In re Bella A. CA2/5 ( 2020 )

Filed 11/23/20 In re Bella A. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re BELLA A., a Person B305084
Coming Under the Juvenile
Court Law. (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF 19CCJP00054E)
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
KEVIN A.,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kim L. Nguyen, Judge. Affirmed.
Emery El Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy,
Assistant County Counsel, Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
________________________________
Kevin A. (father) challenges the juvenile court’s order
denying his request for custody of his infant daughter, Bella
A. (minor) under Welfare and Institutions Code section
361.2.1 Because there is substantial evidence that
respondent Los Angeles County Department of Children and
Family Services (Department) met its burden to show clear
and convincing evidence that placement with father would
cause minor detriment, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Holly B. (mother)2 gave birth to minor after she had a
brief, casual relationship with father. Mother has four older
children, minor’s half-siblings, who were the subject of a
related dependency proceeding involving sustained
allegations of domestic violence and neglect against mother
and her male companion, U.S., in January 2019.
1 All statutory references are to the Welfare and
Institutions Code, unless stated otherwise.
2 Mother is not a party to this appeal.
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The Department started its current investigation on
November 27, 2019, after mother left the hospital against
medical advice and without completing the discharge
process, shortly after delivering minor by cesarian section.
Mother was reportedly fleeing because U.S. had just learned
she had given birth to father’s child. Father had completed
the birth paperwork identifying himself as minor’s father.
In early December 2019, the Department filed a
dependency petition and obtained a warrant to detain minor.
Mother was arrested a few days later, and the Department
took custody of minor, who was placed in a foster home. At
her arraignment, mother identified father and gave his
address.
A Department social worker first interviewed father on
January 3, 2020. Father requested a paternity test and an
attorney, and stated his intention to exercise his parental
rights. He explained that minor was his first child, and he
planned for his roommate and his mother to help care for
minor while he is working. His home had three bedrooms
and three bathrooms. Father also identified his mother,
minor’s paternal grandmother, as a possible placement
option, but wanted to discuss the matter with her before the
social worker contacted her.
Father visited minor once with mother on December
12, 2019, but did not contact the social worker to arrange
additional visits. The social worker mailed a visitation
schedule to father on January 7, 2020. Father said he did
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not plan to have a romantic relationship with mother, and he
would be okay with mother only having visits with minor.
Father’s criminal history included a number of arrests
for minor crimes like theft and vandalism between 2009 and
2013. Father also had a 2016 misdemeanor conviction for
driving under the influence. He was sentenced to 3 years
probation and completed 25 hours of community service, an
alcohol program, and a “Hospital and Morgue Program.”
Father did not finish high school; he has full time work as a
mover, working for the same company since 2001, and he
sometimes leaves town for work.
The social worker interviewed father’s friend who has
known him for 12 years and had no concerns. The friend
confirmed that mother and father were not together, that
father drinks on his day off but is not a big drinker, and he
does not use drugs.
On January 9, 2020, the court found father to be
minor’s presumed father and appointed counsel for him.
Father sought an order releasing minor to his custody, or
alternatively for the court to order a pre-release
investigation. The court ordered the Department to do a
walk-through of father’s home and to report on the frequency
and quality of father’s visits, explaining that it took father’s
request for custody seriously but needed more information,
emphasizing minor’s young age. The court further provided
for father to have monitored visitation and gave the
Department discretion to liberalize that visitation. The
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court ordered the Department to provide father a written
visitation schedule.
On January 17, 2020, the Department social worker
visited father’s home. It was clean and had all the necessary
furniture, including a crib in father’s room. The door to one
of father’s roommates’ room was locked, preventing the
social worker from inspecting that room. Father had not
provided the social worker with his roommate’s information,
so the social worker had not been able to complete a criminal
background check. The social worker also noted a strong
odor of marijuana in the home, and father stated he smokes
marijuana since it is legal in California. Father did not have
a childcare plan in place, but he was assuming his mother
would help babysit. Paternal grandmother had completed a
live scan, but only to act as a monitor for father’s visits. The
social worker reported difficulty scheduling father’s visits
“due to his work schedule and his lack of flexibility.” Father
missed a two-hour monitored visit on January 19, 2020,
because he arrived 50 minutes late, and the social worker
had left after 45 minutes.
On January 23, 2020, the juvenile court sustained an
amended petition, based on mother’s no contest plea. The
court granted an attorney order and continuance based on
father’s request for an opportunity to further develop
information about his roommate and his proposed plan of
care with paternal grandmother. Also based on father’s
request, the court ordered weekly drug testing, with the
expectation that father test negative for all substances, but if
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father tested positive for marijuana, that any marijuana
levels decrease.
The Department’s February 18, 2020 last minute
report stated that father had yet to provide his roommate’s
identifying information, despite numerous requests. Father
was also a “no show” for drug testing on three different
dates: January 23, January 28, and February 4. Father had
not tested because of his work schedule, and because he did
not know in advance what part of the city he would be
working in. The social worker provided father with the drug
testing hotline number numerous times and offered to
change father’s testing location to one closer to his work site,
but father did not communicate his location to the social
worker.
The social worker did a walk-through of paternal
grandmother’s home and found it to be clean with no safety
issues. Paternal grandmother was excited and looking
forward to spending time with minor; she was also
interested in caring for minor if the child was not placed
with father. Paternal grandmother’s resource family
approval (RFA) application was submitted on February 5,
2020. (See § 16519.5.)
At the disposition hearing on February 19, 2020, the
court denied the Department’s request for a continuance,
admitted the Department’s reports into evidence, and heard
argument on reunification services and placement. The
Department recommended reunification services for father,
and for minor to remain suitably placed. Minor’s counsel
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joined the Department’s request for suitable placement,
asking that the Department continue to assist paternal
grandmother in the RFA process. Minor’s counsel asked the
court to order drug testing for father, and to give the
Department discretion to liberalize visits to unmonitored
after father had drug tested. Father asked for minor to be
released to his care and custody, arguing the Department
did not have clear and convincing evidence that doing so
would pose a substantial risk of harm. Father was non-
offending, and although the Department had reported a
marijuana odor in father’s home, he denied marijuana use.
Father’s attorney had previously requested drug testing to
alleviate any concerns about drug use, but now
acknowledged that because of uncertainty about where
father would be working on any specific day, he had been
unable to test. Nevertheless, other than the marijuana odor,
there was no evidence to support any suspicion that father
used drugs. Father had the items necessary to care for
minor, including a crib and diapers, and so there was not
clear and convincing evidence to deny father custody of his
child. Alternatively, father asked the court to place minor
with paternal grandmother, as father’s plan of care. If the
court was not inclined to do that, father asked for drug
testing, objected to individual counseling, and submitted on
the parenting class recommendation. Mother’s counsel
joined in father’s request and argument. The Department
repeated its request for a suitable placement order, noting
that there was evidence of a strong marijuana smell in
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father’s home, and father had not participated in drug
testing, missing three tests. The Department also pointed to
father’s 2016 DUI conviction, and the Department’s inability
to fully assess father’s home because the roommate’s
bedroom was locked and the roommate had not cooperated
with being assessed.
The court found that there was clear and convincing
evidence of substantial risk of detriment. Stating its
reasoning for denying father’s request for custody under
section 361.2, the court noted that minor was three months
old, and recounted some relevant facts. The social worker
had noted a strong marijuana odor during her visit to
father’s home, and father acknowledged smoking marijuana
because it was legal. After the court continued disposition
and ordered drug testing to determine the level of father’s
marijuana use, father had missed three tests. The court
emphasized, “This is a child of very tender years. I think
[father] had every opportunity by this court to demonstrate
that he could safely care for this child, and I don’t think he
has.” The court added that the Department had not been
able to obtain any information about father’s roommate,
despite multiple efforts, leaving open the possibility that the
roommate’s locked bedroom contained “all sorts of hazards.”
Addressing father’s request to implement a “plan of care”
where father would have custody of minor, who would live
with minor’s paternal grandmother, the court stated it would
not be safe to give father unfettered access to minor for the
reasons already stated. Finally, the court declined to make a
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relative placement with paternal grandmother, because she
had a “hit,” meaning a prior conviction, from 2004, and was
currently going through the RFA process to get a waiver.
Father filed a notice of appeal on February 25, 2020.
DISCUSSION
Relevant law and standard of review
When the juvenile court removes a child from the
custody of one parent, section 361.2 requires the court to
place the child with the other, noncustodial parent if (1) that
parent so requests, and (2) “placement with th[e
noncustodial] parent” would not be “detrimental to the
safety, protection, or physical or emotional well-being of the
child.” (§ 361.2, subd. (a).) If the Department opposes the
non-custodial parent’s request for placement, it bears the
burden of proving detriment by clear and convincing
evidence. (In re C.M. (2014) 232 Cal. App. 4th 1394, 1401–
1402; In re Luke M. (2003) 107 Cal. App. 4th 1412, 1426 (Luke
M.).) 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.) 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.) However, our
Supreme Court recently clarified that when the burden of
proof at the trial court level is clear and convincing, the
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substantial evidence standard of review should account for
the higher level of certainty demanded by that burden of
proof, as compared to facts proven by preponderance of the
evidence. (Conservatorship of O.B. (2020) 9 Cal. 5th 989,
998–1006.)
In assessing whether placing a child with her
noncustodial parent would be “detrimental to [her] safety,
protection, or physical or emotional well-being,” the juvenile
court must “examin[e] . . . the circumstances of the parent
and child” (In re Nickolas T. (2013) 217 Cal. App. 4th 1492,
1503, 1506), although “the focus in dependency law [is] on
the child, not the parent.” (Luke M., supra, 107 Cal.App.4th
at p. 1425; see generally § 300.2 [“The focus [of dependency
law] shall be on the preservation of the family as well as the
safety, protection, and physical and emotional well-being of
the child”].) The court is to “weigh all relevant factors to
determine if the child will suffer net harm.” (Luke M., at
p. 1425.) Because “[a] detriment evaluation requires that
the court weigh all relevant factors to determine if the child
will suffer net harm,” no one factor can be dispositive. (Ibid.;
see also In re Patrick S. (2013) 218 Cal. App. 4th 1254, 1265.)
Among the factors the juvenile court may consider are
the non-custodial parent’s past, current, and future
circumstances, including any jurisdictional findings against
that parent, any criminal history, and any history of
substance abuse or mental illness. (In re Patrick S., supra,
218 Cal.App.4th at p. 1263; In re Nickolas T., supra, 217
Cal.App.4th at p. 1505; In re A.A. (2012) 203 Cal. App. 4th
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597, 607; In re V.F. (2007) 157 Cal. App. 4th 962, 970.) The
juvenile court may also consider several other factors
including: the age of the child and any special needs that
child may have; the impact of placement on the custodial
parent’s ability to reunify and on any sibling relationships;
the nature of the relationship between the parent and the
child; the parent’s ability to meet the child’s needs; and the
child’s wishes. (In re Patrick S., supra, 218 Cal.App.4th at
p. 1265; In re John M. (2006) 141 Cal. App. 4th 1564, 1570–
1571; In re Isayah C. (2004) 118 Cal. App. 4th 684, 700; Luke
M., supra, 107 Cal.App.4th at pp. 1425–1427.)
Analysis
Substantial evidence supports the juvenile court’s
finding, by clear and convincing evidence, that placement
with father would be detrimental to minor.
Father challenges the juvenile court’s determination
that minor’s placement with father would be detrimental,
arguing that the court improperly ignored evidence that
father was willing and able to care for minor. However, the
facts father highlights are not relevant to the question on
review. The juvenile court found the Department had met
its burden of showing by clear and convincing evidence that
placement with father would be detrimental to minor. On
review, we simply consider whether the record contains
“substantial evidence from which a reasonable trier of fact
could have made the finding of high probability demanded
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by this standard of proof.” (Conservatorship of O.B., supra, 9
Cal.5th at p. 1005.)
Here, the record contains evidence to support the
juvenile court’s detriment finding. Despite a 2016
misdemeanor conviction for driving under the influence,
father still drank occasionally and admitted he used
marijuana because it was legal. As recognized in prior cases,
an infant’s physical health is placed in danger when he or
she is exposed to secondhand marijuana smoke. (In re Alexis
E. (2009) 171 Cal. App. 4th 438, 452.) Even though the social
worker offered to identify drug testing locations closer to
father’s work, father missed three drug tests between mid-
January and early February 2020. Each missed test is
“properly considered the equivalent of a positive test result.”
(In re Christopher R. (2014) 225 Cal. App. 4th 1210, 1217.)
During the three months minor was suitably placed,
father only visited once, on December 12, 2019. While his
inability to visit may be attributable to his busy work
schedule, the logical consequence of his failure to make time
to visit was that he had not established any meaningful bond
with his infant daughter. Taken together with father’s
missed drug tests, and his poor record of ensuring ongoing
communication with the social worker, it would also be
reasonable for the juvenile court to infer from this record
that father would have trouble scheduling and taking minor
to regular doctor’s visits for milestone checkups and
necessary immunizations. Finally, father was either
unwilling or unable to provide his roommate’s identifying
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information to the social worker, even though he
acknowledged that he would rely on his roommate to provide
childcare.
Father also argues that the court should have ordered
paternal custody, with minor being placed with paternal
grandmother. Father’s argument is inapposite. To the
extent father might have been requesting that paternal
grandmother be considered for relative placement under
section 361.3, that question was not considered by the
juvenile court, nor is it before us on appeal.
DISPOSITION
The juvenile court’s finding of detriment and its order
denying father’s request for placement under section 361.2
are affirmed.
MOOR, J.
We concur:
RUBIN, P. J. KIM, J.
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