In re James W.V

71 Cal.Rptr.3d 1

158 Cal.App.4th 1562

In re JAMES W. V. et al., Minors Los Angeles County Department of Children and Family Services, Petitioner, v. Superior Court of Los Angeles County, Respondent; Deshawn W., et al., Real Parties in Interest.

No. B203056.

Court of Appeal, Second District, Division 3.

December 18, 2007.

As Modified January 17, 2008.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Owen L. Gallagher, Principal Deputy County Counsel, for Petitioner.

No appearance for Respondent.

Los Angeles Dependency Lawyers, Inc., Law Office of Timothy Martella, Hermosa Beach, Eliot Lee Grossman, South Pasadena, Trane Martin Hunter, Los Angeles, and Roxanna Alavi, for Deshawn W.

Los Angeles Dependency Lawyers, Inc., Law Office of Barry Allen Herzog, Los Angeles, Ellen L. Bacon and Dennis R. Smeal, for Real Party in Interest James W. IV.

KLEIN, P.J.

The Department of Children and Family Services (DCFS) seeks writ review of an order denying its petition to modify an order of the juvenile court placing three-month-old James W. V in the care of his paternal grandmother. We grant the writ petition and issue a writ of mandate directing the juvenile court to vacate the order placing James W. V in the care of paternal grandmother.

FACTS AND PROCEDURAL BACKGROUND

1. Death of Kay la S.

On the afternoon of September 7, 2007, City of Hawthorne police officers found two-year-old Kayla S. on the floor of her home with her step-father, James W. IV, and his infant son, James W.V. Kayla S. was taken to a hospital where she was determined to be in full cardiac arrest with numerous internal injuries and severe brain injury consistent with shaken baby syndrome. The medical director of the ICU indicated the injuries appeared to have been inflicted within the preceding 12 to 24 hours.¹ Kayla S. had been in the care of James W. IV on September 7, 2007. Based on a handwritten note on the otherwise typewritten police report, it appears James W. IV called Kayla S.'s mother, Deshawn S., not 911, when he found Kayla S. was not breathing. James W. IV indicated Kayla S. recently had complained of stomach pains and she had seen a doctor for a possible hernia. Deshawn S. indicated Kayla S. fell from a couch three weeks earlier but otherwise had suffered no injury. On September 10, 2007, Kayla S. died as a result of her injuries.

2. Dependency petition filed.

On September 12, 2007, DCFS filed a dependency petition with respect to Kayla S.'s half siblings, Jeremiah C, age six years, and James W.V. The petition alleged the non-accidental death of Kayla S. while in the care of Deshawn S. and James W. IV. The detention report indicated Deshawn S. told the CSW that James W. IV cared for Kayla S. while Deshawn S. was at work. The child had been diagnosed as having hernias, she was scheduled to have surgery and had been examined by her regular pediatrician on September 6, 2007.

At the detention hearing, Jeremiah C. was released to his father. The juvenile court continued the matter to permit DCFS to assess paternal grandmother's home for placement of James W.V. Paternal grandmother indicated to the juvenile court she held a valid day care provider license and she lived with her husband and two sons.

DCFS reported that, although paternal grandmother's home otherwise was suitable for the care of James W. V, it recommended the child not be placed with paternal grandmother because Deshawn S. and James W. IV would have unlimited access to the child and might abscond with the child.

3. James W. V released to paternal grandmother.

On September 24, 2007, the juvenile court heard argument on the placement of James W.V. The child's counsel requested placement with paternal grandmother, noting paternal grandmother had never been a care provider for Kayla S., who was not her grandchild. Further, paternal grandmother was willing to comply with any order the juvenile court might make to ensure the safety of James W.V. Over the objection of DCFS, the juvenile court ordered James W. V placed with paternal grandmother.

The juvenile court granted Deshawn S. and James W. IV monitored visits twice a week at a DCFS approved location with a DCFS approved monitor. The juvenile court indicated that, "out of an abundance of caution, [the monitor] should not be" paternal grandmother or her husband.

4. DCFS seeks modification of the custody order.

On October 24, 2007, DCFS filed a petition to modify the juvenile court's custody order and remove James W. V from paternal grandmother's care based on DCFS's assertion paternal grandmother was permitting Deshawn S. and James W. IV to have unmonitored contact with James W.V. The application indicated that on September 26, 2007, police officers interviewed Jeremiah C. at school and he indicated Deshawn S. and James W. IV were residing with James W. V at paternal grandmother's home. However, at a monitored visit conducted on September 27, 2007, Deshawn S. indicated she and James W. IV were living with maternal grandmother.

On October 17, 2007, DCFS social workers made an unannounced visit to paternal grandmother's home and found Deshawn S.'s car parked outside the residence. That same day, DCFS received an anonymous referral indicating Deshawn S. and James W. IV had been overheard bragging they were living with James W. V at paternal grandmother's home. Deshawn S. and James W. IV laughed about seeing the child in an unmonitored setting despite the juvenile court's order.

On October 18, 2007, social workers, accompanied by police officers, again made an unannounced visit to paternal grandmother's home and found Deshawn S.'s car parked in the driveway. Although neither Deshawn S. nor James W. IV was found on the premises, DCFS detained James W.V. Paternal grandmother told the police officers Deshawn S.'s car had been parked in her driveway since the death of Kayla S. on September 10, 2007. However, when the CSW evaluated paternal grandmother's home on September 19, 2007, for placement of James W. V, the car was not there. Also, Deshawn S. and James W. IV drove the car to a DCFS interview on September 25, 2007, and on September 27, 2007, the car was seen in the DCFS parking lot.

On October 19, 2007, maternal grandmother inquired of the CSW what efforts DCFS was making to place James W. V in her care. DCFS noted this question contradicted Deshawn S.'s earlier claim that she and James W. IV were living with maternal grandmother in that the child obviously could not be placed with maternal grandmother if the parents were living there.

DCFS's petition requested modification of the current order and detention of the child because the evidence indicated the parents were having unmonitored visits at paternal grandmother's home.

5. The hearing on the petition.

At the hearing, James W. IV's counsel claimed there was no evidence Deshawn S. and James W. IV were living with paternal grandmother, and DCFS had never bothered to check maternal grandmother's residence, where Deshawn S. and James W. IV claimed to be living. Counsel indicated paternal grandmother may have exaggerated when she said the car had been parked at her home "all the time" and may have meant it was parked there when it was not in use and no one inquired further of paternal grandmother to prevent her statement from being clarified. Father's counsel requested immediate return of the child to paternal grandmother's home.

Before hearing argument from DCFS, the juvenile court indicated there was no evidence Deshawn S. and James W. IV "were actually visiting there at any time. We have this car. And that's it. Is there something else I am missing. If there is, help me." County counsel first indicated Deshawn S. had stated that James W. V had been diagnosed as having the same hernias that Kayla S. suffered shortly before her death. At that point in the hearing, an aunt left the courtroom after bursting out, "I can't stand the lying." When county counsel noted the anonymous referral, the juvenile court indicated it was "unsubstantiated" after DCFS went to the home twice but failed to locate Deshawn S. and James W. IV on either occasion.

County counsel then addressed paternal grandmother's statement about the car being parked in the driveway and indicated it was "very clear and very consistent both with the social worker and with the detective that the car has not been moved. That it has been there [in the driveway], and it is just parked there. Yet the parents have been seen driving the car on several occasions." The juvenile court noted the medical evaluation of James W. V remained outstanding and stated, "I need something tangible. Something I can feel [and] touch. Not a car."

County counsel then mentioned the statement by Jeremiah C. that Deshawn S. and James W. IV were living with James W. V at paternal grandmother's home. The juvenile court reiterated the failure of the authorities to find any evidence that Deshawn S. or James W. IV lived at paternal grandmother's. County counsel again urged the presence of the car in the driveway and Jeremiah C.'s statement was sufficient to detain the child. The juvenile court responded, "The child needs to be returned to the [paternal] grandmother."

DCFS then requested the juvenile court order that neither Deshawn S. nor James W. IV be at paternal grandmother's home for any reason at any time. After Deshawn S. and James W. TV assured the juvenile court they understood the order, the juvenile court denied DCFS's petition to modify the custody order.

7. Proceedings before this court.

On October 24, 2007, DCFS filed the instant petition for extraordinary writ and requested an immediate stay of the juvenile court's order returning James W. V to paternal grandmother's care. By order filed October 25, 2007, we granted the request for a stay and directed DCFS to detain James W. V pending further order of this court. Deshawn S. and James W. IV both have filed opposition to the...