Opinion
G056072
09-06-2018
In re JACKSON L., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. JOSHUA R., Defendant and Appellant.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17DP1070) OPINION Appeal from a judgment of the Superior Court of Orange County, Antony C. Ufland, Judge. Reversed. Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
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Joshua R. (father) appeals from the juvenile court's March 6, 2018 dispositional judgment removing his son Jackson (born May 2013) from his physical custody. (Welf. & Inst. Code, § 361, subd. (d); all statutory references are to this code.) He contends there is insufficient evidence to sustain the juvenile court's finding at the disposition hearing he posed a substantial danger to Jackson's physical or emotional well-being if the court returned Jackson to father. We agree with father's contention and therefore reverse the court's dispositional orders.
I
FACTUAL AND PROCEDURAL BACKGROUND
On September 22, 2017, then four-year-old Jackson's maternal half-sister was born testing positive for opiates with withdrawal symptoms. A week later, the Orange County Social Services Agency (SSA) obtained a protective custody warrant to remove Jackson and his sister from his mother's physical custody. The warrant declaration and subsequent detention report noted Jackson had been living with the maternal grandmother, Kelley L., for two years due to mother's financial instability and unresolved substance abuse. Father has had no contact with mother since 2015, and only discovered Jackson was living with grandmother two months earlier. Father previously had taken mother to family court to establish paternity after Jackson's birth. He obtained joint legal custody, but the family court awarded mother physical custody based on the child's age, and father received visitation. The parents were in a "step-up" program where father ultimately would gain 50 percent physical custody, but father's efforts to complete the program were thwarted when mother stopped talking to him and refused to attend coparenting classes.
Father denied substance abuse issues, or knowing about mother's current substance abuse issues. A criminal records check reflected father suffered a misdemeanor battery conviction in 2010, and received probation. Grandmother reported father saw Jackson two to four times a month, and father's desire to be part of Jackson's life had grown. Father and grandmother had agreed Jackson would stay with grandmother, and she would enroll the child in prekindergarten. Father wanted to settle in financially before increasing his time with Jackson, and he did not want to disrupt the child's life. Grandmother stated she had no concerns with father, he and Jackson had a good relationship, and she would work on increasing Jackson's time with him. Father had no concerns with the maternal grandparents.
Father agreed to seek an emergency custody order in family court, and initiated the process September 27. SSA recommended Jackson "remain in the custody of" father.
SSA's detention report dated October 4, 2017, recommended Jackson "remain" with or "be released to" father's care with protective orders, although the child still physically resided with grandmother. Father stated he was comfortable with Jackson initially staying with grandmother because it was the only home the child knew and he did not want to disrupt Jackson's current living situation. He planned to meet with grandmother and Jackson, and eventually have the child live with him.
SSA filed a dependency petition (§ 300, subds. (b) [child has suffered or there is a substantial risk of serious physical harm or illness as a result of the failure or inability of his parent to adequately supervise or protect the child]; (j) [child's sibling has been abused or neglected and there is a substantial risk the child will be abused or neglected]), detailing mother's drug use, the baby's positive toxicology screen, and her withdrawal symptoms. It also mentioned father's misdemeanor conviction, and father's ignorance until July 2017 that grandmother cared for Jackson.
At the initial petition hearing, the juvenile court removed Jackson from mother's physical custody and vested temporary placement and care with father. The court directed father to comply with protective orders, including not allowing unauthorized contact between Jackson and mother, not allowing mother to reside in the family residence, ensuring Jackson received appropriate adult supervision at all times, ensuring the child's medical needs were met, cooperating with announced and unannounced visits by SSA, and not supervising mother's visits. Jackson's lawyer raised concerns about father's lack of contact with the child and that he did not know Jackson was living with grandmother for two years. The court declared it could not make a prima facie finding of emotional harm to Jackson, even though "there's probably not . . . a strong relationship between" father and the boy. The court advised father to "step up and change that," and noted it might "be a little uncomfortable at first for Jackson."
In the initial jurisdiction and disposition report, the social worker recommended sustaining the petition and terminating the dependency with exit orders. On October 18, the social worker completed a home visit at grandmother's home with grandmother, father and Jackson. Jackson, who continued to reside with grandmother, was excited to see his father and wanted to take his bike as he left with father. Father's attorney had advised him the juvenile court would grant him custody of Jackson, which superseded the need for an order from the Riverside family court, but father would petition the Riverside court if necessary. Father worked for a car dealership and shared an apartment with a roommate, but was saving money to buy a house. Ideally, he wanted primary custody, but agreed to share custody with the grandparents who had been raising Jackson. He hoped SSA would close its case because he and the grandparents were working together in Jackson's best interest and did not need SSA's involvement, but he also agreed to attend a parenting class if required. The social worker stated "father has ensured the child's safety and well-being while allowing him to live with the maternal grandmother," and SSA did "not have any concerns regarding the child's care and safety with the father or maternal grandmother."
In an addendum report dated November 15, the social worker now recommended granting legal guardianship to grandmother and terminating the dependency. Father told the social worker "his plan is still to have Jackson in his physical custody in the next year." But in early November, he advised the social worker he would like grandmother to become Jackson's legal guardian because he was not in a position to provide full-time care for Jackson.
At the jurisdiction hearing, father submitted on the allegations of the petition and the court found them true. The court set a disposition hearing.
The social worker's addendum report dated January 9, 2018, noted Jackson continued to reside with grandmother. Father visited Jackson, but sometimes missed a week or 10 days between visits. Grandmother reported father never had the child in his care overnight, or for more than eight hours at a time despite her encouragement "so it will not be as traumatic for" the child. Father stated he had changed his mind about legal guardianship for grandmother after speaking with his attorney. He rented a house that could accommodate Jackson, and he planned to have overnight visits with him in January after he moved to the new house. Father believed a slow transition would give Jackson time to adjust. Although he still planned to share custody with the grandparents, he wanted to have Jackson in his care when Jackson started kindergarten in the fall of 2018. Father also planned to share weekends with the grandparents, and also with mother depending on her progress. Father understood the grandparents were concerned with Jackson's transition, Jackson was "most important to him and he will be sure that he is comfortable with the transition to living with him more permanently."
The social worker recommended Jackson remain with father with family maintenance services, and enhancement services for mother. The social worker was concerned father had "never had the child in his care for more than a few hours at a time and [father] could benefit from continued involvement with" SSA.
At a hearing on January 9, SSA's attorney stated he had spoken with the social worker about her recommendation, and advised her she "could legally recommend removal and family reunification" for Jackson even though he had not been removed from father. She intended to make that her recommendation because she believed Jackson "should be placed in out-of-home care." The court continued the disposition hearing pending a new report and recommendation.
The social worker's addendum report dated January 24, 2018, noted Jackson continued to reside with grandmother. Father continued to work toward having Jackson in his care full-time, and had turned down a management position at the car dealership where he worked to have more time available for Jackson. He rented a house that had a separate room for Jackson, but could not move in until February 27. He chose the location because it was "around the corner from one of the best" elementary schools in the area, and he had located childcare that could accommodate his work schedule. Father outlined his plan for having Jackson start with overnights and transition gradually, while sharing custody with grandmother.
The social worker noted father had seen Jackson only once during the period of supervision, on Christmas Day for seven hours. Grandmother expressed frustration because Jackson arrived home hungry and thirsty, and the child stated he spent the day with father and his girlfriend where he watched "other kids" open gifts, and he had none. Grandmother reported father had not requested a visit after this, or provided his availability despite requests. Father responded he gave Jackson a dirt bike, clothing and accessories. He did not wrap the gifts because he thought Jackson would be excited to see them set up in the garage.
The social worker recommended removing Jackson from father with family reunification services and Jackson remaining in grandmother's care. She noted the child had lived most of his life with the grandparents, father had not taken advantage of more time with Jackson or had him overnight, and she was concerned father had not made Jackson a priority. She cited "a substantial danger to the physical health of" the child if was "returned home." The proposed case plan required completion of a parenting class.
The social worker's addendum reports dated February 21, 2018, and March 5, 2018, noted Jackson described visits with father as "good," and liked visiting with his cousins. He did not "think [he] would want to spend the night" with father however, because he liked to sleep in his own bed. Father continued to "work often and spends time with Jackson on his days off."
The court conducted a disposition hearing on March 5, 2018. Father testified he had moved into a five-bedroom home on February 27, and the home was "child proofed." Father planned to take off work until Jackson could enroll in daycare, and father intended to keep Jackson at his current preschool, where he attended two days a week. Father's aunt agreed to care for Jackson on days when daycare was closed and he was at work. Father explained he was not an hourly employee and his work hours were flexible, allowing him to attend a parenting class.
He denied currently using drugs other than alcohol, and he was required to drug test for work to maintain his sales license. He described the circumstance of his misdemeanor battery conviction in 2010, and said he did not have to attend anger management, and he did not have an anger problem.
Father described his visitation schedule after he broke up with mother around Valentine's Day 2015. Although he was allowed to visit Jackson three days per week, he consistently visited on his two days off when Jackson was at the maternal grandfather's, although there were days he missed visits because of illness, work, or Jackson's unavailability. The maternal grandfather, rather than grandmother, handled most of the drop offs and pickups during the period after father separated from mother. They met at neutral locations and no one advised him where Jackson was living. He assumed mother was handling medical, dental and educational matters until grandmother and the grandfather took over in July 2017. He continuously paid child support to mother beginning the first month of Jackson's birth.
In the summer of 2017, he learned grandmother had assumed custody of Jackson. The grandparents were vague about mother's problems and he did not know mother had been kicked out of the grandfather's home. After father and the grandparents agreed it would be better to transition Jackson over to father's care, he increased the length of his visits, but still only on his scheduled days off. He began paying child support to grandmother instead of mother, and he also paid for Jackson's preschool.
Father explained why he could only visit Jackson 11 times between October 18 and December 25: "At that point in time I was a sales manager . . . and I was working 65 to 70 hours every week so . . . I could only see him on my days off. Since . . . January 5th, I stepped . . . back to a salesperson to work less hours."
Father explained he did not see Jackson after Christmas until January 26 because grandmother told him she did not want him to visit until they discussed the Christmas visit where Jackson' feelings were hurt. He had given Jackson a dirt bike, helmet, goggles and other gear for Christmas, but did not wrap the gifts, instead parking it in the garage "all laid out." Father testified Jackson was the only young child at the Christmas gathering, and there were no other children opening gifts. Father also missed visits due to his or Jackson's illnesses. Father visited "on all [his] days off . . . in accordance with [the grandparents] schedule and [Jackson'] schedule with preschool." At some point, the social worker advised or recommended he not have overnight visits until she or the court said it was okay.
Father had read in an SSA report that Jackson did not want to spend the night with him. "That and everything else ha[d] made [him] worried about [Jackson's] transition," because it was "going to be a big change." He wanted "to make sure" he did "everything delicately and care for him appropriately." He acknowledged it was a "complicated situation" because Jackson saw his grandparents as his day-to-day caretakers.
The court removed Jackson from father's custody under section 361, subdivision (c)(1). The court noted it was "difficult situation," but found it "concerning" that father did not know where Jackson was residing and did not press the grandparents for details about mother's situation. The court cited the fact father did not take full custody of Jackson after the detention hearing, or put in place a transition plan. The court did not feel father's plan to keep Jackson in his preschool was the "best transition plan" because it involved a 40-minute drive each way. The court concluded there was "lack of complete effort on [father's] part . . . to take advantage of what he has had available between the detention and now." The court stated this "is of concern and that leads the court to believe that there is clear and convincing evidence that [Jackson] would be at risk of emotional harm if he were to be released to the care of his father." The court wanted to see a "transitional plan," including "extended time and overnights . . . ." The court ordered unmonitored visits, directed SSA to conduct a home evaluation forthwith, and authorized overnight visits. The court scheduled a six-month review for August 27, 2018.
II
DISCUSSION
A. Insufficient Evidence of Substantial Danger of Return
Father challenges the sufficiency of the evidence to support the juvenile court's dispositional finding that he posed a substantial danger to Jackson's physical or emotional well-being if the court returned the child to him. We agree.
Section 361 provides "[i]n all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Section 300, the court may limit the control to be exercised over the dependent child by any parent or guardian and shall by its order clearly and specifically set forth all those limitations. . . . The limitations may not exceed those necessary to protect the child." (§ 361, subd. (a).) "A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . . [¶] [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody. . . ." (§ 361, subd. (c); see Cal. Rules of Court, rule 5.695 [same].)
Section 361.2 provides that "[w]hen a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the 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." Although Jackson did not reside in father's custody at the time events arose bringing him under section 300 - mother technically had physical custody, but Jackson resided with grandmother - the parties and court proceeded on the assumption that section 361 rather than section 361.2 applies. Because the court cited emotional harm to Jackson, and both sections specify "emotional well-being" as a basis to remove (§ 361, subd. (c)) or deny (§ 361.2) placement, we perceive no difference in outcome under either section. We also note both sections authorize the juvenile court to exercise ongoing supervision of the child following the custodial decision, including ordering services. --------
After the juvenile court makes a true finding at the jurisdictional phase of a dependency case, the court then must consider whether to declare the minor a dependent child and whether the child would be at substantial risk of harm if not removed from the parent's care. (§§ 358, subd. (a), 360, 361; In re I.C. (2018) 4 Cal.5th 869, 876 ["court may impose limitations on parental authority as necessary to protect the child . . . and may also order that the child be removed from a parent's physical custody if there is clear and convincing evidence that removal is necessary to protect the child from a substantial risk of harm"]; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 252-253 [due process precludes removal of child without clear and convincing evidence of detriment]; In re Henry V. (2004) 119 Cal.App.4th 522, 530-531 [maintaining family bond between children and parent if possible serves the interests of parents, children, family, and community]; In re Austin P. (2004) 118 Cal.App.4th 1124, 1129.)
We review the juvenile court's decision to remove a child from parental custody at the disposition hearing for substantial evidence. (In re T.V. (2013) 217 Cal.App.4th 126, 136-137.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) When a parent challenges an order on the grounds of insufficient evidence, the appellate court reviews the evidence in the light most favorable to the juvenile court's order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. (In re D.M. (2012) 205 Cal.App.4th 283, 291.) The parent has the burden to demonstrate there is no evidence of a sufficiently substantial character to support the juvenile court's order. (Ibid.; but see In re Jeannette S. (1979) 94 Cal.App.3d 52, 59-60 [parenting is fundamental right and "cardinal rule of our society that the custody, care and nurture of a child resides first in the parents rather than in a public agency"]; see also Santosky v. Kramer (1982) 455 U.S. 745, 753.)
We conclude no substantial evidence supports the juvenile court's decision to remove Jackson from father's custody. In arguing otherwise, SSA emphasizes father did not contest the jurisdictional findings, and a juvenile court's jurisdictional findings are prima facie evidence the child cannot safely remain in the home. But the substantive allegations of the petition pertained solely to mother. The court did not remove Jackson from father's custody at the initial petition hearing in October 2017. The sustained jurisdictional findings therefore do not establish prima facie evidence Jackson could not safely remain in father's home.
In a similar vein, SSA complains "Father had made little to no progress on his promised plan to transition the child from the maternal grandmother's care to his care in a manner not detrimental to the child's emotional health." Again, we cannot ignore that the juvenile court did not remove Jackson from father's custody at the initial petition hearing. At that time, the court stated it could not make a prima facie finding of emotional harm, even though "there's probably not . . . a strong relationship between" father and Jackson, and noted Jackson might "be a little uncomfortable at first . . . ." The record reflects father complied with the court's protective orders. He also continued to pay monthly child support, maintained generally regular visitation, assisted the grandmother in enrolling the child in preschool, paid preschool tuition, and Jackson appeared comfortable in father's care. Grandmother stated she had no concerns with father, and Jackson and he had a good relationship. The record demonstrates father wanted to settle in financially before increasing his time with Jackson, and he did not want to disrupt the child's life. He did not believe he had an appropriate home for Jackson at the time of the initial petition hearing, and he also recognized the grandparents had been providing daily care for Jackson for two years, if not longer, and the boy naturally looked to them as his primary caregivers. Father allowed Jackson to remain with grandmother as they worked through a transition phase.
The juvenile court faulted father for failing to take Jackson into his home immediately after the detention hearing. But the question was not whether there was a "lack of complete effort on [father's] part . . . to take advantage of what he has had available between the detention and now," but whether leaving Jackson with father posed a substantial danger to the child. No evidence showed father posed any risk to the child, let alone a substantial one.
Another problem with SSA's argument is that by the date of the disposition hearing in March 2018, father had "stepped up" and made progress implementing a transition plan. He had secured a home where Jackson could live and sleep in his own room. He had declined a management position so that he would have more time for Jackson, constructed a childcare plan and continued visiting Jackson as his work schedule allowed. We also take into account SSA's mistaken action in denying father overnight visits before the disposition hearing.
SSA argues the court reasonably could conclude there was substantial risk father would "continue to not step up and to leave the child in the maternal grandmother's care indefinitely, or would suddenly displace the child from his primary caregiver which would be detrimental to the child's emotional health. The court reasonably wanted to oversee the transition to make sure it progressed in a safe manner for the child."
SSA's argument is based in speculation. Father testified without contradiction he was ready and willing to "step up" and accept immediate placement of Jackson. As described above, he had made preparations that supported his intention. There is no evidence in the record that father did not intend to do what he testified he would do at the disposition hearing. The record does not reflect father intended to "suddenly displace" Jackson, and nothing in the record suggests Jackson's emotional well-being would be substantially endangered by placement with father. Although Jackson had not lived with father, the juvenile court frequently places children with unrelated strangers without causing emotional damage. Here, father had a longstanding and beneficial relationship with his son. Although Jackson expressed a desire to live with the grandparents, this does not show a change in placement would cause him substantial emotional harm. Father also expressed an intention to allow the grandparents to continue their important and beneficial role in Jackson's life.
SSA asserts the court found "[f]ather's current proposed plan . . . insufficient" because "[f]ather planned to keep the child at his current preschool, a 45-minute drive away, which meant a total of three hours a day in a car for the child." Jackson attended school only two days a week. A twice weekly 40 to 45-minute drive at the beginning and end of a school day - a total of 90 minutes, not three hours - is not demonstrably detrimental.
SSA also faults father for failing to demonstrate his new home was childproof, but father testified the house was childproof, and SSA did not counter his testimony. In any event, the court could have required a home inspection rather than removing Jackson if this was a significant concern. The court also had options to protect Jackson's emotional well-being short of removing him from father. (§ 361, subd. (c)(1)(B) [allowing nonoffending parent to retain physical custody with a plan acceptable to the court demonstrating parent will protect the child from future harm]; § 361.2, subd. (b)(2)-(3) [if court places child with noncustodial parent it may order parent assume custody subject to the jurisdiction of the juvenile court and require a home visit within three months or order parent assume custody subject to the supervision of the juvenile court with services].)
SSA asserts "[t]he court wanted to see a transitional plan before Father took custody, including extended visitation and overnights." Again, SSA erroneously thwarted father from having overnight visits before the disposition hearing. While extended and overnight visits are appropriate before returning a child to an offending parent, the absence of overnight visits is not an appropriate basis to remove a child from a nonoffending parent where the record does not establish placement with the parent would pose a substantial danger to the child.
Father, like many or most working parents, could not, as minor's counsel argued below, "be there 24/7," but this did not mean he was not showing a commitment to his child. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 821 [fact child has been left with other caretakers does not warrant dependency where child receives good care].) Many parents rely on grandparents for childcare. The record conclusively demonstrates Jackson received exemplary care under the plan worked out between father and the grandparents. By the time of the disposition hearing, father was willing and prepared to shoulder his full parental duties. The record reflects Jackson would not be at risk of harm in father's care. The undisputed facts in this case demonstrate there was insufficient evidence to sustain the detriment finding and removal order.
III
DISPOSITION
The March 6, 2018 findings and order removing Jackson from father's custody is reversed.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.