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In Re M.C., A Person Coming Under the Juvenile Court Law. v. Felicia C. et al

September 29, 2011

IN RE M.C., A PERSON COMING UNDER THE JUVENILE COURT LAW. SAN FRANCISCO HUMAN SERVICES AGENCY, APPELLANT,
v.
FELICIA C. ET AL., RESPONDENTS.



(San Francisco City & County Super. Ct. No. JD10-3007) Superior Court of San Francisco City and County, No. JD10-3007, Donna J. Hitchens, Patrick J. Mahoney, Ellen L. Chaitin, Judges, and Catherine A.S. Lyons, Commissioner.

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

CERTIFIED FOR PARTIAL PUBLICATION*fn1

When he was 16 years old, M.C. ran away from his home in Guatemala where he lived with his mother, Felicia C. (mother), and his father, Juan E. (father). He came to San Francisco, where he was found begging for money on the street and was referred to a homeless shelter. The San Francisco Human Services Agency (Agency) investigated allegations of abuse and neglect to determine if M.C. was a dependent child, within the meaning of Welfare and Institutions Code section 300,*fn2 and declined to file a dependency petition. Legal Services for Children (LSC), serving as counsel to M.C., challenged the Agency's decision not to initiate dependency proceedings by filing an application, pursuant to section 331, seeking juvenile court review. The juvenile court ordered the Agency to file a dependency petition and to take M.C. into protective custody. The juvenile court subsequently declared M.C. a dependent child (§ 300, subds. (b), (c), (g)).

In the published portion of our opinion, we address whether section 331 violates the doctrine of separation of powers, to the extent it authorizes the juvenile court to order the Agency to file a dependency petition. We hold that, under the authority of section 331, the juvenile court may order the Agency to file a dependency petition and that this authority does not violate the separation of powers doctrine. In the unpublished portion of our opinion, we reject the Agency's various challenges to the court's jurisdictional and dispositional findings and orders.

I. STATUTORY BACKGROUND

Before addressing the facts unique to this case, we think it necessary to first discuss the governing statutes. The juvenile court system is a statutory creation. (See In re Ramon M. (2009) 178 Cal.App.4th 665, 672 [delinquency case].) "A 'juvenile court' is a superior court exercising limited jurisdiction arising under juvenile law. [Citation.] Dependency proceedings in the juvenile court are special proceedings with their own set of rules, governed, in general, by the Welfare and Institutions Code." (In re Chantal S. (1996) 13 Cal.4th 196, 200.) "Under section 300, a child who is neglected or abused falls within the juvenile court's protective jurisdiction as a 'dependent child of the court.' Alternatively, the juvenile court may take jurisdiction over a minor as a 'ward of the court' when the child is habitually disobedient or truant (§ 601), or commits a crime (§ 602)." (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1123.)

The dependency statutes provide different avenues for presenting a child's circumstances to the juvenile court. Juvenile dependency petitions are filed by social workers. (§ 325.)*fn3 Thus, social workers are required to investigate suspected cases of child neglect and abuse and determine whether dependency proceedings should be commenced. (§ 328.)*fn4 If the social worker determines that a child is within the jurisdiction of the juvenile court, the social worker may decide that informal supervision is appropriate, in lieu of filing a dependency petition. (§ 301.)*fn5 If a child has been taken into custody and cannot be released to the custody of his or her parents, a social worker must immediately file a dependency petition with the juvenile court. (§§ 309, subd. (a), 311, subd. (a), 313, subd. (a).)*fn6

The statutes also provide methods for private parties to bring a minor's case to the attention of a social worker and juvenile court. (§§ 329, 331.) Section 329 provides: "Whenever any person applies to the social worker to commence proceedings in the juvenile court, the application shall be in the form of an affidavit alleging that there was or is within the county, or residing therein, a child within the provisions of Section 300, and setting forth facts in support thereof. The social worker shall immediately investigate as he or she deems necessary to determine whether proceedings in the juvenile court should be commenced. If the social worker does not take action under Section 330[*fn7 ] and does not file a petition in the juvenile court within three weeks after the application, he or she shall endorse upon the affidavit of the applicant his or her decision not to proceed further and his or her reasons therefore and shall immediately notify the applicant of the action taken or the decision rendered by him or her under this section. The social worker shall retain the affidavit and his or her endorsement thereon for a period of 30 days after notifying the applicant."

Section 331 provides: "When any person has applied to the social worker, pursuant to Section 329, to commence juvenile court proceedings and the social worker fails to file a petition within three weeks after the application, the person may, within one month after making the application, apply to the juvenile court to review the decision of the social worker, and the court may either affirm the decision of the social worker or order him or her to commence juvenile court proceedings."

It is the latter section we consider here.

II. FACTUAL AND PROCEDURAL BACKGROUND*fn8

Section 329 Application

On August 31, 2009, LSC submitted, to the Agency, an application to commence juvenile dependency proceedings by affidavit, pursuant to section 329. The application alleged that M.C. was currently homeless after coming to San Francisco, from Guatemala, to escape physical abuse by his father. M.C. had been referred to Huckleberry House for emergency shelter and then to Diamond Youth Shelter. The application also noted that both Huckleberry House and LSC had made hotline referrals to Child Protective Services (CPS).

The application further states: "The CPS investigation was closed August 26, 2009. It was explained to our office that the case was closed because [M.C.] was classified as a runaway. [¶] . . . Diamond Youth Shelter is not an appropriate placement for this minor. . . . An emergency housing shelter is an insufficient solution to [M.C.]'s problem of homelessness due to abuse by his father. [¶] . . . [M.C.] cannot return to his country of origin, Guatemala, as there is no one to care for him."

On September 15, 2009, Kristina Hermann, a social worker with the Agency, declined to commence juvenile court proceedings on behalf of M.C. Hermann endorsed the section 329 application and attached a statement of reasons for her decision. She stated that she met with M.C. on August 3, 2009, and concluded that the allegations of abuse and abandonment were unfounded. She explained: "[M.C.] stated that he is from a small town in Guatemala . . . . [M.C.] stated that he 'chose to leave Guatemala in June 2009, in search of employment and educational opportunities.' [M.C.] reported . . . that his parents and his siblings do not know that he left home for the U.S. [¶] . . . [M.C.] stated that his father has a history of drinking alcohol. He stated that in [his] country, 'it is common for men to drink after work.' . . . [M.C.] stated that his parents were not emotionally or physically abusive to him. [M.C.] stated that his father hit him only once, 'with an open hand to his face but it did not leave a bruise.' [M.C.] stated that his father and mother were not abusive to him. [M.C.] did report that there have been occasions when [his] father engaged in a physical altercation with [his] mother. [M.C.] stated that he witnessed the altercations a few times.

"[M.C.] reported that the town that he is from has limited economic opportunity and that his family has always struggled to make a living. He reported that he has 10 other siblings who have remained in the town and have not left for the U.S. as he did. [M.C.] stated that he left school at age 9 to work in construction, something he said 'is not that uncommon for guys where I'm from.' [M.C.] reported that his parents do provide adequate provisions at home for him and his siblings.

"[M.C.] stated that in or around June of 2009, he was invited by an older co-worker, 'Felipe' whom he worked with, to come to San Francisco, CA, to better his life. [M.C.] chose to leave Guatemala and his hometown despite the fact that he did not tell his parents that he was choosing to runaway to the U.S. [M.C.] reported that his parents still do not know that he left Guatemala for the U.S. He told [me] that there is no way of contacting them; neither by phone nor by mail. . . .

"[M.C.] reported that the trip to the U.S. took about 2 and a half weeks . . . and stated that they mostly hitch hiked rides with 'Felipe', and Coyotes . . . . [M.C.] stated that when he arrived in S.F., he panhandled for money in front of Safeway on Mission St. There he said, he met a man . . . who [M.C.] said, 'let me stay with him for several nights,' and then brought him to [LSC]. He completed an intake there and was then brought to Huckleberry House. [M.C.] stated that he does not have any way of contacting the gentleman who brought him to LSC. [¶] . . . [¶]

"[M.C.] stated that he came to the U.S. to go to school and work. [M.C.] reported that he is not afraid of his parents or to go back home to Guatemala, but that he would rather stay in the U.S., where he has more opportunity to work and attend school. [M.C.] does not have any relatives or friends here in the U.S. [M.C.] will be transitioning to live at Larkin Street Youth Services's [sic] shelter program where [he] will reside with case management services. [¶] . . . [¶]

"On 8/21/09, [I] spoke with [my supervisor] who stated that it seems clear that [M.C.] is a runaway minor and based upon the facts provided by [him], the allegations of abuse and neglect are unfounded. [M.C.] is not afraid to return home, and ther[e] are no safety factors presenting [sic] him from living in Guatemala, and [he] can in fact be transported back to Guatemala with the transportation assistance of [the Agency]."

On August 21, 2009, Hermann met with M.C. again, at his school. M.C. reported that "[he] has been attending school consistently, and living at Larkin Street Youth Services Diamond/Drop In Shelter for youth." He also stated that he had not had any contact with anyone in Guatemala. M.C. provided two phone numbers for contacts in Guatemala, neither of which were working numbers.

Hermann's report concluded: "It is [my] assessment . . . that [M.C.] has chose[n] to leave/runaway from his family and hometown behind in Guatemala in search of employment and educational opportunities in the U.S. While [M.C.]'s family is limited by their economic situation, [he] has stated, he 'is not fearful to return home.' He further added that he 'would rather stay in the U.S. to go to school and find work.' The allegations of abuse and neglect are unfounded as there is no evidence of abuse or neglect by his parents. Despite the limited economic conditions as described by [M.C.], he also reported that his family does provide adequate provisions for him and his siblings."

Section 331 Application

On September 29, 2009, LSC filed an application with the juvenile court, pursuant to section 331, seeking review of Hermann's decision. The section 331 application included a copy of the endorsed section 329 application. Attached was the above-described statement of Hermann's reasons for declining to take action.

A declaration from M.C. was also submitted with the section 331 application. In his declaration, M.C. stated: "I do not have any family members in the United States. [¶] . . . [¶] . . . My father is an alcoholic. When my father was drunk he would physically abuse my mother. I would get very upset every time I saw my father treat my mother this way but she had no other way to support herself. She has heart disease and cannot work. Many times I would get in his way to try and protect my mother and then he would hit me too. He was also violent toward my brothers and sisters. [¶] . . . Because of my father's drinking, there was never enough food to eat. I would give my mom the money that I earned so that she could use it to buy food for us. When my father worked he used his money to buy alcohol instead of food. My mother would also borrow money from my aunt to feed us. We do not have much land but there was an apple tree that we would eat from when we were very hungry. When the economy started getting bad, the money I made was not enough to support my family. . . . [¶] . . . [¶] . . . One day I met a man who said that he could bring me to the United States if I paid him 2,000 Quetzales (Guatemalan currency). . . . I could not stand the physical and emotional abuse from my father anymore and thought it was a good idea to leave with this man. I used my savings to pay the way. . . . [¶] . . . I came to the United States by bus and truck with the man that I had paid. The trip took many days and I crossed a desert and stopped in several big cities. After some days had passed, the man said we had arrived in San Francisco. We walked into a store and the man said that we would eat a sandwich and then he would take me with him to work. He told me to wait for him inside the store. I waited for many hours but the man never came back. While I was waiting I began to ask for money because I was very hungry. A man named Isidro came up to me and asked what I was doing in the store and where I was from. I told him that I had just come from Guatemala. Isidro took me to his home and gave me some food. He said that he could not afford to keep me in his house but that he would take me to [LSC.] [¶] . . . [¶] . . . I live at Diamond Youth Shelter with other kids. Because I cannot go there until it is late at night I try to do my homework at the Drop-In Office at Larkin Street. . . . [T]hey do not let us inside [the shelter] until 8:00 p.m. The times that I have arrived at the Shelter before it is open, I have had to wait outside in the cold."

On the same day that the application was filed, the juvenile court (Judge Hitchens) ordered the social worker "to commence proceedings by filing a petition pursuant to . . . section 300 based on the allegations set forth in this application." The Agency moved to set aside the order, arguing that the Agency had no opportunity to be heard and that the order was not properly served. The Agency and M.C.'s counsel were notified that the juvenile court would hold a hearing on October 7, 2009. Thereafter, the Agency filed a "Trial Brief," in which it argued, among other things, that section 331 violates the separation of powers doctrine and is unconstitutional.

At the hearing, the Agency requested the opportunity to present evidence. The court denied the request, stating: "[T]hat's what the jurisdictional phase is for. You don't get a trial on this particular issue, so I'm not going to allow that. I am going to order the [Agency] to file a petition. Obviously because it's a situation where the roles are somewhat reversed at the jurisdictional hearing in this matter, the burden is really going to fall on [M.C.] instead of the [Agency.] [¶] But I think there are sufficient allegations in this case to show that there is a prima facie showing that this child is an abused and neglected child to at least proceed."

On October 7, 2009, Judge Hitchens entered the following order (October 7 Order): "The Court, having heard further argument . . . , hereby affirms its decision initially made on September 29th, 2009 and orders the social worker to immediately commence proceedings in this matter. The [Agency] is ordered to take [M.C.] into its protective custody no later than 5pm on October 14, 2009."

Writ Review & Protective Custody Warrant

On October 9, 2009, the Agency filed a petition for writ of mandate (No. A126368) with this court. The Agency argued, among other things, that section 331 violates the separation of powers doctrine.*fn9 Pending further consideration of the petition for writ of mandate, we initially stayed the October 7 Order. Following briefing, we denied the petition and dissolved the stay. Specifically, our order, dated December 23, 2009, provided: "The petition for writ of mandate is denied, as [the Agency] has not persuasively demonstrated that it does not possess other adequate remedies at law to obtain a cessation of juvenile court proceedings, or that [it] cannot take steps to avoid the irreparable harm claimed in the petition. The court notes that [the Agency] does not contend that it lacks the ability to initiate a declaratory relief action to challenge . . . section 331 on separation of powers grounds. The previously issued stay is hereby ordered dissolved." The Supreme Court denied the Agency's petition for review.

Application for Protective Custody Warrant

On January 13, 2010, the new social worker assigned to the case, Erin Monahan, applied for a protective custody warrant, pursuant to section 340.*fn10 Monahan stated that she had interviewed M.C. on December 29, 2009. Monahan summarized that interview as follows: "[M.C.] indicated that both of his parents are good people and that he was well taken care of in Guatemala. He fondly recalled how his mother provided him with oil for his throat when he had been ill. His family in Guatemala is large and has helped his parents take care of [M.C.] and his 10 siblings. [¶] [M.C.] told me his father drank and sometimes 'drank away the money,' but that was what 'men do where I am from.' His extended family helps provide for the family in instances where it is necessary. [M.C.] indicated to me, as he did to Hermann in August, that his father hit him once, but left no mark or bruise. He said that there was no pattern of violence and his father never hit him again. [¶] When asked if his father was violent when he drank, [M.C.] was adamant that he was not. He further indicated that his father was not verbally abusive. [¶] . . . [¶] I discussed with [M.C.] the meaning of abuse and neglect, and he reiterated that he had been neither abused nor neglected in Guatemala. When asked if he was safe where he was, he indicated that he felt safe--that no one was hurting him or threatening him in any way. [¶] At the end of our discussion, I again asked [M.C.] if he was afraid of his parents or if he was afraid to return to Guatemala. He said he was not, but that he came to the United States to make money and be able to send some money back to Guatemala. He told me he was not running from anything, but was coming to the United States to seek a better life."

With respect to his life in San Francisco, Monahan wrote: "[M.C.] attends school regularly and takes advantage of services offered to him at school including after school tutoring and help with his homework. [¶] During school, he is provided free breakfast and lunch. During breaks from school, he gets free breakfast at the shelter. During the day he goes to the Drop in Center where he is provided lunch. The shelter offers dinner every night. [¶] The Drop in center, where [M.C.] can spend the day, closes at 7:30, and the Shelter opens at 8:00pm. [M.C.] indicated to me that he sometimes misses dinner. I contacted the shelter and confirmed that [M.C.] can tell the shelter in the morning if he will not be back in time for dinner and they will save him a plate of food. Residents of the shelter can get up to five meals a day . . . . [¶] [M.C.] indicated that the shelter provides a jacket for him--although he doesn't always wear it as he finds it too warm. I also confirmed that there is medical attention available at the shelter should it be necessary. [¶] . . . [¶] Late in the week of January 4, 2010, the [Agency] received a referral on [M.C.] indicating that he had a fever and there was no one to take him home."

Monahan concluded: "In my professional opinion--based on 20 years of child welfare investigations, [M.C.] has not been abused or neglected, nor is he facing immediate risk of harm where he currently resides. His basic needs are more than being met. Nonetheless, I understand in October 2009, the Juvenile Court ordered the Agency to take [M.C.] into protective custody. Since that order is over ten weeks old, I am seeking a warrant authorizing the Agency to take [M.C.] into protective custody." Judge Mahoney signed and issued the warrant the same day.

Dependency Petition & Detention Report

On January 15, 2010, the Agency filed a dependency petition on behalf of M.C., alleging that "minor's counsel claims" M.C. comes within the court's jurisdiction pursuant to section 300, subdivisions (b), (c), and (g). The Agency also filed a motion to dismiss the petition, asserting that it failed to state a cause of action.

The detention report, filed by Monahan on January 15, 2010, indicated that M.C. had been placed in a foster home. In that report, Monahan reiterated the facts she submitted in her request for a protective custody warrant. She also added: "Numerous phone calls . . . have been made to Guatemala to the parents and to the Guatemalan Consulate, but these have . . . proved unfruitful in locating the parents."

At the detention hearing, on January 19, 2010, Commissioner Lyons appointed counsel for mother and father. The court continued the matter for a contested detention hearing on February 4, 2010. On February 4, 2010, the juvenile court continued the matter again in order to find an appropriate interpreter, after learning that M.C.'s native language was Quiche (Mayan) and not Spanish. The matter was eventually set for April 26, 2010.

Contested Detention & Motion to Dismiss Hearing

By the time of the contested detention hearing, which took place on April 26 and May 13, 2010, mother and father had been located and were represented by appointed counsel. They submitted to detention. After the presentation of evidence by the Agency and M.C., the court found that father is M.C.'s presumed father. The court also found that a prima facie case had been made for detention and denied the motion to dismiss. Commissioner Lyons said: "I believe there's been enough evidence brought to the Court's attention that [M.C.] does come within 300(B)." M.C. was ordered detained in foster care.

Contested Jurisdiction/Disposition Hearing

In preparation for the contested jurisdiction hearing, Monahan filed a dismissal report, asking the court to dismiss the dependency petition. She wrote: "[I] must give the professional opinion that particularly in these budgetary times, it is not prudent nor is it appropriate to be using the Child Welfare system's thin resources for a person who does not appear to be at risk for harm (either if he stays here or if he returns to Guatemala). [M.C.] is almost an adult and seems to be able to navigate his world quite well. He has no special needs or disabilities and in fact appears quite healthy and happy and mature."*fn11

The contested hearing was held on July 26, 2010, before Judge Chaitin. The Agency and M.C. presented the testimony of several witnesses and the court admitted into evidence the detention and dismissal reports, among other exhibits. Notably, M.C. testified that his father beat him "many times."

In closing argument, the Agency's counsel questioned M.C.'s credibility. M.C.'s counsel urged the court to find jurisdiction, arguing "even putting aside 300B allegations, it's unequivocal that [M.C.] falls within court jurisdiction under section 300G, that he has been left without any provision for support." Mother's counsel noted: "[T]here's no question he is in the country in a jurisdiction where he has no parents or no provision for support. And the statute is quite clear. It makes no distinction between the child of one country to another country so long as the child is under 18 at the time jurisdiction is established. [ΒΆ] I think that statute is exactly there to protect this type of child who is found in a foreign country. We would want the same thing to happen to any kid in any ...


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