In re N.O.
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Opinion
Filed 1/30/19
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re N.O., a Person Coming Under the D074064 Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (San Diego County Super. Ct. No. SJ13182) Plaintiff and Respondent,
v.
A.R. et al.,
Defendants and Respondents;
N.O., a Minor, etc.,
Appellant.
APPEAL from an order of the Superior Court of San Diego County, Michael J.
Popkins, Judge. Affirmed.
Patricia K. Saucier, under appointment by the Court of Appeal, for Minor and
Appellant. Katherine A. Clark, under appointment by the Court of Appeal, for Defendant and
Respondent A.R.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant
and Respondent S.G.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Welfare and Institutions Code section 3641 governs status review hearings for
dependent juveniles who remain or are placed back in the physical custody of their
parents or guardians. Subdivision (c) of that section (hereinafter, section 364(c))
provides that the juvenile court "shall terminate its jurisdiction unless the social worker or
his or her department establishes by a preponderance of evidence that the conditions still
exist which would justify initial assumption of jurisdiction under Section 300, or that
those conditions are likely to exist if supervision is withdrawn."
Thus, when a child welfare agency such as Respondent San Diego County Health
and Human Services Agency (Agency) opposes termination of dependency jurisdiction, it
bears the burden to show by a preponderance of the evidence the existence of the
conditions set forth in section 364(c) to continue jurisdiction. Otherwise, the court "shall
terminate its jurisdiction." (Ibid.) In the instant case, however, Agency not only did not
oppose termination of dependency, but rather recommended it. Instead, it was counsel of
1 All further statutory references are to the Welfare and Institutions Code unless otherwise noted. 2 dependent child N.O. (Minor) who opposed termination of jurisdiction over the objection
of Minor's parents.
Complicating this case is the fact that it involved the coordination of welfare
agencies from Mexico and the United States, after Mexico declined to exercise
jurisdiction over Minor, who was detained in California when Minor's mother A.R.
(Mother) was arrested at the international border for transporting a large amount of
marijuana. Minor was ultimately placed by a California juvenile court with maternal
grandmother in Mexico. A few months after her arrest, Mother was released from
custody and returned to Mexico, where she participated in services through the agency
Desarrollo Integral de la Familia (DIF), which services were ordered and overseen by the
juvenile court and Agency. Because Mother made substantial progress in services under
her Agency care plan, Minor was returned to Mother's care.
After a domestic violence (DV) incident between Mother and Minor's father S.G.
(Father) in late December 2016 came to light in February 2017, Agency recommended
Mother receive DV services, which were to be administered through DIF because Mother
could no longer cross the border into the United States. When the court terminated
jurisdiction in May 2018 it was unclear whether Mother had participated in such DV
services. However, perhaps more important for purposes of this appeal, it also was
unclear whether DIF had offered Mother such services, or believed they were even
necessary.
Indeed, the record shows in the months leading up to Agency's November 2017
recommendation that jurisdiction over Minor be terminated pursuant to section 364(c),
3 DIF ignored the myriad requests of Mother—who had separated from Father, and moved
from Ensenada to Tijuana without giving him a forwarding address—(i) to assess Minor,
as required by Agency and ordered by the juvenile court, and (ii) to inform Mother
whether she needed DV services and if so, where they would be provided and what type
of services she would be offered. Equally important, the record also shows that during
much of Minor's dependency, the communication of information from DIF to Agency
was often delayed, with Agency sometimes receiving months-old information, or in some
cases, no information at all, despite its admitted dependence on DIF.
Minor's counsel opposed Agency's November 2017 recommendation to terminate
jurisdiction, noting Agency had not personally seen Minor since late May 2017 and
Mother since late July 2017, and further noting Mother had then stopped returning phone
calls and emails from Minor's counsel and Agency, the last contact between Mother and
Agency being in late September 2017. Agency nonetheless recommended termination of
jurisdiction because a social worker from DIF had assessed Mother and Minor, also in
late September 2017, and had reported Minor was continuing to do well in her care,
where Minor had been placed since December 2016; Mother had completed all services
ordered by Agency under its original care plan; there was no evidence Mother and Father
had reunited; and DIF had been unresponsive to Mother and Agency regarding whether it
would provide Mother DV services, as noted.
After multiple continuances of the section 364 review hearing, the juvenile court
on March 8, 2018, granted Minor's counsel one last continuance, noting that it was
"comfortable" closing the case based on the information then available to it and that it did
4 not appear additional information regarding Minor would be forthcoming from DIF. The
court suggested Agency reach out to DIF to make Minor's case a "priority" to "verify the
minor and the mom are okay." When Agency at the April 5, 2018 continued review
hearing again reported that it had no new information from DIF regarding Minor, at the
request of Minor's counsel the court set a contested hearing for May 23, 2018.2
At the contested hearing, the court found that Minor had not met her burden under
section 364(c) to show that conditions still existed that would justify the court's initial
assumption of jurisdiction over her; that there was no reason to continue the review
hearing until minor was found, as requested by Minor's counsel; and that it therefore was
required to terminate jurisdiction.
On appeal, Minor contends the juvenile court's finding that conditions no longer
existed in May 2018 that would justify the initial assumption of dependency over Minor
in August 2015 was not supported by substantial evidence; that the court abused its
discretion in not continuing the family maintenance review hearing until Minor was
found and assessed; and that the juvenile court violated Minor's statutory right to counsel
under section 317.
2 As highlighted by this case, a cross-border dependency presents certain "challenges" to the social welfare agencies tasked with providing services to a dependent child and his or her parents or guardians.
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Filed 1/30/19
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re N.O., a Person Coming Under the D074064 Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (San Diego County Super. Ct. No. SJ13182) Plaintiff and Respondent,
v.
A.R. et al.,
Defendants and Respondents;
N.O., a Minor, etc.,
Appellant.
APPEAL from an order of the Superior Court of San Diego County, Michael J.
Popkins, Judge. Affirmed.
Patricia K. Saucier, under appointment by the Court of Appeal, for Minor and
Appellant. Katherine A. Clark, under appointment by the Court of Appeal, for Defendant and
Respondent A.R.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant
and Respondent S.G.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Welfare and Institutions Code section 3641 governs status review hearings for
dependent juveniles who remain or are placed back in the physical custody of their
parents or guardians. Subdivision (c) of that section (hereinafter, section 364(c))
provides that the juvenile court "shall terminate its jurisdiction unless the social worker or
his or her department establishes by a preponderance of evidence that the conditions still
exist which would justify initial assumption of jurisdiction under Section 300, or that
those conditions are likely to exist if supervision is withdrawn."
Thus, when a child welfare agency such as Respondent San Diego County Health
and Human Services Agency (Agency) opposes termination of dependency jurisdiction, it
bears the burden to show by a preponderance of the evidence the existence of the
conditions set forth in section 364(c) to continue jurisdiction. Otherwise, the court "shall
terminate its jurisdiction." (Ibid.) In the instant case, however, Agency not only did not
oppose termination of dependency, but rather recommended it. Instead, it was counsel of
1 All further statutory references are to the Welfare and Institutions Code unless otherwise noted. 2 dependent child N.O. (Minor) who opposed termination of jurisdiction over the objection
of Minor's parents.
Complicating this case is the fact that it involved the coordination of welfare
agencies from Mexico and the United States, after Mexico declined to exercise
jurisdiction over Minor, who was detained in California when Minor's mother A.R.
(Mother) was arrested at the international border for transporting a large amount of
marijuana. Minor was ultimately placed by a California juvenile court with maternal
grandmother in Mexico. A few months after her arrest, Mother was released from
custody and returned to Mexico, where she participated in services through the agency
Desarrollo Integral de la Familia (DIF), which services were ordered and overseen by the
juvenile court and Agency. Because Mother made substantial progress in services under
her Agency care plan, Minor was returned to Mother's care.
After a domestic violence (DV) incident between Mother and Minor's father S.G.
(Father) in late December 2016 came to light in February 2017, Agency recommended
Mother receive DV services, which were to be administered through DIF because Mother
could no longer cross the border into the United States. When the court terminated
jurisdiction in May 2018 it was unclear whether Mother had participated in such DV
services. However, perhaps more important for purposes of this appeal, it also was
unclear whether DIF had offered Mother such services, or believed they were even
necessary.
Indeed, the record shows in the months leading up to Agency's November 2017
recommendation that jurisdiction over Minor be terminated pursuant to section 364(c),
3 DIF ignored the myriad requests of Mother—who had separated from Father, and moved
from Ensenada to Tijuana without giving him a forwarding address—(i) to assess Minor,
as required by Agency and ordered by the juvenile court, and (ii) to inform Mother
whether she needed DV services and if so, where they would be provided and what type
of services she would be offered. Equally important, the record also shows that during
much of Minor's dependency, the communication of information from DIF to Agency
was often delayed, with Agency sometimes receiving months-old information, or in some
cases, no information at all, despite its admitted dependence on DIF.
Minor's counsel opposed Agency's November 2017 recommendation to terminate
jurisdiction, noting Agency had not personally seen Minor since late May 2017 and
Mother since late July 2017, and further noting Mother had then stopped returning phone
calls and emails from Minor's counsel and Agency, the last contact between Mother and
Agency being in late September 2017. Agency nonetheless recommended termination of
jurisdiction because a social worker from DIF had assessed Mother and Minor, also in
late September 2017, and had reported Minor was continuing to do well in her care,
where Minor had been placed since December 2016; Mother had completed all services
ordered by Agency under its original care plan; there was no evidence Mother and Father
had reunited; and DIF had been unresponsive to Mother and Agency regarding whether it
would provide Mother DV services, as noted.
After multiple continuances of the section 364 review hearing, the juvenile court
on March 8, 2018, granted Minor's counsel one last continuance, noting that it was
"comfortable" closing the case based on the information then available to it and that it did
4 not appear additional information regarding Minor would be forthcoming from DIF. The
court suggested Agency reach out to DIF to make Minor's case a "priority" to "verify the
minor and the mom are okay." When Agency at the April 5, 2018 continued review
hearing again reported that it had no new information from DIF regarding Minor, at the
request of Minor's counsel the court set a contested hearing for May 23, 2018.2
At the contested hearing, the court found that Minor had not met her burden under
section 364(c) to show that conditions still existed that would justify the court's initial
assumption of jurisdiction over her; that there was no reason to continue the review
hearing until minor was found, as requested by Minor's counsel; and that it therefore was
required to terminate jurisdiction.
On appeal, Minor contends the juvenile court's finding that conditions no longer
existed in May 2018 that would justify the initial assumption of dependency over Minor
in August 2015 was not supported by substantial evidence; that the court abused its
discretion in not continuing the family maintenance review hearing until Minor was
found and assessed; and that the juvenile court violated Minor's statutory right to counsel
under section 317.
2 As highlighted by this case, a cross-border dependency presents certain "challenges" to the social welfare agencies tasked with providing services to a dependent child and his or her parents or guardians. As summarized post, at the end of dependency it appears DIF had determined neither Minor nor Mother was in need of any additional services, after DIF assessed Minor and reported she was doing well in Mother's care. Nothing we say in this opinion is meant as a criticism of DIF, or the services it provided Minor and her family during this nearly three-year dependency. 5 As we explain, we conclude Minor failed to satisfy her burden to show at the
contested hearing that conditions still existed which would justify the initial assumption
of jurisdiction of her under section 300. Based on this conclusion, we reject Minor's
contention that the court abused its discretion in refusing to continue the section 364
review hearing until Minor was found. We also conclude the court did not violate
Minor's statutory right to counsel when it refused to continue the hearing, as the record
shows Minor's counsel at all times vigorously advocated on Minor's behalf to ensure her
safety and welfare. Affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Petition, Detention, and Disposition
As noted, in August 2015 Mother was arrested at the international border for
smuggling a large amount of marijuana from Mexico into the United States. Fifteen-
month-old Minor was in Mother's car at the time of her arrest. Mother denied knowledge
of the presence of drugs in the car, stating instead she thought she was transporting
money across the border. Mother was eight weeks pregnant with Father's baby at the
time of her arrest.
Agency filed a dependency petition under section 300, subdivision (b)(1), alleging
that Minor had suffered, or there was a substantial risk that she would suffer, serious
physical harm or illness by her parents' willful or negligent failure to provide her with
adequate food, clothing, shelter, supervision, or medical treatment arising out of the
August 2015 incident. At Minor's August 31, 2015 detention hearing, the court found
Agency made a prima facie showing on the petition and detained her.
6 At Minor's September 22, 2015 jurisdiction and disposition hearing, the court
stated it retained jurisdiction of the case pursuant to the Uniform Child Custody
Jurisdiction and Enforcement Act (Fam. Code, § 3400 et seq.) because the family courts
in Tijuana and Ensenada, Mexico, had declined to exercise jurisdiction over Minor. In
November 2015 the court sustained the petition's allegations based on a finding of clear
and convincing evidence, and also granted Agency's ex parte request to place Minor with
maternal grandmother in Ensenada, after she received a favorable home evaluation from
DIF. During this same general time frame, Mother was released from custody and
returned to Mexico.
At the contested disposition hearing on December 17, 2015, the juvenile court
found by clear and convincing evidence that Minor should be removed from parents'
custody pursuant to section 361.5, subdivision (a)(3) because there was, or would be, a
substantial danger to her physical health, safety, protection, or physical or emotional
well-being if she was returned home. The court declared Minor a dependent of the court
and placed her in Agency's care and custody. Mother and Father were ordered to
participate in reunification services in Mexico through DIF, which would be overseen by
Agency.
Six-month Review
In its June 14, 2016 report for the six-month review hearing, Agency stated that
Mother and Father were living together in Ensenada, working at a supermarket, attending
parenting classes through DIF, and visiting Minor weekly. Agency noted during this
reporting period that Mother had "successfully completed 12 psychological sessions"
7 through Instituto Municipal De la Mujer de Ensenada, where it "was reported that these
sessions resulted in favorable advances through mother's therapeutic process." Agency
also noted Minor was thriving in the home of maternal grandmother, as confirmed by
home-visit reports provided by DIF. DIF also reported Minor was "functioning at an
appropriate level in accordance with children of her age."
At the July 14, 2016 six-month review hearing conducted pursuant to
section 366.21, the court ordered Minor remain placed with maternal grandmother and
parents' reunification services be continued. The court found both Mother and Father had
made "substantial" progress in services. The court ruled Agency had the discretion to
"lift supervision of visits, allow overnight visits, [and] begin a 60[-]day trial visit with
parents with [the] concurrence of [M]inor's counsel."
Twelve-month Review
In its report for the 12-month review hearing set for November 1, 2016, Agency
recommended that reunification services be extended until the next review hearing.
According to maternal grandmother, neighbors in Ensenada reported during this review
period that Father in late June 2016 had "kicked" Mother out of their home after a verbal
argument, which parents denied when questioned by Agency.
During this reporting period, Mother gave birth to Minor's sister on July 3, 2016,
and was unemployed while caring for her newborn. As a result, maternal grandmother
provided financial assistance to the family, as Father did not have a steady job. In May,
Mother completed her parenting classes, and DIF conducted a welfare check of Minor in
8 maternal grandmother's home and reported Minor's needs were being met in a "loving
family environment."
Also during this reporting period, maternal grandmother took Minor to the County
of San Diego Public Health office in Chula Vista to update Minor's vaccinations. Agency
conducted a "welfare check" on Minor during a follow-up visit. Maternal grandmother
also provided Agency with updated "health documents" of Minor.
Agency social worker Alexis Troche noted during this reporting period he
continued to work with DIF in Ensenada "to conduct compliance visits" on Minor and
expressed concern about the "communication problems with the maternal grandmother in
regards to getting [her] to send needed information" about Minor. Troche further noted
that maternal grandmother became more "compliant" about providing such information
after they discussed a possible change of placement for Minor
Agency in its report commented on the challenges presented by this case as a
result of Minor and her family living in Mexico. Agency noted it was "difficult"
"receiving information from the family," including from maternal grandmother, who, at
one point during the reporting period, had refused to allow visits between Minor and
parents because of an argument with Mother. Agency therefore noted it "depend[ed] on
DIF for assessments of the parent's situation" and, as a result, the "reunification process"
between Minor and parents was "slower."
Agency recommended parents undergo psychological evaluations, which
commenced in October 2016. After Father tested positive for amphetamine or
methamphetamine, Agency requested that DIF refer him to a substance abuse program.
9 Father agreed to participate and complete "any program referred to him," and in October
moved out of the family home to facilitate Minor's return to Mother.
At the November 1, 2016 12-month review hearing, the court continued Minor's
placement with maternal grandmother. The court again found parents had made
substantial progress with their services and ordered them continued. It further ordered
Mother have unsupervised visitation with Minor, and Father's visitation with Minor
remain supervised. The court also directed Agency to speak with Mother regarding the
difficulties Minor's counsel was experiencing in contacting Mother.
Eighteen-month Review
In its initial report for the 18-month review hearing set for March 1, 2017, Agency
recommended that Mother have sole legal and physical custody of Minor with Father to
have supervised visitation, and that the juvenile court terminate its jurisdiction over
Minor. Agency reported Minor had been placed with Mother in December 2016 for a 60-
day trial visit. Mother also cared for Minor's two sisters. Father did not live in the home,
but provided Mother with some financial assistance. Mother opened her own business
creating fruit bouquets.
During this reporting period, Mother reported that things were "going well," as
maternal grandmother resided nearby and assisted Mother when necessary. Mother
reported not seeing Father as much due to his "hectic work schedule," but claimed he
nonetheless was "caring to his daughters, visits when he can, and [was] attempting
services." In November 2016 Agency received reports and/or letters updating Minor's
medical and dental history. Agency noted Minor was an "adorable, active and
10 affectionate toddler" who "appeared to be close to her parents, as evidenced by her
running towards them and embracing them," as witnessed by Agency social worker
Troche in the consulate visitation room.
In January 2017 father provided Agency a "stamped and dated log" showing he
had attended 52 Narcotics Anonymous meetings during the reporting period. On January
31, 2017, Troche observed a visit between Minor and her parents, noting Minor
"appeared highly attached" to parents, who likewise seemed equally attached to Minor.
Agency stated it believed Mother had gained the knowledge to prevent any "future
incidences that would put herself at risk[], such as being aware of the consequences of
driving a vehicle with narcotics and by not allowing the father to be alone with the
children if he appears to be under the influence. The Agency is aware of a strong support
network for the mother by the maternal grandmother. The maternal grandmother has
provided the mother with childcare, transportation, and financial assistance. The Agency
is confident that with this support network and skills learned from services that further
involvement by the Agency is not necessary."
Agency in its March 1, 2017 addendum report changed its recommendations for
the 18-month hearing based on a report by maternal grandmother that Father on
December 30, 2016, had struck Mother in the face and given her a "black eye," after
accusing Mother of being unfaithful. Agency therefore sought a 30-day continuance of
the 18-month hearing.
Agency's March 1 addendum noted it had contacted maternal grandmother in
February 2017 after Agency had been unable to reach parents to arrange a welfare check
11 of Minor at the Mexican consulate in Tijuana. Maternal grandmother then disclosed the
December 30 DV incident between Mother and Father. Maternal grandmother reported
she had previously wanted to notify Agency of this incident, but had not done so because
she " 'didn't want to get in [the] middle of it,' " adding that Mother tended to get "mad and
blame[]" maternal grandmother for not getting Minor back sooner. Maternal
grandmother reported that Minor's seven-year-old sister told maternal grandmother she
heard Mother repeatedly yell for " 'help' " during the incident.
"[S]everal minutes" after speaking to maternal grandmother about the
December 30 DV incident, Agency social worker Troche reached Mother, who
confirmed the incident. Mother reported that the children, including Minor, were in
another room when the incident took place, and that neighbors called the police and
demanded Father leave the home. As a result of this incident, Mother did not speak to or
see Father for about three weeks. Mother also reported that she received a "certified
letter" from DIF on February 14, 2017, requiring her and the children, including Minor,
to appear on February 20 at the offices of DIF for an assessment. Mother took her
children on that date and were "assessed by DIF."
Mother reported to Agency that, because of the February 20 meeting with DIF,
Father was "not allowed to be near the girls or where the mother works while they
investigate the referral and if he disobeys 'they will remove the children.' " Mother
admitted she did not inform Agency of the December 30 DV incident because she "didn't
want the incident to affect her in losing her children . . . since it was the father that hit
her. The mother reported DIF told her to not reside in her apartment for several days
12 until the father attends an unknown appointment on [February 25, 2017]." Mother further
"reported that the father told her on [February 20, 2017] that he will leave her alone, so
[the] children won't be at risk of getting removed. PSW Troche inquired if the mother
felt safe, which [she] replied she did and has her mother for support."
Agency in its March 1 addendum noted it had received the psychological
evaluation reports of parents dated February 13, 2017, which evaluations DIF had
ordered almost four months earlier.3 Father's report described him as " 'infantile and
immature with little capability to recognize the faults related to the legal situation of his
daughter and family.' " It further described Father as " 'depressed, uneasy, unstable,
anxious, and distracted,' " and noted Father also showed signs of " 'aggressiveness and
impulsiveness.' "
Mother's February 13 report stated Mother did not appear to be " 'stable within her
current environment as she lives with [Father] who is the biological father of her two
youngest children,' " including Minor. It recommended that she maintain a stable job,
and, despite already successfully completing individual therapy, that she attend additional
therapy to learn how to be more responsible and to develop strategies for caring for her
children.
Agency in its March 1 addendum concluded that, although there was a new
incident of DV during the reporting period, Mother nonetheless had "been protective by
not allowing the father to reside in her residence and she is also going to not allow
3 The February 13 reports were included in the record based on Minor's augment request, which this court granted on August 3, 2018. 13 contact with children until DIF completes [its] investigations. The mother has completed
all services in her case plan, which were designed to eliminate the reason the Agency
initially got involved. The mother has tested clean during drug tests and has not been
partaking in illegal activities and has not been rearrested. The mother has completed her
60[-]day trial and even though she was not upfront with [regards to the] alleged DV
incident, DIF is currently assessing the situation. Being that the children are placed in
Mexico, the Agency has had difficulty in receiving DIF reports on time when [it]
conduct[s] the welfare visits on Agency's behalf, since the parents cannot cross with
[M]inor . . . . The mother appears to [be] cooperative with DIF [and] with [its]
investigation, as evidenced by her moving out briefly to reside with her friend to avoid
contact with the father and even to finally disclosing to [an Agency social worker] of
[the] incident."
The juvenile court at the March 1, 2017 18-month review hearing continued the
matter to allow Agency to "investigate some of the concerns that the agency has
regarding closing this case at this time." The court ordered that Mother could no longer
supervise Father's visits with Minor.
Agency in its March 29, 2017 addendum report recommended another
continuance of the 18-month review hearing. Mother informed Agency that she no
longer was supervising visits between Father and the children, including Minor, and that
she did not know Father's whereabouts. Finally, Mother reported she did not show up to
a followup appointment with DIF on or about February 23, 2017, because Father had
14 received the appointment reminder, and he never gave it to her, or notified her that she
also needed to attend with him.
Agency in its May 30, 2017 addendum repeated its earlier recommendations that
Minor continue as a dependent of the juvenile court; that Minor remain in Mother's care;
that Mother be offered six months of family maintenance services; that Father's
reunification services be terminated; and that visits between Father and Minor remain
supervised by someone other than Mother.
The May 30 addendum reported Agency contacted Mother on April 18. When
told Agency had been attempting to contact Mother for "over a month," Mother claimed
her phone had stopped working after she had dropped it, and she had just had it fixed.
Mother stated she had not seen Father in two months, Father was likely residing with
paternal grandmother, and that nobody from DIF had reached out to her, including in
regards to the December 30 DV incident.
Mother further reported she had recently moved. Mother provided Agency with
her new address, but stated she had not given it to maternal grandmother, who, according
to Mother, had " 'been causing trouble,' " after maternal grandmother had lobbied a friend
to remove various items Mother was using to operate her business. Mother thus began
working at a convenience store in order to support her children, including Minor.
Agency asked Mother to bring Minor to the consulate office during the week of April 24;
however, due to "unavailability," Agency was unable to schedule the visit.
Agency again spoke with Mother on April 27. Mother reported she had contacted
DIF the day before and DIF "told her [it] had 'no concerns.' " According to Mother,
15 "a DIF social worker stated they could provide a letter to Agency stating there are no
concerns with the mother. The mother clarified that after the domestic violence incident,
which occurred in December 2016, she didn't see the father until [January 20, 2017] in
which they discussed her concerns about his actions. The mother stated that the father
'asked for forgiveness.' The mother reported that in February, the father was delivering
for her business and stayed with her and the children for 3 days until Agency discovered
information about the domestic violence incident. The mother stated that she and the
father went to their scheduled DIF visit. The mother reported not seeing father until she
accidently walked into him when she was providing paternal grandmother with a visit."
Agency in its May 30 addendum reported having additional contacts with Mother
in May 2017 including on May 17 and 23. During one of these telephone calls, Mother
was asked about an alleged DIF appointment that had been scheduled on May 8, 2017.
Mother admitted that "she had forgotten about [the] appointment but when she was
initially given [the] appointment she [had] called DIF in April and asked DIF if [it] could
change the case to Tijuana, Mexico due to travel expenses"; that DIF was in the process
of making this change; and that Mother herself would follow up as DIF ostensibly was
also appointing a new social worker for her case. Mother reported she had been in
contact with maternal grandmother, who agreed Mother and the children, including
Minor, could reside with her "to resolve anything DIF needs in Ensenada."
Mother along with Minor visited Agency social worker Troche at the Mexican
consulate on May 25. Mother reported that she was actively using many of the "tools"
she had learned through the reunification services offered by Agency; that she had left
16 Father and not given him her new address because of the December 30 DV incident and
because he was "very inconsistent" in attending services, which put her children,
including Minor, at risk; and that she did not go back to DIF after the initial visit on
February 20 because DIF had not asked Mother to do anything else, but instead was
focusing on Father, who needed to enroll in a substance abuse program and other services
before he could have contact with the children, including Minor.
Mother also reported that she and the children had moved back to Ensenada and
was living with maternal grandmother because Mother needed the "financial assistance"
and "want[ed] to clear and complete any services DIF needs her to complete to close [the]
case." Mother stated she planned on working in Ensenada for a few months and then
moving with the children to Puebla, Mexico, to live with maternal grandfather, as he
would be retiring soon and "would be able to assist her financially while she works and
cares for the children," including Minor. Mother expressed the difficulty she was
experiencing in "raising her three children alone with limited financial assistance from
the fathers' of her children," as she had only received 2000 pesos over a four-month
period.4 Mother also reported that maternal grandmother planned on moving to the
United States in mid-July, when Minor's maternal uncle would be starting high school.
4 Pursuant to Evidence Code section 452, subdivision (h), we take judicial notice of the fact that 2000 pesos on May 25, 2017 was the equivalent of about $108 U.S. dollars. (See Mexican Peso (MXN) To United States Dollar (USD) Exchange Rate on 25 May 2017 (25/05/2017)
appeared "happy, as evidenced by Minor walking around the consulate room, attempting
to utilize PSW Troche's computer and eating a sandwich the mother had prepared for her.
[Minor] did not appear to be scared of the mother as evidenced by her running around the
room, stopping at times to talk to her mother and laughing. The mother provided her
with attention."
The record shows that Mother appeared by telephone at the 18-month review
hearing held on May 30; that Father "submit[ted]" to the recommendation of Agency that
his reunification services by terminated; that Mother also submitted to Agency's
recommendation that she be offered "family maintenance services" and would continue to
care for Minor; and that Minor's counsel also submitted to Agency's recommendation, but
expressed concern about the lack of information "not necessarily all due to the mother's
actions, but also because [DIF]—it's been hard to communicate with [DIF], and it takes a
while for [DIF] to set up appointments."
Minor's counsel requested the court admonish Mother of the importance of
attending all DIF appointments and staying in "consistent" and "honest communication"
with Agency. The record shows Mother, through an interpreter, agreed to remain in
contact with Agency. The court informed Mother if she kept her appointments and
remained in contact with Agency, there was a "good chance that this case will be
terminated at the next hearing." The court, after adopting Agency's recommendations, set
the case for a "family maintenance review hearing" on November 30, 2017, and ordered
Mother to appear (telephonically) for that hearing.
18 Family Maintenance Review Hearings
Agency in its November 30, 2017 status review report recommended that Minor
be placed with Mother and Agency's jurisdiction terminated, as noted ante; that Mother
be granted legal and physical custody of Minor; and that Father have reasonable
visitation supervised by an "approved family member." Agency noted Minor then was
residing with Mother at a specified address in Ensenada. During the reporting period,
Mother had obtained employment as an "Uber" driver, giving her the flexibility to take
and pick up the children, including Minor, from school, and allowing her to be available
for the children in case of emergency.
Agency's November 30 report noted Agency social worker Troche contacted
Mother on June 23, and 30, and on July 24, 2017, regarding whether DIF had arranged a
DV referral for Mother. Mother reported she had attempted "several times" to contact
DIF social workers about such services. Troche reported that Mother also had reached
out to him for "assistance to contact DIF to expedite [the] referrals from DIF." During an
in-person meeting between Troche and Mother on July 31, Mother reiterated she had not
heard back from DIF, despite her many calls to the agency. Mother thus stopped calling
the agency. Mother again asked for Agency assistance in arranging a referral through
DIF. Troche agreed to investigate the matter on behalf of Mother.
Agency's November 30 report noted Mother contacted Troche on August 30,
stating her friend was having car trouble and thus, she had arrived at the consulate after
her scheduled time. Troche confirmed he had a missed call from Mother at 7:37 a.m. that
day. Mother expressed her frustration at being unable to afford to travel to Tijuana with
19 Minor to participate in such visits at the consulate, and at DIF "not being compliant with
her or seeing [M]inor for the Agency's behalf." Agency reported a new consulate visit
was arranged, but Mother failed to show up with Minor for that visit.
Agency attempted to contact Mother on September 19, 20, 26, and 27, sometimes
leaving voicemails on Mother's phone. The Agency reached Mother on September 28,
after calling the telephone number for maternal grandmother. Mother informed Agency
social worker Troche that her telephone had stopped working. Mother stated she finally
had received a letter from DIF, who would assess Minor on September 29. Troche
reminded Mother to discuss with DIF her need for DV services.
Troche reported that, since his September 28 contact with Mother, he had been
unable to reach Mother, or maternal grandmother, despite leaving, or attempting to leave,
them voicemails on October 4, 26, 27, 30, and on November 17, 2017.
The Agency's November 30 status report noted during the reporting period that
Agency had multiple communications with social worker Martha Sanchez, an
"International Liaison," regarding making an international referral on Mother's behalf.
Sanchez on August 22 contacted Agency and reported that DIF had not provided her with
"any new information" regarding Minor. On September 26, Sanchez contacted Agency
and reported that DIF had "attempted to see minor and a note was left with an
appointment date, since she was not at the address at the time of visit."
On November 3, Sanchez informed Agency that DIF had been unresponsive and
had failed to provide her with any updates regarding Minor. On November 9, Sanchez
informed Agency that DIF had "finally" given Sanchez an update, as Mother was seen by
20 a DIF social worker on or about September 28; that the social worker reported Minor was
"doing well" in Mother's care; and that an attorney had been assigned to Mother's DV
case, but it was "uncertain" whether DIF had provided Mother with a referral for DV
services.
Agency in its report noted it had no contact with maternal grandmother or Father
during the reporting period. Agency also noted Minor had a physical on July 31 that was
completed in Mexico by Minor's primary care physician. Agency also noted that Minor
was developmentally on-track; and that Minor was attending preschool in Ensenada.
Agency recognized Mother did not participate in any services during the reporting period
because Mother had "successfully completed them during the prior reporting period."
In connection with its recommendation that jurisdiction over Minor end, Agency
in its November 30 report stated as follows: "Even though the Agency has been having
difficulty in contacting the mother to receive updates and to schedule consulate visits
during the last two months, the mother was actively attempting to contact DIF on
numerous occasions to receive referrals and to allow DIF to conduct welfare visits on
Agency's behalf with [Minor]. DIF was eventually able to assess the minor's well-being
and concluded that the minor appeared well, not at risk, and did not report any new
domestic violence altercations with father. Since the mother appears to be in contact with
DIF, the Agency hopes she will continue to work with them and accept any services or
referrals they provide.
"The mother has completed her initial services in her case plan of Parenting
Education and Individual therapy which were designed to eliminate the reason the
21 Agency initially got involved. The mother was able to provide examples of what she
learned and utilizes [them] with the minor when she met with PSW Troche. The mother
additionally has been able to utilize the maternal grandmother for housing, child care, and
support. The minor . . . is currently placed with mother and appears to be doing well and
all of her needs appear to be met by the mother. The mother has been working a [full-
time] job and providing the necessities for the minor. The mother has refrain[ed] from
any criminal activity.
"During the visits, PSW Troche has been able to assess the mother's interactions
with the minor. PSW Troche strongly believes that the mother has been able to positively
display an appropriately positive, safe, loving environment to the minor . . . and that
mother has gained the knowledge to prevent any future incident that would put [Minor]
and her other children at risk."
The record shows Mother did not appear—including telephonically—at the
November 30 hearing, despite the court's previous order. Agency sought a continuance
of this hearing due to a notice issue with respect to Father. The court thus continued the
family maintenance review hearing to January 11, 2018.
At the January 11 hearing, Minor's counsel referenced the year-old DV incident,
stating that incident was "very concerning" because after it took place, Mother went back
to Father. Minor's counsel argued she was unable to do any investigation regarding her
client, and the juvenile court could not make any findings as requested by Agency,
because the last contact between Minor and her counsel was prior to May 30, 2017;
22 Agency had not had any contact with Mother since July 31, 2017;5 and the last contact
between DIF and Mother was on or about September 28. Minor's counsel thus requested
a continuance to allow DIF the opportunity to visit Minor in Mother's home. Minor's
counsel stated if the continuance was not granted, she "would be willing to do a doc trial
today."
The juvenile court continued the family maintenance review hearing. In so doing,
the court stated it would "like to see DIF at least make another contact to see how the
minor is doing before we make any final call on terminating jurisdiction on this case,"
given DIF's last contact with Minor was on or about September 28. The court thus
continued the matter to March 8, 2018.
Agency's March 8 addendum report noted Agency had unsuccessfully attempted to
contact Mother on January 24, and on February 7 and 23, 2018. Agency's attempts to
contact maternal grandmother and/or Father were also unsuccessful. Agency on January
12 forwarded an international referral to DIF to conduct a welfare check on Minor. On
February 23, Agency contacted Sanchez, who informed Agency she had no updates
regarding Minor. Agency thus reiterated its previous recommendations, including that
jurisdiction over Minor be terminated.
5 As noted ante, the record shows that Mother contacted Agency social worker Troche on August 30, 2017, complaining about DIF and its failure with her including to assess Minor on Agency's behalf; and that Troche was able to speak with Mother on September 28 about a welfare check for Minor that was conducted by DIF on that day or the day following. 23 At the March 8 hearing, Agency disclosed it had no new information regarding
Minor, including from DIF. Minor's counsel noted that Mother was not returning
counsel's phone calls, nor responding to emails. Minor's counsel thus sought an
additional continuance of the review hearing to allow DIF to "see" Minor and obtain an
assessment of her.
Minor's counsel reiterated at this hearing that the nearly 15-month-old DV incident
was her "only concern" about terminating jurisdiction over Minor, as "Mexico was to
supply services to address that issue," there was "evidence that DIF—that mother never
engaged in those services," and thus, there was an "untreated mother for DV." Minor's
counsel stated she, like others, shared the view that it was possible they might "be stuck
in the same situation continually" if the case was continued; but that the court "should at
least get DIF to try to visit the minor."
The record shows Agency shared the frustration of Minor's counsel regarding
communication—or lack thereof—with Mother and others in her family, and the lack of
"any cooperation" from DIF to assist Agency in connection with this case. Agency
nonetheless asked the court to terminate jurisdiction, as it no longer believed another 30-
day continuance would provide any feedback from DIF regarding Minor's well-being.
The record shows Mother's counsel also recommended termination of jurisdiction.
The juvenile court noted Minor had been with Mother since May 2016;6 that it
was "comfortabl[e]" closing out the case; that the court could not just keep dragging the
6 The record shows Minor actually was placed with Mother in December 2016. 24 case out "forever and ever"; and that just because Minor had not been seen since late
September 2017 that alone did not mean "there's anything bad going on." The court
nonetheless agreed to a 30-day continuance, but stated it would be the last one, "barring
something unforeseen." The court suggested Agency ask DIF to make Minor's case a
"priority" and "just verify the minor and the mom are okay."
At the April 5, 2018 continued hearing, Minor's counsel requested trial dates
regarding the court's intention to terminate jurisdiction, after Agency disclosed it had no
additional information from DIF concerning Minor. Mother's counsel reiterated her
request that jurisdiction over Minor be terminated, as the court already had continued the
family maintenance review hearing for "three months" and she already had provided the
court and all parties with "proposed custody orders." The court set the contested review
hearing for May 23, 2018.
Final Family (Contested) Maintenance Review Hearing
Agency in its May 23, 2018 addendum report noted Sanchez on April 19, 2018,
forwarded a DIF report also dated April 19 stating that social worker Mayra Nayeli
Richie Rodriquez had attempted to visit Mother's home on three occasions in August and
September 2017 with no success in locating anyone; that on her last visit, Rodriquez had
left a "citation for the mother to appear with the minor on [September 29, 2017]"; and
that Mother did in fact appear with Minor and one of her other children on that date.
Rodriquez "reported that the minors appeared to be in 'good hygienic conditions' "; that
Mother stated she was rarely home as she awakened early to take the children to school
and did not return home until nighttime; that maternal grandmother had moved to the
25 United States; and that Mother and the children, including Minor, were still residing in
maternal grandmother's home.
Rodriquez further reported she attempted to visit Mother on February 19 and
March 13, 2018; that no one was at the residence on those occasions; that a neighbor
claimed not to have seen Mother or her children, including Minor, for a " 'long time' ";
that the phone number for maternal grandmother was no longer active; and that calls
made to Mother's telephone went straight to voicemail.
At the May 23 hearing, Minor's counsel opposed termination of jurisdiction over
Minor because Agency's last "contact" with Mother was on or about September 29, 2017,
or more than six months earlier. As such, Minor's counsel argued that the juvenile court
lacked the ability to make findings necessary to terminate jurisdiction; that it was "bad
policy to award parents for absconding with their children while a dependency
proceeding is pending"; and that Minor was still "at risk" because her parents were
"untreated for domestic violence" and Father was untreated for drug abuse.
The record shows the court admitted all of Agency's reports, as summarized ante.
At Minor's counsel's request, the court took judicial notice of its minute orders of May
30, 2017, in which the court had admonished Mother to keep all DIF appointments and
remain in communication with counsel and Agency, and of November 30, 2017, when,
despite the court's previous order, Mother had not appeared telephonically for the
hearing. The record shows Minor's counsel next called Agency social worker Troche as a
witness.
26 Troche testified he had been assigned to the instant case for more than two years;
that he then did not know Minor's circumstances or whereabouts; that he did not know
whether Father was living with Mother, but had no reason to suspect he was; and that,
testifying as an expert based on his experience as a social worker, he did not believe
Minor was at risk. When asked to explain his answer, Troche stated when he viewed
Minor and Mother together, they appeared very bonded, and Minor healthy, which DIF
confirmed when one of its social workers met with Mother and Minor in late September
2017. Troche testified he did not know whether Minor was at risk on the day of the
contested hearing, nor did he know whether Mother had enrolled in a domestic violence
program in Mexico.
Troche further testified Agency searched for Minor in the United States about a
year earlier. The search, conducted through a "parent search clerk," yielded no results.
Troche confirmed that Mother completed all the services offered by Agency; that Mother
was supposed to receive some domestic violence services through DIF, but was unsure
whether such services were ever offered by DIF and if so, whether Mother completed
them; and that the last time Minor had been seen by any agency was at the end of
September 2017 by a DIF social worker. Troche testified DIF provided this information
in a report, which was silent on whether DIF had offered Mother DV services.
Agency during closing argued the court should follow its recommendations from
its November 30, 2017 status review report, including that Mother be given custody of
Minor and jurisdiction be terminated. Agency acknowledged the potential concerns
raised by Minor's counsel over a lack of recent contact with Mother, but argued lack of
27 contact did not equate to Minor being at risk or to the court needing to continue
supervision over Minor, as all information then available showed Minor had been doing
well, Mother had completed all services requested by Agency, and there were no reports
of any new instances of DV following the December 30 incident, which had occurred
about 18 months earlier.
Agency further argued that it lacked jurisdiction to "practice social work in
Mexico"; and that it therefore was dependent on DIF to do the social work for Agency.
Agency explained: "So, if the Court were to continue jurisdiction over this case, it's
unclear what could be accomplished, frankly, as far as continued investigation.
Essentially, all the parties in the court would have to rely on DIF to continue to work on
this case. And as noted in the reports, you know, that we've been having trouble getting
in contact with them. They haven't been extremely compliant."
Minor's counsel in closing argued that the instant case was a "factual mess"
because the information sent by DIF was always three or fourth months old. The record
shows Minor's counsel engaged in a lengthy closing argument, in which counsel
exhaustively went through the facts contained in Agency's reports, which already had
been admitted into evidence, and reviewed myriad cases, none of which the juvenile
court found applicable to the unique facts of the instant case.
Toward the end of her argument, Minor's counsel stated the court should presume
Mother and Father had reunited. The court interrupted Minor's counsel and suggested
she was asking the court to "speculate" they were back together. Counsel in response
argued, "I think we have to speculate because of the situation we're in." Minor's counsel
28 then continued to argue that she believed parents were together "because they have a
relationship together, and the only reason why the mother and father [were] separated
was because they believed that this case would be over sooner if they did so."
Juvenile Court Rules to Terminate Jurisdiction Over Minor
After a recess, the juvenile court noted that, based on In re Aurora P. (2015)
241 Cal.App.4th 1142 (Aurora P.), the burden was on Minor to show by a preponderance
of the evidence that the conditions that justified "initial assumption of jurisdiction" of
Minor under section 300 still existed, inasmuch as Agency was seeking to terminate
jurisdiction. Minor's counsel in rebuttal argued that, because Minor was still "missing" as
a result of the actions of Mother, the court "should not award that behavior by closing the
case and that we should continue to look for the minor until we can make an assessment
that the minor is safe." Thus, Minor's counsel asked the court to "continue the case until
the minor is found," and to issue a "bench warrant" for Mother and a "pick up/detain
order" for Minor.
In ordering jurisdiction over Minor terminated, the court noted that dependency
began in 2015, or "three years ago," and that the "original conditions that justified the
taking of jurisdiction in this case involved mom transporting drugs with the minor in the
car." The court found that Mother had successfully completed the services asked of her
by Agency; that during the 18-month review in late March 2017, the December 30 DV
issue came to light, leading Agency to ask for a continuance of the case to conduct
further investigation; that DV was not the "initial problem that justified this Court taking
jurisdiction," as it happened while the case was pending; and that at the next hearing on
29 May 30, 2017, when Mother appeared telephonically, the Court found "mom had actively
involved herself in the case plan," the plan was "appropriate, reasonable, and likely to be
successful in alleviating the causes that brought this matter before the Court," and "the
extent of progress made by the mom has been substantial."
The court also noted that Agency had seen Minor "about a year ago," and at that
time "there was no indication whatsoever that mom or the minor was doing anything
inappropriate, or the minor was in any danger"; that it continued Minor's placement with
Mother despite the December 30 DV incident; that DIF saw Minor in late September
2017 which was the "last time anyone has seen the minor or the mom"; and that then
"everything was going appropriate," "the mom was doing everything . . . to protect the
minor," and there was "no reason to believe that the minor was in any danger
whatsoever."
The court further noted only two months later, on November 30, 2017, Agency
recommended termination of jurisdiction over Minor. The court stated: "That matter
was continued, but that's when this recommendation first came up and that was simply
just two months after the mom was seen. It wasn't—we're talking about now—it's been
over six months, but part of [the] reason it's been so long is because this case has been
continued numerous times. It was continued by minor's counsel in January so I could
give them an opportunity to—or give them an opportunity to have DIF to see the minor.
It was continued again from March, again, to get feedback from DIF, and we haven't
been able to get that.
30 "But, on the other hand, we have no evidence whatsoever, based on the only
evidence that we have, that the minor's in any danger or that the conditions that initially
justified the assumption of jurisdiction exist in this case. Even assuming that the
domestic violence becomes a part of this—and I'm not so sure under the law it does
necessarily. But even assuming that it does, because that's not what got us the initial
jurisdiction in this case, and that's the way [section] 364(c) reads to me—but even taking
that into consideration, the fact that she was seen a year ago by our agency and was seen
again in September, there were no indications that any of that danger still existed as
recently as September.
"Based on that case I mentioned, In re Aurora P., the default for the Court is to
terminate jurisdiction, unless I have some evidence to show otherwise. They also
indicate that the burden of proof now switches to minor's counsel, since the Agency now
agrees that jurisdiction should be terminated. And I, frankly, do not find by a
preponderance of evidence that minor's counsel has shown that conditions still exist that
would justify the—that justify the initial assumption of jurisdiction in this case, and I will
follow the recommendations of the Agency and terminate jurisdiction in this case. And
those would be the recommendations from the November 30th, 2017, report, which I
have read and considered. I will adopt those as the Court's findings."
31 DISCUSSION
I
THE JUVENILE COURT PROPERLY TERMINATED ITS JURISDICTION UNDER SECTION 364(c)
A. General Principles Governing Dependent Minors Who Remain in, or Are Returned to, Parental Custody
After a juvenile court finds a child is a person described in section 300, it must
"hear evidence on the question of the proper disposition to be made of the child." (§ 358,
subd. (a).) In appropriate circumstances, the court may declare the child a dependent and
"order family maintenance services to ameliorate the conditions that made the child
subject to the court's jurisdiction," while keeping the child with his or her family.7
(Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 302.) Once a child has been
declared a dependent, the juvenile court must review the status of the child every six
months. (Id. at p. 303; see Cal. Rules of Court, rule 5.710(a) (1) [noting "[i]f the child is
returned, the court may order the termination of dependency jurisdiction or order
continued dependency services and set a review hearing within 6 months"].)
"The applicable standards at the six-month review hearing differ depending on the
7 Family maintenance services are "activities designed to provide in-home protective services to prevent or remedy neglect, abuse, or exploitation, for the purposes of preventing separation of children from their families." (§ 16501, subd. (g).) They "may be extended in periods of six-month increments if it can be shown that the objectives of the service plan can be achieved within the extended time periods . . . ." (§ 16506.) Unlike family reunification services, nothing in the Welfare and Institutions Code or the California Rules of Court limits the time period for court supervision and services for dependent minors who remain at home, so family maintenance services may be provided until the dependent minor reaches the age of majority. (In re Joel T. (1999) 70 Cal.App.4th 263, 267-268.) 32 child's placement." (In re Maya L. (2014) 232 Cal.App.4th 81, 98.) Section 364 provides
the standard when "a child under the supervision of the juvenile court . . . is not removed
from the physical custody of his or her parent or guardian." (§ 364, subd. (a); see
In r Pedro Z., Jr. (2010) 190 Cal.App.4th 12, 20 (Pedro Z.) [noting "when the child
remains in a parent's home, the court reviews the status of the case every six months
under section 364"].)
Despite the "not removed" language of section 364, subdivision (a), this court, like
most other California appellate courts, has concluded that section 364 also applies in
cases such as the instant one, where a dependent minor is removed from the physical
custody of a parent and/or guardian and later returned to that parent and/or guardian.
(See In re Gabriel L. (2009) 172 Cal.App.4th 644, 650 [disagreeing with In re Sarah M.
(1991) 233 Cal.App.3d 1486, 1493, which held that § 364 applies only in situations
where a dependent minor has never been removed from a parent or guardian] overruled
on another ground as stated in In re Chantal S. (1996) 13 Cal.4th 196, 204; In re N.S.
(2002) 97 Cal.App.4th 167, 171-172 (N.S.) [same].)
At the section 364 review hearing, the juvenile court is not concerned with
reunification, but in determining whether the dependency should be terminated or
supervision is necessary. (Aurora P., supra, 241 Cal.App.4th at p. 1155; Pedro Z., supra,
190 Cal.App.4th at p. 20.) The juvenile court makes this determination based on the
totality of the evidence before it, including reports of the social worker who is required to
make a recommendation concerning the necessity of continued supervision. (Aurora P.,
at p. 1155, citing § 364, subd. (b); see In re Armando L (2016) 1 Cal.App.5th 606, 615
33 (Armando L.) [same].)
"The language of section 364 does not literally require that the precise conditions
for assuming jurisdiction under section 300 in the first place still exist—rather that
conditions exist that 'would justify initial assumption of jurisdiction.' " (In re J.F. (2014)
228 Cal.App.4th 202, 210 (J.F.); cf. In re D.B. (2015) 239 Cal.App.4th 1073, 1085 (D.B.)
[citing to J.F. and stating in dictum that the "better interpretation of section 364(c) is that
the court must terminate jurisdiction if the conditions that justified taking jurisdiction in
the first place no longer exist," recognizing § 364(c) "does not simply refer to 'conditions'
or 'any conditions' but states the court shall terminate jurisdiction unless the social worker
proves that 'the conditions still exist which would justify initial assumption of jurisdiction
under Section 300' "].)8
"Section 364, subdivision (c) establishes a statutory presumption in favor of
terminating jurisdiction and returning the children to the parents' care without further
court supervision." (Armando L., supra, 1 Cal.App.5th at p. 615; In re Shannon M.
(2013) 221 Cal.App.4th 282, 290.) As noted ante, section 364(c) requires the juvenile
court to "terminate its jurisdiction unless the social worker or his or her department
establishes by a preponderance of evidence that the conditions still exist which would
justify initial assumption of jurisdiction under Section 300, or that those conditions are
likely to exist if supervision is withdrawn." (§ 364(c); Conservatorship of Hume (2006)
8 Like the court in D.B., supra, 239 Cal.App.4th at p. 1085, we decline in the instant case to address this issue because the juvenile court could have terminated dependency jurisdiction under either interpretation of section 364(c). 34 140 Cal.App.4th 1385, 1392 [interpreting § 364(c) to mean that, in the absence of a
contrary showing at the six-month review hearing, termination of dependency jurisdiction
will be the "default result"].)
Although section 364(c) states the social worker or department establishes the
basis for the continuation of dependency jurisdiction, the first sentence of section 364(c)
makes clear that the parent, the guardian, or the child may offer evidence on that
question: "After hearing any evidence presented by the social worker, the parent, the
guardian, or the child, the court shall determine whether continued supervision is
necessary." (§ 364(c); see Aurora P., supra, 241 Cal.App.4th at p. 1155.) Moreover,
"even if a social worker or department recommends termination of dependency
jurisdiction, the juvenile court is not bound by that recommendation and may retain
jurisdiction 'if there is a preponderance of evidence that the conditions are such to justify
that retention.' [Citation.]" (Aurora P. at p. 1155; see D.B., supra, 239 Cal.App.4th at
p. 1086 [noting a social service agency's recommendation is not binding on the court].)
B. Burden of Proof and Standard of Review
The court in Aurora P. addressed a similar issue to the one presented in the instant
case, as the welfare agency there had recommended termination of dependency
jurisdiction under section 364(c) over the objection of the minors' counsel. In Aurora P.,
the welfare agency filed dependency petitions as to five of the mother's children. The
mother, however, made significant progress resolving the problems that led to removal,
as she was "actively engaged, was in compliance with her case plan, and was making
positive strides towards reunification with her children." (Aurora P., supra,
35 241 Cal.App.4th at p. 1148.) At the 12-month review hearing, the juvenile court in
Aurora P. followed the recommendation of the welfare agency and returned the mother's
oldest and youngest daughters to the mother with family maintenance services. As the
mother continued to make progress, the court returned the remaining children to her
custody, also with family maintenance services. (Ibid.)
At a contested multi-day hearing in July 2014, following family maintenance
review hearings in 2012, 2013, and in May 2014, the juvenile court adopted the Agency's
recommendations, dismissed the case, and ordered informal family maintenance.
(Aurora P., supra, 241 Cal.App.4th at pp. 1148, 1152-1153.) In so doing, the juvenile
court found there were still " 'some concerns' " about the mother taking care of five
children. (Id. at p. 1153.) The court, however, noted that was " 'not the standard' " it was
to apply (ibid.), as it found " '[c]onditions do not exist which would justify initial
assumption of jurisdiction under section 300 and are not likely to exist if supervision is
withdrawn.' " (Ibid.)
The Aurora P. court noted that section 364(c) was silent "on which party bears the
burden of proof where the social services agency recommends termination and another
party opposes that recommendation." (Aurora P., supra, 241 Cal.App.4th at p. 1159.)
Nonetheless, after analyzing section 364, including its legislative history, case law, and
Evidence Code section 5009 among other authorities, the Aurora P. court concluded that
9 Evidence Code section 500 provides: "Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he [or she] is asserting." 36 the "status quo" under section 364(c) was termination of dependency jurisdiction; and
that as such, the " 'default result' " would be termination "unless either the parent, the
guardian, or the child objects and establishes by a preponderance of the evidence that
conditions justifying retention of jurisdiction exist or are likely to exist if supervision is
withdrawn." (Aurora P., at p. 1163.)
After finding the minors bore the burden of proof under section 364(c) because
they were the parties seeking to establish the existence of those conditions, the Aurora P.
court next analyzed the standard of review it was to apply. It noted that while myriad
cases have reviewed orders made pursuant to section 364 for substantial evidence,
" 'almost all reported cases are appeals by a parent or the agency, not a child.' "
(Aurora P., supra, 241 Cal.App.4th at p. 1156, citing among other authorities N.S., supra,
97 Cal.App.4th at p. 172.)
While it had "no quarrel with the use of the substantial evidence standard in those
cases" (Aurora P., supra, 241 Cal.App.4th at p. 1156), the court in Aurora P. concluded a
different test should apply because when the juvenile court, as trier of fact, found " 'that
the party with the burden of proof did not carry the burden and that party appeals, it is
misleading to characterize the failure-of-proof issue as whether substantial evidence
supports the judgment. This follows because such a characterization is conceptually one
that allows an attack on (1) the evidence supporting the party who had no burden of
proof, and (2) the trier of fact's unassailable conclusion that the party with the burden did
not prove one or more elements of the case [citations].' (In re I.W. (2009)
180 Cal.App.4th 1517, 1528 (I.W.).)" (Aurora P., at p. 1156.) Because the juvenile court
37 found the minors had not meet their burden of proof, the Aurora P. court noted the issue
on appeal was " 'whether the evidence compels a finding in favor of appellants[s] as a
matter of law.' " (Id. at p. 1163, quoting I.W., at p. 1528, italics added.)
The court in Aurora P. went on to find that the minors did not satisfy their "burden
of showing error" as a matter of law (Aurora P., supra, 241 Cal.App.4th at p. 1164),
much less under the more relaxed "substantial standard of review." (Ibid.) The court
noted the minors ignored the evidence from the welfare agency that found "no safety
concerns" and that the mother "had alleviated the conditions that led to initial assumption
of jurisdiction." (Ibid.) The court further noted that the minors made "almost no effort"
to refute the evidence supporting termination, and instead merely "direct[ed the court] to
evidence in the record that might have supported a conclusion different from that reached
by the juvenile court. 'Here, as in many dependency cases, the case posed evidentiary
conflicts. And, as is common in many dependency cases, this case obligated the juvenile
court to make highly subjective evaluations about competing, not necessarily conflicting,
evidence . . . . It is not our function to retry the case. We therefore decline [the minors']
implicit invitation to review the record so as to recount evidence that supports [their]
position (reargument) with the object of reevaluating the conflicting, competing evidence
and revisiting the juvenile court's failure-of-proof conclusion.' (I.W., supra,
180 Cal.App.4th at p. 1528.) This is not a case 'where undisputed facts lead to only one
conclusion.' (Id. at p. 1529.) [Citation.]" (Aurora P., at p. 1164.) As such, the court in
Aurora P. found the minors had failed to meet their burden on appeal. (Ibid.)
38 C. Analysis
Minor argues the juvenile court's finding that she failed to demonstrate conditions
still existed in May 2018 that would justify the initial assumption of jurisdiction over her
in August 2015 was not supported by "substantial evidence." We conclude, however,
that the test to be applied in analyzing Minor's claim of error is not whether "substantial
evidence" supports the court's decision to terminate jurisdiction, but rather whether
Minor—who bore the burden of proof at the contested hearing—can show by undisputed
facts that the juvenile court erred as a matter of law when it terminated jurisdiction over
Minor. (See Aurora P., supra, 241 Cal.App.4th at p. 1164; I.W., supra, 180 Cal.App.4th
at p. 1528.)
1. DV Services, In-home Visits and Mother's Case Plan
Minor argues the juvenile court erred in finding Minor did not satisfy her burden
of proof under section 364(c) because "Mother did not complete the domestic violence
program ordered by the court and that was prima facie evidence that conditions which
would justify the initial assumption of jurisdiction still existed and continued supervision
was necessary." Minor further argues the court erred in terminating jurisdiction because
Mother had failed to make Minor available "for home visits," as also required by her case
plan. We find these arguments unavailing for a variety of reasons, including our
conclusion it misstates the record evidence.
As a preliminary matter, we disagree with Minor that the juvenile court ordered
Mother to "complete" DV services or a program, or that Mother was somehow not
compliant with her case plan because she failed to engage in such services. We also
39 disagree with Minor that Mother failed to make Minor available to DIF to conduct
welfare checks of Minor.
Indeed, the record shows Agency recommended Mother receive DV services in
Mexico through DIF as a result of the December 30 DV incident, in which Father struck
Mother in the face, causing her to suffer a "black eye." The record further shows that
during the reporting period leading up to Agency's November 30, 2017 report, Mother
had been "actively attempting to contact DIF on numerous occasions to receive referrals
[for DV services] and to allow DIF to conduct welfare visits on Agency's behalf with
[Minor]"; that Mother was clearly motivated to work with DIF after the juvenile court at
the May 30, 2017 hearing, which Mother attended telephonically, expressed to Mother
that, if she kept her appointments with DIF, stayed in communication and was "open and
honest" with Agency, there was a "good chance that this case will be terminated at the
next hearing" set for November 30; that Agency social worker Troche spoke with Mother
on June 23, 30, and July 24, 2017, and Mother had reported that "she had attempted
several times to contact DIF . . . to inquire about classes and case, but that [a Mexican
social worker from DIS] has not called her back"; that Mother in response "reached out to
PSW Troche for assistance to contact DIF to expedite . . . referrals from DIF"; that on
July 31 Troche met in-person with Mother, "who continued to report that DIF has not
contacted her and that she has stopped calling since they kept telling her they will have
someone call her back"; that Mother again asked Agency to speak directly with DIF on
her behalf about visits and welfare checks for Minor, as Mother had a four-hour commute
to the consulate that was burdensome and effecting her financially; that Troche agreed he
40 would "look into DIF to conduct welfare visits"; that Mother again contacted Troche on
August 30, 2017, informing him she had been late to the consulate for a visit because of
car troubles, and expressing "her frustration [of] not being able to afford to travel with
minor to Tijuana, Mexico and DIF not being complaint with her or seeing the minor [on]
the Agency's behalf"; that after four unsuccessful attempts to reach Mother in September
2017 Troche made contact with her on September 28, 2017, who informed Troche that,
after receiving a letter from DIS, she and Minor had an appointment at DIF the following
day to allow the Mexican welfare agency to assess Minor to ensure "her well[-]being";
and that Troche was unable to contact Mother in late October and early November 2017.
The record also shows that Troche on July 26, 2017, reached out to social worker
Sanchez, an international liaison, asking her to "follow up with DIF in regards to the
status of [DIF] assisting the mother in getting into a DV program through [its] [a]gency";
that Troche on August 9 again contacted Sanchez, asking if she could follow up with DIF
to set "compliance visits" in Ensenada because Mother was having "difficulty" traveling
to Tijuana with Minor and to ask DIF to return Mother's calls "in regards to get[ting]
enrolled in DV services"; that on August 22, Sanchez contacted Troche and reported that
DIF had not provided her with any new information regarding Minor; that Troche in
response informed Sanchez that Mother "continued to report that DIF has not returned
her calls regarding whom her assigned [social worker] in Mexico [was], she has not been
provided with DV referrals, and was wondering if DIF could conduct [a] welfare check
on minor since she has been having financial difficulties traveling to the Consulate in
Tijuana, Mexico"; that on September 26, Sanchez informed Troche that DIF had
41 attempted to visit Minor by leaving a "note with an appointment date" ostensibly at
Mother's home; and that Sanchez on November 3 reported that DIF "has not been
responsive to her and has not provided any updates" regarding Mother or Minor.
In addition, the record shows Sanchez on November 9 contacted Troche,
informing him that a social worker from DIF had seen Mother and two of Mother's
children, including Minor, on or about September 28, 2017, and that the "minors were
doing well" in Mother's care. During this communication, Troche asked Sanchez if DIF
had conducted a welfare check on Minor in October. Sanchez reported that DIF had not
provided her with this information and that a social worker from DIF was in the process
of preparing a report, which would be forwarded to Sanchez when completed. Sanchez
also informed Troche that an attorney had been assigned to Mother's DV case, but it was
"uncertain if [DIF had] provided referrals" to Mother. (Italics added.)
Agency in its November 30 status review report further noted that Minor was an
"adorable, active and affectionate toddler," who appeared to be "close to her mother, as
evidenced by her smiling and laughing while running around the room taking pictures
with the mother's phone and showing them to her"; that minor was attending preschool in
Ensenada; that, although Mother was concerned Minor sometimes reached out to
strangers, Minor then was not participating in mental health services; that Mother
continued to utilize the parenting skills she learned through services with Agency, as well
as the skills she learned in her individual therapy, including not looking to the past, but
instead into the future and setting goals; that one of Mother's goals was to gain
employment, which she had found; that during this reporting period, Mother did not
42 participate in any additional services because Mother had "successfully completed them
during the prior reporting period" (italics added); and that Troche, who had been
assigned to the case for more than two years, "strongly believe[d] that the mother has
been able to positively display an appropriately positive, safe, loving environment to the
minor" (italics added), and that he "believe[d] that the mother has displayed that the
initial safety threat of neglect [that led to dependency was] no longer present and that the
mother has gained the knowledge to prevent any future incident[s] that would put
[Minor] or her other children at risk."
Thus, as the foregoing summary shows, the record in no way supports Minor's
argument that the court erred in terminating jurisdiction because Mother (allegedly) did
not complete DV services or a program "ordered" by the court, or because Mother failed
or refused to make Minor available to DIF for welfare checks.
Minor's argument also ignores the evidence in the record that Mother was told by
DIF social workers that she was not in need of any additional services, including for DV,
as a result of the December 30 incident with Father. Agency's May 30 addendum report
prepared in connection with the 18-month review hearing noted Mother on April 18,
2017, represented to social worker Troche that DIF had not asked Mother to attend a
second meeting as a result of the DV incident and that DIF had "not reached out to her."
Troche reported that Mother on April 27 represented she had met with a DIF social
worker the day before and that DIF "told her they had 'no concerns' " regarding Mother
and that DIF would provide Agency with a letter expressing this view. Although no such
letter appears in the record, as noted ante by Troche, Sanchez, the juvenile court, and
43 counsel of the parties including for Minor, it was difficult to obtain information from
DIF, and when such information was received, it was often months old.
Moreover, the record shows that by May 30, 2017, Mother had left Father because
of the DV incident and because he had been very inconsistent with services. Mother also
reported to Troche during a May 25 scheduled visit with Minor at the Mexican consulate
that she had not seen Father for two months; that she did not disclose to Father where she
and the children, including Minor, were living, as she had moved to Tijuana; that Mother
made myriad attempts to get services in Tijuana instead of Ensenada, but was
unsuccessful in having her case transferred; that Mother therefore decided to move back
to Ensenada to be closer to maternal grandmother and to "clear and complete any services
DIF needs her to complete to close [her] case"; and that she intended on moving with the
children, including Minor, to Puebla, Mexico, to live with maternal grandfather, who was
about to retire and who agreed to assist Mother financially, which fact maternal
grandmother confirmed.
While it is true that the juvenile court in November 2017—and throughout early
2018, when the case was repeatedly continued at the request of Minor's counsel—had no
additional information regarding whether Father and Mother had reunited, there also is no
evidence in the record to support such a finding, as the juvenile court noted during the
May 23 contested hearing, when it refused the request of Minor's counsel to engage in
speculation and assume Mother and Father were back together.
Finally, the record shows that, during the reporting period leading up to Agency's
November 30 report, Mother had been taking care of Minor since December 2016, who
44 also lived with her two sisters; that following the December 30 DV incident, Mother did
not speak to or see Father until January 20, 2017, when he asked Mother for
" 'forgiveness' "; that Father stayed with Mother and the children, including Minor, for
about three days in February 2017 helping Mother with her business; that after DIF on
February 20 ordered Father to leave the family home while it assessed the family, Mother
and the children, including Minor, lived with a friend "for several days" to avoid Father;
and that thereafter, Mother had little or no contact with Father, and was unaware of his
whereabouts during the critical reporting period leading up to Agency's November 2017
recommendation that jurisdiction be terminated.
Minor's arguments that Mother was "ordered" to participate in DV services or a
program, or that Mother and Father had reunited, or that there was an ongoing concern
about a reoccurrence of DV between them, or that Mother did not make Minor available
for welfare checks, fail as a matter of law (and would fail even if we applied the more
"relaxed" substantial evidence standard of review). (See Aurora P., supra,
241 Cal.App.4th at p. 1164; I.W., supra, 180 Cal.App.4th at p. 1528.)
2. Employment and Mother's Case Plan
Minor next argues the court erred in terminating jurisdiction because when it did
so, there allegedly was no "current evidence Mother had maintained employment," which
was "required in her initial case plan due to Mother's arrest for drug trafficking." We also
find this argument unavailing.
The record shows during the reporting period leading up to Agency's November
30 report, Mother stated she was employed as an Uber driver, which gave Mother the
45 flexibility she needed to raise her children, including Minor. Thus, at the time Agency
recommended termination of jurisdiction, Mother was employed.
The record further shows that throughout dependency, other than when Mother
was caring for her newborn in early July 2016, Mother maintained employment,
including working in grocery and convenience stores, at a car wash, and opening her own
business creating fruit bouquets. The record also shows Mother received financial
assistance from maternal grandmother, who also provided Mother with "housing" and
"child care."
In addition, at no point during this nearly three-year dependency did Agency, or
Minor, claim that Mother was failing to adhere to her case plan by not being employed,
(or by not making Minor available for home visits, as discussed ante). As noted, the
record shows when Minor's counsel repeatedly sought a continuance of the review
hearing, her "only" concern about terminating jurisdiction stemmed from the December
30 DV incident, and whether Mother had received services from DIF in connection with
that incident, and not as a result of Mother's employment situation (or her alleged failure
to make Minor available for in-home visits), as Minor now argues for the first time on
appeal.10
In any event, Minor cannot show as a matter of law, much less under the more
"relaxed" substantial evidence standard of review, that the court erred in terminating
10 Because we exercise our discretion and reach the merits of these issues, we need not decide whether Minor forfeited these claims of error by not raising them in the trial court. 46 jurisdiction under section 364(c) as a result of Mother's (alleged) lack of compliance with
Agency's case plan due to employment. (See Aurora P., supra, 241 Cal.App.4th at
p. 1164; I.W., supra, 180 Cal.App.4th at p. 1528.)
3. Mother's Contacts and Communication with Agency and the Difficulties She and Minor Experienced in Obtaining Cross-border Services from DIF
Minor also faults the juvenile court's decision to terminate jurisdiction on the basis
that Mother failed to follow court orders, including by failing to appear telephonically at
the November 30 review hearing, and by failing to remain in contact with Agency.
Minor on appeal specifically argues the court was "justified" in retaining supervision,
ostensibly until Minor is found, because Mother "disappeared" with Minor and
"stonewall[ed]" the juvenile court from having access to Minor after September 28, when
Mother appeared with two of her children, including Minor, at DIF, who then found
Minor was "doing well" in Mother's care, as reported to Agency in early November 2017.
We reject this argument for several reasons.
The record shows throughout this lengthy dependency, Agency experienced
difficulties in managing the placement of Minor in Mexico, and overseeing the provision
of services to parents through DIF. As already discussed in detail ante, in the months
leading up to Agency's November 30 report recommending termination of jurisdiction,
Mother made myriad unsuccessful attempts to work with DIF regarding her case.
Agency social worker Troche noted in November 2017 that Mother (understandably) had
become increasingly frustrated with DIF, as she was raising three children, including
Minor, without any financial support from Father; she was unable to cross the border into
47 the United States to obtain any services she might need to close the case; she seemingly
was unable to obtain those services in Mexico; and for about a year-and-a-half, she had
been taking care of Minor and Minor's two sisters, who were reported to be doing well
under her care and supervision as late as September 28, 2017, or two months before
Agency made its recommendation to terminate jurisdiction.
The record also shows the juvenile court was concerned for the welfare of Minor,
as it continued the case multiple times to allow DIF to try and locate Minor to make sure
she and "mom were doing okay" before terminating jurisdiction. Of course, the more
times the court continued the hearing, the more outdated the information about Minor
became, which Minor's counsel also recognized when she noted the possibility that all
concerned might "be stuck in the same situation continually" if the case was repeatedly
continued. Despite that recognition, Minor's counsel wanted the court to continue its
jurisdiction until Minor was found.
In our view, Minor's counsel's request to continue the case—ostensibly in
perpetuity—ignores the realities presented by this factually unique case. Clearly, neither
the juvenile court nor Agency has jurisdiction in Mexico. Agency repeatedly recognized
it depended on DIF for information about Minor, making the resolution of this
dependency "slower" than most others. It also appears equally clear through DIF's lack
of responsiveness to Mother, Sanchez, and Agency, that it no longer believed its
assistance was needed, as DIF repeatedly refused Mother's request for help—and was less
than forthcoming with information about Minor—in the months leading up to Agency's
November 30 report, when it recommended jurisdiction be terminated.
48 Minor's counsel's request to continue the case until Minor is found also ignores the
question of what exactly the juvenile court and/or Agency could do, if anything, if and
when Minor was located, particularly if Minor was found in Mexico, perhaps in Puebla,
Mexico, living with Mother, her sisters, and maternal grandfather, as Mother had planned
and as confirmed by maternal grandmother. Would Agency seek to have Minor removed
from Mother, even if Minor was then thriving in her care, because Mother had stopped
communicating with Agency after she (understandably) had become frustrated by the
lack of cooperation she was receiving from DIF in attempting to complete services in
Ensenada in order to end Minor's dependency in the United States?
Our respected colleague in dissent faults Agency for not searching for Mother,
Minor, or grandmother in the United States before the court terminated its jurisdiction.
Although Mother stated one of her long-term goals was someday to resume living with
her children in the United States, we note that throughout this lengthy dependency,
Mother made no attempt to return to the United States, including when she was having
difficulty obtaining services for herself and Minor in Mexico in order to close
dependency. Nor could she cross the border into the United States, given her August
2015 arrest and detention for transporting a large amount of marijuana across the
international border. Instead, the record shows Mother intended to move with her
children, including Minor, to Puebla, Mexico, to live with paternal grandfather, who
could provide Mother and her children with much-needed support, including financial
assistance.
49 With respect to grandmother, the record shows that, at the time Agency was
recommending termination of jurisdiction, she no longer was communicating with
Agency; her phone line had been disconnected; she had not cared for Minor since
December 2016; and her relationship with Mother had appeared to sour. Under these
circumstances, we do not believe termination of jurisdiction over Minor was conditioned
on Agency conducting a "standard search" for Mother, Minor, or grandmother in the
United States.
Of course, if Minor someday is located, depending on the circumstances Agency
may be able to file a new petition if Minor is found to be a person coming within
section 300. However, until that time, if ever, we conclude the juvenile court properly
rejected the request of Minor's counsel that it retain jurisdiction over Minor pursuant to
section 364(c) and conduct a review hearing every six months until Minor is found.
4. Caselaw Relied on by Minor Is Inapplicable in this Factually-unique Cross- border Case
Minor on appeal relies on many of the same cases cited by her counsel at the
contested May 23 hearing. Like the juvenile court, we find none of these decisions
inform our analysis on this issue.
Minor cites to in In re Claudia S. (2005) 131 Cal.App.4th 236 (Claudia S.). The
issue in Claudia S. was not whether the court should retain jurisdiction under
section 364(c), but rather whether the juvenile court erred when it conducted myriad
hearings after the initial detention hearing, and made numerous "findings and orders at
the review hearings," without any information whatsoever regarding the dependent
50 children, who had left with the mother to go to Mexico so that the mother could take care
of her own ailing mother. We held in Claudia S. that the juvenile court violated the
parents' due process rights when it conducted multiple dependency hearings in their
absence and without appointing them counsel. (Id. at p. 249.)
The facts of Claudia S. are clearly much different than those in the instant case,
where the juvenile court and Agency had at their disposal substantial information
gathered over the course of years showing Mother had completed all services initially
requested by Agency; Minor, who was returned to her in December 2016 was thriving in
her care; and Agency social worker Troche—who had been assigned to Minor's case for
more than two years—"strongly believe[d] that the mother has been able to positively
display an appropriately positive, safe, loving environment to the minor . . . and that
mother has gained the knowledge to prevent any future incident that would put [Minor]
Minor also relies on In re Jean B. (2000) 84 Cal.App.4th 1443 (Jean B.), a case
also not involving section 364(c). In that case, the dependent child was placed with the
mother, but was abducted by the father about a month later. Three years later, the
juvenile court entered an order terminating jurisdiction while the child and the father
remained at large. The Jean B. court ruled the court erred in terminating jurisdiction and
recalling the warrants for the father's arrest because it "left an at-risk child in the custody
of a father who had a history of drug abuse." (Id. at p. 1446.)
Unlike the father in Jean B. who abducted the dependent child and remained at
large when the court attempted to terminate its jurisdiction, the record in the instant case
51 shows the juvenile court returned Minor to the care of Mother based on Agency's
recommendation, after Mother made substantial progress in services in Mexico ordered
and overseen by the court and Agency. Also unlike the facts of Jean B., as already noted
the court and Agency had at their disposal in the instant case substantial information—up
to two months before Agency recommended termination of jurisdiction—showing Minor
was thriving in the care of Mother, who had continuously provided a "positive, safe,
[and] loving environment" for Minor. Quite simply, the instant case does not involve a
situation where one parent abducts a dependent child placed with another parent.
Minor also relies on the case of In re Baby Boy M. (2006) 141 Cal.App.4th 588
(Baby Boy). In that case, two days after giving birth the mother handed over her child to
the child's biological father at a train station. The mother gave up the child to avoid
having him placed under the jurisdiction of the welfare agency, who already had filed
petitions on behalf of the mother's other children based on the risk of harm posed by
physical abuse, after one of those children had been admitted to the hospital with
"multiple fractures—from one to six weeks old—that were consistent with physical
abuse" (id. at p. 592), and another had died, also from abuse (id. at p. 593). After
handing off the newborn to his father, the mother in Baby Boy initially lied about the
child's birth, and thereafter denied knowing the whereabouts of the father, whom she
identified as "James Smith" from Atlanta, and whom she had met on the "streets." (Id. at
p. 594.)
The Baby Boy court found the court erred in conducting the jurisdiction and
disposition hearing because there were insufficient facts to establish whether California
52 had subject matter jurisdiction over the child. (Baby Boy, supra, 141 Cal.App.4th at
p. 599.) The court in Baby Boy also found error based on "prudential considerations
independent of the jurisdictional analysis," as the juvenile court "lack[ed] any meaningful
information concerning" the child. (Id. at pp. 600-601, italics added.) Clearly, the facts
of Baby Boy and the court's holding therein have little to do with the instant case.
In sum, we conclude Minor did not satisfy her burden of proof under
section 364(c) to show conditions still existed that would have justified the initial
assumption of jurisdiction over her under section 300. As such, the juvenile court's order
terminating jurisdiction was proper.11
II
MINOR WAS NOT DEPRIVED OF HER STATUTORY RIGHT TO COUNSEL
Minor next argues the juvenile court violated her statutory right to counsel
pursuant to section 317, subdivision (e)(2)12 because at the time of the May 23 contested
hearing, Minor had celebrated her birthday just nine days earlier and thus, counsel was
required to interview Minor and determine her "wishes," "assess the child's well-being,
11 In light of our decision that termination of jurisdiction was proper, we conclude it is unnecessary to address whether the court erred in refusing pursuant to section 352, subdivision (a)(1) to continue (yet again) the family maintenance review hearing.
12 Section 317 concerns appointment of counsel in a dependency proceeding. Subdivision (e)(2) of this statute provides as follows: "If the child is four years of age or older, counsel shall interview the child to determine the child's wishes and assess the child's well-being, and shall advise the court of the child's wishes. Counsel shall not advocate for the return of the child if, to the best of his or her knowledge, return of the child conflicts with the protection and safety of the child." 53 and shall advise the court of the child's wishes." (Ibid.) We find this argument
unavailing.
First, Minor failed to raise this issue at the May 23 contested hearing. "A party
forfeits the right to claim error as grounds for reversal on appeal when he or she fails to
raise the objection in the trial court. [Citations.] Forfeiture, also referred to as 'waiver,'
applies in juvenile dependency litigation and is intended to prevent a party from standing
by silently until the conclusion of the proceedings." (In re Dakota H. (2005)
132 Cal.App.4th 212, 221.) Thus, a party may not assert theories on appeal which were
not raised in the trial court. (Fretland v. County of Humboldt (1999) 69 Cal.App.4th
1478, 1489.)
Second, the record shows Minor was in fact represented by counsel at the
contested May 23 hearing, and at all other dependency hearings up to that point,
including those that Minor's counsel had successfully continued (before Minor turned
four years old). As noted ante, the record also shows Minor's counsel was a strong
advocate for Minor, including at the May 23 hearing, when counsel in Minor's absence
presented evidence, called witnesses, and aggressively argued in closing that the court
should continue dependency jurisdiction until Minor was found.
Thus, we conclude even if the issue was not forfeited, Minor was neither deprived
of her right to counsel nor deprived of the protections afforded her under section 317.
(See § 317, subd. (c)(1) & (2) [generally noting the court shall appoint counsel for a child
in dependency and noting that the "primary responsibility" of appointed counsel "shall be
to advocate for the protection, safety, and physical and emotional well-being of the
54 child"].)
Finally, even if Minor was somehow deprived of some of the benefits afforded her
under section 317, subdivision (e)(2) because she was unable to express her "wishes" to
counsel and counsel was unable to "assess" Minor at the May 23 contested hearing, we
conclude any such deprivation was harmless. (See In re Candida S. (1992) 7 Cal.App.4th
1240, 1252 (Candida S.) [noting "that the right to independent counsel in dependency
cases is purely statutory, not of constitutional dimension, and subject to harmless error
analysis upon review"].)
As noted, Minor turned four years old just nine days before the May 23 hearing,
thus triggering the protections afforded by subdivision (e)(2) of section 317. However, in
light of Minor's tender age and all reports that she was thriving in Mother's care while
living with her two sisters, it seems very unlikely Minor's "wishes" would have been
anything other than to continue in her current living arrangement, as the record shows
Minor was "happy" with, and very bonded to, Mother. We thus conclude any error by
the court in failing to consider Minor's "wishes" before terminating jurisdiction was
harmless. (See Candida S., supra, 7 Cal.App.4th at p. 1252.)
Regarding assessing Minor pursuant to subdivision (e)(2) of section 317, all agree,
including this court, that the preference would have been to ensure Minor's well-being in
May 2018 before the juvenile court terminated jurisdiction. In fact, it was precisely for
this reason that the court continued the review hearing multiple times, at one point
imploring Agency to instruct DIF it needed to make the instant case a "priority" to "verify
mom and the minor were okay."
55 However, we conclude under the unique facts of the instant case that any error by
the court in not allowing counsel, as opposed to DIF, Agency and/or the juvenile court, to
"assess" minor's well-being in May 2018, despite multiple continuances of the review
hearing, was harmless because Minor was not then available for assessment and because
all reports regarding Minor showed she was thriving in the care of Mother.
DISPOSITION
The order terminating jurisdiction over Minor pursuant to section 364(c) is
affirmed.
BENKE, Acting P. J.
I CONCUR:
IRION, J.
56 DATO, J., Dissenting.
I fully appreciate the significant challenges faced by both the Agency and the
juvenile court in this cross-border dependency matter. And I understand the majority's
reluctance to say that the court abused its discretion when it denied any further
continuance and terminated jurisdiction. But in the fall of 2017 after the Agency
completely lost contact with Mother and the child, the juvenile court on two occasions
continued the scheduled family maintenance review hearing, quite properly recognizing
that it needed more current information before deciding whether to terminate jurisdiction.
"[I]f we can just verify [Minor] and [Mother] are okay. [¶] I think we can comfortably
close this case out."
Unfortunately, the continuances yielded no additional information. At that point,
the court essentially took the position that it could not continue the matter indefinitely,
conducted the review hearing with stale information, and terminated jurisdiction. In my
view, the primary problem with this approach is that the evidence at the review hearing
revealed two relatively simple straightforward steps the Agency admitted it could have
taken but did not take to locate Mother and the Minor.
To place these two steps in proper context, it is necessary to focus on the period
between May and September, 2017. Prior to May, Mother and Minor were living in
Tijuana, Mexico. But in a meeting with Agency social worker Alexis Troche on May 25
at the Mexican consulate, Mother reported she had decided to move back to Ensenada,
Mexico to live with the maternal grandmother (Grandmother). Troche testified that May 2017 was the last time Minor was seen in her home. He added that he personally
confirmed Mother and Minor were then living with Grandmother.
On one level Mother's move back to Ensenada is hardly surprising. Since early in
the case, Grandmother was Mother's primary source of support, both psychological and
financial. But at the same time, Mother reported that Grandmother planned to move to
the United States in mid-July before Grandmother's son (Mother's brother) started high
school. The question no one thought to ask, apparently, was what Mother planned to do
then?
Four months later—September 2017—was the last contact with Mother, when she
presented herself at the DIF offices in Ensenada after three unsuccessful attempts by DIF
to conduct a home visit. At that September 29, 2017 meeting, Mother confirmed that
Grandmother had recently moved to the United States. Even though (1) Mother's last-
known residence was living with Grandmother in Ensenada, (2) Grandmother was always
Mother's primary support, and (3) it had been told Grandmother moved to this country in
July, the Agency never explained why it made no effort to search for Grandmother and
her son in the United States when it lost all contact with Mother shortly after the
September 29 meeting.
In addition, at the same September 29 meeting with DIF, Mother reported that she
was "attempting to complete documents so she can move back to the United States." The
Agency knew that Mother had previously lived in California, and it had an established
procedure for locating minors and parents in the United States. Yet at the May 2018
2 maintenance review hearing, social worker Troche confirmed that the Agency had
conducted no such search for Mother and Minor after it lost contact with them.
Thus, by October 2017 the Agency had reliable information that Grandmother had
moved and Mother and Minor might be moving to the United States. Had it conducted a
standard search for Grandmother, Mother and Minor in the United States and come up
empty, this would be a different case. But because the Agency failed to pursue these two
simple reasonable steps, at the same time offering no explanation for its failure to do so, I
believe the juvenile court abused its discretion when it denied Minor's counsel's further
request for a continuance at the close of the maintenance review hearing and instead
terminated jurisdiction.
DATO, J.
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Cite This Page — Counsel Stack
In re N.O., Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-no-calctapp-2019.