Filed 1/16/15 In re David F. CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re DAVID F., a Person Coming Under the
Juvenile Court Law.

STANISLAUS COUNTY COMMUNITY                                                                F069641
SERVICES AGENCY,
                                                                                 (Super. Ct. No. 516988)
         Plaintiff and Respondent,

                   v.                                                                    OPINION
JOHN F.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from orders of the Superior Court of Stanislaus County. Ann Q.
Ameral, Judge.
         Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant
and Appellant.
         John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P.J., Peña, J. and Smith, J.
          John F. appeals from the juvenile court’s dispositional order removing his infant
son, David, from his custody. (Welf. & Inst. Code, § 361.)1 John contends the evidence
does not support the court’s findings that the Stanislaus County Community Services
Agency made “reasonable efforts” to prevent David’s removal and that there were no
“reasonable means” to protect David other than removing him from John’s custody. We
affirm.
                      PROCEDURAL AND FACTUAL SUMMARY
          In March 2014, the Stanislaus County Community Services Agency (agency)
received a report that Sabrina, John’s girlfriend, gave birth to David and that Sabrina
tested positive for methamphetamine. David did not test positive for any illicit
substances. The reporter informed the agency that Sabrina had four other children who
were not in her custody, she was homeless, and that she was not bonding with David.
          Angela Kelley, the emergency response social worker, conducted a background
search of John and Sabrina. Kelley learned that Sabrina had four children ranging in age
from four to 12 years of age. Sabrina received voluntary family maintenance services for
approximately six months in 2008, but left the family and did not complete the services.
The children’s father moved out of the county with the children. Kelley also learned that
Sabrina was on probation for petty theft and that John had multiple active probation cases
and was released approximately a week before David’s birth after serving a six-month
jail term.
          On March 3, 2014, Kelley interviewed John and Sabrina at the hospital. Sabrina
denied having substance abuse problems and said her petty theft charge was the result of
stealing a shirt. John said his criminal activity was not as serious as it had been in the
past. Kelley expressed concern that John and Sabrina were not bonding with David and
they did not have stable housing. They offered no explanation for not visiting or feeding

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


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David but John said that his mother agreed to let them live with her. John’s mother
denied this. John said they could probably stay with a friend and asked if they could stay
in a motel. Kelley told him it was probably not going to be appropriate and said she
would follow up with them the next day. She gave them a list of layette items they would
need for the baby. She drug tested John and he tested negative.
       The following day, Kelley took David into protective custody and filed a
dependency petition on his behalf under section 300, subdivision (b) (failure to protect),
after John and Sabrina had not arranged for housing and had only obtained a car seat.
The petition alleged nine counts, including two counts alleging John’s multiple arrests
and active probation cases placed David at a substantial risk of neglect.
       In March 2014, the juvenile court ordered David detained pursuant to the petition
and set the jurisdictional hearing for the first of April. The agency placed David with his
paternal grandmother and provided John and Sabrina referrals for parenting classes,
individual counseling, and substance abuse assessments.
       In April 2014, the juvenile court continued the jurisdictional hearing until the end
of April, combined it with the dispositional hearing, and set it as a contested hearing. In
its report for the combined hearing, the agency reported that John was incarcerated and,
according to his mother, had a history of being in and out of custody. In addition, he had
not obtained housing or any layette items for David, and he and Sabrina had not
participated in any of the services offered to them. Under the “Reasonable Efforts”
section of its report, the agency identified the referrals given to John and Sabrina and
stated they had not followed through on their referrals. The agency did not consider John
and Sabrina viable resources for David and recommended the court sustain the petition,
remove David from their custody, and offer them reunification services.
       In April 2014, John appeared at the contested hearing and his attorney made an
offer of proof that from July through December 2013, John completed a parenting
program, relationship classes, and Celebrate Recovery while he was incarcerated. He


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also completed a drug treatment program twice during that same time period. He was
incarcerated for receiving stolen property and expected to be released in October 2014 or
sooner. In addition, he visited David three times in the hospital and he and Sabrina had
diapers, a car seat, and other layette items for David. The court accepted John’s offer of
proof. Sabrina did not personally appear and her attorney said he had not heard from her
since the detention hearing. The court noted that a bench warrant had been issued for her
arrest. Sabrina’s attorney made an offer of proof that she would deny the allegations in
the petition. The court accepted her offer of proof and no other evidence was presented.
       John’s attorney (counsel) argued the agency failed to prove that John posed a risk
of harm to David, noting there was no evidence John used drugs after his release from
jail. Counsel also argued that the agency failed to make reasonable efforts to prevent
removing David from John’s custody such as providing John referrals for housing. In
addition, counsel argued John had a right to make appropriate placement of David while
he was incarcerated. Counsel asked the court to dismiss the petition and allow David to
remain with his paternal grandmother.
       County counsel argued that dismissing the petition would allow John or Sabrina to
take custody of David from his paternal grandmother without ever demonstrating that
they could safely parent him.
       At the conclusion of the hearing, the juvenile court sustained the petition without
modification and adjudged David a dependent child. The court also found that the
agency made reasonable efforts to prevent removing David and there were no reasonable
means to protect him without removing him from John and Sabrina’s custody. The court
ordered David removed from parental custody, ordered reunification services for John
and Sabrina, and set a six-month review hearing.
       This appeal ensued.2

2      Sabrina did not file an appeal.


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                                          DISCUSSION
       John contends the juvenile court erred in removing David from his custody
because there was no evidence the agency made reasonable efforts to prevent David’s
removal. Specifically, he argues Kelley should have given him a referral for housing
instead of expecting him to find a home on his own in 24 hours. John also contends the
juvenile court’s removal order was error because there was an alternative to removal; i.e.
dismissing the petition and placing him in legal guardianship with his paternal
grandmother.
       In order to address John’s claims of error, we must clarify the term “removal” in
the dependency context and how we will construe John’s contention on appeal in light of
how he set forth his argument.
“Removal”
       The word “removal” is often used to describe the physical taking of a child from
parental custody pursuant to a protective custody warrant. In actuality, that “removal”
involves law enforcement and the agency taking temporary custody of the child because
law enforcement has determined that the child’s circumstances may bring the child within
the juvenile court’s jurisdiction under section 300. (§ 305.) To be accurate, the physical
removal should be referred to as “taking the child into protective custody.” Before taking
the child, the agency must consider whether there are services available to the parent that
would eliminate the need to physically remove the child from the home. If the agency
removes the child, it must file a section 300 petition within 48 hours, excluding
nonjudicial days, or release the child to parental custody. (§ 313, subd. (a).) If the
agency files a petition, the juvenile court must conduct a detention hearing no later than
the next judicial day following the filing of the petition. (§ 315.)
       At the detention hearing, the juvenile court determines whether the petition sets
forth a prima facie showing that there is a need for continued detention. (§ 319, subd.
(b).) Section 319 governs the detention hearing and requires the juvenile court to


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determine whether “reasonable efforts” were made to prevent or eliminate the need for
physical removal of the child from the home and whether there were “reasonable means”
other than removal to protect the child. (§ 319, subds. (b)(1) & (d)(1).) If the court
determines that continued out-of-home custody is warranted, the court orders the child
“detained.” (§ 319, subd. (e).)
       Once the juvenile court determines that the child is described under section 300, it
may issue an order at the dispositional hearing removing the child from parental custody
into the care and custody of the supervising agency pursuant to section 361, subdivision
(c). (§ 361.2, subd. (e).) Prior to doing so, the juvenile court must determine whether
“reasonable efforts” were made to prevent the child’s removal and whether there were
alternative means to prevent it. (§ 361, subds. (c)(1) & (d).)
       In arguing that the agency failed to make reasonable efforts to prevent removal,
John faults the agency for removing David from his custody at the hospital simply
because John was unable to obtain housing by the next day. He contends the agency
should have provided him a referral for housing and its failure to do so was a failure to
make reasonable efforts to prevent David’s removal. John does not, however, argue that
the juvenile court erred in detaining David in protective custody at the detention hearing
or develop an argument under section 319, the detention statute. Rather, he contends the
juvenile court’s removal of David was error under section 361, the statute governing the
dispositional order removing a child from parental custody. In addition, John cites In re
Ashly F. (2014) 225 Cal.App.4th 803 (Ashly F.) in which the appellate court concluded
there was insufficient evidence to support the juvenile court’s removal order under
section 361, subdivision (c)(1) and reversed. We thus construe John’s “reasonable
efforts” argument as pertaining to the juvenile court’s application of section 361 rather
than section 319. To the extent John sought to challenge the court’s “reasonable efforts”
finding under section 319, we conclude he abandoned that argument for failure to
develop it. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.)


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Section 361
       A juvenile court cannot remove a child from parental custody without first finding
the supervising agency made reasonable efforts to prevent the child’s removal and there
were no reasonable means short of removal to protect the child. Section 361, the
governing statute, provides in relevant part:

              “(c)(1) A dependent child may not be taken from the physical
       custody of his or her parents ... with whom the child resides at the time the
       petition was initiated, unless the juvenile court finds clear and convincing
       evidence ... : [¶] ... [that there] is or would be a substantial danger to the
       physical health, safety, protection, or physical or emotional well-being of
       the minor if the minor were returned home, and there are no reasonable
       means by which the minor’s physical health can be protected without
       removing the minor from the minor’s parent’s ... physical custody.
       [¶] … [¶]

               “(d) The court shall make a determination as to whether reasonable
       efforts were made to prevent or to eliminate the need for removal of the
       minor from his or her home .… The court shall state the facts on which the
       decision to remove the minor is based.”
       “On appeal from a dispositional order removing a child from a parent we apply the
substantial evidence standard of review, keeping in mind that the trial court was required
to make its order based on the higher standard of clear and convincing evidence.” (Ashly
F., supra, 225 Cal.App.4th at p. 809.)
“Reasonable Efforts” and Ashly F.
       John contends the agency failed to make reasonable efforts to prevent David’s
removal. He likens the facts in this case to those in Ashly F., supra, 225 Cal.App.4th
803, in which the appellate court reversed the dispositional order for lack of substantial
evidence because the record included no discussion of reasonable efforts to avoid the
removal of two children from their parents. (Id. at p. 809.) In our view, Ashly F. is not
even remotely similar to this case.
       In Ashly F., a mother physically abused her children. The Los Angeles County
Department of Children and Family Services (DCFS) took them into protective custody


                                                7
and the juvenile court exercised its dependency jurisdiction and ordered them removed
from both parents. In its reports for the detention and dispositional hearings, the DCFS
stated, without citing any evidence, that it made “reasonable efforts” to prevent the
children’s removal and there were no “reasonable means” to protect them short of
removal. By the dispositional hearing, the mother had admitted her misconduct,
completed services, and moved out of the home. The juvenile court ordered the children
removed without inquiring what services or alternatives the DCFS considered and
rejected before recommending the children’s removal. (Ashly F., supra, 225 Cal.App.4th
at pp. 805-808.) In reversing, the appellate court concluded the DCFS’s assertions that it
made “reasonable efforts” and there were no “alternative means” were “perfunctory,” the
juvenile court simply repeated the DCFS’s assertions and that there were reasonable
alternatives to removal, including having the mother remain out of the home. (Id. at pp.
809-810.)
       In this case, there was no option but to remove David from John’s custody. John
and Sabrina were homeless, John was incarcerated, and Sabrina’s whereabouts were
unknown. In addition, they had significant problems to overcome before David would be
safe in their custody and they had not even begun to utilize the services offered to them.
Unlike the DCFS in Ashly F., this agency identified the efforts it made to prevent David’s
removal (i.e., the services offered) and the instant juvenile court considered that evidence
and stated its reasoning for ordering David removed.
       We conclude substantial evidence supports the juvenile court’s finding that the
agency made reasonable efforts to prevent David’s removal.
Guardianship as an Alternative to Removal
       John contends an alternative to removing David from his custody was to declare
the paternal grandmother David’s guardian, dismiss the petition, and place him with her.
While the juvenile court may appoint a legal guardian for a child at the dispositional
hearing, John fails to show how that was an option in this case.


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       Section 360 allows the juvenile court to appoint a legal guardian if it determines
legal guardianship is in the best interest of the child. (§ 360, subd. (a).) However, there
are prerequisites for doing so, which John does not address. For example, the legal
guardian must be assessed and the parents must forgo reunification services. (Ibid.)
There is no evidence the paternal grandmother was interested in or had been assessed for
legal guardianship or that John and Sabrina were willing to relinquish their right to family
reunification services. Consequently, contrary to John’s contention, it was not an
alternative to removing David.
       We conclude substantial evidence supports the juvenile court’s order removing
David from John’s custody and affirm.
                                         DISPOSITION
       The judgment is affirmed.




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