In re G.S.

Filed 12/11/08 In re G.S. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Kern County. H. A. Staley, Judge.

Randall A. Richmond, under appointment by the Court of Appeal, for Defendant and Appellant.

B. C. Barmann Sr., County Counsel, and Jennifer Thurston, Deputy County Counsel, for Plaintiff and Respondent.

Six-year-old G.S. came home from school to find his mother dead on the floor. The whereabouts of his father, James J., the appellant, were unknown. G.S. was adjudged a dependent child. Father was located after a diligent search; he then sought custody. The court ordered father to participate in services but denied him his request to have custody of G.S. Father appeals, claiming the evidence was not sufficient to support the courts finding that placing G.S. with father would be detrimental. We affirm.

Background

When, on November 28, 2007, G.S. found his mother on the floor, he was unable to wake her up and he telephoned 911. Emergency personnel responded and the mother was pronounced dead. G.S. was taken into custody and a petition was filed to find he was a dependent child because he was left with no provision for support.

G.S. was detained on November 28, 2007. At that time the whereabouts of his father were unknown. The Kern County Department of Human Services (department) conducted a search and found father. Father filed a statement regarding parentage on January 15, 2008.

At the jurisdiction hearing on January 15, 2008, the petition was found true and father was elevated to presumed father status from alleged father status. The court ordered father to receive visitation for two hours a week with G.S.

The matter was set for a contested disposition hearing. Father testified at the hearing as a witness for the department and on his own behalf. Father and mother had a one-night stand and he did not find out until six months later that mother was pregnant. Father did not have further contact with G.S. until G.S. was over one year old. Mother called father and asked him to take G.S. When father went to pick up G.S., the house was dirty. He suspected mother was using drugs heavily. G.S. was covered in feces, and G.S. was being fed only formula. Father took G.S. with him.

Father returned G.S. to mother two weeks later. Father wanted to keep G.S. because things were not right, but he had other issues to deal with. Father explained that he could not pay his fines for a guy I nailed and so he had a probation violation. There was a warrant out for his arrest, so he turned himself in and was in jail for three months.

After father was released, he tried to see G.S. but he could not locate him because mother had moved. He asked around trying to find out where mother was living, but was unsuccessful. Then he saw mother on the street once with G.S., but mother did not want to see him and father did not want G.S. to be hurt. He later heard that mother lived near the mall, so father frequented the mall to see if he could see G.S. there one day.

Father has four other children. His mother has guardianship over the oldest child. Father sees the youngest two children. He has had no contact with his 11-year-old daughter S. since she was four years old. The mother of S. had a restraining order against father.

Father testified that he has a criminal record. His criminal record began in 1991 when he was a juvenile and it was found that he committed second degree burglary. In 1993 it was found he was in possession of a knife. In 1999, as an adult, he was convicted of failure to provide for a minor. On that same date he was convicted of battery. Father testified that he pounded a man he caught sleeping with my girl. The man had to go to the hospital, but father was only charged with a battery. In 2000, he was convicted of possession of a dangerous weapon and in 2000 and 2001 he suffered probation violations.

Since the jurisdiction hearing, testified father, he had visits with G.S. and those visits went well. Father stated he wanted custody of G.S. Father believed G.S. was at a risk of harm because of mothers substance abuse, yet he never contacted law enforcement to either protect G.S. or to have them help him determine the whereabouts of G.S. He did not call child protective services to pick up G.S. because he would have lost time at work and mother would have gone to jail.

Father testified that at the time of the hearing there were criminal charges pending against him. When asked the nature of the charges, father said that he was charged with buying alcohol for a person under 21 years of age and that the incident occurred within the past two months. He explained that the individual told him he did not have identification and it was spring break, so father bought the individual beer.

Fathers mother (P) testified at the hearing. P said mother called her to tell her she was pregnant. Mother called her a year later and told P she had a grandson. P did not check on the child. One year around Christmas a letter arrived at Ps house addressed to father. P did not open it for a couple of months. When she opened the envelope it contained a letter written by mother containing information about G.S. The letter also contained a telephone number. P called mother and met with her. G.S. was four years old at the time. P talked to mother frequently and G.S. spent the night at Ps home. In addition, they got together on holidays. During this time, P was not in contact with father.

On cross-examination, P was asked whether father ever asked P if she had heard about G.S. P responded that father asked about G.S., but mother had asked P not to tell father where mother lived.

In addition to the testimony at the hearing, the trial court received the social study into evidence. Father said he tried to look for G.S. but did not know where he was, but the social worker reported that mother had not moved from the residence that father was familiar with. During two visits between father and G.S., the social worker thought father was under the influence, but he refused to drug test without a court order. Father told the social workers he wanted P to obtain guardianship over G.S.

At the time of the hearing, G.S. was residing with a great-aunt and great-uncle. He was well adjusted.

The court denied fathers request for custody, finding clear and convincing evidence that such placement would be detrimental to the safety, protection or physical or emotional well-being of the child. The court ordered that father receive 12 months of family reunification services and granted visitation to father for two hours per week.

Discussion

Father appeals, claiming the court erred when it found that placement of G.S. with him would be detrimental to G.S. He contends the evidence was insufficient to support the finding of detriment by clear and convincing evidence. Father argues that his historical lack of contact with G.S. does not support the detriment finding since he maintained a relationship with G.S. for the first one and a half years and was later thwarted in his attempts to remain in contact with him. Father asserts that he did not avoid his obligations to G.S. but mother thwarted fathers attempts to maintain a relationship. Fathers past criminal conduct and current criminal involvement, argues father, fall well short of the burden required to establish detriment, particularly since his current conduct had not yet been adjudicated.

Respondent argues that the proper standard of review is abuse of discretion rather than clear and convincing substantial evidence as argued by father. For the sake of argument only, we will determine the issue under the claimed higher standard posited by father.

The dependency statutory framework distinguishes between a parent with whom the child was residing at the time the [Welfare and Institutions Code] section 300 petition was initiated (custodial parent), and a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the provisions of section 300 (noncustodial parent). [Citations.] Section 361, subdivision (c) governs the childs removal from the physical custody of a parent. It does not, by its terms, encompass the situation of the noncustodial parent. [Citation.] Unlike section 361.5, section 361.2 is not a removal statute. [Citation.] Rather, section 361.2 governs the childs temporary placement with the noncustodial parent and the provision of reunification services to the parents, and also permits the court to grant legal and physical custody of the child to the noncustodial parent. [Citations.] (In re V.F. (2007) 157 Cal.App.4th 962, 969, fns. omitted.)

Welfare and Institutions Code section 361.2, subdivision (a) states: 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. Welfare and Institutions Code section 361.2, subdivision (a) evidences the Legislative preference for placement with [the nonoffending noncustodial] parent. (In re Austin P. (2004) 118 Cal.App.4th 1124, 1132.)

The juvenile court must make the detriment finding by clear and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426; In re Isayah C. (2004) 118 Cal.App.4th 684, 700.) We review the record in the light most favorable to the courts order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that the children would suffer such detriment. [Citations.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.] (In re Luke M., supra, 107 Cal.App.4th at p. 1426.) (In re John M. (2006) 141 Cal.App.4th 1564, 1569-1570.)

Although admitting that the facts of In re John M., supra, 141 Cal.App.4th 1564 bear little resemblance to what occurred here, father relies on John M. as an illustration of the correct application of the clear and convincing evidence standard. In John M., 13-year-old John was removed from his mothers custody after it was alleged that she abused him. Dewayne, Johns noncustodial father, lived in Tennessee. Dewayne was subject to a support order, but had never paid support. He had provided medical insurance for a period of time. Dewayne told the social worker he had contact with John during the last year, although there was a four-year hiatus when he had no contact. He claimed the hiatus was not on [his] part. (Id. at p. 1568, brackets in original.) Dewayne had no criminal record and the worker concluded that placement with him was viable. John expressed his wishes to live with his aunt who was currently caring for him.

The court denied Dewaynes request for placement because John did not want to move, there was little contact between Dewayne and John, Dewayne was an unknown entity because he lived out of state, and John had serious problems that needed to be addressed in San Diego where he had a sibling relationship with a 10-month-old stepsister. The court said that based on these criteria it was not necessary to get a report under the Interstate Compact on Placement of Children (Fam. Code,  7900 et. seq.). (In re John M., supra, 141 Cal.App.4th at pp. 1568-1569.)

The appellate court found that the juvenile courts order denying placement with Dewayne was not supported by substantial evidence. First, the evidence of a sibling relationship was lacking since John and his half-sibling had only been placed together for 16 days. Next, although John was old enough to have his wishes considered, he was not entitled to decide where he would be placed and, in any event, his wishes were unclear and the social worker did not seek clarification of his wishes. Although John was troubled and had special needs, the social worker said she had no information that Dewayne would be unable to meet these special needs. The reasons for Dewaynes lack of contact with John for four years were unclear from the record, and the court found that John was not to blame for the four-year period when there was no contact. For all of the above reasons the appellate court found that Agency did not meet its burden of proving detriment by clear and convincing evidence, and the juvenile court erred by finding that Johns placement with Dewayne would be detrimental within the meaning of Welfare and Institutions Code section 361.2. (In re John M., supra, 141 Cal.App.4th at pp. 1570-1571.)

We agree with father that the facts of John M. bear little resemblance to the facts here; that is where our agreement with fathers position ends. Fathers first contact with G.S. was when he removed G.S. from his mothers custody when G.S. was in severe trouble and over one year old. Although recognizing that G.S. should not be placed with mother, father returned G.S. to her custody to attend to his own problems. This demonstrated a lack of good judgment concerning the well-being of G.S. Even if father could not have physically taken care of G.S. at that time, father could have reported, but did not report, G.S. to child protective services so that G.S. could be protected from the potential harm caused by leaving him with mother.

In the ensuing years, father did absolutely nothing to attempt contact with G.S., other than frequenting a certain street and the mall in hopes of running into him. Fathers mother had a telephone number and location for mother, yet father did not seek contact via this avenue. Ps testimony that mother did not want father to know of her whereabouts is completely discounted by Ps testimony that mother sent a letter addressed to father describing G.S. with a contact telephone number that P used after she opened the letter to contact mother and to see G.S. In addition, the social study contained information that at the time of her death mother lived in the same residence where she resided when father had contact with her years ago.

Father had a criminal record, and his descriptions of his actions leave serious doubts regarding his anger management abilities. There was additional evidence of fathers anger problems in that father had no contact with one of his children because of a restraining order brought by that childs mother. Fathers most recent criminal activities involved buying alcohol for a person under the legal age to buy alcohol. Although father had not yet gone to trial on this charge, he described it during his testimony. Again, this demonstrates poor judgment on fathers part.

Father was inconsistent on whether he wanted custody himself or wanted his mother to have custody. Father did not have custody of any of his other four children, demonstrating a lack of commitment to his children in general. G.S. had suffered an extreme loss, having discovered the only parent he knew dead on the floor when he returned from school.

Fathers lack of commitment to parenthood, his numerous instances of poor judgment continuing until just months before the hearing, and his previous abandonment of G.S. at a young age to attend to his own needs when G.S. was clearly in need of protection constitute clear and convincing evidence that G.S. would suffer detriment if placed in fathers custody.

Disposition

The judgment is affirmed.

__________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

________________________________

DAWSON, J.

________________________________

KANE, J.

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