Opinion
D060147 Super. Ct. No. SJ12550
01-09-2012
In re EDWARD C. V, a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. EDWARD C. IV, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed.
Noncustodial parent and presumed father Edward C. IV appeals the dispositional judgment in the juvenile dependency case of his son, Edward C. V. Edward IV contends the court erred by denying his requests for custody and reunification services. We affirm.
BACKGROUND
In April 2004, when Edward IV was 17 years old, a 15-year-old girl gave birth to Edward IV's daughter, D.C. In October 2005 Edward IV, a documented gang member, was imprisoned on a conviction of assault with a deadly weapon with enhancements. In November the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for D.C. because Edward IV's whereabouts were unknown and D.C.'s mother was incarcerated (Welf. & Inst. Code, § 300, subd. (g)). By the time of the jurisdictional and dispositional hearing in January 2006, Edward IV had been found; he was in prison. He appeared at the hearing, and the juvenile court entered true findings on the petition, removed D.C. from her mother's custody and ordered reunification services for the mother. The court set aside a presumed father finding and ordered paternity testing. In March 2007 the court terminated the parental rights of D.C.'s mother and Edward IV.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
In the juvenile court, the Agency filed a request for judicial notice of "the findings of facts, conclusions of law, and judgments" in D.C.'s case. Attached to the request were copies of D.C.'s dependency petition and three minute orders. The juvenile court took "judicial notice of the findings and . . . orders in [D.C.'s] case . . . ." The Agency now requests judicial notice of a July 11, 2006, minute order that was not attached to the request filed in the juvenile court. That minute order states: (1) paternity test results showed Edward IV was D.C.'s biological father; and (2) D.C.'s dependency petition was amended by interlineation to reflect that fact. The Agency argues the minute order shows the juvenile court in Edward V's case properly denied services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(11). We deny the request for judicial notice as unnecessary. The copy of D.C.'s dependency petition, which was attached to the Agency's request in the juvenile court, reflects the July 11, 2006, finding that Edward IV was D.C.'s biological father.
In April 2009 Edward IV was released from prison. In May he was returned to prison on a parole violation. Edward V was born in August 2010, when Edward IV was 24 years old. Edward V lived with his 15-year-old mother, A.A., and the maternal grandparents. Although Edward IV and A.A. married two days after Edward V's birth, the couple did not live together. In September Edward IV was returned to prison on another parole violation.
The record does not disclose when he was released.
In April 2011 the Agency filed a dependency petition for eight-month-old Edward V. The petition alleged Edward V had been exposed to violent confrontations between A.A. and the maternal grandmother, and A.A. had a mental illness. Edward V was detained with the maternal grandparents and A.A. moved out of the home. The court ordered liberal, supervised visitation for A.A. and Edward IV, who had been released from prison and remained on
parole. Edward IV said he preferred that Edward V remain with the maternal grandparents because he was "not in a stable place right now."
The record does not give the date of Edward IV's release from prison. In April 2011 the maternal grandmother said Edward IV had last visited Edward V "three or four months ago, not long a[ft]er he got out of jail." In April Edward IV said he had last visited Edward V approximately two months earlier.
In May 2011 Edward IV was arrested and jailed on charges of attempted first degree murder, assault with a deadly weapon and having sex with a minor under the age of 16. When the jurisdictional and dispositional hearing took place in June, Edward IV was still incarcerated. The Agency recommended that Edward V remain in the home of the maternal grandparents and that Edward IV be denied reunification services. Edward IV requested custody of Edward V but stated he would arrange to have Edward V remain with the maternal grandparents while he was incarcerated.
The court entered true findings on Edward V's dependency petition, ordered him removed from A.A.'s custody (§ 361, subd. (c)(1)), denied Edward IV's requests for custody (§ 361.2, subd. (a)) and reunification services (§ 361.5, subd. (b)(11)) and ordered Edward V placed with relatives.
EDWARD IV'S REQUEST FOR CUSTODY
"When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a [noncustodial] parent[] . . . 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." (§ 361.2, subd (a).) "The juvenile court must make the detriment finding by clear and convincing evidence. [Citations.] '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 child[] would suffer such detriment. [Citations.]' " (In re John M. (2006) 141 Cal.App.4th 1564, 1569, 1570.)
Edward IV claims "he was a nonoffending parent" and "[n]o allegations under section 300 were ever alleged or established as to [him]. "Although the phrase 'nonoffending parent' appears in section 361, subdivision (c)(1), it does not appear in the text of section 361.2. We believe the better shorthand phrase is simply 'noncustodial parent.' " (In re V.F. (2007) 157 Cal.App.4th 962, 969, fn. 4, called into doubt by statute on another ground as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 57-58.) "Noncustodial parent" signifies the parent "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 . . . ." (§ 361.2, subd. (a); In re V.F., at p. 969.) In the juvenile court, Edward IV's counsel acknowledged that Edward IV was a noncustodial parent.
Furthermore, a dependency case is not filed against a particular parent; it is filed to protect the child. (In re Malinda S. (1990) 51 Cal.3d 368, 384, superseded by statute on another ground as stated in People v. Otto (2001) 26 Cal.4th 200, 207.) " '[A] jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring [him] within one of the statutory definitions of a dependent. [Citations.]' " (In re X.S. (2010) 190 Cal.App.4th 1154, 1161.)
Edward IV contends the court erred by denying his request for custody because there was no substantial evidence this would be detrimental to Edward V. Edward IV argues his incarceration did not preclude custody, and the court erred by basing its detriment finding on the incarceration.
Edward IV asserts the court did not make its detriment finding by clear and convincing evidence. While the court did not expressly say it was finding detriment by clear and convincing evidence, it did state, in discussing In re Isayah C. (2004) 118 Cal.App.4th 684 (Isayah C.), that the standard for finding detriment was clear and convincing evidence. We presume the court applied that standard. (See Evid. Code, § 664.)
The court found that granting Edward IV's request for custody would be detrimental to Edward V within the meaning of section 361.2, subdivision (a) "due to [Edward IV's] incarceration and the fact that we already have determined relatives that we are placing with." In making its detriment finding, the court discussed Isayah C., supra, 118 Cal.App.4th 684. 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.) The juvenile court here distinguished Isayah C., noting the Agency recommended, and A.A. requested, that Edward V be placed with the maternal grandparents, and Edward IV had not requested constructive custody with someone other than the maternal grandparents. In Isayah C., on the other hand, the father requested placement with his relatives, and the mother and the social services agency requested placement with her relatives. (Id. at pp. 691-692.) We agree with Edward IV that the juvenile court's attempt to distinguish Isayah C. on this point is flawed. The competing placement requests in Isayah C. have no bearing on the detriment issue here.
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.)
Isayah C. is distinguishable on another point, however. In that case, the father was incarcerated for a "relatively short" time, while the length of Edward IV's incarceration was unknown. (Isayah C., supra, 118 Cal.App.4th at p. 700.) Furthermore, 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., supra, 157 Cal.App.4th at pp. 972-973.) Edward IV was a documented gang member who had been in and out of custody for violent offenses, parole violations and having sex with minors. He had been incarcerated for most of Edward V's life. Edward V, who was approximately 10 months old, had never lived with Edward IV and they had no relationship. Granting Edward IV's request for custody would have allowed him to arrange for Edward V's removal from the maternal grandparents' home while Edward IV was still incarcerated, or after his release. Thus, granting the request would have allowed Edward IV to expose Edward V to his violence, criminality and poor judgment.
Edward IV argues the court erred by declining to place Edward V in his custody upon removal from A.A., because this was a less restrictive alternative to placing Edward V in the Agency's custody. Edward IV suggests the court could have granted his request for services, and "monitored [Edward V]'s placement in the physical custody of the maternal grandparents and [Edward IV]'s progress with services to [ensure Edward V]'s protection." In light of Edward IV's status of noncustodial parenthood, his argument is misplaced. Unlike the removal from a custodial parent (§ 361, subd. (c)(1)), the failure to grant a noncustodial parent's request for custody does not require a consideration of less restrictive alternatives (§ 361.2, subd (a)). Furthermore, it was unclear what services might be available to Edward IV while he was incarcerated, and his suggestion would not prevent him from taking Edward V from the maternal grandparents' care and otherwise causing detriment.
Substantial evidence supports the detriment finding. The juvenile court did not err by denying Edward IV's request for custody.
REUNIFICATION SERVICES
Section 361.5 states: "(a) Except as provided in subdivision (b), . . . whenever a child is removed from a parent's . . . custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother and statutorily presumed father . . . . [¶] . . . [¶] (b) Reunification services need not be provided to a parent . . . described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (11) That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent." We review the juvenile court's findings under section 361.5, subdivision (b)(11) for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)
If the juvenile court determines that section 361.5, subdivision (b)(11) applies, it "shall not order reunification services for" the parent unless it "finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c).) Edward IV states "section 361.5, subdivision (c) is not applicable here because . . . the juvenile court erroneously applied section 361.5, subdivision (b)."
Edward IV argues the juvenile court erred by denying him services because he was not "the same parent described in subdivision (a)" (§ 361.5, subd. (b)(11)), namely, the parent from whom D.C. was removed. Edward IV is mistaken. Section 361.5, subdivision (b)(11) simply requires that the parent seeking services in the present case be the same parent whose rights were terminated in the sibling's case. (See Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 598.) Edward IV also argues section 361.5, subdivision (b)(11) does not apply because D.C. was removed due to her mother's incarceration, not Edward IV's, as the court here erroneously stated, and his cessation of gang involvement showed he had addressed the problem that led to his incarceration. Again Edward IV is mistaken. One of the problems leading to D.C.'s removal was that Edward IV could not be found. As it turned out, he was serving a five-year prison sentence for a violent crime. His subsequent criminality and incarcerations demonstrate that he had not made a reasonable effort to ameliorate the circumstances that led to D.C.'s removal.
Substantial evidence supports the denial of reunification services.
DISPOSITION
The judgment is affirmed.
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McCONNELL, P. J.
WE CONCUR:
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HALLER, J.
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AARON, J.