Opinion
B300995
03-24-2020
In re JOSEPH D., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. O.D., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP02216A) APPEAL from an order of the Superior Court of Los Angeles County, Lisa A. Brackelmanns, Juvenile Court Referee. Affirmed. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
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Father O.D. appeals the juvenile court's finding that placement of his son, Joseph, in father's custody would be detrimental to his safety and well-being. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Then seven-year-old Joseph and his younger half brother Joshua (who is not involved in this appeal) came to the attention of the Los Angeles County Department of Children and Family Services (Department) in March 2019, when mother B.S. and her boyfriend, Jose, were arrested near the Mexican border trying to smuggle undocumented immigrants into the United States. Joshua was in the car at the time of the arrest. Mother had a methamphetamine pipe in her purse, and Jose had a bag of methamphetamine. They were ultimately released by border patrol agents.
The following day, the Department visited mother's home. Mother reported that Joseph was with maternal grandmother during the incident. Joseph's father, O.D., had been in prison since May 2015, and Joseph had not had any contact with him for several years.
A Department social worker interviewed the children at their school, and noted they were very closely bonded.
On March 22, 2019, Jose tested positive for methamphetamine and marijuana. At the April 10 detention hearing, father was found to be Joseph's presumed father, and Jose was found to be the presumed father of Joshua. The court detained the children from their fathers, and allowed them to remain in mother's care, with services.
In May 2019, the children were removed from mother after the Department discovered she moved into a new apartment without notifying the Department, and was living with Jose.
Joseph was placed with paternal grandmother, and Joshua was placed in foster care. Paternal grandmother was unwilling to accept placement of Joshua because she did not have a relationship with him, and was "uncomfortable" with the idea.
Father has an extensive criminal history, including a 2008 arrest for attempted murder (for which he was sentenced to five years of probation and one year in jail after he pled guilty to assault), a 2009 arrest for rape of a drugged victim, a 2010 arrest for unlawful possession of tear gas, a 2010 arrest for possession of a controlled substance, a 2011 arrest for felony vandalism and obstructing a police officer (for which he received two years in prison), violation of parole in 2013, a 2014 arrest for carjacking (for which he was sentenced to three years in prison), a 2016 conviction for battery by a prisoner (for which he was sentenced to an additional four years in prison), and other arrests.
According to the Department's May 2019 report, the Department of Corrections anticipated father would not be released from custody until May 3, 2020. The report further noted that Joseph and father did "not have a parent-child attachment" as father had been incarcerated since Joseph was an infant.
Father was present in custody at the initial adjudication hearing on May 22, 2019. The court's minutes reflect that father was "non-offending" and ordered that Joseph be permitted to visit father in custody. According to his Statement Regarding Parentage, father had been incarcerated continually since 2013. The adjudication hearing was continued a number of times.
The Department's July 2019 report noted that Joseph "has been emotionally impacted by his trauma history as evidenced by changes in his overall functioning, mood, and ability to regulate and verbalize his thoughts. . . ." Joseph and Joshua had not had visits together since they had been removed from mother's custody. Joseph missed his little brother.
On September 4, 2019, both children were placed with maternal grandmother.
At the September 20, 2019 adjudication hearing, the court sustained allegations under Welfare and Institutions Code section 300, subdivision (b) (all further statutory references are to the Welf. & Inst. Code) based on Jose's substance abuse, mother's failure to protect the children, and the March 2019 border patrol incident. The court found father to be nonoffending.
Father argued he was entitled to custody of Joseph under section 361.2 unless the court found it would be detrimental, urging that placement with paternal grandmother was an appropriate plan until his release from prison, and that grandmother did not require funding to care for Joseph. The court ordered Joseph removed from mother's custody. The court found it was in Joseph's best interests to be placed with his brother, and it would be detrimental to separate them. Father timely appealed.
DISCUSSION
Father contends the juvenile court's detriment finding is not supported by substantial evidence. We are not persuaded.
Section 361.2 "governs the child's temporary placement with the noncustodial parent . . . and also permits the court to grant legal and physical custody of the child to the noncustodial parent." (In re V.F. (2007) 157 Cal.App.4th 962, 969; see also § 361.2, subds. (a), (b).) Section 361.2 provides that when a noncustodial parent "desires to assume custody of the child," the juvenile court "shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2, subd. (a).) A finding of detriment under section 361.2 must be made by clear and convincing evidence. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1829.)
We review the trial court's order under the substantial evidence standard of review, notwithstanding the evidentiary standard used at trial. (In re Heather A. (1996) 52 Cal.App.4th 183, 193; see also In re E.B. (2010) 184 Cal.App.4th 568, 578.) "In reviewing the sufficiency of the evidence on appeal, we look to the entire record to determine whether there is substantial evidence to support the findings of the juvenile court. . . . [W]e draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order, and affirm the order even if there is other evidence that would support a contrary finding." (In re Cole C. (2009) 174 Cal.App.4th 900, 916.)
The record here amply supports the court's detriment finding. Father has a violent criminal history, has been incarcerated for most of Joseph's life, does not have a relationship with Joseph, and was not expected to be released from prison until May 2020. Paternal grandmother would not accept placement of Joseph's younger brother, and the separation had been very hard for the boys, who were closely bonded. (See In re Luke M. (2003) 107 Cal.App.4th 1412, 1426-1427 [sibling bond an appropriate factor to consider when assessing detriment]; see also In re V.F., supra, 157 Cal.App.4th at p. 966 ["If a noncustodial, incarcerated parent seeks custody of the child, the court must determine whether placement with that parent would be detrimental to the child's safety, protection, or physical or emotional well-being. [Citation.] Among the factors in determining detriment are the . . . parent's ability to make appropriate arrangements for the care of the child and the length of that parent's incarceration."].)
DISPOSITION
The order is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
WILEY, J.