Opinion
G058184
02-06-2020
In re K.H. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. VANESSA M., Defendant and Appellant.
Richard Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. Nicole Williams, under appointment by the Court of Appeal, for the Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 19DP0756, 19DP0757, 19DP0758) OPINION Appeal from orders of the Superior Court of Orange County, Gary L. Moorhead, Judge. Affirmed. Richard Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. Nicole Williams, under appointment by the Court of Appeal, for the Minors.
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Two minors contend the juvenile court erred when it found it was not detrimental to them to place them with their father pursuant to Welfare and Institutions Code, section 361.2. (All further statutory references are to this code.) Finding no error, we affirm the orders.
I
FACTS
There are three minors involved in this case. K.H. was born in 2004, R.H. was born in 2005, and D.M. was born in 2009. On June 14, 2019, their mother, Vanessa M., was arrested during a probation check after needles and syringes were found in the same room where D.M. slept. The mother reported to the Orange County Social Services Agency that N.H. is the father of K.H. and R.H., and that she does not know the identity of D.M.'s father. D.M. was brought into protective custody. K.H. and R.H. were in the care of relatives.
The initial notice of appeal filed by minors' counsel stated that only the two older children were appealing, but an amended notice of appeal included D.M.'s name. However, appellants' brief includes no argument regarding D.M.'s disposition.
Mother filed a brief joining the appeal of K.H. and R.H. --------
Mother disclosed to a social worker that she had been diagnosed with borderline personality disorder. About the mother, K.H. said: "'My mom never sleeps.'" R.H. told a social worker: "'My mom totally acts normal all the time.'" On June 18, the father obtained an emergency protective order and gained physical custody of K.H. and R.H. D.M. was placed with the maternal grandmother.
The juvenile court found the allegations of failure to protect under section 300, subdivision (b) were true, assumed jurisdiction and conducted a disposition hearing on August 14, 15 and 16, 2019. The children were declared dependents of the Orange County Juvenile Court.
In its ruling regarding placement of the children, the juvenile court explained to the parties: "The law on this subject is as follows: A non-offending parent has a constitutionally protected interest in assuming physical custody of his or her dependent children which may not be disturbed in the absence of clear and convincing evidence that the parent's choices will be detrimental to the safety, protection, or physical or emotional wellbeing of the child."
The juvenile court recognized that the two older children love their Orange County family, including their younger sibling, and want to remain with them. The court noted that K.H. was emotionally upset while testifying. But the court added that it did not find by clear and convincing evidence that placement of the older children with their father would be detrimental to them. D.M. testified he feels safe with K.H. and that he would feel alone if K.H. went to live with father. D.M. said R.H. and K.H. have been "just a part of me."
As the record reflects all three children were in court on the day the court announced its ruling, it appears the juvenile court stated the following for their benefit: "I want everyone to know that I do respect the wishes of these children and understand their concerns and fears. Change is scary, especially for teenagers, but it is also an opportunity, and I hope that both of these teenagers will recognize that their father loves them, has sacrificed a lot to be here most of this week to fight for and support them, and that if they view this change as an opportunity to build a better relationship with him and develop new friends in high school, they will succeed."
As to K.H. and R.H., the juvenile court ordered them removed from the mother and vested custody with the father. The court wished the two older children good luck in their new high school and asked them to consider their dad's feelings.
Regarding D.M., the juvenile court found the agency exercised due diligence in its unsuccessful efforts to locate the father, and that to vest custody with the parents would be detrimental to the child's best interests. The court approved a plan that includes family reunification services and visitation with mother.
II
DISCUSSION
Minors' brief contends the evidence proved that requiring K.H. and R.H. to live with their father would have a devastating emotional impact on them, "thereby compelling a finding in favor of appellants as a matter of law." County counsel argues "the juvenile court was not compelled to deny father custody."
The rights to conceive and to raise one's children have been deemed essential, basic civil rights of man, and rights far more precious than property rights. It is cardinal that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. The integrity of the family unit has found protection in the due process clause of the Fourteenth Amendment, the equal protection clause of the Fourteenth Amendment, and the Ninth Amendment. (Stanley v. Illinois (1972) 405 U.S. 645, 651; Griswold v. Connecticut (1965) 381 U.S. 479, 496; May v. Anderson (1953) 345 U.S. 528, 533; Prince v. Massachusetts (1944) 321 U.S. 158, 166; Skinner v. Oklahoma (1942) 316 U.S. 535, 541; Meyer v. Nebraska (1923) 262 U.S. 390, 399.)
Section 361.2, subdivision (a), states: "If 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. 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."
A juvenile "court's ruling under section 361.2, subdivision (a) that a child should not be placed with a noncustodial, nonoffending parent requires a finding of detriment by clear and convincing evidence." (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425-1426.) The appellate court reviews "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[,] that the children would suffer such detriment. [Citations.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt." (Ibid.) Also, we defer to the juvenile court's factual assessments. (Id. at p. 1427.)
"'[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.'" (In re Luis H. (2017) 14 Cal.App.5th 1223, 1227.) "Specifically, the question [on appeal] becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
Here, the juvenile court did "not find by clear and convincing evidence that placement of the older children with their father would be detrimental" to them. The minors argue the court was mistaken in assuming father was a nonoffending parent as required by section 361.2. However, the only record citations provided to support that contention are to allegations in the petition and a waiver of rights form, but not to any evidence.
The minors clearly expressed preference to remain with their brother and maternal family, but "a detriment finding may not be supportable based upon their preferences alone," although their preferences may be considered. (In re Luke M., supra, 107 Cal.App.4th at p. 1426.) "While the child's wishes, sibling bonds and the child's relationship with the noncustodial parent may be considered by the juvenile court in determining whether placement of a dependent child with a noncustodial, nonoffending parent would be detrimental to the child's physical or emotional well-being, none of these factors is determinative." (In re C.M. (2014) 232 Cal.App.4th 1394, 1402.)
The juvenile court recognized and considered K.H.'s and R.H.'s preference to stay in Southern California with the family they know. However, their resistance to moving to live with their father because they feel more strongly connected to their brother and maternal family is insufficient to overcome section 361.2, subdivision (a)'s mandate.
III
DISPOSITION
The findings and orders of the juvenile court are affirmed.
MOORE, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.