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IN RE TRINITY A., B224840. (2011)

Court: Court of Appeals of California Number: incaco20110202043 Visitors: 10
Filed: Feb. 02, 2011
Latest Update: Feb. 02, 2011
Summary: NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS FLIER, J. The trial court found that it had jurisdiction of Trinity, born in February 2003, and her brother M., born in February 2006, under subdivisions (b) and (g) of Welfare and Institutions Code section 300. 1 In addition, the trial court entered certain dispositional orders, which we set forth below. April, the children's mother, appeals from both orders. We affirm. PROCEDURAL HISTORY Trinity and M. were taken into protective custody by Walnu
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

The trial court found that it had jurisdiction of Trinity, born in February 2003, and her brother M., born in February 2006, under subdivisions (b) and (g) of Welfare and Institutions Code section 300.1 In addition, the trial court entered certain dispositional orders, which we set forth below. April, the children's mother, appeals from both orders. We affirm.

PROCEDURAL HISTORY

Trinity and M. were taken into protective custody by Walnut Sheriff's Department personnel on February 1, 2010. April and the children were at this time living with grandfather and grandmother.2 In 2008, grandfather had been arrested for molesting his daughter Amber (April's sister) in 1990, who was then between 11 and 12 years old.

Grandfather's abuse of Amber was serious and repeated. At the time of his arrest, April and the children were living with grandfather and grandmother; April was told by the Los Angeles County Department of Children and Family Services (DCFS) that she could not continue to live with the grandparents. April moved out but after a while she moved back in with the children. In the interim, she had stayed with her sisters Amber and then Shawn. April had two jobs, she needed childcare and she did not trust anyone other than grandmother with her children. She knew it was a mistake to move back but she trusted that grandmother would not leave the children alone with grandfather. When she moved back in, she asked grandfather to move out but he refused.

There was some evidence that Trinity had been molested by grandfather. She slept in her jeans because she was afraid that someone would come into her bedroom at night and touch her. Trinity was found in the bath tub naked on top of M.. And in 2008 there was a complaint and investigation at school about inappropriate behavior by Trinity with another child.

There were repeated incidents in 2009 when April was careless in her supervision of the children. Illustrative was one incident when she left the children off at Shawn's home when no one was there and another incident when she left the children at the apartment pool unsupervised while she slept in her room.

The children's father was absent from the scene throughout. According to April, he lives in West Samoa.

DCFS filed a section 300 petition on February 4, 2010. On the same day, the trial court found both children to be as described in subdivisions (b) and (g) of section 300. Respectively, these provisions describe a child who is at risk of suffering serious physical harm and a child who has been left without any provision for support. The court found that DCFS had made reasonable efforts to eliminate the need for removal. The children were placed with Shawn (see fn. 2) and her husband. During this hearing, April informed the court that she had moved out of the grandparents' home. The court ordered April to enroll in parenting classes, individual counseling and sexual abuse awareness counseling.

On March 15, 2010, DCFS reported that mother had enrolled in the indicated counseling programs, that she had obtained a restraining order against grandfather and that she was living with grandmother in a two-bedroom apartment that was appropriate for the children. DCFS reported that April understood it had been a mistake to move in with the grandparents. DCFS recommended that the children be returned to April. The court released the children to April.

DCFS made four unannounced visits to April's home and found the children to be well cared for by April and grandmother.

On May 25, 2010, the trial court found it had jurisdiction under subdivision (b) of section 300 in that April had exposed the children to harm and danger by living with grandfather. In addition, the court found it had jurisdiction because the children's father had failed to provide the children with the food, clothing, shelter and medical care, which put the children at risk.

As far as the dispositional orders are concerned, the court ordered counseling for April on how to deal with incestuous relationships and on the need to protect the children. The court ordered individual counseling for the children by a therapist expert in matters of sexual abuse of children. The court also ordered family maintenance services.

Finally, the court transferred the case to Orange County where April resides with the children and grandmother. We are informed that, even though the children were released to April's custody, dependency jurisdiction is still in force, and the Orange County court is overseeing the implementation of the dispositional orders of May 25, 2010.

In this appeal, April contends that DCFS failed to make reasonable efforts to prevent detention on February 4, 2010; that there was no substantial evidence for the jurisdictional finding; and that father's failure to provide for the children cannot be used as a basis for the jurisdictional finding over the children.

Among other arguments, DCFS contends that the appeal is moot.

DISCUSSION

1. Technically, the Appeal Is Not Moot

"An appellate court will not review questions which are moot and only of academic importance, nor will it determine abstract questions of law at the request of a party who shows no substantial rights can be affected by the decision either way." (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054.)

In this case, we have several orders that are still being implemented, and there is, of course, the extant jurisdictional finding. The appeal is therefore not moot.

On the other hand, the children were very speedily restored to April. And it is perfectly obvious that continued counseling of April and the children can only benefit them, as is true of the family maintenance services. Given the history of this family, there is every reason to provide April and the children with all the support that the system can give them. Taking into consideration what is actually being done for April and the children, there is very little, if any, sense to this appeal.

We do not wish to curtail anyone in the enjoyment of their rights, one of which is the right to appeal the orders of May 25, 2010. But the truth of the matter is that throughout February-May 2010 everyone, including the trial court, acted with this family's best interests in mind and, we might add, took actions that were in all respects insightful, appropriate and necessary. We consider the points on appeal in that light.

2. There Was Ample Evidence That Supported the Decision to Detain the Children

Trinity's rather hair-raising conduct was an ominous indication that grandfather had done his worst. But it was April who made the decision, which she admitted was mistaken, to move back in with grandfather. To decide to live with a seven-year-old girl and her younger brother under the same roof with a man who seriously and repeatedly molested his own child is nothing short of reckless. That was, in any event, the judgment of the Sheriff's Department when it took the children into protective custody. It is patent that the trial court could do nothing other than what it did do on February 4, 2010.

To claim, as appellant does, that DCFS should have spent time investigating alternatives to detention, is specious. It was immediate action that was required, not an "investigation" as there was nothing to investigate. The fact that mother reported that she had moved out meant very little because she had a record of moving right back. In other words, immediate action had to be taken and some time had to elapse in order for the situation to stabilize. That is exactly what was done.

3. There Was Substantial Evidence to Support the Jurisdictional Finding

One is somewhat staggered by the argument that "there was no evidence demonstrating that mother posed a substantial risk of present or future harm to the children at the time of the jurisdictional hearing." April's reckless decision to move back in with grandfather exposed the children, and particularly Trinity, to a very dangerous man.

Appellant contends that she had complied with all of DCFS's concerns at the time of the jurisdictional hearing and that for this reason the court should not have asserted jurisdiction over the children. We do not agree. The fact that over time after February 4, 2010, April took the correct steps and was compliant with the orders of the court is to her credit, but it does not mean that she did not need additional counseling and help. It is clear that the specter of abuse has haunted April's family for a long time; there are no quick fixes in such cases. Counseling will take time. The trial court reasonably could have concluded that April's good start is not a reason to abort what may be a lengthy process.

4. Father's Abandonment of the Children Is a Germane Consideration

Appellant contends that the court erred in basing jurisdiction on father's abandonment of the children in 2006; she contends this was not a cause of the difficulties April and the children found themselves in when the court asserted jurisdiction over the children in February 2010.

April was holding down two jobs but felt constrained to return to the grandparents' home. It is clear that she was struggling. Both from a human and practical perspective, it is rather obvious that had there been a steady bread-winner in the role of a father and husband, April would have been less likely to return to the grandparents' home. The court quite correctly identified one of the important causes of the troubles that overwhelmed April and the children, which was father's absence and neglect of his children.

DISPOSITION

The orders are affirmed.

We concur:

RUBIN, Acting P. J.

GRIMES, J.

FootNotes


1. All further statutory references are to the Welfare and Institutions Code.
2. We will continue to refer to "grandfather" and "grandmother"; April, Amber and Shawn are their daughters.
Source:  Leagle

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