In re E.E. CA5

Filed 6/7/22 In re E.E. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re E.E., a Person Coming Under the Juvenile
Court Law.
FRESNO COUNTY DEPARTMENT OF F083503
SOCIAL SERVICES,
(Super. Ct. No. 17CEJ300349-3)
Plaintiff and Respondent,
v. OPINION
ISAAC Y.,
Defendant and Appellant.
THE COURT*
APPEAL from orders of the Superior Court of Fresno County. Gary L. Green,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and
Appellant.
Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County
Counsel, for Plaintiff and Respondent.
* Before Peña, Acting P. J., Smith, J. and DeSantos, J.
-ooOoo-
Isaac Y. (father) and Esmeralda E. (mother) are the parents of E.E. (born
December 2015). Father appeals the juvenile court’s dispositional order denying his
request for placement of E.E. pursuant to Welfare and Institutions Code section 361.2,
subdivision (a),1 after the court removed her from mother’s custody. He contends there
was insufficient evidence to support the court’s detriment finding, and that the court
abused its discretion in ordering him to participate in a domestic violence assessment
with recommended treatment, a mental health assessment with recommended treatment,
and parenting classes as part of his reunification plan.
We conclude that substantial evidence did not support the court’s detriment
finding under section 361.2, subdivision (a), and that the court abused its discretion in
ordering father to participate in a domestic violence assessment. Therefore, we reverse
the court’s order under section 361.2, subdivision (a) and the order requiring father to
participate in a domestic violence assessment, but affirm in all other respects.
FACTUAL AND PROCEDURAL HISTORY
Petition and Detention
On July 7, 2021, the Fresno County Department of Social Services (department)
filed a petition on behalf of E.E. and her two half siblings pursuant to section 300,
subdivisions (b)(1) and (j), alleging mother had a substance abuse problem that
negatively affected her ability to care for, supervise, and protect the children.2 E.E. and
her two half siblings were detained and placed in a licensed foster care. The petition
identified Isaac Y. as E.E.’s presumed father.
The detention report stated father’s whereabouts were unknown and that the
department submitted a “Parent Search” form and “Family Finding” request on his
1 All further statutory references are to the Welfare and Institutions Code.
2 E.E.’s two half siblings have a different father and are not part of this appeal.
2.
behalf. The department recommended detaining E.E. from mother and presenting the
case to the family reunification panel to determine if services could be provided to her as
she had an extensive history with the department.
On July 8, 2021, at the detention hearing, the juvenile court ordered E.E. removed
from mother’s custody and ordered reasonable supervised visitation and reunification
services for mother.
Jurisdiction and Disposition
Report
The jurisdiction and disposition report detailed mother’s child welfare history.
Only one incident mentioned father. The report stated that in February 2016 the
department received an allegation of emotional abuse for E.E. and three of her half
siblings by mother.3 The reporting party stated mother “was 5150’d” and had threatened
to hurt herself and father (who was her boyfriend at the time) with a knife. Allegedly,
E.E. and her half siblings were present during the altercation. Further investigation
revealed the altercation was between mother and her sister, not father. Mother did not
have a knife and did not threaten harm, but she was very upset and was crying. She could
not catch her breath and an ambulance was called. E.E.’s half siblings reported they were
not present for the altercation and that they felt safe at home. The referral was
unfounded. Additionally, in October 2017, E.E. was removed from mother’s custody due
to her domestic violence and substance abuse problems. Dependency was terminated in
July 2019.
As far as father’s criminal history, his California Law Enforcement
Telecommunications (CLETS) report came back as “No Record in the State of
California.” A second CLETS was submitted, but again no record was found.
3 Mother had a total of six children. E.E. is the fourth child.
3.
The report contained an analysis of the department’s consideration of placing E.E.
with father. According to the report, father resided in Oregon with his wife, their
three-year-old son in common, his teenage stepdaughter, and his adult stepdaughter. He
reported he was in a relationship with mother for approximately one year and left their
home when E.E. was approximately five months old due to mother “drinking a lot and
being involved in a lot of problems.” He had not visited E.E. since she was five months
old because mother did not allow him to have contact even though he attempted to make
contact multiple times. He also said he sent money for E.E.’s care for two years, but did
not have proof. Currently, he was employed and had adequate housing. His family knew
about E.E. and saw her as his child. He wanted the opportunity to meet her and wanted
his family to have a relationship with her. He and his wife wanted to raise her. He
denied any drug or alcohol use. A social worker contacted the father’s local sheriff’s
department to conduct a criminal check for father, his wife, and his adult stepdaughter.
The sheriff’s department did not find anything of concern relating to child safety. The
department concluded father did not have a criminal history. Father did not feel he
needed reunification services, but was willing to do what was asked of him.
E.E. reported she wanted to visit father and get to know him. She said she wanted
“to go with him if given an opportunity.” Although she stated she had not met him, she
knew who he was because mother had shown her pictures of him. E.E. even knew he had
a new spouse.
The department concluded there would be a substantial risk to E.E.’s physical
health, safety, and protection if placed with father at that time, and there was no
reasonable means to protect her physical health and well-being. The department
recommended father be provided reunification services, including a mental health
assessment with recommended treatment and parenting classes.
The report attached the initial case plan, which stated father had failed to provide
E.E. with adequate care, supervision, and protection because he left her in mother’s care,
4.
knowing she had substance abuse issues. As a result, the department wanted father to
work with them so that he could demonstrate his ability to care for her. Father’s plan
included participating in a mental health assessment and a parenting program.
Hearings
On August 10, 2021, at the jurisdiction and disposition hearing, father made his
first appearance. The juvenile court confirmed there were no allegations against him.
Father requested he be assessed for placement. He acknowledged he had not seen E.E. in
a “very long time,” and wanted to get visits established as soon as possible to reestablish
their relationship. The juvenile court informed him there was a recommendation for him
to participle in reunification services. Father’s counsel stated “[father] would be in favor
of that.” The hearing was continued.
On October 28, 2021, at the continued jurisdiction and disposition hearing, the
juvenile court found true the allegations set forth in the petition. The disposition hearing
was continued.
On November 2, 2021, at the continued disposition hearing, the department
recommended father receive reunification services. Father’s counsel argued father
should have placement of E.E. pursuant to section 361.2, subdivision (a). The
department disagreed, stating there was a lack of relationship between father and E.E.
The department argued it would be detrimental to E.E. to move her to another state with
father who left her with mother, knowing she had substance abuse issues. In ruling, the
juvenile court stated as follows:
“With regards to the placement with [father], [father’s counsel] touched on
some of the factors, but my reading of the case is there are many factors.
And one of them, which … is a very important factor, is whether a
noncustodial parent has maintained a relationship with the child and the
nature of that relationship. And I think we all have to agree that [father]
has not maintained a relationship with his child. He left the home and has
not had contact with the child.
“Another issue is whether the noncustodial parent has remedied conditions
which led to the prior dependency. It appears that the prior dependency
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was based on—in part on mother’s alcohol abuse. And [father’s] child
remained with mother. He didn’t, as far as I can tell, seek any attempts to
place the child in his own custody. He seemed content to leave the child in
that situation knowing what the situation was with the mother.
“There is an issue whether he can maintain the safety for this child as well
as the child’s physical, emotional, social, and educational needs. All
factors for the Court to review.
“Another concern is whether the father, … has the ability to obtain and
follow through for services for himself and the child. We don’t know that
apparently at this point. That needs to be explored, whether the minor
desires to live with him. It appears from the report that the minor is at least
curious about him, maybe open to living with him. I don’t know that we
have a certainty as to that. I think [child’s counsel’s] point about suitable
housing and whatnot can’t be ignored.
“When you look at everything, I don’t believe that [father] would be a good
fit at this point. He might be with completing, you know, services or
working on services. But at this point in time, I don’t feel that I can simply
place a child who has had no relationship with him and place, you know,
and place— [¶] … [¶]
“With that said, the Court is not going to be making placement with the
father, ….”
The juvenile court found by clear and convincing evidence that placement with
father would be detrimental. E.E. was found to be a person described by section 300,
subdivisions (b)(1) and (j), and made a dependent pursuant to section 360,
subdivision (d). The court ordered reasonable supervised visitation and reunification
services for father, including a domestic violence assessment with recommended
treatment, a mental health assessment with recommended treatment, and parenting
classes. Father’s counsel objected to the domestic violence assessment, arguing there
was no evidence supporting such an order. The court then set a six-month review
hearing.
On November 5, 2021, father filed a notice of appeal.
6.
DISCUSSION
I. Substantial Evidence Does Not Support the Juvenile Court’s Order Denying
Father’s Request for Placement Under Section 361.2, Subdivision (a)
Father contends there was insufficient evidence showing that placing E.E. in his
care would be detrimental to her. We agree.
A. Applicable Law
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.” (§ 361.2, subd. (a).) “Section 361.2, subdivision (a)
evinces [a] legislative preference for placement with the noncustodial parent when safe
for the child.” (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1262 (Patrick S.).)
“A 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.) Factors to consider include the parent’s criminal history, substance abuse,
or mental illness, any referrals to child welfare services, the age of the child, the child’s
wishes for placement, any special needs the child may have, and the ability of the parent
to meet the child’s needs. (Patrick S., supra, 218 Cal.App.4th at pp. 1263–1265.) The
juvenile court may also consider the nature of the relationship between the parent and
child. (In re C.M. (2014) 232 Cal.App.4th 1394, 1403.)
“The juvenile court must make the detriment finding by clear and convincing
evidence. [Citations.] 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
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fact could find clear and convincing evidence that placement would be detrimental to the
child. Clear and convincing evidence requires a high probability, such that the evidence
is so clear as to leave no substantial doubt.” (Patrick S., supra, 218 Cal.App.4th at
p. 1262.) On review, “ ‘[w]e do not evaluate the credibility of witnesses, reweigh the
evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in
support of the findings, consider the record most favorably to the juvenile court’s order,
and affirm the order if supported by substantial evidence even if other evidence supports
a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or
order is not supported by substantial evidence.’ ” (In re Liam L. (2015) 240 Cal.App.4th
1068, 1087.)
B. Analysis
In finding that placing E.E. with father would be detrimental to her safety,
protection, or physical or emotional well-being, the juvenile court considered father’s
lack of relationship with her, the child’s wishes, and father’s inability to remedy the
conditions leading to the prior dependency.
“An ‘alleged lack of relationship between father and [a child] is not, by itself,
sufficient to support a finding of detriment for purposes of section 361.2, subdivision (a).
[Citation.]’ ” (In re Adam H. (2019) 43 Cal.App.5th 27, 33; In re John M. (2006) 141
Cal.App.4th 1564, 1571 [father’s absence for four years did not support a detriment
finding].) At the time of the disposition hearing, E.E. was almost six years old and father
had not had contact with her since she was five months old. However, father reported he
sent money for E.E.’s care for two years and attempted to make contact multiple times,
but mother would not allow it. Nonetheless, E.E. knew who father was because mother
had shown her pictures of him, and she stated she wanted to get to know him.
Although the juvenile court acknowledged E.E. was “maybe” open to living with
father, it stated that it did not “have a certainty as to that.” The record reflects E.E. told
the social worker she wanted “to go with [father] if given an opportunity.” (See In re
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Luke M., supra, 107 Cal.App.4th at p. 1426 [a child’s preference for placement may be
considered.]) However, even where a child prefers not to be placed with a noncustodial
parent, that preference is outweighed by “the long-term benefits [minor] would gain from
becoming an integrated member of a family.” (Patrick S., supra, 218 Cal.App.4th at
p. 1265.) And here, father expressed a strong desire to integrate E.E. into his family. Not
only did E.E. express a desire to live with father, but there was no indication placement
would be detrimental to her emotional well-being. (In re A.C. (2020) 54 Cal.App.5th 38,
43–44, 46 [“[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” as
evidenced by the child’s anxiety, inability to sleep over the prospect of moving, and the
child’s therapist’s recommendation against moving].) Although the court noted there was
uncertainty about the suitability of father’s home for placement, a juvenile court that
places a child with a noncustodial parent has the authority to order that a home visit occur
within three months. (§ 361.2, subd. (b)(2).) The court could have done so here.
Additionally, the juvenile court improperly considered whether father had
remedied the conditions leading to the prior dependency, noting that prior dependency
was partly based upon mother’s substance abuse and that father had not taken steps to
resolve those issues. While the court may consider prior referrals to child welfare
services and “may assign … weight to a prior removal order or detriment finding against
a noncustodial parent” (In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1506; see also
Patrick S., supra, 218 Cal.App.4th at p. 1263), father was never a part of any prior
dependency proceeding and there was no evidence showing he knew of E.E.’s prior
removal.
Father’s disappearance from E.E.’s life showed he was not an ideal parent,
especially since he left her in mother’s care when he knew about her substance abuse
problems, but that is not enough to support a detriment finding. (See David B. v.
Superior Court (2004) 123 Cal.App.4th 768, 789–790 [the juvenile court should focus on
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“the essential question of whether [the child’s] safety, protection, [or] physical or
emotional well-being would be placed at substantial risk in [her father’s] care” because
“[i]deal parents are a rare—if not imaginary—breed”].) Father wanted to reunify with
E.E. and was willing to do what the department asked of him. He had a stable job and
housing, with no criminal history. He had a son close in age to E.E. and no one else in
his home had a criminal history relating to child safety. E.E. wanted to go with father
and expressed no anxiety about doing so. Overall, there was no indication her safety,
protection, or physical or emotional well-being would be placed at substantial risk. Thus,
we conclude substantial evidence does not support the juvenile court’s detriment finding.
II. The Juvenile Court Abused Its Discretion When It Ordered Father to
Participate In a Domestic Violence Assessment
Father further contends the juvenile court abused its discretion by ordering him to
participate in a domestic violence assessment with recommended treatment, a mental
health assessment with recommended treatment, and parenting classes as part of his
reunification plan. We agree the court abused its discretion in ordering father to
participate in a domestic violence assessment; however, he forfeited his right to challenge
the remaining orders.
A. Applicable Law
Section 362, subdivision (a) provides that “[i]f a child is adjudged a dependent
child of the court on the ground that the child is a person described by Section 300, the
court may make any and all reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the child.” Such orders may be directed to the parents or
guardians of the dependent child and “may include a direction to participate in a
counseling or education program.” (§ 362, subd. (d).) “The program in which a parent or
guardian is required to participate shall be designed to eliminate those conditions that led
to the court’s finding that the child is a person described by Section 300.” (Ibid.)
However, “[t]he problem that the juvenile court seeks to address need not be described in
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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.”
(In re Briana V. (2015) 236 Cal.App.4th 297, 311.) Nonetheless, the orders must be
reasonable. (See § 362, subd. (d).)
“We review the juvenile court’s disposition case plan for an abuse of discretion.”
(In re I.R. (2021) 61 Cal.App.5th 510, 522.) “The juvenile court has broad discretion to
determine what would best serve and protect the child’s interests and to fashion a
dispositional order accordingly. On appeal, this determination cannot be reversed absent
a clear abuse of discretion.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.)
B. Analysis
At the disposition hearing, father’s counsel objected to the domestic violence
assessment stating, “Regarding [father], I want to object to … domestic violence as part
of his services. I don’t think there is anything in there to support that order.” Indeed,
nothing in the record indicated or even suggested father had a history of domestic
violence. (See In re Drake M. (2012) 211 Cal.App.4th 754, 770–771 [reversing order
requiring the father to participate in drug counseling because nothing in record indicated
father had a substance abuse problem]; In re Basilio T. (1992) 4 Cal.App.4th 155, 172–
173 [reunification plan improperly required parents to undergo drug testing and substance
abuse therapy in absence of evidence that parents had substance abuse problem].) There
was only one incident in the child welfare history that mentioned father. During that
incident, mother allegedly threatened to hurt him with a knife. However, further
investigation revealed the altercation was actually between mother and her sister.
Additionally, we note that although the department recommended father participate in a
mental health assessment and parenting classes, it never recommended he participate in a
domestic violence assessment.4
4 Respondent’s brief argues the juvenile court ordered father to participate in
services “after reviewing the social worker’s reports and hearing testimony from father
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As far as the mental health assessment and parenting classes, father forfeited his
right to appeal. “[A] reviewing court ordinarily will not consider a challenge to a ruling
if an objection could have been but was not made in the trial court. [Citation.] The
purpose of this rule is to encourage parties to bring errors to the attention of the trial
court, so that they may be corrected. [Citation.] [¶] Dependency matters are not exempt
from this rule.” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) When father
objected to the domestic violence assessment, he could have lodged objections as to the
mental health assessment and parenting classes as well, but he failed to do so. An
objection as to all three services would have preserved the point for appeal and would
have put on record the precise reasons for the orders directing father to participate in such
services.
DISPOSITION
The juvenile court’s finding that it would be detrimental to place E.E. with father
under section 361.2, subdivision (a), is reversed. The court’s disposition order requiring
father to participate in a domestic violence assessment is reversed, but the dispositional
orders are affirmed in all other respects.
and social worker,” and that father had a history of “possession charges and court-ordered
substance abuse treatment programs.” This information is incorrect as the court did not
hear testimony from the social worker and father did not have a criminal history, nor was
he ever ordered to participate in substance abuse programs. Respondent cites to pages in
the record that do not exist and arguments in the opening brief that were not made.
12.