Filed 8/12/22 In re Z.B. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from orders of the Superior Court of San Diego County, Browder A. Willis III, Judge. Affirmed.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant L.H.

Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant K.K.

Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff and Respondent.

This is the second appeal by L.H. (Father) arising out of his Welfare and Institutions Code section 388[1] modification petition seeking placement of his son, Z.B., with him in Iowa. In his first appeal, we reversed the denial of his section 388 petition on the ground the juvenile court applied an incorrect legal standard. (In re Z.B. (Jan. 25, 2022, D079559) [nonpub. opn.] (In re Z.B. I, the prior opinion).) On remand, we instructed the juvenile court to conduct a new evidentiary hearing on his petition, considering Z.B.’s then-current circumstances. (Ibid.)

After a combined hearing on Father’s section 388 petition and the contested six-month review hearing, the juvenile court partially granted Father’s modification petition in that it ordered Z.B. placed jointly with him and K.K. (Mother), with Mother having primary custody. Father now contends the juvenile court abused its discretion when it denied his request for primary custody and termination of jurisdiction. Mother also appeals, arguing the juvenile court erred by not placing Z.B. fulltime with her, rather than ordering joint placement with Father.

As we shall explain, we conclude Mother failed to meet her burden of showing the trial court erred when it placed Z.B. jointly with her and Father rather than placing Z.B. with her fulltime. As to Father’s appeal, he failed to show that the juvenile court abused its discretion considering Z.B.’s then-current circumstances. Accordingly, we affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND[2]

1. Prior Proceedings

In August 2018, Mother and Father began a relationship while living in Iowa and Mother became pregnant. In January 2019, Mother ended her relationship with Father and moved to California. Her new boyfriend, A.B., also moved to California and they continued their relationship there. In June 2019, Mother gave birth to Z.B. and, as she requested, A.B. agreed to be identified as Z.B.’s father on his birth certificate. One year later, Mother gave birth to twins, S.B. and L.B., Z.B.’s half-siblings.[3] Over the course of their relationship, Mother and A.B. had many incidents of domestic violence. And although they separated in August 2020, they continued to coparent Z.B. and his infant half-siblings.

In February 2021, the San Diego County Health and Human Services Agency (Agency) took the three children into protective custody and filed a petition under section 300, subdivision (b)(1), after Mother’s arrest for driving while under the influence of alcohol with the three children in her vehicle. The court found A.B. to be Z.B.’s presumed father, amended the petition to name Father as an alleged father, determined the Agency had made a prima facie showing on the petition’s allegations, and detained Z.B. in out-of-home care. Z.B. and his half-siblings were placed with nonrelative extended family members. Father reported in April 2021 that he had been sober from alcohol for just over 122 days; prior to relapsing last November, he had been sober for three years.

At the contested jurisdiction and disposition hearing in June 2021, the court found the petition’s allegations true, removed Z.B. from Mother’s custody, and determined it would not be in Z.B.’s best interests to be placed with Father. It ordered unsupervised visits for all three parents and that Father’s Iowa home be evaluated pursuant to the Interstate Compact on the Placement of Children (ICPC). After DNA testing revealed Father to be Z.B.’s biological father, he received presumed father status in September 2021. At that time, Father filed a section 388 petition seeking placement of Z.B. with him, alleging as changed circumstances that he had visited Z.B. twice in San Diego and his Iowa home had been approved under the ICPC.

At the contested hearing on Father’s section 388 petition in October 2021, the court found Father to be Z.B.’s presumed father but denied the petition. In making its decision, the court used the “best interests” standard generally applied to a motion requesting a modification of a juvenile court order due to changed circumstances. (§ 388, subds. (a)(1), (d); In re G.B. (2014) 227 Cal.App.4th 1147, 1157.) Although Father had shown changed circumstances, the juvenile court found it would be in Z.B.’s best interests to remain in his present placement, allowing the reunification process to go forward with Mother, rather than being placed with Father.

In our prior opinion, we concluded that the juvenile court erred by applying the general “best interests” standard in denying Father’s postdisposition section 388 petition as a noncustodial parent seeking placement. (In re Z.B. I, supra, D079559.) We explained that because the court had already elevated Father from his status as Z.B.’s biological father to Z.B.’s presumed father, it was required to apply the “detriment” test set forth in In re Liam L. (2015) 240 Cal.App.4th 1068 (Liam L.) rather than the “best interests” standard. (In re Z.B. I, D079559.) We reversed the order and remanded the matter “with directions that the juvenile court conduct a new evidentiary hearing on the section 388 petition, consistent with the views expressed in this opinion and in consideration of Z.B.’s then-current circumstances.” (In re Z.B. I, D079559.)

2. The Current Proceedings

In October 2021, Z.B. returned to San Diego after a three-week visit with Father in Iowa. The opinion in In re Z.B. I, became final on January 28, 2022.[4] On January 21, Z.B. and his half-siblings began a 60-day home visit with Mother. At a February 2 pretrial status conference, Father’s counsel asked that the remand of the section 388 petition be considered on the same date as the six-month review hearing. The minutes for the conference show that both were then scheduled for February 18.

At the start of the February 18 hearing, none of the parties addressed any procedural issues regarding the how the hearing would proceed, other than counsel for the half-siblings taking the contested six-month review for them off calendar. The court heard testimony from Father, Mother, and the social worker. The social worker had no safety concerns placing Z.B. with Mother or Father. She noted, however, that Z.B. was bonded to his half-siblings, who have been together their whole lives. She believed separating them would be distressing to the children. Accordingly, she recommended that the parents share placement of Z.B. and that Father submit to random drug and alcohol testing before closing Z.B.’s case.

After hearing oral argument, the juvenile court acknowledged that as a nonoffending, noncustodial parent, Father had a constitutionally protected interest in having physical custody of Z.B. absent a showing by clear and convincing evidence that it would be detrimental to Z.B.’s safety, protection, physical and emotional well-being. After finding there was no clear and convincing evidence it would be detrimental to Z.B. to place him with Father, the court believed it was “left in a position of, again, dealing with the competing interests that really come down to how to manage this situation.” It stated:

“So when I look at everything that has been presented to this court, I think that the best solution, even though there is no detriment to place with Father, that there is no—the appropriate resolution to this case is to place with both parents as recommended by the Agency; and then this court will be charged with the responsibility of helping the parents navigate a visitation schedule.”

The court ordered Mother’s home be the primary residence with family maintenance programs and services to Father, and liberal unsupervised visitation with Father on a schedule to be worked out by the court and the parties.

DISCUSSION

A. The Court Properly Concluded that Joint Placement with Father

Would Not Be Detrimental.

Mother argues that Z.B. was not at substantial risk of detriment if returned to her care fulltime and the juvenile court erred by requiring that she share custody with Father because the evidence showed Z.B. should have remained in her care fulltime. Father asserts Mother’s appeal should be dismissed because she does not seek reversal of any of the juvenile court’s orders. The Agency similarly argues that Mother does not challenge the juvenile court’s findings and orders. Our review of the record shows Mother never expressly requested that Z.B. be returned to her care fulltime. Accordingly, the issue is not that Mother failed to request any relief in her appeal but whether she forfeited her contention by not requesting in the juvenile court that Z.B. be placed with her fulltime.[5]

“[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.” (In re S.B. (2004) 32 Cal.4th 1287, 1293, footnote deleted; In re Elijah V. (2005) 127 Cal.App.4th 576, 582 [“[a] parent’s failure to raise an issue in the juvenile court prevents him or her from presenting the issue to the appellate court”].) Here, the record shows Mother never expressly requested sole custody of Z.B. Nonetheless, Mother argues, Father concedes, and we agree, this request can be implied from Mother’s opening statement and closing argument that it would be detrimental to place Z.B. with Father. Thus, Mother adequately preserved her argument on appeal that Z.B. should be placed with her fulltime because placement with Father would be detrimental.

Although Mother’s argument is not forfeited, it is also not pursued vigorously on appeal because she fails to challenge the juvenile court’s determination that placing Z.B. with Father would not be detrimental, and this is a necessary predicate to her argument that Z.B. should be placed with her fulltime. Moreover, we review the court’s lack of detriment finding for substantial evidence, bearing in mind the heightened requirement of proof by clear and convincing evidence. (In re V.L. (2020) 54 Cal.App.5th 147, 154-155.) “[W]hen reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. Consistent with well-established principles governing review for sufficiency of the evidence, in making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996.)

Here, Mother has not even attempted to show that substantial evidence fails to support the juvenile court’s lack-of-detriment finding. Rather, the record contains evidence showing it would not be detrimental to place Z.B. jointly with Father. Before the start of the dependency proceeding, Mother did not allow Father to see Z.B. except for one video visit. He was unsure whether he wanted his status as Z.B.’s father to be elevated because he preferred to avoid a legal battle with Mother and did not wish to separate Z.B. from his half-siblings. Nevertheless, Father ultimately chose to participate in Z.B.’s dependency proceedings because he wanted to be a part of his life. Mother does not dispute that Z.B.’s visits with Father in Iowa went well.

Additionally, the evidence shows that Father is employed and works from his home, which he owns. He has a young daughter from a prior relationship who stays overnight at his home every Wednesday and every other weekend. This daughter is excited about the possibility of Z.B. living at the home. Father’s home is “clean and appropriate” and in a newly-built neighborhood that he described as “very safe and family friendly.” Father’s parents and siblings live five minutes from his home. He has no criminal history other than his self-report of operating a vehicle while intoxicated in 2017. Father told the social worker that he had been sober for three years, relapsed in November 2020, and has been sober from alcohol for just over 122 days.

In summary, this evidence supports the juvenile court’s finding that placing Z.B. jointly with Father would not be detrimental to Z.B.’s safety, security, or physical and emotional well-being. (§ 361.2, subd. (a).) Hence, the juvenile court did not err by denying Mother’s implied request for fulltime placement of Z.B.

B. Given Then-Current Circumstances, the Court Did Not Abuse Its Discretion in Giving Mother Primary Physical Custody.

Father contends the juvenile court abused its discretion when it denied his request for primary custody and termination of jurisdiction. He claims the court initially ordered that his section 388 petition would be heard prior to the contested six-month review hearing and that, had it done so, Z.B. would have been placed in his care and custody based on the court’s finding such placement would not be detrimental. He also asserts that the court improperly elevated the importance of sibling relationships over his constitutional right to parent his child.

Father’s argument that the court ordered his section 388 petition be heard prior to the contested six-month review hearing is not supported by the record. At a February 2 pretrial status conference, Father’s counsel asked that his section 388 petition be considered on the same date as the six-month review hearing currently scheduled for February 18 “and based off the disposition of that, we go forward with the [six-month] review if it is still necessary.” The juvenile court, however, never agreed it would first hear Father’s section 388 petition and then proceed to the six-month review hearing. The minutes for the conference show merely that the contested section 388 motion and contested six-month hearings were combined.

At the start of the February 18 hearing, the court asked the parties about any procedural issues that needed to be addressed. Other than counsel for the half-siblings taking the contested six-month review for them off calendar, no parties raised any procedural issues regarding how the hearing would proceed. The court found that placing the half-siblings with Mother would not be detrimental and ordered them placed with Mother under a family maintenance services program.

It then addressed Z.B., again asking if any preliminary matters needed to be addressed. Father’s counsel withdrew his request for family maintenance services and stated that Father was asking that Z.B. be placed with him and jurisdiction terminated. Based on concerns raised by counsel, the court clarified that it would decide Father’s section 388 petition based on any new evidence to the date of the hearing, including that Z.B. was now placed with Mother on a 60-day visit.

Nothing on the record supports Father’s argument that the court agreed it would first decide Father’s section 388 petition and then proceed to the six-month review hearing. Nor has Father provided us any authority that the court was required to first address the section 388 in isolation. Rather, our remand order indicated that the section 388 hearing go forward in consideration of “Z.B.’s then-current circumstances.” (In re Z.B. I, supra, D079559) Z.B.’s “then-current circumstances” included all the evidence that would be relevant to the contested six-month review hearing. In light of our specific instructions on remand, it made perfect sense to conduct the two hearings simultaneously and not sequentially.

The juvenile court is required to review the case at least once every six months to, among other things, determine the “continuing necessity for and appropriateness of the placement.” (§ 366, subd. (a)(1)(A).) A “custodial parent generally has the opportunity to regain physical custody of the child at each review hearing.” (Liam L., supra, 240 Cal.App.4th at p. 1081.) Specifically, at the six-month review hearing “the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment.” (§ 366.21, subd. (e)(1), italics added.) Accordingly, the juvenile court was statutorily required to decide Mother’s right to physical custody in conjunction with Father’s right to physical custody.[6]

Subdivision (a) of section 361.2 provides in part: “If 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.”

On its own terms, section 361.2 applies to a request for custody by a nonoffending, noncustodial parent made before the dispositional phase of the dependency proceedings. (In re Zacharia D. (1993) 6 Cal.4th 435, 453 (Zacharia D.); In re Z.K. (2011) 201 Cal.App.4th 51, 70 [“Section 361.2 is designed to apply at the disposition phase of the dependency proceeding, when the court first elects to remove the child from the custody of the custodial parent.”].) Nonetheless, courts have applied the principles of section 361.2 postdisposition to avoid prejudice to a noncustodial nonoffending parent who did not know about the dependency proceeding until after the disposition hearing, or like Father here, did not request custody until after the disposition hearing in order to establish presumed father status. (See e.g., Zacharia D., at pp. 440-442 [biological father learned of minor’s existence and the pending dependency proceedings after the disposition hearing]; Liam L., supra, 240 Cal.App.4th at p. 1083 [father appeared before disposition hearing and requested custody after disposition hearing to establish presumed father status and develop relationship with child].) Under these circumstances, a parent may file a section 388 petition to obtain custody, but the standard to use in evaluating the section 388 petition is the detriment standard of section 361.2. (In re Jonathan P. (2014) 226 Cal.App.4th 1240, 1256.) But as our remand order expressly recognized, a postdisposition request for custody by a noncustodial nonoffending parent must always be evaluated in light of all the then-existing circumstances, including progress by the offending parent in remedying the circumstances that justified the initial removal.

Thus, at the February 18 hearing, the court was charged with determining whether it would be detrimental to return Z.B. to Father under section 361.2, or Mother under subdivision (e)(1) of section 366.21. The juvenile court recognized this stating it was “now charged with making a determination based on the evidence,” finding it would not be detrimental to place Z.B. with both Mother and Father. No party challenged the court’s lack-of-detriment determination. Under these circumstances, as the juvenile court impliedly recognized, Mother and Father had an equal constitutional interest in physical custody of Z.B.

In this situation, the juvenile court was required to balance the right of both parents in Z.B.’s care and custody with Z.B.’s right to safety and stability. (In re Jasmon O. (1994) 8 Cal.4th 398, 419 [“Children are not simply chattels belonging to the parent, but have fundamental interests of their own that may diverge from the interests of the parent.”].)

The evidence here revealed that the Agency had no safety concern for Z.B. if placed with Mother or Father, but recommended that Mother have primary physical custody because it was best for Z.B. to be kept in his current placement with his half-siblings based on Mother’s progress with her case plan. Mother testified that the longest time Z.B. had ever been separated from his half-siblings was three weeks and that the children “have a really good relationship.” The social worker acknowledged this bond, stating that Z.B. has always lived with his half-siblings except for a short time when the children were in the Polinsky Center. Additionally, Z.B. displayed some behavioral issues, including tantrums and rocking back and forth, and concern existed that he might be on the autism spectrum. He already had an existing network of support and services in San Diego, whereas Father would be required to arrange services for Z.B. if Z.B. were placed with him fulltime in Iowa.

Under these circumstances, in balancing both parents’ rights with Z.B.’s right to safety and stability, we cannot conclude that the juvenile court abused its discretion when it placed Z.B. jointly with Mother and Father and gave primary physical custody to Mother. Accordingly, we affirm the juvenile court’s order.[7]

DISPOSITION

The orders issued at the February 18, 2022, combined hearing on Father’s section 388 petition and the contested six-month review hearing are affirmed.

DATO, J.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.

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

[2] On our own motion, we take judicial notice of our prior opinion. (Evid. Code, §§ 452, subd. (d), 459.) We provide a summary of the facts, derived from our prior opinion, leading to the hearing at issue in this appeal. A more detailed recitation of the facts can be found in our prior opinion.

[3] Z.B.’s half-siblings are not at issue in this appeal.

[4] Further undesignated date references are to 2022.

[5] We requested and received supplemental briefs from the parties on whether Mother forfeited her appeal. (Gov. Code, § 68081.)

[6] Under these circumstances, even if Father’s counsel had renewed his request that the section 388 hearing proceed before the six-month review hearing, the juvenile court could have properly denied the request.

[7] Father also claims the juvenile court did not follow the statutory directives of subdivision (b) of section 361.2 in that it failed to determine whether Z.B.’s placement would be temporary or permanent by assessing the need for ongoing Agency and court supervision. We disagree because subdivision (b) of section 361.2, by its own terms, applies only if the court places the child with the noncustodial parent. In any event, the court noted that “both parents have a lot of issues” and concluded “there is no way this court can close this case out.”