Opinion
F059874 Super. Ct. No. JD123189
12-20-2010
In re M.K., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. X.K., Defendant and Appellant.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.Theresa A. Goldner, County Counsel, and Jennifer Elizabeth Feige, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Robert J. Anspach, Judge.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A. Goldner, County Counsel, and Jennifer Elizabeth Feige, Deputy County Counsel for Plaintiff and Respondent.
-ooOoo-
Appellant X.K. is the presumed father of the minors M.K. and P.F., born in November of 2006 and February of 2005, respectively. He appeals from the order of the juvenile court denying him placement and reunification services pursuant to Welfare and
Institutions Code section 361.5, subdivision (e)(1). He contends the juvenile court erred prejudicially when it failed to consider the issue under section 361.2. We disagree and shall affirm the order.BACKGROUND
On February 4, 2010, a section 300 petition was filed under subdivisions (b) and (g) after M.K.s mother was arrested for possession of drugs and drug paraphernalia, being under the influence, and willful cruelty to a child. The petition alleged that M.K. was at risk due to the mothers substance abuse convictions and her unresolved substance abuse. The petition also alleged that the mother was incarcerated and unable to arrange for the care of the children.
No allegations were made against appellant. But according to the detention report, appellant had been incarcerated for approximately two years and had an expected release date of May 2011. Appellants incarceration stemmed from a domestic violence incident in June of 2007. After an argument with the mother in which she called the police, appellant attacked the responding officers while holding his infant daughter to prevent the officers from restraining him. Officers took the child from him by force; the child was unharmed. At the time, appellant had a felony warrant for a parole violation. The mother told the officers there was a history of domestic violence between her and appellant. The investigation into the incident found substantiated allegations of general neglect against appellant, as well as allegations of emotional abuse by appellant towards the older child "due to [the older childs] behavior of hostility and aggressiveness towards [the mother] that he did not display before [appellant] c[a]me into [the older childs] life." Appellant was previously convicted in January of 2002 of attempting to operate a vehicle without the owners consent, malicious mischief to a vehicle, and battery on a person, and, in March of 2002, of first degree burglary.
Both the mother and appellant were incarcerated and neither was present at the detention hearing February 5, 2010, but counsel for both appeared. The juvenile court detained the children from the mothers custody and the Kern County Department of Human Services (DHS) was ordered to provide reunification services as soon as possible to mother. Supervised visitation was ordered once a month for an hour while mother remained incarcerated.
In a report prepared in anticipation of the jurisdiction hearing, it was noted that the mother admitted she (1) was a methamphetamine user, (2) had a history of using methamphetamine, (3) had two prior convictions for substance abuse, and (4) had never attended any substance abuse counseling.
According to the report, the maternal grandmother had cared for the children at various times in the past while the mother came and went as she pleased. The maternal grandmother was being assessed for placement, but she did not think she was able to care for the children continuously without assistance.
Both the mother and appellant were transported from their places of incarceration for the March 9, 2010, jurisdiction hearing. The juvenile court first addressed the issue of paternity. The biological father of P.F. was unknown but, according to the mother, appellant had raised him from the time he was three or four months old until he was approximately three years old, at which time appellant became incarcerated. Appellant was at the hospital when M.K. was born and signed documents stating he was her father. He helped to raise her until he became incarcerated. The juvenile court made findings that appellant was the presumed father of both children.
The mother and appellant submitted on the allegation of the mothers past and current substance abuse. The other allegation was dismissed. The juvenile court ordered that both parents retained the right to make educational decisions for the children, and ordered supervised monthly visits for both the mother and appellant.
A report prepared by the DHS in anticipation of the disposition hearing recommended that appellant not receive reunification services pursuant to section 361.5, subdivision (e)(1). According to the report, appellant had not had contact with M.K. for the past two years while incarcerated, his release date was not until May of 2011, and he had prior convictions. The DHS recommended that appellant be allowed to make educational decisions for M.K. As for the mother, the report recommended that she receive family reunification services for one year, until March of 2011.
At the time of the disposition hearing on March 25, 2010, M.K. had been placed with the maternal grandmother. She was current with her immunizations and appeared to be well adjusted.
Both parents were transported from their places of incarceration and were present at the disposition hearing. At the hearing, appellant requested placement and family reunification services because he would be released within the 18-month reunification period. Counsel for DHS and the childrens attorney argued against placement and services because appellant had a fairly lengthy criminal record and had not had contact with the children up to that point while incarcerated.
The juvenile court ruled that there was clear and convincing evidence of a substantial danger to the children if not removed from the mothers care. It ordered reunification services and visitation for the mother. The juvenile court also denied appellants request for placement and services, ruling it would not be in the best interest of M.K., and it found there was clear and convincing evidence that M.K. came within the provisions of section 361.5, subdivision (e)(1).
DISCUSSION
Appellant contends the juvenile court prejudicially erred when it denied him placement and reunification services under section 361.5, subdivision (e)(1) instead of considering the issue under section 361.2, subdivision (a). Respondent argues this issue is barred by the doctrine of forfeiture and should not be considered for the first time on appeal. In the alternative, respondent argues there is sufficient evidence to support the courts finding by clear and convincing evidence that granting appellant custody and reunification services would be detrimental to M.K.. A question of law, as here, is not automatically subject to the doctrine of forfeiture (In re V.F. (2007) 157 Cal.App.4th 962, 968), but we agree with respondents latter contention and affirm.
Section 361.5, subdivision (e)(1) states in relevant part: "If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child."
Section 361.2 states in relevant part: "(a) 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."
Under the statutory scheme for dependent children, once a section 300 petition is filed, the juvenile court first determines whether the child is a person described by section 300. If the juvenile court finds the child is such a person, it takes jurisdiction over the child. (§ 300.) The juvenile court then considers whether the child should be declared a dependent. (§§ 358, subd. (a), 360.) If the child is declared a dependent, the juvenile court considers whether he or she will be at substantial risk of harm if left in the custody of the parent. (§ 361.) If there is substantial risk of harm, the juvenile court removes the child from parental custody. (§ 361, subd. (c)(1).)
As directed by section 361.2, subdivision (a), the juvenile court then considers whether the child has a nonoffending, noncustodial parent who wants "custody." (In re Austin P. (2004) 118 Cal.App.4th 1124, 1129.) "Section 361.2 governs placement when the child has a 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. [Citation.] It directs that before the child may be placed in out-of-home care, the juvenile court must first consider placing the child with the noncustodial parent, if that parent requests custody." {In re Adrianna P. (2008) 166 Cal.App.4th 44, 55, italics and fn. omitted; see also R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1270 [§ 361.2 applies to noncustodial parent].) "If [the noncustodial] 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 minor. [Citation.]" (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1821.) The foregoing rules have been held to apply where a noncustodial parent is incarcerated. (In re V.F., supra, 157 Cal.App.4th at p. 971; In re Isayah C. (2004) 118 Cal.App.4th 684, 700 [incarcerated parent may have custody "even while delegating the day-to-day care of that child to a third party for a limited period of time" where parent is able to make appropriate arrangements for childs care during parents incarceration, and such placement is not otherwise detrimental to the child].)
A juvenile courts ruling under section 361.2, subdivision (a) that a child should not be placed with a noncustodial, nonoffending parent requires a finding of detriment by clear and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) Moreover, section 361.2, subdivision (c) requires that the juvenile court make findings, either in writing or orally on the record, as to the basis for its determination under section 361.2, subdivision (a). (In re Isayah C., supra, 118 Cal.App.4th at p. 701.)
Because appellant was incarcerated and M.K. was not residing with him when the events arose that led to the dependency action, he qualifies as a noncustodial parent. (In re Catherine H. (2002) 102 Cal.App.4th 1284, 1289.) Appellant maintains that because he was a noncustodial parent, the juvenile court committed reversible error when it denied him placement and reunification services under section 361.5, subdivision (e)(1), rather than after making findings under section 361.2, subdivision (a). Respondent contends that even though the juvenile court did not specifically state it was making findings under section 361.2, we may imply such findings from the record.
As appellant notes, some appellate courts have refused to imply findings when the juvenile court failed to properly consider section 361.2. In In re Marquis D., supra, 38 Cal.App.4th 1813, the noncustodial father appealed from orders issued at the disposition hearing of a dependency proceeding denying him placement of his six children. Allegations of abuse were filed against the mother. At the time, the father was not living in the home, but had regular contact with the children. (Id. at pp. 1816-1817.) The father argued that the juvenile court erroneously failed to place the children with him pursuant to section 361.2, subdivisions (a) and (b). The department of social services acknowledged on appeal that the juvenile court mistakenly removed custody from the father pursuant to section 361, subdivision (b)(1). Because the father was a noncustodial parent, the department conceded the applicable statute was section 361.2, rather than 361, subdivision (b). The department further conceded there was no express finding of detriment under section 361.2, subdivision (a) and the juvenile court did not articulate the basis for its order denying the father placement. Nevertheless, the department contended such a finding could be implied and supported by substantial evidence. (In re Marquis D., supra, at pp. 1821, 1824.)
But the appellate court in In re Marquis D. disagreed with the department and found no reference to section 361.2, subdivisions (a) and (b) in the departments reports, the hearing transcript, or the juvenile courts order. In fact, the juvenile court removed the children from their "parents" pursuant to section 361, subdivision (b), a section not applicable to the noncustodial father. Further, the appellate court could not determine from the record whether the juvenile court considered the applicable statutory provision or adequately explored whether placing the children with the father would be detrimental to them within the meaning of section 361.2, subdivision (a). (In re Marquis D., supra, 38 Cal.App.4th at pp. 1824-1825.)
Moreover, the appellate court stated that, even if it were to conclude that the juvenile court considered the correct code provision, it was also reluctant to imply a finding of detriment based upon the evidence presented. Although the father allowed the two youngest children to have unsupervised contact with their mother in violation of a court order, the overall record showed that the children did well under their fathers care, and that the father had been generally receptive to services and cooperative with the department of social services in the past. (In re Marquis D., supra, 38 Cal.App.4th at pp. 1825-1827.) The appellate court found "this is certainly not the clear-cut case in which an appellate court may imply such a finding [of detriment]." (Id. at p. 1827.) The appellate court reversed the orders placing the children in the departments custody and remanded the matter for the juvenile court to consider and make proper findings under section 361.2, subdivision (a). (In re Marquis D., supra, at p. 1830.)
Similarly, in In re V.F., supra, 157 Cal.App.4th 962, the court addressed the placement of a dependent child when, as here, the noncustodial parent was incarcerated. After allegations were filed against the mother for drug use and neglect, the juvenile court removed the children from parental custody under section 361, subdivision (c) and denied the father, who was incarcerated at the time, reunification services under section 361.5, subdivisions (b)(12) and (e)(1), but it did not consider whether placement with the noncustodial father would be detrimental to the children under section 361.2, subdivision (a) and applicable case law. The juvenile court removed the children from the custody of both parents "without considering whether the children resided with both parents at the time the petition was initiated." (In re V.F., at p. 969.) The appellate court therefore declined to imply a finding of detriment, reversed the orders at issue, and directed the juvenile court to hold a hearing to consider and make findings under section 361.2, subdivision (a) in writing or on the record. (In re V.F., at pp. 971-974.)
Here, we believe the juvenile court adequately explored whether the minors placement with appellant would be detrimental to her. While the juvenile court did not expressly state it was considering section 361.2, it nonetheless referred to appellant during the hearing as the "noncustodial parent." Trial counsel for the DHS noted that appellant was asking for both placement and services and asked the juvenile court to make a finding that placement with appellant would be detrimental to M.K. because of appellants lengthy criminal record and the fact that he had been incarcerated and not seen M.K. in the past two years. Counsel for the minors reiterated the request that appellant be denied services, noting his "fairly extensive record," the "significant amount of time" he was still in custody, and the fact that he had had no contact with the child. The juvenile court subsequently denied appellants request for placement and services, finding it "would not be in the best interest of the minor to have extended services to the father." "The two standards [best interest and detriment] are basically two sides of the same coin. What is in the best interests of the child is essentially the same as that which is not detrimental to the child." (In re Jacob P. (2007) 157 Cal.App.4th 819, 829.) So, although the court did not specifically reference section 361.2, it did rule on DHSs request that it find placement with appellant would be detrimental.
More importantly, unlike in In re Marquis D. and In re V.F., overwhelming evidence supports the finding that placement of M.K. with appellant would be detrimental to her. (Cf. In re Marquis D., supra, 38 Cal.App.4th at p. 1825 ["[W]here the trial court has failed to make express findings the appellate court generally implies such findings only where the evidence is clear"].) The juvenile court must weigh all relevant factors in determining detriment under section 361.2, subdivision (a). (In re Luke M., supra, 107 Cal.App.4th at pp. 1425-1426.) In doing so, the court has "broad discretion to evaluate not only the childs physical safety but also his or her emotional well-being. In an appropriate case, all that might be required is a finding such a placement would impair the emotional security of the child." (In re C.C. (2009) 172 Cal.App.4th 1481, 1490; see also In re Luke M., supra, at p. 1425 [a detriment finding may be supported by emotional harm to the child, even if the harm is not attributable to parental conduct].) Other relevant factors include the length of the parents incarceration and the parents ability to make appropriate arrangements for the childs care during that time. (In re V.F., supra, 157 Cal.App.4th at p. 966.)
The evidence before the juvenile court was that the minor was very young, age two at the time of appellants incarceration two years earlier, and he had not seen her since. Appellants release date was not until May of 2011. While counsel for appellant made an offer of proof that, if called to testify, appellant would testify that classes were available to him and that he had already completed a parenting class while in custody, he provided no information about how he intended to care for the minor while he completed his incarceration. The record before the juvenile court also included evidence of appellants prior criminal history and allegations of domestic abuse toward the mother and emotional abuse toward the older child.
On this record, we believe the juvenile court fully addressed detriment to the minor within the meaning of section 361.2, and any error in failing to reference that section is harmless.
DISPOSITION
The juvenile courts judgment and orders are affirmed.
DAWSON, J.
WE CONCUR:
CORNELL, Acting P.J.
GOMES, J.