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In Re V.M., A Person Coming Under the Juvenile Court Law. v. V.M

December 22, 2010

IN RE V.M., A PERSON COMING UNDER THE JUVENILE COURT LAW. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
v.
V.M., DEFENDANT AND APPELLANT.



Appeal from an order of the Superior Court of Los Angeles County. Marilyn Martinez, Commissioner. Reversed and remanded with instructions. (Los Angeles County Super. Ct. No. CK 79106)

The opinion of the court was delivered by: Grimes, J.

CERTIFIED FOR PUBLICATION

INTRODUCTION

The trial court was not justified in asserting dependency jurisdiction over the child in this case, who had never been abused or neglected by anyone. The child, V.M., came to the attention of the Department of Children and Family Services after her father asserted his right to custody of his daughter, seeking to gradually remove the child from the only home she had ever known where she lived with her maternal grandparents after her mother's death.

V.M. was seven years old when she twisted her ankle at school and stayed home for a week. Her father, wondering why his daughter was not in school (her grandparents having told him nothing about the injury) went to her school to inquire. The principal had known the family for years and recognized him as V.M.'s father. The principal told father how his daughter sprained her ankle and encouraged him to visit V.M., who was back in school. After that, father went to the grandparents' home to make arrangements to take custody of her; the grandparents did not cooperate; father called for police assistance; and soon thereafter, the grandparents hired a lawyer to file a probate case to have themselves declared V.M.'s legal guardians. They also made a report of child abuse to the Department.

Maternal relatives reported father abused alcohol regularly and always during his rare visits with his daughter. They reported father saw V.M. no more than twice a year, and he ignored his daughter to drink himself into oblivion with his second wife and friends. They reported that during a recent visit, father got drunk, left his daughter locked in his truck for half an hour to drink some more and then, when his adult son discovered the child locked and sobbing in his truck, drove her home in an intoxicated state. Needless to say, this report prompted the full intervention of the Department, with interviews and evaluations by social workers, doctors, and psychologists, referrals for further evaluations, drug and alcohol testing, and extensive interviews of family, friends, neighbors, school officials, and others.

In the end, however, after a contested jurisdictional hearing, the dependency court struck all the allegations of alcohol abuse, including the allegation that father had left V.M. locked and alone in his truck. That left no allegations by the Department to support jurisdiction over the child, who clearly did not want to leave her grandparents to go live with a father she felt she barely knew. So the dependency court amended the allegations on its own motion based on the finding that father had "abdicated his role of father for his daughter all her life."

In short, the ruling resulted in the child being suitably placed with her grandparents, and put a father who had never harmed his child at risk of losing parental rights if he did not fulfill all court orders recommended by the Department. The court's assertion of dependency jurisdiction in this case was an abuse of discretion, and we reverse with instructions that the dependency proceeding be dismissed. We express no view as to whether probate proceedings may be appropriate to determine whether the grandparents should be declared the child's guardians. We simply hold the dependency court cannot assert jurisdiction where there is no evidence of parental abuse or neglect.

BACKGROUND

Father married V.M.'s mother in 1997. They separated in 2002, shortly after V.M. was born. V.M. has lived with her maternal grandparents all her life. V.M.'s mother died in 2006, and father remarried shortly thereafter. Father's wife (stepmother) testified that she had lived with father seven years and been married to him for three years at the time of the jurisdictional hearing. She has children ages nine and 18 who live with her and father. She is a job instructor for the developmentally disabled, teaching skills for independent living. Stepmother has known father's children for seven years; she was living with him when their mother was still alive. During those seven years, father's children visited father at the home where he lives with stepmother about once a month, until June 2009. V.M. did not stay overnight on these visits but spent a weekend day with her father and his family. During these visits, V.M. was always smiling and played with her father and with her nine-year-old stepbrother, with no sign of being afraid. She was happy with father and stepmother and felt at home.

In October 2008, father bought a four-bedroom house so that his wife, her children and father's children could live comfortably together. Father began asking the grandparents for more visits with V.M. because he wanted her to become closer to him so she would want to come live with him. He told the Department he understands V.M. is very attached to her grandparents and he does not want to take that away, but he wants to raise his daughter. Father said he was willing to make a plan with the maternal relatives to see V.M. often. Father testified that early in 2009, V.M.'s grandmother began making excuses why V.M. could not visit: for example, V.M. had a cold, or a stomach ache, or a toothache, or she had to go shopping, or she had a doctor's appointment.

In September 2009, father wanted to know for himself why V.M. needed to see a doctor, so he went to V.M.'s school. Father spoke with the principal, who explained V.M. had twisted her ankle the week before and had missed a week of school but was now back at school. The principal suggested father look at V.M.'s foot himself, since she was just outside the door sitting out a physical education class. Father spoke to V.M., examined her foot, and left. He did not ask to take V.M. away from school. The principal wrote a letter less than a month later, after the detention proceedings, to clarify this is all that happened, after a social worker stated incorrectly in the detention report that the principal (whose name the social worker also reported inaccurately) had prevented father from taking V.M. out of school because his name was not on the emergency release card.

Father also decided to accompany his daughter and her grandparents to a doctor's appointment. They all went to the doctor's office, but after the visit, the grandparents "took off" with V.M., and father did not know where they went with his daughter. Father made two police reports and was told he would be asked to speak with a detective. However, by then, the grandparents had made their report of abuse and neglect to the Department, and a Department social worker, not a detective, interviewed father for the detention report.

The detention report described at length statements from the maternal relatives about father's alcohol abuse and neglect of V.M. when he was intoxicated. Of the interview with father, the social worker reported father had planned to leave his two children with their grandparents after mother's death only temporarily. Father believed the maternal grandparents had "brainwashed" the children into believing he is a "bad guy." He had a good relationship with his son until 2009, and now his son and V.M. have turned away from him. Father denied ever drinking in front of the children. He explained he has been a professional truck driver for 19 years and is tested frequently. He always provided for his children ...


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