Filed 7/16/21 W.M. v. Superior Court CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
W.M., D078633
Petitioner,
(Super. Ct. Nos. J519828A-B)
v.
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Browder A. Willis III, Judge.
Petition granted; stay vacated.
Dependency Legal Services of San Diego and Melissa A. Chaitin for
Petitioner.
No appearance by Respondent.
Caitlin E. Rae, Chief Deputy County Counsel, and Eliza Molk, Deputy
County Counsel, for Real Party in Interest San Diego County Health and
Human Services Agency.
By petition for extraordinary writ pursuant to California Rules of
Court, rule 8.452, Father (W.M.) challenges the juvenile court’s February 17,
2021 orders granting the petitions filed by the San Diego County Health and
Human Services Agency (Agency), pursuant to Welfare and Institutions Code
section 387,1 as to his sons (D.M. and S.M.). The court’s orders sustained the
Agency’s allegations regarding the children’s mother, G.N. (Mother); found by
clear and convincing evidence that the children should continue to be
removed from Mother pursuant to section 361, subdivision (c); found
placement with Father would be detrimental to them; terminated services for
both Mother and Father; and set a section 366.26 permanency planning
hearing for the children.
In his appeal of the court’s prior January 4, 2021 orders granting the
Agency’s section 388 petitions (case No. D078474), which we considered
together with this writ petition, Father separately argued that the court
reversibly erred by applying an incorrect legal standard of proof in deciding
the section 388 petitions and removing the children from his physical custody
in violation of section 361, subdivision (c)’s requirements. In In re D.M.
(July 16, 2021, D078474) [nonpub. opn.] (D.M.), issued concurrently with our
opinion in this case, we agreed with this portion of Father’s argument on
appeal and reversed the court’s January 4, 2021 orders.
In the instant petition, Father contends that the juvenile court’s
February 17, 2021 orders are erroneous, presumably to the extent they
1 All statutory references are to the Welfare and Institutions Code.
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pertain to him, because they were based on its January 4, 2021 findings and
orders, which were erroneously made. We agree with Father that writ relief
is warranted in this case and issue a peremptory writ of mandate directing
the court to vacate its February 17, 2021 orders granting the section 387
petitions and enter new orders as directed.
FACTUAL AND PROCEDURAL BACKGROUND
Because we consider this case together with Father’s appeal in case
No. D078744, we incorporate our discussion of the factual and procedural
background from that case.2 We provide a condensed summary here and
refer the reader to our opinion in D.M., for a more extensive discussion.
In August 2018, the Agency filed section 300, subdivision (b)
dependency petitions for D.M. and S.M., alleging they 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 the October contested jurisdiction and disposition hearing, the court
found true the petitions’ allegations, 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. The Agency
2 This court also issued an order on April 16, 2021, stating we would
consider the records in both cases together.
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recommended that reunification services be continued for both parents for an
additional six months.
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 that the parents continue
receiving reunification services. 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. The Agency recommended that the court continue the children as
dependents and place them with both Mother and Father with family
maintenance services.
In 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 order,
and ordered that the Agency provide them family maintenance services.
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. disclosed sexual
abuse by Father. The Agency requested new orders suspending Father’s
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visits with the children pending the outcome of the Agency’s investigation
and that the court’s October 2019 order be changed from placement with both
Mother and Father to placement solely with Mother.
The court found the Agency made prima facie showings on its
section 388 petitions, suspended Father’s visits with the children, detained
the children solely with Mother, gave the Agency discretion to return their
placement to Mother and Father, and set a contested hearing date on the
section 388 petitions.
In July 2020, the court ordered that Father have short supervised visits
with the children. In an August addendum report, the Agency stated that
the children’s visits with Father had gone well, and Mother had not observed
any negative behaviors after their visits with him.
In early October 2020, the Agency filed section 387 supplemental
petitions on behalf of the children, alleging that Mother had expressed she
could no longer care for the children and requested their placement in foster
care. The Agency recommended that the children be detained in foster care
and that they not be placed with Father because of concerns regarding sexual
abuse and because he had not mitigated that protective issue.
At the detention hearing on the section 387 petitions, the court
detained the children in foster care, and vacated the date for the contested
hearing on the section 388 petitions to trail the jurisdiction and disposition
hearing on the section 387 petitions. In its subsequent October 2020
jurisdiction and disposition report, the Agency recommended that the court
sustain the section 387 petitions and find, by clear and convincing evidence,
that D.M. and S.M. should continue to be removed from the custody of their
parents pursuant to section 361, subdivision (c). It further recommended
that the court find placement with their parents would be detrimental to the
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children. The Agency recommended that the court place the children in
foster care, terminate the parents’ services, and set a section 366.26
permanency planning hearing for the children. The court ultimately
continued the contested section 387 jurisdiction and disposition hearing, as
well as the contested section 388 hearing, until early January 2021.
At the January 4, 2021 contested hearing, the court initially continued
the hearing on the section 387 supplemental petitions and then proceeded
with the contested hearing on the section 388 modification petitions.
Applying a preponderance of the evidence standard, the court granted the
Agency’s section 388 petitions and effectively removed the children from
Father. The court placed the children solely with Mother pending further
court orders, although they were to remain with their current foster parents
until Mother had sustainable housing.
Father timely filed a notice of appeal challenging the January 4, 2021
orders granting the section 388 petitions. In D.M., we concluded the juvenile
court erred by applying an incorrect standard of proof in deciding the
section 388 petitions, reversed the orders, and remanded with directions.
On February 17, 2021, the court held the contested hearing on the
Agency’s section 387 supplemental petitions. The court ordered that the
children continue to be removed from Mother pursuant to section 361,
subdivision (c), found that placement with Father would be detrimental to
them, ordered that the reunification services for both Mother and Father be
terminated, and set a section 366.26 permanency planning hearing for the
children.
Father timely filed the instant writ petition challenging the court’s
February 17, 2021 orders. Father requested that we issue a stay of the
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section 366.26 hearing. On June 4, 2021, we issued a stay of that hearing,
pending the finality of our decisions in case Nos. D078474 and D078633.
DISCUSSION
Father contends the juvenile court erred by issuing its February 17,
2021 orders terminating his reunification services and setting a
section 366.26 hearing for the children because those orders were based on
erroneous findings and orders at the January 4, 2021 hearing on the Agency’s
section 388 petitions. The Agency responds that the court, in effect, cured its
errors at the January 4, 2021 hearing by making the necessary section 361,
subdivision (c) findings—by clear and convincing evidence—at the
February 17, 2021 hearing on the section 387 petitions. We agree with
Father.
A
As we concluded in D.M., supra, the juvenile court erred by applying an
incorrect standard of proof in deciding the section 388 petitions at the
January 4, 2021 hearing, requiring this court to reverse those orders and
remand with directions. Specifically, we concluded the court did not apply
the standard of proof under section 361, subdivision (c) for removal of a child
from his or her custodial parent, which requires the Agency to prove, by clear
and convincing evidence, there is or would be a substantial danger to the
physical health, safety, protection, or physical or emotional well-being of the
children if they are returned to Father’s physical custody, and there are no
reasonable means by which their physical health could be protected without
removing them from Father’s physical custody. (D.M., supra, D078474, at
pp. 10-11, 19.)
Contrary to the Agency’s assertion, the court did not apply the
section 361, subdivision (c) standard of proof as to Father when it issued its
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February 17, 2021 orders approving the Agency’s section 387 petitions.
Although the record shows the court may have initially indicated it would
make the requisite findings under section 361, subdivision (c) regarding both
Mother and Father, it ultimately made those findings only regarding Mother.
Prior to the section 388 hearing (on January 4, 2021) and the section 387
hearing (on February 17, 2021), the Agency had recommended that the court
find, by clear and convincing evidence, that D.M. and S.M. should continue to
be removed from the custody of their parents pursuant to section 361,
subdivision (c) because there was or would be a substantial danger to their
physical health, safety, protection, or physical or emotional well-being if they
were returned home and there were no reasonable means by which their
physical health could be protected without removing them from their parents’
physical custody.3 The Agency further recommended that the court find
placement with the parents would be detrimental to the children.4 The
Agency continued to make the same recommendations in its December 2020
addendum report, two January 2021 addendum reports, and its February
2021 addendum report.
At the February 17, 2021 hearing on the section 387 petitions, the court
received in evidence the Agency’s reports and heard the testimony of Mother
and Agency social worker Arantxa Buenrostro. In closing argument, the
Agency’s counsel requested that the court follow its recommendations, adding
that counsel had “several changes to them when the court is ready after the
court makes [its] ruling.” The court noted, among other things, that it had
3 These recommendations are contained in No. 9 of the Agency’s October
2020 jurisdiction and disposition report for its section 387 petitions.
4 This recommendation is contained in No. 17 of the same report.
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considered the evidence showing Father had sexually abused D.M. and S.M.
and that the children had expressed trauma associated with that abuse in the
prior month. The court found further reunification services for Father would
not enable him to protect the children and ordered that his reunification
services be terminated. The court initially indicated that it would adopt the
recommendations in the Agency’s October 2020 jurisdiction and disposition
report and, in particular, that there was clear and convincing evidence that
the children “should continue to be removed from the parents as to [sic] the
substantial risk that exists.” (Italics added.) However, the Agency’s counsel
immediately interjected and stated that “before the court gets going” the
Agency had certain changes to its original recommendations. The Agency’s
counsel then specified those changes, stating: “[No. 9] should be removal
from ‘the mother,’ not ‘the parents.’ ” Likewise, the Agency’s counsel stated
that “[i]n [No.] 17 that the court delete ‘parents’ and replace [it] with ‘father.’
Placement with the father would be detrimental.” The court accepted those
changes, stating, “All right.” The Agency’s counsel then submitted the
matter, noting that its October 2020 report “was written quite a while ago.”
After hearing the Agency’s changes, the court stated it was “adopt[ing]
the [Agency’s] recommendations with the following modifications: [No.] 9 is
modified to delete ‘parent[s]’ [and] inserting ‘mother.’ . . . [No.] 17 is modified
to delete ‘parents.’ Placement with ‘father’ would be detrimental to the
children. The children are placed in licensed foster care. [¶] The
court[-]mandated reunification services are terminated.” The court adopted
the Agency’s remaining recommendations and set a section 366.26
permanency planning hearing for June 16, 2021.
The court’s minute orders for the February 17, 2021 hearing reflect the
court’s findings sustaining the Agency’s section 387 petitions and its adoption
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of the Agency’s recommended findings from its October 2020 report, as
modified at the hearing. In particular, the orders state:
“There is clear and convincing evidence [D.M./S.M.] should
continue to be removed from the custody of [M]other
pursuant to . . . section []361[, subdivision ](c) for the
following reason(s): There is or would be 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 [Mother’s] physical custody.
[¶] . . . [¶]
“Placement with the [F]ather would be detrimental to
[D.M./S.M.].”
The orders then reflect that the court terminated Mother’s and Father’s
reunification services and set a section 366.26 permanency planning hearing
for D.M. and S.M. for June 16, 2021.
B
Contrary to the Agency’s proffered interpretation of the record, there is
only one reasonable interpretation of the juvenile court’s findings and orders
at the February 17, 2021 hearing. Specifically, the court made its
section 361, subdivision (c) finding, by clear and convincing evidence, only as
to Mother. The excerpts from the reporter’s transcript and clerk’s transcript,
as quoted above, confirm that the court did not make any section 361,
subdivision (c) finding as to Father at the February 17, 2021 hearing. At
most, the court found it would be detrimental to the children if they were
placed with Father. However, that finding was not made either by clear and
convincing evidence or by application of section 361, subdivision (c)’s
standard of proof. Absent a section 361, subdivision (c) finding, by clear and
convincing evidence, at either the February 17, 2021 hearing or the previous
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January 4, 2021 hearing (as discussed in D.M.), the court’s February 17, 2021
orders were erroneous to the extent they related to Father and his physical
custody of the children. Because the court erred by terminating services for
Father and setting a section 366.26 permanency planning hearing for the
children without the required findings as to Father, we conclude Father’s
petition should be granted.
DISPOSITION
Let a peremptory writ of mandate issue directing the trial court to
vacate its February 17, 2021 orders and enter new orders consistent with this
opinion and our opinion in D.M. The stay issued on June 4, 2021 is vacated
upon finality of those opinions as to this court. (Cal. Rules of Court,
rule 8.490(b)(2).)
GUERRERO, J.
WE CONCUR:
IRION, Acting P. J.
DO, J.
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