In re D.M.

In re D.M. et al., Persons Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. W.M., Defendant and Appellant.

D078474

California Court of Appeals, Fourth District, First Division

July 16, 2021

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of San Diego County, No J519828A-B Browder A. Willis III, Judge. Reversed and remanded with directions.

Donna Balderston Kaiser, under appointment by the Court of Appeal for Defendant and Appellant.

Caitlin E. Rae, Chief Deputy County Counsel, and Eliza Molk Deputy County Counsel, for Plaintiff and Respondent.

GUERRERO, J.

In this dependency action, the San Diego County Health and Human Services Agency (Agency) filed petitions pursuant to Welfare and Institutions Code section 388^[1] seeking to modify the juvenile court's prior orders placing the minor children (D.M. and S.M.) in their parents' custody. Father (M.W.) appeals from the court's January 4, 2021 orders granting the Agency's petitions and removing the children from his care.^[2] Father raises numerous challenges to the orders, but we only need to consider one to resolve this appeal. We agree with Father's contention that the court abused its discretion by not applying the correct legal standard in granting the Agency's section 388 petitions to remove the children from Father's custody, and we therefore reverse the orders and remand with directions. We need not address Father's remaining arguments regarding the sufficiency of the evidence or his claim that the Agency was required to file its petitions under a different statute (section 342) rather than section 388.

FACTUAL AND PROCEDURAL BACKGROUND

While Father and Mother (G.N.) were in a relationship, they had two sons, D.M., born in 2015, and S.M., born in 2016. In August 2018, the children, then three and two years old, were in Mother's sole physical custody living in a homeless shelter. The Agency received a referral that Mother was an alcoholic, she often left the shelter in the middle of the night (leaving the children unattended), and she returned intoxicated at times. The referral also reported that the children appeared dirty and wore dirty clothing.

A subsequent referral reported that Mother left D.M. and S.M at the shelter at 8:30 p.m. in August 2018, without specifying with whom she was leaving them. Police transported the children to the Polinsky Children's Center (Polinsky) because there was no one caring for them. At midnight, Mother returned to the shelter in an intoxicated state. Mother admitted to the Agency that she had been drinking alcohol and left her sons alone without any adult responsible for their care. Father was upset when he learned Mother had left their sons unsupervised at night. He told the Agency that he had completed a substance abuse treatment program and could not care for the children because he was living in a sober residential facility for adult males only.

In August 2018, the Agency filed section 300, subdivision (b) dependency petitions alleging D.M. and S.M. had suffered, or there was a substantial risk they would suffer, serious physical harm or illness as a result of Mother's failure to supervise them adequately. At their detention hearing, the court found the Agency had made prima facie showings on the petitions and detained the children out of the home at Polinsky or in foster care. Shortly thereafter, Mother entered a residential substance abuse treatment program. The children adjusted well to their placement in a foster home.

In its September report for the jurisdiction and disposition hearing, the Agency recommended that the court find the petitions' allegations to be true, place the children in foster care, and order reunification services for the parents. Mother had completed a substance abuse treatment program and maintained her sobriety while at the program. Father had regular, positive supervised visits with the children. The Agency recommended that Father receive four- to six-hour unsupervised visitation.

At the October contested jurisdiction and disposition hearing, the court found the petitions' allegations true, removed the children from Mother's custody, found there was no noncustodial parent (i.e., Father) able or willing to assume custody of them, and placed them in licensed foster care. The court also approved the Agency's case plans for Mother and Father and ordered reunification services for them.

In its six-month status review report, the Agency stated that both parents had made moderate progress on their case plans. Mother was unemployed and living in a sober living facility. In October 2018, Father had moved into a subsidized two-bedroom apartment. In January 2019, Father began a new job after resigning from an evening job that had prevented him from attending 12-step program meetings. Father progressed to overnight visitation with the children, which initially was only once per week because of his work schedule and then was expanded to Friday and Saturday nights. The children enjoyed their overnight visits with Father. Father had attended some 12-step program meetings, participated in group parenting classes, and had tested negative on a random drug test. Meanwhile, Mother's visits remained supervised. Although Mother had maintained her sobriety, she had been discharged from her outpatient treatment program and she was concerned whether she would be allowed to remain at her sober living facility. Because of her progress, the Agency allowed Mother to have unsupervised visits with the children beginning in March 2019. Her visits with the children were positive and she responded appropriately to their cues and expressed empathy toward them. The Agency reported that Mother had, in effect, moved in with Father (except for weekends when Father had overnight visitation with the children), because she disliked residing at the sober living facility. Mother was participating in therapy and her therapist recommended treatment for depression, citing her expressions of hopelessness and apparent chemical imbalance. Her therapist suggested that she undergo a psychiatric medication evaluation. Mother also reported that she was pregnant. The Agency agreed with the parents' plan to have Mother live with Father during the week, so that she could care for the children while Father worked. The Agency recommended that reunification services be continued for both parents for an additional six months.

In an addendum report, the Agency stated that Mother began weekend overnight visits with the children in May 2019. Although she had maintained her sobriety, she had missed two therapy sessions and stated therapy was no longer serving her needs. In early June, Mother was discharged by her therapist because of excessive absences, and the Agency gave Mother a referral for another therapist.

At the continued six-month review hearing in June 2019, the court found both parents had made moderate progress on their case plans, granted overnight visitation for Mother, and ordered continued reunification services for both parents. The court also gave the Agency discretion to allow the parents to have a 60-day trial visit with the children with the concurrence of the children's counsel.

In its 12-month status review report, the Agency stated that the children began a 60-day trial visit with Mother and Father in late June. Father was working full time and Mother provided care for the children during the day. Although Mother and Father were no longer in a relationship, Mother was pregnant and Father was the other biological parent. Although neither parent had participated in any of their Alcoholics Anonymous or Narcotics Anonymous meetings, both had continued to test negative for drugs. The Agency recommended that the court continue the children as dependents and place them with both Mother and Father with family maintenance services.

In early October 2019, the court conducted the 12-month review hearing. The court continued the children as dependents of the court, found placement with Mother and Father would not be detrimental to them, ordered placement of the children with both parents within a few days after its orders, and ordered the Agency to provide them with family maintenance services. The court found Mother and Father had made adequate progress toward alleviating the causes that led to the children's dependency cases. The court set a family maintenance review hearing for six months later.

In early January 2020, the Agency filed section 388 petitions to modify the court's prior October 2019 orders placing the children with Mother and Father. The petitions alleged that the Agency had received a referral reporting sexual abuse by Father against D.M. in mid-December 2019, and that in forensic interviews in late December, D.M. and S.M. had disclosed sexual abuse by Father. The petitions requested new orders suspending Father's visits with the children pending the outcome of the Agency's investigation and that the court's October 2019 orders be changed from placement with both Mother and Father to placement solely with Mother. In support of its section 388 petitions, the Agency submitted an interim review report, stating it had received a referral alleging that while Father was sitting on the couch and playing video games with one hand, he placed his other hand on D.M.'s penis. As part of a safety plan suggested by the Agency, Father agreed to leave the home until Mother found housing and suspended his visits with the children. Four days later, Mother left with the children to a confidential placement and Father then returned to his apartment. The Agency stated that D.M. and S.M. both disclosed sexual abuse by Father during their forensic interviews....