In re M.C.
M.A. (Father) appeals from the juvenile court‘s detention, jurisdiction, and disposition orders in this dependency proceeding regarding his four-year-old son, M.C. (Minor). Father contends that (1) the
We affirm the orders regarding detention and jurisdiction, but we must reverse the disposition order. California law requires that the Solano County Health and Social Services Department (the Department) establish by clear and convincing evidence that placing Minor with Father “would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (
BACKGROUND
A. Petition and Detention
In 2021, Minor‘s mother (Mother) gave birth to Minor‘s half brother. Mother tested positive for methamphetamines and marijuana at the hospital after childbirth, triggering a referral to the Department. According to the Department‘s initial report, Mother abandoned the newborn at the hospital, purportedly eloping with the newborn‘s putative father. Then three-year-old Minor‘s whereabouts were unknown.
The Department contacted Father two days after the delivery of the newborn. Minor‘s birth certificate had identified a different man as Minor‘s parent, but a DNA test had confirmed that Father was indeed Minor‘s biological parent. Father is a professional truck driver, and he was in Michigan when he received the Department‘s call. Father reported he had left Minor with Mother approximately four days prior. Father explained that Minor lived with Mother and maternal grandmother, but before going to the hospital to deliver her newborn, Mother left Minor in the care of a family friend. The family friend considered Minor like a “biological grandson,” though she had learned that Father (and not her own son) is Minor‘s biological father.
Father reported that Mother “used to do methamphetamines in the past,” but could not verify whether she was currently using methamphetamines. The Department had received two prior referrals for Minor. The Department received the first referral in 2018, when Minor was born, because Mother tested positive for amphetamines and marijuana. This referral was deemed “inconclusive” because Mother entered a residential treatment program. In 2019, the Department received a second referral based on a report that Mother had threatened to sell Minor for $20,000. This referral was deemed “inconclusive” because Father took custody of Minor.
Father had cared for Minor for several months in 2019 when Mother was using methamphetamines and alcohol, but Mother resumed caring fоr Minor after she “got sober” in 2020. Father offered to make arrangements for Minor to be with his paternal grandfather until Father returned to California.
The Department filed a petition alleging Minor was within the jurisdiction of the juvenile court because he was at substantial risk of serious harm due to Mother‘s ongoing substance abuse. (
At the detention hearing in August 2021, Father‘s counsel “enter[ed] a denial on his behalf.” The juvenile court found the Department made a prima facie case that Minor came within
1. Initial Findings Regarding Jurisdiction
In its October 2021 jurisdiction/disposition report, the Department recommended that the juvenile court sustain the allegations against both Mother and Father, order the continued detention of Minor, elevate Father from “alleged” to “presumed” parent status,2 аnd offer reunification services to Father. Mother‘s whereabouts remained unknown, and she had not been in contact with the Department.
The Department confirmed that Father‘s positive DNA test results were legitimate and unaltered. Father reported that he had left Minor in Mother‘s care back in August because he “felt he didn‘t have another option” as he regularly traveled for work. Father had adult children from a prior marriage; there was no child welfare history and no history of personal substance abuse. If reunified with Minor, Father reported that his aunt and uncle had agreed to help care for Minor while Father was traveling for work. The Department nevertheless recommended reunification services for Father as part of the case plan, including a Department-approved parenting education course and submission to random substance abuse testing by the Department.
2. The Contested Jurisdiction and Disposition Hearing
The juvenile court held a contested jurisdiction and disposition hearing in April 2022. At the beginning of the hearing, Father‘s counsel requested either that the case be closed and Minor returned to Father‘s custody, or that Minor be placed with Father on a “family maintenance” program. The Department‘s counsel then expressed her understanding that Father was either “submitting or objecting and submitting on jurisdiction with [Father‘s] counsel wanting to make a statement for the record, but that really today‘s contesting hearing is limited to the issue of whether [Father] received family reunification or family maintenance services or whether the court is going to place the child in his care and close the case.” Father‘s cоunsel responded that they were “going to submit on jurisdiction, but we are going to be arguing that he was
Father testified that he still worked as a professional truck driver and, with his current rotation schedule, spent five nights away and then three nights at home. Father had prepared a plan with Minor‘s paternal great-aunt and great-uncle for Minor to live at their home and for them to take care of Minor while Father was on the road. Father said he had completed a virtual parenting class identified by the Department, but had not received a certificate. The social worker told him that she would verify it. Father testified that, back in August, he had left Minor with Mother because it seemed to him that she was not using drugs. Further, the maternal grandmother had told him Mother was not using drugs or drinking alcohol.
Father‘s ex-wife also testified on his behalf. She testified that she had three children with Father, and that Father “has always been on top of everything in regards to his children since they were born.” She had also seen Father with Minor, and they had a “[v]ery good” relationship. She testified that despite “all his defects,” Father “is a good father,” loves Minor, and is attentive and responsible with him. She also testified that she was friends with the paternal great-aunt. Father‘s former spouse had agreed that she would be there to help if there was an emergency or the paternal great-aunt and great-uncle needed help with Minor.
The social services supervisor (who had been the social worker assigned to the case) testified that the case presented an unusual situation because Father was offered weekly visitation but, given the nature of his work and proposed plan to rely on other family members to help care for Minor, the Department permitted other paternal relatives to visit even when Father was unable to attend. In the supervisor‘s view, visitation had been inconsistent. In the past five months, Father had attended five visits, Minor‘s paternal great-uncle had attended six visits, and Minor‘s paternal great-aunt had attended two visits. Father‘s 19-year-old daughter (Minor‘s adult half sister) visited the most regularly.
Minor‘s paternal great-aunt and great-uncle were going through the resource family approval process. The required background checks had not yet occurred, which the Department characterized as a “barrier” to current placement of Minor in their home. The approval process for the anticipated home was in progress but the home had not yet passed the Department‘s inspection. The supervisor testified that the paternal great-aunt and great-uncle were only Spanish-speaking. While Minor knew some common words in Spanish, he spoke only English and could not converse in Spanish.
3. The Juvenile Court‘s Findings
The juvenile court declared Father to be Minor‘s presumed parent. The court found true the allegations under
The court checked the box on the form order after hearing, finding: “By clear and convincing evidence, placement with the following parent would be detrimental to the safety, protection, or physical or emotional well-being of the child: Presumed father.” The court‘s comments on the record at the conclusion of the hearing, however, did not mention the bases for these findings nor the burden of proof.
Instead, the juvenile court primarily discussed the court‘s future expectations of Father. The court indicated some concern that Father had not complied with tasks the Department had set out for him, like completing parenting classes. The court said, “I‘ve heard what I‘ve heard today . . . so far and what I‘ve read in the file. But it seems to me we have a father that wants to be a father. Okay. That‘s a good thing, and that‘s good from the Department‘s standpoint, from everybody‘s standpoint. The problem is [the Department has] set up these different rules for [Father] after the events with the mother, and he‘s attempted to follow them, but he hasn‘t really done everything he should. Maybe he has, maybe he‘s gone to the parenting, I don‘t know.”
The Department had characterized Father as “historically unfortunately put[ting] his job over the needs of his child,” because his work as a truck driver “requires him to be gone for lengthy periods of time.” The court urged Father to try harder. The court continued, “So, I just think you make a big effort.” Regarding Father‘s job as a truck driver, the court said, “If you have the power to limit those routes but, if you‘re making that kind of money, I can‘t see stopping. You just keep going. You do your routes. You have five days. You have two great days with your son, аnd it all works out.”
The court referred again to the fact that Father had left Minor with Mother so he could work in the days leading up to the Department‘s intervention. The Department speculated that Father might have known Mother was using methamphetamines. The court said, “But I really think you need this little investigation. I agree it‘s not the strongest case that we‘ve seen in this type of cases, I don‘t think it‘s the weakest either. I think he made some mistakes, but placing the child back with her after I heard about her and what I read about her was not a smart thing.”
The court also expressed some concern about potential uncertainty regarding the logistics of Minor returning to Father‘s care. The Department had argued Father‘s plan was not “viable” because it was unclear which of several possible rooms at Father‘s aunt and uncle‘s house would ultimately become Minor‘s bedroom. The court said, “And the room, if it is the other room, so be it, I guess. But we don‘t know. There‘s not enough for me. My interest is the child right now. My interest is you. Everybody says you‘re a good father, even your ex-wife, notwithstanding . . . in spite of all his faults. I‘ve heard that a lot. So, anyhow, we just need a little time, and my feeling would be that the recommendations of the Department are well taken at this time.”
Going forward, the court expected Father “does his job. Make a good living. Gets a place so he has a rent[al] if that ever ends, but at least he has a place to go, and the fact that the home that doesn‘t concern me too much other than, you know, this is what people have to do now with the economics of the situation.” The court wanted Father “to just follow the rules to a tee.” “And on this you‘re putting your son first, your job second, but the thing you can do with your son now is the visitation and follow up any of the rules that have to be done. Let the relatives be investigated and hopefully in six months
The court ordered reunification services for Father as stated in the Department‘s case plan. It maintained visitation for Father and his family and permitted video visitation for Father given his work schedule. The court did not discuss the basis for its order as to reunification services.
This appeal followed.
DISCUSSION
I. No Error in Detention
Father argues that the juvenile court erred in its original 2021 findings and orders by detaining Minor from Fathеr‘s custody. The Department initially responds that Father has forfeited this challenge because his notice of appeal identifies the 2022 jurisdiction and disposition orders, but not the 2021 detention orders.
Father has not forfeited his right to appeal the detention orders. “An order entered prior to disposition . . . is ‘interlocutory and not appealable, and thus any issue pertaining to it must be raised in a timely appeal of the dispositional order.‘” (In re B.P. (2020) 49 Cal.App.5th 886, 889 [dismissing appeal from non-appealable detention order, quoting In re Javier G. (2005) 130 Cal.App.4th 1195, 1200].) That is precisely what Father did here, appealing from the order on disposition and raising arguments regarding detention and jurisdiction. The California Rules of Court require that a notice of appeal be liberally construed ” ‘so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.’ ” (In re Joshua S. (2007) 41 Cal.4th 261, 272;
We nonetheless conclude that Father‘s argument fails on the merits.
Even if
Father also argues that the Department failed to make “reasonable efforts” to prevent Minor‘s removal from his custody, suggesting that the Department should not have detained Minor and instead waited until the following week when Father returned to California. Again, we disagree. “A reasonable efforts finding must be based on the particular circumstances of the case.” (In re Amy M. (1991) 232 Cal.App.3d 849, 856.) The Department accurately characterizes the situation in this case, at the time of the detention hearing, as “emergent.” No one knew Minor‘s whereabouts at the time the Department filed the petition, Mother had disappeared after a failed drug test, and Mother then reappeared to take Minor from the family friend who had been watching him. Meanwhile, Father was driving a truck over 2,000 miles away and unable to immediately return to take custody of the Minor. Under the circumstances, waiting a week before detaining the then three-year-old Minor would have been manifestly unreasonable. The juvenile court did not err in its “reasonable efforts” finding.
Again, at the time of the detention hearing, Father was still an “alleged” parent; he lacked a putative father‘s rights under the Uniform Parentage Act and
II. Substantial Evidence for Jurisdictional Allegation
Father argues that the juvenile court‘s jurisdictional finding against him is not supported by substantial evidence. (
We are not persuaded that the record shows an unequivocal waiver of Father‘s challenge. The decision In re Ricardo L. (2003) 109 Cal.App.4th 552 is instructive. There, the father‘s counsel represented he was ” ‘going to submit on the jurisdiction.’ ” (Id. at p. 565.) When read in context, however, it was apparent that counsel “was submitting the matter based on the jurisdictional/dispositional report, not the recommendations.” (Ibid.) “Such a submission acted as consent to allow the court to consider the report as the only evidence in determining whether the allegations in the petition were true.” (Ibid.) It did not preclude the father from appealing to challenge the sufficiency of the evidence on the jurisdictional finding. (Id. at pp. 565–566.) Similarly, here, there is some indication that Father may have been “objecting and submitting” on jurisdiction. Father‘s counsel stated that he was “going to submit on jurisdiction,” but nonetheless requested that the case either be closed or, alternatively, proceed with family maintenance services. On this record, we cannot conclude that Father waived his challenge.
We turn next to the justiciability of this challenge. “Because the juvenile court assumes jurisdiction of the child, not the parents, jurisdiction
We review the juvenile court‘s jurisdictional findings for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) “In making this determination, we review the record in the light most favorable to the court‘s determinations and draw all reasonable inferences from the evidence to support the findings and orders.” (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688–689.) “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420In re E.D. (2013) 217 Cal.App.4th 960, 966.)
Father argues that there was insufficient evidence to support the jurisdictional allegation against him here.
As detailed above, Father left Minor with Mother despite knowing her troubled history of substance abuse. Father could not tell the Department where Minor was, could not say whether Mother wаs currently using drugs, and could not immediately return home to take custody of Minor if he could even find Minor. Father did not know whether the family friend who cared for Minor, and who apparently considered herself akin to Minor‘s biological
Father also argues that, even assuming he should have known about Mother‘s drug use, there was no evidence that he would have failed to protect Minor from Mother at the time of the jurisdictional hearing. Substantial evidence remains, however, that Minor was at risk based on Father‘s decision to leave Minor in the care of someone Father reasonably should have known was using drugs. (In re T.V., supra, 217 Cal.App.4th at p. 133.) Father reported that he had previously cared for Minor in 2019 when Mother was using drugs and alcohol, but then returned Minor to her care when she achieved sobriety in 2020. As detailed above, Father was not diligent in ensuring that Minor was not at risk from a relapse by Mother. Father has not satisfied his burden on appeаl to show the juvenile court‘s
III. No Substantial Evidence for Disposition
We conclude that the juvenile court erred in its dispositional findings. The court had appropriately found Father a putative parent, triggering an important set of rights. Before ordering the removal of a child at the disposition stage, the juvenile court must “first 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
California law places a heightened burden of proof on the Department—not the parent—in connection with the finding of detriment. ” ’ ” ‘Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood.’ [Citation.] ‘In furtherance of these principles, the courts have imposed a standard of
Father argues that there was insufficient evidence to suppоrt the court‘s finding of detriment and removal of Minor from his custody. Father highlights his remote employment, the proposed living arrangement with other caregivers, and Father‘s lack of personal substance abuse issues, which the juvenile court rejected as a basis for detriment.
The juvenile court provided very little by way of explanation concerning how it reached its finding of detriment. To the extent we can discern any specific findings of fact that might support the required showing, the juvenile court again mentioned Father‘s earlier decision to leave Minor with Mother before she gave birth to Minor‘s half brother. At the April 2022 hearing, however, Father had repeatedly expressed his desire to take full custody of Minor and his understanding of the dangers posed by Mother‘s addiction. Given all that had transpired, there is no indication that the juvenile court believed Father would give Minor back to Mother absent a court order requiring him to do so.
Rather, the court focused on its expectations for Father‘s future behavior. The court stated that it would “follow the recommendations” of the Department. Those recommendations included required drug testing and completion of a parenting class (if he had not already done so). The Department also wanted Father to provide a very specific plan for exactly where Minor would sleep, articulate exactly which family members would care for Minor while Father was driving, explain how family members who do not speak English would interact with Minor (who is not conversant in Spanish), and for Father and his family members to visit more with Minor. Father must follow the rules “to a tee,” the court urged. “It‘s like you got to stop at the line, you got to stop at the [bus] stations, wherever you have to do it, you got to do it.”
Father objects that his inability to visit with the Minor as frequently as the Department would have permitted him is not evidence that placing him in Father‘s care would be detrimental to Minor‘s safety, protection, or physical or emotional well-being. Compliance with rules imposed by the Department
Care plans to address remote working parents are almost always less than ideаl, and a language barrier between a child and his or her caregiver may present challenges. The law, however, does not take a child away from a parent based on a less than ideal situation during a parent‘s working hours or because of language barriers. (Cf. In re Isayah C., supra, 118 Cal.App.4th at p. 697 [determination of detriment should still recognize parent‘s general right to make “reasonable decisions about where and with whom the child will reside“].) Moreover, the record indicates the Minor may have attachment issues due to “his history of interruption in caregivers.” The Department expressed concern about Minor‘s transition to preschool. The court did not discuss this evidence. If anything, it would seem to support a conclusion that Minor would benefit from a more rapid resolution of the issue of custody, followed by therapeutic services, rather than have him maintain ongoing ties to his foster caregivers.
Lost in the juvenile court‘s discussion of compliance with the Department‘s rules “to a tee” is the fact that Father is Minor‘s father. California law presumes that a child ought to be with a parent rather than in the foster system absent clear and convincing evidence that keeping the child with the parent would be detrimental to the child‘s safety, protection, or physical or emotional well-being. (
IV. Abuse of Discretion on Reunification Services
The case plan is “the foundation and central unifying tool in child welfare services” and is prepared by the Department to ensure that “services
We review the juvenile court‘s disposition case plan for abuse of discretion. (In re D.P. (2020) 44 Cal.App.5th 1058, 1071.) “When the court orders a parent to participate in a program—such as parent education, counseling, parenting programs, etc.—the program must be ‘designed to eliminate those conditions that led to the court‘s finding that the child is a person described by Section 300.’ ” (In re M.R. (2020) 48 Cal.App.5th 412, 424.) “In other words, the court cannot arbitrarily order services that are ‘not reasonably designed’ to eliminate the behavior or circumstances that led to the court taking jurisdiction of the child.” (Ibid.)
Father contends that a parenting education class should not have been included in his case plan because he has already taken the class. It is entirely unclear why a parenting class would benefit Minor or Father given that Father had already parented his three now-adult children and his ex-wife testified that Father “has always been on top of everything in regards to his children since they were born.” But given Father‘s position that he has already completed the class, we conclude that the error in ordering a parenting class was harmless. (In re M.R., supra, 48 Cal.App.5th at p. 429 [applying harmless error analysis to claim regarding case plan].) Father does not suggest that his participation could not be confirmed, only that he did not yet have written confirmation.
More troubling is the juvenile court‘s order that Father submit to substance abuse testing. There was no evidence that Father had substance abuse issues. “A ‘mechanical approach’ to a reunification plan is not what the Legislature intended: ‘[s]uch a plan must be appropriate for each family and be based on the unique facts relating to that family.’ ” (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) At the hearing, no one testified that Father was using narcotics or abusing alcohol.
The Department posits that the drug testing order was within the court‘s discretion because “[i]t was clear that [Father] had some sort of impairment (internal or substance induced) that caused him to be unable and/or unwilling to see that Mother was using drugs again and/or an unsafe person for [Minor].” Alternatively, the Department suggests that drug testing would
Lastly, Father disputes any requirement that he participate in the parent partner program. While this program was not an explicit item in the written case plan, Father argues that the Department nonetheless used it against him at the disposition hearing and indicated that it would be used to measure his subsequent performance for reunification.
Father‘s point is well taken. When asked about how Father had failed to demonstrate a behavioral change, the social services supervisor testified that he had not participated in the parent partner program. When asked how the Department envisioned the reunification plan for Father, the supervisor testified that she would like Father to “get back engaged with a parent partner.” But the program was not appropriately tailored to the circumstances of this family. (In re Dino E., supra, 6 Cal.App.4th at p. 1777.) Father himself inquired about whether he could participate in the program remotely and in a manner that would work with his rotating schedule. The Department was unable to accommodate such arrangements. We conclude that any inclusion of participation in the parent partner program in Father‘s reunification case plan also constituted an abuse of discretion.
DISPOSITION
The April 25, 2022 disposition order is reversed to the extent it made findings under
Markman, J.*
We concur:
Richman, Acting P.J.
Miller, J.
In re M.C. (A165424)
* Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Trial Court: Solano County Superior Court
Trial Judge: Hon. William C. Harrison
Attorney for Defendant and Appellant: Appointed by Court of Appeal First District Appellate Project Danley Law, PLLC Michelle E. Danley
Attorneys for Plaintiff and Respondent: Office of Solano County Counsel Bernadette S. Curry County Counsel Carrie Blacklock Assistant County Counsel Clarisa P. Sudarma Deputy County Counsel