In re C.K.









Filed 7/9/12 In
re C.K. CA2/8

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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115>.









IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION EIGHT


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In re C.K. et al., Persons Coming Under the Juvenile Court Law.	B236046 (Los Angeles County Super. Ct. No. CK87404)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.P., Defendant and Appellant.

APPEAL
from an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Valerie L.
Skeba, Juvenile Court Referee. Reversed and remanded.



Aida
Aslanian, under appointment by the Court of Appeal, for Defendant and
Appellant.



No
appearance for Plaintiff and Respondent.



* * * * * * * *

We
reverse the juvenile court’s dispositional order placing mother C.P. and
father’s three children in foster care because it is not supported by substantial
evidence.

>BACKGROUND

This
dependency proceeding followed a bitter divorce in which father D.K. was
awarded physical custody
over his and mother’s three daughters – C.K. (born March 1998), A.K. (born
March 2000) and A.K.2 (born April 2005).
Mother and father separated in 2005 and divorced in 2010. Their relationship was contentious, and each
alleged the other has psychological problems and has mistreated the
children.

1. Family Law Court Awards Father Custody

On February 24, 2011, the family law court
awarded mother and father joint legal custody except father was awarded sole
legal custody to make educational and medical decisions. After a 60-day trial, father was awarded
primary physical custody of the children.
Prior to the custody order, C.K. had not visited with father in over
eight months, and once placed in his custody she ran away twice. In 2010, father had C.K. admitted to a
residential facility.

The
family law court denied mother’s but granted father’s request for a restraining
order. Mother and father were ordered
not to discuss the custody issues with any of the children or allow anyone else
to do so.

A
report prepared for the family law court
in August 2010 by Eve Lopez, an attorney and forensic psychologist, indicated
that C.K. criticized A.K. when she did not agree with C.K. and mother on issues
regarding father’s conduct. When C.K.
called to cancel a visit with father, a social worker concluded that mother
asked C.K. to make the call. At that
time, A.K. wanted to live with father.
C.K. wanted to live with mother and defended mother. C.K. was described as “mimic[ing]” mother and
repeating mother’s allegations against father.
Mother and C.K. were resistant to allowing A.K.2 to visit father. A.K.2 appeared happy when she was with
father. Father appeared to have a close
relationship with both A.K.2 and A.K.

Lopez
had difficulty interviewing mother and concluded mother did not provide
reliable information. Lopez found mother
showed little “‘insight’ into her actions as contributing to the girls’ current
difficulty.” At the time, mother refused
to go to therapy. Lopez was concerned
that mother made disparaging remarks about father in front of the
children. Lopez also faulted mother for
manipulating C.K. However, Lopez did not
find that mother was of risk to the children either physically or
psychologically.

2. Juvenile Court Takes Jurisdiction

On April 14, 2011, the href="http://www.fearnotlaw.com/">Los Angeles County Department of Children and
Family Services (DCFS) detained the children, concluding that the
children’s safety was of immediate concern and could not be assured in the home
of either parent. DCFS filed a petition,
which, as later amended, provided:
mother and father “have for the last year been involved in a very
contentious family law dispute which has escalated to the point that
significant allegations of physical abuse against the father, and neglect
against the mother, have been made. Such
conflict places the children . . . at substantial risk of physical and
emotional harm and danger.” Mother and
father pled no contest to the amended petition.

3. Disposition Was Heavily Contested

Prior
to the dispositional hearing, DCFS reported that C.K. and A.K. made allegations
of physical abuse and alcohol abuse against father, all of which he
denied. Mother agreed with the
allegations. Father believed that mother
coached the children to make allegations against him and sought the
intervention of the juvenile court to advance her own agenda.

Mother’s
relatives sided with her and father’s with him.
DCFS’s assessment of the maternal grandmother indicated that she would
“not remain neutral”; and therefore may “prohibit[] father from Family
Reunification.” DCFS reported that C.K.
is “parentified” and influences A.K. and A.K.2.
DCFS recommended only monitored visits to prevent the children “from
being coached by either parent.” DCFS
concluded that “[b]oth parents are responsible for contributing [to the]
emotional and physical stress” on the children.

In
May 2011, DCFS placed C.K. with a family friend who lived in a different area
from mother and father, but C.K. refused to go to school because she did not
have friends there. A.K. and A.K.2 had
been placed with a different family friend.
Mother had been charged with misdemeanors for violating the family law
court order, leaving C.K. in a hotel room alone (after C.K. ran away from
father), and withholding information on C.K.’s whereabouts from police. Our record does not disclose whether mother
was convicted of these crimes.

In
August 2011, DCFS reported progress and recommended releasing the children to
mother’s custody. By that time, all
three children had been placed in the care of the same family friend. DCFS reported mother had attended individual
therapy and conjoint therapy with the children.
Mother had participated in numerous parenting classes, and attended a support
group for parents in conflict. Mother’s
therapist described her as “sincere in her desire to reduce the conflict
between herself and her ex-husband.”
Mother consistently visited the children. DCFS indicated mother made substantial
progress. DCFS found mother’s home to be
safe and appropriate.

At
the same time DCFS reported mother’s progress, DCFS reported that father had
cancelled several visits because of work-related conflicts. Father drank wine during a monitored visit
and was told that drinking during a visit was improper. DCFS indicated that father was not
cooperative with DCFS.

Dr.
Michael Maloney evaluated mother, father, and the children. Dr. Maloney found that neither mother nor
father suffered from any emotional or mental disturbance. He noted that each parent made negative
statements about the other. C.K.
expressed negative feelings towards father and a desire to live with mother. C.K. was amenable to conjoint therapy with
father. A.K. reported a positive
relationship with both parents but stated she “heard” father physically abused
C.K. Dr. Maloney concluded that the
parents’ negative statements had a “deleterious effect on the minors,
especially 13 year old C.K. . . .” Dr.
Maloney concluded that the children “should remain in the care of a person or
persons other than the natural parents.
They should reside . . . in a neutral setting where they would not be
exposed to the negative influence of either parent.” Dr. Maloney opined that “[i]f the
current negativity between parents continues, it will clearly have a negative
impact on all three children.”

Therapist
Dilyse Diaz found that the children endured trauma, damaging to their mental
health and emotional well-being. The
numerous moves in foster care contributed “to the instability and trauma they
are currently experiencing. During each
therapy session, all three of the children have expressed a desire to return
living with mother immediately.” Both
C.K. and A.K. “have expressed a desperate plea to cease living in Foster
placement.” The children preferred to
live with mother. Mother encouraged the
children to allow a therapist to help improve their relationship with father. Diaz concluded the children’s stories about
father “appear un-coached and completely authentic to the events they say have
occurred.”

At
the hearing on disposition, Diaz testified that the children would be at risk
if placed with father, but would not be at risk if placed with mother. Diaz developed a plan with the goal of the
children having healthy and stable relationships with both father and
mother. According to Diaz, mother had
complied with the plan. The children
appeared comfortable with mother and wanted to live with her. Diaz concluded that A.K.2 was “traumatized”
and has been overwhelmed by “the events.”
Diaz described mother as having progressed and developing insight into
improving the situation. Diaz was aware
that father had concerns about mother’s interaction with the children.

A
social worker testified that mother had been very cooperative, involved, and
consistent with her visitation. Mother
was appropriate and very loving during her visits. Mother was participating in the services called
for by her case plan. The social worker
stated that mother showed insight into the issues that brought her into the
system. She did not believe mother posed
any risk to the children. The social
worker heard mother tell the children that she hoped they had a relationship
with father and never heard mother try to turn the children against
father. Father had not visited as
regularly as mother.

Mother
requested custody of all three children and father requested custody of A.K.
and A.K.2. The children’s attorney
argued that the children could not be protected if placed with father. Counsel for the children argued that the
children were suffering harm from being separated from each other, their home,
their school, and their familiar surroundings.

>4. Juvenile Court Orders Children Placed in
Foster Care

The
court initially found that the children were adequately protected by the family
law court and terminated jurisdiction.
The court concluded that the family law court had “a very good read on
the case.” The juvenile court indicated
that the case should return to family law court with the same custody
arrangements ordered by the family law court.


But
the court subsequently changed its dispositional order. In changing its order, the court relied on
Dr. Maloney’s conclusion that a neutral setting would be appropriate for the
children because they would not be subject to the negative influences of either
parent. The court found it necessary to
place the children in foster care, because the parents and extended family were
not neutral. The court found by clear
and convincing evidence removal from the parents’ custody was necessary to
avoid a substantial danger to the children’s physical or mental health. The court ordered C.K. placed with her
sisters only if DCFS could ensure that she would not be left alone with her
sisters.

Mother
and father appealed from the dispositional order, but father abandoned his
appeal and is not a party. DCFS has
taken no position on appeal.

DISCUSSION

1. The Juvenile Court Lacked Sufficient Evidence
to Find the Children Would Suffer Substantial Danger if Placed in Mother’s
Custody

Mother
challenges the juvenile court’s finding that the children needed to be placed
in foster care. “‘[I]n dependency
proceedings the burden of proof is substantially greater at the dispositional
phase than it is at the jurisdictional phase if the minor is to be removed from
his or her home. [Citations.] [¶]
This heightened burden of proof is appropriate in light of the
constitutionally protected rights of parents to the care, custody and management
of the children. [Citation.] [¶]
“‘Parenting is a fundamental right, and accordingly, is disturbed only
in extreme cases of persons acting in a fashion incompatible with
parenthood.’ [Citation.] ‘In furtherance of these principles, the
courts have imposed a standard of clear and convincing proof of parental
inability to provide proper care for the child and resulting detriment to the
child if it remains with the parent, before custody can be awarded to a
nonparent.’ [Citation.]” [Citation.]’
[Citation.]” (>In re Isayah C. (2004) 118 Cal.App.4th
684, 694.)

The
presumption is that the children will be returned to parental custody. (In re
Marilyn H. (1993) 5 Cal.4th 295, 308.)
“[T]he burden is on the state to prove by clear and convincing evidence,
that removal of the child from the parent’s custody is necessary.” (Ibid.) Thus, the court may remove the children only
if the presumption is rebutted by clear
and convincing evidence.

Here,
whether we review the juvenile court’s finding for substantial evidence or
abuse of discretion the order placing the children in foster care must be
reversed. (See In re Isayah C., supra, 118
Cal.App.4th at pp. 694-695 [applying substantial evidence standard of
review]; but see In re Gabriel L.
(2009) 172 Cal.App.4th 644, 652 [applying abuse of discretion standard of
review].) There was no evidence that
mother posed a substantial danger to the children’s physical health or mental
well-being. There was no evidence mother
physically abused the children or that the children were at risk of physical
abuse in mother’s care. The children
were not afraid of mother and wanted to live with her, which was the
recommendation of therapist Diaz and DCFS.
Although there was evidence that mother made disparaging remarks about
father, there was no evidence those remarks affected the children’s mental
well-being substantially enough to warrant placement in foster care. Even Lopez, who was critical of mother,
concluded that the children were not likely to suffer harm if they were placed
in her care.

At most, the
evidence showed that the children may have been exposed to disparaging remarks
about father if placed in mother’s care.
Dr. Maloney’s conclusion, on which the juvenile court heavily relied,
was that the children should be placed in a neutral home because the parents
made negative remarks about each other.
That evidence is insufficient to combat the presumption that a child
will be placed in his or her parent’s care because it does not show the
children were likely to suffer substantial danger from being placed in mother’s
home. In short, no evidence supported
the finding that the children were at risk of substantial danger if placed in
mother’s care.

The evidence
also does not show that no reasonable alternative existed to removing the
children from mother’s custody.
Moreover, mother had complied with the case plan, attended individual
therapy, attended numerous parenting classes, and, according to her therapist,
had developed insight into her situation.
No contrary evidence was presented.
At the dispositional hearing, it was undisputed that mother encouraged
the children to develop a better relationship with father.

>2. The Juvenile Court Must Order a New Disposition


Mother argues that under
Welfare and Institutions Code section 361.2, the juvenile court was required to
place the children in her custody.href="#_ftn1" name="_ftnref1" title="">>>[1]> Section 361.2, subdivision (a)
provides: “When 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.”

Under
section 361.2, if the court ordered
removal from father pursuant to section 361, it was required to place the
children in mother’s care unless such placement posed a risk to the children.href="#_ftn2" name="_ftnref2" title="">>[2]> (See >In re Z.K. (2011) 201 Cal.App.4th 51,
70.) However, no juvenile court findings
support removal from father and we cannot speculate that the court would
conclude father posed a risk to the children.
The record suggests that the juvenile court credited father, because it
stated that the family law court had a “good read” on the family and initially
ordered the children returned to father’s custody. Thus, mother cannot show that placement of
the children in her care is mandated by section 361.2. Instead, the court must first determine
whether the children should be removed from father.href="#_ftn3" name="_ftnref3" title="">>[3]>

Finally,
no evidence supports mother’s argument that the juvenile court was punitive
against her because she manipulated the system to spend more time with the
children. To the extent the juvenile
court was concerned with mother’s efforts to manipulate a family law case
because she was unhappy with the family law court’s order, that concern was
justified.href="#_ftn4" name="_ftnref4"
title="">>[4]> “The family
court, rather than the juvenile court, is the proper forum for adjudicating
child custody disputes. [Citation.] ‘The juvenile courts must not become a
battleground by which family law war is waged by other means.’ [Citation.]
‘If indeed there is ever a place for it, the place for a custody battle is
in the family law courts. There the
battle will not consume public resources which are better directed to children
who typically do not have the luxury of two functional parents fighting for
custody . . . .’ [Citation.]” (In re
Alexandria M. (2007) 156 Cal.App.4th 1088, 1096.) The court’s initial order terminating
dependency jurisdiction was consistent with this bedrock principle that custody
disputes belong in family not juvenile court.
Mother’s belief that the family law trial was “going badly” does not
justify changing the forum for the custody litigation. (See fn. 4, ante.)

DISPOSITION

The juvenile court’s dispositional
order is reversed. The case is remanded
to the juvenile court for further proceedings consistent with this opinion.



FLIER,
J.



We concur:



BIGELOW, P. J.



GRIMES, J.