Santa Clara County Department of Family and Children's Services v. J.R.
235 Cal. App. 4th 1102
| Cal. Ct. App. | 2015Background
- A.R., age 4, was adjudicated a dependent child (Welf. & Inst. Code § 300(b),(j)) on Jan 3, 2014; the court ordered family maintenance services for both parents and retained custody with parents under Department supervision.
- Father (J.R.) had a history of alcohol abuse, marijuana use, domestic violence, and inconsistent engagement in ordered services (parenting class, substance treatment, 12-step attendance, testing).
- Father moved out of the family home in March 2014 (not by court order); thereafter A.R. resided full time with mother and father had visitation.
- The Department filed a § 388 Request to Change Court Order (June 2014) seeking to discontinue family maintenance services to father and limit him to supervised visitation because he stopped participating in services and continued substance use.
- At the Sept. 12, 2014 hearing the juvenile court granted the § 388 request, continued A.R. in mother’s custody under Department supervision, awarded family maintenance to mother only, ordered supervised visitation for father, and made removal findings under § 361(c).
- On appeal the court concluded changed circumstances justified modifying services and custody orders but the § 361(c) removal findings lacked substantial evidence and were therefore stricken as harmless error.
Issues
| Issue | Plaintiff's Argument (Department) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether modification under § 388 was supported by changed circumstances | Father ceased meaningful participation in services, continued alcohol/marijuana use, and custody had effectively changed after father moved out — so family maintenance to father should end | No material change: father’s substance issues and domestic violence were known at disposition; § 388 requires change since disposition and removal findings lacked support | Modification upheld: evidence of changed circumstances (father’s disengagement and move-out) justified discontinuing services to father and recognizing mother as primary custodian |
| Whether removal findings under § 361(c) were supported by substantial evidence | Removal necessary because father’s untreated alcoholism, blackout violence, and ongoing substance use created substantial danger | Removal unsupported: A.R. was not in father’s physical custody when order issued and mother had been protecting child via visitation limits and supervised contacts | Removal findings reversed: insufficient evidence of substantial danger to support § 361(c) removal; findings stricken as harmless because child already resided with mother |
| Whether court erred by not considering less restrictive alternatives to removal | Department argued removal findings were appropriate but court limited father to supervised visits (less restrictive) | Father argued court failed to consider removal of offending parent (father already moved out) and other reasonable alternatives | Court acknowledged alternatives (removal of parent from home) and noted father had already moved out; declines to sustain removal finding but affirms modification to reflect custody arrangement |
| Standard of review for § 388 modification and § 361(c) removal | § 388 petitions judged for change of circumstances by preponderance; removal findings under § 361(c) require clear and convincing evidence at trial but appellate review is substantial-evidence | Father urged lack of changed circumstances and insufficient evidence for removal | Court: abuse-of-discretion standard for § 388; substantial-evidence review for removal findings — modification proper, removal findings unsupported and stricken |
Key Cases Cited
- In re Stephanie M., 7 Cal.4th 295 (court reviews § 388 modification under abuse of discretion; standards for modification)
- In re Walter E., 13 Cal.App.4th 125 (discusses appellate substantial-evidence review of removal findings)
- In re Jasmine G., 82 Cal.App.4th 282 (statutory preference for family preservation; removal is last resort)
- In re M.V., 146 Cal.App.4th 1048 (application of heightened burden when § 388 petition seeks removal)
- Troxel v. Granville, 530 U.S. 57 (parental rights are constitutionally protected)