Opinion
F076567
06-26-2018
In re L.A. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. L.A., Defendant and Appellant.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 17CEJ300238-1, 17CEJ300238-2, 17CEJ300238-3)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Leanne LeMon, Commissioner. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Franson, J.
-ooOoo-
L.A. (father) appeals dispositional orders under the Welfare and Institutions Code placing his children, L.A. (born in 2000), A.A.1 (born in 2003) and A.A.2 (born in 2004) (together the children) with a maternal aunt, rather than with him, pending reunification with the children's mother, K.A. He contends substantial evidence did not support the finding under section 361.2 that the children would suffer detriment if placed with him, the noncustodial and nonoffending parent. We disagree.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Mother is not a party to this appeal.
STATEMENT OF FACTS AND PROCEDURE
Background
The children and mother's younger child A.P. were referred to the Fresno County Department of Social Services (department) on June 22, 2017, after mother forced the children out of her home the day before after a fight with them and forbid them to return. This had occurred on previous occasions as well. The children went to the home of their maternal aunt (also referred to as their maternal cousin). A.P. remained with mother. At the time of this incident, mother was already being investigated for a previous allegation that she smelled of alcohol when retrieving one of the children from school.
A.P.'s father is deceased. --------
On July 11, 2017, the aunt called father to inform him that the children were with her. Father, who lived on the East Coast in New Hampshire, told the aunt to take the children to his mother's, the children's paternal grandmother.
On July 18, 2017, the social worker informed mother and the aunt that an "Imminent Risk Team Decision Making Meeting" would be held the following day. Mother did not attend.
Another team meeting was held July 20, 2017. The social worker requested a "Parent search" for father and, following the team meeting, the social worker called father, who requested custody of the children. Father was informed of the detention hearing and he stated that he wished to participate in the hearing by telephone. The children stated that they rarely communicated with father and did not want to live with him. Detention
The department filed a section 300, subdivision (b)(1) petition July 21, 2017, alleging mother's alcohol and drug abuse and forcing the children to leave the home and not allowing their return placed the children at risk of harm. No allegations were made against father.
Mother was not present at the initial hearing July 24, 2017. Neither was father, although the juvenile court noted father had informed the social worker he wished to be present telephonically and it was unclear whether father had been informed how to do so. The juvenile court stated it would allow him to appear telephonically at the next hearing. The department recommended the children be detained with their aunt and not with father until further assessments were completed, as father lived in New Hampshire. Father's counsel noted father's request that the children be placed with him and asked that the department assess him for such placement.
The juvenile court made a prima facie finding on the petition and detained the children in the home of the maternal aunt. The court ordered "reasonable supervised in person, telephonic visitation, and/or skype and letters" between father and the children. The juvenile court agreed that in person visits between father and the children could occur if he were to come in state. Mother was to receive supervised visitation once she made herself available to the department. The Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) applicability was deferred.
No voluntary services for father were recommended by the department and the juvenile court did not order any pending further assessment on contact. Jurisdiction was set for August 21, 2017. Jurisdiction
The report prepared in anticipation of jurisdiction stated father again requested that the department place the children with him. According to father, he was in the military when he and mother separated, but had maintained regular visitation with the children for many years afterwards. Father claimed mother severed contact with him three to four years ago and the visits ended when mother would not allow father's request that the children spend the summers with him. He had not spoken to the children in a year. Father informed the social worker that he lived in a two-bedroom apartment with his fiancé, that neither of them had any criminal history, and that they would move into a larger residence if the children came to live with them. Father wanted the children to have a stable environment with positive role models, and he was willing to participate in court-ordered services. The social worker reported that father was not involved in any previous abuse or neglect referrals and confirmed that he had no criminal history.
The children told the social worker that they were willing to speak with him on the telephone, but did not wish to live with him. They wished to reunify with mother.
The report stated that none of the children had any known medical or developmental concerns, and each was able to voice his or her concerns and needs. The report also noted that each child had had issues with school attendance, and a change of schools was requested for transportation purposes.
The social worker referred mother to parenting classes, a substance abuse assessment and treatment, drug testing, and a mental health evaluation. Father was not referred to any services. The social worker recommended that the juvenile court not place the children with father pending further assessments as father lived in New Hampshire.
At jurisdiction August 21, 2017, both mother and father filed ICWA-020 forms indicating they had no known Indian ancestry. Father appeared at the hearing telephonically; mother again failed to appear.
Father's counsel submitted on the matter of jurisdiction, noting that none of the allegations pertained to father. However, father's counsel asked that a contested disposition hearing be held regarding his request for placement.
The juvenile court sustained the petition. A settlement conference was set for September 18, 2017, and a contested disposition hearing for October 2, 2017. Settlement Conference
At the September 18, 2017, settlement conference, a guardian ad litem was appointed for mother, who had been in the hospital for an aneurism and had difficulty communicating. Disposition
In the report prepared for disposition eventually held November 6, 2017, the social worker noted that the children continued to oppose a move to father's home, and both A.A.1 and A.A.2 refused to speak to him. L.A., who was speaking with father, told the social worker that his phone calls with father were "fine," although he did not wish to live with father because he would miss A.P., he liked his school, and he did not feel he had a relationship with father. But L.A. also did not wish to reunify with mother.
A.A.1 did not want to move to father's home because she would miss her younger brother and because she felt father had previously chosen "other women" over her and her siblings. A.A.1 hoped to reunify with mother.
A.A.2 wanted to remain with her maternal aunt because she wanted her siblings to remain together. She also wished to reunify with mother.
Father appeared at the hearing and requested placement of the children. By this time, father and his fiancé had moved to Austin, Texas, due to a change in employment. Father was now working as a recruiter for Google.
Father testified that he loved his children and he was willing to provide a permanent home to A.P. as well, to keep the sibling group intact. He wished to provide stability for the children and guide them into adulthood. Father testified that he had already sought out schools and medical providers for the children; that he would ensure each attended school regularly; that each would be covered by medical insurance, and that he was willing to seek out and utilize family therapy if it would assist with the children's transition to his home.
Father testified that he was employed by Google as a recruiter and that he had past steady employment after serving in the military and attending college. He had consistently paid child support since 2007, when he first obtained employment, and he had previously covered the children on his medical insurance. Father testified that he loved his children "beyond belief," but that not being around them "has been more about work situations and money than anything else."
Father testified that he never sought or got a custody agreement so he could see his children more often, but had tried instead just to work with mother on the issue. He acknowledged that, prior to this case, he had not seen the children in two years. According to father, the children had met his fiancé a couple of times.
Father testified that he visited the children as much as possible, taking into account the distance between them. He had traveled from New Hampshire to California approximately 20 times over the past 10 years to visit, and spent three to four nights in a hotel room with them on such visits as recently as two years ago. According to father, mother changed her telephone number often, and he lost contact with the children soon after his last overnight visit when mother changed residences and her whereabouts became unknown to him.
Father testified that he wished to assist mother in remaining in the children's lives, and also with A.P. if the juvenile court declined to place him with father. Father was willing to travel to facilitate visitation for the children with mother and A.P. at least once a year. Father said mother could have telephone calls and visits as much as she would like, because he had "no problems with their mother" and would not want to keep the children from mother. Father was willing to participate in services to strengthen his relationship with the children. Father acknowledged that L.A. did not want to live with him and that A.A.1 and A.A.2 refused to talk to him.
The social worker testified that she had intended to view father's residence in New Hampshire, but he had moved to Texas three weeks ago. The social worker acknowledged making no arrangements for any in-person visitation between the children and father, but stated telephone conversations had taken place between father and L.A.; the girls had refused to talk to him. The social worker had no basis to believe father would fail to adequately care for the children, or that father had any mental health concerns. The social worker noted a very strong bond between all four children and opined that it would be detrimental to separate them.
Counsel for the department asked that the juvenile court declare dependency for the children, place them with their maternal aunt, and order that both mother and father receive family reunification services. The department recommended mother receive mental health, domestic violence, and substance abuse assessments, and to engage in any recommended treatment, and to take parenting classes. The department recommended a parenting class and mental health assessment for father.
Mother's counsel and the children's counsel presented no affirmative evidence, but supported the department's recommendations.
The juvenile court found father sincere and honest, but noticed his past actions over the last several years had been minimal in terms of contact with the children. The juvenile court declined to place the children with father, finding that doing so would be detrimental to the children "emotionally," based on their bond with each other and with A.P.. The court also stated that A.A.1 and A.A.2 never lived with father and L.A. had only done so as a small child. The juvenile court agreed that the child not wanting to live with father could not be the sole reason for not placing them with him, as father had a legal right, but it did find the children's sibling relationship an "important right" it considered "heavily," and noted the social worker's opinion that it would detrimental to place the children with father at this time. The juvenile court also noted that placing the children with father would require the children to change schools, they would not have their regular support system in Fresno of family and friends, and they would be moving out of state, a state that father had only lived in for three weeks. The juvenile court stated that, "in light of the children's bond, their stability currently, and the lack of relationship with [father]" it would not place the children with father at this time.
The juvenile court found the ICWA inapplicable, declared the children dependents of the court, removed them from mother's custody, placed them in the home of their aunt, and ordered reunification services for both mother and father. Mother was ordered to participate in parenting classes, a domestic violence evaluation, a mental health evaluation, a substance abuse assessment, and random drug testing. Father was ordered to participate only in a mental health assessment.
Father was ordered to receive liberal unsupervised visits with the children by means of in-person visitation, telephone calls, skype, or letter. The juvenile court also encouraged the children to visit with father.
Postdisposition mediation was set for January 29, 2018, and a review hearing for April 23, 2018.
DISCUSSION
Section 300 governs a dependency court's initial acquisition of jurisdiction over a child. Section 300, subdivision (b)(1) provides that jurisdiction exists when a child is at risk to suffer serious physical harm or illness "as a result of the failure or inability of his or her parent ... to adequately supervise or protect the child, ... or by the inability of the parent ... to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse...." Section 361, subdivision (c)(1) authorizes the court to remove a child from "the physical custody of his or her parents ... with whom the child resides at the time the petition was initiated [if] the juvenile court finds clear and convincing evidence [that] ... [¶] [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 parents' ... physical custody...."
The statute governing father's request that the children be placed in his custody is section 361.2, subdivision (a), which 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."
"[U]nder this statute a court has broad discretion to evaluate not only the child's physical safety but also his or her emotional well-being. In an appropriate case, all that might be required is a finding such a placement would impair the emotional security of the child." (In re C.C. (2009) 172 Cal.App.4th 1481, 1490.) In determining detriment, "a court is authorized to evaluate the appropriateness of keeping siblings together, and to consider sibling relationships as one factor, among many, when determining detriment for purposes of its placement decisions." (In re Luke M. (2003) 107 Cal.App.4th 1412, 1422 (Luke M.); see id. at p. 1425 ["detriment finding can properly be supported by the emotional harm arising from the loss of sibling relationships even in the absence of the noncustodial parent's contribution to the detriment"].)
"[T]o comport with the requirements of the due process clause, a finding of detriment pursuant to section 361.2, subdivision (a) must be made by clear and convincing evidence." (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1829; accord In re Isayah C. (2004) 118 Cal.App.4th 684, 697 ["a nonoffending parent has a constitutionally protected interest in assuming physical custody, as well as a statutory right to do so, in the absence of clear and convincing evidence that the parent's choices will be 'detrimental to the safety, protection, or physical or emotional well-being of the child'"].)
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 the children would suffer such detriment. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329; cf. In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
Under the plain terms of the statute, if the juvenile court finds that placing a child in the physical custody of a noncustodial parent would not be detrimental to the child within the meaning of section 361.2, subdivision (a), it must place the child in the physical custody of the noncustodial parent.
Here, the juvenile court considered the requirements of section 361.2, at length, when it denied father's request for physical custody of the children and found moving the children to Texas with father would result in emotional detriment to them as a result of their separation from their youngest sibling, A.P., their stability, and their lack of relationship with father.
It is true, as father notes, that while the child's wishes, sibling bonds and the child's relationship with the noncustodial parent may be considered by the juvenile court in determining whether placement of a dependent child with a noncustodial, nonoffending parent would be detrimental to the child's physical or emotional well-being, none of these factors is determinative. (In re Abram L. (2013) 219 Cal.App.4th 452, 460-461 [wishes of 14- and 15-year-old brothers and alleged lack of relationship between children and noncustodial parent not sufficient]; In re John M. (2006) 141 Cal.App.4th 1564, 1570 (John M.) [14-year-old child's wishes not sufficient]; In re Isayah C., supra, 118 Cal.App.4th at p. 700 [sibling relationships not sufficient]; but see Luke M., supra, 107 Cal.App.4th at pp. 1425-1426 [wishes of children 10 and eight years old and unusual bond with half siblings sufficient to support detriment finding].) In support of his argument that placement with him was in the children's best interests, father notes he was willing and able to take the children and had already located schools and doctors for them; he had no history with child protective services and no criminal background; there were no allegations of abusive or neglectful conduct on his part; and there was no indication that he had mental health or substance abuse issues.
In reviewing father's claim, we address various cases upon which father relies. In In re C.M. (2014) 232 Cal.App.4th 1394 (C.M.), the 12-year-old minor had been the subject of various dependency referrals prior to being removed from mother's care. During the investigation of these referrals, the minor told the social worker she saw father on weekends and "things were better" at his house, but that she did not want to live with him. (Id. at p. 1397.) A few months later, when the minor again spoke to the social worker, she stated she had frequent telephone calls with father and unmonitored overnight visits for holidays, which she enjoyed. The minor's therapist encouraged these contacts. (Ibid.) After being removed from mother's custody, the minor was placed with maternal grandmother. At disposition, noncustodial father requested for placement. The juvenile court denied the request, noting the minor was uncomfortable with father as she had never lived with him, but it made no finding of detriment. (Id. at p. 1400.) The Court of Appeal found the minor's wishes to remain with maternal grandmother, the lack of an established relationship with father, her desire not to be separated from a half sister, or the fact that the minor would be in stepmother's care much of the time due to father's work schedule insufficient to constitute substantial evidence "of the high level of detriment required under section 361.2(a)." (Id. at p. 1403.) The Court of Appeal reversed the dispositional order and remanded for a new dispositional hearing. (Id. at pp. 1404-1405.)
In In re K.B. (2015) 239 Cal.App.4th 972 (K.B.), mother appealed the juvenile court's order placing her six-year-old son with his nonoffending and noncustodial father, who lived out of state. During the course of the dependency investigation, it was learned that the minor had been in contact with father through social media and by telephone. The minor liked talking with father and wanted to speak to him daily. While his first preference was to return to mother's home, if that was not possible, he wanted to live with father. (Id. at pp. 975-976.) The Court of Appeal found substantial evidence to support the juvenile court's dispositional order placing the minor with father, despite the fact that he would not be placed with an older stepbrother. (Id. at p. 979.)
And in John M., supra, 141 Cal.App.4th 1564, John (13 years old) and his 10-month-old half sister were detained and placed with the maternal grandmother after the mother physically abused John. John's father, who lived in Tennessee, wanted custody of John, with whom he had been in telephone contact for a year after a four-year hiatus; John wanted to live with a maternal aunt. The juvenile court declined to place John with the father because there had been little contact between them, John did not want to move to Tennessee, the father's out-of-state location made him "'an unknown entity'" (id. at p. 1568), there was a reunification plan for the mother, and services would be necessary to ensure John's safety and the success of a placement with father. The appellate court reversed, finding these factors were not sufficient to support a finding of detriment under section 361.2, subdivision (a). (In re John M., supra, at p. 1576.)
We find C.M., K.B., and John M. distinguishable on the facts before us. In each case, the minors had an established relationship with father. In neither C.M. nor K.B. was it found that the sibling relationship was so strong that the child would suffer emotional harm if separated from them. (C.M., supra, 232 Cal.App.4th at p. 1402; K.B., supra, 239 Cal.App.4th at p. 980.)
By contrast, in Luke M., supra, 107 Cal.App.4th 1412, four children (Leanna, Luke, Lenay and Lindsey) were removed from their mother's care after she was arrested for drug possession. A social worker for the San Diego County Health and Human Services Department initially recommended the children be placed with their father, who was living in Ohio, because he was able to provide for them and there was an "extremely strong bond between the children, as evidenced by a ... counselor's assessment that it would be detrimental to separate the children." (Id. at p. 1417.) After Lindsey, the youngest child, reunified with the mother in the treatment facility, the social worker recommended the other three children remain placed with their paternal aunt and uncle as the children had requested: "The social worker opined that, based on her four-month involvement in the case, the wishes of the children should be followed. She noted that the children are bonded to each other and become depressed when approached with the thought of being separated. Ever since they were removed from the mother, the children had repeatedly asked not to be separated. The children depended on each other for support, love and security. Noting that the mother had made great strides in her treatment, the social worker concluded moving the children to Ohio would be detrimental to them and would cut off the possibility of the mother reunifying as soon as possible." (Id. at p. 1418.)
After the court heard testimony from Luke, the social worker and father, it ordered Lindsey placed with her mother in the treatment facility and Leanna placed with her aunt and uncle because "send[ing] her to Ohio would seriously impede her mother's ability to reunify with her." (Luke M., supra, 107 Cal.App.4th at p. 1419.) With respect to Luke and Lenay, the juvenile court found placing them "with [father] in Ohio would be detrimental to their emotional well-being because of their significant bond with their siblings. The court observed 'the raw emotions and true sense of fear [of] separation from [his] siblings' when Luke testified, and emphasized 'the record would [not] come anywhere close to revealing the depth of that young man's reaction to the prospect of being separated.'" (Ibid.) In rejecting father's argument substantial evidence did not support the juvenile court's detriment finding, the Luke M. court recognized, "Although a detriment finding may not be supportable based on [Luke's and Lenay's] preferences alone, at their respective ages of 10 and eight," their preferences—in part demonstrated by Luke's "demeanor," which was "critical" to the court's determination—in conjunction with opinions from the social worker and counselor constituted sufficient evidence that separating the children would be detrimental. (Id. at pp. 1426-1427.)
Here the report prepared in anticipation of disposition stated that L.A., who was now days shy of 17, stated he had last seen his father two years earlier when he visited in California, he had not lived with him since he was five years old, he had minimal contact with him, and the two did not have a relationship. A month later, he stated that he did not wish to live with father because he would not be living with A.P., with whom he was "close." He would be "mad" if he were not there for A.P., as A.P. had lived with him his entire life. He did not want to be separated from any of his siblings.
A.A.1 told the social worker she had not lived with her father since she was a baby, that he rarely visited, and she did not want to live with him now because he had not cared "before" and she was not sure why he cared now. A.A.1 restated that she did not want to be separated from A.P.. She wanted to see him grow up, as he had already lost his father (who died) and his mother (from whom he was removed) and she did not want to see him separated from his siblings as well. A.A.1 did not want to speak to father and was avoiding his telephone calls, because he put "all those other women before us."
A.A.2 reported that she did not have a relationship with father, never lived with him, and could not remember the last time they had spoken. According to A.A.2, she did not think she could live with father without A.P.. She stated, "I'm A.P.'s favorite and I don't think he could live without me." A.A.2 stated A.P. had always lived with her, she had changed his diapers, and she would not be able to handle it emotionally.
A.P., who was five years old, also stated he would feel "sad" if he could not live with his siblings, especially A.A.2 because "she is the nicest one."
The department's report recommended the children not be placed with father as they would be separated from A.P. and that it would be "detrimental to the emotional well-being of the children."
At the dispositional hearing, the social worker, who had had the case for three months, testified that she had been able to observe the children and A.P. together on three occasions and opined that they have "a very strong relationship." They had "all verbally told [her] about it," and she had witnessed them interact with each other. They had, what she described as, a "very strong attachment with each other," and she believed it would be detrimental to separate them.
The record before us supports a finding that there was a high probability that moving to Texas with father would have a devastating emotional impact on the children. The children all expressed a strong desire not to be separate from A.P., who was much younger than them and whom they had, in ways, parented due to mother's failures to do so. The social worker also noted a very strong bond between all four children and opined that it would be detrimental to separate them.
We defer to the trial court's factual assessments. (In r e Casey D. (1999) 70 Cal.App.4th 38, 52-53.) "We review a cold record and, unlike the trial court, have no opportunity to observe the appearance and demeanor of the witnesses." (In r e Sheila B. (1993) 19 Cal.App.4th 187, 199.) While the children did not testify at the hearing, they were present and the juvenile court stated it was basing its decision on its own observations as well that there was "a strong bond between the children." The juvenile court further described the children's relationship as follows:
"The children have been with each other throughout their lives and it almost seems like not only a sibling relationship but to some degree a mother-child relationship with the youngest child in court today - all of you have been extremely well behaved. I realize it is a long hearing. You have all been sitting here patiently, quietly, and I've been impressed by that. But the one thing that I will note is that there appears to be a bond between the four of you and I think at this point it would be detrimental to have the
youngest minor separated from the three oldest children. And I note that I think it would be detrimental to all four of you."
While father stated he would be willing to have A.P. live with him as well, numerous hurdles prevented that possibility - A.P. was not father's child and, as the juvenile court noted, such an action could not be done without an ICPC (Interstate Compact on the Placement of Children).
The juvenile court further expressed concern over the lack of a bond between father and the children. They had had little contact with him over the course of their lives. None of the children, who were well into their teens, wished to live with father. In fact, they described a lack of relationship with him, they avoided his telephone calls, and refused to speak to him. In contrast, they described their current situation with the maternal aunt as stable, they liked their new schools, and the two youngest children wished to reunify with mother. Although a detriment finding may not be supportable on the children's preferences alone, at their respective ages, their preferences may be considered. (Luke M., supra, 107 Cal.App.4th at p. 1426.)
"A detriment evaluation requires that the court weigh all relevant factors to determine if the child will suffer net harm." (Luke M., supra, 107 Cal.App.4th at p. 1425.) The juvenile court did so here and substantial evidence supports the court's finding that the children would suffer detriment if placed with father in Texas.
DISPOSITION
The dispositional orders are affirmed.