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In re A.R.

California Court of Appeals, Sixth District

April 9, 2015

In re A.R., a Person Coming Under the Juvenile Court Law. J.R., Defendant and Appellant.

Santa Clara County Superior Court Superior Court No. 1-13-JD22132 Hon. Katherine Lucero Gregory H. Saldivar Judges

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[Copyrighted Material Omitted]

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Counsel for Plaintiff/ Respondent: Santa Clara County Dept. of Family & Children’s Services Office of the County Counsel, Child Dependency Unit Leslie Ann Barry, under appointment by the Court of Appeal, for Defendant and Appellant.

Orry P. Korb, County Counsel, and Teri L. Robinson, Deputy County Counsel , for Plaintiff and Respondent.



In this dependency proceeding, the juvenile court declared A.R. a dependent of the court and ordered him to remain in the custody of both parents under the supervision of the Santa Clara County Department of Family and Children’s Services (Department). J.R. (father), A.R.’s presumed father, and E.R., A.R.’s mother (mother) (together, parents) were not married. At disposition in January 2014, the court also ordered family maintenance services for both parents. In March 2014, father moved out of the home not pursuant to any court order. He eventually disengaged from all services without addressing his alcoholism or marijuana use. Using the Request to Change Court Order form (Judicial Council form JV-180), the Department requested modification of the court’s dispositional order that both parents receive family maintenance services. (Welf. & Inst. Code, § 388.)[1]

A September 12, 2014 order made removal findings concerning removing A.R. from father’s physical custody. The order continued A.R. under the care, custody, and control of mother under the Department’s supervision, provided family maintenance services for only A.R. and mother, and provided supervised visitation with A.R. for father.

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On appeal, father claims that the juvenile court erred in granting the Request to Change Order because there was no change in circumstances warranting modification and ordering A.R. removed from his physical custody. (See § 395, subd. (a)(1).) We conclude that there was evidence of changed circumstances sufficient to justify the court’s modification of its prior order regarding parental custody and family maintenance services. Although the court’s removal findings were not supported by substantial evidence, we find the error to be harmless. At the time of the findings, father had already moved out of the home, A.R. was no longer actually in father’s physical custody, and, under the September 12, 2014 order, A.R. remained in the home with mother. We will strike the removal findings and affirm.


Procedural History and Facts

A. Background

On October 8, 2013, a dependency petition was filed on behalf of A.R., then four years old, under section 300, subdivisions (b) (failure to protect) and (c) (serious emotional damage). The initial hearing report recommended that A.R. and his half siblings remain in the home. The report stated: “While there are significant concerns regarding [father’s] alcohol abuse, domestic violence against [mother], the emotional stability of the mother, and past use of inappropriate discipline, the children appear well cared for, and state that they feel safe in the home at this time.” It was reported that parents “acknowledge the concerns and express willingness to participate in services to make the needed changes.” At the initial hearing on October 9, 2013, the court ordered A.R. to remain released to mother and father and A.R.’s half-siblings to remain released to mother on the condition that parents cooperate with the home supervision program.

On October 24, 2013, a first amended petition was filed on A.R.’s behalf under section 300, subdivisions (b) (failure to protect) and (c) (serious emotional damage). On November 20, 2013, a second amended petition was filed on behalf of A.R. under subdivisions (b), (c), and (j) (abuse of sibling) of section 300.

On November 22, 2013, the court issued a restraining order against father to protect mother, A.R., and two half-siblings. By its own terms, the order expired at midnight on November 15, 2014.

Father and mother submitted the pending dependency petition for decision on documentary evidence. The court considered the Jurisdiction/Disposition

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Report dated October 25, 2013, an addendum report dated November 15, 2013, and a second addendum report dated December 20, 2013.

In the second addendum report to the Jurisdiction/Disposition Report, the social worker reported that both parents “continue to demonstrate a willingness to cooperate with the Department and to make the changes needed to address the concerns that brought them to the attention of child welfare” and “[b]oth parents continue to communicate well with the Department, and to participate in all the services that have been recommended.” In her assessment, father was “committed to drug treatment and to his sobriety from alcohol at this time.”

In the second addendum report, the social worker further indicated that, on November 14, 2013, father had completed his intake at the State Department of Health Care Services and he had been referred to Pathway for treatment. He was scheduled to begin outpatient treatment on December 31, 2013. As directed, father had been calling in every day to Norchem Sentry and he had not missed any calls since November 20, 2013. Father’s urine tests had been positive for marijuana. He had a medical marijuana card. The results of the other screens had been negative. The social worker stated that there was “no evidence that [father’s] marijuana use negatively impacts his parenting or puts his child at risk.”

According to the second addendum report, on December 17, 2013, father informed the social worker that he was attending AA meetings at least three times per week. Father was also continuing to attend the weekly parenting without violence class and weekly individual counseling sessions. He was taking Zoloft for anxiety and depression as prescribed.

In the second addendum report, the social worker continued to recommend that the juvenile court find that A.R. was a child described by subdivisions (b) and (j) of section 300, adjudge A.R. to be a dependent child of the court, and order that A.R. remain in his parents’ custody subject to the Department’s supervision. The social worker further recommended, “[b]ased upon the parents’ engagement and progress in services since the last [c]ourt hearing, ” that A.R. and his parents receive family maintenance services and A.R. remain in his parents’ home.

On January 3, 2014, the juvenile court found that the allegations of the second amended petition as further amended were true and determined that A.R. was a child described by section 300, subdivisions (b) and (j). The court found the following allegations were true. “[F]ather has repeatedly perpetrated domestic violence against the mother in the family home, the father abuses alcohol, and the mother has mental health issues that interfere

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with her ability to parent the children.” “[F]ather has perpetrated domestic violence against the mother on multiple occasions, including, but not limited to, breaking the mother’s hand during an argument, chasing the mother with a machete, and pulling the mother by the hair and dragging her back into the house when she tried to leave the home during an argument.” “[M]other has been diagnosed with PTSD, and has a history of depression, anxiety, and sleep problems. The mother was recently prescribed Sertraline (Zoloft) for her PTSD, and on 09/15/13, the mother stated to the children that she wanted to die because the children did not love and appreciate her, and she attempted to overdose by swallowing an indeterminate number of the Zoloft and/or aspirin pills.”

The court also found true the following allegations. “[F]ather... has a long history of alcohol abuse including drinking to the point of blacking out on occasion. The father admits to having a drinking problem which he has been unable to control. The father has not been able to maintain sobriety for longer than a two to three month period. [Father’s] alcohol abuse, and resulting impaired judgment and impulse control, has contributed to the domestic violence with [mother], and places the children at risk of harm in his care.” “[M]other and father have used inappropriate disciplinary measures on the child’s half-siblings.... On at least one occasion, each sibling has been forced to kneel on beans or rice for up to twenty minutes, been forced to squat against the wall for ten to twenty minutes, and been hit five times each on the palms and backs of both the right and left hands.”

At the same hearing, the juvenile court adjudged A.R. a dependent child of the court and made the dispositional orders concerning custody and family maintenance services. The court specifically ordered father to complete a 16-week parenting without violence class, participate in random substance abuse testing at least once a week and on demand testing, undergo a substance abuse assessment and complete the recommended drug treatment programs, complete an aftercare drug treatment program, and develop an aftercare relapse prevention plan. It also required father to complete a 12 step program, attend meetings a minimum of three times a week with written proof of attendance, and obtain a sponsor.

On June 23, 2014, the social worker filed a Request to Change Court Order (hereinafter “section 388 petition”), seeking modification of the order providing family maintenance services to father. The basis for the request was that father had not addressed substance abuse and domestic violence issues in that he continued to use alcohol and marijuana. Subsequent to November 2013, father had received positive drug tests and missed drug tests. He was not attending AA/NA ...

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