Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD227751
ROBIE, J.
M. B. (appellant), the father of J. A. (the minor), appeals from orders of the juvenile court adjudging the minor a dependent child and removing the minor from parental custody. (Welf. & Inst. Code, §§ 360, subd. (d), 395.)
All further section references are to the Welfare and Institutions Code.
Appellant contends there was no substantial evidence that placement of the minor with appellant would be detrimental to the minor. Disagreeing with that contention, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 25, 2008, Sacramento County Department of Health and Human Services (the department) filed an original juvenile dependency petition pursuant to section 300 on behalf of the five-year-old minor. That petition alleged the mother of the minor had a substance abuse problem. The petition named appellant as the “alleged” father.
On June 27, 2008, appellant contacted the department and advised a social worker that he was the biological father of the minor. Appellant also told the social worker that he was interested in obtaining custody of the minor, with whom he had regular contact by telephone. Thereafter, appellant stated he had been the minor’s primary care provider until she was approximately 18 months old. Appellant again expressed an interest in having the minor placed with him.
Appellant lives in Missouri. Admitting past use of alcohol and marijuana, appellant denied any current use of alcohol or illegal drugs. According to appellant, he had an alcohol-related conviction in 1996. Appellant also denied any other criminal history, although he had been on probation for five years for the alcohol-related conviction.
The minor was placed in a confidential foster home, where she was doing well. She told the social worker she wanted to return to the custody of a nonrelated extended family member, with whom she had lived for much of her life. The minor also stated she wanted to visit appellant, with whom she spoke with regularly on the telephone, and that she missed and loved him. The department recommended visitation between appellant and the minor and possibly placement of the minor with appellant, depending on the results of an interstate compact for placement of children (compact) study.
The nonrelated extended family member told the department that appellant maintained contact with the minor and had been “more supportive” than the minor’s mother. That caregiver also stated she and the minor planned to visit appellant. According to the minor’s former caregiver, appellant had purchased gifts for the minor.
In its November 2008 report, the department concluded that placement of the minor with appellant “at this time” would be detrimental to the minor. Accordingly, the department recommended that the juvenile court not consider placement of the minor with appellant until it had obtained additional information about him. The report also noted that appellant now acknowledged he had suffered three alcohol-related convictions, with the last one in 1997 and had been on probation. When asked why he had not been more forthcoming about his past, appellant “stated he did not think it was a big deal because it was a long time ago.”
The social worker visited appellant’s Missouri home. It appeared to be adequate in most respects. The social worker also spoke with the minor’s former caregiver, the minor’s maternal great-grandmother, and with the mother of the minor. All three persons expressed concern about the possibility of appellant assuming custody of the minor. According to the former caregiver, appellant had told her that he had been arrested for marijuana possession early in 2008 and as a result had lost his job. The great-grandmother reported that appellant “had many convictions for DUI’s and [had been] on probation.” She stated she knew appellant had been in prison. The great-grandmother also claimed appellant had lost “many jobs due to substance abuse,” once had left the minor without heat in below zero degree weather, and that appellant had been arrested on drug charges recently.
The mother of the minor told the social worker that appellant had been to prison and was on probation in the past due to “DUI’s and drug use.” She claimed appellant had used many illegal drugs, including pills, marijuana, and methamphetamine. The mother also claimed appellant left the minor in their home for three days without heat in below zero degree weather.
At first, appellant denied any arrest for marijuana possession. Thereafter, appellant acknowledged an arrest but stated the charge was dropped. Appellant also denied illegal drug use with the minor’s mother and denied using methamphetamine. Finally, appellant claimed he was not fired from employment for illegal drug use.
The juvenile court ordered the department to conduct a compact evaluation of appellant. The court also permitted contact between appellant and the minor by telephone and correspondence. Thereafter, the court granted the department discretion to arrange visitation between the minor and appellant in Missouri.
At the December 23, 2008, combined jurisdiction and disposition hearing, appellant continued to request placement of the minor in his custody. The juvenile court sustained the petition as amended and adjudged the minor a dependent child. The court also ordered the removal of the minor from parental custody and granted appellant regular visitation with the minor.
DISCUSSION
Asserting there was no substantial evidence that the minor would suffer detriment if placed with him, appellant contends the juvenile court erred in failing to place the minor in his custody. According to appellant, instead of deciding on the placement issue as requested by appellant, the court erroneously waited for completion of the compact study. Moreover, appellant asserts the juvenile court also failed to make a finding of detriment if the minor were placed with appellant and failed to state any reasons for such a finding as required by section 361.2. Finally, appellant claims even if the court had complied with the statute, reversal is required as there is insufficient evidence to support any finding of detriment.
Section 361.2 establishes the procedures a juvenile court must follow for placing a dependent child following removal from the custodial parent pursuant to section 361. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1820.) When a court orders removal of a minor under section 361, the court first determines whether there is a parent who wants to assume custody who was not residing with the minor at the time the events that brought the minor within the provisions of section 300 occurred. (§ 361.2, subd. (a).) “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.” (§ 361.2, subd. (a), italics added.) The juvenile court must make the detriment finding by clear and convincing evidence. (In re Isayah C. (2004) 118 Cal.App.4th 684, 700.)
“[A] nonoffending parent has a constitutionally protected interest in assuming physical custody, as well as a statutory right to do so, in the absence of clear and convincing evidence that the parent’s choices will be ‘detrimental to the safety, protection, or physical or emotional well-being of the child.’ [Citations.]” (In re Isayah C., supra, 118 Cal.App.4th at p. 697.) It is not the nonoffending parent’s burden to show that he or she is capable of caring for the child. Rather, it is the party opposing placement who has the burden to show by clear and convincing evidence that the child will be harmed if the nonoffending parent is given custody.
In reviewing appellant’s claim, we use the familiar substantial evidence rule. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence -- that is, evidence which is reasonable, credible and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Here, contrary to appellant’s assertion that the juvenile court “waited” for the compact determination from Missouri, the record reflects the court ordered the minor committed to the department’s custody for “suitable placement,” impliedly out of parental custody. Accordingly, we reject appellant’s claim that the court erred by delaying its placement decision due to the absence of the compact evaluation.
Appellant also argues the juvenile court violated section 361.2 by failing both to make a finding of detriment and to state reasons for any such finding. Moreover, appellant argues a detriment finding should not be implied.
This matter is not so clear. It is true that the minute order of the hearing contains a finding, with the box next to it checked, that placement with appellant “would be detrimental to... [the minor].” Although the juvenile court did not expressly adopt that finding at the hearing, it did adopt similar findings pertaining to another minor not involved in this appeal. Moreover, the minute order makes clear that all of the attached findings and orders are “incorporated herein and made a part of this minute order.”
Subdivision (c) of section 361.2 requires the juvenile court to “make a finding either in writing or on the record of the basis for its determination....” Although the record does not contain a finding of the basis for its decision, the court did state expressly that it read and considered the social worker’s report, and based its rulings on information contained in that report. The issue is whether we can imply the required finding. (In re Marquis D., supra, 38 Cal.App.4th at p. 1825.)
The department argues substantial evidence supports an implied finding of detriment. We agree. Such a finding should be implied only where the evidence is clear or ample. (In re Marquis D., supra, 38 Cal.App.4th at p. 1825.) The evidence in this case, contained in social worker’s reports, plainly supports the requisite finding.
Here, as the record reflects, other than for a short time period in the summer of 2006, appellant had not had the minor in his custody since she was 18 months old. A nonrelated extended family member had cared for the minor for the majority of her life. Moreover, the minor was living with a sibling, with whom she was strongly bonded.
Appellant told the social worker that he was comfortable with the minor’s former caregiver having custody of the minor “because he knew [the minor] was loved, happy, and well taken care of.” Appellant also stated that, although he was willing to participate in services, “he did not think he needed any services at this time.” Yet it was the former caregiver who expressed concern about the possible placement of the minor with appellant, at least in part because appellant allegedly told her that he had evaded responsibility for a recent marijuana possession charge “by blaming it on other people.” Appellant later acknowledged he had been arrested, but claimed the charge was dropped.
The incident in which appellant was alleged to have left the minor in below zero degree weather was reported by two persons. One of those reporters was the minor’s maternal great-grandmother, who also stated her belief that appellant loved the minor, and that she had heard appellant was making an effort to “‘get his life together.’” Of course, the juvenile court is entitled to weigh the evidence and determine matters of credibility. (§ 358; In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
Here is what the social worker stated in part about appellant: “[Appellant] admitted he had three DUI’s, with the last one being in 1997, and he stated he completed a 120 day inpatient treatment program and has not used since that time. [Appellant] admitted he was on probation at that time as well. Lastly, [appellant] admitted one of his nephews,... went to prison but stated it was for stealing, not for child molestation. He admitted [the nephew] lived with him for a number of years but denied [the nephew] lived with him while the mother or the [minor] was living with him. [¶] The undersigned asked [appellant] why he was not honest about his background when the undersigned... asked him. He stated he did not think it was a big deal because it was a long time ago. The undersigned stated he was specifically asked about his probation and criminal background and he did not admit to any issues and reminded him this was dishonest. [Appellant] stated he understood the undersigned’s position. [¶]... [¶] As to placement with [appellant], the undersigned has not received [appellant]’s criminal background, has received numerous reports about [appellant]’s drug and alcohol use and criminal activity, and has admissions from [appellant] about his criminal background. The undersigned has concerns due to [appellant]’s lack of honesty and the undersigned’s inability to verify the allegations about drug abuse. The undersigned assessed it would be detrimental to the [minor] to place her with [appellant] at this time.”
On appeal, we review findings by the juvenile court, whether implied or express, in the light most favorable to the custody order to determine if substantial evidence supports them. (In re Marquis D., supra, 38 Cal.App.4th at p. 1825.) Here, the juvenile court impliedly found that appellant largely left the care of the minor to others and failed to take full responsibility for his criminal background. There also was evidence of neglect of the minor by appellant. From an examination of appellant’s background, it was reasonable to conclude that appellant’s behavior displayed such irresponsibility that it rendered the prospect of placement of the minor with appellant detrimental to the minor.
For the reasons stated above, ample substantial evidence supported an implied finding by the juvenile court that placing the minor with appellant would be detrimental to the minor, at least as of the time of the hearing in this case.
Appellant has an opportunity to attempt to build a stronger relationship with the minor. The record reflects that in the past they had regular contact with each other. Moreover, although it is unknown whether appellant paid for the minor’s financial support, the record shows he did give her gifts. Perhaps appellant will be able to visit the minor in the future.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: BLEASE, Acting P. J., CANTIL-SAKAUYE, J.