In re Craig G.

Filed 9/12/07 In re Craig G. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County. Sherri Sobel. Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. Da Vanzo, Principal County Counsel, for Plaintiff and Respondent.

_______________________

Appellant, the mother of minors Craig, Jenna, Erick and Brian, appeals from the disposition findings and order declaring the children dependents within the meaning of Welfare and Institutions Code section[1]300, subdivisions (b) and (j) and removing the children from her custody. The juvenile court placed Craig and Jenna with their respective fathers and terminated jurisdiction as to them. Craigs father lived in Arizona. The court placed Erick and Brian in foster care and ordered reunification services for appellant. Appellant contends that there was insufficient evidence to justify the order removing the children from her custody, the finding reasonable efforts had been made to prevent removal or the order for monitored visits and that the juvenile court failed to consider the detriment to Craig and Jenna in placing them with their respective fathers. We affirm.

FACTUAL AND PROCEDURAL SYNOPSIS

I. Pre-detention

The children came to the attention of respondent Department of Children and Family Services (Department) when it received a referral they were being neglected by appellant. On August 3, 2006, a social worker interviewed Craig and Jenna at the maternal grandmothers home; they told the social worker appellant had spent several days in a row at the home of their deceased grandfather because she was cleaning the house for sale and their maternal grandmother or maternal uncle[2]and his girlfriend were looking after them.

On August 4, the social worker tried to talk to appellant by calling the grandmothers house. The uncle answered and stated appellant had not come back from the grandfathers house. The uncle stated appellant put a lot of responsibility on Craig. The social worker told the uncle she was concerned Erick and Brian, the younger boys, were overweight, and the uncle said they drank too much milk and he had been trying to change that.

On August 8, appellant returned the social workers calls and agreed to meet the next day at the grandmothers house. When the social worker arrived the next day, no one answered the door. When the social worker came back half an hour later, the uncle answered the door and told the social worker if she wanted to come into the home, she needed a warrant. The uncle did not know where appellant was. The social worker left several messages for appellant on her cell phone, but appellant did not return the calls.

On August 13, a referral was generated alleging Brian had been the victim of appellants neglect in that his finger was crushed while not being properly supervised. Dr. Nguyen, the treating physician, stated Brians right pinky finger had almost been amputated. At the hospital, the doctor had observed that Brians father Philip (Phil) had been drinking.

On August 14, the social worker re-interviewed Craig and Jenna. Craig claimed an 18-year-old babysitter named Sean had been looking after the smaller children. Jenna was with Brian when Brian closed the door on his own finger. Jenna confirmed Sean was the babysitter.

On August 15, two social workers went to the grandfathers house looking for appellant, but could not locate her there. In the company of two police, the social workers then went to the grandmothers house, where they met the uncle, who claimed he was home alone and appellant and the children were at a nearby motel. The uncle allowed the social worker to step inside the house to verify appellant and the children were not there. The social worker found the house was very messy and cluttered with clothes and other items on the floor.

The social worker went next door and interviewed Sean, who stated he did not baby-sit the children. Sean explained Craig had come over and asked Sean to say he (Sean) had been the babysitter because he (Craig) was afraid he would get in trouble. Craig told Sean that Brian was bleeding, and Sean went over and called 9-1-1. Sean called the grandmother, who came home later. Sean tried to call appellant, but could not reach her.

The social workers, accompanied by police, went to several locations trying to locate appellant and her children; they found appellant was registered at a Motel 6, but she was not there. One social worker left a telephone message for appellant, and appellant returned the call, but told the social worker she was too busy to be interviewed.

On August 16, the social worker, again accompanied by police, went back to the Motel 6 and again appellant was not there although appellant was still registered at the motel. The social worker and police went back to the grandmothers house. Grandmother opened the door and said appellant and the children were at a friends house, but she did not know the address or telephone number. Grandmother claimed that on the day of the accident, she left the children at home for an hour and asked Craig to ask Sean to look after them.

Appellant called the social worker on August 16 wanting to know if the social worker intended to detain her children. The social worker told appellant that decision would be made after the children had been interviewed. A few minutes later, grandmother called and asked the social worker if she was going to detain the children, and the social worker explained she would need to make an assessment before she could answer that question. Then, a few minutes later, appellant called again and put Craig on the line. Craig told the social worker that he did not want to meet with her and this chance was her only chance to ask him any questions. The social worker asked to talk to appellant, and appellant said she would not allow the social worker to detain her children. Appellant hung up the phone after the social worker told appellant she would seek a warrant for appellants arrest.

The trailer park manager at the park where the grandmother lived told the social worker she had seen the children running around, half-naked, in the heat, and unsupervised. The manager said lots of people had wanted to call the Department, but no one wanted to get involved.

Appellant brought the children to court after receiving a call the court was going to issue a warrant for her arrest.

Prior to the filing of the instant petition, there had been 11 referrals pertaining to this family: 5 were unfounded, 4 inclusive, and 2 substantiated. The first substantiated one was in 1996 for neglect when appellant had left Craig alone and went down the street to get a beer. Appellant admitted having been on a two-day methamphetamine binge. The other substantiated referral was from April 2006 for emotional abuse by Phil (the father of appellants two youngest children).

II. Detention

The Department filed a section 300 petition on August 18, 2006. The petition alleged that on or about August 14, neither appellant nor the assigned caretaker (the grandmother) was present when Brian crushed his finger in a door, nearly causing amputation. The petition also alleged Craig had formerly been a dependent of the court based on allegations of appellants substance abuse and her leaving him without adult supervision.

At the August 18 detention hearing, the court found Calvin to be the declared father of Craig, Mark to be the declared father of Jenna, and Phil to be the presumed father of Erick and Brian. Although appellant asked the children be released to her or the paternal grandmother (Phils mother), the court detained them in foster care. The court stated it was detaining the children, at least in part, because of appellants efforts to evade the social worker. The court ordered investigation of the homes of Craigs and Jennas fathers. The court ordered siblings visits and awarded appellant monitored visits at least twice a week and ordered her to participate in random drug tests.

On August 25, the court released Jenna to her father, placed Craig in foster care and placed Erick and Brian with their paternal grandmother.

The Department filed an amended petition in September adding allegations that appellant and Phil had engaged in violent altercations in front of the children on numerous occasions, including but not limited to, Phil pushing appellant to the floor, causing her to hit her head on a dresser. Phil had also broken down a door.

In September, the Department reported Craig maintained at the time of Brians accident, Sean was watching the children at Seans, and Jenna and Brian went back to grandmothers house. Craig had to baby-sit [o]nce in a while. Jenna said Craig was usually in charge. Jenna had to change her younger brothers diapers a lot, her brothers messed up the house and she had to clean it up. Jenna said [m]y older brother has to watch us [without] my mom or grandma. Craig and Jenna said Phil drank and became mean and yelled a lot when he drank and hit appellant.

Calvin, Craigs father, who had only found out he was Craigs father in the last two years, stated Craig had told him the children were left alone all the time. Craig called himself Mr. Mom. Craig would get upset with his grandmother because he did not have any help looking after the younger children. Mark, Jennas father, stated appellant often left the children alone and Craig and Jenna played a big parental role, having to change a lot of diapers and doing other work around the house. When Jenna visited his house, she would take over looking after her half-brother, getting him to bed, bathing him, etc. Mark and his wife constantly told Jenna looking after her brother was not her job. Calvin and Mark believed their children would be better off living with them. In particular, Calvin felt his son should not have to be the parent in the household.

Appellant had a criminal record, including arrests for burglary and trespass, but she had not been convicted of any crimes. All parties indicated appellant had been clean and sober for approximately 10 years. For the past several months, since the death of her father, appellant had been less available because she was preparing her fathers house for sale.

In March 2006, after a fight, appellant got a restraining order against Phil. The order was effective to 2009. Appellant admitted she needed domestic violence and individual counseling. Craig and Jenna stated they wanted to go home to appellant. Craig said he wanted his brothers to go home more than himself.

Appellant said Phil had used speed in 2002 and hit her in 2002 because she was with another man; afterwards, appellant obtained a restraining order against Phil. Grandmother said when Phil was drinking he could be very abusive, he had repeatedly hit appellant, he had been arrested for drug possession several times, and a couple of weeks previously, he had yelled at Brian and raised his hand to Brian. Phil claimed appellant and grandmother had both slapped him. Phil admitted he had slapped appellant four or five years ago because she slapped him.

Phils mother blamed his problems with domestic violence on appellant and claimed he was the victim of domestic violence by appellant who yelled and screamed a lot. A few weeks before, Phils mother tried to remove Erick from a yelling and screaming match between appellant and Phil. Phil had always lived with his mother. (CT 95-96, 100)~Phils mother opined Craig needed to be a kid not a parent and the children had no supervision and should not go back to appellants care.

The social worker opined appellants present mental health issues stemmed from the loss of her father and maternal grandmother. The social worker believed appellant was physically and emotionally unable to look after her children. The grandmother worked full time which left Craig and Jenna with the responsibility of looking after themselves. Furthermore, appellant had exposed the children to Phils acts of domestic violence and could not protect them from him.

At the September jurisdictional hearing, the court sustained the petition as amended and detained the children.

The court gave the Department discretion to release Craig to his fathers custody. County Counsel put on the record that appellant and Phil had agreed the allegations regarding their past substance abuse be dismissed on the condition that they submit to six consecutive and random drug tests, and, if any test was dirty, they would complete a drug rehabilitation program.

The November Department report indicated the children were in three separate placements. Erick and Brian had been placed in a foster home because the paternal grandmother did not have time to look after them. Appellant stated she wanted to raise her children with Phil. Phil said appellant was a good mom and this was a bunch of crap.

Appellant wanted custody as did the fathers. Craig and Jenna wanted to live with appellant. Jenna also said her father was very nice and she liked living in his home. The children were all in good health and developmentally on target. The Department recommended that Craig and Jenna be placed with their fathers and jurisdiction be terminated and that Erick and Brian be suitably placed and appellant and Phil given reunification services as to the two younger boys.

An October 30 facsimile from the social worker attached a verification that appellant had attended three sessions of individual counseling, enrolled in a domestic violence program, and attended her first support group. Also attached were three negative drug tests.

III. Disposition

On November 1, appellant and Phil signed a court-ordered case plan that provided they would each submit to six random drug and alcohol tests, participate in a 52-week domestic violence program, and individual counseling to address case issues. Appellant agreed to the suitable placement of all four children and monitored visits.

On November 1, the court commenced the contested disposition hearing. Appellant requested the return of all her children, but specifically requested the return of Craig and Jenna. Minors counsel, who represented all the children, indicated Craig wanted to go home to appellant. Counsel supported Craigs choice. Counsel noted Jenna missed appellant tremendously but was fine with her father. The court noted appellant was just starting on her programs and this was the second time Craig had been removed from her custody.

Craig testified. Craig had lived with appellant all his life except for a short period when he was two years old when he was in foster care. Craig was raised by appellant and grandmother. Craig wanted to return to appellant regardless of whether his siblings returned. If Craig could not be returned to appellant, he wanted as much contact as the court would allow. Before his grandfather died, appellant made sure everything was perfect; the house and clothes were clean and the children were fed and bathed. Appellant made sure Craig did his homework, and his grades were pretty good.

In the last four months Craig lived with appellant, she asked him to help care for his siblings; he did the dishes and the laundry, picked up, gave baths to the younger children and changed their diapers. Appellant would be home every other day, but Craig was not left alone as his grandmother, uncle or uncles girlfriend were present in the house. Craigs chores were typical of those required of his friends and did not interfere with his homework. Even after his grandfather died, appellant helped Craig with his homework and he could get in touch with her by cell phone. Craig did not participate in any extracurricular activities.

Before the case started, the first time Craig met his father was two summers ago when he saw his father for about a day. Afterwards, Craig talked to his father once a month on the telephone. Craig was comfortable at his fathers house. Craig would be okay living with his father and visiting his siblings. Since being removed from appellants home, Craig had not seen his sister at all and only seen his brothers once. Craig was worried about going to Arizona to live with his father because he was concerned he would not get to see his siblings or appellant.

Jenna testified. Jenna wanted to live with appellant and missed her, but Jenna had no trouble staying with her father. Jenna had been happy at home with appellant. After Jennas grandfather died, appellant was sad and talked to Jenna about her sadness. Jenna could talk to either appellant or her dad about being sad and thought they both would listen to her. Jenna did not have any problem with her dad, and he treated her well. Jenna had seen Erick and Brian twice a week but had not seen Craig since being taken from appellant.

The court continued the hearing and ordered Craig to spend at least one weekend with his father in Arizona and have a monitored Thanksgiving visit with appellant. The court castigated the Department for failing to make sure the court-ordered sibling visits occurred. As the class schedules of Craigs current school and the school in his fathers district were nearly the same, over appellants objection, the court ordered Craig be released to his father as of December 26.

At the continued hearing, appellant brought documents to court she had not previously given to the Department for investigation. The Department, as well as counsel for Craigs father and Jennas father, all objected to admission of the unauthenticated documents. The court ruled the documents were not to be admitted into evidence.

Appellant testified that except for Craig, the children had lived with appellant since their births. Craig was taken out of her care when he was about a year and a half old and remained out of her care for about one year because she left him alone in the middle of the night and because she was using drugs and alcohol. Appellant went into rehabilitation for a year, which included individual counseling, random drug testing and 12-step meetings. Appellant had been sober since Craigs return 10 years earlier.

During the 10 years between the two dependency cases, appellants mother assisted appellant from time to time in caring for her children. Appellant was the one who provided for them. Just prior to Brians injury, there had been a referral to the Department, but after interviewing appellant and the children, it had not filed a petition or entered into a voluntary contract with appellant.

On the date of Brians injury, appellant left the children in the care of her mother so she could prepare her fathers house for sale. Neither her mother or brother had left the children alone before. Appellant was now finished working on her fathers house.

Prior to this case, Craig had not spent much time with his father, but they were now building a relationship, which was good for Craig.

Since the children had been taken away, appellant had made improvements in her home to better accommodate her family. Although she would like Craig to have his own room, appellant had erected a wall dividing a large room into two rooms so the boys could have their own room, and she would share a room with Jenna. The grandmother had her own room, and the uncle had one of the two living rooms. The uncle had plans to move out. Appellants goal was to get a job so she had found a childcare provider.

Before her father died, appellant was with her children all the time; she took them to school and helped them with their homework. Appellant took care of the needs of her children including their medical and dental needs. Appellant took her fathers death very hard, but believed counseling had improved her depression and other behaviors and her support groups and classes had helped improve her parenting.

Appellant was in parenting classes, domestic violence group therapy and individual counseling. Appellant had been to 13 counseling sessions over a three and a half month period and in domestic violence groups therapy for almost four months.

Appellant visited as often as possible, two days a week for two hours. Jennas father had not obtained Jennas needed dental care. Appellant encouraged her childrens relationships with their fathers.

Appellant wanted all the children returned to her and believed she could maintain her case plan if they were. Appellant would not let her mother baby-sit. Appellant planned on having a civil, but not personal, relationship with Phil. Appellant respected her childrens wishes and if they did not want Phil around, she would not allow it. Appellant would allow Phil overnight visits with his sons at the home of his mother, an approved monitor.

Phil testified he regarded appellant as the best placement, but if his sons (Erick and Brian) could not be placed with appellant, then he would like them placed with him. Phil was attending a 52-week domestic violence class and had completed a 16-week parenting course. Phil had not visited regularly with his sons since he started working.

Minors counsel argued Erick and Brian, the youngest, should remain in foster care for the time being given their ages and it would be prudent to wait until appellant had completed her programs before returning them to her care. Counsel asked that Jenna remain with her father but expressed concern about the fathers relationship with appellant and the issue of visitation and asked the court to retain jurisdiction. Counsel stated her main concern was Craig and she asked he be returned to appellant, noting that given his age, he could report any problems. Counsel stressed Craig had not been neglected in any way, but emphasized he had gotten good grades and thrived while living with appellant, he wanted to go home and had lived with his father for only a month.

In rendering its decision, the court noted that in the 1996 petition, appellant had abandoned Craig in a dangerous situation and was using drugs. The court mistakenly noted there was domestic violence in the first petition as well as with Phil. The court also expressed concern with the number of referrals to the Department, pointing out the past inconclusive allegations of general neglect and the substantiated allegations of domestic violence in early 2006, followed by the present allegations regarding Brians injury and appellant and Phils history of domestic violence. The court also noted the paternal grandmother testified appellant physically abused Phil and the younger boys had been endangered by the fighting and yelling between appellant and Phil. The court stated it had no evidence appellant was able to care for her children and believed appellant was the same as she had been at the time of the first case.

On January 18, 2007, the court declared the children dependents and placed Craig and Jenna with their respective fathers pursuant to section 361.2, terminated jurisdiction as to them and issued family law orders. As to Craig and Jenna, the court granted joint legal custody to appellant and their respective fathers with physical custody to the fathers and supervised visitation for appellant and ordered visits with their siblings.

The court found there was a substantial danger if the children were returned to the home of their parents and the Department had made reasonable efforts to prevent their removal. The court ordered the Department to provide family reunification services to appellant and Phil with regard to Erick and Brian and ordered appellant to provide six clean consecutive drug tests, and if none were missed or came back dirty, testing was to cease, individual counseling, and 52 weeks of domestic violence counseling. The court awarded appellant monitored visits with Erick and Brian and stated she could have unmonitored visits when she completed her programs.

Appellant filed a timely notice of appeal from the January 18 order.

DISCUSSION

I. Substantial evidence supports the order for removal, the finding the

Department made reasonable efforts to prevent the removal and the order for

monitored visits.

The governing statute, section 361, subdivision (c), is clear and specific: Even though children may be dependents of the juvenile court, they shall not be removed from the home in which they are residing at the time of the petition unless there is clear and convincing evidence of a substantial danger to the childs physical health, safety, protection, or physical or emotional well-being and there are no reasonable means by which the child can be protected without removal. (Emphasis deleted.) (In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.) Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.)

In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the courts determinations; and we note that issues of fact and credibility are the province of the trial court. (Citation omitted.) (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)

A. Removal

Appellant contends the evidence was not sufficient to justify the removal of the children from her custody. According to appellant, the court based its decision to remove the children on: (1) the court assumed she had not been participating in her programs, (2) the court mistakenly believe there were allegations of domestic violence in the first petition and Phil was the second partner with whom such violence had occurred, (3) the court was concerned with the number of referrals, and (4) the court believed appellant was the same as at the time of the first petition.

Appellant claims that even though the court had written proof as well as her testimony about her participation in her programs, the court assumed she had not participated in services. Although the court referred to having nothing from the department as to what mothers doing, it was commenting on the fact appellants participation was not corroborated. The court specifically stated that even though the Department had not had the opportunity to check out appellants paperwork, it had no reason to believe mothers not still involved [in her programs].

The Department concedes nothing in the record shows appellant was the victim of domestic violence at the time of the 1996 dependency proceedings. The court referred to the number of Department referrals, noting there were four inconclusives, which meant they did not know what happened: a general neglect in February 2002; a general neglect, lack of supervision in June 2002; a general neglect due to lack of supervision and emotional abuse in August 2003; and a general neglect, sexual abuse as to Jenna in October 2003. The court expressed concern that appellants testimony had been the same all along, i.e., I am going to make change. I am going to go to classes. I am going to change my life. I will take care of my children. The court noted that appellant had no job and opined appellant was much the same as she was in 1996 as she was still not firmly on her own two feet, and that some of the allegations pertained to the relatives as well.

However, the courts reference to the prior referrals was within the context of its main concern, which was the evidence of the current domestic violence between appellant and Phil. The court quoted the paternal grandmothers unrebutted statement in one report about appellants role in the domestic violence. Appellant had not enforced her recent restraining order as evidenced by the fact Phil was with appellant and Erick at the time she received the news about Brians injury. Appellant dismissively addresses that concern arguing she wisely admitted that domestic violence was something with which she needed help dealing.

Besides the evidence of domestic violence, the record shows that for several months prior to the petition, appellant had left Craig in charge of the younger children (several of the involved adults expressed concern about Craigs having to be the parent) and attempted to evade the Department when the social workers tried to interview her about the allegation of neglect. Noting the stress from her fathers recent death, appellant states she was beginning to work on her problems. The fact appellant had begun to address her problems was not sufficient to protect the children in view of her past history as well as the current existence of domestic violence and neglect.

B. Reasonable alternatives

The court found reasonable efforts had been made to prevent the removal of appellants children from her custody. At the time the children were detained, the court referred to the fact the Department had done everything possible to keep the children with appellant, but she had lied or refused to meet with the social worker. Appellant contends there was no substantial evidence supporting that finding as there was an alternative to removal, i.e., the children could have remained in her care under the supervision of the Department. Minors counsel had urged the court to return Craig to appellant so the court was aware of a possible alternative. The court basically found it was not safe to return the children to appellant because of the domestic violence. Given the domestic violence between appellant and Phil (each towards the other) and her refusal to enforce the restraining order against Phil, leaving the children in her care was not a reasonable alternative at the time of the disposition order. Accordingly, there was sufficient evidence reasonable efforts had been made to prevent removal of the children.

C. Monitored visits

Visitation orders are reviewed for an abuse of discretion; [t]he trial court is accorded wide discretion and its determination will not be disturbed on appeal absent a manifest showing of abuse. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The court awarded appellant monitored visits and specifically stated she could have unmonitored visits when she completed her programs. The court stated, For right now, I just dont have a whole lot of trust in moms ability to complete these programs, yet again, and provide appropriate care, custody and control for her children. The court did not abuse its discretion in putting a condition on appellants visits in view of the domestic violence issue as well as her evasion of the Department.

II. Detriment

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. Section 361.2, subdivision (a) evidences the Legislative preference for placement with [the nonoffending noncustodial] parent. (In re John M. (2006) 141 Cal.App.4th 1564, 1569.)

[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 Marquis D. (1995) 38 Cal.App.4th 1813, 1829.) We must defer to the trial courts factual assessments as we do not have the opportunity to observe the appearance and demeanor of the witnesses. (In re Luke M., supra, 107 Cal.App.4th at p. 1427.)

Relying heavily on In re Luke M., supra, 107 Cal.App.4th 1412, appellant contends the court failed to consider the detriment to Craig and Jenna in placing them with their respective fathers and failed to apply section 362.1. Appellant asserts that in Luke M., the court ruled that a juvenile court should not place with a non-custodial parent pursuant to section 361.2 when it separates siblings. The court made no such general ruling. The juvenile court had placed two of a fathers four children with the paternal aunt and uncle rather than with the father (a noncustodial, nonoffending parent) after finding placing the two children with father in Ohio would be detrimental to their emotional well-being because of their significant bond with their siblings. (Id., at p. 1419.) After three of the four children visited their father in Ohio, one child would cry every time the social worker brought up the subject of residing with the father and another child sobbed when discussing the visit because she was extremely bonded to an older sister, who was not fathers biological daughter and who wanted to stay in California. All the children had repeatedly asked not to be separated from each other. (Id., at pp. 1417-1418.)

On appeal, the father argued the courts consideration of sibling relationships was improper. (In re Luke M., supra, 107 Cal.App.4th at pp. 1419-1420.) Citing various dependency statutes pertaining to sibling relationships, the court concluded a court is authorized to evaluate the appropriateness of keeping siblings together, and to consider sibling relationships as one factor, among many, when determining detriment for purposes of its placement decisions. (Id., at p. 1422.) The court reasoned, A detriment evaluation requires that the court weigh all relevant factors to determine if the child will suffer net harm. Sibling relationships are clearly a relevant consideration in evaluating a childs emotional well-being. Thus, under the statutory scheme governing postremoval placement decisions, a detriment finding can properly be supported by the emotional harm arising from the loss of sibling relationships even in the absence of the noncustodial parents contribution to the detriment. (Citation omitted.) (Id., at p. 1425.)

In the case at bar, unlike the court in Luke M., the court did not make a finding of detriment. We do not review a record for evidence to support a finding (i.e., detriment) not made by the court. It is evident from the courts citation to section 361.2 in its order and its expression of concern about Craig (the court stated it had thought long and hard about him) that the court was applying that section and impliedly found there was no detriment to Craig or Jenna in placing them with their respective fathers. There was no evidence of emotional detriment to Craig and Jenna. Although both children testified they wanted to return to appellants custody and wanted to visit her and their siblings, they did not testify they wanted to be placed with their siblings or that they would suffer if not placed with their siblings. Craig even stated he thought it was more important for his brothers to be returned to appellant. Craig also stated he wanted to return to appellant even if his brothers did not. Thus while Craig and Jenna might have preferred to live with appellant, they were comfortable living with their respective fathers and visiting appellant and their siblings. Furthermore, even though minors counsel asked for the return of all the children to appellant, counsel did not suggest Craig or Jenna would suffer detriment if not placed with their siblings. Appellant stated she had a good relationship with the fathers of Craig and Jenna.

This case contrasts to Luke M., where the social worker opined the children would suffer detriment if separated from their siblings, and a counselor had also determined early in the case that separation would be detrimental to the children. (Id., at pp. 1426-1427.) As noted by the Court of Appeal, The record reveals Luke [one of the children to be placed in Ohio] became very upset while testifying about where he wanted to live. The court commented the record would not come close to revealing the depth of that young mans reaction to the prospect of being separated. The court believed these siblings bond helped them survive and was much closer than in normal sibling relationships. The courts firsthand observations of Lukes demeanor was critical to its determination, and we do not reweigh the evidentiary value of those observations. Substantial evidence supports the courts finding that the children would suffer detriment if placed in Ohio with [the father]. (Id., at p. 1427.)

In considering whether a parent child bond exists which is sufficient to prevent the termination of parental rights, courts have noted that there is always some incidental benefit to interaction between the parent and child. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Similarly, there is always some harm when siblings are placed separately. However, the separation of siblings, particularly where different fathers are involved, cannot per se be a basis to refuse to award custody to the nonoffending parent. In the present case, there was no evidence supporting a high probability that being placed with their respective fathers would have a devastating emotional impact on or be a detriment to Craig or Jenna. (In re John M., supra, 141 Cal.App.4th at p. 1570.)

Appellant hints the court erred by not maintaining jurisdiction because of the visitation issue, but the court issued family law orders addressing visitation.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

JOHNSON, Acting P.J. ZELON, J.

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[1] All statutory references are to the Welfare and Institutions Code.

[2] Grandmother and uncle refer to the maternal grandmother and uncle.