In re Carmelo M. CA4/1 ( 2013 )

Filed 6/6/13 In re Carmelo M. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re CARMELO M., a Person Coming
Under the Juvenile Court Law.
D063162
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J518491B)
Plaintiff and Respondent,
v.
CARL M.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, David B.
Oberholzer, Judge. Affirmed.
Michele Ann Cella for Defendant and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
Carl M. appeals following the dispositional hearing in the juvenile dependency
case of his son, Carmelo M. Carl contends that there is no substantial evidence to support
the finding that Carmelo would suffer detriment if he were placed with Carl. Carl also
contends that the juvenile court failed to issue an order to ensure that he was provided
regular and consistent visitation. We reject Carl's contentions and affirm the juvenile
court's judgment.
BACKGROUND
Carmelo tested positive for marijuana at his birth in October 2011. Carl was
aware of the positive test. On August 13, 2012, 10-month-old Carmelo was found in
Carl's car with a friend of Carmelo's mother, C.E. The friend was smoking
methamphetamine, and police found methamphetamine and a methamphetamine pipe in
the car. Carmelo was detained at Polinsky Children's Center (Polinsky), where he tested
positive for methamphetamine and marijuana. Carmelo had a healing second degree burn
on his arm. C.E. said that the burn had been caused by a curling iron, and admitted that
she had not sought medical attention for Carmelo. Carl acknowledged that he was aware
of the burn. He said that he had "brought [Carmelo] Neosporin" but had not taken him to
the hospital.
On August 14, 2012, social worker Thomas Ruff went to the home of a paternal
aunt in search of Carl. The paternal aunt said that Carl did not live with her but that he
"sometimes use[d] her address." The paternal aunt telephoned Carl, who agreed to meet
Ruff that afternoon.
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During the afternoon meeting, Carl told Ruff that he was going to sign a lease for
a condominium that day, but did not give Ruff the address. Carl denied knowing about
C.E.'s drug use. Carl said that he had a medical marijuana card and that he used
marijuana occasionally for back spasms. Ruff told Carl that it would be better if he
stopped using marijuana. Carl submitted to a drug test after the meeting. The test was
positive for marijuana.
On August 15, 2012, the San Diego County Health and Human Services Agency
(the Agency) filed a dependency petition for 10-month-old Carmelo. The petition alleged
that C.E. used marijuana and methamphetamine to excess and that Carl had failed and
had been unable to protect and supervise Carmelo. At the detention hearing on August
16, the court found that Carl was Carmelo's presumed father, ordered unsupervised
visitation at Polinsky and gave the Agency discretion to detain Carmelo with Carl. Carl
visited once during the 10 days Carmelo was detained at Polinsky.
Ruff wanted "to place . . . Carmelo with [Carl] pending a second drug test to
confirm no current use and pending a home visit where [Carl] is living." On August 23,
2012, Ruff asked Carl to disclose his address and to drug test again. Carl refused both
requests. On August 24, Carmelo was moved to the home of a maternal cousin, where
Carl visited Carmelo once. In September, Carmelo was moved to the home of a different
maternal cousin, D.H. Carl visited Carmelo in D.H.'s home once that month. Carl never
visited again, even on Carmelo's birthday, and never called D.H. to inquire about
Carmelo's welfare. Carl ignored Ruff's attempts to contact him.
3
On October 11, 2012, the paternal aunt told Ruff that Carl kept his belongings at
her home and that he sometimes slept there. Despite previously having told Ruff that
Carl did not live at her residence, she said that she would testify that he lived there. At a
hearing that day, Carl said that he was living in the paternal aunt's home and that he had
lived there for a couple of months. The court ordered Carl to drug test that day. Carl
tested positive for marijuana. The test results indicated recent use, since by this time, the
marijuana reflected in the prior test "should be out of [Carl's] system."
The jurisdictional and dispositional hearing began on October 19, 2012. Carl's
counsel asked the court to order paternity testing and to continue the dispositional hearing
for three-weeks. Counsel informed the court that Carl would request placement if the
paternity test was positive. The court denied the request for a continuance and ordered
paternity testing.
Carl testified that he had given Ruff an address where he could be contacted, but
explained that he had hesitated to provide his residence address because he did not have a
stable home. Carl testified that he was living with the paternal aunt during the week and
with his daughter's mother, Monica L., on weekends. Carl stayed in the garage at the
paternal aunt's home and did not have a room there. Carl initially testified that if
Carmelo were placed with him that day, Carl would take Carmelo to the paternal aunt's
home or to Monica's home. However, Carl later testified that he would be living with the
paternal aunt. He said that he was willing to allow the Agency to inspect the paternal
aunt's home that day. Monica required that a paternity test be conducted before she
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would agree to allow the Agency to inspect her home. Carl did not have a bed for
Carmelo, but said that he would purchase one that day.
Carl testified that he had last used medical marijuana three weeks to one month
earlier. He was working with a doctor to identify alternative muscle relaxers and
painkillers. Carl did not believe that marijuana affected his parenting ability, but said that
he had never used medical marijuana while caring for Carmelo. Carl said that if Carmelo
were returned to him, he would stop using marijuana.
The court made a true finding on the petition. Carl's counsel asked the court to
order Carmelo placed with Carl. The court found that it would be appropriate to place
Carmelo with Carl, pursuant to Welfare and Institutions Code1 section 361.2, but that
Carmelo could not be placed with Carl until Carl decided where he was going to live and
until it could be determined that his home was safe and appropriate. The court declared
Carmelo a dependent and ordered that he be removed from C.E.'s custody (§ 361, subd.
(c)(1)) and detained with a relative. Carl's counsel asked the court to order that Carmelo's
caregiver allow Carl at least two visits each week. The court did not expressly address
this request, but stated that Carmelo needed "frequent and continuing visits." The court
continued the hearing for a determination of the appropriate placement.
On October 29, 2012, Ruff left a voicemail message for Carl asking which home
he wished to have evaluated. On October 30, Ruff sent a certified letter to each of Carl's
two addresses, asking Carl to call him. On October 30 and 31, Ruff called Carl. On both
1 All further statutory references are to the Welfare and Institutions Code.
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days, Carl's voice mailbox was full. On November 2, Ruff left another voicemail
message for Carl. That day, Ruff went to the paternal aunt's home, but the paternal aunt
would not allow Ruff to enter. The paternal aunt said that Carl "sleeps in the garage
sometimes [but] doesn't always stay here," and that if Carmelo "had to come here we
would make room." Ruff asked the paternal aunt to have Carl call him, and the paternal
aunt relayed the message to Carl. On November 5, Ruff left another voicemail message
for Carl. On November 8, the Agency received the paternity test results, which showed a
99.99 percent probability that Carl was Carmelo's biological father.
By the time of the continued dispositional hearing on November 13, 2012, Carl
had not responded to any of Ruff's messages or letters. Carl testified that if 13-month-old
Carmelo were placed with him that day, they would live with his daughter's mother,
Monica L.. Carl admitted that he had not allowed the Agency to assess his home for
placement. Carl testified that he had the money to buy a bed for Carmelo, but that he was
still trying to decide what kind of bed to buy. Carl explained that he had not visited
Carmelo because Carl sometimes worked outside of San Diego County. Carl testified
that he had visited with Carmelo via Skype about six or seven times since October 19.
However, maternal cousin D.H., in whose home Carmelo was placed, testified that Carl
had never Skyped with Carmelo since Carmelo had been in her care. Ruff confirmed that
D.H. did not have Skyping capability in her home.
The court found that Carl was a non-offending, noncustodial parent and declined
to order that Carmelo be placed with Carl. The court found by clear and convincing
evidence that Carl was a stranger to Carmelo and that Carmelo was bonded with D.H.,
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and that it would therefore be detrimental to Carmelo to remove him from D.H.'s home
and place him with Carl. The court noted that the Agency had worked toward placing
Carmelo with Carl, but that Carl had provided no information about his home, had not
made an emotional commitment to Carmelo, had not visited or taken care of Carmelo,
and had not maintained their bond. The court ordered that Carmelo remain in his relative
placement.
DISCUSSION
The Agency asserts that "the doctrine of disentitlement should be applied to
[Carl]'s claims" because he refused to provide his home address and give the Agency
access to the home, thus "prevent[ing] the court from determining whether Carmelo could
be safely placed with [Carl]." "Under the disentitlement doctrine, a reviewing court has
the inherent discretionary power to dismiss an appeal when the appellant has refused to
comply with trial court orders. The doctrine thus 'prevents a party from seeking
assistance from the court while that party is in an attitude of contempt to legal orders and
processes of the court' and 'may be applied when the balance of equitable concerns make
it a proper sanction.' [Citation.] . . . 'In dependency cases the doctrine has been applied
only in cases of the most egregious conduct by the appellant that frustrates the purpose of
dependency law and makes it impossible for the court to protect the child or act in the
child's best interests . . . ." (In re A.G. (2012) 204 Cal. App. 4th 1390, 1399, italics
omitted.) Although Carl did not cooperate with the Agency, we conclude that his
conduct cannot be categorized as being among "the most egregious." We therefore
decline to dismiss the appeal under the doctrine of entitlement.
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The court proceeded on the assumption that Carl was a noncustodial parent.2
"When a court orders removal of a child pursuant to Section 361, the court shall first
determine whether there is a [noncustodial] parent . . . 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." (§ 361.2, subd (a).)
"[O]nce dependency jurisdiction is acquired because of the custodial parent's conduct, the
court's inquiry shifts to a focus on the child's best interests, albeit with a preference
towards parental reunification. " (In re Luke M. (2003) 107 Cal. App. 4th 1412, 1425.)
In the juvenile court, the Agency must prove detriment by clear and convincing
evidence. (In re Luke M., supra, 107 Cal.App.4th at p. 1426; In re Isayah C. (2004) 118
Cal. App. 4th 684, 700; In re John M. (2006) 141 Cal. App. 4th 1564, 1569-1570.) On
appeal, we apply the substantial evidence standard of review, and view the record in the
2 There is no evidence to support this assumption. "[N]oncustodial parent" signifies
the parent "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." (§ 361.2, subd. (a);
In re V.F. (2007) 157 Cal. App. 4th 962, 969.) Carl testified that Carmelo lived with him
most of the time and C.E. declared that Carmelo lived primarily with Carl. It would
therefore have been more appropriate for the court to proceed according to section 361.
Under that section, the court would have been required to return Carmelo to Carl unless
the Agency proved, by clear and convincing evidence, that "[t]here is or would be a
substantial danger to [Carmelo's] physical health, safety, protection, or physical or
emotional well-being" and that there were no reasonable alternative means of protecting
his physical health. (§ 361, subd. (c)(1).) We conclude that the error in proceeding under
section 361.2 rather than section 361 is harmless in this case because we conclude that
the result under section 361, which is subject to the substantial evidence test (In re
Diamond H. (2000) 82 Cal. App. 4th 1127, 1135; In re Geoffrey G. (1979) 98 Cal. App. 3d
412, 420), would be the same as the result under section 361.2.
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light most favorable to the court's order. (In re Luke M., supra, at p. 1426.) " ' "The
sufficiency of evidence to establish a given fact, where the law requires proof of the fact
to be clear and convincing, is primarily a question for the trial court to determine, and if
there is substantial evidence to support its conclusion, the determination is not open to
review on appeal." [Citations.]' [Citation.] Thus, on appeal from a judgment required to
be based upon clear and convincing evidence, 'the clear and convincing test
disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to
the respondent's evidence, however slight, and disregarding the appellant's evidence,
however strong.' [Citation.]" (Sheila S. v. Superior Court (2000) 84 Cal. App. 4th 872,
880-881, quoted in In re Mark L. (2001) 94 Cal. App. 4th 573, 580-581.) "We do not
reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary
conflicts." (In re Dakota H. (2005) 132 Cal. App. 4th 212, 228.)
Although a home evaluation was not required before Carmelo could be moved into
Carl's home (§ 361.2, subds. (a), (b)), the court properly insisted on knowing where Carl
would be living, in order to be able to assess whether the home and/or its occupants
would present a danger to Carmelo. This requirement did not, as Carl asserts, assign to
him "the burden of proving he was a fit parent." As additional support for his argument
that the juvenile court shifted the burden to him to prove his fitness as a parent, Carl cites
another statement by the court, i.e., that Carl "prevented the Agency from doing its job
here, and shouldn't be heard to complain and talk about burden of proof when it's his own
actions or inactions that have put up a barrier to the Agency finding out what it needed to
know or finding out enough at least to be made comfortable with the decision to place
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[Carmelo] with [Carl]." Although the court's intent in making this statement is unclear, it
is clear that the court understood that the Agency had the burden of proof. On October
19, 2012, during a discussion concerning placement, the court expressly stated that the
Agency bore the burden of showing that placement with Carl would cause detriment to
Carmelo. Carl also asserts that on October 19, the court found that the Agency had failed
to carry its burden of showing detriment. However, the court made no such finding.
Rather, the court simply stated that not knowing where Carl would be living and under
what conditions did not, in and of itself, constitute detriment.
Carl cites In re Z.K. (2011) 201 Cal. App. 4th 51 (Z.K.) in support of his argument
that the court erroneously required him to prove his parental fitness. In Z.K., the father
left Nevada with infant Z.K. and essentially disappeared. (Id. at p. 55.) The mother
eventually returned to her home state of Ohio but never stopped searching for Z.K. (Id.
at pp. 55-56.) Five years later, she learned that the father had been arrested in California
and that Z.K. was in foster care. (Id. at p. 55.) By that time, the section 366.26 hearing
was imminent. (Ibid.) The mother immediately requested custody of Z.K. (Ibid.)
Neither the court, the social services department (the department), nor the mother's
appointed attorney recognized that the mother had a constitutional right to custody unless
it was proven, by clear and convincing evidence, that giving her custody would be
detrimental to Z.K. (Ibid.) "[T]he department—with the complicity of the juvenile court,
and with no meaningful opposition from mother's attorney—essentially required mother
to prove her fitness to be Z.K.'s custodial parent through multiple home studies and
psychological examinations." (Ibid.) The juvenile court found that the mother had not
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proved her fitness and terminated parental rights. (Ibid.) The reviewing court reversed,
holding that, "by terminating her parental rights without finding it would be detrimental
to the minor to be placed in her custody, the juvenile court violated mother's
constitutional right to due process of law, which is rooted in her fundamental interest in
the care, companionship, and custody of her child." (Id. at pp. 55-56.) The reviewing
court also concluded that "there was no evidence to support an implied finding of
detriment." (Id. at p. 56.)
Z.K. is easily distinguishable from the instant case. L.K., the mother in Z.K., was
forthcoming and cooperative with the department. (Z.K., supra, 201 Cal.App.4th at
pp. 60, 67.) L.K. allowed her home to be inspected. (Id. at pp. 59, 62, 68.) She visited
Z.K., and the visits went well. (Id. at p. 59.)
Unlike L.K., throughout this case Carl was evasive about where he lived. By
November 13, 2012, he still had not provided Ruff with his home address and had failed
to respond to Ruff's multiple attempts at contact. As a result, critical information
concerning Carl's home was lacking. Further, Carl had not visited Carmelo for
approximately two months. Carl falsely claimed that he had communicated with
Carmelo via Skype. Even if this claim had been true, this type of contact would not assist
in strengthening a bond with such a young child. In addition, Carl had promised to help
with Carmelo's support, but had not provided any assistance since August or September
2012. At that time, Carl merely gave the caregivers diapers, wipes and some clothing.
At the same time, Carl claimed that he worked hard and sent his older son to private
school. Further, Carl continued to use marijuana after Ruff had advised him to stop.
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Ruff made every effort to move Carmelo into Carl's home, and the court supported
those efforts. However, Carl utterly failed to cooperate. It was his own actions, and not
those of the Agency or the court, that led to Carmelo's placement with D.H. rather than
with Carl. There is substantial evidence to support the juvenile court's finding that
Carmelo would suffer detriment if he were placed with Carl.
Carl also contends that the court failed to issue an order to ensure that he was
provided regular and consistent visitation. On October 19, 2012, when Carl's counsel
asked the court to order at least two visits per week, the court stated that Carmelo needed
"frequent and continuing visits." If counsel believed that this response was inadequate,
she should have said so. Further, if Carl had wished to visit, he could have responded to
Ruff's calls and letters. Any lack of visitation resulted solely from Carl's persistent
failure to communicate and cooperate with the Agency.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
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