In re G.P. CA2/1 ( 2020 )

Filed 11/23/20 In re G.P. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
In re G.P. et al., Persons B304590
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 19CCJP06143)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JUSTIN B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Marguerite D. Downing, Judge. Affirmed in part and
reversed in part.
Christopher R. Booth, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, Jessica S. Mitchell, Deputy County Counsel, for
Plaintiff and Respondent.
_______________________________
1
In this dependency case (Welf. & Inst. Code, § 300 et seq.),
Justin B. (Father) appeals from the disposition orders,
challenging (1) the denial of his request for presumed parent
status as to the half sibling of his two biological children; (2) the
jurisdictional finding against him and related components of his
case plan; (3) the order suitably placing the three children in
foster care rather than with him; and (4) the order restricting
him to supervised visitation with his biological children. For the
reasons explained below, we reverse the jurisdictional finding
against Father and a related component of his case plan. In all
other respects, we affirm the disposition orders.
BACKGROUND
I. Non-Detain Dependency Petition
On September 20, 2019, the Los Angeles County
Department of Children and Family Services (DCFS) filed a non-
2
detain petition against Glenda P. (Mother) under section 300,
1
Statutory references are to the Welfare and Institutions
Code unless otherwise noted.
2
Mother is not a party to this appeal. Accordingly, we do
not summarize all the facts set forth in DCFS’s reports
supporting the jurisdictional findings against Mother and the
disposition orders as to Mother (removal of the children), which
are not challenged in this appeal.
2
subdivisions (a) and (b), alleging her three children, G.P. (a girl
nearly 10 years of age), N.P. (a girl nearly eight years of age), and
D.P. (a boy nearly seven years of age), were at risk of harm due to
Mother’s history of domestic violence with her boyfriend (not
3
Father). The petition alleged that during a recent incident,
Mother’s boyfriend struck and choked Mother and pushed G.P.
and N.P. when they tried to intervene in the altercation. The
petition also alleged that Mother allowed her boyfriend to have
unlimited access to the children.
As set forth in a September 23, 2019 Detention Report, at
the time DCFS filed the petition, Mother and the three children
were homeless and living in a tent. Although DCFS determined
juvenile court intervention was necessary to protect the children,
DCFS decided not to detain the children from Mother at the time
it filed the petition because the children consistently attended
school and Mother appeared to be meeting their basic needs.
In interviews leading up to the filing of the petition, Mother
informed the social worker that she had been in a relationship
with her boyfriend (who she represented was now her ex-
boyfriend) on and off for about six years. He was not the father of
any of the children. She indicated that G.P., N.P., and D.P. did
not all have the same father. She denied she had contact
information for the fathers, stating “the fathers have not been in
the children’s lives since they were born.”
At a September 3, 2019 detention hearing on the petition,
Mother identified G.P.’s biological father as “James” (last name
3
Throughout this opinion, “the children” refers only to
G.P., N.P., and D.P. Mother’s parental rights to another child
were terminated, and the child was adopted in or around 2011.
3
unknown), and N.P. and D.P.’s biological father as Father
(appellant Justin B.). On parentage questionnaires that Mother
filled out for each of the three children and submitted to the
juvenile court on the date of the detention hearing, Mother
indicated that neither man was present for the birth of his
child(ren) or signed a birth certificate. She did not provide
contact information for either man, but she listed a city of
residence for Father on the parentage questionnaires for N.P.
and D.P. and stated that Father “is on Facebook.” Neither man
appeared at the detention hearing. The juvenile court found
James to be the alleged father of G.P. and Father to be the
alleged father of N.P. and D.P. The court found DCFS made a
prima facie showing that the children were persons described by
section 300 and detained the children from the alleged fathers
and ordered the children to remain released to Mother. The court
ordered monitored visitation between the children and their
respective alleged fathers, once the alleged fathers contacted
DCFS, and no contact between the children and Mother’s
boyfriend.
II. DCFS Detains the Children From Mother
On or about October 23, 2019, DCFS detained the children
from Mother and placed the girls, G.P. and N.P., in one foster
home, and the boy, D.P., in another foster home. The same day,
DCFS filed an ex parte application under section 385, requesting
the juvenile court modify the order releasing the children to
Mother and order the children placed in shelter care. DCFS
reported in the application that Mother had allowed the children
to have contact with her boyfriend, in violation of the juvenile
court’s September 23, 2019 order, and she refused domestic
violence and parenting services.
4
In an October 24, 2019 Detention Report on the ex parte
application, DCFS stated that neither Father nor James had
been in contact with DCFS. At an October 25, 2019 detention
hearing, the juvenile court ordered the children detained in
shelter care, with monitored visitation for Mother.
III. Father Appears in Court on the Date Originally
Scheduled for the Adjudication/Disposition Hearing
At the time DCFS prepared its November 15, 2019
Jurisdiction/Disposition Report, the whereabouts of Father and
James were unknown. As stated in the report, Mother informed
DCFS that she was in a relationship with James for two years
and with Father for nine years (dates not specified). DCFS
recommended reunification services for Mother but not for Father
and James, as they were alleged Fathers only. DCFS conducted
a due diligence search for both alleged fathers and sent notices of
the November 15, 2019 adjudication/disposition hearing to
4
Father at various addresses it found.
On November 15, 2019, Father made his first appearance
in these proceedings, at what was scheduled to be the
adjudication/disposition hearing. On that date, he filled out and
submitted to the juvenile court a Statement Regarding Parentage
(form JV-505) for each of the three children. On the form for
G.P., Father acknowledged G.P. was not his biological daughter.
He requested that the juvenile court find him to be G.P.’s
presumed parent, indicating on the form (1) G.P. lived with him
from her birth in late 2009 until sometime in 2014; (2) he told
4
Without a last name for James, DCFS was unable to
locate a potential address for him. James never participated in
these dependency proceedings.
5
family members and friends that G.P. was his child; (3) he took
G.P. to public parks, daycare/school, stores, movies and
restaurants, and participated in movie nights and other family
activities with her; (4) he provided financial support, shelter,
food, clothes, and other necessities to G.P.; (5) G.P. spent time
with the “paternal grandfather” (presumably Father’s father);
and (6) Father took care of G.P. as if she was his biological child.
Father did not indicate on the form whether his relationship with
G.P. continued after 2014, the year he listed on the form as the
date G.P. stopped living with him.
At the November 15, 2019 hearing, the juvenile court found
Father to be the presumed father of N.P. and D.P. but not G.P.
The court reiterated that James, who was not present in court,
was G.P.’s alleged father. Upon Father’s request, the court
ordered DCFS to provide housing and transportation assistance
for Father. The court also ordered monitored visitation for
Father with N.P. and D.P. The court continued the
adjudication/disposition hearing to December 12, 2019.
IV. After Interviewing Father, DCFS Files a First
Amended Dependency Petition
As set forth in a December 12, 2019 Last Minute
Information for the Court, DCFS interviewed Father on
November 25, 2019. According to the report, Father stated
during the interview that he and Mother were in a relationship
5
for three years (dates not specified). He represented “he was
5
As set forth above, Father indicated on the Statement
Regarding Parentage form that he lived with Mother’s daughter
G.P. (and presumably Mother) from G.P.’s birth in late 2009 until
sometime in 2014, a period of four to five years. Mother told
DCFS that she and Father were in a relationship for nine years.
6
present for the birth of all three children and that he is the
biological father of all three children” (notwithstanding that
Father acknowledged he is not G.P.’s biological father on the
Statement Regarding Parentage form he filled out and submitted
to the juvenile court 10 days before this interview). Father also
stated Mother did not allow him to sign the children’s birth
certificates.
Father further stated that during his relationship with
Mother, she “kept leaving him for her current boyfriend.” Father
heard about domestic violence occurring between Mother and her
boyfriend when Mother and the children lived outside of
California with Mother’s boyfriend (during a period not specified).
Father advised Mother to obtain a restraining order against her
boyfriend. According to Father, Mother and the children last
stayed with Father “approximately towards the end of 2018,” and
then Mother “left him [Father] once again for this boyfriend.”
Father stated he “last saw his children seven months ago and
that he did not know where Mother was.” Father supported
DCFS’s decision to detain the children from Mother.
Father also informed DCFS during the November 25, 2019
interview that his family had a history of bipolar disorder,
schizophrenia, and depression. Father stated he was diagnosed
with bipolar disorder on a date not specified in the report. He
further stated he had “never had any psychiatric
hospitalizations,” was not currently enrolled in mental health
services, and was “ ‘very stable.’ ” Father explained he
“prefer[red] to smoke marijuana over taking psychotropic
medication because the medication makes him drowsy and causes
stomach issues.” He stated he smoked marijuana “once in the
morning and once after work each day and this help[ed] him
7
regulate his mood.” He “began smoking marijuana and drinking
alcohol as a teenager and ha[d] never experimented with any
other kind of drug.” He reported he currently only drank alcohol
a few times per year, on special occasions.
Father further stated he wanted to “work towards having
full custody of the children,” but first he “need[ed] help with
obtaining housing.” He explained he was “currently staying with
a friend, but this is not a good friend and that he [did] not want
his children to be released to him at this home.” Father reported
he had employment at a restaurant where he worked “almost full
time as a dish washer and food preparer,” but he wanted to
obtain employment as a chef. He also occasionally had “side jobs
and auditions” for his avocation as a rap artist.
On December 11, 2019, DCFS filed a first amended
dependency petition, which included the same allegations under
section 300, subdivisions (a) and (b) regarding Mother’s history of
domestic violence with her boyfriend, and added an allegation
under section 300, subdivision (b) regarding Father’s untreated
mental and emotional issues, bipolar disorder diagnosis, and
failure to seek mental health services or take psychotropic
medication “as prescribed.”
On December 12, 2019, Mother and Father appeared at
what was scheduled for a continued adjudication/disposition
hearing, and they each denied the allegations in the first
amended petition. Father’s appointed counsel informed the
juvenile court that “Father would like to renew his earlier
application to be found presumed [father] for [G.P.],” explaining,
“It’s Father’s position he’s cared for the child as if [she] were his
8
6
own.” Appointed counsel for G.P. and N.P. objected to the
request, but before counsel could state the reason for her
objection, the juvenile court responded, “I’m just considering it. I
haven’t read the report.” The court continued the
adjudication/disposition hearing to January 29, 2020.
V. Adjudication/Disposition Hearing
Mother and Father appeared at the January 29, 2020
adjudication/disposition hearing. After the juvenile court
admitted DCFS’s reports (and some exhibits offered by Mother)
into evidence, Father testified on his own behalf regarding the
allegations against him in the first amended petition (count b-2),
his request for custody of the children, and his request for
presumed father status as to G.P.
Father stated he was diagnosed with bipolar disorder when
7
he was 12 years old. He was prescribed Depakote and another
medication he could not recall for his condition. He stopped
taking the medications when he was 16 or 17 years old because
he felt “physically well” and “stable.” His mental health provider
did not tell him “it was okay” to stop taking the medications, but
the provider was aware he had stopped taking the medications.
The last time he saw a mental health professional he was 23
years old (around seven years before his testimony at this
adjudication/disposition hearing). At that time, his mental
health provider informed him he no longer suffered from bipolar
disorder, only depression. The provider did not tell Father he no
6
The juvenile court appointed separate counsel for D.P.
after DCFS placed him in a different foster home than his sisters.
7
Father was 30 years old when he testified at the January
29, 2020 adjudication hearing.
9
longer needed mental health services, but Father chose to end the
services because he felt he was “functional” and could take care of
himself.
Father denied he used marijuana to treat bipolar disorder,
characterizing DCFS’s statement in its report as “a
misunderstanding.” He testified he used marijuana “for back
pain, knee pain, joints, bones, arthritis.” He stated he did not use
marijuana in the children’s presence, and he stored his
marijuana in a “locked and sealed” and “smell proof” case.
Father testified he currently smoked marijuana “[e]very once in a
while,” and no longer on a daily basis, because he could not
“financially afford it.”
Father testified he did not currently have depression or any
other mental health disorder, and he was “able to function” and
to work. He had been employed at his current job at the
restaurant for the past three years, and before that he worked at
a warehouse for five or six years. He currently worked on
Saturday and Sunday mornings, and three days during the week
from 4:30 to 9:00 p.m. He stated he “ha[d] been speaking with [a
woman] about paying her to do [his] child care” if the juvenile
court placed the children in his custody. Father acknowledged he
had not discussed his child care plan with DCFS.
Father stated he moved into a new apartment on December
24, 2019, about a month before the adjudication/disposition
hearing. He lived with three other (unidentified) people. He had
not invited DCFS to inspect the apartment. He testified that
DCFS contacted him about visits with his children, but not about
inspecting the apartment. He acknowledged, however, that he
had only returned one of the “few phone calls” DCFS had made to
him. He had not yet provided his new address to DCFS or the
10
juvenile court. He acknowledged the telephone number DCFS
had for him was not current because his phone was stolen a few
days before and he had not yet given his new telephone number
to DCFS.
When Father’s counsel asked him, “have the children ever
been under your care,” Father responded, “[o]nly on visitation
levels.” Father stated the children last stayed overnight with
him “a few years” before the January 29, 2020
adjudication/disposition hearing. Father’s counsel asked if “there
[were] any problems taking care of the children,” and Father
responded: “No, not really. [¶] Just -- I work a lot, so I also had
to try to get weekends.”
Father testified that he called G.P. his daughter even
though she was not his biological child. He stated he “raised” and
“trained” her and spent half her life with her. He explained that
he “came into her life [when] she was three months” old. When
G.P.’s counsel asked Father to state G.P.’s birthday, Father
responded, “I do not know her birthday.” He listed two dates that
were in the same month as, and close to, her birthday. Father
testified that for a period of time G.P. attended his overnight
visits with N.P. and D.P., but at some point she stopped
attending because “[s]he was always with her[] so called
biological father, or she was with her auntie.”
After Father’s testimony, the juvenile court heard
argument by the parties. Counsel for D.P., counsel for G.P. and
N.P., and counsel for DCFS urged the juvenile court to sustain all
allegations in the petition, remove the children from Mother, and
order the children to remain suitably placed in shelter care,
arguing that placement with Father would be detrimental to the
children. Counsel for G.P. and N.P. also asked the court to reject
11
Father’s request for presumed father status as to G.P., informing
the court that G.P. “vehemently object[ed] to [Father] being her
presumed father,” and arguing the evidence does not support
Father’s request.
Mother’s counsel asked the juvenile court to dismiss the
allegations pleaded against her, sustain the allegations pleaded
against Father, place the children with her, and deny Father’s
request for presumed father status as to G.P.
Father’s counsel argued the juvenile court should find
Father to be a nonoffending parent and place the children with
him because there is insufficient evidence to sustain the
allegations in the petition that Father currently suffers from
bipolar disorder and, even if he does, that the mental health
condition places the children at risk of harm. Father’s counsel
urged the court to place the children with him even if the court
sustained the allegations against him or, at a minimum, grant
him unmonitored visitation. Father reiterated his request that
the court find him to be G.P.’s presumed father. Father’s counsel
stated Father would submit to a case plan consisting of random,
on demand drug tests, parenting, and individual counseling, but
he objected to DCFS’s recommendation that he submit to a
psychological assessment, based on the insufficiency of the
evidence supporting that recommendation.
The juvenile court sustained the allegations in the petition
regarding Mother’s history of domestic violence with her
boyfriend (counts a-1 & b-1). The court sustained the following
amended allegation against Father (count b-2): “The children,
N[.]P[.] and D[.]P[.]’s father, Justin B[.], has an unresolved
history of mental health issues and has been previously
diagnosed with Bipolar Disorder. Father has failed to seek
12
services for his mental health and did not take psychotropic
medication as prescribed. Father’s unresolved mental health
issues endangers the children’s physical health and safety and
places the children at risk of serious physical harm, damage, and
danger.” In sustaining the allegation against Father, the court
acknowledged that Father may not currently suffer from bipolar
disorder, but the court expressed concern that Father was “self-
diagnosing” and “self-medicating” with marijuana.
The juvenile court declared the children dependents of the
court, removed them from parental custody, and ordered them to
remain suitably placed under DCFS’s supervision. As to Father,
the court found “it would be premature to return [N.P. and D.P.]
to him” because: “The Court has no information he’s enrolled in
programming. [¶] The Court also notes that he continues to use
marijuana. [¶] The Court notes it is lawful, but given the mental
health issues, there are some questions. [¶] In addition, the
Court’s concern would be separating two of the children and
leaving [G.P.] in placement by herself, and the Court notes that
[Father] has not followed up with giving the Department an
opportunity to assess his current home. [¶] That he is – has
been [in] since December and the Court also notes that the
Department does not even have a working [phone] number for
him.”
Counsel for G.P. and N.P. inquired whether the juvenile
court was “keeping the same paternity finding with respect to
G[.P.]” The court responded, “I am, given the fact that [Father]
8
indicated that he had not had visits for a number of years.”
8
This exchange belies Father’s assertion the trial court
failed to rule on his request for presumed father status as to G.P.
13
The juvenile court ordered reunification services for Mother
and Father and monitored visitation with their respective
(biological) children, and the court gave DCFS discretion to
liberalize the visitation and/or return the children to parental
custody. The court ordered Father to complete a case plan
consisting of random or on demand drug testing, a parenting
program, individual counseling to address case issues, a
psychological assessment, mental health counseling, and
psychotropic medication, if prescribed.
Father appealed from the January 29, 2020 disposition
orders. Thereafter, at a hearing on September 30, 2020, the
juvenile court terminated the suitable placement order, placed
the three children with Mother, and ordered family maintenance
services for Mother and family enhancement services for Father.
The court scheduled a section 364 review hearing for March 30,
9
2021.
DISCUSSION
I. Denial of Presumed Father Status
Father contends the juvenile court erred in declining to
grant him presumed father status as to G.P. under Family Code
section, subdivision (d), which provides, a “person is presumed to
be the natural parent of a child” if the person “receives the child
into his or her home and openly holds out the child as his or her
natural child.” (Fam. Code, § 7611, subd. (d).) “A father is not
elevated to presumed father status unless he has demonstrated a
‘commitment to the child and the child’s welfare . . . regardless of
whether he is biologically the father.’ ” (W.S. v. S.T. (2018) 20
9
On the court’s own motion, we take judicial notice of the
juvenile court’s September 30, 2020 minute orders.
14
Cal. App. 5th 132, 143.) In the juvenile court, a person requesting
presumed parent status bears the burden of proving he or she is
a presumed parent by a preponderance of the evidence. (Glen. C.
v. Superior Court (2000) 78 Cal. App. 4th 570, 585-586.)
“ ‘We review a juvenile court’s determination of presumed
parentage status under the substantial evidence standard.’ ” (In
re D.A. (2012) 204 Cal. App. 4th 811, 824.) In reviewing a
challenge to the sufficiency of the evidence to support a finding,
“the issue is whether there is evidence, contradicted or
uncontradicted, to support the finding. In making that
determination, the reviewing court reviews the record in the light
most favorable to the challenged order, resolving conflicts in the
evidence in favor of that order, and giving the evidence
reasonable inferences. Weighing evidence, assessing credibility,
and resolving conflicts in evidence and in the inferences to be
drawn from evidence are the domain of the trial court, not the
reviewing court.” (In re Alexis E. (2009) 171 Cal. App. 4th 438,
450-451.)
Even if Father once held G.P. out as his natural child,
substantial evidence in the record demonstrates that by the time
of the adjudication/jurisdiction hearing, he no longer did.
Father’s most recent visits with the children—which were long
before the hearing—only included N.P. and D.P. According to
Father’s testimony, G.P. stopped attending visits with Father
and her half siblings because “[s]he was always with her[] so
called biological father, or she was with her auntie.” Thus,
Father acknowledged that the relationship between G.P. and her
biological father and relatives prevented him from continuing his
relationship with her. And although it appeared that G.P. no
longer had a relationship with her biological father by the time of
15
the adjudication/disposition hearing, Father had not resumed his
visitation with her. Father did not demonstrate an ongoing
commitment to G.P., and substantial evidence supports the
juvenile court’s denial of his request for presumed father status
as to G.P. Absent presumed parent status, Father does not
assert he is entitled to placement of or visitation with G.P.
II. Jurisdictional Finding Against Father
A. Justiciability of Father’s contention
As Father acknowledges, the juvenile court’s jurisdiction
over N.P. and D.P. will continue, whether or not this court
reverses the jurisdictional finding against him, based on the
jurisdictional findings against Mother, which are unchallenged
on appeal. “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. In such a case, the
reviewing court need not consider whether any or all of the other
alleged statutory grounds for jurisdiction are supported by the
evidence.” (In re Alexis E., supra, 171 Cal.App.4th at p. 451.)
“Because the juvenile court assumes jurisdiction of the child, not
the parents, jurisdiction may exist based on the conduct of one
parent only. In those situations an appellate court need not
consider jurisdictional findings based on the other parent’s
conduct.” (In re J.C. (2014) 233 Cal. App. 4th 1, 3.)
In his opening appellate brief, Father asks this court to
exercise its discretion to review the merits of his challenge to the
jurisdictional finding against him, arguing the finding is the
basis for the disposition orders (e.g., placement of his children,
16
monitored visitation, and his case plan), and the finding may
prejudice him in current or future dependency proceedings. We
may “exercise our discretion to reach the merits of the other
parent’s jurisdictional challenge in three situations: (1) the
jurisdictional finding serves as the basis for dispositional orders
that are also challenged on appeal; (2) the findings could be
prejudicial to the appellant or could impact the current or any
future dependency proceedings; and (3) the finding could have
consequences for the appellant beyond jurisdiction.” (In re J.C.,
supra, 233 Cal.App.4th at p. 4.) Because the jurisdictional
finding against Father is the basis, or at least part of the basis,
for disposition orders Father challenges in this appeal (the
requirement that he submit to a psychological assessment and
the juvenile court’s decision not to place N.P. and D.P. with him
and to restrict his visitation to monitored visits), we review
whether the juvenile court properly made the jurisdictional
finding against Father.
B. Legal standards for jurisdiction under section
300, subdivision (b) and analysis
Jurisdiction under section 300, subdivision (b), requires
proof “[t]he child has suffered, or there is a substantial risk that
the child will suffer, serious physical harm or illness, as a result
of the failure or inability of his or her parent or guardian to
adequately supervise or protect the child, . . . or by the inability of
the parent or guardian to provide regular care for the child due to
the parent’s or guardian’s mental illness . . . .” (§ 300, subd. (b).)
It is undisputed that at the time of the adjudication hearing, N.P.
and D.P. had suffered no physical harm or illness. Thus,
jurisdiction in this case required the juvenile court to find by a
preponderance of the evidence that there was a substantial risk
17
N.P. and D.P. would suffer serious physical harm or illness in the
future as a result of Father’s failure or inability to adequately
supervise, protect, or provide regular care for N.P. and D.P.
because of his mental health issues. (§ 355 [“Proof by a
preponderance of evidence must be adduced to support a finding
that the minor is a person described by Section 300”].)
In deciding whether there is a substantial risk of serious
physical harm or illness, within the meaning of section 300,
subdivision (b), courts evaluate the risk that is present at the
time of the adjudication hearing. “While evidence of past conduct
may be probative of current conditions, the question under
section 300 is whether circumstances at the time of the hearing
subject the minor to the defined risk of harm.” (In re Rocco M.
(1991) 1 Cal. App. 4th 814, 824, abrogated in part on another
ground in In re R.T. (2017) 3 Cal. 5th 622, 627-629; In re Yolanda
L. (2017) 7 Cal. App. 5th 987, 993 [“When the jurisdictional
allegations are based solely on risk to the child, that risk must be
shown to exist at the time of the jurisdiction finding”].) “The
juvenile court need not wait until a child is seriously injured to
assume jurisdiction if there is evidence that the child is at risk of
future harm . . . .” (Yolanda L., at p. 993.)
We review a challenge to the sufficiency of the evidence
supporting a jurisdictional finding under the substantial evidence
standard of review defined above. (In re Alexis E., supra, 171
Cal.App.4th at pp. 450-451.)
Father’s own account is the only evidence in the record
regarding his history of mental health issues. As set forth above,
Father informed DCFS he was diagnosed with bipolar disorder at
12 years old. He took psychotropic medication until he was
around 16 or 17 years old and chose to stop. At 23 years old, he
18
chose to stop seeing a mental health provider, after the provider
told him he no longer had bipolar disorder, only depression.
Father was never hospitalized for a mental health issue. Around
the time of the adjudication hearing, he apparently informed
DCFS that he used marijuana twice a day to regulate his mood.
Assuming Father had a mental health issue at the time of
the adjudication hearing, based on his above-referenced
statement regarding the reason for his marijuana use, the “law is
settled that harm may not be presumed from the mere fact of a
parent’s mental illness.” (In re A.L. (2017) 18 Cal. App. 5th 1044,
1050.) DCFS had the burden below of showing how Father’s
mental illness places N.P. and D.P. at substantial risk of serious
physical harm or illness. (In re Matthew S. (1996) 41 Cal. App. 4th
1311, 1318.) DCFS failed to satisfy this burden. There is no
evidence in the record indicating a mental health issue or
Father’s marijuana use interfered with Father’s ability to
function as an adult—e.g., he consistently held jobs for long
periods of time—or negatively affected his past care or
supervision of the children. Mother offered no statements
indicating otherwise.
We reverse jurisdictional finding b-2 because it is not
supported by substantial evidence that Father had a mental
health issue that placed N.P. and D.P. at substantial risk of
serious physical harm or illness. For the same reasons, we also
reverse the portion of the disposition orders requiring Father to
submit to mental health counseling. We affirm the portion of the
disposition orders requiring Father to submit to a psychological
assessment, given his admitted history of mental health issues
and his use of marijuana to regulate his mood. A juvenile court
has “authority to order a nonoffending parent to participate in
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services.” (In re D.L. (2018) 22 Cal. App. 5th 1142, 1148.) “The
problem that the juvenile court seeks to address need not be
described in the sustained section 300 petition. [Citation.] In
fact, there need not be a jurisdictional finding as to the particular
parent upon whom the court imposes a dispositional order.”
(Ibid.) Father does not ask us to reverse any other portion of his
case plan.
III. Placement of N.P. and D.P.
Father contends he was entitled to custody of his children
at disposition under section 361.2, subdivision (a), which
provides, in pertinent part: “When a court orders removal of a
child pursuant to Section 361, the court shall first determine
whether there is a parent of the child, with whom the child was
not residing at the time that the events or conditions arose that
brought the child within the provisions of Section 300, who
desires to assume custody of the child. If that parent requests
custody, the court shall place the child with the parent unless it
finds that placement with that parent would be detrimental to
the safety, protection, or physical or emotional well-being of the
child.”
Section 361.2, “which governs placement after the child has
been made a dependent of the court and removal from the
custodial parent has already occurred, conspicuously does not
require that the court find the noncustodial parent might fail to
protect the child or that there are no reasonable means to protect
the child in the noncustodial parent’s home in order to deny the
noncustodial parent’s request for placement. Instead, section
361.2 simply instructs the court to consider whether placement
with the noncustodial parent would be ‘detrimental to the safety,
protection, or physical or emotional well-being of the child.’ A
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detriment evaluation requires that the court weigh all relevant
factors to determine if the child will suffer net harm.” (In re Luke
M. (2003) 107 Cal. App. 4th 1412, 1425, italics omitted.)
“A court’s ruling under section 361.2, subdivision (a) that a
child should not be placed with a noncustodial, nonoffending
parent requires a finding of detriment by clear and convincing
evidence. [Citation.] We review the record in the light most
favorable to the court’s order to determine whether there is
substantial evidence from which a reasonable trier of fact could
find clear and convincing evidence that . . . the children would
suffer such detriment.” (In re Luke M., supra, 107 Cal.App.4th at
p. 1426.)
Substantial evidence demonstrates that placement with
Father at disposition would have been detrimental to N.P. and
D.P. because Father’s conduct showed he was not prepared to
assume custody. On November 25, 2019, Father informed DCFS
he was not ready for the children to be placed with him due to his
housing situation. At the January 29, 2020
adjudication/disposition hearing, Father stated for the first time
that he was ready for the children to be placed with him, and he
asked the juvenile court to make the order the same day.
Although Father had moved into a new apartment the month
before, he had not asked DCFS to assess the home for placement,
nor had he provided the new address to DCFS. He conceded that
he had ignored some of DCFS’s calls. Father had not provided
DCFS with any information regarding the three other people
with whom he shared his apartment. His testimony
demonstrated that while he was in the process of finding someone
who could watch the children while he worked weekday evenings
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and weekend mornings, he had not finalized such a plan or
discussed it with DCFS.
The juvenile court did not err in declining to place N.P. and
D.P. with Father and instead ordering them suitably placed.
Substantial evidence demonstrates that placement with Father
at disposition would have been detrimental to N.P. and D.P.
given the uncertainty regarding Father’s housing situation and
childcare plan and his inability or unwillingness to keep DCFS
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apprised of his whereabouts and to return DCFS’s calls. As set
forth above, the court granted DCFS discretion to return the
children to Father’s custody should his circumstances change.
IV. Visitation With N.P. and D.P.
Father contends he was entitled to an order granting him
unmonitored visitation with N.P. and G.P. at disposition.
“In all cases in which a minor is adjudged a dependent
child of the court on the ground that the minor is a person
described by Section 300, the court may limit the control to be
exercised over the dependent child by any parent . . . . The
limitations may not exceed those necessary to protect the child.”
(§ 361, subd. (a)(1).) We review a juvenile court’s visitation order
for abuse of discretion. (In re Emmanuel R. (2001) 94
Cal. App. 4th 452, 465.)
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Moreover, it appears that Father’s challenge to the
suitable placement order for N.P. and D.P. is moot. As set forth
above, on September 30, 2020, the juvenile court terminated that
order and placed the three children with Mother, the parent with
whom they resided before these dependency proceedings
commenced. We cannot reverse an order that no longer exists
and that has been replaced by a subsequent placement order.
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The juvenile court did not abuse its discretion in restricting
Father to supervised visitation with N.P. and D.P. As discussed
above, Father failed to provide DCFS with his address for a
month, and he failed to return DCFS’s phone calls. At the time of
the adjudication/disposition hearing, DCFS did not have a
current telephone number for Father, and Father only provided it
when DCFS asked during Father’s testimony if the number
DCFS had on file was current. DCFS could not ensure N.P. and
D.P.’s protection if Father was unreachable during unmonitored
visitation with the children. Monitored visitation was an
appropriate limitation on Father’s contact with N.P. and D.P.
until Father demonstrated he could abide by the rules of DCFS’s
supervision of the children.
DISPOSITION
The jurisdictional finding against Father (count b-2) and
the portion of the disposition orders requiring Father to submit to
mental health counseling are reversed. In all other respects,
including the requirement that Father submit to a psychological
assessment, the disposition orders are affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J. FEDERMAN, 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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