Opinion
F082032
06-09-2021
In re ARIANA G. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. ROBERTO G., Defendant and Appellant.
Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County Nos. 20CEJ300183-3, 20CEJ300183-4. Gary L. Green, Commissioner.
Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Dependency jurisdiction was taken over then eight-year-old Ariana G. and then seven-year-old Christian G. (collectively, “the children”), and they were removed from their mother's custody. The juvenile court denied noncustodial parent Roberto G.'s (father) request for placement, finding the children would suffer detriment if placed with him under Welfare and Institutions Code section 361.2, subdivision (a). Father appeals the dispositional order denying him placement of the children, arguing insufficient evidence supported the court's detriment finding. Finding no error, we affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The Fresno County Department of Social Services (department) filed a petition on behalf of Ariana and Christian, along with their four half siblings, alleging they came within the juvenile court's jurisdiction under section 300, subdivision (b)(1). The petition alleged the children were at risk of suffering physical harm because of mother's history of engaging in domestic violence with her current boyfriend in their presence. The petition further alleged the children were at risk of suffering physical harm because of mother's failure to protect Christian from the boyfriend, as the boyfriend had pulled Christian's ear as a form of discipline causing it to turn red. The petition listed father as the alleged father of Ariana and Christian and indicated his whereabouts were unknown.
At the detention hearing on June 24, 2020, father was not present, but mother testified she was sure he was Ariana and Christian's father. The court ordered the children detained from mother.
The department's jurisdiction/disposition report dated July 24, 2020, indicated that father had not contacted the department to inquire about Ariana or Christian, requested placement, or requested to participate in reunification services, and as such, the department was not recommending Ariana and Christian be placed with him. The report also indicated that two of the children's half siblings and subjects of the dependency proceedings, then 13-year-old A.L. and then 15-year-old M.L. had disclosed they had been sexually abused by father. The department was not recommending reunification services be provided because, at that time, he was an alleged father.
The report listed previous referrals the department had received regarding the family. In 2012, the department received a referral alleging physical abuse and emotional abuse of Ariana by mother and father. It was reported there was a domestic violence incident between mother and father, resulting in father being arrested. This referral was “evaluated out.” In 2013, the department received a referral alleging emotional abuse and physical abuse of Ariana and her siblings by father. It was reported father had forced his way into mother's home, attempted to take her car keys, and hit her while she was holding their three-month-old baby (though he is not named in the referral, it appears this may have been Christian.). Mother and father had been separated since the domestic violence incident in 2012. When mother's 13-year-old daughter attempted to intervene, father pushed her causing her to fall back into a glass door and then to the floor. Mother and her 16-year-old son were able to push father out of the house, and mother called the police. Father was arrested for burglary, infliction of corporal injury onto a spouse/cohabitant, willful cruelty to a child, false imprisonment, and an outstanding bench warrant. The referral was deemed inconclusive.
The social worker spoke with father for the first time in the underlying case in July 2020. Father advised the social worker he lived with his wife and her children and worked full time in construction. He stated he had not visited with the children in approximately one year because mother stopped allowing it. When asked why he did not seek custody of the children, he stated that mother “ ‘is problematic' ” and would call law enforcement if he tried to visit with the children. Father told the social worker he did not have a criminal history.
The social worker spoke with the children about father. Ariana reported to the social worker that she enjoyed spending time with father but had not seen him in one to two years. Christian could not recall the last time he visited with father but would like to. They did not recall how frequently they visited with father, but Ariana stated they would see him on holidays like their birthdays or Christmas, and Christian reported father bought a lot of clothes and toys for them. Both children reported feeling safe with father.
Father was present at the jurisdiction hearing on July 29, 2020, and was appointed counsel. The juvenile court found the children were described by section 300, subdivision (b), and the matter was continued for disposition to resolve parentage issues.
On August 4, 2020, father filed a “Statement Regarding Parentage” (JV-505) indicating he believed he was Ariana's and Christian's father. He indicated that the children lived with him from 2011 to 2014, and he visited them thereafter until May 2019, at which time mother stopped answering his phone calls. Father wrote he wanted custody of the children.
The department discovered father had a criminal history, including a misdemeanor domestic violence conviction from 2006, a misdemeanor false imprisonment conviction from 2012, and a felony domestic violence conviction from 2013. It was reported he was granted probation for the 2013 conviction, but probation was revoked in March 2014, and he was sentenced to two years in prison.
The social worker spoke with father and his wife in September 2020. They advised the social worker they were getting beds for Ariana and Christian; Ariana would share a room with father's wife's daughter, and Christian would share a room with her son. Both father and his wife worked, and their differing schedules allowed for them to both care for the children. When the social worker asked if father had any domestic violence charges, father's wife told the social worker father was arrested once for domestic violence with mother. Father stated his probation for that case ended in March 2014, and he had met all probation requirements. Father denied ever being arrested or charged in 2006.
The department's dispositional recommendation was that Ariana and Christian not be placed with father because of his past domestic violence issues and because A.L. and M.L.'s sexual abuse allegations were currently pending law enforcement and department investigation. It was reported father had “had minimal involvement in [the] children's lives.” The department recommended the court order father to be provided family reunification services, including parenting classes, a mental health assessment and recommended treatment, a substance abuse assessment and recommended treatment, a domestic violence assessment and recommended treatment, and random drug testing.
The department also expressed concerns about father having a substance abuse history, which appeared to be primarily based on a past drug possession conviction, and which father denied. The court later determined this conviction did not relate to father and struck the reference to it in the department's report.
On September 30, 2020, the court elevated father to presumed status and ordered him to have supervised visits with the children. The disposition hearing was continued, so father could have time to evaluate and respond to the department's recommendation.
A contested disposition hearing was held on October 7, 2020, on the issue of placement with father. The department called the social worker, who testified that Ariana told her the day before the hearing she would like to visit with father but did not want to be placed with him until they had visitation first. Ariana was unsure if she had ever met father's wife. The social worker also spoke with M.L. and A.L., who expressed concerns about Ariana and Christian being placed with father. One of the concerns expressed was that the children are English-speaking and father is Spanish-speaking. Christian needed a lot of help with school and there were concerns that the “communication barrier” would affect Christian's education. The social worker acknowledged she was aware that father's wife spoke English. The children's half siblings also expressed concern for the children's safety because of the sexual abuse allegations involving A.L. The social worker had spoken with the detective investigating the allegations the day before the hearing, and he informed her he needed to schedule an interview with the children.
The social worker further testified that the siblings had always lived together, M.L. and A.L. were parental figures to Ariana and Christian, and the children have a close relationship. The social worker stated that Ariana, M.L., and A.L. had expressed they would be sad if they were separated. Christian told the social worker, however, that he wanted to live with father. The social worker confirmed regular sibling visitation would take place if Ariana and Christian were placed with father.
When asked if she thought it was safe for Ariana and Christian to be placed with father, the social worker responded, “I think right now there are a lot of concerns. And Ariana appears skeptical to be placed with him. She wants to work on a relationship first.”
Father testified he visited the children regularly until May 2019 when mother stopped contact with father. When he was in contact with the children, the children would stay with father at his apartment, or they would meet at a fast food restaurant or a park. He did not attempt to have visits or go to family court after mother stopped answering his attempts at communication. Father found out the children had been removed from mother by letter in July 2020; he called the department upon receipt of the letter to ask if he could see the children and was told he would need to appear in court.
Father testified he had space and beds for the children and would ensure that they get to school. He lived with his wife's son and daughter who were close to Ariana and Christian's ages, and he would make sure Ariana and Christian visited with their siblings if they were placed with him. Father was willing to participate in services, cooperate with the social worker, allow the social worker to assess his home, and follow any requirements given to him. He stated he would like to give the children a good education. Father testified he did not speak much English, but the children had spoken Spanish with him in the past. Father stated he understood a little English, and when asked if he would be able to help Christian with schoolwork, father responded he could help with math.
Father's wife testified that she had been married to father since November 2019. She had not met Ariana or Christian but had seen pictures of them. She was supposed to meet them just before mother stopped allowing visits. Father called and texted mother to try to get visits but she did not reply. According to father's wife, father is “really, really a nice father.” He helped around the house and took care of her children when she was at work or appointments. Father helped her children with their schoolwork, and she would be able to assist Ariana and Christian with their schoolwork.
Father's wife further testified she was aware of the sexual abuse allegations made by A.L. and M.L. but did not have any concerns about having father in the house because “he's not like that, ” and the allegations were lies. She asked her children if father “had tried doing something like that” and they stated he had not and said he was a “nice father” to them. If father's wife found out father was inappropriate with Ariana or Christian, she would call the department and the police.
Counsel for the department argued the children should not be placed with father, highlighting that father had not visited with the children for over a year, Ariana did not want to live with father at that time, the children had a strong bond with their half siblings, the language barrier would have a negative effect on Christian's schooling, and the children's safety was at risk in light of the pending sexual abuse allegations. Counsel for the children concurred, based on his conversations with the children and the evidence presented. The children's counsel stated it would be a difficult transition for the children, and that they were bonded with their half siblings. He noted he was surprised the children were “optimistic” about visiting with father. Counsel for mother also expressed agreement with the department's recommendation.
In ruling, the juvenile court found the primary source of detriment was that father had not maintained a relationship with the children. The court pointed out father had not seen the children for about two years and had not given a satisfactory explanation for why he had not sought custody or formal visitation with the children. The court opined that had dependency proceedings not been initiated, father would have been “content not to visit” with the children. The court noted Ariana's statement that she wanted to visit with father before being placed with him. The court also noted it was concerned about the sexual abuse allegations which were still under law enforcement investigation, stating, “[a]though nothing has been proven or established, [the allegations have] piqued the attention of law enforcement, who is not letting go of it.” The court noted the close relationship of the siblings who were at that time placed together, and stated it was concerned about the children being separated. Though there was “no doubt” father could accommodate the children, the court expressed there was a “schooling issue” due to the “language barrier and that is quite concerning.” The court noted father's wife had “no obligation” to assist the children with schoolwork. The court found there did not appear to be a meaningful parent/child relationship between father and the children. Finally, the court noted that the children being placed with father when they had no relationship with his wife did not “promote” their emotional well-being. The court concluded the totality of the evidence supported a finding of detriment, particularly to the children's emotional well-being. The court concluded by saying it foresaw the possibility of future placement with father, “but not at this time.”
The court adjudged the children dependents of the court and removed them from mother's custody. The court ordered father and the children to have supervised visitation at a minimum of one hour per week, giving the department discretion to extend father's visits with court notice and updated discovery. The court further ordered father to be provided with reunification services, including parenting classes, a domestic violence evaluation, and a mental health assessment. Father appealed the court's order denying him placement.
DISCUSSION
Father's sole contention on appeal is that the juvenile court erred by denying his request for placement. We disagree.
In a juvenile dependency case, when a child has been ordered removed from a parent's home, and a previously noncustodial parent requests custody of the child, the court must place the child with the noncustodial 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, subdivision (a).) In addition to this statutory provision, a noncustodial parent also has a “constitutionally protected interest in assuming physical custody.” (In re Isayah C. (2004) 118 Cal.App.4th 684, 697.) The party opposing placement bears the burden to prove the child will suffer detriment by clear and convincing evidence. (In re Liam L. (2015) 240 Cal.App.4th 1068, 1084 (Liam L.)
Section 361.2 “evinces [a] legislative preference for placement with the noncustodial parent when safe for the child.” (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1262 (Patrick S.).) In assessing whether placing a child with his or her noncustodial parent would be “detrimental to [his or her] safety, protection or physical or emotional well-being, ” the juvenile court must “examin[e] … the circumstances of the parent and child” (In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1503, 1506), although “the focus in dependency law [is] on the child, not the parent.” (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425 (Luke M.).) A court's inquiry concerning whether a child should be placed with a noncustodial parent “is more comprehensive than simply whether a child will be physically safe … or whether that parent has behaved badly.” (In re A.C. (2020) 54 Cal.App.5th 38, 46.) Because “[a] detriment evaluation requires that the court weigh all relevant factors to determine if the child will suffer net harm, ” no one factor can be dispositive. (Luke M., supra, 107 Cal.App.4th 1425; see Patrick S., supra, 218 Cal.App.4th at p. 1265.)
Among the factors the juvenile court may consider include any jurisdictional findings against that parent, any criminal history, and any history of substance abuse or mental illness. (See Patrick S., supra, 218 Cal.App.4th at p. 1263; In re Nickolas T., supra, 217 Cal.App.4th at p. 1506.) The juvenile court may also consider several other factors including: the age of the child and any special needs that child may have; the impact of placement on the custodial parent's ability to reunify and on any sibling relationships; the nature of the relationship between the parent and the child; the parent's ability to meet the child's needs; and the child's wishes. (See Patrick S., supra, 218 Cal.App.4th at p. 1265; In re John M. (2006) 141 Cal.App.4th 1564, 1570-1571 (John M.); Luke M., supra, 107 Cal.App.4th at pp. 1425-1427; In re Isayah C., supra, 118 Cal.App.4th at p. 700.)
We review a court's detriment finding under section 361.2, subdivision (a) for substantial evidence, bearing in mind the heightened standard of proof. (Liam L., supra, 240 Cal.App.4th at p. 1087; see Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) “Our role is limited because our review of the juvenile court's detriment finding is deferential.” (In re A.C., supra, 54 Cal.App.5th at p. 43.) “We review the record in the light most favorable to the court's order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that … the children would suffer such detriment.” (Luke M., supra, 107 Cal.App.4th at p. 1426.) “Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt.” (Ibid.) “ ‘We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence.' ” (Liam L., supra, 240 Cal.App.4th at p. 1087.)
Here, the juvenile court found the totality of circumstances-the father's failure to maintain contact with the children for over a year preceding the dependency case, Ariana's wishes, father's pending sexual abuse investigation, the bond between the children and their siblings, the language barrier the court found would interfere with father being able to help Christian with schoolwork, the lack of evidence of a meaningful parent/child relationship, and the lack of a relationship between the children and father's wife-constituted clear and convincing evidence of detriment to the children. We conclude the juvenile court's finding was supported by substantial evidence and are unpersuaded by father's arguments to the contrary.
Father first argues “[t]he lack of an established or consistent relationship with the noncustodial parent does not constitute substantial evidence of detriment, ” comparing the present case to John M., supra, 141 Cal.App.4th 1564 and Patrick S., supra, 218 Cal.App.4th 1254. Both cases are distinguishable.
In John M., the appellate court found that the juvenile court's stated bases of detriment-the child's wishes, his need for services, his relationship with his sister and members of his family, his lack of relationship with the father, the “paucity of information” about the father, and the mother's reunification plan-did not constitute substantial evidence of detriment. (John M., supra, 141 Cal.App.4that p. 1570.) In that case, the father, after four years of no contact with his 13-year-old child, had resumed contact a year prior to the dependency proceeding, and the court found the previous lack of contact was not the father's fault. (Id. at pp. 1570-1571.) In addition, the social worker had no information that the father could not meet the child's special needs (ibid.), the child was not clear about not wanting to live with the father out of state, and there was no evidence the child was strongly attached to his 10-month-old sister. (Id. at p. 1570.)
In Patrick S., the appellate court found the juvenile court's stated bases for detriment-the child's wishes, his anxiety about moving to his father's home, his need for continued therapeutic services, the lack of an established relationship with the father and stepmother, the father's scheduled deployments and plan to homeschool the child, and the lack of available child welfare services in the father's home state-did not constitute substantial evidence of detriment. (Patrick S., supra, 218 Cal.App.4th at p. 1262.) The father in Patrick S., served in the Navy. He had searched for his son for years and when he learned of his whereabouts, immediately came forward and requested placement, attended all significant hearings in the dependency proceedings, visited and contacted his son whenever possible, looked into obtaining recommended services through the Navy and his church, and participated in recommended services. (Id., at p. 1263.) The appellate court found the record left “no doubt that [the father] is a competent, caring and stable parent”; he had no criminal history, no referrals to child welfare services and no indication of substance abuse or mental illness, or any risk factors in his home. (Ibid.)
Unlike both John M. and Patrick S., where the evidence demonstrated a lack of relationship between the parents and children was not the parents' fault, the juvenile court here made a finding that father was responsible for his lack of contact and relationship with the children and further, that father would not be in contact with the children but for the dependency proceedings. This is a significant distinguishing fact, as the court's finding that father was responsible for the lack of relationship with his children is relevant to his general commitment to the children's wants and needs, and in turn to their physical and emotional well-being in his care.
Moreover, unlike in John M., Ariana expressed a clear desire not to be placed with father until reestablishing a relationship with him and had a strong bond with M.L. and A.L. We disagree with father's argument that the relationship between Ariana and Christian and M.L. and A.L. was not strong enough to justify the court's finding of detriment. Father compares the present case to Luke M., supra, 107 Cal.App.4th 1412, where the appellate court affirmed a juvenile court's finding of detriment based on the bond between the children and their siblings. Father points out that in Luke M. the children were described as “extremely connected” to their siblings and the court found them to be “much closer than in normal sibling relationships” and that separation “would have a devastating emotional impact” on them. (Id., at pp. 1426-1427.) While we acknowledge the sibling relationship in the present case was not defined in as extreme terms as in Luke M., there was evidence that M.L. and A.L. occupied what was described as a parental role in Ariana and Christian's lives and that Ariana in particular would be sad to be separated from them. This was a permissible factor to consider. (Id., at pp. 1422-1423.) While the evidence of detriment resulting from separation of the siblings here may not be as strong as in Luke M., unlike in Luke M., where the primary source of detriment was the separation of the siblings, the juvenile court here relied on several other factors which compounded the detriment.
Father's argument the issue of the “ ‘language barrier' ” between father and the children was “purely speculative and unsupported by the evidence” is without merit. There was testimony that Christian needed extra help with schoolwork, and father testified he could only help Christian with math as he spoke only a little English. The juvenile court could reasonably conclude father could not meet a special need of Christian's, which is a permissible factor to consider and further distinguishes the present case from John M., where there was no evidence the father could not meet that child's special needs. The juvenile court here was not required to accept, and it clearly did not, father's wife's representation she would help the children with their schoolwork. We defer to the juvenile court's credibility and factual findings. (Luke M., supra, 107 Cal.App.4th 1412, 1427.)
Finally, unlike the father in Patrick S., whom the appellate court emphasized had no prior child welfare referrals or criminal history, father here had been subject to past child welfare referrals, including one alleging sexual abuse of the children's half siblings still pending at the time of the disposition hearing, and had a criminal history of domestic violence. While we recognize, as father points out, that the sexual abuse allegations against father by the children's half siblings had not been litigated or proven, the existence of the pending referral and law enforcement investigation supported, as one of many factors, the children were at risk of suffering detriment. In addition, father had suffered two domestic violence convictions from 2006 and 2013 (as well as a department referral alleging domestic violence in 2012). According to father's criminal history, which was not objected to by counsel, father had a probation violation in 2014 and prison sentence for the 2013 conviction, but the information he gave the social worker was inconsistent with this, as he initially stated he had no criminal history and later stated he was only arrested once and successfully completed his probation. Though there is no evidence of documented domestic violence incidents since father's 2013 conviction, father's history indicates long periods of time can pass between documented incidents. As there was no evidence father had participated in any domestic violence services and appeared to be dishonest about his domestic violence history, a reasonable inference could be made that father has an unresolved issue with domestic violence, which put the children at further risk to their physical and emotional well-being.
For these reasons, we conclude John M. and Patrick S. are inapposite and reject father's additional arguments. We appreciate father's suggestion that perhaps each factor viewed independently may not each by itself constitute clear and convincing evidence supporting a detriment finding, but the juvenile court does not view each factor in a vacuum in making a detriment finding; rather, it is to weigh all relevant factors to determine whether the children will suffer net harm. We conclude the juvenile court's finding placement with the father would be detrimental to the children was supported by substantial evidence bearing in mind the clear and convincing standard of proof and find no error.
DISPOSITION
The juvenile court's October 7, 2020 dispositional order denying father's request for placement of the children is affirmed.
[*] Before Franson, Acting P.J., Peña, J. and DeSantos, J.