In re Johnny G. CA2/7 ( 2021 )

Filed 10/27/21 In re Johnny G. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In the matter of JOHNNY G. B308206
and SUREYA L.,
(Los Angeles County Super.
Persons Coming Under Juvenile Ct. No. 20CCJP03154B and
Court Law. 20CCJP03154D)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ALEX G. and ANWAR L.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Marguerite D. Downing, Judge. Dismissed in
part; reversed in part.
Konrad S. Lee, under appointment by the Court of Appeal,
for Defendant and Appellant Alex G.
Shaylah Padgett-Weibel, under appointment by the Court
of Appeal, for Defendant and Appellant Anwar L.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_______________________
Rocio H. has four children: 14-year-old Isabel F., five-year-
old Sureya L., seven-year-old Imaya-Lily H., and nine-year-old
Johnny G. Each of the four children has a different father.
Johnny’s father Alex G. appeals from the juvenile court’s
jurisdiction finding he failed to provide the necessities of life for
Johnny. Alex does not challenge the court’s jurisdiction findings
as to Rocio, and Rocio does not appeal the findings. We therefore
dismiss Alex’s appeal as nonjusticiable.
Sureya’s father Anwar L. appeals from the juvenile court’s
disposition order denying his request for custody of Sureya as a
noncustodial parent pursuant to Welfare and Institutions Code
section 361.2, subdivision (a),1 after she was removed from
Rocio’s custody. Anwar contends substantial evidence does not
support the court’s finding that placing Sureya with him would
1 All further references are to the Welfare and Institutions
Code.
2
be detrimental to her physical or emotional wellbeing. We agree
and reverse the disposition order.2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prior Dependency Referrals
From March 2007 to May 2020 there were nine referrals to
the Los Angeles County Department of Children and Family
Services (Department) involving Rocio or Anwar. The
Department found seven of the referrals were inconclusive,
unfounded, or “evaluated out.”3
However, in June 2012 an allegation of Rocio’s general
neglect of Isabel and Johnny was substantiated. In April 2015
the juvenile court sustained a petition alleging Anwar’s domestic
violence against Rocio in the children’s presence; Anwar’s history
of substance and alcohol abuse; and Rocio’s failure to protect the
children. The juvenile court ordered Anwar to participate in a
full alcohol program with aftercare, random or on-demand drug
and alcohol testing, a 12-step program with court card and
sponsor, a 52-week domestic violence program, and parenting
classes. The juvenile court also ordered Alex to participate in
2 Rocio and the fathers of Isabel and Imaya-Lily have not
appealed.
3 The term “evaluated out” means “the child protective
services screener did not find sufficient evidence of physical
abuse or child abuse and neglect to assign the referral to an
investigation.” (In re Aurora P. (2015) 241 Cal.App.4th 1142,
1149, fn. 4.)
3
individual counseling to address parenting and case issues.4 The
court ordered reunification services for Anwar and Alex.
Anwar and Alex failed to contact the Department and did
not provide proof of participation in court-ordered services. Rocio
stated she obtained a restraining order against Anwar in 2016
and she had no contact with him. Alex was living in Arizona and
talked to Johnny by phone one to two times a week. Rocio added
that Alex sent clothes to Johnny (although Alex later stated he
did not). Neither Anwar nor Alex reunified with his respective
child; in May 2016 the court granted Rocio sole legal and physical
custody of Johnny, Sureya, and Imaya-Lily.5
B. The Current Referrals and Investigation
On May 18, 2020 the Department received a referral
alleging Rocio was in a new relationship with Anthony T., who
was a member of a Long Beach gang. The reporter stated
Anthony had moved into the family’s home, and Rocio and
Anthony were using methamphetamine and engaging in physical
fights in the children’s presence. Three weeks earlier Rocio and
Sureya were in a car accident in which Sureya was injured, and
Rocio refused to take Sureya to receive medical care.
On May 22 the Department received another referral,
reporting Rocio had contacted the police after a dispute between
her and Anthony about her alleged cheating. Anthony grabbed a
knife and held it, but he did not threaten Rocio. Anthony threw
4 The record does not reflect the reason for the requirement
Alex participate in individual counseling.
5 In November 2015 the juvenile court granted joint legal
and physical custody to Rocio and Isabel’s father, with Isabel’s
father providing the primary residence.
4
several objects at Rocio’s back, including Rocio’s phone. Johnny,
Sureya, and Imaya-Lily witnessed the incident but were not
injured.
On May 26 a social worker made an unannounced visit to
Rocio’s home. The social worker observed the house was messy
and dirty but was stocked with food, and all utilities were in
working order. The children slept on bunk beds in the living
room, and Rocio slept on a twin bed in the only bedroom.
Anthony did not live in the home. When he arrived at the
residence, he explained he and Rocio argued often, but they did
not do so in front of the children. Anthony smoked marijuana
and occasionally used cocaine. When Anthony left, Rocio stated
Anthony initiated fights and threw objects at her, including on
May 22 when Anthony grabbed a knife, causing her to call the
police. But he never hit her. Rocio admitted to smoking cannabis
oil in a vape pen, but she denied using other drugs.
Rocio stated she has been diagnosed with posttraumatic
stress disorder, depression, and bipolar disorder, and she had
been prescribed medication. But she had not been taking her
medication because Anthony removed it to keep Rocio from
harming herself. Rocio stated the children were supervised at all
times, had plenty of food to eat, and were up to date on their
physical examinations and immunizations. Rocio reported Alex
was in Arizona, and she believed Anwar was in Oklahoma.
The social worker interviewed Johnny, Sureya, and Imaya-
Lily. Johnny was clean, neatly groomed, and properly dressed.
He stated he had witnessed Anthony hit Rocio on May 22, and
Anthony and Rocio fight every day. Johnny did not like living at
home because “there’s a lot of drama going on and it smells bad
and people from the apartments are mean to [his] mother,” but
5
he felt safe in his home. He reported he is left unsupervised in
the home, but “almost always” has enough food to eat.
Sureya was “very dirty” and dressed in pajamas with
multiple stains. She stated her mother and Anthony were
“always fighting and then get along again.” Sureya also reported
she is left unsupervised with her siblings at home, and she
“sometimes goes a couple of days without eating.” Sureya could
not recall when she last took a shower. Sureya did not like living
in the home, but she felt safe.
Imaya-Lily was wearing dirty clothes with stains. She was
preverbal and could not provide any information to the social
worker. According to Rocio, Imaya-Lily was diagnosed with a
disorder that caused her to be developmentally delayed.
Rocio agreed to take a drug test that day, which was
positive for methamphetamine, amphetamine, and marijuana.
Rocio stated she did not “‘know how [the test] came out positive if
the last time [she] used was 5/20/20.’”
C. The Petition and Detention Hearing
On June 11, 2020 the Department filed a petition on behalf
of all four children under section 300, subdivisions (a) and (b)(1).
The petition alleged Rocio and Anthony had a history of engaging
in violent altercations in the children’s presence and Rocio failed
to protect the children by allowing Anthony to frequent the home
and have unlimited access to the children. Further, Rocio had a
history of illicit drug use and was a current user of
methamphetamine, amphetamine, and marijuana. Rocio tested
positive for all three substances on May 26, 2020 and was under
the influence of the drugs while the children were in her care. In
addition, Rocio failed to protect the children from Anthony, who
6
abuses cocaine and marijuana. The petition also alleged the
children were prior dependents of the juvenile court due to
domestic violence between Rocio and Anwar. The petition alleged
Rocio’s conduct endangered the children and placed them at risk
of serious physical harm.
At the June 18 detention hearing, the juvenile court found
Alex and Anwar were the presumed fathers of Johnny and
Sureya, respectively. The court detained the children and
removed them from Rocio’s custody.
D. The Jurisdiction and Disposition Report
As of the June 29, 2020 jurisdiction and disposition report,
Johnny, Sureya, and Imaya-Lily were living with the maternal
grandmother. Alex’s and Anwar’s whereabouts were still
unknown.
Anwar had been arrested for driving under the influence in
2009 and 2013 and inflicting corporal injury on a spouse and
violating a protective order in 2015. Alex had no reported
criminal history.
Johnny told the dependency investigator he had telephone
contact with Alex in the beginning of 2020, at which time Alex
said he was living in Arizona. Johnny denied knowing anything
else about Alex and added that Alex had “not bought him
anything.” Johnny said he would like to meet his father. He
added that Anwar lived in Oklahoma, but Johnny did not know
anything else about him. When the dependency investigator
asked Sureya about Anwar, Sureya “was unable to provide a
statement.”
The children’s maternal grandmother and maternal aunt
told the dependency investigator the children’s fathers did not
7
provide for their children. Rocio had previously stated similarly
that the fathers “have never provided for the kids . . . . I took care
of my kids by myself.”
E. The Amended Petition
On June 30, 2020 the Department filed a first amended
petition, adding allegations that Alex and Anwar failed to provide
Johnny and Sureya, respectively, the necessities of life, including
food, clothing, shelter, and medical care, which endangered the
children’s physical and emotional health and wellbeing.
F. Last Minute Information for the Court
The Department filed multiple last minute information
reports for the court containing additional information from
interviews with Alex and Anwar.
On July 15, 2020 the dependency investigator interviewed
Alex by telephone. Alex was living in Arizona and had last seen
Johnny nine years earlier. According to Alex, Rocio “‘kept
[Johnny] away and she never told [Alex] where she was living.
She kept moving.’” Alex admitted he never paid child support or
provided financially for Johnny. He told Rocio “‘to send [him
Johnny’s] sizes so [he] can send him clothing and shoes,’” but
“‘[o]ne of her friends told me not to send her money’” because she
was using drugs, and he did not want Rocio to use the money for
drugs. Alex spoke with Johnny before the May 22, 2020 incident,
but Johnny did not disclose what was going on at home. Alex
understood that in the prior dependency case he was given
reunification services and the court ordered an Interstate
Compact on the Placement of Children (ICPC) evaluation, but he
failed to provide for or visit Johnny or to reunify with him. The
8
ICPC was closed because the Department had concerns about
Alex’s ability to provide a safe and stable environment for
Johnny.
Alex indicated he would like to visit Johnny in person, but
he had not been traveling because of the COVID-19 pandemic.
On July 29, 2020 Alex and Johnny had a virtual visit, and
according to Alex, “‘it was so awesome and we laughed so much.’”
Alex stated he and his fiancée were making plans to visit Johnny
in August 2020. Alex expressed a desire to reunify with Johnny
and stated he would cooperate with the Department in order to
do so.
On September 29, 2020 the dependency investigator
interviewed Anwar by telephone. Anwar was living in
Oklahoma. He stated he had not provided for Sureya because he
did not know where she was, and Rocio kept changing her phone
number. If Anwar knew where they were, he could have provided
for Sureya. Anwar said Sureya knows that he is her father, and
he was caring for her when he lived in California. Anwar moved
to Oklahoma from California in November 2018, which was the
last time he saw Sureya. At that time Anwar was homeless. He
moved to Oklahoma to be with his mother after his father passed
away. At the time of the interview, Anwar had his own home and
was collecting unemployment benefits due to the pandemic. He
had previously worked as a grocery store manager.
Anwar explained as to his failure to reunify with Sureya in
2015, “‘I was not given the opportunity. Rocio put me in jail and
when I came out, it was too late. I was doing my classes. I was
going to parenting classes, but then I had to stop going, because
they said we couldn’t do them together. We were arguing in the
classes, so I let her do them alone and she sent me to jail. I didn’t
9
hit her. She would hit me.’” The dependency investigator
reminded Anwar that he had over a year to complete his plan,
which was his responsibility. But Anwar continued to blame
Rocio, the social worker, and his attorney for his lack of
compliance. Anwar admitted he had failed to complete his
classes for driving under the influence in 2016.
Anwar expressed a desire to reunify with Sureya. He
stated he has been sober for two years and was willing to submit
to drug and alcohol testing. Anwar acknowledged that prior to
the jurisdiction hearing he was aware of Rocio’s drug and alcohol
problem, as well as the physical violence between Rocio and
Anthony, but he had not taken any steps to protect Sureya.
Anwar provided to the dependency investigator a domestic
violence program completion letter dated October 1, 2020
showing Anwar had enrolled in the program in February 2016
and completed a 52-week “comprehensive program” in early 2017.
The counselor wrote Anwar “mastered our positive conflict
resolution exercise. His participation, performance and progress
was outstanding.” Anwar also submitted a signature page from
an Alcoholics Anonymous program showing Anwar had attended
13 meetings in September and October 2020.
10
G. The Jurisdiction and Disposition Hearings6
1. Alex
At the October 5, 2020 jurisdiction and disposition hearing,
Johnny’s counsel and the Department argued the allegation as to
Alex should be sustained, noting Alex had known for 10 years of
Rocio’s drug and alcohol abuse, but he failed to provide for
Johnny’s care and supervision. In addition, Alex failed to reunify
with Johnny in the prior dependency case. Alex’s attorney
requested Johnny be placed with Alex, noting the 2015 custody
order gave Rocio sole legal and physical custody over Johnny,
which limited Alex’s ability to provide support for him. Further,
Rocio provided food and care for the children, and she prevented
Alex from finding her, even though he told her wanted to provide
clothing for Johnny.
The juvenile court sustained the allegation Alex had failed
to provide the necessities of life for Johnny. The court stated in
support of this finding, “[T]hese children have experienced
mental health issues. They have been exposed to drug use by the
mother’s extensive substance abuse history. They have been
subjected to domestic violence. They have resided in shelters at
one time, and the grandmother has provided some care, but
indicates the mother has been neglectful.”
As to disposition, the court found that return of Johnny to
Alex, who was the noncustodial parent, “would be detrimental to
Johnny’s safety, protection, [and] physical and emotional well
being.” The court explained that Johnny “has not seen his father
6 On July 9, 2020 the juvenile court sustained the allegations
in the amended petition on all counts as to Rocio. The court
bifurcated the hearing as to Alex and Anwar because as of July 9
their whereabouts were still unknown.
11
and can’t recall having met his father. He is currently placed
with his siblings and Johnny does not want to be separated from
them.” The court ordered the Department to provide Alex with
family reunification services and monitored visitation. In
ordering monitored visitation, the court noted Alex had not
previously completed his case plan. The court ordered Alex to
complete parenting classes and individual counseling and to
provide five random drug tests.
Alex timely appealed.
2. Anwar
On November 2, 2020 the juvenile court held the continued
jurisdiction and disposition hearing for Anwar. Counsel for
Sureya requested the allegation, as amended, be sustained
against Anwar, pointing out that Anwar had not seen Sureya
since November 2018, Anwar failed to reunify with Sureya in
2015, and despite knowing about Rocio’s drug and alcohol
problem and the domestic violence between Rocio and Anthony,
Anwar failed to do anything to protect Sureya. The Department
joined, adding the petition also should be sustained based on
Anwar’s criminal record and his failure to complete his driving-
under-the-influence classes in 2016. The Department’s attorney
also noted Anwar did not contact the Department until the end of
September 2020, although notice of the dependency proceeding
was mailed to him on June 23, 2020 at the address Anwar later
confirmed was correct.
Anwar’s counsel argued Anwar should be found
nonoffending given that Rocio “pretty much cut him out of the
child’s life.” Anwar was residing out of state and would have
been able to have a relationship with and support Sureya if he
12
knew where she was. Anwar requested Sureya be released to
him because the Department failed to meet its burden to show by
clear and convincing evidence that placement with him would be
detrimental to Sureya.
The juvenile court sustained the allegation in the petition
that Anwar failed to provide the basic necessities of life to
Sureya. As to disposition, the court found Anwar was the
noncustodial parent but it would be detrimental to place Sureya
with him because “he has had no contact with his daughter in
two years.”7 Sureya’s counsel added that Sureya was not
requesting to be placed with Anwar. The court made an
additional finding that “Sureya is part of a sibling group, and
does not wish to be relocated to Oklahoma.”8
7 The court also noted Sureya had special needs, but Sureya’s
counsel corrected the court, stating it was Imaya-Lily, not
Sureya, who had a severe disability.
8 The November 2, 2020 minute order states the juvenile
court found “by clear and convincing evidence, pursuant to
Welfare and Institutions Code sections 361(a)(1), 361(c), 361(d)
and 362(a)” that it was reasonable and necessary to remove
Sureya from Anwar’s custody, and “it would be detrimental to the
safety, protection, or physical or emotional well-being, and special
needs, if applicable, of the child to be returned to” Anwar.
Although the minute order cites the wrong code provision
(referring to removal from Anwar), it appears from the transcript
that the court made a finding of detriment pursuant to section
361.2, subdivision (a), that placement of Sureya with Anwar as
the noncustodial parent would be detrimental to Sureya’s safety,
protection, or physical or emotional wellbeing.
13
Anwar was granted three monitored visits a week for three
hours each visit or an equivalent amount of time given that
Anwar resided out of state. The court also ordered an ICPC
evaluation for Anwar. The court ordered Anwar to participate in
conjoint counseling with Sureya once her counselor deemed it
appropriate to do so, attend parenting classes, and submit to on-
demand drug and alcohol testing.
Anwar timely appealed.
H. The Return of the Children to Rocio
On January 6, 2021 the juvenile court found that Rocio had
made substantial progress in alleviating the causes necessitating
removal of Johnny and Sureya from her custody.9 Finding
release of the children to Rocio’s care would not create a
substantial risk of detriment to the children, the court
terminated the suitable placement order and ordered Johnny and
Sureya returned to Rocio’s custody.
DISCUSSION
A. Alex’s Appeal from the Jurisdiction Finding Is
Nonjusticiable
Alex appeals from the jurisdiction finding that he failed to
provide the necessities of life for Johnny, arguing substantial
evidence does not support the juvenile court’s finding that
Johnny was at risk of harm because notwithstanding Alex’s lack
of support, Johnny was otherwise a well-cared-for child.
9 On our own motion, we take judicial notice of the January
6, 2021 minute orders issued in Johnny’s and Sureya’s cases.
(Evid. Code, §§ 452 subd. (d), 459, subd. (a).)
14
However, Rocio does not appeal the jurisdiction findings, and
Alex does not contest the jurisdiction findings against Rocio. As
Alex acknowledges, citing In re I.J. (2013) 56 Cal.4th 766, 773,
“‘When a dependency petition alleges multiple grounds for its
assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s
finding of jurisdiction over the minor if any one of the statutory
bases for jurisdiction that are enumerated in the petition is
supported by substantial evidence.’” (See In re I.A. (2011) 201
Cal.App.4th 1484, 1491 (I.A.) [“[I]t is necessary only for the court
to find that one parent’s conduct has created circumstances
triggering section 300 for the court to assert jurisdiction over the
child.”].) However, Alex urges us to exercise our discretion to
review the jurisdiction finding against him. We decline to do so.
An appeal is not justiciable where “no effective relief could
be granted . . . as jurisdiction would be established regardless of
the appellate court’s conclusions with respect to any such
[challenged] jurisdictional grounds.” (In re Madison S. (2017)
15 Cal.App.5th 308, 329; accord, I.A., supra, 201 Cal.App.4th at
1490 [“An important requirement for justiciability is the
availability of ‘effective’ relief—that is, the prospect of a remedy
that can have a practical, tangible impact on the parties’ conduct
or legal status.”].) Nevertheless, the appellate “[c]ourts may
exercise their ‘discretion and reach the merits of a challenge to
any jurisdictional finding when the finding (1) serves as the basis
for dispositional orders that are also challenged on appeal
[citation]; (2) could be prejudicial to the appellant or could
potentially impact the current or future dependency proceedings
[citations]; or (3) “could have other consequences for [the
appellant], beyond jurisdiction.” [citation].’” (In re D.P. (2015)
15
237 Cal.App.4th 911, 917, quoting In re Drake M. (2012) 211
Cal.App.4th 754, 762-763 (Drake M.); accord, In re Madison S.,
supra, 15 Cal.App.5th at p. 329; In re J.C. (2014) 233 Cal.App.4th
1, 4.)
Alex is correct that we and other appellate courts have
exercised discretion to review jurisdiction findings where the
outcome of an appeal could mean the difference between a parent
being “‘offending’” versus “‘nonoffending,’” which could “‘have far-
reaching implications with respect to future dependency
proceedings . . . and [his] parental rights.’” (Drake M. supra, 211
Cal.App.4th at p. 763; see In re Andrew S. (2016) 2 Cal.App.5th
536, 548, fn. 2 [exercising discretion to consider father’s challenge
to jurisdiction finding where finding could impact whether
children should be placed with father as noncustodial parent]; In
re Quentin H. (2014) 230 Cal.App.4th 608, 610, 613 [exercising
discretion to consider father’s challenge to jurisdiction finding
based on presumption under section 355.1, subdivision (d), that
father posed a substantial risk of harm to children based on
father’s 25-year-old sexual abuse conviction, where children were
removed from father’s custody and placed with mother because
jurisdiction finding that father was offending parent could have
far-reaching consequences]; In re Christopher M. (2014) 228
Cal.App.4th 1310, 1317 [jurisdiction finding that incarcerated
father did not provide necessities of life to child could impact
whether child should be placed with father upon his release as
noncustodial parent under section 361.2, subdivision (a)].)
In this case, Alex has not identified any specific
consequences that may result from the jurisdiction finding, only
asserting “[t]his Court should exercise its discretion to review
this matter now.” This conclusory request for us to exercise our
16
discretion is not sufficient to support justiciability. (See I.A.,
supra, 201 Cal.App.4th at p. 1493 [declining to exercise discretion
to review jurisdiction finding where “Father has not suggested a
single specific legal or practical consequence from this finding,
either within or outside the dependency proceedings”]; see also In
re J.C., supra, 233 Cal.App.4th at p. 4 [father forfeited
justiciability argument because “[a]lthough father contends that
the Drake M. exceptions apply here, he does not explain why,
meaning he has not suggested any legal or practical consequences
that might flow from this finding either within or outside the
dependency proceedings”].)
Further, the record does not show specific future
consequences the jurisdiction finding may have on Alex’s
parental rights or on future dependency proceedings.
Significantly, Alex does not challenge the disposition order on
appeal, and as discussed, Johnny has been returned to Rocio’s
custody. Nor is the jurisdiction finding likely to affect “any future
dependency proceeding, [because] a finding of jurisdiction must
be based on current conditions” and “present detriment” to the
child. (I.A., supra, 201 Cal.App.4th at p. 1495.)
B. The Juvenile Court Erred in Denying Anwar Custody of
Sureya under Section 361.2, Subdivision (a)10
1. Governing Law and Standard of Review
“Section 361.2, subdivision (a) requires a court ordering
removal of a child first to determine whether there is a
10 Although Sureya was returned to Rocio, the Department
does not argue the appeal is moot. We note that if the case
proceeds to a hearing on termination of parental rights, the
juvenile court could consider the detriment finding against
17
noncustodial parent who wants to assume custody. The court
shall place the child with that parent, unless that placement
would be detrimental to the child’s safety, protection, or physical
or emotional well-being.” (In re A.C. (2020) 54 Cal.App.5th 38,
42; accord, In re K.B. (2015) 239 Cal.App.4th 972, 979.)
“Section 361.2 ‘evidences “the Legislative preference for
placement with [the noncustodial] parent””’ when the placement
is safe for the child. (In re K.B., at p. 979; see In re Nickolas T.
(2013) 217 Cal.App.4th 1492, 1505 [“Under section 361.2,
subdivision (a), the court focuses on the effect placement with the
noncustodial parent would have on the child’s safety, protection
and physical and emotional well-being.”].)
In making a finding of detriment under section 361.2,
subdivision (a), “the court weighs all relevant factors to
determine if the child will suffer net harm.” (In re A.C., supra,
54 Cal.App.5th at p. 43.) A finding of detriment must be made by
clear and convincing evidence. (Ibid.; In re John M. (2006) 141
Anwar under section 361.2, subdivision (a), as a factor weighing
in favor of termination of Anwar’s parental rights. (See § 366.26,
subd. (c)(1); In re A.G. (2020) 58 Cal.App.5th 973, 993 [“‘certain
prior findings by the juvenile court (e.g., that returning the child
to the physical custody of the parent would create a substantial
risk of detriment to the physical or emotional well-being of the
child) shall constitute a sufficient basis for the termination of
parental rights unless the juvenile court finds one of six specified
circumstances in which termination would be detrimental [to the
child]’”]; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1829
[“[s]hould the court fail to place the child with the noncustodial
parent, the stage is set for the court to ultimately terminate
parental rights”].)
18
Cal.App.4th 1564, 1569, 1571 (John M.).) “Clear and convincing
evidence requires a high probability, such that the evidence is so
clear as to leave no substantial doubt.” (In re Patrick S. (2013)
218 Cal.App.4th 1254, 1262; accord, Conservatorship of O.B.
(2020) 9 Cal.5th 989, 998.)
“[W]hen presented with a challenge to the sufficiency of the
evidence associated with a finding requiring clear and convincing
evidence, the court must determine whether the record, viewed as
a whole, contains substantial evidence from which a reasonable
trier of fact could have made the finding of high probability
demanded by this standard of proof.” (Conservatorship of O.B.,
supra, 9 Cal.5th at p. 1005; accord, In re I.R. (2021) 61
Cal.App.5th 510, 520; In re V.L. (2020) 54 Cal.App.5th 147, 155.)
2. Substantial Evidence Does Not Support the Juvenile
Court’s Detriment Finding Under Section 361.2,
Subdivision (a)
Anwar contends the record does not contain substantial
evidence to support the juvenile court’s finding it would be
detrimental to place Sureya with him pursuant to section 361.2,
subdivision (a). The juvenile court relied on three factors in
making its finding of detriment: the absence of contact between
Anwar and Sureya for two years; Sureya’s desire not to relocate
to Oklahoma; and that “Sureya is part of a sibling group” and did
not wish to be separated from her siblings. We agree with Anwar
substantial evidence did not support the court’s findings on the
second and third factors, leaving only the finding Anwar had not
seen Sureya in two years. This factor alone was not sufficient to
support the court’s finding of detriment.
19
An “‘alleged lack of a relationship between father and [a
child] is not, by itself, sufficient to support a finding of detriment
for purposes of section 361.2, subdivision (a).’” (In re Adam H.
(2019) 43 Cal.App.5th 27, 33 [evidence that father had been
absent from 14-year-old child’s life for nine years and did not
know him well was not sufficient to support implied finding of
detriment under section 361.2, subdivision (a)]; see John M.,
supra, 141 Cal.App.4th at p. 1570 [substantial evidence did not
support finding of detriment under section 361.2, subdivision (a),
even though almost-14-year-old child lacked a relationship with
father, father lived out of state, and child had limited
relationship with sibling].)
At the time of the disposition hearing, Sureya was almost
six years old. Anwar had not seen her for two years, but Anwar
insisted Sureya knew he was her father (and Sureya did not state
to the contrary), and Anwar had cared for Sureya when he was
living in California. In the jurisdiction report from the 2015
dependency proceeding, Rocio described Anwar as being “really
good with the kids.”
A child’s preference for placement is likewise relevant to a
finding of detriment, but not dispositive. (See In re K.B., supra,
239 Cal.App.4th at p. 980 [explaining as to placement of child
with noncustodial father under section 361.2, subdivision (a),
“even if X.B. had expressed an independent, uninfluenced desire
to remain with his maternal family, the seven-year-old child’s
preference is not clear and convincing evidence of emotional
detriment”]; see In re Patrick S., supra, 218 Cal.App.4th at
p. 1265 [that 13-year-old child did not want to live with his father
but was “resigned to doing so . . . does not constitute substantial
evidence of emotional detriment”]; see John M., supra,
20
141 Cal.App.4th at p. 1570 [“While, at [nearly 14 years of age], he
was entitled to have his wishes considered, [the minor] was not
entitled to decide where he would be placed.”].)
Here, Sureya’s counsel stated at the hearing that Sureya
was not requesting to be placed with Anwar, but there was no
evidence in the record that Sureya did not want to move to
Oklahoma or be placed with Anwar. The jurisdiction and
disposition report simply stated, “When asked about her father,
Sureya was unable to provide a statement.”
Similarly, “[s]ibling relationships are clearly a relevant
consideration in evaluating a child’s emotional well-being” under
section 361.2, subdivision (a). (In re Luke M. (2003)
107 Cal.App.4th 1412, 1425-1427 [substantial evidence supported
denial of noncustodial parent’s request for placement under
section 361.2, subdivision (a), where case social worker and
children’s counselor testified it would be emotionally detrimental
to separate the children]; cf. John M., supra, 141 Cal.App.4th at
p. 1570 [stale evidence concerning a close sibling relationship
insufficient to support a finding of detriment].) The juvenile
court stated that Sureya did not wish to be separated from her
siblings, but there is no evidence in the record showing Sureya
had a close relationship with her siblings or that she did not want
to be separated from them.
On appeal, the Department urges us in the alternative to
affirm the juvenile court’s finding of detriment based on Anwar’s
failure to take steps to resolve the issues that caused him to lose
custody of Sureya in 2016. This was not the basis of the juvenile
court’s ruling, and even if it were, the argument is not
persuasive.
21
Section 361.2, subdivision (a), affords a noncustodial
“parent, despite earlier shortcomings and mistakes, [who] has
stabilized his or her circumstances and may be able to provide a
safe home for the child” the opportunity for placement. (In re
Nickolas T., supra, 217 Cal.App.4th at p. 1506.) “The court may
assign such weight to a prior removal order or detriment finding
against a noncustodial parent as it considers appropriate in view
of the parent’s and child’s current circumstances. In many
cases, . . . the noncustodial parent’s history and circumstances
will clearly warrant a detriment finding. [Citation.] In other
cases, a noncustodial parent, notwithstanding a previous
removal order or detriment finding, may have remedied the
conditions that led to the prior dependency proceedings,
maintained a parental relationship with the child and stabilized
his or her circumstances.” (Ibid.)11
The Department is correct the juvenile court removed
Sureya from Anwar in 2015 because of his alcohol abuse and
11 The term “‘nonoffending’” does not appear in the text of
section 361.2, subdivision (a), but some courts nevertheless have
recognized “‘an implicit nonoffending requirement in
section 361.2’” for placement of a child with a noncustodial
parents. (See In re Christopher M., supra, 228 Cal.App.4th at
p. 1317; cf. Nickolas T., supra, 217 Cal.App.4th at p. 1506
[rejecting contention that “a parent must be both ‘noncustodial’
and nonoffending’ to be considered for placement under section
361.2”].) We do not read a requirement into section 361.2,
subdivision (a), that the parent be nonoffending, but in any event,
“a jurisdictional finding based on conduct of a noncustodial
parent would unquestionably be a consideration in assessing
detriment under section 361.2, subdivision (a).” (Christopher, at
p. 1317.)
22
domestic violence against Rocio, and he failed to reunify with
Sureya, resulting in the court granting Rocio sole legal and
physical custody in 2016. Although Anwar did not complete his
court-ordered counseling and classes in 2016, Anwar
subsequently completed a 52-week comprehensive domestic
violence program, for which his performance was “outstanding,”
and the counselor opined Anwar had “mastered [the] positive
conflict resolution exercise.” Anwar also submitted evidence he
attended thirteen 12-step meetings in September and October
2020. These efforts belie the Department’s position that Anwar
had not taken any steps to resolve the issues that caused him to
lose custody of Sureya in 2016.
To be sure, Anwar has been far from an ideal parent to
Sureya, particularly in his absence in the two years leading up to
the disposition hearing during which he was not part of her life.
But the essential question in determining placement under
section 361.2, subdivision (a), is whether clear and convincing
evidence shows placement with a noncustodial parent would be
detrimental to the child’s safety, protection, or physical or
emotional well-being. Substantial evidence does not support the
juvenile court’s detriment finding under section 361.2,
subdivision (a).
23
DISPOSITION
Alex’s appeal is dismissed as nonjusticiable. The juvenile
court’s finding it would be detrimental to place Sureya with
Anwar under section 361.2, subdivision (a), is reversed. We do
not remand for a new section 361.2 hearing because Sureya has
since been returned to Rocio’s custody.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
24