Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Maria Elena Ratliff, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JVDP18000225)
THE COURT APPEAL from an order of the Superior Court of Stanislaus County. Ruben A. Villalobos, Judge. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Peña, J.
Appellant T.A., mother, contends the juvenile court abused its discretion by placing the minor, Samuel, with his nonbiological presumed father, Robert T., and dismissing the dependency case pursuant to Welfare and Institutions Code section 361.2. We affirm.
All statutory references are to the Welfare and Institutions Code. --------
FACTUAL AND PROCEDURAL SUMMARY
Mother has five children. Samuel is the oldest at seven years of age; he has four younger half sisters. Only Samuel is the subject of this appeal; the half sisters have different fathers.
The children came to the attention of the Stanislaus County Community Services Agency (agency) when a referral was received on November 30, 2018, regarding failure to address significant medical issues of the four half sisters. One half sister had Waardenburg syndrome, which causes multiple serious conditions; two girls had hypothyroidism and required daily medication. None of the half sisters were receiving proper medical treatment.
The agency began their investigation at the school Samuel and his two older half sisters attended. Only Samuel was at school; the girls were at home because mother slept in and did not attend to the children. Samuel got to school with help from his grandmother.
The social worker and public health nurse then went to mother's residence. After knocking on the door and ringing the doorbell at 1:46 p.m., mother finally came to the door at 2:15 p.m. The house smelled of urine. Mother was drug tested and tested positive for methamphetamines and amphetamines.
Mother described the medical needs of the four half sisters; however, her description did not match the information obtained by the public health nurse from the medical providers. Mother's uncle entered the home and was verbally hostile to the social worker and public health nurse; he then became physically threatening and the social worker and public health nurse left the home as it was not safe to remain.
About 10 minutes after the social worker and public health nurse left, mother called to tell them it was safe to return. Mother wanted to drug test again and another test was administered. This test also was positive, and mother admitted to having used cocaine. Mother's current boyfriend, Lucio, who was the father of the three younger half sisters, was drug tested. He tested positive for methamphetamines and amphetamines. The children reported witnessing domestic violence in the home.
On December 5, 2018, the social worker and public health nurse returned with law enforcement to take the children into custody. The uncle again was verbally abusive towards them. The baby was admitted to the hospital for care and treatment. The one year old had multiple dark bruises on her buttocks. All of the half sisters had "a great amount of nits" in their hair; Samuel's head had been shaved and he did not have nits.
Also on December 5, 2018, the social worker contacted Robert to advise him of the detention hearing. Robert stated Samuel had just been with him two weeks ago for a visit. Samuel was supposed to be back at Robert's shortly for an early Christmas. Robert planned to attend the detention hearing.
The petition filed under section 300, subdivision (b), named Robert as Samuel's presumed father, but in the body of the petition referenced Robert as the alleged father of Samuel. The petition alleged that Robert had a criminal history, including substance abuse convictions and a history of substance abuse.
Mother and Robert both appeared at the detention hearing. Robert's counsel noted that Robert lived in El Dorado County and would like Samuel placed with him. Child support files indicated that another man had been adjudicated as Samuel's father, so the juvenile court ordered genetic testing for Samuel and Robert. Samuel and his half sisters were ordered detained.
On January 23, 2019, the social worker contacted Robert to report that genetic testing revealed he was not Samuel's biological father. He was told he could ask to be dismissed from the dependency action or pursue raising his status to presumed father because of his relationship with Samuel. Robert immediately replied, "it doesn't change anything. I love him like my son. He is still my son." Robert indicated he wanted to pursue placement and continue in a fatherly role to Samuel.
The following day at a court hearing, Robert's counsel communicated to the juvenile court Robert's desire to be elevated to presumed father status and to have Samuel placed with him. Counsel noted that Robert had considered and treated Samuel as his son for the past seven years.
The jurisdiction and disposition report recommended that all five children be removed from mother's custody; that Robert be elevated to the status of presumed father of Samuel; and that Samuel be released to Robert pursuant to section 361.2, with a termination of jurisdiction as to Samuel. The recommendation was that Robert be awarded sole legal and physical custody of Samuel.
The social history on Robert indicated he had been exposed to substance abuse and criminal activity at an early age. Robert had spent time in prison, where he obtained his G.E.D. in 2016. He was now a certified welder working in construction. Robert met his wife in 2016 in a faith-based treatment program and they married in 2017. Robert and his wife had a seven-month-old daughter.
Robert acknowledged that he had started using methamphetamine when he was 13 years old. He had been clean and sober since February 2014. Robert's support system included his wife, his grandmother, and his church family, who all held him "accountable." Robert was heavily involved in an addiction ministry at his church and knew where to access appropriate resources, if needed, such as Narcotics Anonymous or Alcoholics Anonymous. His only health issue was a reported mild to moderate hearing loss.
Robert provided a statement for the jurisdiction and disposition report acknowledging his past, in which he states, "it's evident that I have a past and I'm not trying to deny that at all. At that point in time I was not ready to be a father. While incarcerated in prison I found Jesus and fell in love with him. From that day my life has changed and will never be the same."
Robert explained that upon release from prison in 2016, he entered a faith-based program based in El Dorado County. He met his future wife and married. He was discharged early from parole after only one year because of good behavior. Robert was in a leadership role in his church in the addiction ministry, where he helps people struggling to overcome addiction. Robert believed he was a changed man, able to be a good father, and desired to give Samuel a good life and "a chance."
Neither mother nor her current partner appeared for their interviews with the social worker. Mother also had not attended a substance abuse assessment and failed to show for a hair follicle test. Mother had completed an intake appointment for other services but had not begun services.
The report included an evaluation of potential placement of Samuel with Robert. The social worker noted that Robert had a relationship with Samuel that preceded the dependency case and included phone calls and visitation, and the provision of clothing and food for Samuel. Robert had openly held Samuel out as his child to family and friends and welcomed Samuel into his home.
In addition, the report recognized that Robert had a substance abuse history but noted he had been clean and sober for five years and had a strong support system in place to help him maintain sobriety. Robert submitted to urine and hair follicle testing; both were negative for all substances.
Robert's wife also was assessed for placement. She had been forthcoming about her history, including a substance abuse and a child protective report predating 2013. The wife had maintained sobriety for five years and like Robert, had no recent criminal history or substance abuse, and there had been no concerns over the care of their daughter. The wife also submitted to urine and hair follicle tests, which were negative for all substances.
The report noted that Robert was committed to Samuel's well-being and desired to have Samuel placed in his home. The interactions between Samuel, Robert, and Robert's family had been observed and the social worker reported Samuel was comfortable and happy in their presence and the interactions went well. Both Robert and his wife interacted with Samuel during visits and Samuel was reluctant to leave them at the end of a visit. The social worker opined that Samuel is "comfortable and happy" with Robert and they had a genuine bond.
Robert had committed that if there ever were any concerns about his wife's interactions or care of Samuel, he would choose to protect Samuel. Additionally, Robert was willing to transport Samuel once per month to visit with his mother and half sisters.
Visits between mother and Samuel did not always go well. Mother generally did not interact with Samuel or the other children during visits. In one visit, she informed the social worker she and her current partner were considering signing a waiver of all reunification services so the two of them could move out of state without the children.
Robert's interactions with Samuel were rated as "good" by the social worker. Mother's were rated as "ok."
The matter was set for a contested jurisdiction and disposition hearing as to Samuel. An addendum report was filed for the contested hearing. The addendum report noted that mother had been referred a third time to complete a hair follicle test, completed a substance abuse assessment, and claimed to be "unable" to provide a urine sample.
The addendum report also noted that mother reported to the social worker that she experienced domestic violence in her relationship with Robert. Robert reported he and mother had not been in a relationship, but only "messed around" a few times. Robert recalled one argument between them but adamantly denied it ever became physical. Robert acknowledged he was about 24 years old when he met mother; mother was much younger; and Robert was an addict at the time.
On March 21, 2019, the juvenile court allowed an extended visit between Robert and Samuel.
The contested hearing occurred on April 9, 2019. Mother arrived after the hearing started. Counsel for Robert made an offer of proof that he first had contact with Samuel when the boy was six months old, then again when he was released from prison. Robert always considered Samuel his son, despite the DNA test, and has always held him out to family and friends as his son. Even without a child support order, Robert had provided food, clothing, and other items for Samuel. Samuel considered Robert to be his father. The offer of proof was accepted by all parties.
Robert asked to be elevated to presumed father status. The adjudicated father from child support records also asked to be named presumed father.
Mother objected to Samuel's placement with Robert, claiming Samuel did not know him well enough. She did not feel that Robert posed any danger to Samuel. Mother also agreed that Robert "does love him as his own." She wanted Samuel to remain in foster care to eventually be reunited with her. Mother felt that Samuel should not be separated from his half sisters.
Mother had thought Robert was Samuel's biological father and she told her son that he was his father.
When asked about her claim of domestic violence by Robert, mother reported that when she told Robert she was pregnant and considering an abortion, she claimed Robert "choked me in the bathroom of my grandmother's house." Mother admitted that she never told anyone about the alleged choking incident and never called the police.
After presentation of evidence concluded and the parties argued the matter, the juvenile court elevated Robert to presumed father status. The juvenile court determined the allegations of the petition to be true and found Samuel came within the provisions of section 300, subdivision (b). The juvenile court also found that there was no danger to Samuel based on any claim of domestic violence by Robert. In addition, the juvenile court found that there would be a substantial danger to Samuel if he was returned to mother's custody.
The juvenile court found that Robert was a parent of Samuel with whom Samuel was not residing at the time of the petition and Robert desired to have placement and custody of Samuel. In addition, the juvenile court found that placement of Samuel with Robert would not be detrimental to the physical or emotional well-being of the child.
Finally, the juvenile court found that the best interests of Samuel would be served by placing him with Robert, a nonoffending, noncustodial parent. The juvenile court awarded Robert legal and physical custody of Samuel, directed reasonable visitation be provided to mother, and terminated dependency jurisdiction over Samuel.
Mother filed a notice of appeal on May 14, 2019, challenging the award of custody of Samuel to Robert.
Mother contends the juvenile court abused its discretion in placing Samuel with Robert because Robert had a prior history of substance abuse and a criminal record. She also apparently challenges the exit order.
Placement with Noncustodial Parent
Section 361.2 protects the custody rights of a noncustodial parent when the juvenile court removes the child from the custodial parent. In essence, it requires the juvenile court to place the child with the noncustodial parent unless doing so would be detrimental to the child. Specifically, section 361.2, subdivision (a) provides: "When 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."
"A detriment evaluation requires that the court weigh all relevant factors to determine if the child will suffer net harm." (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425.) The juvenile court's detriment finding must be based on clear and convincing evidence. (Id. at p. 1426.)
When the juvenile court's detriment finding under section 361.2, subdivision (a) is challenged on appeal, we do not review the record to determine whether there was evidence to support a contrary finding. Rather, we determine whether there is substantial evidence from which the juvenile court could find clear and convincing evidence that placement would be detrimental. (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1262.) Under the substantial evidence test, we "review the record in the light most favorable to the court's order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that placement would be detrimental to the child." (Ibid.)
Here, the juvenile court found that placing Samuel with Robert would not be detrimental to the child. The agency recommended Samuel be placed with Robert. Section 361.2, subdivision (a) requires placement of the child with a noncustodial parent requesting custody unless such placement is detrimental to the child. (In re K.B. (2015) 239 Cal.App.4th 972, 979.) As the party opposing this placement, mother bore the burden of proving by clear and convincing evidence that placing Samuel with his presumed father, Robert, would be detrimental. (Ibid.) She failed to meet that burden.
Granted, Robert had a prior substance abuse problem and a criminal history related to that prior substance abuse. However, Robert had been clean and sober for five years, was gainfully employed, active in his church, and had a strong support network to maintain sobriety. Samuel considered Robert his father and visitation between Samuel, Robert, and Robert's family had gone well. Despite knowing he was not Samuel's biological father, Robert loved the child and wanted Samuel to live with him. Robert was willing to make Samuel's interests paramount and provide the child with a stable, loving home life.
There was no indication that Robert had ever, or would ever, harm the child, as mother conceded. There was no evidence that living in the home with Robert's wife would be detrimental to the child; she had overcome her prior substance abuse and other issues. Robert and his wife had both demonstrated an ability to overcome prior problems, reform their lives, and become productive members of society, something mother had been unable to do as of the date of disposition.
Mother argues that she and Robert had a sexual relationship many years ago while she was still a minor. While not excusing Robert's behavior, there is no evidence that father engaged in any other sexual activity with any minors, or that Robert is a sexual predator. Mother and Robert were both using drugs at the time and both acknowledged they were not in a relationship; they merely "messed around" a few times.
Mother also argues the alleged domestic violence incident between her and Robert when she was pregnant demonstrates detriment. However, the juvenile court found mother's testimony on this point less than credible, Robert denied any violence, and the juvenile court found this issue did not pose a current risk of harm to Samuel.
Rather than being placed with his noncustodial presumed father, mother wanted Samuel to remain in limbo in foster care for an unspecified amount of time until she could reunify with Samuel. Such a result, however, is contrary to the statute. Section 361.2, subdivision (a) requires placement with the noncustodial parent, in this case Robert, unless there is a finding that such placement would be detrimental to the child. Weighing all the relevant factors, there was no evidence Samuel would suffer any harm, or "net harm," by being placed with his presumed father Robert and Robert's family. (In re Luke M., supra, 107 Cal.App.4th at p. 1425.)
When placing a child with a noncustodial parent under section 361.2, a juvenile court may grant legal and physical custody to the noncustodial parent and terminate jurisdiction, while providing reasonable visitation rights to the former custodial parent. (§ 361.2, subd. (b)(1).) This approach contemplates that any further proceedings will take place in a family court. (Ibid., § 362.4.) This was the approach taken here by the juvenile court.
The decision of whether to terminate jurisdiction under section 361.2, subdivision (b)(1), or select another option under that code section is reviewed for abuse of discretion. (In re Maya L. (2014) 232 Cal.App.4th 81, 102.)
We conclude the juvenile court did not abuse its discretion in finding that continuing jurisdiction was unnecessary. Samuel was comfortable and happy in the company of Robert and his wife and they interacted appropriately with Samuel. There was no need to foster a relationship with reunification services as called for in section 361.2, subdivision (b)(3); a bond already existed between Robert and Samuel. The social worker had investigated the background of both Robert and his wife and interviewed both adults and had no concerns about placing Samuel in their home. Thus, there was no need for a home visit as contemplated in section 361.2, subdivision (b)(2).
The exit order provided mother with reasonable visitation and terminated dependency jurisdiction, as provided for in section 361.2, subdivision (b)(1). Under the circumstances, there was no abuse of discretion. (In re Maya L., supra, 232 Cal.App.4th at p. 102.)
The order giving Robert sole legal and physical custody of Samuel and dismissing the dependency action as to Samuel is affirmed.