Los Angeles County Department of Children & Family Services v. Miguel S.

Filed 9/30/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re MICHAEL S., a Person Coming B269598
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. DK13928)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
MIGUEL S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County.
Veronica McBeth, Judge. (Retired judge of the L.A. Sup. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Michelle Ben-Hur, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County
Counsel, and Jessica Paulson-Duffy, Deputy County Counsel, for Plaintiff and
Respondent.
Miguel S. (Father) appeals from the juvenile court’s order removing his son,
Michael, from his custody. At the time the juvenile proceedings began, Michael lived
with his mother, Maria O. (Mother), and Father. Father now lives elsewhere and is
prohibited by a restraining order from any contact with Michael other than in supervised
visits.
Father does not challenge the juvenile court’s jurisdictional findings and does not
argue for any practical change in his access to Michael. Rather, Father argues that the
governing statute, Welfare and Institutions Code section 361, subdivision (c)(1), does not
permit removal from just one “custodial” parent.1 Because the court ordered Michael to
remain in Mother’s custody with restrictions on Father’s contacts, Father claims that
there was necessarily a reasonable alternative to removal and that the removal order
therefore exceeded the juvenile court’s jurisdiction.
We disagree with Father’s statutory interpretation and therefore affirm.
BACKGROUND
Michael was born in 2011 and was four years old at the time of the juvenile court
proceedings. He lived with Mother and Father and three children from Mother’s previous
marriage to Nicolas P. (Nicolas).
On October 16, 2015, the Los Angeles County Department of Children and Family
Services (Department) received a referral from the child abuse hotline concerning
possible sexual abuse of Michael’s older half sister, M.P. Social workers and the police
went to the family’s home that day to investigate. When interviewed, M.P. (who was 15
years old at the time) admitted that Father had touched her inappropriately on a number
of occasions. The most recent inappropriate touching had occurred just a few days earlier
when Mother was in the hospital.
When questioned, Mother admitted that she was in the hospital because Father had
pushed her into the bathtub while they were having an argument. She fell backward and
1 Subsequent undesignated statutory references are to the Welfare and Institutions
Code.
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hit the faucet. She suffered broken ribs and a broken vertebrae. Mother also disclosed a
previous incident in which Father had thrown a lamp in her face. M.P. and her sister
separately told a social worker that Father had thrown a metal tool at Mother about four
to six months previously.
Following the interviews, Nicolas picked up Michael’s three half siblings to stay
with him. Mother and Michael left their apartment to stay in an emergency shelter.
When Father learned from Mother that law enforcement officers were at the apartment
speaking with M.P., he refused to return home. The police officers gave Mother an
emergency protective order against Father that was effective for seven days.
The Department filed a petition concerning the four children on October 21, 2015.
An initial detention hearing occurred the same day. The juvenile court released Michael
to Mother and released the other three children to Mother and to their father, Nicolas.
The court also extended the temporary restraining order against Father until November 9,
2015. On November 9, the court again extended the restraining order until November
18, 2015, the date set for the adjudication hearing, because Mother had been unable to
serve Father.
The Department’s jurisdiction/disposition report filed before the November 18
hearing stated that Michael’s three half siblings continued to live with Nicolas, and
Michael and Mother lived at a friend’s house at an undisclosed address. The Department
had not been able to interview Father, and he had not arranged any supervised visits with
Michael. Mother had expressed interest in moving back to their original residence, and
the Department was “exploring the possibility of mother doing so once it is verified that
all of [Father’s] belongings are out of the home and the locks have been changed.”
Mother had recanted her statements about domestic violence, but she told the Department
that she had no intention of resuming a relationship with Father. The Department
observed that Mother’s prior statements were very detailed and concluded that it was
“likely that [Mother] is now recanting the domestic violence out of fear due to [Father’s]
gang ties as previously reported by [Mother].”
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The Department’s jurisdiction/disposition report recommended various findings
for the court, including that “[c]ontinuance in the home of [Father] would be contrary to
the child’s welfare.” The Department also recommended that the court find that “[c]lear
and convincing evidence shows that the child Michael should be removed from the
physical custody of [Father] in that there is a substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the child or would be if the
child was returned home, and there are no reasonable means by which the child’s
physical health can be protected without removing the child from the physical custody of
the child’s father.”
The Department’s jurisdiction/disposition report attached the Department’s prior
detention report filed before the October 21, 2015 detention hearing, which included a
section on “reasonable efforts.” That section summarized the steps the Department took
to “prevent or eliminate the need for the child(ren)’s removal from the home” prior to the
detention hearing. Those steps consisted of the Department’s interviews of the children
and parents, unsuccessful attempts to contact Father, investigation of the parents’
criminal histories, placement of Mother and Michael in an emergency shelter, and
obtaining an emergency protective order. The detention report also recommended a
permanent restraining order.
Father made his first appearance at the November 18 hearing and provided an
address in Apple Valley.2 The court continued the jurisdiction/disposition hearing to
December 15, 2015.
M.P. testified at the jurisdiction/disposition hearing on December 15, 2015, and
confirmed that Father had touched her inappropriately in a sexual manner on multiple
occasions. With respect to the alleged domestic violence, she testified that Mother had
told her at the first juvenile court appearance that Father had “pushed her into the tub.
And because of that, she had her—she hurt her spine.” She also testified that she had
2 M.P. had previously told the social worker and police officers about an incident
that occurred when Mother and the children were spending the night in Father’s Apple
Valley home.
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seen Father throw a tool at Mother about three months earlier. The tool was “like a
wrench.” It appeared to her that Father “wanted to purposely hit my mom with the tool,
but my mom got to close the door on time.”
At the conclusion of the hearing, the juvenile court stated that Michael would be
“removed from his father.” Father’s counsel asked to be heard on that issue and
requested “either that Michael not be removed from his care or we’re asking for
unmonitored visits.” The court denied the request.
Following the hearing, the juvenile court ordered Michael removed from Father’s
custody. The court found that “[s]ubstantial danger exists to the physical or emotional
health of minor(s) and there is no reasonable means to protect the minors without
removal.” The court also found that “[r]easonable efforts have been made to prevent or
eliminate need for minor’s removal from home.” The court did not state the basis for that
determination.
The court issued a permanent restraining order against Father that precludes him
from any contact with Mother or Michael (or Mother’s other children) except for
scheduled supervised visits with Michael. The restraining order also states that Father
“must move immediately” from the family’s prior home. The restraining order expires
on December 15, 2018.
DISCUSSION
Father’s statutory interpretation argument is an issue of law that we review
independently. (In re Marquis H. (2013) 212 Cal. App. 4th 718, 725.) Our objective is to
ascertain legislative intent, based in the first instance on the statutory language itself.
(Ibid.) However, we also keep in mind the context of the particular statute within the
statutory scheme as a whole. “Given the complexity of the statutory scheme governing
dependency, a single provision ‘cannot properly be understood except in the context of
the entire dependency process of which it is a part.’ ” (In re Nolan W. (2009) 45 Cal. 4th
1217, 1235.)
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1. The Governing Statutes
Section 361, subdivision (a)(1) provides that, when a minor is adjudged a
dependent of the court, the court “may limit the control to be exercised over the
dependent child by any parent or guardian.” However, a child may not be removed from
the physical custody of his or her parents unless there is “clear and convincing evidence”
of one of the circumstances specifically enumerated in the statute. (§ 361, subd. (c).)
The circumstance that the juvenile court found here is that “[t]here is or would be
a substantial danger to the physical health, safety, protection, or physical or emotional
well-being of the minor if the minor were returned home, and there are no reasonable
means by which the minor’s physical health can be protected without removing the minor
from the minor’s parent’s or guardian’s physical custody.” (§ 361, subd. (c)(1).)
Subdivision (c)(1) specifically identifies two alternatives for the juvenile court to
consider as “a reasonable means to protect the minor.” One is “[t]he option of removing
an offending parent or guardian from the home.” (§ 361, subd. (c)(1)(A).) The other is
“[a]llowing a nonoffending parent or guardian to retain physical custody as long as that
parent or guardian presents a plan acceptable to the court demonstrating that he or she
will be able to protect the child from future harm.” (§ 361, subd. (c)(1)(B).)
Father argues that the juvenile court’s order removing Michael from his custody
was not authorized by section 361, subdivision (c), and that leaving Michael in Mother’s
custody was, as a matter of law, an alternative to Michael’s removal from Father. Thus,
Father claims that the juvenile court could not both order Father to stay away from
Michael and also order Michael removed from Father’s custody.
We disagree that the juvenile court was precluded as a matter of law from
considering the alternative of removal in this situation. By its language, section 361
appears to contemplate removal from one parent only. While that section is somewhat
inconsistent in its use of the singular and plural, it does refer in places to the possibility of
removal from only one parent. For example, subdivision (c)(1) uses the singular
possessive in stating that the court must determine that there are no reasonable means to
protect the minor “without removing the minor from the minor’s parent’s or guardian’s
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physical custody.” (§ 361, subd. (c)(1), italics added.) That same subdivision states that
a prior adjudication that the minor is a dependent child of the court pursuant to section
300, subdivision (e) “shall constitute prima facie evidence that the minor cannot be safely
left in the physical custody of the parent or guardian with whom the minor resided at the
time of injury.” (§ 361, subd. (c)(1), italics added.) Other subdivisions also use the
singular in describing conduct that would warrant removal from the “parent.” (See § 361,
subd. (c)(2)–(5).)
Section 361, subdivision (c)(1)(A) clearly requires the court to consider the
“option” of removing an offending parent from the home as a possible alternative to
removal of the child from the parent. However, that subdivision does not state that the
option of removing a parent from the home will necessarily be sufficient to protect the
child in all cases even if ordered. It does not, by its terms, preclude the possibility of
ordering both removal of the parent from the home and removal of the child from the
parent.
Flexibility in ordering removal from only one custodial parent makes sense in light
of the many different custody arrangements that a juvenile court might need to address.
For example, two parents might live apart and share custody of a child. Or the parents
might live together with a child most of the time, but one of the parents maintains a
separate residence that the child sometimes visits. In such situations, if only one parent
engages in the conduct underlying a dependency petition, the juvenile court might
conclude that it is appropriate to remove the child only from the offending parent and
allow the child to remain in the other parent’s custody.
Indeed, the facts here illustrate the different living arrangements that a juvenile
court can confront. While Mother and Father lived with Michael in an apartment in Los
Angeles at the time the relevant events occurred, they were not married and Father
apparently had a separate residence in Apple Valley that the children had previously
visited. Father left his family, initially on his own volition, after learning that law
enforcement and social workers had made a visit. By the time the initial petition was
filed, he was no longer at the home. While the juvenile court ordered Father to stay away
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from the family’s residence and from the children, under the circumstances the juvenile
court could also reasonably consider the option of removing Michael from Father’s
custody to confirm that, absent a further court order, Father was not permitted physical
custody of Michael at any location.3
In other cases, dependency courts have removed a child from only one parent’s
custody when the parents did not live together. (See In re D.G. (2012) 208 Cal. App. 4th
1562 (D.G.) [removing child from the custody of the father who was also ordered out of
the home]; In re E.B. (2010) 184 Cal. App. 4th 568, 574, 578 [removing children from the
father’s custody based upon sexual and other abuse and allowing them to remain with the
mother]; In re Jason L. (1990) 222 Cal. App. 3d 1206, 1209–1210, 1217 [child removed
from divorced father’s custody and placed with the mother who shared legal custody].)
In D.G., supra, 208 Cal. App. 4th 1562, this court approved an order removing an
offending father from the home and also removing the father’s children from his custody
under section 361 (albeit without addressing the statutory argument that Father makes
here). The juvenile court in that case had ordered the father removed from the home
because of the father’s sexual abuse of D.G. while the children remained in the mother’s
custody. After reviewing the requirements of section 361, subdivision (c), this court
found substantial evidence to support the juvenile court’s findings that “allowing Father
to remain in the family home posed a substantial danger to the health and safety of [the
children] and there were no reasonable means of protecting the children without removal
from Father’s custody.” (Id. at p. 1574.)
The cases on which Father relies do not hold that a child may never be removed
from only one custodial parent. Rather, those cases held that the statutory scheme does
not permit removing a child from a parent and then immediately returning that child to
the same parent. (See In re Damonte A. (1997) 57 Cal. App. 4th 894; In re Andres G.
(1998) 64 Cal. App. 4th 476; In re N.S. (2002) 97 Cal. App. 4th 167.) That is not what
3Although the juvenile court did not identify this as a reason for ordering
removal, we note that the restraining order expired after three years.
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occurred here. The juvenile court did not order Michael removed from Mother, and
therefore did not create the “unseemly inconsistency” of a finding that it was necessary to
remove a child from a parent to protect the child while simultaneously returning the child
to the same parent. (Andres G., at p. 481.)
Father also argues that section 361.2 supports the conclusion that the statutory
scheme does not permit removing a child from one custodial parent only. Section 361.2,
subdivision (e) specifies the procedure for placement of a child who has been removed
pursuant to section 361. Once a child has been ordered removed, “the court shall order
the care, custody, control, and conduct of the child to be under the supervision of the
social worker.” The social worker’s first option for placement is with another parent
“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.” (§ 361.2, subd. (a); id., subd.
(e).) Other options include a “relative,” a “nonrelative extended family member,” a
“resource family,” a foster home, community care facility, or a group home. (§ 361.2,
subd. (e)(1)–(11).) The listed alternatives do not include placement with a parent with
whom the child was living at the time the relevant events occurred. Father argues that
this is because the Legislature contemplated that leaving a child with a custodial parent
while placing limits on the other custodial parent would be an alternative to removal
under section 361.
While this argument has some force, we do not believe that section 361.2 should
be read to preclude removal from only one custodial parent in all situations. The section
addresses placement when a child is removed from his or her previous home. Such
placement is necessary only when the child has no home in which to stay. If a child
remains with a custodial parent, there would be no need to consider other placement
options. Although section 361.2 does not expressly identify the possibility of keeping a
child in one custodial parent’s home and removing custody from the other parent, we do
not read it to foreclose that possibility as a matter of law, particularly in light of the
different living situations that a juvenile court might confront.
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2. The Juvenile Court’s Order
The juvenile court ordered Michael removed from Father’s custody with a finding
that “substantial danger exists to the physical or emotional health” of Michael and there
was “no reasonable means to protect” Michael without removal. The court did not state
the facts on which this conclusion was based. (See § 361, subd. (c)(1).) However, on
appeal Father does not challenge the sufficiency of the evidence underlying the court’s
removal order, but argues only that the court was precluded from considering the option
of removal as a matter of law. Because we reject that legal argument, we affirm.
DISPOSITION
The juvenile court’s order removing Michael from Father’s physical custody is
affirmed.
CERTIFIED FOR PUBLICATION.
LUI, J.
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.
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