In Re Janee W.
Joetta D. appeals from the dependency court order terminating the court‘s jurisdiction over her daughters, J.W. and Janee W., while awarding legal and physical custody of the girls to their father, Herman W. We affirm.
FACTS AND PROCEDURAL HISTORY1
In January 2004, the Riverside County Department of Child Protective Services (DCPS) filed a petition alleging that Joetta D. (mother) had physically harmed or otherwise posed a risk of harm to her daughters, 12-year-old J.W. and 11-year-old Janee W. (
The petition was sustained in April 2004, and the childrеn were placed in foster care. Reunification services were ordered for both mother and father. Riverside DCPS reports prepared for that jurisdictional hearing included statements from the children and others confirming that mother had a history of alcohol-fueled violent outbursts, physically attacked father, and bloodied J.‘s nose. Mother refused to provide information, and said she would talk to only her lawyеr and Jesus Christ. The children said they wanted to live with mother, but only if she got help for her problems. Father had used drugs in the past and had been in prison, but had gone through drug and alcohol counseling programs and was working as an auto mechanic. He wanted custody of the minors.
A six-month review hearing was held in September 2004. Evidence at the hearing showed that the father had completed a parenting class and participatеd in counseling with the children. The minors had spent weekends with father, were “excited” about the prospect of living with him, and had asked to do so. Mother still needed services and an appropriate place to live, and was unwilling to discuss or acknowledge her abusive conduct. The Riverside DCPS recommended placing the children with father and providing mother with another six months of reunification services. The Riverside dеpendency court found that the father‘s progress had been satisfactory, adopted those recommendations as its order, and set the matter for further review under sections 364 and 366.21.4 It then transferred the matter to
In March 2005, DCFS submitted a report to the Los Angeles County dependency court. According to that report, mother had completed parenting education and participated in some type of therapy. A psychological evaluation of mother was reportedly completed, but had not been submitted because the evaluator was ill. In violation of her visitation orders, mother would sometimes walk the children home from school. She was living at a transitional home known as Joshua‘s House and was enrolled in the Arms of Grace Counseling Center. The children were still living with father and with father‘s mother (grandmother). Father‘s home was clean аnd safe. The children had regularly assigned chores and appeared happy to be living with father. Because the minors were living in a good environment, which included the positive influence exerted by grandmother, because the father was providing his daughters with adequate care and supervision, and because they appeared happy with that arrangement, DCFS recommended that the children remain in fathеr‘s custody and that the court terminate its jurisdiction. Notice that the court intended to adopt that order was provided to the mother, and the matter was set for a hearing in April 2005.
At the April 11, 2005, dispositional hearing, the court took judicial notice of the entire file. It also heard testimony from mother, father, the children, and DCFS social worker Tracey Harrington. J. testified she did not want to choose between her parents because she loved them both. She felt safe on overnight visits with mother. Janee said she had no preference between her parents. Although she felt safe with mother, she admitted that she sometimes felt scared when she lived with mother. Mother denied that she had unauthorized contact with the children. She admitted to, but minimized, a recent incident where she shut a car door on father‘s leg. She also complained that she had rеceived little in the way of reunification services. According to mother, she had been in constant contact with the social workers and asked them to visit her living quarters and arrange conjoint counseling. The social worker promised to get back to her, but never did. The social worker visited mother just once, right after the case was transferred to Los Angeles County.
According to social worker Harrington, the children had a good relationship with mother and wanted to visit her. He admitted that he never contacted the person who conducted mother‘s psychological evaluation.
The court agreed that, absent father‘s presence in the case, it would not be able to find that reasonable reunification services had been offered to mother. Because the children were with father, however, the cоurt indicated that fact was not relevant. The court found that mother continued to deny or minimize the drug and alcohol use, mental health issues, and other matters that led the court to take
On appeal, mother contends the court erred because (1) the evidence showed there was a need for continuing jurisdiction by the dependency court, and (2) she did not receive adequate reunification services.
DISCUSSION
1. Section 361.2 Provides the Applicable Procedural Rules
After the six-month review hearing, where the children were placed with father, both the Riverside and Los Angeles County dependency courts refеrred to section 364 when setting future hearings and deciding this matter. Section 364 applies when a dependency court determines that jurisdiction under section 300 is appropriate, but “the child is not removed from the physical custody of his or her parent or guardian . . . .” (
Instead, we believe this matter should have been determined under section 361.2, which provides that when a court assumes jurisdiction of a minor, it must determine “whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child.” If so, the court must place the child with that parent unless it finds that doing so poses a risk of harm to the child. (
2. The Error in Applying Section 364 Was Harmless
Even though the dependency court‘s findings were phrased in the language of section 364, not section 361.2, if the evidence on thе appropriate issue was undisputed and supports a finding that there is no need for continued supervision, we may affirm the order terminating jurisdiction. (Sarah M., supra, 233 Cal.App.3d at pp. 1498-1500, 285 Cal.Rptr. 374.) In Sarah M., the appellate court affirmed an order terminating dependency court jurisdiction after a child was taken from her mother and placed with her father. The mother claimed continuing supervision was required because there were visitation problems that cаused the child to suffer emotional distress, and because the mother was concerned who would pay for conjoint therapy if it were ordered. The appellate court rejected that argument, saying it was “not a cry for continued supervision, but rather a plea for financial aid.” (Id. at pp. 1498, 1500, 285 Cal.Rptr. 374.) The court noted that by the time of the final hearing, where jurisdiction was terminated, it was undisputed that the child was doing fine. Becausе the girl “was no longer at risk as of [that hearing], she no longer needed the protection of the juvenile court. [Citation.]” (Id. at pp. 1499-1500, 285 Cal.Rptr. 374.)
While most of the testimony at the dispositional hearing in this case focused on mother‘s progress, the DCFS reports were unambiguous in their praise for how well the minors were faring in father‘s custody. According to the final report, “father‘s residence has always appeared safe with no hazards noted. There is always food for the siblings.” The home, including the room the girls shared, was clean. The
Mother contends that the decision in In re Austin P. (2004) 118 Cal.App.4th 1124, 13 Cal.Rptr.3d 616 (Austin P.), requires us to disregard that evidence. The father in Austin P. took custody of his son under section 361.2 after he was removed from the mother‘s home. At the review hearing, the court refused to terminate jurisdiction, finding that continued supervision was necessary for several reasons: DCFS felt it should monitor the boy‘s transition to father‘s home because they had sporadic contact during the past 10 years; DCFS wanted to monitоr conflict between the parents to ensure the boy would not be blamed for the dependency; the social worker believed the boy needed both individual and conjoint therapy with each parent, which could occur only if the matter remained open; the father knew his son was being abused but had taken no steps to protect him and without continuing jurisdiction, the boy‘s safety could not be assured; there were сonflicts between the mother, father, and father‘s new wife that caused the social worker some concerns; the social worker noted that the boy had previously lived with only mother and was more bonded to her than to father, and sometimes cried and said he wanted to be with the mother; and the mother was making good progress with her reunification plan. The father appealed, contending the dependency court should have terminated jurisdiction. The appellate court affirmed, finding substantial evidence to support a finding that continued supervision was necessary, thus precluding the termination of jurisdiction.
Mother contends there is similar evidence here. She is wrong. She points to evidence that father had little or no relationship with the minors and was also found to have neglected the children by not providing for them. That may have been the case when the court first assumed jurisdiction over the children, but the undisputed evidence from DCFS shows that those circumstances had completely changed by both the six-month and 12-month review hearings. Unlike Austin P., even though there was evidence of a conflict between father and mother, that fact did not bother the DCFS, which apparently felt the conflict had no effect on the need for continued suрervision when it recommended terminating the court‘s jurisdiction. In short, all the evidence before the court showed that continuing supervision of the minors was no longer required. Therefore, the order terminating jurisdiction was proper under section 361.2.
3. The Supposed Lack of Reunification Services Does Not Require a Different Result
At the 12-month dispositional hearing, the court said that it did not believe reasonable reunification services had been given to mother, but considered that irrelevant because the children were with father. Mother contends that by both statute
Although subdivisions (f) and (g) of section 366.21 require the court to consider whether reasonable reunification services were ordered, those provisions refer to children removed from the custody of a parent or parents under section 361.5, which “is a generic statute addressing a basic situation in juvenile dependency actions, i.e., the removal of a child from the caretaker‘s custody and thе goal of reunifying the child with the caretaker through the provision of reunification services. It does not, by its terms, encompass the situation of the noncustodial parent. Section 361.2 addresses the situation of the noncustodial parent and whether reunification services should be provided to that parent.” (In re Terry H. (1994) 27 Cal. App.4th 1847, 1856, 34 Cal.Rptr.2d 271.)
We believe section 366.21, subdivision (e) recognizes this distinction. That section begins with a lengthy discussion of the issues to be considered at a six-month hearing. Towards the end, it states: “If the child had been placed under court supervision with a previously noncustodial parent pursuant to Section 361.2, the court shall determine whether supervision is still necessary. The court may terminate supervision and transfer permanent custody to that parent, as provided for by paragraph (1) of subdivision (b) of Section 361.2.” In the next two paragraphs, the sеction provides: ”In all other cases, the court shall direct that any reunification services previously ordered shall continue to be offered to the parent or legal guardian pursuant to the time periods set forth in subdivision (a) of Section 361.5, provided that the court may modify the terms and conditions of those services. [¶] If the child is not returned to his or her parent or legal guardian, the court shall determine whether reasonable sеrvices that were designed to aid the parent or legal guardian in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent or legal guardian. The court shall order that those services be initiated, continued, or terminated.” (
As we read this provision, the Legislature has placed the requirement for reasonable rеunification services in the class of “all other cases” that follows the requirements when a child is placed with a previously noncustodial parent under section 361.2. The same is true of rule 1461, which separately addresses the termination of jurisdiction under section 361.2 without mention of a finding concerning reasonable reunification services (
DISPOSITION
For the reasons set forth above, the order terminating the dependency court‘s jurisdiction is affirmed.
We concur: COOPER, P.J., and FLIER, J.