In re K.S. CA2/1

Filed 8/21/20 In re K.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
In re K.S., a Person Coming B302069
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP06266)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
K.S.,
Defendant and Appellant.
APPEAL from the jurisdictional and dispositional orders
of the Superior Court of Los Angeles County, Rashida A. Adams,
Judge. Affirmed.
Paul A. Swiller, under appointment by the Court of Appeal,
for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, and Aileen Wong, Deputy County
Counsel, for Plaintiff and Respondent.
____________________
In this dependency case, it is undisputed that the juvenile
court properly asserted jurisdiction over 6-year-old K.S., who
lived with his maternal grandparents. Maternal grandfather
sold methamphetamine; maternal grandmother used
methamphetamine; and mother abused methamphetamine and
did not have time to care for K.S. because she was either
incarcerated or focusing on her own self-improvement.
Father argues that even though jurisdiction was proper,
the juvenile court erred in sustaining allegations that he failed to
protect K.S. from mother and maternal grandparents. Father’s
argument is unpersuasive because it is inconsistent with the
juvenile court’s credibility determinations. Father relies on his
statements that he was unaware of mother’s substance abuse and
unaware that maternal grandparents sold and used controlled
substances. The juvenile court, however, expressly found father’s
statements lacked credibility.
Father also challenges the juvenile court’s dispositional
order insofar as the court found that it would be detrimental to
place K.S. in father’s custody. Father again relies exclusively on
evidence discredited by the juvenile court. Because father fails to
demonstrate error, we affirm the juvenile court’s jurisdictional
and dispositional orders.
2
BACKGROUND
Three days before the Los Angeles County Department of
Children and Family Services (DCFS) filed the Welfare and
Institutions Code1 section 300 petition, mother, who was 24 years
old, was released from incarceration. Three months earlier,
maternal grandmother was released from incarceration.
Maternal grandmother reported that mother violated her
probation within the three-day release period.
1. Petition
In September 2019, DCFS filed a section 300 petition. At
the time, father lived in Nevada. DCFS alleged that mother has
a history of substance abuse and currently abused marijuana and
methamphetamine. DCFS alleged that father “failed to take
action to protect the child when the father knew, or reasonably
should have known of the mother’s substance abuse and allowed
the mother to have unlimited access to the child.” DCFS further
alleged that mother and father created a dangerous home
environment for K.S. by allowing him to reside in the home of
maternal grandparents. DCFS also alleged that mother has a
history of mental and emotional problems rendering her
incapable of caring for K.S. The juvenile court sustained the
foregoing allegations.
DCFS alleged that father failed to protect K.S. from
mother’s emotional problems. The juvenile court did not sustain
this allegation.
1 Undesignated statutory citations are to the Welfare and
Institutions Code.
3
2. Maternal grandparents
Because mother frequently was incarcerated, K.S. lived
with his maternal grandparents. Suspecting that maternal
grandfather was selling drugs, the Los Angeles County Sheriff’s
Department executed a search warrant on February 2019 at the
maternal grandparents’ residence, where officers found one
pound of methamphetamine, one gram of marijuana, and two .38
caliber rounds. K.S. could access the controlled substances and
the ammunition. The officers arrested maternal grandfather on
drug charges.
At that time, K.S. had been living at maternal
grandparents’ residence. Maternal grandfather reported he was
K.S.’s primary caretaker.2 Maternal grandfather admitted to
selling and using methamphetamine. When a social worker
entered the grandparents’ home, K.S. was draped in a dirty
blanket.
3. Mother
At the beginning of the dependency proceedings, mother
reported she was enrolled in a substance abuse treatment
program directed at treating marijuana and methamphetamine
abuse. Mother denied knowing that maternal grandfather sold
methamphetamine. Mother admitted she started using
methamphetamine when she was 18 years old. Mother further
reported she had been incarcerated for possession of a firearm.
Mother also stated she has “PTSD, trauma, anxiety and
depression.” Mother stopped taking her medication for these
2 When the officers asked K.S. where his father was, K.S.
answered, “My daddy is my grandpa.”
4
mental disorders two weeks prior to the filing of the dependency
petition. In September 2019, mother tested positive for
marijuana.
Mother left K.S. in maternal grandfather’s care so that
mother could “get [herself] situated first,” describing that as her
“main focus.” (Boldface omitted.) Mother reported that father
did not parent K.S. According to mother, father “was never
around, he never made an effort to see him.”
4. Father
Father admitted that he had been arrested for stealing a
car.
On September 24, 2019, father contacted a social worker,
stating he heard that DCFS detained K.S. Father reported that
he had just returned to Nevada after spending two weeks in Los
Angeles. Father stated he visited K.S. while he was in Los
Angeles but did not see mother because her “whereabouts were
unknown.” Father claimed that he did not observe controlled
substances or weapons in the home. On September 26, 2019,
father did not show up for a drug test.
Father stated he did not know what mother “does with her
life. From what I heard she just got out of jail and is in a
program now.” Father told the social worker he recently had
learned that mother was incarcerated for a three-year period.
When asked why he did not care for K.S., father answered that
he cared for K.S. for a nine-month period when mother previously
had been incarcerated. Father explained that he “ha[d] concerns”
about K.S. in mother’s care and that mother was “never around.”
Father believed mother was not around because she was a gang
member and “[s]he is in the streets.”
5
The next time father spoke to a social worker, he
contradicted several of his earlier statements. According to
father, mother “never used any drugs” in the three to four years
they lived together. Father reported mother had no history of
drug use. Father knew mother “smoke[d] weed” but “never
suspected any abuse.” Father stated, “I have been picking up my
son twice or three times a month for the past 2-3 years and never
suspected anything. Most of the time I went to pick him up she
wasn’t there and her dad would tell me she was out or that she
was working. I didn’t know she was in and out of jail.” Father
denied knowing mother was incarcerated and denied knowing
paternal grandfather sold controlled substances. “If I knew
[mother] was in and out of jail, trust me I would have had my son
under my care. I am able and willing to take care of my son.”
Father did not know if K.S. went to the doctor or if K.S. had
any medical concerns. K.S. told a social worker that he wanted to
live with father.
Father has two other children, who according to him “were
taken away because their mom tested positive for meth when my
baby was born. The baby was born positive at birth too. I had a
case because they said, how I knew and didn’t step in so I had to
do parenting classes.” Father reported that when the Nevada
case closed, he had custody of his two children.
The following allegation was sustained against father in a
Nevada court: Father neglected his two children “by failing to
provide proper care, control, supervision, subsistence, education,
shelter, medical care or other [care] necessary for their well-
being, resulting in circumstances that indicated that their health
and/or welfare was harmed or threatened with harm.”
6
5. Following a hearing, the juvenile court assumed
jurisdiction over K.S.
No witness testified at the jurisdictional hearing.
As noted, the juvenile court sustained the allegations in the
petition except it found no evidence father had knowledge of
mother’s emotional problems. On the other hand, the court found
“the father’s statements of complete lack of knowledge of the
mother’s substance abuse and what was going on in the child’s
home to be not credible. The father’s statements are
inconsistent. He indicated at one point that he has known the
family for many years yet did not suspect anything at all. [¶]
However, the evidence before the court indicates the maternal
grandfather appears to have been an established drug dealer, the
maternal grandmother an established methamphetamine user,
that the mother has been using methamphetamine since age 18.
And the parents had a relationship in which they were living
together for a period of two to three years. [¶] The court finds it
not credible that the father had no idea at all of any of the drug
use and abuse that has been really permeating this child’s life
and caregivers.”
The juvenile court also found that father first reported
knowing that mother was incarcerated and later reported
complete ignorance. The court concluded that father knew of
mother’s incarceration and “[d]espite that knowledge, the
evidence before the court indicates that the father did nothing to
investigate the maternal grandparents . . . .” “The father knew
that the mother was not able to care for the child given her
frequent absence. And, in fact, the father indicated . . . that the
mother was in the streets and in a gang, yet he continued to
7
allow the child to be under the mother’s custody and in an
unsuitable environment with the maternal grandparents.”
The juvenile court also referenced father’s lack of
knowledge of the circumstances of his other children. “So, again,
the court finds it completely not credible that the father had no
idea what was going on. The court finds that the father’s
statements evidence a pattern of failure to protect in the face of
drug abuse and drug sales out of the home of the child.”
6. Following a dispositional hearing, the juvenile court
denied father’s request for custody of K.S.
No witness testified at the dispositional hearing. During
argument, father’s counsel requested that the court give custody
of K.S. to father.3 Counsel argued that father had custody of his
other two children in Nevada.
The court found clear and convincing evidence that it would
be detrimental to place K.S. with father. The court further found
that father failed to protect K.S. “Despite the father completing
the services, and satisfying the Nevada child welfare department
regarding his other children, it appears that the father was
unable to use the same skills learned in the protection of this
child in that 6 or 7 months later the case is before this court as to
this child under very similar circumstances.”
The court ordered father to be drug tested if DCFS
suspected him of drug use. The court ordered father to attend
individual counseling to address the case issues and ordered him
to attend a parenting class. The court permitted father
unmonitored visits.
3 K.S.’s counsel did not object to placement of K.S. outside
of father’s custody.
8
Father timely appealed from the juvenile court’s
jurisdictional and dispositional orders. As noted, father
challenges jurisdiction only insofar as it concerns him.
Additionally, father challenges the dispositional order only
insofar as it deprives him of custody of K.S. Mother did not
appeal.
DISCUSSION
“ ‘[W]e review both the jurisdictional and dispositional
orders for substantial evidence. [Citation.] In doing so, we view
the record in the light most favorable to the juvenile court’s
determinations, drawing all reasonable inferences from the
evidence to support the juvenile court’s findings and orders.
Issues of fact and credibility are the province of the juvenile court
and we neither reweigh the evidence nor exercise our
independent judgment. [Citation.] But substantial evidence
“is not synonymous with any evidence. [Citations.] A decision
supported by a mere scintilla of evidence need not be affirmed on
appeal. [Citation.] . . . ‘The ultimate test is whether it is
reasonable for a trier of fact to make the ruling in question in
light of the whole record.’ [Citation.]” [Citation.]’ ” (In re
Joaquin C. (2017) 15 Cal. App. 5th 537, 560.)
The juvenile court’s finding that it would be detrimental to
place K.S. in father’s custody must be based on clear and
convincing evidence. (In re D’Anthony D. (2014) 230 Cal. App. 4th
292, 295.) Our Supreme Court recently explained: “[W]hen
presented with a challenge to the sufficiency of the evidence
associated with a finding requiring clear and convincing evidence,
the court must determine whether the record, viewed as a whole,
contains substantial evidence from which a reasonable trier of
fact could have made the finding of high probability demanded by
9
this standard of proof.” (Conservatorship of O.B. (2020) 9 Cal. 5th
989, 1005.)
A. Substantial Evidence Supported the Juvenile Court’s
Jurisdictional Findings that Father Failed to Protect
K.S. From Mother and Maternal Grandparents
Father argues: “The juvenile court found true the
allegations that Father knew of Mother’s substance abuse and of
the grandparents’ using and selling drugs in their home.
Substantial evidence did not support these findings.”
Although arguably father’s argument is not cognizable
because jurisdiction is uncontested, we exercise our discretion to
consider it. One parent’s conduct—here mother’s conduct—is
sufficient to support dependency jurisdiction. (In re Alexis E.
(2009) 171 Cal. App. 4th 438, 451.) We choose to consider father’s
jurisdictional challenge because absent substantial evidence to
support jurisdiction, father would be a nonoffending parent, i.e.,
his conduct would not serve as a basis for dependency
jurisdiction. (In re Quentin H. (2014) 230 Cal. App. 4th 608, 613;
In re Drake M. (2012) 211 Cal. App. 4th 754, 762–763.)
Additionally, the juvenile court’s finding that it would be
detrimental to place K.S. in father’s custody was a direct
consequence of the jurisdictional findings.
On the merits, father’s argument is unpersuasive. Father
ignores the juvenile court’s extensive credibility findings. Father
cites to his own statements that he was unaware that mother or
grandmother used drugs or that grandfather sold drugs. The
juvenile court found father’s statements lacked credibility. This
court does not reweigh the juvenile court’s credibility findings.
(In re Joaquin C., supra, 15 Cal.App.5th at p. 560.) Finally,
father emphasizes that he cooperated with DCFS and visited
10
K.S., but fails to show that his postpetition cooperation is
relevant to whether he knew of mother’s substance abuse or
grandparents’ use and sale of methamphetamine. Nor does he
show that his postpetition conduct is relevant to whether he
failed to protect K.S. from the risk posed by mother and maternal
grandparents.
Once the juvenile court’s credibility findings are considered,
the evidence supports the conclusion that father had knowledge
of mother’s drug use and grandfather’s drug dealing. The
juvenile court found “it not credible that the father had no idea at
all of any of the drug use and abuse that has been really
permeating this child’s life and caregivers.” Additionally, father
engaged in a pattern of failing to protect his children, requiring
intervention of Nevada authorities to protect K.S.’s half-siblings
whose mother abused controlled substances. Although father
took a parenting class as part of the Nevada proceeding, he
nevertheless failed to protect K.S. when K.S. needed his
protection.
B. Substantial Evidence Supported the Juvenile Court’s
Determination that It Would Be Detrimental to Place
K.S. In Father’s Custody
When a child is removed from a parent’s custody and a
noncustodial parent requests custody, the juvenile court must
place the child with the noncustodial parent unless it finds by
clear and convincing evidence that it would be detrimental to do
so. (Section 361.2, subd. (a);4 In re Marquis D. (1995)
4Section 361.2, subdivision (a) provides: “If 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
11
38 Cal. App. 4th 1813, 1821.) Section 361.2 applies regardless of
whether the noncustodial parent is offending or nonoffending.
(In re D’Anthony D., supra, 230 Cal.App.4th at p. 295.) In
contrast to the jurisdictional findings, which are made by a
preponderance of the evidence, the juvenile court is required to
assess detriment under a clear and convincing evidence standard.
(Ibid.)
This court reviews the juvenile court’s finding of detriment
for substantial evidence. (In re Patrick S. (2013) 218 Cal. App. 4th
1254, 1262.) We ask whether the record viewed in the light
most favorable to the juvenile court’s finding is sufficient for
a reasonable trier of fact to find detriment by clear and
convincing evidence. (In re John M. (2006) 141 Cal. App. 4th 1564,
1569–1570.)
Viewed through the lens of our standard of review, father
demonstrates no error. Substantial evidence supported the
juvenile court’s finding that it would be detrimental to K.S. to
place K.S. in father’s custody. Father acted in a manner
incompatible with parenthood because he failed to protect K.S.
when K.S. needed his protection. Father left K.S. in the custody
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. The fact that the parent is enrolled in a
certified substance abuse treatment facility that allows a
dependent child to reside with their parent shall not be, for that
reason alone, prima facie evidence that placement with that
parent would be detrimental.”
12
of mother, who jeopardized his safety through her substance
abuse and who was often absent from K.S. because of her periods
of incarceration. Despite knowing that mother was frequently
incarcerated and knowing that mother was in a gang, father
did not intervene to protect K.S. Father’s contrary argument
ignores the juvenile court’s express findings.
Father relies heavily on In re C.M. (2014) 232 Cal. App. 4th
1394, 1402 but mischaracterizes that case. In re C.M. identifies
permissive factors for a juvenile court to consider when assessing
detriment including the child’s wishes, sibling bonds, and the
child’s relationship with the noncustodial parent. Father
incorrectly alters the permissive language to mandatory
language, arguing that K.S.’s wishes, his sibling bonds, and his
relationship with father required placing K.S. in father’s custody.
Father’s argument ignores the well-established principle that
the preference for placement with a noncustodial parent
applies only “when safe for the child.” (In re Patrick S., supra,
218 Cal.App.4th at p. 1262.) Here, the juvenile court properly
focused on K.S.’s safety, and as explained above, the juvenile
court’s determination that it would be detrimental to place K.S.
in father’s custody was supported by the record.
In any event, in this case, the permissive In re C.M. factors
do not support father’s contention that the juvenile court should
have placed K.S. in his custody. K.S. had a minimal relationship
to father. Other than the nine-month period in which father
cared for K.S., father visited K.S. sporadically when he visited
Los Angeles. Father did not even know if K.S. visited the doctor.
Mother reported that father had little to no interaction with K.S.
There was no evidence K.S. met his half-siblings or shared a
relationship with them. Father states that K.S. would be able to
13
“further develop” his sibling bonds but identifies no such sibling
bonds. Although K.S. stated that he wanted to live with father,
the juvenile court was not required to place him with father
when doing so would risk his safety. (In re Patrick S., supra,
218 Cal.App.4th at p. 1265 [“a child’s preference is not the
deciding factor in a placement decision” under section 361.2,
subd. (a)].)
DISPOSITION
The juvenile court’s jurisdictional and dispositional orders
are affirmed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
SINANIAN, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
14