Opinion
B320873
06-15-2023
In re N.M., a Person Coming Under the Juvenile Court Law. v. ADAM M., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jamie Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica Mitchell, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 19CCJP04047C, Philip Soto, Judge.
Jamie Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica Mitchell, Senior Deputy County Counsel, for Plaintiff and Respondent.
ADAMS, J.
Adam M. (father) appeals from a dispositional order denying his request for custody of his son, N.M. Father contends the juvenile court's order was not supported by substantial evidence. We reverse the dispositional order as to father and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The Los Angeles County Department of Children and Family Services (DCFS) detained 10-year-old N.M. and his two younger half siblings in March 2022, after their mother, G.P. (mother), crashed the car she was driving into a pole. N.M.'s younger siblings were passengers in the car. Neither was restrained by a properly buckled seatbelt or car seat. Mother and both children sustained injuries and were hospitalized. Mother told police she had been texting, and she admitted she was looking down at her phone when the incident occurred. She also tested positive for alcohol. Mother's past substance abuse had formed the basis for dependency jurisdiction over N.M. and his younger sister in 2014.
At the March 2022 detention hearing, the presumed father of N.M.'s youngest sibling, Laurence K., asked the juvenile court to enter a judgment of parentage declaring him to be N.M.'s father. Laurence K. indicated N.M. had lived with him since 2016, he told "everyone" N.M. was his child, and N.M. called him" 'dad.'" Mother submitted a parentage questionnaire indicating she believed Adam M. to be N.M.'s father, he was present at N.M.'s birth, and he had signed N.M.'s birth certificate. The juvenile court found Adam M. to be N.M.'s presumed father. Father's whereabouts were unknown. The court released N.M. to Laurence K. as a nonrelated extended family member, under DCFS supervision.
DCFS was initially unable to locate father. In an interview for the jurisdiction and disposition report, mother told a DCFS social worker that she and father were in a relationship for a year and a half, and he was abusive during that time. She said she remained fearful of father. Mother met Laurence K. in or around 2015. He had helped care for her two oldest children, as well as the youngest child they shared.
In April 2022, father contacted DCFS after receiving documents about the case in the mail. Father had not interacted with N.M. since he was two years old, and had last seen N.M. two years earlier at a hearing in a prior dependency case. Father told a DCFS social worker that N.M. did not acknowledge him at the hearing, and father did not think N.M." 'even knew who [he] was.'" After attending that dependency hearing, father told mother," 'if you got this and you want to take care of it I will step back and let you do your thing.'" He attended no further hearings in the case. However, when father received paperwork regarding the instant matter he decided to" 'step up this time and do whatever I can to give my son a better life.'" Father admitted having a criminal history and a nine-year period of incarceration that began when he was 16 years old. He had moved out of Los Angeles County to avoid gangs and negative influences. Father informed DCFS that he was now married and living in Lake Elsinore. Although he was willing to submit to an on-demand drug and alcohol test, he told the social worker he was unable to drive and would need to coordinate with his wife for transportation if the testing site was in Los Angeles County.
Father appeared at the May 2022 jurisdiction hearing. The juvenile court restated the prior presumed father finding, but deferred any parentage findings regarding Laurence K. The court ordered father to have monitored visits with N.M. The next day, father submitted to an on-demand drug and alcohol test, which returned positive results for marijuana. DCFS subsequently filed a "last minute information" stating mother wished to provide her account of father's minimal involvement in N.M.'s life. DCFS attached mother's handwritten letter to the last minute information, as well as a letter from the maternal grandmother. Both reported father had not been involved in N.M.'s life. Mother asked the court not to remove N.M. and his sister from Laurence K. and the only home they had ever known.
In late May 2022, the court conducted a contested disposition hearing. None of the DCFS reports admitted into evidence included an interview with N.M. about the possibility of him living with father. DCFS's reports also did not provide any opinions or recommendations about whether the court should place N.M. in father's custody.
The court received stipulated testimony from father that he was living with his wife, their seven-year-old child, and three stepchildren. Father's family was "fully receptive" to having N.M. live with them and there was space in their home. Father regretted not having contact with N.M., but "his request for contact was denied." Father admitted serving time in prison, however he had "committ[ed] to education" while incarcerated and was not on probation or parole. Father further indicated he was willing to have N.M. visit his siblings, and father would facilitate visits on a "routine, regular basis." The court additionally received stipulated testimony from Laurence K. that N.M. considered him to be his father, and N.M. had no relationship with Adam M.
The juvenile court denied Laurence K.'s request that he be declared N.M.'s presumed father. Father again requested custody and argued DCFS had not met its burden to establish that placing N.M. in his custody would be detrimental. The juvenile court removed N.M. from mother's custody, then found that placement with father would be detrimental.
The court explained: "The detriment finding is due to the lack of relationship that this young child has with the father and that would be emotionally upsetting. That's not to say that [father] should be cut out of the picture. It's just to say that . . . a legal father has a right to custody unless I make a detriment finding. [¶] And I'm finding that it would be detrimental for this young child to simply be taken away from the home that he knows where [Laurence K.] has raised him for the last five years and simply taken over to somebody who has no relationship with him. That would be an emotional upset that I'm not in a position to and do not agree with doing. In my judgment, that would be emotionally upsetting. And until we have visits in therapy so the child can react however he's going to react in front of a therapist and have somebody who is qualified to take these emotions into account, we're not in a position to just simply turn him over to [father]." The court ordered DCFS to set up therapeutic visits to begin within 30 days, so that father would have "a fair trial to establish a relationship and get his child back." The court also gave DCFS discretion to allow father to have unmonitored, overnight visitation with N.M. after "an appropriate amount" of therapeutic visits had taken place. Father timely appealed.
DISCUSSION
There Was Insufficient Evidence to Support the Juvenile Court's Detriment Finding
Father contends the juvenile court erred in denying his request for custody because there was no substantial evidence to support the court's detriment finding. We agree and reverse the dispositional order as to father.
Under Welfare and Institutions Code section 361.2, subdivision (a), when the juvenile court removes a child from parental custody under section 361, the court must first determine whether there is a previously noncustodial parent now seeking custody. "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).)
All further statutory references are to the Welfare and Institutions Code.
" '[T]o comport with the requirements of the due process clause, a finding of detriment pursuant to section 361.2, subdivision (a) must be made by clear and convincing evidence.'" (In re Abram L. (2013) 219 Cal.App.4th 452, 461.) "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 placement would be detrimental to the child. Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt." (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1262.)
The juvenile court may consider a wide range of factors when determining whether placement with a noncustodial parent would be detrimental to the child. These may include the child's wishes, the child's relationship-or lack of relationship-with the noncustodial parent, bonds between the child and the child's siblings or other family members, and expert assessments of the effect placement with the noncustodial parent would have on the child. (In re A.C. (2020) 54 Cal.App.5th 38, 44 (A.C.); In re C.M. (2014) 232 Cal.App.4th 1394, 1402 (C.M.).) However, the lack of a relationship between the child and the noncustodial parent, by itself, is insufficient to support a detriment finding. (In re Adam H. (2019) 43 Cal.App.5th 27, 33; In re K.B. (2015) 239 Cal.App.4th 972, 981; In re John M. (2006) 141 Cal.App.4th 1564, 1571.)
Thus, for example, in A.C., the court found substantial evidence supported a detriment finding where the record included evidence the child did not know the noncustodial father, who lived out of state. The child had not lived with the father since she was a toddler, she did not want to live with him, and she considered him a stranger. There was evidence that the child was strongly attached to her half brother and maternal grandparents, she was mature and able to express her wants and needs, and she experienced worry and anxiety at the idea of having to reside with the father. (A.C., supra, 54 Cal.App.5th at pp. 40-41.) A therapist concluded placement with the father would cause considerable emotional strain on the child, and would be detrimental to her mental health and stability without a" 'proper reintegration process.'" (Id. at p. 41.) Further, a multidisciplinary assessment team concluded the child was" 'at high risk of emotional deterioration.'" (Ibid.)
Similarly, in In re Luke M. (2003) 107 Cal.App.4th 1412, the court found substantial evidence to support a juvenile court detriment finding where the record established a significant sibling bond. The dependent children cried and became depressed when a social worker discussed the possibility of them separating from their other siblings to live with the noncustodial father in Ohio. The children requested that they not be separated from their other siblings and relatives; they said they wanted to live in California rather than Ohio; and both a social worker and counselor opined that the children would suffer detriment if separated from their siblings. (Id. at pp. 14261427.) One of the children testified, allowing the juvenile court to observe his distress when discussing where he wanted to live. (Id. at p. 1427.)
No such evidence was presented in this case. DCFS reports did not include any interviews with N.M. about father. There was no evidence addressing how N.M. felt about potentially leaving his current home and living with father. While DCFS reported N.M. had a relationship with his siblings, Laurence K., and extended family members, there was no evidence to show the extent to which those relationships would be disrupted if father obtained custody. Unlike the noncustodial fathers in A.C. and Luke M., father does not live out of state, or at such a distance that regular visitation between N.M. and his half siblings, mother, or Laurence K., would be impossible. Father also represented that he would facilitate N.M. having regular visits with his half siblings. (In re Isayah C. (2004) 118 Cal.App.4th 684, 701 [insufficient evidence of detriment where child would move from Marin to Redding, and relatives were willing to facilitate ongoing sibling visits].) There also was no evidence to establish those relationships were so significant that relocating to father's custody would be detrimental to N.M. (In re John M., supra, 141 Cal.App.4th at p. 1570 [lack of support for detriment finding where no evidence that separating from sibling would have "devastating emotional impact" as in Luke M.].) DCFS offered no opinion from a social worker or mental health professional about how N.M. might be affected if placed in father's custody.
At the disposition hearing, minor's counsel acknowledged DCFS had not interviewed N.M. Counsel could therefore only represent to the court: "[F]rom my conversations with [N.M.], there was a lot of anxiety presented with the subject of having to visit the father, which is why I am suggesting that [visits] at least begin in a therapeutic setting." The unsworn statements of counsel are not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11.)
On appeal, DCFS argues the detriment finding was supported by mother's statements that father had "minimal influence" in N.M.'s life; that father never financially supported N.M.; that N.M. had "no bond" with father; and that father never visited N.M. This evidence establishes only the lack of a relationship between N.M. and father, and his lack of involvement. Yet, that father failed to participate in N.M.'s life in the past was not, by itself, evidence that placing N.M. with father would be detrimental to N.M.'s safety, protection, or physical or emotional well-being. (C.M., supra, 232 Cal.App.4th at p. 1403 [child's wish to remain in only home she had known and lack of relationship with noncustodial father not sufficient to establish detriment]; In re K.B., supra, 239 Cal.App.4th at p. 981 [lack of contact alone is not a basis for finding detriment].)
DCFS also points to mother's statements that when N.M. was removed from her custody during a prior dependency proceeding, he "needed therapy for a long time." Mother made this statement when father's whereabouts were still unknown, and in the hope that DCFS would detain N.M. with Laurence K., rather than in protective custody as in the prior dependency case. Without more, N.M.'s reaction to being in foster care as a two year old is not evidence of the likely effect of placement of N.M., as a ten year old, with his father.
While DCFS and N.M.'s counsel asked the juvenile court to find that placement with father would be detrimental to N.M., the record was not developed in any way to provide the juvenile court with the clear and convincing evidence necessary to reach that conclusion. The evidence was insufficient to support the detriment finding.
Our conclusion that substantial evidence did not support the dispositional order as to father is based on, and limited to, the record as it existed on the day of the disposition hearing. We remand for a new disposition hearing on the issue of placement with father. The juvenile court may consider circumstances and events which have occurred during the pendency of this appeal. (In re Adam H., supra, 43 Cal.App.5th at p. 33; C.M., supra, 232 Cal.App.4th at p. 1404.)
DISPOSITION
The juvenile court's May 20, 2022 dispositional order is reversed as to father. The matter is remanded to the juvenile court with instructions to hold a new disposition hearing on the issue of placement with father under section 361.2, subdivision (a). On remand, the juvenile court may consider new evidence or circumstances that have occurred during the pendency of this appeal. In all other respects, the dispositional orders are affirmed.
We concur: LAVIN, Acting P. J., EGERTON, J.