In re Darryl B.

Filed 7/25/08 In re Darryl B. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Steven Berman, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Reversed and remanded.

Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Fred Klink, Deputy County Counsel, for Plaintiff and Respondent.

___________________________________________________

In this appeal, a presumed father challenges the juvenile courts dispositional order. Though he is a nonoffending parent, appellant was denied custody of his son. We conclude that the juvenile courts refusal to give custody to appellant is not supported by substantial evidence, because there is no showing that giving custody to the father would be detrimental to the child. Accordingly, we reverse the dispositional order.

FACTS

Appellant Andrew B. is the father of Darryl B., born in October 2000. Darryl was in the custody of his mother, Dianna G. (Mother).^[1] Mother was in a relationship with a man named Nicholas (Boyfriend), who sometimes baby-sat Darryl.

On June 28, 2007, appellant received word from a friend that Darryl was being abused by Boyfriend. Appellant went to Mothers residence. Mother was not at home, but a bruised Darryl was there with Boyfriend. Darryl informed appellant that Boyfriend had hit and kicked him. Appellant called the police, and Darryl was taken to a hospital for a medical examination. The Department of Children and Family Services (DCFS) was contacted as well.

Darryl was interviewed at the hospital by the police and by DCFS. Darryl told his interviewers that Boyfriend hit him in the eye; kicked him in the buttocks while wearing shoes; grabbed him by the neck; and threw him on the floor. Darryl told Mother about the abuse. Darryl stated that Boyfriend is mean to me and that the abuse was painful. By contrast, when asked how appellant imposes discipline, Darryl answered, He just talks to me. Hospital staff observed that Darryl had a black eye; bruises on his buttocks, thigh and both sides of his face; and a hematoma on the back of his head. A nurse and a doctor opined that Darryls injuries were consistent with child abuse.

Mother denied that Boyfriend abused Darryl and denied any duty to take Darryl for medical treatment. She attributed the black eye to Darryls hitting himself with a boxing glove. Darryl was removed from Mothers custody because she failed to protect him. Appellant wanted custody of Darryl, but was staying with a friend and had a criminal history. Darryl was taken into protective custody and placed in foster care.

A dependency petition was filed on July 3, 2007. It alleged that Mother failed to protect Darryl from physical abuse by Boyfriend; that appellant failed to provide Darryl with basic necessities such as food, clothing, shelter and medical care; and that Darryl was subjected to acts of cruelty, which places him at risk of harm. Prior to the detention hearing, DCFS reported that Darryl had adjusted well to his foster home. Darryl was reluctant to speak on the telephone with Mother and told her, Im not coming back to you. Darryl was happy to talk to appellant and told appellant that he loved him.

At a detention hearing on July 3, 2007, the court found that appellant is a presumed father. Appellant told the court that he visits Darryl daily, waking him up, taking him to school, and bringing him home. Appellant asked to be given custody of Darryl because they have a close relationship and because appellant protected Darryl by reporting his injuries to the police. DCFS opposed placement with appellant due to his criminal record, which includes domestic violence, drug possession, cruelty to a child, robbery, and driving under the influence. Appellant and Mother denied the allegations in the petition. The court found a prima facie case for detaining Darryl and gave DCFS discretion to place Darryl suitably. Mother was ordered to take parenting classes and participate in domestic violence counseling. Appellant was ordered to participate in drug testing and domestic violence counseling.

In August 2007, DCFS reported that Darryl was in foster care, where he was doing well. In an interview, Darryl repeated that Boyfriend physically abused him on numerous occasions, punching him in the face and kicking him in the buttocks. Mother did not take him for medical treatment for his injuries. In her interview, Mother continued to doubt the cause of Darryls injuries, believing that they resulted from Darryls outdoor physical activities; however, Boyfriends inadequate explanation for Darryls black eye led her to end her relationship with Boyfriend, and she intended to do whatever is necessary to protect Darryl from future injury. Mother stated that appellant did not assist the family financially, other than living in Mothers home for a period of time and providing day care for Darryl while Mother worked. For his part, appellant expressed grave concerns if Darryl was left in Mothers care. He agreed that he did not provide direct financial support for Darryls care, but he assisted by providing baby-sitting services, taking the child to school, feeding him, and occasionally purchasing an article of clothing for him. Appellant had begun monitored visits with Darryl, which went well, and spoke to Darryl by telephone two or three times per week. Mother had not visited Darryl since his detention, and spoke to him only a few times by telephone.

DCFS reported that neither Mother nor appellant were suitable placements for Darryl. Appellant has an extensive criminal history, and there was an outstanding warrant for his arrest for drug trafficking in Colorado. Neither parent had begun court-ordered counseling and classes. Appellant had started drug testing and had one clean test. As of the time of the August report, none of the issues that brought this family to the attention of DCFS have been addressed.

The petition was adjudicated on August 27, 2007. Appellant contested the allegations that he failed to provide Darryl with basic necessities. Appellant testified that he lived with Mother and Darryl from September 2006 until April 2007. During that period, he was responsible for all aspects of Darryls daily routine, from the time the child awoke until he went to bed at night. They went out to eat twice a week. Appellant occasionally purchased clothing and food for Darryl. After appellant separated from Mother, he had daily contact with Darryl, until one month before Darryls detention, when Mother curtailed appellants access to Darryl. Since Darryls detention, appellant had had weekly monitored visitation, taking a two-hour bus ride each way to see his son. They speak by telephone daily. Appellant has not been employed since 2005 and has no income. He lives in his fiances apartment with two children.

Appellant described his criminal record: burglary (1998); possession of marijuana with intent to distribute (2002); domestic violence (2000 or 2001); and battery on a child (2006). As to the last conviction, appellant entered a guilty plea to avoid prison. The victim was the four-year-old son of his then-girlfriend. He denies battering the child. Appellant also has a conviction for driving under the influence (2006) and five convictions for driving without a license. He has been incarcerated probably more than 10 times. Appellant took 48 domestic violence classes.

At the conclusion of appellants testimony, the court found the allegations against appellant to be untrue. The court sustained the allegations against Mother, finding that she failed to protect Darryl from being beaten up by Boyfriend, and that Darryl was subjected to acts of cruelty. Darryl was declared a dependent of the court. After the allegations against him were dismissed, appellant asked for custody of Darryl, as a nonoffending parent. He argued that he has a close relationship with Darryl, and can provide a stable residence at the home of his fiance. DCFS argued that it would be detrimental to place Darryl with appellant due to his extensive criminal history.

The court gave custody of Darryl to DCFS, for suitable placement. The court stated, Pursuant to [Welfare and Institutions Code section] 361.2, and considering the best interest of the child, the court does find that it would be detrimental for the safety, protection, and physical, and emotional well-being of the child to be placed with father. Father, by his own testimony, has at least 10 incarcerations in state custody. . . . [A]nd he has a recent conviction for drunk driving, five convictions for driving without a license, and a conviction for child abuse, conviction for domestic violence, in addition to other felonies and misdemeanors. The father is requesting custody of the child. He says he can provide support for the child; however, the only support, basically, hes provided in the past would be baby-sitting services at the mothers residence. Hes never had his own residence. The child has never lived in his residence. . . . Its also noted that father has not had a job in--he had a two-and-a-half-month job that was probably the only one in the last 10 or 15 years because of the incarcerations. Appellant was ordered to have 10 weekly drug tests, attend a rehabilitation program for drugs and alcohol, clear all warrants, and participate in a domestic violence program, parent education, and individual counseling.

DISCUSSION

1. Overview Of Welfare And Institutions Code Section 361.2^[2]

Appeal is properly taken from the dispositional order. ( 395; In re Sheila B. (1993) 19 Cal.App.4th 187, 196.) On appeal, appellant contends that he is entitled to custody of Darryl because he is a nonoffending, noncustodial parent and is therefore presumptively entitled to custody. (In re Catherine H. (2002) 102 Cal.App.4th 1284, 1292.) The courts decision at the dispositional stage is critical to all further proceedings. Should the court fail to place the child with the noncustodial parent, the stage is set for the court to ultimately terminate parental rights. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1829.)

If a nonoffending, noncustodial parent desires custody and requests it, 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 legislative preference is for placement with the nonoffending, noncustodial parent. (In re John M. (2006) 141 Cal.App.4th 1564, 1569; In re Austin P. (2004) 118 Cal.App.4th 1124, 1132.) Section 361.2 gives temporary physical custody to the nonoffending noncustodial parent if doing so will not be detrimental to the child, but [ ] the court may not terminate jurisdiction until it analyzes whether ongoing supervision of the child is necessary. (In re Austin P., supra, 118 Cal.App.4th at p. 1129.)

When applying section 361.2, the juvenile court must find by clear and convincing evidence that giving custody to the noncustodial parent would be detrimental to the child. (In re John M., supra, 141 Cal.App.4th at p. 1569.) On appeal, we review the record in the light most favorable to the judgment to determine whether there is substantial evidence to support a finding that the child would suffer detriment. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881.) The focus is on the best interests of the child, not on the conduct of the parent: although a jurisdictional finding is predicated on parental conduct, a detriment finding for purposes of deciding placement with a noncustodial, nonoffending parent need not be. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425.)

2. Detriment To The Child

a. Lack of Financial Resources

The juvenile court denied appellant custody of Darryl in part because he has not provided much financial support in the past, other than baby-sitting services. Also, the court considered that appellant does not have his own residence. Finally, the court cited appellants lack of employment.

Detriment to the child is not demonstrated by evidence that the noncustodial parent is unemployed or lives with a friend or relative. (In re Danielle M. (1989) 215 Cal.App.3d 1267, 1270-1271.) If a parent in financial straits were to obtain custody, he would be eligible for AFDC payments and housing assistance. (Id. at p. 1270.) The court cannot deny custody to a parent who can provide good care for his child simply because the parent is unemployed or shares a home with another. (Id. at p. 1271. See also In re Jeannette S. (1979) 94 Cal.App.3d 52, 60: The fact that the [fathers shared] home was small, that [father] was unemployed and that he had a drinking problem does not support a finding that it would be detriment to [the minor] for her to be with her father [and his co-tenants] rather than the Department.)

The court in this case could not deny custody to appellant based on appellants lack of a job or because he lives in his fiances home (with two children) instead of in his own residence.^[3] These factors cannot be relied upon to show detriment to Darryl, especially since there was no evidence that the home was unsuitable. The court rejected the allegations against appellant made in the petition, implicitly finding that appellant had taken care of Darryl in the past and was able to do so in the future. It makes no difference that appellant would care for Darryl in the home of his fiance. In short, there is simply no evidence that appellants living quarters or financial situation pose any threat to Darryls health, safety or well-being. Poverty is not a reason for the state to deny a parent custody of his child.

b. Criminal History

The court relied upon appellants criminal history when it denied him custody of Darryl. Merely having a history of criminality is not a reason to deny custody to a nonoffending, noncustodial parent. There is no Go to jail, lose your child rule in California. (In re S.D. (2002) 99 Cal.App.4th 1068, 1077.) Even parental imprisonment during the dependency proceeding is not a disqualifying factor. (In re V.F. (2007) 157 Cal.App.4th 962, 971-973.) For example, in In re Isayah C. (2004) 118 Cal.App.4th 684, the juvenile court erred by removing custody from a nonoffending father who was incarcerated in San Quentin: because the father planned to send the child to live with relatives pending his release from prison, it was impermissible for the court to consider the fathers incarceration as a detriment to the child. (Id. at pp. 700-701.) The court did not deem the serious nature of the fathers criminal history--convictions for homicide and methamphetamine possession--to be an impediment. (Id. at p. 690, fn. 5. See also In re Jeannette S., supra, 94 Cal.App.3d at p. 60 [nonoffending, noncustodial fathers arrest for child molestation 13 years earlier not deemed an impediment to obtaining custody of his five-year-old daughter].)

The constitutional right of a parent to the care, custody and management of a child will not be disturbed except in extreme cases where a parent acts in a manner incompatible with parenthood. (In re Marquis D., supra, 38 Cal.App.4th at p. 1828.) As a result, the state cannot intervene in parental childrearing in the absence of clear and convincing evidence of a need to protect the child from severe neglect or physical abuse. (In re Isayah C., supra, 118 Cal.App.4th at p. 696.)

There is no substantial evidence to support a finding that appellants criminal history poses a threat to Darryls safety, protection, or physical or emotional well-being. There is no evidence that the warrant for appellants arrest in Colorado is likely to result in incarceration, or that appellant would be unable to make suitable arrangements for Darryl if that occurred. Although appellant pleaded guilty to battery on a child, Darryl was not the victim. On the contrary, the DCFS reports indicate that appellant has a close and loving relationship with Darryl. For an eight-month period ending in April 2007, appellant was responsible for all aspects of Darryls daily care from the time the child awoke until he went to bed. When asked how appellant imposes discipline, Darryl replied, He just talks to me. During the dependency proceeding, appellant spoke daily to Darryl by telephone and made a four-hour bus trip to see his son every week. Appellant was the person who brought Boyfriends abuse of Darryl to the attention of the police and DCFS. Appellant has not acted toward Darryl in a manner that is incompatible with parenthood, and we cannot presume that appellants past criminality deprives him of the ability to take care of his son.

3. Case Plan Requirements Imposed On Appellant

Appellant challenges the court-imposed requirements that he participate in drug and alcohol testing, and attend a domestic violence program. At the disposition hearing, the court must order a plan for the family to facilitate reunification. ( 361.5, subd. (a); In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) The reunification plan must be tailored to the particular individual and family, addressing the unique facts of that family. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.) The plan is reviewed for an abuse of discretion. (In re Christopher H., supra, 50 Cal.App.4th at p. 1006.)

If the record shows that a parent has a substance abuse problem, and has been arrested for driving under the influence, it is appropriate for the court to order drug and alcohol testing to address the parental deficiency. (In re Christopher H. supra, 50 Cal.App.4th at pp. 1007-1008.) In this case, appellant testified that he has a 2006 conviction for driving under the influence and a conviction for marijuana possession. Appellants drug and alcohol convictions substantiate the order for 10 random drug and alcohol tests and a rehabilitation program. Similarly, appellants convictions for domestic violence and battery on a child substantiate the order for domestic violence counseling. There was no abuse of discretion.

4. Options On Remand

We have determined that substantial evidence does not support the juvenile courts finding of detriment to Darryl. On remand, the court should consider the statutory options: (1) giving custody to appellant and terminating jurisdiction; (2) placing Darryl with appellant under the courts continuing jurisdiction and requiring a home visit by DCFS within three months; or (3) placing Darryl with appellant under the courts supervision while reunification services are provided to Mother. ( 361.2, subd. (b)(1)-(3).)

We are cognizant that nearly one year has passed since the courts dispositional order was made. We cannot presume that circumstances cannot have changed in the interim. They always do. (In re S.D., supra, 99 Cal.App.4th at p. 1083.) It may be that Darryl cannot be placed in appellants custody for factual reasons that do not appear in the record before us. It may be that Mother has successfully completed her case plan and Darryl has been reunited with her. Because we are unaware of intervening factual developments and court orders, we cannot speculate on their effect on this familys current situation. [W]e leave it to the sound discretion of the trial court to determine what procedural steps, and what result, are appropriate at this juncture in light of our reversal, the grounds on which it was based, and the current state of affairs in Darryls family. (In re Isayah C., supra, 118 Cal.App.4th at p. 701.)

DISPOSITION

The judgment (disposition order) is reversed, and the case is remanded for further proceedings consistent with this opinion

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

DOI TODD, J.

CHAVEZ, J.

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^[1] Mother is not a party to this appeal.

^[2] All further statutory references are to the Welfare and Institutions Code.

^[3] Though DCFS characterizes the woman as a friend, it did not refute appellants testimony that he is engaged to her, given at the disposition hearing.