IN RE: S.F. et al. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant D.F. (father) challenges a juvenile court order sustaining a Welfare and Institutions Code section 300 ¹ petition against him pursuant to subdivision (g).  He raises three arguments:  (1) There is insufficient evidence to support the juvenile court's finding that he could not provide for his children ² while he was incarcerated, at the time the children were removed from the mother's (S.L., mother) custody and placed with their paternal grandmother.  (2) The juvenile court failed to consider placing the children with him pursuant to section 361.2.(3)  As part of its disposition order, the juvenile court abused its discretion in ordering father to participate in drug rehabilitation and drug testing.

We agree with father that there is insufficient evidence to support the juvenile court's finding that he was unable to arrange for care of his children while he was incarcerated.   We therefore strike the jurisdictional finding against him.   In all other respects, the juvenile court's order is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Detention Report and Section 300 Petition

This family came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in February 2010 following a referral alleging emotional abuse and neglect to the children resulting from father's arrest for drug sales, mother and father's alleged domestic violence, mother's drug use in front of the children, and mother's mental health concerns.   The allegations were substantiated as to mother but deemed unfounded as to father.   Father had been incarcerated at the time of the referral.

Subsequently, DCFS was unable to locate the children from March 2010 until August 13, 2010, when they were found living in the paternal grandmother's home.   The paternal grandmother reported that mother had left the children with her in May 2010, telling the paternal grandmother that she did not want the children in the “system” and that social services was looking for her.   The paternal grandmother was concerned that mother was using crack cocaine and acknowledged that she had received the children from mother with “nothing,” although on two later occasions, mother came by and left some money.

The paternal grandmother needed to get the children enrolled in school, although mother had not provided her with any documentation giving her permission to do so.   The paternal grandmother was able to enroll Dan.F. and S.F. into a school that they previously attended.

At that time, Dan.F. disclosed that he had been sexually abused by an unknown man at mother's residence;  he also reported that S.F. had been victimized by the same man.

Based upon the foregoing, DCFS filed a section 300 petition on behalf of the children.   As against father, the petition contained only one allegation—that father was incarcerated and failed to provide the children with the necessities of life, including food, clothing, shelter, and medical care. (§ 300, subd. (g).)

At the detention hearing on August 18, 2010, the children were ordered detained from mother and father.   The children remained placed with their paternal grandmother.

Jurisdiction/Disposition Report

In its September 20, 2010, report, DCFS indicated that mother had been arrested for car theft and remained incarcerated.

Regarding father, the paternal grandmother said that he called the children on a regular basis from his housing facility and, prior to his incarceration, visited them two to three times a month at her home.   He provided for the children as best as he could.   He denied knowing of the abuse his children endured until the paternal grandmother told him about it.   Before he learned of the sexual abuse, father said that he had not had any concerns about the children being with mother, and he made sure that they had what they needed.

Father was incarcerated for possessing drugs with the intent to sell;  he denied using drugs or alcohol.   He also had a firearm in his possession at the time of his arrest.   He planned to reunify with his children.   He told the social worker:  “I plan to reunify with my kids.   Whatever I can do from here [prison], I will try to do.   I plan to have the children in my care.   My mom ․ is just helping me while I am in here [prison].   I love my kids and they know who their father is.”   Father expected to be released in September 2010.

Mother told the social worker that father provided for the children, gave her money, and bought the children tennis shoes.   She confirmed that father loves his children and tries his best.   According to mother, the family is very close and the paternal family assists with providing for the children.

As of September 8, 2010, DCFS's ASFA (Adoption and Safe Families Act of 1997) division had not yet assessed the paternal grandmother's home and, therefore, she was not receiving financial assistance.   She was willing to continue to care for the children without financial assistance.   But on the social worker's advice, she went to the social services office and requested non-needy caregiver funding;  she received $200 in emergency money.

October 18, 2010, Hearing

At the hearing on October 18, 2010, DCFS reported that because the paternal grandmother was concerned that M.F. may have been exposed to alcohol in utero, the child was referred to the Regional Center to address possible developmental delays.   Additionally, all four children were linked with individual counselors.   Dan.F. also was referred to Stuart House to start sexual abuse counseling.   The children's attorney indicated that he had spoken with the paternal grandmother the previous week and was concerned that her home had not yet been assessed by ASFA for funding purposes.   In response, the juvenile court ordered a report for the next hearing to address the status of funding.

Adjudication Hearing

On November 19, 2010, the juvenile court sustained an amended section 300 petition regarding mother.   The juvenile court also conducted disposition proceedings regarding mother.   Adjudication of the portion of the section 300 petition relating to father was continued at the request of his newly-appointed counsel.

At the continued hearing on February 22, 2011, father argued that the allegations against him should be dismissed, claiming that he had provided for his children prior to his incarceration and that they had not been negatively affected by his incarceration as they had lived with mother and then the paternal grandmother.   DCFS argued that the evidence showed that father had not consistently provided for his children and that he had not made a plan to place the children with the paternal grandmother.

Ultimately, the juvenile court sustained the following amended allegation against father pursuant to subdivision (g) of section 300:  “Based on his incarceration, [father] is unable to provide the children with the necessities of life including food, clothing, shelter[,] and medical care․  Such failure to provide for the children on the part of the father endangers the children's physical and emotional health, safety and well being and places the children at risk of physical and emotional harm and damage.”

As for disposition, the juvenile court ordered father into a substance abuse program, noting that he was in prison for drugs.³  He was further ordered to attend individual counseling, receive services from Planned Parenthood, and comply with the conditions of his parole.   His visitation was ordered to remain monitored.

Appeal

Father's timely appeal ensued.

DISCUSSION

A. Standard of review

As the parties correctly agree, we review the juvenile court's jurisdictional order for substantial evidence.  (In re Cole C. (2009) 174 Cal.App.4th 900, 915–916.)   We review the juvenile court's dispositional orders for an abuse of discretion.  (In re Gabriel L. (2009) 172 Cal.App.4th 644, 652.)  “ ‘The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion.  [Citations.]’ ”  (In re Corrine W. (2009) 45 Cal.4th 522, 532.)   We review for substantial evidence the findings of fact on which dispositional orders are based.  (In re Jasmin C. (2003) 106 Cal.App.4th 177, 180.)

B. Analysis

Section 300, subdivision (g) provides for dependency jurisdiction when:  “The child has been left without any provision for support ․;  the child's parent has been incarcerated ․ and cannot arrange for the care of the child.” (§ 300, subd. (g).)

“There is no ‘Go to jail, lose your child’ rule in California.  [Citation.]  If [father] could arrange for care of [his children] during the period of [his] incarceration, the juvenile court ha[s] no basis to take jurisdiction in this case․  [T]he issue is whether, as of the time of the jurisdictional hearing, [father] could arrange for the care” of his children.  (In re S.D. (2002) 99 Cal.App.4th 1068, 1077–1078;  see also In re Aaron S. (1991) 228 Cal.App.3d 202, 208 [“section 300, subdivision (g) applies when, at the time of the hearing, a parent has been incarcerated and does not know how to make, or is physically or mentally incapable of making, preparations or plans for the care of his or her child”].)

Here, there is no evidence that father could not arrange for care for his children.⁴  At the time of the jurisdictional hearing, the children were residing with their paternal grandmother, and there is no evidence in the appellate record that that placement was inappropriate.   While the paternal grandmother may have sought additional monies from the social services office, there is no indication that she was unable or unwilling to care for the children.⁵

In re S.D., supra, 99 Cal.App.4th 1068 is instructive.   In that case, the offending parent was incarcerated at the time of the jurisdictional hearing.   At that time, she had “two sisters who had expressed an immediate willingness to take [the minor] in the wake of [the mother's] incarceration.   One of them ․ flew out from Missouri to seek custody of [the minor] at the detention hearing, and immediately thereafter took [the minor] back to Missouri with her.   The record strongly suggest[ed that] she remained willing to take [the minor] during the entire pendency of this case.   Those facts alone would be sufficient to compel a conclusion that [the mother] was in a position to arrange for [the minor's] care.”  (In re S.D., supra, at p. 1078.)   Similarly, in the instant case, the children were residing with their paternal grandmother, with whom they had been staying since May 2010.   The paternal grandmother felt able to care for the children, and there did not appear to be any issues that would cause disruption in the placement.

We are not persuaded by DCFS's efforts to distinguish the instant case from In re S.D., supra, 99 Cal.App.4th 1068 and In re Aaron S., supra, 228 Cal.App.3d 202.   DCFS argues that this case is different than those two cases because funding for the children involved was not an issue, whereas that is the critical issue in the instant case.   We disagree.   There is no indication from the appellate record that the paternal grandmother was unable to care for the children.   While she was seeking financial assistance from DCFS and did in fact receive $200 in emergency monies, the appellate record does not suggest that absent such financial aid she was unwilling or incapable of caring for the children.   In fact, she affirmatively stated otherwise.

In urging us to affirm, DCFS relies upon In re Athena P. (2002) 103 Cal.App.4th 617, 629–630.   That case is distinguishable.   In Athena P., while the mother was in prison, she gave birth to a daughter, and she sent her daughter to live with the child's grandparents.   Although the mother attempted to create some kind of formal custody arrangement, she never successfully did.  (Id. at p. 622.)   The dependency court sustained the allegation leveled against the mother pursuant to section 300, subdivision (g), and the Court of Appeal affirmed, reasoning:  “[B]ecause [the mother] left [the child] with the grandparents but failed to give them legal custody, the juvenile court could reasonably find that she was unable to arrange care.   Thus, the juvenile court's finding that it had jurisdiction under subdivision (g) was supported by substantial evidence.”  (In re Athena P., supra, at p. 630.)

In contrast, in the instant case, the children were residing with mother while father was incarcerated.   There is no evidence that father was aware that mother was unable to care for their children.   And, after mother left the children with the paternal grandmother, she assumed the responsibility of caring for the children.   There was no evidence at the jurisdictional hearing regarding father's then-present inability to arrange for care of his children.  (In re Aaron S., supra, 228 Cal.App.3d at p. 210 [“there was simply no evidence before the court directly addressing the question of [the father's] present ability to arrange for [the minor's] care”].)

Although the jurisdictional finding against father is not supported by substantial evidence, we need not reverse the jurisdictional and dispositional orders.   The juvenile court asserts dependency jurisdiction over children, not parents.  (In re Joshua G. (2005) 129 Cal.App.4th 189, 202.)  “[T]he court has jurisdiction over the children if the actions of either parent bring the child within one of the statutory definitions in section 300.”  (Ibid., italics added;  In re Alysha S. (1996) 51 Cal.App.4th 393, 397;  In re J.K. (2009) 174 Cal.App.4th 1426, 1431;  In re A.S. (2009) 180 Cal.App.4th 351, 360–361.)   In this case, mother did not challenge the juvenile court's jurisdictional findings;  therefore, the juvenile court has dependency jurisdiction over the children because mother is an offending parent.   Accordingly, we strike the jurisdictional findings as against father.

We then turn our attention to father's contention that the juvenile court abused its discretion by ordering him to undergo a drug rehabilitation program with testing.   We find no abuse of discretion.   As the juvenile court noted, at the time of the adjudication hearing, father was in state prison for drugs.   It follows that the juvenile court acted well-within its discretion to order that father participate in a drug rehabilitation program with random testing.

In re Jasmin C., supra, 106 Cal.App.4th 177, upon which father relies, is distinguishable.   In that case, “[t]he trial court imposed [a] parenting class condition [on the nonoffending parent] without making any findings or giving any explanation.   Even more troubling, nothing in the record supported the order, which apparently was based on a rote assumption that [the nonoffending party] could not be an effective single parent without parenting classes, something belied by common sense and experience in 21st-century America.”   (In re Jasmin C., supra, at pp.   181–182.)

In the instant case, there was evidence in the record of father's history with drugs.   Father's involvement with illegal drugs supports the juvenile court's implied finding that he and the children would benefit from him attending a drug rehabilitation program.   It follows that the juvenile court acted within its discretion in ordering father to enroll in and complete a drug rehabilitation program with random testing.

DISPOSITION

The juvenile court's order is modified by striking the jurisdictional finding against father.   In all other respects, the juvenile court's order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN–GERST

We concur:

FOOTNOTES

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

FN2. Four children are the subject of this appeal:  S.F. (born Mar. 2005), Dan.F. (born Feb. 2006), Dav.F. (born Aug. 2007), and M.F. (born Aug. 2008)..  FN2. Four children are the subject of this appeal:  S.F. (born Mar. 2005), Dan.F. (born Feb. 2006), Dav.F. (born Aug. 2007), and M.F. (born Aug. 2008).

FN3. Father objected to this portion of the juvenile court's order, arguing that he did not use drugs;  he only sold them..  FN3. Father objected to this portion of the juvenile court's order, arguing that he did not use drugs;  he only sold them.

FN4. Notably, this is the only issue before us.   There is no allegation in the section 300 petition that father was neglectful for leaving the children with mother when he knew that she could not provide them with safe care.   There also is no allegation that father knew about the alleged sexual abuse inflicted upon the children by someone with whom mother was acquainted..  FN4. Notably, this is the only issue before us.   There is no allegation in the section 300 petition that father was neglectful for leaving the children with mother when he knew that she could not provide them with safe care.   There also is no allegation that father knew about the alleged sexual abuse inflicted upon the children by someone with whom mother was acquainted.

FN5. The paternal grandmother stated to the social worker that she was hopeful that father would be able to care for the children after his release from prison.   But, she also stated that if reunification was no longer an option, she would be willing to adopt the children..  FN5. The paternal grandmother stated to the social worker that she was hopeful that father would be able to care for the children after his release from prison.   But, she also stated that if reunification was no longer an option, she would be willing to adopt the children.

_, P.J. BOREN _, J. CHAVEZ