Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. H. A. Staley, Judge, Super. Ct. Nos. 115803, 115804, 115805
Mario de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
B. C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Ke.C. (father) appeals from the order made March 25, 2008, placing his children K.C., born in 1995, Ku.C., born in 1999, and Ko.C., born in 2001 (the children), in foster care rather than with him, the nonoffending parent. Father contends that the dependency court abused its discretion when it did not select the option set forth in Welfare and Institutions Code section 361.2, subdivision (b), to place custody of the minors with him, subject to the jurisdiction of the court, and direct that the Kern County Department of Human Services (Department) make a home visit within three months. We disagree and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS AND PROCEDURAL BACKGROUND
On September 18, 2007, the children’s mother beat her son B., the children’s 14-year-old half brother, with “a broom, her fists, and slaps.” As a result, the mother was arrested on September 19, 2007, for assault and the children were taken into protective custody.
The mother is not a party to this appeal.
On the same day, father’s girlfriend called the social worker and stated that the children’s father and the mother had a history of fighting and father did not have much contact with the mother “to avoid getting into fights with her.” She also stated that father lived in a fifth wheel trailer and worked from early morning until late at night.
K.C. denied that his mother used corporal punishment, but he stated that his father did hit him and his brothers as punishment and that his father and the mother argued “a lot.” K.C. expressed a desire to live with his mother but, if that was not possible, then to live with his adult brother J. K.C. was not sure if his father was currently using drugs.
Ku.C. told the social worker that his father “never comes by” and that he hits his mother and “makes her head bleed.” Ku.C. stated that his father had been arrested for hitting his half brother when he was younger. He also reported that his father punished him with belts and his hands, and that he used drugs.
Ko.C. told the social worker he did not like his father “at all” and that his father was physically abusive toward him, his brothers, and his mother. He also stated that his father used drugs.
The mother reported that father had a history of methamphetamine use and, three weeks earlier, she had warned him not to come around the house “until he was clean.” Although the mother claimed not to use drugs, a drug test submitted a week before the beating incident was positive for amphetamine and methamphetamine. The mother agreed that father hit the children, but she did not think he was abusive.
A dependency petition filed September 21, 2007, pursuant to section 300, subdivisions (a) and (b), alleged that the children were at risk of serious physical harm due to injuries their mother inflicted on their 14-year-old half brother and due to the mother’s methamphetamine use.
At the September 24, 2007, detention hearing, the court found that father was the presumed father of the children. The allegations of the petition were denied. Both the mother and father agreed to drug testing pending the next hearing and were told that a failure to test when asked would be presumed positive for illegal drugs. Father’s attorney asked for, and the court granted, an order that the Department have “discretion to place the children with their father on an extended visit pending further hearing if it can be done so in a way that will safeguard the children.” The children were placed with the mother’s adult son.
A scheduled two-hour supervised visit with the children was held after the detention hearing, but father did not interact with the children and both the mother and father left after only one hour.
Neither father nor the mother attended the jurisdictional hearing which was held on January 7, 2008. The allegations of the petition were found true and a disposition hearing scheduled.
A psychologist’s report prepared in anticipation of the disposition hearing concluded that the mother suffered from a substance abuse disorder and antisocial personality disorder. The mother repeatedly asked the social worker that the children not reside with father because of his drug use and the fact that he lived in a fifth wheel trailer, which she did not think was appropriate housing. The mother was living in a “safe house” due to domestic violence “perpetrated on her by [father].” She submitted three negative drug tests but missed three tests.
Father had several criminal convictions, including failure to provide for a minor child in 1996, receiving stolen property in 2000, willful cruelty to a minor in 2001, and driving without a license in 2003 and 2006. In 2004, drug charges were resolved with drug diversion. In the present proceedings, father submitted two negative drug tests but missed five drug tests. Father told the social worker that his attorney had told him he was not required to drug test or to attend dependency hearings.
The social worker’s attempts to evaluate father’s home were unsuccessful. Certified mail sent to the home on four occasions—in October, November and December of 2007 and January of 2008—were signed by someone other than father. Messages left for father requesting a call back to set up a home evaluation and a drug test were not returned.
Both the mother and father attended the majority of the scheduled visits with their children, but each missed some. Father “displays an interest in the children and their daily lives” but “[t]he children are noted to go readily to their mother during joint visits rather than … father.”
Both the mother and father attended the dispositional hearing on March 25, 2008. Father testified that, before the children were placed into protective custody, he visited them once or twice a week. He asked that the court place the children with him. According to father, he lived in a one-bedroom “fifth wheel” or trailer with two fold-down couches. Father’s 20-year-old son lived with him, but he was getting ready to move out. When the children had spent the night with him in the past in the fifth wheel, they slept in two beds. The fifth wheel had been at the same location for three to four months, but father did not know the address. When asked if there was enough room in the fifth wheel for his three children, father said “It could be tight,” but he would “give it a shot.”
Father testified that he worked five days a week from 8:00 a.m. to 5:00 p.m. He did not know what school district the children would be enrolled in if they lived with him but his parents, who are retired, “probably” would help him get the children to and from school.
Father described his visits with his children as “awkward” because someone was watching “all the time.” When asked if he believed he could provide for his children if they were placed with him, he said “Roughly, yeah.” Father stated that “[t]hings might get tight,” but “[t]hey’ll survive.”
Father testified that he completed a six-month drug diversion class in connection with a 2004 criminal charge. He claimed not to have used drugs since before 2004 and that he randomly drug tested for his job. Father claimed that he was willing to drug test for the social worker but that he was not able to urinate when called to test.
Counsel for the children argued that the children did not wish “at this point” to live with their father. She was also concerned with father’s past convictions for willful cruelty to a child and his criminal conviction for failure to provide for his children. Although the mother’s attorney disputed the argument that the children disliked their father, she did agree that the children were better cared for, had a “little more room” and a “little more stable” environment living with their adult half sibling.
The dependency court denied father’s request for placement of the children:
“due not only to the facility, although the Court indicates that he was unwilling to have this residence checked, the Court is concerned with the reasons stated by the mother on Page 7 about having the children with the father, placed with the father, the prior convictions are, although distant in time, willful cruelty to a child and failure to provide. No medical–no real medical reason is offered to explain why he’s been able to test for the drug program with the Court and the drug testing program with his employment, which is not totally relevant …. [¶] … [¶] [T]here is clear and convincing evidence that such placement would be detrimental to the safety, protection, or physical and emotional well-being of the children.”
Presumably, the court was referring to page 7 of the dispositional report, which states, “The mother has repeatedly requested that the children not be allowed to reside with their father who she states has an active drug problem and lives in a fifth wheel which she does not feel is an appropriate home for three boys. The mother has recently moved to the Alliance Against Family Violence and Sexual Assault’s safe house after being evicted from her home … due to domestic violence perpetrated on her by [father].”
The dependency court adjudged the children dependents pursuant to section 300, subdivisions (a) and (b), and removed the children from their mother. Reunification services, not to exceed 12 months, were provided for both the mother and father. Father was ordered to participate in counseling for parent training and substance abuse, counseling for neglect, and to submit to random drug tests. Weekly supervised child visitation was ordered. A review hearing was scheduled for May 19, 2008.
DISCUSSION
The Dependency Court Did Not Abuse its Discretion in Denying Father’s Request for Placement of the Children
Father appeals the dependency court’s denial of his request to place the children in his home pursuant to section 361.2. Specifically, father claims the court abused its discretion when it did not select the option set forth in section 361.2, subdivision (b)(2), which would have allowed the children to reside with him subject to the jurisdiction of the dependency court and the requirement of a home visit within three months. We disagree.
Section 361.2, subdivision (a) provides that when a dependency court orders removal of a child from the custody of a parent, the court shall place the child with the noncustodial, nonoffending parent, unless placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. Section 361.2, subdivision (a) evinces the Legislature’s preference for placement with the nonoffending noncustodial parent. (In re Austin P. (2004) 118 Cal.App.4th 1124, 1132.)
If the dependency court places the child with that parent, section 361.2, subdivision (b) provides the court with three options: it may order the parent become the legal and physical custodian of the child and terminate jurisdiction (§ 361.2, subd. (b)(1)); it may order that the parent assume custody subject to the jurisdiction of the dependency court and requirement of a home visit within three months (§ 361.2, subd. (b)(2)); or it may order that the parent assume custody subject to the supervision of the dependency court and order reunification services be provided the parent (§ 361.2, subd. (b)(3)).
As explained in In re Austin P., supra, 118 Cal.App.4th at pages 1134-1135:
“[W]hen a nonoffending noncustodial parent requests custody under section 361.2, subdivision (a), he or she is requesting sole legal and physical custody of the child. However, the court may not immediately grant that parent sole legal and physical custody. The court must first determine whether it would be detrimental to the child to temporarily place the child in that parent’s physical custody. If there is no showing of detriment, the court must order the Agency to temporarily place the child with the nonoffending noncustodial parent. The court then decides whether there is a need for ongoing supervision. If there is no such need, the court terminates jurisdiction and grants that parent sole legal and physical custody. If there is a need for ongoing supervision, the court is to continue its jurisdiction.”
When a noncustodial parent requests custody of a dependent child, the dependency court must place the child with that parent unless there is clear and convincing evidence of detriment (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426), and the finding may not be implied. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1824-1825; see also § 361.2, subd. (c).) The detriment evaluation requires that the court weigh all relevant factors to determine if the child will suffer net harm. (In re Luke M., supra, at p. 1425.)
In assessing a dependency court’s denial of a parent’s request for placement of a child pursuant to section 361.2, subdivision (a), we “review the record in the light most favorable to the trial court’s order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard. [Citation.]” (In re Isayah C. (2004) 118 Cal.App.4th 684, 694.) “Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt.” (At p. 695.)
The dependency court denied father’s request for placement of the children due to his housing, his unwillingness to have his home evaluated, his drug problem and his inability to drug test, his abusive relationship with the mother, as well as his prior convictions, which included willful cruelty to a child and failure to provide.
Father argues that his past criminal offenses were old and ought not to weigh heavily in the dependency court’s determination. Specifically, he claims the willful cruelty to a child charge in 2001 involved a child not at issue here, the injury was consistent with the child being struck on the seat of his pants with a belt, not his thigh; and the child himself was “something of a problem child.” He argues that section 361.2 does not require a home evaluation be completed before the children are placed with a nonoffending parent, and that the disposition hearing could have been continued for a few weeks to permit a home investigation. He argues that even the mother did not think he was an abuser. And finally, he claims there was no evidence that he had used drugs in the past four or five years and there may have been a medical reason for his inability to test but, because of his limited economic situation, he may not have been able to seek medical attention for the problem.
But we find that substantial evidence supports the dependency court’s decision to deny father’s request that the children be placed with him. While technically father was a nonoffending parent, the record contains substantial evidence of past criminal behavior, including convictions for failure to provide for a minor child and willful cruelty to a minor. And while previous acts of neglect, standing alone, do not establish a substantial risk of harm (In re David M. (2005) 134 Cal.App.4th 822, 831-832), the court based its decision on other factors as well.
There is substantial evidence of father’s drug use and his continued failure to drug test. When the children were first removed from the mother’s home, she stated that she had banned father from coming to the house for the previous three weeks “until he was clean.” All three children stated that father had used or did use drugs. Father was able to drug test for drug diversion and employment requirements and he produced two negative tests. Although he claims on appeal that there is a possibility that he had a medical issue related to his inability to urinate to complete the other drugs tests, he did acknowledge at the hearing that he had been able to take a drug test when he drank “a bunch of coffee” although one time it took him two hours to do so. But even if it was difficult for father to test, he was told when the children were first removed from the mother’s care that a failure to test would be considered a positive test.
There is also evidence of father’s lack of adequate housing for the children. He testified that he lived in a one-bedroom fifth wheel trailer with his 20-year-old son, although the son was scheduled to move out. And father acknowledged that having his three children with him would be “tight,” though he would “give it a shot.” While “tight” quarters is not an adequate reason to deny custody of children, there is evidence, despite father’s claim to the contrary, that the social worker attempted repeatedly—by certified mail and telephone messages between September of 2007 and March of 2008—to set up a home evaluation, to no avail.
Father cites In re John M. (2005) 141 Cal.App.4th 1564 and claims that “there is no reason the disposition hearing could not have been continued for a few weeks to permit a home investigation to be accomplished.” In John M., the child was removed from an abusive mother. The father, who alleged that he was a noncustodial and nonoffending parent, requested that the child be placed with him in Tennessee. (Id. at pp. 1567-1568.) The father had been in contact with the child for a year after a four-year hiatus, during which the lack of contact was not of his doing. The social worker concluded that placement with the father was a viable option, but that an Interstate Compact on the Placement of Children (ICPC) report would need to be completed first. (In re John M., at p. 1568.) At the dispositional hearing, the child’s father requested a continuance pending completion of the ICPC report. The dependency court determined that the ICPC report was required but would take a month to six weeks to complete. It then denied the continuance request, found detriment under section 361.2, subdivision (a), and ordered the child placed with relatives in accordance with the child’s wishes. (In re John M., at pp. 1568-1569.)
The appellate court in John M. found that the factors considered by the dependency court—consisting of the child’s wishes, need for services, relationship with his extended family, lack of relationship with his father, and the scarcity of information about the father other than his lack of a criminal record—did not support its finding of detriment. (In re John M., supra, 141 Cal.App.4th at p. 1570.) The court further determined that denial of the father’s continuance request was an abuse of discretion because “the exceptional circumstances in this case justified such a delay” in the completion of the dispositional hearing. (Id. at p. 1572.)
But here, father made no request for such a delay. Nor can it be said that there were exceptional circumstances in this case or that there was a lack of information about father. And father has given no indication why or that he would now comply with a new request for a home evaluation if one was ordered.
And finally, there is evidence of father’s sometimes violent relationship with his children and the children’s mother. The children described father as abusive toward them, and each of the children described domestic violence between their parents, which was confirmed by sheriff’s reports and the fact that, at the time of the disposition hearing, the mother was living in a shelter to protect her from physical violence by father. Even father’s girlfriend claimed that father had not visited his children often because he and the mother had a history of fighting. “Both common sense and expert opinion indicate spousal abuse is detrimental to children.” (In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5.)
Thus, in sum, there is substantial evidence in the record to support the dependency court’s findings and judgment, and we reject father’s claim to the contrary.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J., HILL, J.