Opinion
E070397
07-12-2018
K.M., Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest.
Dawn Shipley for Petitioner. No appearance for Respondent. Gregory P. Priamos, County, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1800106) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Matthew C. Perantoni, Judge. Petition denied. Dawn Shipley for Petitioner. No appearance for Respondent. Gregory P. Priamos, County, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Real Party in Interest.
I
INTRODUCTION
Petitioner K.M. (Father) fatally stabbed L.W. (Mother) in the presence of his then 10-month-old son K.H. (the child) and the child's then five-year-old half sister A.W. Following a contested jurisdictional/dispositional hearing, the juvenile court found true the allegations in the Welfare and Institutions Code section 300 petition, and removed the child from Father's care. The court also denied Father services pursuant to section 361.5, and set a section 366.26 hearing. Father has filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court's jurisdictional and dispositional findings as to his child. Father argues that there was insufficient evidence to support the juvenile court's true findings as to the section 300, subdivisions (g) and (b) allegations, as well as, the dispositional finding removing the child from his care. Father has also requested a temporary stay of the section 366.26 hearing. For the reasons explained below, we deny the petition. We also deny the request for a stay and affirm the judgment.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
The child's half sister, A.W., is not a party to this appeal.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the Riverside County Department of Public Social Services (DPSS) on February 9, 2018, when a referral was received alleging caretaker absence and general neglect due to domestic violence. The reporting party stated that Father was arrested, and Mother was deceased after having been fatally stabbed. Father was the suspect in the homicide of Mother. The child and his half sister A.W. witnessed the entire incident. The children were left unsupervised at the residence at the scene of the incident.
A social worker responded to the residence and retrieved the children. At that time, the social worker had no known relative information. While A.W. sat with the social worker coloring, A.W. spontaneously recounted the events from " 'last night.' " She stated that " 'Something bad happened. Daddy was beating up Mommy. He punched her and then there was blood everywhere. I wanted to talk to him and tell him to stop, but I was scared. I didn't want to step in all the blood. Then he kicked her. That was bad. Mommy ran out the door and said, "I'm dying." Then the police came and took Daddy. They put Mommy in the ambulance to fix her and wipe all the blood off.' " A.W. had also witnessed another documented domestic violence incident between Mother and Father. In 2016, documentation stated that A.W. was " 'yelling for the two to stop fighting.' "
Father was incarcerated and held on one million dollars bail. He faced murder charges in the death of Mother. Following law enforcement approval, the social worker spoke with Father. In pertinent part, Father related several prior incidents of domestic violence between himself and Mother, and admitted that there were other incidents of physical violence between them. Father explained that Mother had stabbed him several times in the past and that she had gone to jail for doing so. Father also admitted to using cocaine with Mother, but ultimately urged her to stop. He also stated that Mother drank excessively and admitted to drinking one or two cans of alcohol. Father later disclosed that he used to heavily drink alcohol as a way to self-medicate, but he stopped in 2014. He also reported that he had experimented with several drugs and smoked marijuana. When asked regarding any relative caretakers, Father stated he wanted his mother and grandmother to care for his child, and he provided their names and phone numbers. Following an emergency relative assessment, on February 10, 2018, the child was placed in the care of the paternal grandmother.
On February 13, 2018, a petition was filed on behalf of the child pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). A first amended petition was filed on February 14, 2018, adding the child's half sister, A.W. As to Father, the petition alleged the following: (1) On February 9, 2018, Father and Mother engaged in acts of domestic violence while in the presence of the children, resulting in Mother sustaining fatal stab wounds and Father being charged in Mother's murder (b-1); (2) Father abused controlled substances to include, but not limited to, cocaine and alcohol (b-2); (3) Father was arrested in the state of Nevada for engaging in acts of domestic violence in June 2016 (b-3); and (4) Father was currently incarcerated and unavailable to provide the child with care and support (g-1).
The detention hearing was held on February 15, 2018. At that time, the juvenile court formally detained the children. Father was found to be the child's presumed father.
In a jurisdictional/dispositional report dated March 19, 2018, the social worker noted that there were concerns for the child's mental and emotional status. The paternal grandmother reported that the child often cried when she was out of his sight. The babysitter stated that the child cried constantly throughout the day and that she had never seen a baby cry like him before. The babysitter described the child as having been startled often as if he was displaying signs of trauma. The babysitter also noted that she felt the child had poor attachment and did not bond well during the first 10 months of his life. About a month later, however, the daycare provider reported that the child was doing a lot better and did not cry as much.
The contested jurisdictional hearing was held on April 12, 2018. At that time, the juvenile court found true the allegations in the first amended petition. The children were declared dependents of the court and a dispositional hearing was set.
At the April 24, 2018 dispositional hearing, the juvenile court removed the child from Father's care. The court also denied Father reunification services pursuant to section 361.5 and set a section 366.26 hearing.
On April 26, 2018, Father filed a notice of intent to file a writ petition.
III
DISCUSSION
A. Jurisdictional Findings
On appeal, Father challenges the sufficiency of evidence supporting the juvenile court's jurisdictional findings under section 300, subdivisions (b) and (g).
We review a juvenile court's jurisdictional findings for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) Substantial evidence is "evidence that is reasonable, credible and of solid value." (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.) Under this standard of review, we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the juvenile court on issues of credibility of the evidence and witnesses. (In re A.J. (2011) 197 Cal.App.4th 1095, 1103.) We determine only whether there is any substantial evidence, contradicted or uncontradicted, that supports the juvenile court's order, resolving all conflicts in support of its determination and drawing all reasonable inferences to uphold its ruling. (In re John M. (2012) 212 Cal.App.4th 1117, 1124.) If there is substantial evidence to support the juvenile court's order, we must uphold the order even if other evidence supports a contrary conclusion. (In re N.M. (2011) 197 Cal.App.4th 159, 168 (N.M.).)
"The purpose of the California dependency system is to protect children from harm and preserve families when safe for the child. (§ 300.2.)" (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The focus of the system is on the child, not the parents. "[T]he purpose of the provisions of this chapter relating to dependent children is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.)
Section 300, in pertinent part, provides that a child may be declared a dependent under subdivisions (b) and (g) if: "(b) [¶] (1) [t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left;" and "(g) the child's parent has been incarcerated or institutionalized and cannot arrange for the care of the child."
1. Section 300, subdivision (g) allegation
The juvenile court found true the section 300, subdivision (g) allegation as to the child. The allegation specifically stated that Father "is currently incarcerated and unavailable to provide the child . . . with care and support." The provision requires proof of only those two elements. No additional proof of risk of harm or inadequacy of a prior custodian is necessary as the risk to the minor is apparent by the existence of the two elements. Here, there is no dispute that Father was incarcerated. Relying on In re S.D. (2002) 99 Cal.App.4th 1068 (S.D.), Father argues that the evidence does not support a true finding under section 300, subdivision (g), because he had made arrangements for the child's care.
In S.D., the parents left their two-year-old son with a relative in their hotel room while they went out to dinner. The innkeeper realized that the parents were using a stolen credit card and called the police. The police arrested the relative and took the child into protective custody after discovering that the relative had an outstanding arrest warrant. The mother was arrested the next day. The social services agency filed a dependency petition alleging the mother was incarcerated and neither parent was available to care for the child, but there was no allegation or any evidence that the mother was unable to arrange for the child's care during her incarceration. In fact, the mother had several options for her child's care. (S.D., supra, 99 Cal.App.4th at pp. 1071-1072.) The child was briefly placed with a maternal aunt after the detention hearing and again after the 12-month review hearing. (Id. at pp. 1072-1073, 1075-1076.) The juvenile court exercised its jurisdiction solely on the section 300, subdivision (g) allegation. (S.D., at p. 1074.)
The Court of Appeal concluded that the agency failed to properly plead and prove the section 300, subdivision (g) allegation and reversed the juvenile court's judgment. (S.D., supra, 99 Cal.App.4th at pp. 1083-1084.) In doing so, the court set forth principles underlying the statute that directly bear on this case. First, it held that if at the time of the jurisdictional hearing, the parent could arrange for the child's care during the period of incarceration, the juvenile court had no basis to take jurisdiction under subdivision (g) of section 300. (Id. at pp. 1077-1078.) Further, even if the agency and not the parent made the specific arrangements, "the obvious inference is that it was through [the parent's] contacts, and not pure chance, that [the agency] was able to get in touch with that [care provider]." (Id. at p. 1078.) "Nothing in section 300, subdivision (g)," the court stated, "requires an incarcerated parent . . . to prove affirmatively the suitability of her [or his] caretaking arrangements." (Id. at p. 1079; see In re Aaron S. (1991) 228 Cal.App.3d 202, 212 (Aaron S.) [there was no showing that the incarcerated parent was unable to arrange for care of the child].)
Here, although there were no known relatives to take custody of the child at the time Father was arrested on February 9, 2018, for fatally stabbing Mother, the record is clear that Father had arranged for the child's care during his incarceration at the time of the jurisdictional hearing. When the social worker spoke with Father following his arrest on February 9, 2018, Father reported that he wanted the paternal grandmother and the paternal great-grandmother to care for his child. Following an emergency relative assessment, the child was placed with the paternal grandmother on February 10, 2018. There is no dispute that the paternal grandmother was an appropriate and suitable caretaker for the child. DPSS notes that Father never gave the paternal grandmother legal custody of the child and that it was only after DPSS had custody of the child that Father had provided information about the paternal grandmother. Nevertheless, at the time of the jurisdictional hearing, Father had arranged for the child's care with DPSS approval. That DPSS had to step in to place the child with the paternal grandmother does not mean that Father was unable to arrange for the child's care. On the day of his arrest, Father informed the social worker of his desire to place the child with the paternal grandmother and provided the social worker with the paternal grandmother's contact information. On such evidence, the juvenile court could not find that Father was unable to arrange care for the child.
However, even if there were insufficient evidence to support the juvenile court's true finding as to the section 300, subdivision (g) allegation, jurisdiction in this case was nonetheless proper. In this regard, S.D. and Aaron S. are distinguishable from the dependency before us so as to render those opinions inapplicable here. In each case, the section 300, subdivision (g) allegation was the only jurisdictional ground which the juvenile court sustained. (S.D., supra, 99 Cal.App.4th at p. 1074; Aaron S., supra, 228 Cal.App.3d at p. 207.) Here, the juvenile court also found true allegations of Father's neglect under section 300, subdivision (b). The rule as first advanced in Aaron S. does not extend to incarcerated parents who have been the subject of a true finding on any jurisdictional ground other than section 300, subdivision (g). (In re A.A. (2012) 203 Cal.App.4th 597, 607 (A.A.).) Because the court exercised its dependency jurisdiction over the child based on Father's neglect under section 300, subdivision (b), we conclude there is no merit to Father's claim that the child's dependency was not necessary.
Relying on In re Isayah C. (2004) 118 Cal.App.4th 684 (Isayah C.), Father asserts that this court "must treat the [section] 300[, subdivision] (b)(1) allegation as it would a [section] 300[, subdivision] (g) allegation, as they are analogous in this petition." We find Isayah C. inapposite. There, the reviewing court held that a parent who has not been found unfit to care for his child "generally enjoys the right to make reasonable decisions about where and with whom the child will reside." (Id. at p. 697.) There, unlike here, "no allegations under section 300 were ever established as to [the father]." (Id. at p. 695.) While the father was incarcerated at the time of detention, he was nonetheless a " 'non[-]offending' " custodial parent under California law. (Id. at p. 691-692.) Thus, there was no legal basis for removing the child from the father's custody and rejecting out of hand the father's request that the child be placed during his incarceration with his niece and nephew. Thus, because the lower court failed to make the requisite findings under section 361, subdivision (c), and section 361.2, subdivision (a), the dispositional order was reversed and the matter remanded for further proceedings. (Id. at pp. 696, 700-701 [noting " '[t]here is no "Go to jail, lose your child" rule in California. [Citation.]' "].)
We note Father incorrectly cites Isayah C. as "118 Cal.App.4th 198."
Clearly, the circumstances of this case differ from those in Isayah C., given that, here, the juvenile court sustained jurisdictional findings as to Father. As such, he is not, like the father in Isayah C., a non-offending custodial parent whose child is subject to removal only upon findings, by clear and convincing evidence, pursuant to section 361, subdivision (c). (Cf. Isayah C., supra, 118 Cal.App.4th at p. 697 ["[W]here no statutorily defined harm to the minor is proved, the need to establish dependency has not been shown merely because the custodial parent relies on the temporary custodial assistance of suitable third parties"]; Maggie S. v. Superior Court (2013) 220 Cal.App.4th 662, 672- 673 [reversing an order sustaining jurisdictional findings where there was no evidence indicating the child was exposed to a substantial risk of serious physical harm or illness (§ 300, subd. (b)) and where the finding that the mother could not arrange for her child's care in her absence was based upon "incomplete information" (§ 300, subd. (g))].) The Isayah C. court did not, as Father asserts, conclude that if the incarcerated parent has the ability to make suitable arrangements for the child then the juvenile court has no basis on which to take jurisdiction. Father incorrectly suggests that the Isayah C. court had addressed a section 300, subdivision (b) allegation that had been sustained by the juvenile court. In Isayah C., there was no section 300, subdivision (b) count as to the father. (Isayah C., at p. 691.) The only allegations in Isayah C. as to the father that were pleaded in the amended petition were under section 300, subdivision (g), which were dismissed. (Ibid.) As stated above, the father in Isayah C., unlike Father in the instant matter, was a non-offending parent. Accordingly, we reject Father's authority as a basis for vacating the juvenile court's findings against him.
In addition, Father's claim that this court must treat the section 300, subdivision (b) allegation as it would a section 300, subdivision (g) allegation because they are analogous is meritless. Contrary to Father's claim, the section 300, subdivision (b), and the section 300, subdivision (g) allegations are not analogous. The section 300, subdivision (g) allegation stated that Father was incarcerated and unavailable to provide for the child's care and support. The section 300, subdivision (b) allegation stated that Father and Mother had engaged in acts of domestic violence in the children's presence resulting in Mother sustaining fatal stab wounds and Father being arrested and charged with Mother's murder (b-1). The remaining section 300, subdivision (b) allegations alleged that Father abused controlled substances and alcohol (b-2) and that Father was arrested in June 2016 for engaging in acts of domestic violence (b-3). The section 300, subdivisions (g) and (b) allegations are not the same.
Based on the foregoing, even if there were insufficient evidence to support the juvenile court's true finding as to the section 300, subdivision (g) allegation, for the reasons explained below, jurisdiction would still be proper based on the true findings as to the section 300, subdivision (b) allegations.
2. Section 300, subdivision (b) allegations
Father argues that there was insufficient evidence to support the juvenile court's true finding as to the "remaining" section 300, subdivision (b) allegations (the b-2 and b-3 allegations), because there was no evidence of current substance abuse or alcohol or a "nexus as to how the incidents of domestic violence are father's fault."
Three elements must exist for a jurisdictional finding under section 300, subdivision (b): (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) serious physical harm or illness to the minor, or a substantial risk of such harm or illness. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The third element requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future. (In re David M. (2005) 134 Cal.App.4th 822, 829; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.) Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness. (David M., at p. 829.) "Although section 300 generally requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child [citation]. The court may consider past events in deciding whether a child currently needs the court's protection. [Citation.] A parent's ' "[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.' [Citations.]" (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383-1384.)
In this case, initially we note Father does not argue that there was insufficient evidence to support the true finding as to the b-1 allegation that Father and Mother had engaged in acts of domestic violence in the presence of the children on February 9, 2018, resulting in Mother sustaining fatal stab wounds and Father being arrested and charged for Mother's murder. Because Father fails to argue that substantial evidence does not support the juvenile court's true finding as to the b-1 allegation, Father fails to show the juvenile court's jurisdictional order should be reversed. "As long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate. [Citations.]" (In re Ashley B. (2011) 202 Cal.App.4th 968, 979.)
In any event, substantial evidence supports the juvenile court's true finding as to the b-2 allegation that Father abused controlled substances. Father admitted he used cocaine with Mother and drank one or two cans of alcohol. Father also disclosed that he used to heavily drink alcohol as a way to self-medicate, but he stopped in 2014. He further reported that he had experimented with several drugs and smoked marijuana. Moreover, the child was still under three years of age, which means he is a child of tender years, and thus risk to him is rebuttably presumed. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219 (Christopher R.) [children six years old or younger are considered children of " 'tender years' " and " 'the finding of substance abuse is prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of harm.' "].) Substantial evidence supports the juvenile court's finding that the child was at substantial risk of serious physical harm due to Father's drug use.
Father argues that he was not engaged in substance abuse as defined in In re Drake M. (2012) 211 Cal.App.4th 754 (Drake M.). We reject Father's Drake M. argument. Drake M. holds that a parent engages in "substance abuse" only if (1) a medical professional has diagnosed the parent as having a current substance abuse problem, or (2) the parent's substance abuse meets the definition of a substance abuse problem as defined by the Diagnostic and Statistical Manual of Mental Disorders (DSM). (Drake M., at p. 766.) We join several other courts in declining to follow Drake M. to the extent it purports to require such a showing in all cases. (In re Rebecca C. (2014) 228 Cal.App.4th 720, 726; Christopher R., supra, 225 Cal.App.4th at p. 1218 [Drake M. does not provide "a comprehensive, exclusive definition mandated by either the Legislature or the Supreme Court . . ."].) Even if we were to follow Drake M., the DSM defines " 'substance abuse' " to include drug use resulting in interpersonal problems (such as physical fights) or in a failure to fulfill major role obligations (such as neglect of the household). (In re Natalie A. (2015) 243 Cal.App.4th 178, 185.) In this case, the parents' history of domestic violence in the presence of the children constitute interpersonal problems.
Substantial evidence also supports the juvenile court's true finding as to the b-3 allegation that in June 2016, Father was arrested in the state of Nevada for engaging in domestic violence. Father was arrested for a domestic dispute in June 2016 in Nevada. Domestic violence was an ongoing occurrence between the parents. Father informed the social worker that there were several prior incidents of domestic violence between himself and Mother. Father stated that Mother had stabbed him several times in the past and had gone to jail for doing so. Moreover, the current dependency was the result of a domestic violence incident between Mother and Father, resulting in Father fatally stabbing Mother and being arrested and charged for Mother's murder.
Father appears to suggest that the domestic violence allegation cannot be found true because there was "no nexus as to how the incidents of domestic violence [were] [F]ather's fault." However, a finding of fault is not required to sustain a section 300, subdivision (b) allegation based on domestic violence. In fact, a number of courts have upheld jurisdictional findings under section 300, subdivision (b), where there was evidence that the children were exposed to domestic violence and evidence supporting an "ongoing concern" about the children's exposure to domestic violence. (In re E.B. (2010) 184 Cal.App.4th 568, 576; see In re T.V. (2013) 217 Cal.App.4th 126, 134-135; In re R.C. (2012) 210 Cal.App.4th 930, 942.) "[D]omestic violence in the same household where children are living is neglect; it is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk." (In re Heather A. (1996) 52 Cal.App.4th 183, 194, no italics, disapproved on other grounds in In re R.T. (2017) 3 Cal.5th 622, 628.) Children can be "put in a position of physical danger from [spousal] violence" because, "for example, they could wander into the room where it was occurring and be accidentally hit by a thrown object, by a fist, arm, foot or leg . . . ." (Heather A., at p. 194; see In re Daisy H. (2011) 192 Cal.App.4th 713, 717. Moreover, " '[b]oth common sense and expert opinion indicate spousal abuse is detrimental to children.' [Citations.]" (E.B., at p. 576; accord, R.C., at p. 941-942.) Domestic violence impacts children even if they are not the ones being physically abused, "because they see and hear the violence and the screaming." (Heather A., at p. 192.)
Here, there is no dispute that the parents engaged in acts of domestic violence in the presence of the children. Furthermore, it appears the child was suffering from emotional trauma due to the parents' domestic violence and neglect. Once the child was placed into the paternal grandmother's care, concern was expressed for his mental and emotional status. The babysitter reported that the child cried constantly, and she had never seen a baby cry like him before. The babysitter also described the child as often being easily startled, thus displaying signs of trauma.
Based on the foregoing, we find substantial evidence supports the juvenile court's determination that the child was at substantial risk of serious physical harm pursuant to section 300, subdivision (b).
B. Dispositional Findings
Father also challenges the juvenile court's dispositional order removing the child from his custody. Father claims that there was no legal basis to remove the child from his custody pursuant to section 361, subdivision (c), because he had arranged for his child's care with the paternal grandmother during his incarceration. Father believes that the juvenile court should have allowed him to make permanent arrangements for the paternal grandmother to care for his child while he was incarcerated in state prison without removing the child from his custody.
Section 361, subdivision (c), permits the removal of a child from the physical custody of a parent with whom the child was residing when the dependency petition was filed if the juvenile court finds by clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being" of the child if he or she were returned home, and "there are no reasonable means by which the [child]'s physical health can be protected without removing" the child from the parent's custody. (§ 361, subd. (c)(1).) "A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] 'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.' [Citation.] The [juvenile] court may consider a parent's past conduct as well as present circumstances. [Citation.]" (N.M., supra, 197 Cal.App.4th at pp. 169-170.) "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) An appellate court reviews a dispositional order removing a child from parental custody for substantial evidence bearing in mind the heightened clear and convincing burden of proof that is required to remove a child from a parent's care. (In re D.G. (2012) 208 Cal.App.4th 1562, 1574; In re J.K. (2009) 174 Cal.App.4th 1426, 1433; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
The evidence in this case was sufficient to support a finding that Father's conduct posed a substantial risk of harm to the child and that removal of the child from Father's custody was the only reasonable means to protect him from that harm. The record reflects that DPSS had become involved with the family due to a domestic violence incident between the parents which occurred in the children's presence. The incident resulted in Mother's death due to being stabbed, and Father was the suspect in Mother's homicide. Father was arrested and incarcerated. Father had a history of domestic violence and substance abuse, which seriously impacted his ability to supervise, protect, or care for his child. Father admitted to using cocaine with Mother and alcohol use. Based on the totality of the evidence, the juvenile court reasonably could find that Father's conduct posed a substantial continuing risk of harm to the child and that such risk could only be obviated by removing the child from Father's custody. The juvenile court's dispositional order was therefore supported by substantial evidence.
Father's reliance on Isayah C., supra, 118 Cal.App.4th 684 to support his position is inapt. In that case, the reviewing court held the father's plan to have the child live with paternal relatives during the father's "relatively short incarceration" was not "a sufficient showing of detriment under section 361.2 [, subdivision] (a)." (Id. at p. 700.) Isayah C. is distinguishable on this point. The father in Isayah C. was incarcerated for a "relatively short" time, while the length of Father's incarceration was unknown. (Ibid.) In addition, the father in Isayah C. was deemed a non-custodial, non-offending parent, unlike the father's period of confinement in this case. (Ibid.) Furthermore, as previously noted, there are many facts, aside from incarceration, that constitute substantial evidence to support the detriment finding in the instant case. (See In re V.F. (2007) 157 Cal.App.4th 962, 972-973 (V.F.), superseded by statute on other grounds as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 57-58.)
The father was arrested on March 17 and his anticipated release date was in August. (Isayah C., supra, 118 Cal.App.4th at pp. 689, 693.)
A.A., supra, 203 Cal.App.4th 597 is instructive. In that case, the child was removed from his mother's care due to the mother's drug charges based on section 300, subdivision (b), and the court placed the child with the father and dependency jurisdiction was terminated. However, while the mother was incarcerated on the drug charges, a new dependency proceeding was initiated based upon the father's physical abuse of the child, and after the father failed to reunify, the court set a selection and implementation hearing. The mother filed a section 388 petition seeking reunification services and argued on appeal that the court erred in failing to consider her for the child's placement under section 361.2. (A.A., at pp. 602-604.) This court in A.A. held that the court was not required to consider the mother for placement because she was neither non-offending nor non-custodial within the meaning of section 361, subdivision (c) and 361.2. (A.A., at p. 604.) Recognizing that although V.F., supra, 157 Cal.App.4th 962 had found the fact of incarceration should not preclude a non-custodial parent from obtaining custody under section 361.2 where the parent can make arrangements for the child's care, we distinguished the case before it from V.F. on the basis that the mother was the subject of a section 300, subdivision (b) allegation in the current dependency proceedings. We concluded that "While an incarcerated parent can avoid jurisdiction under section 300, subdivision (g) by arranging for his or her child's care [citations], the same is not true of a parent whose acts or omissions have led to jurisdictional findings under section 300, subdivision (b)." (A.A., at p. 607.)
Section 361.2 applies when a parent is neither non-offending nor non-custodial. Section 361.2, subdivision (a), provides in part that "[w]hen 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." The section provides that "[i]f 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).)
Further, in A.A., supra, 203 Cal.App.4th 597, we rejected the core holding of V.F., supra, 157 Cal.App.4th 962, and found that the "juvenile court should not be required to consider placing a child with an incarcerated parent who has previously been the subject of a removal order due to acts or omissions by that parent that brought his or her child within the description of section 300 and whose custody right has not been restored. In other words, if the non-custodial status of the incarcerated parent is due to a prior dependency order removing custody, and there has been no intervening restoration of the parent's right to physical custody of the child, the court need not inquire if that parent desires to have the child placed with him or her." (A.A., at p. 608.) In A.A. we elaborated: "a parent 'with whom the child was not residing at the time' of the initiation of the dependency, whether or not due to a family law custody order, is presumptively entitled to custody because he or she has not been previously found to pose a risk of harm to the child. It is reasonable to assume the Legislature intended to require a juvenile court to first consider placement of a child with this class of parent, to avert the trauma of a foster placement. A parent who is non[-]custodial because of a prior finding of detriment is not merely a parent 'with whom the child was not residing at the time' of the events that resulted in the dependency." (Id. at p. 610.)
Similarly, in Isayah C., supra, 118 Cal.App.4th at page 700, the court held that the dependency court may consider placing a child with a non-custodial, incarcerated parent under section 361.2 if that parent seeks custody of the child, the parent is able to make appropriate arrangements for the child's care during the parent's incarceration, and placement with the parent is not otherwise detrimental to the child. The Isayah C. court based its decision on the case law that held the juvenile dependency system has no jurisdiction to intervene "when an incarcerated parent delegates the care of his or her child to a suitable caretaker" and there is no other basis for jurisdiction under section 300 . (Isayah C., at p. 700.)
Thus, A.A., supra, 203 Cal.App.4th 597, and Isayah C., supra, 118 Cal.App.4th 684, recognize that not all bases for dependency court jurisdiction are created equal. A section 300, subdivision (g) allegation when merely based on incarceration should not deny a non-custodial parent custody when the parent is able to make arrangements for the child. An allegation under subdivision (g) is distinct from a section 300, subdivision (b) allegation. Therefore, applying this rationale to Father here, his status as an offending parent under section 300, subdivision (b), precludes him from being considered for custody of his child. Father was not merely a parent with whom the child was not residing at the time of the initiation of the dependency. Rather, Father and Mother shared custody of the child. The juvenile court had sustained allegations against Father based upon the February 9, 2018 domestic violence incident with Mother in the presence of his children, and his domestic violence history with Mother and substance abuse history. Thus, Father does not stand in the same shoes as the father in Isayah C., who was non-offending but incarcerated. Further, Father was a custodial parent until his incarceration for the domestic violence incident resulting in Mother's death separated him from his child. As such, because Father's criminal offense was the cause of his non-custodial status, we do not find he falls within the scope of the statute to keep children with their parents if possible.
Based on the forgoing, we conclude substantial evidence supports the juvenile court's finding the child would be in substantial danger without removal from Father's care, and no reasonable means existed to protect him without removal. (§ 361, subd. (c)(1).)
IV
DISPOSITION
The petition is denied. The request for immediate stay is also denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.