Opinion
B319164
02-26-2024
In re Javier A., a Person Coming Under the Juvenile Court Law. v. JAVIER A., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Nos. 21CCJP02620, 21CCJP02620C Philip L. Soto, Judge. Affirmed.
Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
COLLINS, J.
After the tragic death of another minor in their home, J.A. and his half-siblings were declared dependents of the juvenile court and removed from the care of their mother, J.G. (mother), and J.A.'s stepfather, G.A., Sr. (stepfather). J.A.'s non-offending father, who also has the initials J.A. (father), sought to have J.A. placed with him in Mexico. The juvenile court found that placing J.A. with father would cause J.A. emotional detriment and ordered J.A. placed with his maternal aunt, together with his half-siblings. Father appeals. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Family
At the time of the events giving rise to this case, 10-year-old J.A. lived with mother and her unmarried partner, stepfather, whom J.A. called "dad." Several other children also lived in the home. Sixteen-year-old G.A., Jr. (G.A.) was the biological son of stepfather; he was unrelated to mother and J.A. Thirteen-year-old K.M. was mother's biological daughter and J.A.'s half-sibling; her father was deceased. Twelve-year-old M.S. was mother's biological son and J.A.'s half-sibling; his father had been deported and was unable to be located. Eight-year-old D.A. was the son of mother and stepfather and was J.A.'s half-sibling. One-year-old M.A. was the son of mother and stepfather and was J.A.'s half-sibling. Mother was pregnant with K.A., who was born a few months later.
II. Death of G.A.
In or around March 2021, K.M. disclosed to mother that G.A. had touched her inappropriately on several occasions. After G.A. admitted the allegations, mother beat him. K.M. reported that G.A. remained "in trouble since then"; Mother struck him on numerous occasions over the next few months. Mother used her fists and feet as well as implements including shoes, a metal baseball bat, a hammer, a wooden stick or board, a frying pan, a spoon or spatula, and a broom with a fork attached to it. G.A. suffered injuries including bruising and swelling, lacerations, a ripped ear, knots on his head, and a festering wound on his foot. Mother also made G.A. do jumping jacks and clean the house, and she told the other children to stay away from him.
Stepfather also hit G.A., but less severely; the other children reported that he told mother to stop or go easier on G.A. Mother and stepfather provided G.A. with "breaks" and remedies such as bandages, ointments, and ice packs, but he did not receive medical treatment for his injuries.
On June 1, 2021, mother and G.A. got into a physical altercation during which G.A. hit his head on a bunk bed or wall. He said he could not see and coughed up some yellow liquid before he passed out and stopped breathing. Mother tried to revive G.A. with alcohol, and she, K.M., and M.S. attempted to perform CPR. After calling maternal aunt and uncle, maternal grandmother, and stepfather, mother or K.M. called 911. G.A. was transported to the hospital, where he was pronounced dead. Mother was arrested for his murder, and stepfather was arrested for felony child endangerment.
III. Petition and Detention
On June 3, 2021, the Los Angeles County Department of Children and Family Services (DCFS) filed a Welfare and Institutions Code section 300 petition on behalf of K.M., M.S., J.A., D.A., and M.A. DCFS alleged that the children were at risk due to mother's serious physical abuse of G.A. and stepfather's failure to protect him (counts a-1, b-1, and j-1), stepfather's medical neglect of G.A. (counts b-2 and j-2), and stepfather's marijuana abuse (count b-3). After a hearing on June 8, 2021, the juvenile court ordered J.A. detained. The court ordered DCFS to "keep the children together" and "investigate placing them" with maternal aunt. It also ordered grief counseling for the children. The children initially were placed in foster care but were placed together with maternal aunt and her husband, uncle, on June 9, 2021. IV. Father Located
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The appellate record only contains minute orders pertinent to J.A. However, it is apparent from the record that the other children were also detained.
DCFS detained the children from maternal aunt and uncle in mid-September 2021 and re-placed them in three separate foster homes. Through their counsel, the children filed a motion to be returned to maternal aunt and uncle. The court ordered the children re-placed together with maternal aunt and uncle at the adjudication hearing in late October 2021.
On June 22, 2021, mother filed a parentage questionnaire identifying father as J.A.'s father, and the juvenile court declared him J.A.'s presumed father. The court ordered DCFS to use due diligence to locate father.
DCFS made contact with father via WhatsApp message and telephone on July 16, 2021. A DCFS social worker interviewed father in Spanish. Father stated that he immigrated to the United States from Mexico in 2006, at the age of 15. He met mother a few years later, and they dated for about two years before J.A.'s birth in 2010. Father and mother had "differences," as well as a "language barrier"-father speaks Spanish and mother's Spanish "was limited." Their relationship ended when mother began her relationship with stepfather; J.A. was a toddler. Father did not have much contact with J.A. after that point, because mother would not allow it. Father explained that "mother would call him or he would call mother, who would inform him that the child [J.A.] was well, but refused to allow him to have in person contact with his son." Maternal uncle sometimes notified father when J.A. was visiting, and father "would see [J.A.] from a distance." The last time father saw J.A. in any capacity was 2014.
Father was deported to Mexico in 2015. He lives in a small town in the state of Puebla. He works as a driver and is married with two young children.
Father told DCFS that his ability to return to the United States was "restricted due to being deported," but he nevertheless had considered "crossing over again for the sake of my son." He stated that his wife was aware of the situation and supported father's reunification with J.A. DCFS provided father with notice of the jurisdictional hearing and recommended that Mexican authorities assess his home for placement of J.A.
V. Amended Petition
On August 6, 2021, DCFS filed an amended petition. In addition to the section 300, subdivisions (a), (b)(1), and (j) counts alleged in the initial petition, the amended petition added allegations under section 300, subdivisions (f) (parent or guardian caused the death of a child) and (i) (cruelty and failure to protect therefrom). The new allegations stemmed from the June 1, 2021 incident that culminated in G.A.'s death and were substantially similar to counts a-1, b-1, and j-1 of the initial petition. The juvenile court overruled mother's and stepfather's objections to the amended petition, dismissed the initial petition, and continued the adjudication hearing to October 2021.
VI. Adjudication
On October 7, 2021, the day before the date scheduled for adjudication, father filed a statement regarding parentage (form JV-505). He asserted that J.A. was his son and had lived with him from birth to two years of age. During that time, father "[d]id all activities a father should while living whit [sic] child," and spent holidays and birthdays with J.A. Father stated, however, that he had "never given money" to support J.A. At an October 8, 2021 hearing at which the court continued adjudication to October 26, the court ordered DCFS to facilitate FaceTime visits between father and J.A., to assess whether such visits should be unmonitored, and to initiate an assessment of father's home by Mexican authorities.
In a last-minute information filed October 21, 2021, DCFS reported that a children's social worker (CSW) met with J.A. on October 15 to discuss his visits with father. J.A. "began crying and telling CSW Carrillo that he did not want to live with father." J.A. "asked CSW not to take him to his father." Another CSW spoke to J.A. separately, and he repeated that he did not want to see father. "CSW Carrillo reported that she would continue to make efforts to encourage child to participate in FaceTime visits with his father." DCFS also reported that it had taken several steps toward obtaining a home assessment.
In another last-minute information filed the following day, DCFS reported that a CSW had spoken with father to determine if any paternal relatives would be able to care for J.A. and his half-siblings. Father identified an aunt and a cousin, both of whom said they could care for J.A. but not any of his halfsiblings. J.A. expressed a willingness to visit with paternal aunt "as long as siblings are present"; DCFS reported that a visit had been scheduled for October 23. There is no further information about this visit in the record.
At the adjudication hearing on October 26, 2021, the juvenile court sustained the amended petition in its entirety. It ordered DCFS to provide an update on father's home assessment and set the disposition hearing for November 18, 2021.
VII. Disposition
The disposition hearing was continued multiple times due to delays in completing father's home assessment. Prior to the hearing, DCFS filed several last-minute informations for the court. In a November 9, 2021 filing, DCFS reported that maternal aunt told father he could call J.A. every day, but father was "not able to provide set days" for the calls because his days off vary weekly. In a January 13, 2022 filing, DCFS reported that J.A. "did not initially meet medical necessity when he was assessed for mental health services in July 2021," but had begun receiving individual therapy in early December 2021.
In March 3, 2022 filing, DCFS reported that father's home assessment was complete and positive. It further reported that J.A. and father had "not had any contact" since January 10, 2022. Father told a CSW on February 22, 2022 that J.A. had refused to speak to him and maternal aunt had stopped answering his calls. Father stated that J.A. told him that "he does not want to talk to me because I'm separating him from his siblings, which is odd because I have never said anything about separating him from his brothers and sisters. Initially, he had expressed being happy to the previous foster mother and my sisters (paternal aunts) because he was 'the only one from his siblings with a father.'"Father said he "understood that he was not in the child's life since he was two and a half years old," that J.A. "had no recollection of father," and that it was "important that he is with his brothers and sisters." But he wanted "to be okay with my son and win him over again," and expressed concern that maternal aunt had falsely told J.A. that father had abused mother.
Father's home assessment indicates that father and J.A. had phone visits during June 2021, when J.A. was in foster care prior to being placed with maternal aunt and uncle. The quantity and quality of the visits is unclear.
The CSW spoke with J.A. about the visits on February 24, 2022. He was "adamant that he did not want to have any contact with father." The CSW advised maternal aunt that she did not have to force J.A. to speak to father, but should give him the opportunity to speak with father every time father called. DCFS reported that it would "be making efforts to monitor a virtual visit between [J.A.] and his father" during the CSW's next inperson visit with J.A. It further reported that it planned to arrange a visitation schedule "to better facilitate these calls in the hopes that [J.A.] and father can continue to get to know one another and establish a relationship."
DCFS informed the court that it would "continue efforts to assure the child [J.A.] and father have a fair chance at establishing a relationship in hopes of reunification." It had "encouraged father to enroll and complete a parenting education program and counseling/conjoint with [J.A.] when appropriate and if possible, in hope to obtain skills to approach [J.A.] and the reunification process." DCFS recommended that J.A. remain placed with maternal aunt and uncle and receive family reunification services with father for 90 days, "to allow time for father and [J.A.] to build on their relationship."
Father appeared at the March 17, 2022 disposition hearing via telephone. At the outset of the hearing, the court indicated its tentative was to place J.A. with father and provide visitation with his half-siblings "either virtually or here in California." J.A.'s counsel argued that he was "adamantly opposed" to such an arrangement. J.A.'s counsel cited the absence of a preexisting relationship or support, as well as J.A.'s preference for "no relationship with [father] whatsoever." Counsel further asserted that "with all of the trauma that has gone on in this very devastating case, for [J.A.] to lose all of his siblings after losing the first one that brought the case into court will just be overwhelming for him at this point. Right now he needs to be with his family that he knows, his siblings and his aunt." He argued that it would be more appropriate to "take this slowly" and joined DCFS's request "to continue this to the extent possible to have some sort of conjoint counseling to have visits and to try to build any sort of relationship."
The court reiterated, "The man is not named in the petition. This is his child." J.A.'s counsel again requested continuance of the disposition, to "have conjoint counseling and arrange visits." Counsel added, "I don't even think [J.A.] remembers the last time he saw him. He has no idea who this person is. He's terrified of being removed from his family. He doesn't know Mexico at all, and it would just be devastating for him." The court asked if J.A. spoke Spanish. Both J.A.'s counsel and maternal aunt responded that he did not.
J.A. also stated during his forensic interview that he did not speak Spanish.
Father's counsel argued that father was a nonoffending parent and therefore entitled to custody of J.A. under section 361.2 unless such placement would be detrimental to J.A. She argued that neither the lack of a relationship between father and J.A. nor J.A.'s wishes were sufficient to establish the requisite detriment, and there was no evidence that J.A.'s relationship with his siblings "was so extraordinary, beyond the normal sibling relationship" to cause detriment to J.A. if he were placed apart from them. She further asserted that continuing the matter would be unlikely to resolve any issues between father and J.A. In response to questions from the court, father's counsel represented that father was not able to legally enter the United States for visits and conceded there was no evidence that J.A. could speak Spanish.
The juvenile court ultimately declared J.A. a dependent and found that "it would be detrimental for him to be returned to the father." The court cited J.A.'s desire to "live there and stay with his family." It also emphasized that J.A. did not speak Spanish, and that father and father's family "are strangers to him, and he can't even communicate with them." The court explained, "this is a very emotionally charged case with a death in the family at the hands of the parents. This child needs support and needs grief counseling and needs to be with people that he knows and he can communicate with. If one day he's overwhelmed and breaks down and needs a shoulder to cry on, [maternal aunt] will be the one that will be there for him, as well as his siblings, that he can communicate to her what is going on with him emotionally. [¶] Even if he doesn't have a breakdown, if he still needs emotional help because he's depressed, he needs to be able to speak to somebody in English. He doesn't speak Spanish." The court distinguished the primary case on which father's counsel relied, In re C.M. (2014) 232 Cal.App.4th 1394 (C.M.), and added, "I'm going to do the best I can to avoid any additional trauma to these children, and in this case [J.A.]." It ordered conjoint counseling and monitored visits for father and J.A. and gave DCFS discretion to liberalize the visitation. The court further ordered DCFS to facilitate both telephone and virtual visits, and, at the request of J.A.'s counsel, Spanish classes for J.A.
Father timely appealed.
DISCUSSION
Father argues that the juvenile court erred by not placing J.A. in his custody. We disagree.
The dependency statutes distinguish between a parent with whom a child resided at the time a section 300 petition was initiated-the custodial parent-and a parent with whom the child was not residing at the time-the noncustodial parent. (In re Karla C. (2010) 186 Cal.App.4th 1236, 1242.) Where, as here, the juvenile court removes a child from the custodial parent, section 361.2 requires the court to place the child with the noncustodial parent if the noncustodial parent requests custody and placement with that parent would not be "detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2, subd. (a).) In addition to this statutory preference, 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 thus bears the burden of proving the child will suffer detriment by clear and convincing evidence. (In re Liam L. (2015) 240 Cal.App.4th 1068, 1084 (Liam L.).) However, the ultimate focus remains "on the child's best interests, albeit with a preference toward parental reunification." (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425 (Luke M.).)
In determining whether placement with a noncustodial parent would be detrimental to the child, the court must "weigh all relevant factors to determine if the child will suffer net harm." (Luke M., supra, 107 Cal.App.4th at p. 1425.) Relevant factors vary with each case but generally include the child's relationship or lack thereof with the custodial parent, the child's wishes, the child's need for services, and the existence and quality of the child's bond with other family members. (See ibid. [sibling relationships]; In re A.C. (2020) 54 Cal.App.5th 38, 43 (A.C.) [absence of relationship between parent and child, child's wishes]; In re Patrick S. (2013) 218 Cal.App.4th 1254, 1262-1264 [need for continued therapeutic services].) No one factor is dispositive, including the child's preferences. (C.M., supra, 232 Cal.App.4th at p. 1402.)
We review a juvenile 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." (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.)
Substantial evidence supports the juvenile court's finding that placing J.A. with father would be detrimental to his emotional well-being. Although his wishes are not dispositive, J.A. expressed a clear preference not to be placed with father in Mexico. He cried and said he did not want to live with father when merely asked about telephonic or FaceTime visits, and told multiple social workers that he did not want to see father. This is perhaps unsurprising given that J.A. had virtually no relationship with father, whom he had not seen for approximately a decade and did not remember-he referred to stepfather as his "dad." Father stated that mother prevented him from having a relationship with J.A., but he also acknowledged that he had never provided the child with any financial support.
J.A. demonstrated a strong attachment to his half-siblings, and a fear of being separated from them. J.A. also had a strong attachment to maternal aunt, telling the forensic interviewer he was "happy" shortly after G.A.'s death because "I'm back with my Tia." The record showed that J.A. and his half-siblings provided comfort for one another in the wake of their tragic loss. Although father "never said anything about separating [J.A.] from his brothers and sisters," such separation would be the inevitable result of placing J.A. in a different country with a parent unable to accompany him back for visits. The court reasonably concluded that separating J.A. from this expansive support network would be detrimental to his emotional well-being, which had declined to the point that he recently qualified for and had begun receiving therapeutic services. The court also noted that J.A. and father did not share a common primary language, which would complicate their efforts to build a relationship and J.A.'s ability to acclimate to a completely unfamiliar environment.
Father contends that J.A.'s "strong opposition to the placement did not support a finding of detriment," "[t]he lack of a relationship between J.A. and his Father also was not a sufficient reason to find detriment," and "J.A.'s desire to stay with the maternal aunt and with his siblings was also insufficient to support a finding of detriment." Father is correct that none of these factors alone is determinative. (C.M., supra, 232 Cal.App.4th at p. 1402.) However, he does not appear to consider the combined effect of these factors or the totality of the uniquely tragic circumstances of this case. The collective weight to give each of the factors alone and in combination was a question for the juvenile court that we do not reevaluate here.
The cases on which father relies are distinguishable. In John M. (2006) 141 Cal.App.4th 1564, 1570-1571, the child's "wishes were unclear," the noncustodial parent spoke the child's primary language, and the noncustodial parent and child had resumed contact nearly a year prior to the petition after only four years of estrangement. Here, J.A.'s wishes were quite clear, he and father at best had a few phone visits after a decade of estrangement, and they did not speak the same language. In C.M., supra, 232 Cal.App.4th at pp. 1397, 1402, the child wished to stay with her maternal grandparents and sibling but had a positive preexisting relationship with the noncustodial parent who lived nearby, "including frequent telephone calls and unmonitored overnight visits for Thanksgiving and Christmas, which C.M. said she enjoyed." Here, J.A. did not appear to enjoy the minimal contact only recently reestablished with father, who lived thousands of miles away from his half-siblings. Indeed, the C.M. court emphasized that "C.M. was not being moved halfway across the country," and "father offered to have [C.M.'s sibling] S. live in his home." (C.M., supra, 232 Cal.App.4th at p. 1404.) Those factors were not present here. Similarly, in In re Abram L. (2013) 219 Cal.App.4th 452, 464, the father "was not a stranger to the children," who "had visited father every other Saturday for many years." Moreover, the holding of In re Abram L. was that the juvenile court's failure to consider and apply section 361.2 resulted in a miscarriage of justice, not that substantial evidence did not support a finding of detriment. (See ibid.) "It is axiomatic that cases are not authority for propositions that are not considered." (California Building Industry Association v. State Water Resources Control Board (2018) 4 Cal.5th 1032, 1043.)
Father also suggests that he "likely speaks some English, as he lived in the United States for two years," and speculates that "in a large city such as Puebla[,] Mexico, which has over 3 million inhabitants [citation], Father would surely be able to find a therapist who could speak with J.A. in English about his depression." While "[t]he law ... does not take a child away from a parent . . . because of language barriers" (In re M.C. (2023) 88 Cal.App.5th 137, 154), suggestion and speculation are not substantial evidence. (See, e.g., In re J.A. (2020) 47 Cal.App.5th 1036, 1046.) There is clear evidence that J.A. does not speak Spanish, and that father lives in a small town in the state of Puebla, Mexico, not within or proximate to the city of the same name. There is no evidence to support father's assertions regarding his ability to speak English or the availability of English-speaking mental health professionals in or near father's small town. Considering the record in the light most favorable to the juvenile court's order, we conclude that substantial evidence supports its findings.
DISPOSITION
The juvenile court's disposition order is affirmed.
WE CONCUR: CURREY, P.J., ZUKIN, J.