IN RE: LUIS G.

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Court of Appeal, First District, Division 4, California.

IN RE: LUIS G., a Person Coming Under the Juvenile Court Law. SAN MATEO YOUTH AND FAMILY SERVICES DEPARTMENT, Plaintiff and Respondent, v. MANUEL G., Defendant and Appellant.

No. A067210.

Decided: July 20, 1995

Ande Thomas, Hayward, for appellant. Thomas F. Casey, III, County Counsel, Mary M. Ash, Deputy, Redwood City, for respondent.

The San Mateo County Juvenile Court declared Luis G., born January 24, 1993, a dependent child pursuant to Welfare and Institutions Code 1 section 300, and ordered him placed in a suitable, approved foster home, relative's home or private institution.   Dependency was based on failure to protect under section 300, subdivision (b), and failure to provide support under section 300, subdivision (g).   For purposes of placement, the court ordered that the mother's half-brother, Adolfo Isarraras, be considered a relative.

The combined jurisdiction and disposition hearing was held before Patricia Bresee, commissioner and judge pro tem.   The court ordered no reunification services to be provided to the parents, citing section 361.5, subdivision (b)(1), with respect to the mother because her whereabouts were unknown.   The court did not order reunification for the father, stating that no meaningful services were available to him at Folsom prison where he was incarcerated.

I. FACTS

On or about July 11, 1994, Luis G. was placed in protective custody after a nonrelative baby-sitter informed authorities that his mother had left him with her on June 3, 1994, and had not returned.   Attempts to reach the mother in Mexico, where she apparently had gone, were unsuccessful.

Manuel G. (appellant) is the minor's father and is married to the minor's mother.   Appellant was incarcerated in February 1993, after a conviction of sexual molestation of a seven-year-old child.   He was scheduled to be released in November 1994.

Appellant stated that he wanted his sisters to adopt the minor, but also stated that they were ambivalent about the idea.   Appellant requested that the child be placed with maternal relatives, specifically Mr. Adolfo Isarraras, the mother's half-brother.   Mr. Isarraras lived with his wife and five children, ranging in age from two to eleven.   Both Mr. and Mrs. Isarraras worked full time and employed a baby-sitter to care for their five children during the day.

At the time of the combined jurisdictional and dispositional hearing, the Youth and Family Services Department (the Department) had received all of the necessary information to complete a background check on Mr. and Mrs. Isarraras.   However, the Department was waiting to receive information about the baby-sitter and proof of the relationship between the uncle and the mother.

II. ANALYSIS

A. There Was Substantial Evidence to Support the Finding of Jurisdiction Under Section 300, Subdivision (g)

 A minor comes within the jurisdiction of the juvenile court if “[t]he minor has been left without any provision for support;  the minor's parent has been incarcerated or institutionalized and cannot arrange for the care of the minor․”  (§ 300, subd. (g).)  On review this court determines whether there is substantial evidence to support the juvenile court's finding, viewed in the light most favorable to the judgment.  (In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728, 17 Cal.Rptr.2d 282.)   We note that any relevant information could be used by the juvenile court to make such a determination, including social studies prepared by the Department of Social Services.  (In re Malinda S. (1990) 51 Cal.3d 368, 385, 272 Cal.Rptr. 787, 795 P.2d 1244.)

In the case at bench the evidence that the minor came within section 300, subdivision (g), is substantial.   The mother left the child with a nonrelative baby-sitter without any means of support and diligent efforts to contact her had failed.   Appellant was incarcerated at the time of the hearing and was to remain so for three more months.

Appellant contends that there was insufficient evidence to find that appellant “could not arrange for the care of the minor.”  (§ 300, subd. (g).)  However, appellant stated that his own sisters were “ambivalent” about adopting the child and there is no indication that they contacted the Department to do so.

A half-brother of the mother and his wife, Mr. and Mrs. Isarraras, were willing to take the child, and appellant apparently wanted them to do so.   However, the Isarraras' had not been in contact with the mother or child since a brief 15–day stay after the mother said she had no place to live.   The mother then left the Isarraras' home despite an invitation to stay, left the child with a nonrelative, and disappeared.   In addition, Mr. and Mrs. Isarraras worked full time and employed a baby-sitter to come to the home and care for their own five children.   The Department was awaiting information on the baby-sitter before approving the placement.

The case on which appellant relies, In re Aaron S. (1991) 228 Cal.App.3d 202, 278 Cal.Rptr. 861 (Aaron S ), only lends support to respondent's argument.  Aaron S. states that a finding under section 300, subdivision (g), cannot be sustained if the parent is incarcerated and is able to make “suitable arrangements” for the minor's care.  (Aaron S., supra, 228 Cal.App.3d at p. 212, 278 Cal.Rptr. 861.)   The Aaron S. court remanded because the juvenile court had focused solely on the parent's past inability to arrange for the child's care.  (Ibid.)

We hold that there was substantial evidence that the minor had been left without any means of support, and that at the time of the jurisdictional hearing appellant had not made, and was unable to make, suitable arrangements for the child.

B. The Juvenile Court Did Not Err By Not Immediately Placing the Child With the Maternal Uncle

 Appellant contends that the juvenile court should have placed the minor with the maternal uncle and the juvenile court erred by (1) delegating its discretion to place the minor and (2) by not giving reasons for “denying placement with a relative who has been considered” under section 361.3 subdivision (e).   Appellant's arguments are meritless.

First, the court did not “delegate its discretion” to place the minor.   The court fulfilled its duty by committing the minor to the Department of Social Services for placement in a “suitable, approved foster home, relative's home or private institution.”   Section 361.3, subdivision (a), delegates the responsibility of determining whether placement with a relative is appropriate to “the county social worker and the court.”  (Italics added.)

Second, the juvenile court did not “deny” placement with the mother's half-brother.   In fact, it declared that for purposes of placement Mr. Isarraras should be treated as an uncle, and gave him “preferential treatment” as required by section 361.3 subdivision (a).   The Youth and Family Services Department had proceeded in getting all necessary information from the Isarraras' in order to conduct a background check;  it was only waiting to receive information on the in-home day care provider and proof of the relationship between Mr. Isarraras and the mother.   The court need not state a reason for something it did not do.

C. There Was No Error in Deferring Reunification Services

 Section 361.5, subdivision (a), states that reunification services are to be provided whenever a minor is removed from a parent's custody.   Exceptions to the rule include where the parent is incarcerated and “the court determines, by clear and convincing evidence, those services would be detrimental to the minor.”  (§ 361.5, subd. (e)(1).)

Appellant is correct that no express statement of detriment to the minor appears on the record.   First, the statute does not require such an express finding.   Second, such a finding is clearly implied from the record, as follows:  “I'm not going to order reunification services at the present time for the father in that there are no services, meaningful services, available in the facility in which he is incarcerated.   The crime for which he is incarcerated (sexual molestation of a child under the age of 7) is one that causes me great concern regarding suitability to parent.   He has no relationship with this child sufficient to cause me to feel that it should be continued at the present time.”  (Italics added) The order itself also indicates that no reunification services were to be provided to the father because of the “crime for which he was convicted.”

Third, appellant was not prejudiced by a lack of an express determination.   Appellant's counsel not only failed to oppose the argument that visitation be denied, he agreed that he didn't think “visits are going to occur while [appellant] is at Folsom in any event.”   Appellant's counsel did argue that “when he is released, I can't see the harm.   You still have to leave the door open to possible unification․”   The juvenile court did just that when it stated that “[u]pon his release, the department may, if requested, move to have services commenced for the father.”   Since the court did not preclude reunification indefinitely and visitation was not possible until appellant's release, he was in no way prejudiced by the lack of express finding.

D. Lack of a Written Stipulation or the Approval of a Superior Court Judge Was Not Necessary

 Appellant argues that under section 249, and rule 1417(b) of the California Rules of Court,2 a commissioner may not remove a minor from the custody of his parents unless she gets the approval of a superior court judge.   Appellant is wrong.

Section 249 and rule 1417(b) state that a “referee,” “not acting as a temporary judge,” may not remove a minor from the custody of the parent without approval from a juvenile court judge.   Neither section 249, nor rule 1417 apply to the case at bench because the person presiding over the hearing, Patricia Bresee, was a commissioner;  not a referee.

Although referees are required to obtain a written stipulation in order to hear a case as a temporary judge, under rule 244(a), commissioners are specifically exempt from this requirement.   Therefore, Commissioner Bresee properly held the position of temporary judge.   Since she was not a referee and she was properly acting as a temporary judge, she was not required to obtain approval from a juvenile court judge under section 249 or rule 1417 and her order was valid.

The order is affirmed.

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code..  FN1. All further statutory references are to the Welfare and Institutions Code.

2.   All further references to “rules” are to the California Rules of Court.

ANDERSON, Presiding Judge.

PERLEY and REARDON, JJ., concur.