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In re Carl H.

California Court of Appeals, First District, Third Division

January 23, 2017

In re CARL H., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent,
v.
N.B., Defendant and Appellant; CARL H., a Minor, etc., Objector and Appellant. In re HARMONY F., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent,
v.
N.B. et al., Defendants and Appellants; HARMONY F., a Minor, etc., Objector and Appellant

         [CERTIFIED FOR PARTIAL PUBLICATION] [*]

          Superior Court of San Francisco County, No. JD153221, No. JD153222, Newton J. Lam, Judge.

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[Copyrighted Material Omitted]

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         COUNSEL

         Linda J. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant N.B.

         Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant K.F.

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         Donna Wickham Furth, under appointment by the Court of Appeal, for Objector and Appellant Carl H.

         Seth Forrest Gorman, under appointment by the Court of Appeal, for Objector and Appellant Harmony F.

         Jeremy Sugerman, City Attorney, for Plaintiff and Respondent.

         Leslie A. Barry, under appointment by the Court of Appeal, for Respondent Carl Sr.

         Pollak, Acting P. J., and Jenkins, J., concurring.

          OPINION

          [212 Cal.Rptr.3d 825] SIGGINS, J.

          N.B. (Mother) and her daughter Harmony F. appeal from juvenile court orders establishing jurisdiction over Harmony and bypassing family reunification services for Mother. The court found that Mother's neglect contributed to the death of Harmony's baby sister Melody and that there was no clear and convincing evidence that offering Mother reunification services was in Harmony's best interest. Mother asserts neither finding is supported by the record and that the denial of reunification services was an abuse of discretion. Harmony also challenges the denial of reunification services. Harmony's father, Kevin F., joins in their arguments.

         In a separate appeal[1] Mother challenges the juvenile court's assertion of jurisdiction over her son Carl H. (Carl Jr.). Carl Jr. contends the court erred when it dismissed his petition after establishing dependency jurisdiction over him. He also asserts the bypass of services for Mother was an abuse of discretion.

         Assessed under the relevant legal standard, the record supports the court's jurisdictional findings and the bypass of services to Mother. However, the dismissal of Carl Jr.'s dependency case because findings were unsustained as to his custodial parent was error. We therefore reverse in part, affirm in part and remand to the juvenile court for further proceedings.

         BACKGROUND

         Events Preceding Melody's Death

         Raised by a mother who struggled with addiction, Mother's childhood was marked by abuse and neglect. When she was 13 years old she began an

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abusive and violent relationship with Carl Sr., then a 20-year-old high school dropout. Their child, Carl Jr., was born when Mother was 14.

         While she was still a minor, Mother left Carl Sr. and was in a relationship with Kevin F. That relationship, too, was characterized by domestic violence. Mother and Kevin F. had two children: Harmony F., born March 2012, and Melody F., born November 2013.

          [212 Cal.Rptr.3d 826] The family, including both fathers, had at least 13 referrals to child protective services (CPS) for physical and emotional abuse and neglect before Melody died in 2015. In 2012 Carl Sr. learned that Kevin F. was hitting Carl Jr. and calling him names. This led to fighting between the two men and CPS intervention. To protect her son, Mother gave Carl Sr. full custody of Carl Jr. with visitation for her every other weekend. From then until December 2014, father and son lived with Carl Jr.'s paternal grandfather. However, both parents used the maternal grandmother (Grandmother) as a respite caregiver. Carl Jr. thus stayed with Grandmother when Carl Sr. was arrested in January 2013 and again in May 2014, and she watched Carl Jr. when Carl Sr. ran errands. Grandmother also looked after all three children at least two weekends a month when Mother had to work and Kevin F. was unwilling to take care of their daughters.

         In February 2014 Carl Jr., then six years old, was staying with Grandmother while his father was incarcerated. Grandmother asked the boy to pick up a methadone pill she had dropped. Carl Jr. picked up the pill and swallowed it. He was immediately taken to the hospital, and survived.

         Following this incident, protective services worker Jonathan Newsome interviewed family members at the hospital and later in Grandmother's home. The home was extremely cluttered but did not appear dirty. Newsome did not see any inappropriately stored medications or other overt safety hazards. Mother said she lived in an HUD-approved apartment but was temporarily living in a hotel while repairs were being made. She had a court date in family court the next month to change Carl Jr.'s custody arrangement. Mother told Newsome she could care for her son full time with help from a cousin and other family members. With Carl Sr. incarcerated, Newsome determined the hospital could release Carl Jr. to Mother's care.

         The San Francisco Human Services Agency (the Agency) convened a team decision making meeting with Mother, Grandmother and Carl Sr. to address the children's safety. They agreed the children would not return to Grandmother's home until it was properly cleaned and organized. Grandmother agreed not to take medications in front of the children or leave them within the children's reach. Carl Sr. agreed not to yell at his son or abuse him

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emotionally, verbally or physically, to use age-appropriate tools for discipline and redirection, and to follow up with services that had been ordered in his criminal case. Carl Jr. was to remain in Carl Sr.'s care and his sisters would remain with Mother, " with a significant amount of services for both mother and father."

         Newsome wrote that " mother appears to be very resilient yet at the same time overwhelmed. She is working, attending school, and caring for her children when at all possible. She appears to be utilizing the support she has at her disposal but the Department can only hope that her children don't suffer with [her] busy and ambitious schedule. It has been very clearly presented that so long as the [Grandmother's] home is in [its] current state (extreme clutter), the children are not allowed to be cared for there." Newsome concluded the children were not at an imminent risk in Mother's care, " and therefore the Department feels that closing the referral after having connected the family to DR and Safe Care services is appropriate."

         On June 6, 2014, protective services worker Jane Phan visited Grandmother's home after hearing that Carl Jr. was staying there with Mother while Carl Sr. was in jail for non-compliance with court-ordered domestic violence classes, and that the house was so severely cluttered it was [212 Cal.Rptr.3d 827] unsafe. Mother had left Kevin F. after he physically assaulted her while she was holding seven-month-old Melody. Mother reported she was working with Homeless Prenatal Program and SafeCare workers and asked for help obtaining other services.

         On June 10 Phan spoke with Carl Jr. and his father in their home at the paternal grandfather's house. Carl Jr. said that during his weekends with Mother he stayed at Grandmother's home. He did not stay at Mother's house because Kevin F. lived there. Carl Sr. told Phan he would drop Carl Jr. off at Grandmother's house for visits with Mother. He said there was some clutter there and mentioned Carl Jr.'s February 2014 methadone incident, but overall he had " no concerns" about Grandmother. The Agency concluded no action was required.

         In December 2014 Carl Sr. got into a fight with the paternal grandfather. As a result, he and Carl Jr. moved out of the grandfather's home and moved in with Grandmother. He later told a social worker he did not think living at Grandmother's was a problem because Carl Jr. was now older and understood not to take her medications.

         Melody's Death

         On April 17, 2015, Mother dropped Harmony and Melody off with Grandmother. Carl Sr. got home around midnight and went to sleep in an

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upstairs bedroom. Mother came back around 2:30 a.m. She checked on the children, who appeared to be fine. In the morning Grandmother discovered that Melody was not breathing and called an ambulance. Melody, then 17 months old, died that morning from acute methadone toxicity.

         The incident was investigated by protective services worker (PSW) Nicole Lock. On July 16 she and PSW Alicia Rodriguez conducted an unannounced visit to Grandmother's home. The home " was extremely cluttered and there was a current hoarding issue in the home. Although there is space to walk around the home, the undersigned immediately determined that the home was not safe for children to reside. ... [T]he home was filled with racks of clothes in the living room, boxes of clothes, paperwork, piles of other various items. The undersigned also observed medication containers on the piano, on the coffee table, and in brown grocery bags on the floor of the living room. ... [T]he bedroom downstairs cannot be used for sleeping due to tremendous clutter." In the room where Melody spent her last night there were " a lot of medication bottles kept on the side of the bed table, on top of the dressers, and there were miscellaneous pills on top of the furniture." Some of the medications were within the children's reach.

         Lock pointed out various safety concerns and told Carl Sr. that Grandmother's home was inappropriate for children. Carl Sr. said he never left his son alone or unsupervised in the house, and that he had nothing to do with Melody's death.

         In a forensic interview on July 20, Carl Jr. said his father and Grandmother smoked cigarettes and " blunts," which were long and brown " and they put some type of stuff, green stuff in it." In addition, both Grandmother and her mother (Nanny), who also lived in the house, had pills, like methadone, stomach pills, " pooping pills," headache pills and pain pills. Carl Jr. knew where the pills were kept. He said " all three of us--all the children can get into them, 'cause they need to put them in a safe place with a lock, that's where they need to put them, so no one can get to the pills and take one." Asked if that had ever happened, Carl Jr. answered: " I picked one up off the floor and took one" and " that's what happened with my sister. [¶ ] ... [¶ ] The one that died."

          [212 Cal.Rptr.3d 828] Carl Jr. said Nanny kept a pill bottle, as well as cookies and " a lot of stuff" on her bed, so he thought Melody probably woke up and got a methadone pill from there. He knew the bottle contained methadone because " every time--she has me read the bottle. [¶ ] ... [¶ ] And she has me make her pills too." He explained that he usually prepared Nanny's pills when her caregiver did not come to work. The last time he remembered giving Nanny her pills was when he was seven, but he stopped doing it after the February 2014 incident.

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         Carl Jr. said he thought Grandmother kept methadone in three bags on the floor. She also had " hecka pills" in a pill box. It was " so easy" to get into Grandmother's pills, " all you have to do is ...


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