San Diego Cnty. Health & Human Servs. Agency v. A.R. (In re N.O.)
243 Cal. Rptr. 3d 206
Cal. Ct. App. 5th2019Background
- Minor was detained in 2015 after Mother was arrested at the U.S.–Mexico border for smuggling drugs with 15‑month‑old Minor in the car; dependency under Welf. & Inst. Code § 300 was sustained and Minor was placed with Agency, then returned to Mother in Mexico after services.
- Mother completed most court‑ordered services; DIF (Mexican child welfare) handled cross‑border welfare checks and was often slow or unresponsive to Agency and Mother.
- A December 30, 2016 domestic‑violence incident (Father struck Mother) prompted additional concern and referrals to DIF; Agency recommended family maintenance and eventual termination of dependency after DIF’s September 2017 contact reported Minor doing well.
- The case was continued multiple times (at Minor’s counsel’s request) to await DIF assessments; Agency ultimately recommended terminating jurisdiction under § 364(c).
- At the contested May 23, 2018 hearing Minor (through counsel) opposed termination, argued Mother failed to complete DV services and had become unavailable (Minor ‘‘missing’’), and asked the court to continue jurisdiction until Minor was located; the juvenile court found Minor bore the burden to prove conditions still existed and declined to continue, terminating jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 364(c) continued supervision is required | Minor: conditions justifying initial jurisdiction still exist (untreated DV, failure to complete services, Minor not recently assessed) | Agency/Court: § 364(c) presumes termination; Agency recommends ending supervision because Mother completed services and DIF found Minor doing well | Court: Minor bore burden to prove conditions persisted and failed to do so; jurisdiction terminated |
| Proper allocation/standard of proof at contested § 364(c) hearing | Minor: court’s termination lacked substantial evidence | Agency: where agency seeks termination and recommends it, child opposing must prove retention by preponderance; appellate review asks whether appellant proved error as a matter of law | Court: followed Aurora P.; Minor had burden and did not meet it; appellate review governed by I.W./Aurora P. framework |
| Whether juvenile court abused discretion by refusing further continuance to locate Minor | Minor: continuance required so DIF/Agency could locate and assess Minor; deny would reward ‘‘absconding’’ | Agency: further continuances were unlikely to produce new info; Agency lacks jurisdiction to do social work in Mexico and depended on DIF, which was unresponsive | Court: no abuse of discretion; continued multiple times already and termination was appropriate given available evidence |
| Whether Minor’s statutory right to counsel (§ 317(e)(2)) was violated by lack of direct interview/assessment | Minor: turned 4 nine days earlier so counsel should have interviewed and advised court of Minor’s wishes/well‑being | Agency/Court: Minor had counsel who vigorously advocated; Minor was unavailable for interview; any error harmless given Minor’s age and reports that she was thriving | Court: no deprivation of statutory right; any error harmless |
Key Cases Cited
- In re Aurora P., 241 Cal.App.4th 1142 (Cal. Ct. App.) (where agency recommends termination, the party opposing termination must prove retention by a preponderance; appellate review asks whether appellant proved error as a matter of law)
- In re I.W., 180 Cal.App.4th 1517 (Cal. Ct. App.) (failure‑of‑proof appeals reviewed under whether evidence compels a different legal conclusion)
- In re J.F., 228 Cal.App.4th 202 (Cal. Ct. App.) (§ 364(c) requires termination unless conditions exist that would justify initial assumption of jurisdiction)
- In re D.B., 239 Cal.App.4th 1073 (Cal. Ct. App.) (agency recommendation is not binding; court may retain jurisdiction if preponderance shows conditions justify it)
- In re Gabriel L., 172 Cal.App.4th 644 (Cal. Ct. App.) (§ 364 applied when child returned to parent after removal)
- In re Claudia S., 131 Cal.App.4th 236 (Cal. Ct. App.) (due process error where hearings proceeded without parents’ presence or appointed counsel — distinguished on facts)
- In re Jean B., 84 Cal.App.4th 1443 (Cal. Ct. App.) (error terminating jurisdiction where at‑large parent had abducted child — distinguished on facts)
- In re Baby Boy M., 141 Cal.App.4th 588 (Cal. Ct. App.) (juvenile court erred where there was ‘‘no meaningful information’’ concerning child — distinguished on facts)
- In re Candida S., 7 Cal.App.4th 1240 (Cal. Ct. App.) (right to independent counsel in dependency is statutory and subject to harmless‑error analysis)