In re A.C. ( 2020 )

Filed 8/7/20 Certified for Publication 8/28/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re A.C., a Person Coming B302248
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 19CCJP05493)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.L.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Thomas E. Grodin, Judge. Affirmed.
Johanna R. Shargel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Kim Nemoy, Principal Deputy
County Counsel, for Plaintiff and Respondent.
____________________
The juvenile court found placing 12-year-old Daughter out
of state with her father would be detrimental to the child’s
emotional well-being. We affirm.
I
This dependency case started shortly after Daughter’s half
brother was born in August 2019. Both the half brother and
Mother tested positive for amphetamine at the hospital. Within
two weeks, the Department of Children and Family Services filed
a juvenile dependency petition under section 300 of the Welfare
and Institutions Code. All statutory references are to this code.
The Department alleged Mother’s substance abuse
endangered Daughter and her half brother and rendered Mother
incapable of caring for them. Accordingly, the Department
sought to remove the children from Mother and place them with
their maternal grandmother. At the time, Daughter lived with
Mother, an uncle, and other family members.
When the Department filed its petition, Daughter did not
know her father. Daughter had not lived with him since she was
a toddler. Mother said she and Father separated due to domestic
violence. Father said he left because he and Mother were no
longer getting along. He denied physically harming Mother.
After leaving Mother and Daughter, Father had little contact
with them and did not pay child support. Mother said Father
stopped all contact years ago after she asked him for financial
help buying a Christmas present for Daughter.
Mother and Daughter appeared before the juvenile court in
August 2019. The court found a prima facie case for detaining
Daughter and her half brother from Mother under section 300.
The court ordered a multidisciplinary assessment of Daughter
and ordered the Department to locate Father.
2
After locating Father, the Department interviewed him,
Mother, Daughter, and others. Daughter also saw a therapist.
She asked to speak with her father, and a social worker
facilitated the call.
The Department’s 2019 reports described the situation in
the following terms.
Father lives in Washington State with his wife and seven-
year-old son. He is self-employed and financially stable. Father
wants a relationship with Daughter. According to Father’s wife,
Mother did not allow Father to see Daughter.
Daughter does not want to live with Father. She wants to
visit him, but only on holidays or in the summer. Daughter sees
Father as a stranger who could have reached out to her over the
years but did not. She is uncomfortable being on her own with
Father. Not knowing his family well also makes her
uncomfortable.
Daughter is “strongly attached” to her half brother, enjoys
caring for him, and does not want to leave him. She also has a
“strong bond” with her maternal grandparents.
Daughter has many school friends and does not want to
leave them. She enjoys school, has an A average, and is “very
involved in achieving good grades.”
Daughter is mature, insightful, and articulate. She is “able
to express her wants and her needs.” She can “advocate for
herself.”
Daughter and her half brother both are “thriving and
developing as expected in an encouraging environment” with
their maternal grandparents. Their grandmother facilitates
daily visits with Mother and “demonstrated insight into the
importance of children’s needs such as a stable home and
3
supporting visits with [Mother].” Mother and her family are
“very loving” toward Daughter.
Daughter fears leaving her mother, family, friends, school,
and her life. She misses Mother significantly. She fears being
placed with Father and “appeared anxious and troubled when
[she] addressed the possibility of being placed with bio father.”
Daughter “has not been able to sleep due to being worried and
anxious of possibly having to go reside with her estranged
father.”
The therapist who saw Daughter is concerned for
Daughter’s mental health. She concludes removing Daughter
from her grandparents’ home would “pose a considerable
emotional strain for her” and would affect her academic stability.
Further, placement with Father “without a proper reintegration
process would be detrimental to her [ ] mental health and
stability.”
A multidisciplinary assessment team agreed placing
Daughter with Father “would cause emotional detriment” to
Daughter. The team concludes Daughter’s “social-emotional
needs are vulnerable.” She is “at high risk of emotional
deterioration.” Daughter would benefit from continued mental
health treatment.
The Department recommended reunification services and
visitation for Father to build his relationship with Daughter. It
also recommended an evaluation of Father’s home under the
Interstate Compact on the Placement of Children. (See generally
In re Suhey G. (2013) 221 Cal. App. 4th 732, 742–743.) The
Department concluded releasing Daughter to Father would be
emotionally detrimental to her.
4
Shortly before the disposition hearing, Father had a call
with the multidisciplinary assessment team. On the call, Father
acknowledged Daughter’s need gradually to bond with him, and
her need “to feel safe and secure that she will be reunifying with
[Mother] so that [she] can continue to thrive.” Father said he
wanted Daughter to feel safe and protected, to stay with Mother,
and to talk with him on the phone.
At the disposition hearing, Father’s counsel switched
position and argued Father was entitled to custody of Daughter
under section 361.2, subdivision (a). Counsel maintained Father
is nonoffending and has a good home; Daughter has a half sibling
in Washington; and Daughter recently visited with his family and
reported no concerns. According to Father, Mother kept
Daughter from him. Father never sought court involvement
before due to his immigration status. He now wants to make up
for lost time.
Daughter’s counsel asked that Daughter not be released to
Father. Citing the therapist’s report, counsel argued that release
would be detrimental to Daughter’s emotional well-being.
The juvenile court ultimately declared Daughter and her
half brother dependents under section 300 and ordered them
removed from Mother. The court also found it would be
detrimental to place Daughter with Father. The hearing also
addressed issues relating to the father of Daughter’s half brother
that are not relevant to this appeal.
Only Father appealed. The sole question is the propriety of
the juvenile court’s dispositional order denying placement of
Daughter with Father.
5
II
The dispositional order was proper. Substantial evidence
supports the juvenile court’s detriment finding.
Section 361.2, subdivision (a) requires a court ordering
removal of a child first to determine whether there is a
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. (§ 361.2, subd. (a).)
Only clear and convincing evidence can establish the
necessary detriment. (In re Luke M. (2003) 107 Cal. App. 4th
1412, 1426 (Luke M.).) In making this finding, the court weighs
all relevant factors to determine if the child will suffer net harm.
(Id. at p. 1425.)
Our role is limited because our review of the juvenile
court’s detriment finding is deferential. (See In re K.B. (2015)
239 Cal. App. 4th 972, 979.) We review the entire record in the
light most favorable to the court’s order to see whether
substantial evidence supports the finding. (Luke M., supra, 107
Cal.App.4th at p. 1426.)
A
Father argues we must reverse the juvenile court because
its detriment finding hinged entirely on one fact—the absence of
a father-daughter relationship—which is a legally insufficient
basis for rejecting placement with a noncustodial parent.
This is not a fair reading of the record. The juvenile court
read and considered the Department’s reports. The basis for its
finding was Daughter would experience something akin to
trauma should she be placed with Father. The court noted one of
the Department’s reports contained “very clear” information “that
6
it would be very, almost traumatic, for [Daughter] to have to face
that kind of move, at her age.” After making this finding, the
court observed, “there is almost no relationship between the
father and the child.”
The absence of a relationship between Father and
Daughter was a factor in the court’s decision, as is permissible.
(See In re Abram L. (2013) 219 Cal. App. 4th 452, 464 (Abram L.).)
Father correctly argues Daughter’s wishes are not
dispositive. The juvenile court acknowledged this point. The
child’s wishes are, however, relevant. (In re Adam H. (2019) 43
Cal. App. 5th 27, 33 (Adam H.).) The court was right to consider
this factor.
B
Father’s reply brief makes a different argument: that
appellate courts have rejected the combination of factors at play
here as insufficient to establish detriment under section 361.2.
This argument is incorrect.
The evidence shows Daughter is strongly attached to her
mother, half brother, and maternal family. They are loving.
Daughter is thriving in her grandmother’s home. She sees
Mother daily and wants to reunify with her. She has many
friends, enjoys school, and is excelling academically. Daughter
does not want to leave this life and go live with Father. Daughter
actually fears this prospect. He is a stranger to her. She has not
heard from him in over five years. Her anxiety about residing
with Father is consuming. She cannot sleep. Daughter’s
therapist concludes removing Daughter from her half brother and
the only family she has known in this way would be detrimental
to her mental health, affect her academic stability, and cause
“considerable emotional strain.” Daughter’s attorney agreed.
7
This evidence amply supports the juvenile court’s finding
Daughter would suffer emotionally if placed with Father.
Father cites no analogous case. His authorities are
consistent with our analysis here, as a brief review of them will
demonstrate.
The adolescent John in In re John M. (2006) 141
Cal. App. 4th 1564 was not clear about whether he wanted to live
with his father in Tennessee. (Id. at pp. 1568, 1570.) No
therapist recommended against the move. No evidence showed
John was strongly attached to his baby sister or his extended
family. (Id. at pp. 1568–1570.) In re John M. is no support for
reversing the juvenile court here.
The same holds for In re Patrick S. (2013) 218 Cal. App. 4th
1254 (Patrick S.). In that case, the boy P.S. and his mother left
P.S.’s father, a Naval officer, when the boy was 11 months old.
(Id. at pp. 1256–1257.) They moved from state to state, were
homeless at times, and lacked a familial safety net. (Ibid.) The
father searched for P.S. for years and paid child support every
month for 11 years without knowing where his son was. (Id. at p.
1263.) In the interim, P.S. attended 13 different schools. (Id. at
p. 1257.) At the time of the dependency proceedings, he was
enrolled in home independent study and was living in a foster
home. (Ibid.) P.S. had behavioral issues and no friends. (Id. at
pp. 1257, 1259.) Before the disposition hearing, P.S. visited his
father’s home in Washington for several weeks and made some
friends during the visit. (Id. at p. 1258.) P.S. was able to
converse freely with his father after the visit. (Ibid.) At various
points leading up to the disposition hearing, P.S. had differing
perspectives about his father, saying he preferred living with
him, was resigned to living with him, did not want to live with
8
him, and had anxiety about living with him. (Id. at pp. 1258,
1260.) To ease the transition and support his son, Father
researched schooling options for P.S. in Washington, arranged
individual and family therapy, joined a parenting class, and set
up an internship with an architect for P.S., consistent with the
boy’s interests. (Id. at p. 1260.) The father also offered to
facilitate contact and visitation with P.S.’s mother. (Ibid.) In re
Patrick S. obviously is distinguishable.
In re C.M. (2014) 232 Cal. App. 4th 1394 likewise involved
an essentially different situation. C.M. lived with her mother,
half sibling, and maternal grandparents. (Id. at pp. 1396–1397.)
Her father provided financial support and maintained a
relationship with C.M. (Id. at p. 1396.) He talked to her on the
phone frequently and saw her on weekends and some holidays.
(Id at p. 1397.) C.M. enjoyed these visits. (Ibid.) C.M.’s mother,
on the other hand, was verbally and physically abusive. (Ibid.)
When her mother went to jail after a violent episode, C.M. stayed
with her maternal grandparents. (Ibid.) They were in denial
about the mother’s problems. (Ibid.) While C.M.’s attorney wrote
C.M. was terrified of being released to her father, C.M.
maintained she wanted unmonitored weekend visits with him.
(Id. at p. 1398.) She did not want to live with him, and she did
not want a new home or a new school. (Ibid.) She also wanted to
remain with her half sibling and grandparents. (Id. at p. 1402.)
The opinion says nothing about the strength of these family
bonds and notes the father offered to have C.M.’s sibling placed
in his home as well. (Id. at p. 1404.)
There are many distinctions between this case and C.M.’s
situation. C.M.’s father had an ongoing relationship with his
daughter. No mental health provider opined the girl would suffer
9
emotionally if she were placed with him. The prospect of living
with him did not cause C.M. acute suffering. The father lived in
the same state, so visitations with the girl’s mother and other
family would not require flying across the country. In re C.M. is
consistent with our analysis.
Other cases Father cites are further afield.
The juvenile court in In re Marquis D. (1995) 38
Cal. App. 4th 1813 failed to apply section 361.2, subdivision (a)
and did not adequately explore whether placing the children with
their father would be detrimental. (Id. at pp. 1816, 1825.) The
same is true of Adam H., supra, 43 Cal.App.5th at pp. 32–33, and
Abram L., supra, 219 Cal.App.4th at p. 461. In re Karla C. (2010)
186 Cal. App. 4th 1236 is not instructive either. The pertinent
portion of the opinion is unpublished. (Id. at p. 1260.)
C
Father contends the juvenile court’s order should be
reversed because he is a safe, fit, and nonoffending parent who
wants custody of his daughter. Citing Patrick S., supra, 218
Cal.App.4th at p. 1265, Father argues the standard of detriment
is “very high” when the noncustodial parent is competent.
Without discussing what this standard means, Father implies it
was not met here.
Contrary to Father’s arguments, the court’s inquiry
properly is more comprehensive than simply whether a child will
be physically safe with a noncustodial parent or whether that
parent has behaved badly. (See Luke M., supra, 107 Cal.App.4th
at pp. 1423, 1425.) A court properly may decline placement with
a safe and nonoffending parent if that placement would be
detrimental to the child’s emotional well-being. (Id. at p. 1425;
§ 361.2, subd. (a); see also In re C.C. (2009) 172 Cal. App. 4th 1481,
10
1490–1491 [court has broad discretion to evaluate child’s
emotional well-being; finding a placement would impair the
child’s emotional security may suffice in appropriate cases].)
There is substantial evidence Daughter would suffer
significant emotional harm if she were forced to live with Father.
DISPOSITION
We affirm.
WILEY, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
11
Filed 8/28/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re A.C., a Person Coming B302248
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 19CCJP05493)
AND FAMILY SERVICES,
ORDER CERTIFYING
Plaintiff and Respondent, OPINION FOR
PUBLICATION
v.
[No change in judgment]
C.L.,
Defendant and Appellant.
THE COURT:
The opinion filed in the above-entitled matter on August 7,
2020 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. It is so ordered.
____________________________________________________________
BIGELOW, P. J. GRIMES, J. WILEY, J.