Opinion
B307670
06-29-2021
In re J.S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.S., Defendant and Appellant.
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Kimberly Roura, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 19LJJP00883A, Michael C. Kelley, Judge. Affirmed.
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Kimberly Roura, Senior Deputy County Counsel, for Plaintiff and Respondent.
BAKER, ACTING P. J.
J.S. (Father) and A.M. (Mother) are the parents of a son, J.S., Jr. (J.S.), who was nine years old when juvenile dependency proceedings began. J.S. had not lived with Father since he was an infant, and Father did not resume contact with J.S. until his ninth birthday. When the juvenile court assumed jurisdiction over J.S. and ordered him removed from Mother, Father asked the court to place J.S. with him. We consider whether substantial evidence supports the juvenile court's rejection of that request based on a finding that placement with Father would be detrimental to J.S.
I. BACKGROUND
J.S., born in March 2010, came to the attention of the Los Angeles County Department of Children and Family Services (the Department) in November 2019. He was living with Mother, who had recently been arrested for violating a restraining order protecting her former boyfriend from her. The Department filed a dependency petition alleging J.S. was at risk of serious physical harm due to Mother's continuing engagement with her ex-boyfriend. The juvenile court sustained the dependency petition (with amendments) and our recitation of the facts focuses on those most relevant to the placement aspect of the court's disposition order that Father challenges in this appeal.
When Mother was arrested in November 2019, J.S.'s maternal grandmother (Maternal Grandmother) left her home in Nevada to take custody of J.S. Maternal Grandmother had previously cared for J.S. throughout his life during periods when Mother was unable to parent the boy.
J.S. remained in Maternal Grandmother's custody throughout the dependency proceedings.
When a social worker first spoke with J.S., the Department had not yet located Father. J.S. stated that he “barely” knows Father and only saw him “when [he] was a baby.” Mother told a social worker that Father visited J.S. on his ninth birthday in March 2019, but he was not involved in J.S.'s life prior to that. Mother was opposed to Father taking custody of J.S. because he had three other children and, she believed, struggles with mental health and substance abuse issues.
The Department made contact with Father in late January 2020. He is a military veteran who has been diagnosed with post-traumatic stress disorder, depression, cannabis use disorder, and nicotine use disorder. Father sees a therapist through the Department of Veterans Affairs (VA) on a monthly basis and takes prescribed psychotropic medication. He previously used cocaine, but Father's VA psychiatrist stated he is in “full, sustained remission from alcohol and cocaine use disorders.”
Father told the Department he would “love” to have J.S. placed with him. Father was living in New York with his three younger sons (ages 7, 6, and 2) and their mother, H.C. At the Department's request, the local child welfare agency inspected Father's home but did not perform a full assessment of the family, which would require an Interstate Compact on the Placement of Children request. The New York child welfare agency found the home was safe and sanitary with appropriate sleeping arrangements for J.S.; Father's three younger sons “appeared happy and healthy.”
During his conversations with the Department, Father said he attempted to maintain telephone contact with J.S. after the in-person visit in March 2019 but Mother cut off communications because she was upset with Father for not adding her as a beneficiary on his insurance policy. (Mother and Father did not divorce after they separated.) Father acknowledged he had had little contact with J.S. prior to March 2019; he said he was “getting himself together.”
With dependency proceedings underway, Father traveled to California in March 2020 to visit with J.S. and attend a juvenile court arraignment hearing. Father took a drug test that same day and tested positive for a relatively high level of marijuana use (3513 ng/ml). Father later provided the Department a copy of a medical marijuana certificate issued in New York-dated after his positive marijuana test-and said he does not use marijuana every day but was “nervous and experiencing anxiety” from his interactions with Maternal Grandmother.
Father stated that, the day the Department first contacted him, Maternal Grandmother called and told him in a “rude” manner that he would not be taking custody of J.S. Maternal Grandmother was strongly opposed to placement with Father. She alleged that when J.S. was six months old, Mother called her late at night because she was frightened of Father, who took down their family photos and “replaced them with bullets.” Maternal Grandmother further contended Father is only interested in having J.S. placed with him for “personal and financial gain.”
The Maternal Grandmother filed a declaration in the dependency proceedings requesting placement of J.S. with her. She declared she raised J.S. for “most of his life” and explained J.S. (and sometimes Mother) lived with Maternal Grandmother from June 2011 to October 2012, October 2013 to June 2014, August 2015 to September 2019, and November 2019 to the present. The Department's reports noted Maternal Grandmother had made it “difficult” to provide services to the family because she was resistant to unannounced visits, told personnel at J.S.'s school not to speak with the Department, and was “not in agreement with therapeutic services” for J.S.
On the eve of the jurisdiction hearing, the Department reported Father completed eight phone visits with J.S. since the first week of July. He missed two visits due to travel. The Department monitor for the remote visits opined J.S. looked like a “deer in the headlights” when Father mentioned the prospect of J.S. visiting him in New York. A social worker similarly opined that J.S. was “not emotionally ready” for such a move.
Maternal Grandmother claimed Father missed several additional visits, but it is not clear whether her count pertains to the same time period.
At the jurisdiction and disposition hearing in August 2020, the juvenile court sustained the allegation against Mother and found J.S. to be a person described by Welfare and Institutions Code section 300, subdivision (b)(1). As to disposition, Father's attorney requested that J.S. be placed with Father. Counsel for the Department, Mother, and J.S. argued against sending J.S. to live with Father in New York. Counsel for J.S. informed the court J.S. wanted to remain with Maternal Grandmother and did not want to live with Father “at this time.”
Undesignated statutory references that follow are to the Welfare and Institutions Code.
The juvenile court declined to place J.S. with Father, finding that doing so would be detrimental to J.S.'s safety, protection, or physical or emotional well-being. The juvenile court emphasized J.S. is “strongly attached” to Maternal Grandmother, there was “some inconsistency” in Father's visitation, and there were “concerns about Father's marijuana use as well as potentially unresolved substance abuse and mental health issues.” The juvenile court ordered a case plan for Father that, among other things, provides for nine hours of monitored visitation per week (with discretion to the Department to liberalize visitation and permit in-person visits in New York) and requires Father to abstain from “all illicit drug use, including marijuana.” Also, at the Department's request, the juvenile court admonished Mother, Father, and Maternal Grandmother not to disparage each other and made clear there should be no interference with Father's court-ordered visitation.
II. DISCUSSION
Section 361.2, subdivision (a) requires a juvenile court to place a dependent child with a noncustodial, nonoffending parent who requests custody unless the placement would be detrimental to the child. Under the governing standard of review, there was sufficient evidence for the juvenile court to conclude giving Father custody of J.S. would be detrimental to at least his emotional well-being. J.S. essentially had no relationship with Father (no contact with Father for seven or eight years), J.S. had a remarkably strong attachment to Maternal Grandmother who often served as a surrogate parent, placing J.S. with Father would require a cross-country move to entirely unfamiliar surroundings in New York that would greatly disrupt his relationship with Maternal Grandmother, and the juvenile court could harbor legitimate concerns about Father's marijuana use and whether it would increase to problematic levels if Father were asked to care for J.S. in addition to his three other children.
A. Applicable Law and Standard of Review
When the juvenile court removes a child from a custodial parent at disposition, it must 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.” (§ 361.2, subd. (a).) If, like Father, the noncustodial parent requests custody, the court must place the child with that 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).)
“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 (Luke M.).) These factors include the dependent child's own wishes, the child's relationship (or lack thereof) with the non-custodial parent seeking custody, and the existence and quality of the child's bond with other family members. (See, e.g., id. at 1427; see also In re A.C. (2020) 54 Cal.App.5th 38, 43 (A.C.); In re C.M. (2014) 232 Cal.App.4th 1394, 1402 (C.M.).) We review the juvenile court's detriment finding for substantial evidence in light of the burden of proof in the trial court. (Ibid.; see also Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
B. Substantial Evidence Supports the Juvenile Court's Detriment Finding
As we will explain, J.S.'s attachment to Maternal Grandmother and related facts-his desire to stay with Maternal Grandmother, his apparent anxiety about placement with Father, and the fact that placement with Father would require a cross-country move-alone suffice to support the juvenile court's finding that placement with Father would be detrimental to J.S.'s emotional well-being. When combined with the already described facts concerning Father's marijuana use, there are ample grounds for the juvenile court's detriment finding.
J.S. was 10 years old when the juvenile court made its disposition order, and his wishes to stay with Maternal Grandmother, though not dispositive, appropriately influenced the trial court's thinking. (Luke M., supra, 107 Cal.App.4th at 1426 [considering preferences of eight- and ten-year-old children];see also A.C., supra, 54 Cal.App.5th at 43) [affirming detriment finding where the child had a “‘strong bond'” with the maternal grandmother in whose care she was “thriving”].) Severing J.S.'s bond with Maternal Grandmother, which also would have disrupted J.S.'s more general routine, naturally would have been quite difficult for J.S. When adding to that difficulty a full cross-country move to live in entirely new surroundings with a largely estranged parent, there was adequate basis for the trial court to credit the social worker's view that J.S. was not emotionally ready for such a change and to conclude awarding Father custody of J.S. would be emotionally detrimental. (Luke M., supra, at 1426-1427 [affirming emotional detriment finding where placing the child with a noncustodial parent in Ohio would disrupt a strong sibling bond]; A.C., supra, at 40, 44 [finding detriment where the child “ha[d] many friends, enjoys school, and [was] excelling academically” and did “not want to leave this life” in California to live with a noncustodial parent in the state of Washington]; compare C.M., supra, 232 Cal.App.4th at 1404 [emphasizing that the child “was not being moved halfway across the country, as were the children in Luke M.”].)
J.S.'s “deer-in-the-headlights” reaction to the prospect of visiting Father in New York underscored he was anxious-not merely unenthusiastic-about being thrust into an unfamiliar home. Father counters that no therapist had assessed J.S., but the social worker monitoring J.S.'s visits with Father was well positioned to describe J.S.'s demeanor and “expert opinion in addition to the social worker's opinion, although certainly helpful, was not essential.” (Luke M., supra, 107 Cal.App.4th at 1427.)
Father's argument to the contrary relies on cases in which only some of the pertinent detriment considerations found here were present. In In re John M. (2006) 141 Cal.App.4th 1564, for instance, a child's lack of relationship with his father did not support a detriment finding, but, in contrast to this case, the child's wishes were “unclear” and there was no evidence that separation from extended family would be detrimental. (Id. at 1570-1571.) In C.M., a child's desire to remain with her grandparents and a half sibling did not support a detriment finding, but there was evidence in that case that the noncustodial parent had maintained a relationship with the child (C.M., supra, 232 Cal.App.4th at 1396) and placement with that parent did not require a move “halfway across the country” (id. at 1404). In In re Patrick S. (2013) 218 Cal.App.4th 1254, a child's “resigned” attitude about living with his estranged father did not support a detriment finding, but the child conceded visits with his father were “not that bad” and the Court of Appeal emphasized the estrangement was not the father's fault-he had searched for his son for years, including by hiring a private investigator and working with law enforcement and child welfare agencies. (Id. at 1256-1257, 1263.)
Father also contends the Department's reported difficulties with Maternal Grandmother suggest that, on balance, placement with Father would not result in net harm to J.S. Although Maternal Grandmother's conduct is fair reason to think the Department will have to be diligent about monitoring J.S. while he is in her care, substantial evidence still supports the juvenile court's conclusion that separating J.S. from Maternal Grandmother and placing him with Father would be detrimental to J.S.'s emotional well-being. There was no evidence Maternal Grandmother was currently interfering with Father's visitation and the Department (which raised these concerns) was proactive in requesting admonitions from the juvenile court.
When we consider the juvenile court's apparent concern with Father's marijuana use, the basis for a detriment finding becomes even stronger. Father used marijuana once he knew dependency proceedings were underway and, at least inferentially, just before his appearance in juvenile court or close to it-given his positive test that day and his explanation that he used marijuana to deal with stress from interacting with Maternal Grandmother. If Father was so dependent on marijuana as to be under the influence during court proceedings, the stress of assuming custody of J.S., which would likely require further interactions with Maternal Grandmother, may well have led to increased marijuana use in the presence of his children with unknown and risky consequences under all the circumstances. We accordingly believe there is an ample basis for the juvenile court's detriment finding.
DISPOSITION
The juvenile court's disposition order is affirmed.
We concur: MOOR, J., KIM, J.