In re Isayah C.

13 Cal.Rptr.3d 198

118 Cal.App.4th 684

In re ISAYAH C., a Person Coming Under the Juvenile Court Law Marin County Department of Health and Human Services, Plaintiff and Respondent, v. Charles C., Defendant and Appellant.

No. A103022.

Court of Appeal, First District, Division 2.

May 12, 2004.

Janet H. Saalfield, Sausalito, for Appellant.

Patrick Faulkner, County Counsel, Michele L. Keno, Deputy County Counsel, for Respondent.

RUVOLO, J.

In this juvenile dependency case, the trial court was faced with a complex family situation involving three children of the same mother, each with a different father. The case was made even more difficult by an unfortunate sequence of events in which the two younger children were removed from the mother, one of whom was placed in his father's custody, after which the father was arrested for a parole violation. At the dispositional hearing, the trial court denied the father's request that he be allowed to retain custody of his son and send him to be cared for by his paternal relatives, at least during his incarceration. Instead, the trial court ordered that both of the younger children be placed with their mother's sister.

On this ensuing appeal, the father argues that the trial court's order was not supported by findings, based on clear and convincing evidence, sufficient to justify removing the child from the father's custody under the applicable statutes. We agree, and accordingly reverse and remand for further proceedings.

I. FACTS AND PROCEDURAL BACKGROUND

Isayah C. is the third child of Tonya K., who is not a party to this appeal. Appellant Charles C. is Isayah's father, but is not the father of either of Tonya's two older children, Ashley J. and Matthew R. At the time of the proceedings in the trial court, Isayah was about two and one-half years old, Matthew was just over seven, and Ashley was nearly eighteen.¹

Tonya has a history of alcohol and substance abuse, and Isayah tested positive for drugs when he was born. Sonoma County Children's Services provided court-ordered services to the family starting shortly after Isayah was born in August 2000. All three children were declared dependents in Sonoma County in February 2001. At the time of the Marin County dependency proceedings from which this appeal was taken, Ashley was in long-term foster care due to Tonya's failure to reunify with her, but Matthew and Isayah were living with Tonya in Marin County. Appellant had successfully completed his reunification plan in the Sonoma County dependency proceeding, and had been awarded joint custody of Isayah, though he and Tonya did not live together.

On February 28, 2003,² a social worker assigned to supervise a visit between Ashley and her brothers found Tonya intoxicated while caring for Isayah and Matthew, and the two boys were removed from Tonya's custody. Isayah was placed with his father on March 3, and Matthew was placed in a foster home.

On March 4, respondent Marin County Department of Health and Human Services (the Department) filed a juvenile dependency petition alleging that Matthew and Isayah came within the provisions of Welfare and Institutions Code section 300, subdivisions (b) and (j).³ The petition alleged that Tonya had a substance abuse problem, and that she had neglected and physically abused Ashley in the past, but it contained no allegations regarding appellant. The Department's detention report, dated March 5, recognized that appellant had provided documentation establishing his paternity of Isayah, but expressed concern that appellant "may also have a substance abuse problem and an unstable lifestyle," and requested a substance abuse assessment of appellant to determine whether services should be provided to him.

At the detention hearing on March 5, appellant's counsel appeared on his behalf, but appellant himself was not present, because (as Tonya explained to the court) he had taken Isayah to the emergency room that morning. The court found that there was substantial danger to the children and detained Isayah in appellant's care, with Matthew remaining in a foster home. A jurisdictional hearing was set for March 25.

The jurisdictional report originally prepared for the March 25 hearing reported that appellant had voluntarily brought Isayah to see a social worker at the Department on March 17. The social worker inspected appellant's trailer home⁴ and reported that appellant was cooperative and that Isayah "looked clean and was well cared for." Appellant told the social worker that he wanted sole custody of Isayah, would allow the worker to evaluate his apartment, and was willing to facilitate visits between Isayah and Matthew.

Later in the day on March 17, however, appellant was arrested because of accusations made against him by Tonya. Isayah was taken to a foster home; the next day, he was transferred to the same foster home as Matthew. On March 19, the Department filed an amended petition alleging that Isayah came within the provisions of section 300, subdivision (g), because appellant "is incarcerated and was not able to make arrangements for the child." The allegations regarding Tonya under section 300, subdivisions (b) and (j) from the original petition were repeated in the amended petition. Although the detention request accompanying the amended petition sought a drug and alcohol evaluation of appellant, the amended petition itself did not plead any factual basis for jurisdiction as to appellant other than his arrest, incarceration, and alleged inability to make arrangements for Isayah's care.

In its detention report dated March 20, the Department recommended that Isayah be detained, but with the Department given the authority to release him if appellant complied with the requested substance abuse evaluation and demonstrated that he could provide a safe and stable environment for the child. The report noted that when Isayah was placed in appellant's custody on March 3, appellant had been asked to remain in contact with Marin County Child Protective Services, but did not make contact until March 17, and that appellant had been encouraged not to bring Isayah to Tonya's apartment because her visits with him were to be supervised. These concerns were not reflected in the amended petition, however, and the detention report noted that when contacted on March 17, appellant had "presented cooperative," and had denied Tonya's allegations that he had threatened her.

A detention hearing on the amended petition was held on March 21. At the hearing, appellant's counsel informed the court that appellant's niece and nephew in Redding, Eric and Paula T., were interested in taking custody of both Isayah and Matthew, or at least Isayah. Appellant contended that his arrest was the result of false charges made against him by Tonya. His counsel indicated that no criminal charges had been filed against him, and appellant noted that although he might face parole violation charges,⁵ he was scheduled to be discharged from that parole on August 3. Tonya's counsel indicated that Tonya's sisters were also interested in taking both boys, even though her sisters were not on good terms with Tonya. Matthew had been placed with one of these aunts, Deirdra B., for 18 months during the course of the previous dependency proceedings in Sonoma County. The court ordered that Isayah remain in the foster home with Matthew pending a jurisdictional hearing, and continued the hearing date, as to both children, from March 25 to April 8.

Prior to the April 8 hearing, the Department filed an addendum to its earlier jurisdictional report. In an interview with the social worker on March 25, appellant had admitted exhibiting poor judgment in going to Tonya's apartment with Isayah, because he knew Tonya's visits with Isayah were supposed to be supervised. It also reported that appellant was very much concerned with Isayah's welfare and wanted to place him with his relatives in Redding, Eric and Paula, with a view to their ultimately adopting him. The social worker went to Redding on March 31 to interview Eric and Paula, and reported that they "were very cooperative and seemed very appropriate for the placement of Isayah," confirming that they wanted to adopt. They already had two children, and Paula was a "stay-home mother" who was about to start a small family day care business.

The social worker also interviewed the boys' maternal aunt, Deirdra, who knew both children and had cared for Matthew for 18 months during the earlier Sonoma County proceedings. She was financially stable, was willing to take both boys and possibly to adopt them, and agreed to look for a larger home than her current studio apartment in order to accommodate the children. The social worker had also talked to Tonya, who stated that she preferred to have the children remain with someone on her side of the family. On April 2 Tonya called the social worker to report that she had lost her apartment, was staying with friends, and would be entering a residential treatment program on April 4.

At the jurisdictional hearing on April 8, the parties requested that the case be referred to mediation, and the court agreed. The court made no change in Isayah's or Matthew's joint foster home placement, and set a contested dispositional hearing for April 25.

The April 25 dispositional hearing began with a discussion among counsel that resulted in an agreement that Tonya would receive additional reunification services, that Matthew and Isayah would remain in their foster home placement pending further proceedings, and that both parents would have visitation.⁶ Appellant and Tonya stipulated that the children had been removed on an emergency basis, and waived their rights to contest jurisdiction. The court found a factual basis for the petition under section 300, subdivisions (b) and (j), but the allegations under section 300, subdivision (g) — the only allegations as to appellant that were pleaded in the amended...