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In re Mary N. B.

California Court of Appeals, Fourth District, First Division

July 30, 2013

In re MARY N. B., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
ROBERT W., Defendant and Appellant.

Pub. Order 8/22/13

APPEAL from an order of the Superior Court of San Diego County, Super. Ct. Nos. NJ013869 Michael J. Imhoff, Commissioner.

Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.


Suzanne F. Evans, under appointment by the Court of Appeal, for Minor.

Robert W. appeals an order issued at a contested six-month review hearing that resulted in his daughter, Mary, remaining in out-of-home care. He appeals, contending the juvenile court improperly (1) denied his motion for a directed verdict, (2) continued the hearing, and (3) allowed the San Diego County Health and Human Services Agency (Agency) to reopen its case-in-chief. He also asserts the evidence did not support the juvenile court's finding that returning Mary to his custody posed a risk of detriment. We reject his arguments and affirm the order.


When Mary was born in March 2008, she tested positive for amphetamine. Mother admitted using diet pills during pregnancy. Mary was detained and remained in foster care until she was placed with Robert. In July 2009, the juvenile court terminated dependency jurisdiction after Robert obtained legal and physical custody of Mary. Mother was given supervised visitation.

According to Mother, however, Robert gave Mary back to her because there was no stipulation in the custody orders that she do anything to get Mary back. In December 2010, Robert was arrested for domestic violence after an altercation with Mother. During that incident, Robert pushed Mother against a door causing her to hit her head while she held Mary in her arms.

In November 2011, Robert was arrested again. In December 2011, the Agency filed a petition under Welfare and Institutions Code section 300, subdivision (b), alleging that the parents were residing together and that Mary had been exposed to a violent confrontation between them. (Undesignated statutory references are to the Welfare and Institutions Code.) The court detained Mary in out-of-home care and ordered separate supervised visits for the parents. Following the contested jurisdiction and disposition hearing, the court found the allegations in Mary's modified petition true, placed her in foster care, ordered that the parents comply with their case plans and allowed them to have short, separate, unsupervised visits with Mary.

The parents set the six-month review hearing for trial as the recommendation was for continued out-of-home placement. At the beginning of the contested hearing on October 12, 2012, Mary's counsel requested the court proceed with the trial, but that it set argument for another date as counsel had not yet been able to speak with Mary or check on her well-being with the caregiver. (Undesignated year references are to 2012.) Robert sought return of Mary and Mother requested return or expanded visitation. At the hearing, the social worker subsequently changed her recommendation to placement with Robert as he had made substantive progress with his case plan and overnight and unsupervised visits had gone well. The social worker testified, however, that it would be detrimental to return Mary to Mother's care, but indicated a willingness to increase Mother's visits to four hours unsupervised.

Robert moved for a directed verdict, reasoning the Agency agreed that Mary should be placed with him. Explaining that the parents' issues were inseparable, the court denied the motion. Mary's counsel renewed her request for a continuance indicating she had a duty to check with Mary as to how she was doing and to review the prospect of Mary's placement with her parents. The court continued the matter for 11 days.

The social worker filed an addendum report recommending that Mary remain in out-of-home care and that visits be supervised. Among other things, Robert had been allowing Mother to have unauthorized overnight visits with Mary and Mary's caregiver believed that Robert's aggressive behavior was escalating. The social worker listened to a recorded phone conversation between Robert and Mother in which Robert threatened to go to Mother's home and get Mary even though Mother reminded him it was against court orders. He called Mother names and escalated to the point where he screamed something inaudible into the phone. The social worker believed that even though Robert was engaged in services, he did not appear to be demonstrating or implementing what he was learning or showing that he was changing his behavior in order to protect Mary.

At the continued hearing, the Agency moved the court to reopen its case-in-chief. The court found good cause existed and granted the Agency's motion to reopen. It also indicated it was continuing the case to provide the parents with time to respond to the evidence supporting the Agency's section 388 motion. The court found the Agency had met its threshold burden of proof regarding its section 388 ...

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