permanently sever the parent/child relationship.^[5] However, we have no authority, nor does petitioner offer any, that compels us to look beyond the plain language of subdivision (b)(9) to determine whether petitioner willfully abandoned O. Accordingly, we decline to consider this definition as well and will confine our review to the express language of subdivision (b)(9).

Applying subdivision (b)(9) to the facts of this case, we conclude petitioner willfully abandoned O. when she left her in the alley. Even if petitioner did not intend to endanger O., she had to know that leaving an infant in those circumstances could result in O.’s injury or death. Nor was petitioner’s act of abandonment in good faith. She left O. in the alley because she wanted to catch up with her brother and she was tired of pushing the stroller. Based on the foregoing, we conclude the court properly denied petitioner reunification services under subdivision (b)(9).

We also conclude the court properly denied petitioner reunification services under subdivision (e)(1), which allows the juvenile court to deny reunification services to an incarcerated parent if it finds services would be detrimental to the child. In determining detriment, the court must consider, among other things, the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the crime and the detriment to the child if services are not offered.^[6]

Petitioner concedes that her lengthy term of confinement alone weighed heavily in the court’s finding services would be detrimental. She also concedes that an incarcerated parent is subject to the same time limits on reunification, which in this case is six months since O. was under the age of three when removed from petitioner’s custody. (§ 361.5, subd. (a)(2).)

Nevertheless, petitioner argues the court should have given more weight to the parent-child bond she and O. share as well as other appropriate factors such as her immaturity, her academic advancement despite conflicts at home and her acknowledgement that she needed parenting instruction. We disagree.

According to the evidence, petitioner had actual custody of O. intermittently for a total of half of O.’s life. More compellingly, petitioner’s sentence alone, even if she only served two of the six years, extends beyond the applicable statutory limitation on reunification services and effectively precludes any possibility of reunification. Therefore, we also affirm the court’s denial of services pursuant to subdivision (e)(1).

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^* Before Harris, Acting P.J., Cornell, J., and Kane, J.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Section 361.5 provides: “(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: (9) That the child has been found to be a child described in subdivision (g) of Section 300, that the parent or guardian of the child willfully abandoned the child, and the court finds that the abandonment itself constituted a serious danger to the child. . . . For the purposes of this paragraph, ‘serious danger’ means that without the intervention of another person or agency, the child would have sustained severe or permanent disability, injury, illness, or death. For purposes of this paragraph, ‘willful abandonment’ shall not be construed as actions taken in good faith by the parent without the intent of placing the child in serious danger.”

^[3] Section 300, subdivision (g) provides: “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: (g) 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.”

^[4] Family Code section 7822, subdivision (a) provides: “A proceeding under this part may be brought where the child has been left without provision for the child’s identification by the child’s parent or parents or by others or has been left by both parents or the sole parent in the care and custody of another for a period of six months or by one parent in the care and custody of the other parent for a period of one year without any provision for the child’s support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child.”

^[5] Petitioner cites us to Webster’s New International Dictionary’s definition of the word “abandon” referenced in In re Cordy (1915) 169 Cal. 150, namely: “ ‘To relinquish or give up with the intent of never again resuming or claiming one’s rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in; to desert, as a person to whom one is bound by a special relation of allegiance or fidelity; to quit; to forsake.’ “ (Id. at p. 153.)

^[6] Section 361.5, subdivision (e)(1) provides in relevant part: “If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child’s attitude toward the implementation of family reunification services, and any other appropriate factors. Reunification services are subject to the applicable time limitations imposed in subdivision (a).”