In re Solomon B. ( 2021 )

Filed 10/1/21; Certified for Publication 10/29/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re SOLOMON B., et al., B311250
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 20LJJP00627)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
SINDY S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Amir Aharonov, Judge Pro Tempore. Reversed.
Johanna R. Shargel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
_____________________
Sindy S. (Mother) appeals from the juvenile court’s
dispositional orders regarding her two sons, five-year-old
Solomon B. and four-year-old Samuel B. The juvenile court took
jurisdiction of them based upon custodial father Clarence B.’s
(Father) substance abuse, as well as the children’s filthy and
dangerous living conditions. Mother, who had fled to Texas
based upon Father’s domestic violence, immediately returned to
California and asserted that the children should be placed with
her as a nonoffending, noncustodial parent.
Although finding no current risk to the children posed by
Mother’s conduct, the juvenile court declined to place the children
with her, finding that doing so would nevertheless be detrimental
to their welfare under section 361.2 of the Welfare and
Institutions Code.1 Mother disputes this finding on appeal.
To deny placement with a nonoffending and noncustodial
parent, the juvenile court must find by clear and convincing
evidence that placement would be detrimental to the health,
safety, and/or well-being of the children. The reasons stated by
the juvenile court, primarily “abandonment,” are insufficiently
supported.
Mother did not abandon the children or knowingly leave
them in the care of an abusive Father. She fled California for
safety reasons and regularly monitored their children’s well-
1Subsequent undesignated statutory citations are to the
Welfare and Institutions Code.
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being. Her belief that Father would not abuse or neglect them
was rational, and she quickly returned to California when trouble
arose, attending hearings, participating in services, and
undergoing a psychiatric evaluation.
Because substantial evidence does not support the
detriment finding, we reverse the portion of the juvenile court’s
jurisdictional and dispositional orders denying placement with
Mother, and remand for further hearing on Mother’s request for
placement in accordance with this opinion.
FACTS AND PROCEDURAL BACKGROUND
A. The Family
Mother has two children with Father. Solomon was born in
2015, and Samuel followed in 2016.
Mother and Father lived together with the children until
2019. During that time, Mother and Father had a volatile
relationship, regularly fighting in front of the children. The
family had been referred to the Department once before following
one of these altercations.
In December of 2015, Mother threw a chair at Father’s
head, resulting in her arrest. Both parents agreed to participate
in protective services, and their voluntary family maintenance
case was eventually dismissed.
In November 2018, police were called to the home after
Father pushed Mother against a wall, repeatedly punched her
face, and attempted to strangle her. Father was arrested and
convicted of domestic violence charges.
On September 15, 2019, Mother left the family home,
sending Father a text message notifying him that she was
leaving the children in his custody. She later told social workers
that she was “overwhelmed” by raising the children in the
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chaotic, violent environment caused by her and Father’s “toxic”
relationship. She said that she felt that she needed to
definitively separate from Father before retaking custody of the
children. She resettled in Texas.
When she left, Mother claimed to have no concerns about
Father’s ability to care for the children. She reported that Father
had not directed any abusive behaviors towards the children, and
that, to her knowledge, he had not used illegal substances or
smoked marijuana in front of the children.
Although Mother did not communicate with Father about
the children’s welfare, she regularly called the maternal
grandmother and asked about the children. She also spoke with
the children via video conference most weekends, when they
stayed with the maternal grandmother.
B. Emergency Removal Order
Shortly after Mother left, Father moved into a motel with
the children. A year later, on September 19, 2020, the
Department received a report that, among other things, Father
had been leaving the children alone in the motel, using drugs
with the children present, and failing to provide adequate food
and medical care for the children.
The Department sent a social worker to the motel to
investigate. Upon arriving at the family’s motel room, Father
was not present. The children were left in the care of an
unnamed male, who was not able to locate Father. The social
worker noted that the room where the children lived was strewn
with dirty clothing, partially eaten food, and other trash.
Marijuana paraphernalia, including a large glass bong, rolling
papers, and a lighter, were kept on a table within reach of the
children. The children were dirty, and appeared to have
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developmental delays; at ages four and five, neither seemed
capable of speaking in sentences.
Father returned to the room after a few minutes. He
denied the allegations against him. Although Father reported
that he did not use drugs or take medication, he admitted to
using marijuana. He agreed to submit to drug testing, later
testing positive for marijuana and oxymorphone.
On September 25, 2020, the Department contacted Mother
in Texas and informed her of the situation. She returned to
California for the detention hearing and requested that the
children be released to her care.
On October 2, 2020, the Department obtained an expedited
order to remove the children from their parents. The children
were placed with their paternal great-uncle and great-aunt.
C. Jurisdiction Petition and Detention
On October 6, 2020, the Department filed a petition
alleging that the children were subject to dependency jurisdiction
pursuant to section 300, subdivisions (a) and (b)(1).
The petition articulated five counts supporting jurisdiction.
Three of those counts involved Mother: counts a-1 and b-3 alleged
that Mother and Father’s history of domestic violence placed the
children at risk of serious physical harm; and count b-4 alleged
that Mother had “a history of mental and emotional problems”
rendering her “incapable of providing the children with regular
care and supervision.” Count b-4 was based on the maternal
grandmother’s statement that Mother “has mental health issues”
and “is supposed to take medication,” although the grandmother
could not remember either the diagnosis or specific medication.
The remaining two counts concerned Father only. Count b-
1 alleged that Father’s “current abuse[ ] of marijuana and
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oxymorphone” (a highly potent opioid posing a significant risk of
abuse and addiction) rendered him “incapable of providing the
children with regular care and supervision.” Count b-2 alleged
that Father “established an endangering and detrimental home
environment for the children.”
That same day, the children were detained from both
parents pending a jurisdiction report and hearing.2 The juvenile
court also ordered a mental health evaluation for Mother.
D. Jurisdictional and Dispositional Hearing
On March 19, 2021, the juvenile court held a combined
adjudication and dispositional hearing, which Mother and Father
both attended telephonically. After hearing argument, the court
took jurisdiction, sustaining counts b-1 and b-2 against Father.
However, it dismissed the remaining counts, and struck Mother
from the petition entirely. The court stated that it “just d[id]n’t
see a current risk on those counts relating to [Mother],”
emphasizing that “[t]here was no real evidence on the issue of
[count] b-4 at all to sustain that count.”
At the concurrent disposition hearing, Mother requested
that the children be placed with her, but the court denied the
request, finding that placement would be detrimental by clear
and convincing evidence. The court expressed concern about
what it characterized as Mother’s “abandonment of these children
since . . . September 2019,” and found that it was unreasonable
2 In the minute orders, references are made to the
children’s placement “in Shelter Care under the supervision of
[the] Department.” However, the Department’s reports and
subsequent orders indicate that the children were continuously
left in the custody of their paternal relatives.
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for Mother “to expect that she should disappear for over a year
and then walk back and just get these children out of whatever,
while having no physical contact with them for that long.”
When Mother’s counsel objected to the juvenile court’s
characterization of her conduct, the court clarified that “it’s not
a[n] issue of disappearing, it’s knowing what issues the children
were dealing with and . . . what she had dealt with while she was
with [Father], and notwithstanding that, she didn’t take
measures to protect them from him.” It emphasized that the
denial was not intended to penalize Mother, but to “protect[ ]
these kids [during] what could be a very traumatic transition for
them already.” The court then ordered the Department to assess
Mother for possible placement in the future.
Mother timely appealed.
DISCUSSION
When a juvenile court orders removal of a child from the
custodial parent, it must determine whether there is a
noncustodial parent who wants to assume custody. If so, the
court must “place the child with the [noncustodial] parent unless
it finds that [such] placement . . . would be detrimental to the
safety, protection, or physical or emotional well-being of the
child.” (§ 361.2, subd. (a).) A finding of detriment must be made
by clear and convincing evidence. (In re Marquis D. (1995) 38
Cal.App.4th 1813, 1829.) We review the juvenile court’s finding
of detriment for substantial evidence, “bearing in mind the
heightened burden of proof” in the trial court. (In re Kristin H.
(1996) 46 Cal.App.4th 1635, 1654.)
The gravamen of the juvenile court’s detriment finding is
Mother’s lack of contact with the children after September 2019,
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combined with her failure to protect the children from Father.
We analyze these issues seriatim.3
Initially, it is important to consider that the juvenile court
dismissed all of the counts involving Mother and struck her
entirely from the petition, stating that it “just d[id]n’t see a
current risk on those counts relating to [Mother],” emphasizing
that “[t]here was no real evidence on the issue of [count] b-4 at all
to sustain that count.”
Moreover, the record does not support the juvenile court’s
conclusion that Mother lost contact with the children or
“abandoned them” after she fled to Texas. To the contrary, she
regularly checked in with the maternal grandmother about the
children’s welfare, while also participating in weekly video
conferences with them. At the very least, this demonstrates a
consistent desire to remain involved in the children’s lives.4
In any event, failure to keep in close contact would not, by
itself, be sufficient to support a finding of detriment. (In re Adam
H. (2019) 43 Cal.App.5th 27, 33 [“An ‘alleged lack of a
relationship between father and [a child] is not, by itself,
3 Mother contends that the juvenile court’s dispositional
orders should also be reversed because it relies on the proposition
that the court is entitled to receive an assessment of Mother’s
home environment before placing the children with her. In light
of our disposition, we need not reach that issue.
4 The juvenile court’s emphasis on Mother’s lack of physical
contact with the children after September 2019 ignores the
practical reality of maintaining relationships across state lines in
2020 and 2021. Given the ongoing health risks and travel
restrictions caused by the COVID-19 pandemic, Mother’s
telephonic and video contact with the children was entirely
appropriate.
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sufficient to support a finding of detriment’ ”]; In re K.B. (2015)
239 Cal.App.4th 972, 981 [“A lack of contact between the child
and the nonoffending noncustodial parent, alone, is not a basis
for finding detriment”].)
The juvenile court also based its detriment finding on
Mother’s failure to protect the children from the risks associated
with Father’s abusive conduct and marijuana use. Although
Mother fled her violent relationship with Father in order to gain
independence and establish an alternate home for herself and the
children, she did not believe that Father’s abusive conduct
towards her indicated that Father would similarly abuse the
children. Because there were no substantiated allegations that
Father physically or emotionally abused the children after
Mother left, her belief appears to have been correct. Importantly,
the juvenile court specifically concluded in its jurisdictional
findings that Father’s abusive conduct toward Mother did not
pose a current risk to the children given the couple’s current
separation.
In terms of marijuana use, Mother reported that Father
had never used marijuana around the children while they lived
together. It was therefore not unreasonable for her to conclude
that Father’s history of marijuana use would not pose serious
risks to the children, especially since Mother regularly checked
on the children’s welfare and communicated with them by video
conference during visits with the maternal grandmother. And
the maternal grandmother corroborated Mother to the extent
that she, too, believed Father was abstaining from marijuana
while caring for the children. Whenever she picked up the
children they “did not look disheveled[ ] and were always clean.”
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Once Mother learned that the Department had become
involved and that Father’s marijuana use may have been
impacting his ability to care for the children, she quickly
returned to California, sought placement, attended all significant
dependency hearings, and participated in recommended services,
including parenting classes and a psychiatric evaluation. This
behavior belies a parent at current risk of failing to protect her
children.
Although the Department had over five months to
investigate Mother’s suitability for placement, it presented scant
evidence on that topic to the juvenile court.5 Based on such
evidence, the juvenile court’s findings do not rise to the high level
of detriment required under section 361.2. (See, e.g., In re C.M.
(2014) 232 Cal.App.4th 1394, 1402 [reversing order denying
placement when the minor wanted to remain with her maternal
grandparents, and did not want to be separated from her half-
5 The Department’s emphasis on Mother’s lack of protective
capacity rings hollow in light of the juvenile court’s dismissal of
all jurisdictional allegations as to her. (Cf. In re D’Anthony D.
(2014) 230 Cal.App.4th 292, 302 [“ ‘If a noncustodial parent is in
some way responsible for the events or conditions that currently
bring the child within [§] 300—in other words, if the parent is an
“offending” parent—those facts may constitute clear evidence of
detriment under [§] 361.2, [subd.] (a)’ ”].) Further, the
Department failed to “explore[ ] alternative means of
investigating” Mother’s current ability to care for the children,
such as reaching out to her Texas employer or verifying the
stability of her home environment, effectively “depriv[ing] the
court of . . . information” potentially relevant to a placement
decision. (In re John M. (2006) 141 Cal.App.4th 1564, 1572-
1573.)
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sibling or change schools; the noncustodial father worked long
hours and was often away from home; and the noncustodial
father had a reported history of alcohol abuse and domestic
violence]; In re John M., supra, 141 Cal.App.4th at pp. 1572-1573
[reversing order denying placement when the child wanted to live
with another relative and did not want to move out of state; there
had been little contact between the child and his noncustodial
father; and the court lacked evidence regarding the suitability of
the noncustodial father’s home environment].)
DISPOSITION
The juvenile court’s March 19, 2021 jurisdictional and
dispositional orders are reversed insofar as they deny placement
with Mother. The matter is remanded for further proceedings in
accordance with this opinion.
CRANDALL, J.*
We concur:
ROTHSCHILD, P. J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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CHANEY, J.
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Filed 10/29/2021
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re SOLOMON B., et al., B311250
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 20LJJP00627)
LOS ANGELES COUNTY ORDER CERTIFYING FOR
DEPARTMENT OF CHILDREN PUBLICATION
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
SINDY S.,
Defendant and Appellant.
THE COURT:
The opinion in the above-entitled matter filed on October 1,
2021, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be published in
the Official Reports and it is so ordered.
____________________________________________________________
CRANDALL, J.* ROTHSCHILD, P. J. CHANEY, J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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