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In Re Zaiden H., A Person Coming Under the Juvenile Court v. Michelle H

June 26, 2012

IN RE ZAIDEN H., A PERSON COMING UNDER THE JUVENILE COURT LAW. BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
MICHELLE H., DEFENDANT AND APPELLANT.



(Super. Ct. No. J35582)

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

In re Zaiden H.

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Michelle H., mother of the minor, appeals from orders of the juvenile court dismissing the petition and giving custody of the two-year-old minor to his father. (Welf. & Inst. Code, §§ 390, 395.)*fn1 Mother contends the order was not supported by substantial evidence and the court failed to make the required findings. We affirm.

FACTUAL AND PROCEDURAL HISTORY

The minor was removed from the mother's custody in November 2010. The petition filed by the Butte County Department of Employment and Social Services (DESS) alleged that the mother's substance abuse and neglect placed the minor at substantial risk of serious physical harm. This occurred after narcotics agents executed a search warrant at the house where mother, her boyfriend, the minor, and one other minor were residing.*fn2 The agents had information that the mother's boyfriend had been involved in manufacturing and selling methamphetamine, and discovered he was involved in drug transactions in the home. Methamphetamine, marijuana, scales, and packaging materials were found at the house, and the house was in a dirty, unkempt condition. The mother admitted knowledge that the boyfriend sold drugs. As to the minor's father, the petition alleged that the father had a child welfare and criminal history that was of concern, but there were no current allegations regarding him.

The detention report stated there was no child welfare history as to this minor, but two of his half siblings, children of the father, previously had been adjudicated dependents. The social worker spoke to the father by telephone the day the minor was removed from mother's home. The father stated he had had regular visitation with the minor until recently, when mother refused to maintain contact. The father admitted that he had a child welfare and criminal history and that he had been discharged from parole in 2007. He stated that only one of his six children was in his care. The report stated that before the minor could be returned to parental care, the parents had to participate in substance abuse, parenting and counseling programs.

The father had been living in Oklahoma. He filed a parentage statement which stated that he had paid child support and had visited the minor regularly until he moved to Oklahoma. Thereafter, he had the minor for several weeks in Oklahoma but had not visited for the last six or seven months due to mother's refusal to communicate.

At the December 21, 2010 jurisdiction hearing, the court declared the father to be a presumed father. The court also gave DESS discretion to place the minor with the father and set a contested jurisdiction hearing.

The jurisdiction report stated that two of the minor's half siblings had been removed from the father in 2003 and released to the care of their mother. At that time, the father's home was filthy, lacking in water and edible food and contained items that were hazardous to the minors. The father had two convictions in California. In 2004, he was convicted of felony obstructing/resisting an executive officer and providing false information, a misdemeanor, and was granted probation. In 2006, his probation was revoked and he was sentenced to state prison. In 2008, he was convicted of driving under the influence (DUI) (alcohol) and was sentenced to two days in jail and granted probation. He had various arrests in California from 2002 to 2009, the last being for DUI (alcohol).

At the jurisdiction hearing in January 2011, county counsel requested to withdraw the petition. Mother objected. The hearing was continued to permit all counsel to review the request.

Mother's counsel filed points and authorities on the issue. Mother argued placement with the father could only occur pursuant to section 361.2 and DESS did not have the authority to simply withdraw the petition. He argued that the juvenile court must determine whether or not a petition must be ...


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