IN RE: CARY T. et al.

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Court of Appeal, Second District, California.

IN RE: CARY T. et al., Persons Coming Under the Juvenile Court Law. _ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CARY T. et al., Defendants and Appellants.

B215370

Decided: June 25, 2010

Jennifer Mack, under appointment by the Court of Appeal, for Defendants and Appellants. James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

In making the determination whether to order termination of dependency jurisdiction over dependent children who have reached the age of 18 years, the juvenile court must consider whether termination would give rise to an existing or reasonably foreseeable future harm to the young adult.   If termination does not give rise to an existing or reasonably foreseeable future harm to the young adult, the juvenile court should terminate jurisdiction.   In this case appellants are two dependent children who have reached the age of 18 years.   The evidence shows that they will continue to receive health care services through Medi-Cal, Supplemental Security Income, mental health care services, and services through an office of disabled students at the college they attend.   The evidence shows no existing or reasonably foreseeable future harm to the young adults will result from termination of dependency jurisdiction, and the order terminating dependency jurisdiction was not abuse of discretion.   We affirm the order.

FACTUAL AND PROCEDURAL HISTORY

Twins Cary T. and A.T. were born in October 1990.   Both displayed symptoms of drug withdrawal from cocaine.   The juvenile court sustained a Welfare and Institutions Code section 300 1 petition, which alleged that the children's condition would not exist except as the result of their mother's unreasonable act, putting the minors at risk of serious physical harm and emotional damage.   The children's mother was a frequent user of cocaine, which rendered her incapable of providing regular care for Cary and A.T. The mother was incarcerated and could not arrange for care for the children.   Their father's whereabouts were unknown, and he had not provided the children with the necessities of life such as food, clothing, shelter, or medical treatment.   The juvenile court ordered the children placed in the care of the DCFS. When the children were nearly four years old, on September 12, 1994, the juvenile court ordered the children placed in long-term foster care.   When the children were nine years old, on December 1, 1999, Marie C. became the legal guardian of A.T. and Cary. Dependency jurisdiction was terminated, although the date that occurred is unclear.

On October 1, 2008, an attorney representing Cary and A.T. filed a section 388 petition on their behalf.   The petition alleged that Cary and A.T. currently lived with their legal guardian.   Cary and A.T. had been diagnosed with attention deficit disorder, dyslexia, dysplasia, and auditory processing disorder.   Their legal guardian received “D-Rate” for both children, but D-Rate funding would stop if dependency jurisdiction was not reinstated before their 18th birthday on October 8, 2008.   The petition alleged that unless the case was reopened, Cary and A.T. would not be eligible for Medi-Cal or Independent Living Program (ILP) services,2 such as transitional housing.   The petition sought an order reinstating juvenile court jurisdiction for the purpose of allowing Cary and A.T. to continue receiving financial services, for assistance to secure Supplemental Security Income, for continued Medi-Cal after the age of 18, and for access to ILP services.

In a letter supporting the petition, the attorney representing Cary and A.T., Emily Berger, stated that their special needs prevented them from working full time or from living independently, and that Cary and A.T. were emotionally immature and did not behave at an age appropriate level.   Berger's letter stated that both children were drug exposed prenatally and had symptoms of Fetal Alcohol Syndrome.   Cary was being assessed for depression because she often slept 14 hours a day or longer.   A.T. suffered from “out of body experiences.”   Their limitations required them to receive services including therapy and special education services, but without continued funding their guardian would be unable to provide appropriate services for them.

After the juvenile court denied the section 300 petition on October 23, 2008, on November 12, 2008, the juvenile court granted a rehearing and ordered counsel appointed for A.T. and Cary. On December 1, 2008, the juvenile court granted a hearing on the section 388 petition to allow the DCFS to investigate the requests made in the petition, and ordered the DCFS to prepare a report addressing the funding issues raised in the section 388 petition.   The matter was set for a contested hearing on February 9, 2009, on the issue of whether jurisdiction over Cary and A.T. was necessary.

In a January 7, 2009, report, the DCFS reported that A.T. and Cary graduated from Chatsworth High School on June 13, 2008, and were currently enrolled at Pierce College.   A.T. and Cary received services through the Pierce College Office of Disabled Students, had active Medi-Cal cards, and received comprehensive mental health services at Valley Child Guidance Clinic.   A.T. and Cary turned 18 years of age on October 18, 2008, and continued to live with their legal guardian, who continued to care for them even though legal guardianship terminated once they turned 18.

Cary currently received Supplemental Security Income (SSI), with her legal guardian, Marie C., being the payee.   On September 3, 2008, a CSW assisted Marie C. in filling out SSI paperwork for A.T., who was waiting for her SSI application to be processed, which could take up to six months.   Marie C. was informed that A.T., as an adult, needed to apply to DPSS for general relief funding.   D-rate funding for Cary and A.T. had to be terminated because they were 18 years old;  to be approved for D-rate funding the child must between 5 and 18 years old.   Thus Cary and A.T. were no longer eligible to receive D-rate funding.

The DCFS report stated that Cary and A.T. were not eligible for the Transitional Housing Program,3 and that their needs were currently being met through their college, SSI/DPSS, and Valley Child Guidance Clinic.   The DCFS recommended denial of the petition.

In a supplemental report filed for the February 9, 2009, hearing, the DCFS reported that Medi-Cal cards for Cary and A.T. were mailed to the legal guardian's residence in November 2008.   The legal guardian claimed never to have received the cards.   A CSW had a DCFS employee re-issue Medi-Cal cards to Cary and A.T., to be mailed to their residence, and provided the legal guardian with printed documents containing Medi-Cal numbers for Cary and A.T..

After the hearing on February 9, 2009, the juvenile court ordered jurisdiction terminated as to Cary and A.T..

Cary and A.T. filed timely notices of appeal.

ISSUES

Appellants contend that the juvenile court abused its discretion by terminating jurisdiction on two 18-year-olds when the DCFS failed to show they did not face existing or reasonably foreseeable future harm based on their special needs and lack of independent living skills or stable home.

DISCUSSION

1. Juvenile Court Jurisdiction to Order Resumption of Dependency Jurisdiction

After Establishment of a Guardianship;  the Standard of Review of an Order

Terminating Dependency Jurisdiction in Ruling on a Section 388 Petition

A juvenile court is precluded from initiating jurisdiction over a person who has reached the age of 18 years.  (In re D.R. (2007) 155 Cal.App.4th 480, 486.)   Initiation of jurisdiction, however, differs from resumption of jurisdiction after establishment of a guardianship.  “ ‘Any minor for whom a guardianship has been established resulting from the selection or implementation of a permanency plan pursuant to Section 366.26 is within the jurisdiction of the juvenile court.’ (§ 366.4, subd. (a).)  Thus, even though the juvenile court terminates dependency jurisdiction in a case, the juvenile court still retains jurisdiction over the guardianship and any motions relating to that guardianship may properly be filed in the juvenile court.”  (In re D.R., at pp. 486-487, fn. omitted.)   Section 388, subdivision (a) also authorizes a petition to the juvenile court “in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of the court previously made․”

Where a petition seeking modification of an order establishing legal guardianship and terminating dependency jurisdiction is filed before the child reaches the age of 18 years, section 303 4 gives the juvenile court discretion to retain jurisdiction over the child until she is 21 years of age.  (In re D.R., supra, 155 Cal.App.4th at p. 487.)  “The exercise of such discretion is warranted when there is a showing of ‘existing and reasonably foreseeable future harm to the welfare of the child.’  “ (Ibid.) “In deciding whether to terminate jurisdiction over a youth who has reached majority, the court ․ must consider whether termination would give rise to an existing or reasonably foreseeable future harm to the young adult.   If not, ․ jurisdiction should be terminated.   However, if there is a prospect of such harm, the court must decide whether retaining jurisdiction would ultimately serve the best interests of the child.”  (In re Holly H. (2002) 104 Cal.App.4th 1324, 1336.)   The party seeking to terminate jurisdiction bears the burden of proof on the issue of termination.  (In re Robert L. (1998) 68 Cal.App.4th 789, 794.)   This court reverses an order terminating jurisdiction only where that order abuses the juvenile court's discretion.  (Ibid.)

The showing of “ ‘existing and reasonably foreseeable future harm to the welfare of the child’ “ overlaps with the factors governing a right to a full hearing on a section 388 petition.  (In re D.R., supra, 155 Cal.App.4th at p. 487.)

2. Because the Evidence Supports the Finding That Termination Would Not Give

Rise to an Existing or Reasonably Foreseeable Future Harm to A.T. and

Cary, the Order Terminating Jurisdiction Was Not an Abuse of Discretion

The primary question confronting the juvenile court in determining whether to terminate jurisdiction over a youth who has reached majority is whether there is a showing that termination would give rise to an existing or reasonably foreseeable future harm to the young adult.  (In re Holly H. supra, 104 Cal.App.4th at p. 1336.)

The petition filed on behalf of Cary and A.T. alleged that their legal guardian had received “D-rate” funding for both children, but that D-Rate funding would stop if dependency jurisdiction was not reinstated before their eighteenth birthday.   The DCFS, however, reported that D-rate funding for Cary and A.T. had to be terminated because a child must be between 5 and 18 years old to be approved for D-rate funding and therefore Cary and A.T., who were 18 years old, were no longer eligible for D-rate funding.   The DCFS also stated that Cary received Supplemental Security Income (SSI), with her legal guardian, Marie C., being the payee.   On September 3, 2008, a CSW assisted Marie C. in filing out SSI paperwork for A.T., who was currently waiting for her SSI application to be processed.   Marie C. was informed that A.T., as an adult, needed to apply to the DPSS for general relief funding.

The petition filed on behalf of Cary and A.T. alleged that they would not be eligible for Medi-Cal or Independent Living Program services, such as transitional housing, unless the case was reopened.   The DCFS reported, however, that A.T. and Cary had active Medi-Cal cards.   They continued to live with their legal guardian, who continued to care for them.   The DCFS reported that A.T. and Cary were not eligible for the Transitional Housing Program because they were living with Marie C. Also, until they are 21 years old, former foster care recipients are entitled to additional services, including housing services, designed to help them make “ ‘the transition from adolescence to adulthood.’  “ (In re Holly H., supra 104 Cal.App.4th at p. 1338, citing 42 U.S.C. § 677(a)(5);  see also Cal.Code Regs., tit. 22, § 89201, subd. (i)(2).)

In a supporting letter, counsel for Cary and A.T. alleged that they had symptoms of Fetal Alcohol Syndrome, Cary was being assessed for depression, and A.T. suffered from “out of body experiences.”   The letter stated that their limitations required them to receive a number of services, including therapy and special education services, but without continued funding their guardian would not be able to provide services for them.   The DCFS reported that Cary and A.T. were enrolled at Pierce College, received services through the Office of Disabled Students at Pierce College, and received comprehensive mental health services at Valley Child Guidance Clinic.

“In deciding whether to terminate jurisdiction over a youth who has reached majority, the court ․ must consider whether termination would give rise to an existing or reasonably foreseeable future harm to the young adult.   If not, ․ jurisdiction should be terminated.”  (In re Holly H., supra 104 Cal.App.4th at p. 1336.)   Here the evidence supports the juvenile court's finding that termination of jurisdiction would not give rise to an existing or reasonably foreseeable future harm to Cary and A.T.. The juvenile court therefore properly ordered jurisdiction terminated.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Unless otherwise specified, statues in this opinion will refer to the Welfare and Institutions Code..  FN1. Unless otherwise specified, statues in this opinion will refer to the Welfare and Institutions Code.

FN2. ILP refers to “the program authorized under 42 USC. Section 677 to provide services and activities to assist children 16 or older in foster care in making the transition from foster care to independent living.”   (Cal.Code Regs, tit. 22, § 89201, subd. (i)(2);  see § 11403.1 and 42 U.S.C. § 677.).  FN2. ILP refers to “the program authorized under 42 USC. Section 677 to provide services and activities to assist children 16 or older in foster care in making the transition from foster care to independent living.”   (Cal.Code Regs, tit. 22, § 89201, subd. (i)(2);  see § 11403.1 and 42 U.S.C. § 677.)

FN3. To qualify for the Transitional Housing Program, a youth must be:  (1) a person who came from the street or other location not meant for human habitation;  (2) a person who came from emergency shelters;  (3) a person who came from Safe Havens (a flexible stay shelter serving homeless and mentally ill persons);  or (4) a person in a transitional housing program who came directly from the street, emergency shelters, or Safe Havens..  FN3. To qualify for the Transitional Housing Program, a youth must be:  (1) a person who came from the street or other location not meant for human habitation;  (2) a person who came from emergency shelters;  (3) a person who came from Safe Havens (a flexible stay shelter serving homeless and mentally ill persons);  or (4) a person in a transitional housing program who came directly from the street, emergency shelters, or Safe Havens.

FN4. Section 303 states:  “The court may retain jurisdiction over any person who is found to be a dependent child of the juvenile court until the ward or dependent child attains the age of 21 years.”.  FN4. Section 303 states:  “The court may retain jurisdiction over any person who is found to be a dependent child of the juvenile court until the ward or dependent child attains the age of 21 years.”

KLEIN, P. J. ALDRICH, J.