In re Travis W.

Filed 4/13/06 In re Travis W. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Joe O. Littlejohn, Judge. Affirmed.

Shelly W. appeals a judgment placing her son, Travis W., in the custody of his father, Jack W., under Welfare and Institutions Code^[1] section 361.2. She contends the court erred when it placed the child with his father in Oklahoma without making findings as required by section 361.2, subdivision (c). We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On June 16, 2005, the San Diego Police Department took seven-year-old Travis into protective custody after school personnel refused to release the child to Shelly, who appeared intoxicated and impaired. Shelly had a history of child welfare intervention. The San Diego County Health and Human Services Agency (the Agency) filed a petition under section 300, subdivision (b), alleging Shelly was impaired by alcohol use and psychotropic medications and could not provide Travis regular care. The Agency also alleged Jack was unable to protect and supervise Travis.

Travis had special needs. He tested in the range of mild mental retardation and required special education, a structured home setting and behavioral management. His speech was limited and hard to understand. The court authorized the use of psychotropic medication to help control Travis's anger, aggression and self-injurious behaviors.

In July 2005, Shelly submitted to the allegations in the petition.^[2] Over Shelly's objection, the court ordered expedited evaluations of Jack's and paternal grandparents' homes in Oklahoma under the Interstate Compact on the Placement of Children (ICPC), Family Code section 7901 et seq. The parties waived time for disposition.

Shelly and Jack married in 1999 and separated shortly before Travis's third birthday. They had not divorced. Their marriage was marred by domestic violence and mutual drug use. Shelly had a 20-year history of substance abuse. Her level of intellectual functioning was described as "borderline" and was further impacted by "substantial psychiatric impairments." She was treated for bipolar disorder.

Shelly's two other children were not in her care. A daughter, age 17, was in her father's custody. The juvenile court placed Travis's older half-brother, Tyler B., in a group home after Shelly was unable to reunify with him. Shelly and Travis visited Tyler regularly. After Travis was detained, the Agency arranged a sibling visit at Tyler's request.

Jack had a criminal record and a history of substance abuse. He began using methamphetamine at "an early age." He acknowledged he had been "messed up" and Shelly left him for "the right reasons." From 1992 to 2002, he was charged with driving under the influence, auto theft, robbery, possession of burglary tools, criminal mischief, weapons possession, and drug offenses. He was convicted on felony charges at least twice and served a prison term in Oregon and again in California. Jack was paroled in December 2003, and discharged from supervision in 2004.

Jack reported he sought intervention for his substance abuse problem on May 1, 2003, and since that date had been clean and sober. He was actively and regularly involved with Narcotics Anonymous (NA). Jack met his fiancée, with whom he was currently living at NA. She had a troubled past, losing custody of her three children to their father, but had maintained her sobriety for 11 years.

When the Agency contacted Jack after detaining Travis, Jack immediately asked to have his son placed in his care. Jack had not seen Travis since he was an infant.^[3] Although Shelly contacted him occasionally, Jack found it difficult to stay in touch because Shelly's telephone service was often disconnected. Because of Jack's criminal record, history of substance abuse and lack of contact with Travis, the Agency needed to resolve protective issues before it could consider placing Travis in Jack's care.

The court continued the disposition hearing several times to allow the Agency to obtain a psychological evaluation of Travis, to complete the ICPC home studies and to provide notice to Indian tribes required under the Indian Child Welfare Act, Title 25 United States Code section 1901 et seq. Grandparents' home study was approved in August 2005. Shelly objected to Travis's interim placement with his grandparents in Oklahoma. Minor's counsel requested a continuance and the court deferred a decision on placement until disposition.

In September 2005, Jack and his mother came to California to visit Travis. The visit went well. After Jack's first ICPC evaluation was denied due to space limitations in his home, Jack moved into a larger home, furnished a bedroom for Travis and asked for reconsideration. Jack's ICPC home study was approved in November 2005. Jack located a school with a special needs program for Travis, made arrangements for family therapy and complied with other ICPC case plan requirements. Jack and his fiancée continued to attend weekly NA meetings, submitted to random drug testing, and completed a parenting education class. In addition, Jack participated in individual counseling. He maintained consistent telephone contact with Travis. Noting that Jack consistently followed through with services required to provide Travis a safe home, the Agency recommended placing Travis with his father under Agency supervision.

Shelly opposed the recommendation. When she and Jack lived together, he hit her and threw a door at Tyler. She believed Travis would not be safe in Jack's care. When Shelly called Jack to discuss Travis's special needs, he was not interested. Shelly doubted Jack's ability to meet Travis's needs. Concerned she would not be able to visit Travis and regain custody were he placed in Oklahoma, Shelly requested the court place Travis in a group home and allow her time to complete case plan requirements.

Shelly had tried to comply with her case plan. By the time of the disposition hearing, she had attended two of four scheduled therapy sessions and twice started parenting education. After skipping approximately four weeks of treatment, Shelly was discharged from the Substance Abuse Recovery Management System program (SARMS). Shelly had weekly visitation with Travis but missed approximately one-third of her scheduled visits.

Travis told an Agency intern that he wanted to live with his mother. When the intern asked him if he knew his father, Travis showed her pictures taken during Jack's visit. He said he missed his father. At the disposition hearing, the parties stipulated that, if called, Travis would testify, "I would like to live with my mom or I would like to live with my dad or I would like to live with my brother [Tyler]."

In December 2005, after a contested disposition hearing, the court removed Travis from Shelly's custody and placed Travis with his father under Agency supervision. The court ordered the Agency to provide services to each parent consistent with the case plan. The court authorized supervised visitation for Shelly, giving the Agency discretion to lift supervision and to authorize weekend visits. The court required Jack to facilitate telephone contact between Travis and Shelly and between Travis and his brother.

DISCUSSION

I

Introduction

Shelly contends the court erred when it did not make its findings in writing or on the record as required by section 361.2, subdivision (c). (See In re Marquis D. (1995) 38 Cal.App.4th 1813 (Marquis D.).) Shelly argues the record cannot support a finding of "nondetriment." She asks us to imply a finding that placement with Jack would be detrimental to Travis based on Jack's criminal record, history of substance abuse and domestic violence, lack of involvement with Travis and his two other children and his fiancée's troubled past as well as Travis's special needs, the mother-child bond and Travis's relationship with his brother. Finally, Shelly asserts the court abused its discretion because Travis's out-of-state placement was "in direct contradiction to the court's stated plan of reunification."

The Agency responds that section 361.2, subdivision (a) does not require the juvenile court to explicitly find that placement with a parent would not be detrimental to the child. Alternatively, the Agency posits we can imply from the record a finding that Travis's placement with his father would not be detrimental to him. The Agency denies that Travis's out-of-state placement deprives Shelly a meaningful opportunity for reunification.

II

Standard of Review

Shelly contends the standard of review of a juvenile court's custody placement orders under section 361.2 is an abuse of discretion. The Agency disagrees, arguing the removal of a child from the physical custody of a parent is reviewed under the substantial evidence standard. Shelly points out that she is not contesting the removal order under section 361. She asserts the Agency is trying to heighten her burden on appeal by asking us to apply the substantial evidence standard on review.

An evaluation of the factual basis underlying an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. Both standards entail substantial deference to the trial court. (Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 624.)

In support of her position, Shelly relies on In re Stephanie M. (1994) 7 Cal.4th 295 (Stephanie M.) and cases involving relative placement under section 361.3. (In re Alicia B. (2004) 116 Cal.App.4th 856, 863; In re Luke L. (1996) 44 Cal.App.4th 670, 680; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) However, "[t]he legal principles that govern the subject of discretionary action vary greatly with context. [Citation.] They are derived from the common law or statutes under which discretion is conferred." (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1298.) The scope of discretion lies in the particular law to be applied. (Id. at p. 1297.)

In order to determine the standard of review, an analysis of the challenged statute is required. Here, we do not believe the cases Shelly cites control the standard of review under section 361.2. In Stephanie M., the reviewing court addressed the trial court's discretion to grant a modification of its prior placement order under section 388. (Stephanie M., 7 Cal.4th at pp. 317-318.) Under section 388, the trial court has broad discretion to fashion an order in the best interests of the child. (In re S.M. (2004) 118 Cal.App.4th 1108, 1119-1120; In re Jasmon O. (1994) 8 Cal.4th 398, 415.) Similarly, section 361.3 requires the court to consider many factors when it determines a child's placement, the first of which is the best interests of the child. (§ 361.3, subd. (a).) A decision concerning a child's placement with a relative under section 361.3 is entrusted to the sound discretion of the court.

In contrast, section 361.2, subdivision (a) limits the court's discretion. The court is required to place a child with a noncustodial parent^[4] requesting custody unless the court finds by clear and convincing evidence it would be detrimental to the child to do so. When a party challenges a court's finding of detriment under this subdivision, the reviewing court applies the substantial evidence standard, keeping in mind the heightened burden of proof. (See In re Isayah C., supra, 118 Cal.App.4th at p. 700; In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.)

We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The evidence must be reasonable in nature, credible, and of solid value. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

If the court does not make a finding of detriment and places the child with the noncustodial parent, the court has the authority to dismiss the case with custody orders or to retain jurisdiction and determine the level of services, if any, to be provided each parent. (§ 361.2, subd. (b).) As such, the appropriate standard of review is abuse of discretion. We will not disturb on appeal a decision under section 361.2, subdivision (b)

unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Geoffrey G., supra, 98 Cal.App.3d at p. 421.)

III

The Court's Findings Under Section 361.2, Subdivision (a)

When a court orders the removal of a child pursuant to section 361.2, the court must determine whether there is a noncustodial parent 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." (§ 361.2, subd. (a).) Before any parent is deprived of the care and custody of his or her child, principles of due process require the court to make a finding of detriment by clear and convincing evidence. (Marquis D., supra, 38 Cal.App.4th at p. 1829.) The court is required to "make a finding either in writing or on the record of the basis for its determinations under [section 361.2,] subdivisions (a) and (b)." (§ 361.2, subd. (c); see Cal. Rules of Court, rule 1456(a)(7)(A).)

Shelly points out that the court did not refer to section 361.2 in either its oral pronouncements or ruling. She cites Marquis D., supra, 38 Cal.App.4th 1813, for the proposition that the reviewing court should imply a finding of detriment in such circumstances. However, in Marquis D., the reviewing court refused to imply a finding of detriment because the record did not show the trial court "adequately explored" whether placing the children with the father would be detrimental to them. (Id. at p. 1825.)

Here, Shelly submitted on the disposition report on all issues except Travis's placement with his father in Oklahoma. The issue of detriment to Travis was fully litigated. Shelly told the court she believed Travis would not be safe with Jack and he could not attend to Travis's special needs. She testified about Jack's abusive behaviors before she left him, their drug use and his indifference to Travis's needs after his release from prison.

The court received evidence showing Jack was actively involved in NA and had been clean and sober for two and one-half years. There were no current concerns of criminal activity, including domestic violence. Jack successfully completed the conditions of his parole in 2004 and was employed. His fiancée had been clean and sober for 11 years. During the course of an ICPC home study, Jack fully complied with services required by its social service agency, including drug testing, setting up an appropriate and safe home for Travis, and finding services and schooling to meet Travis's special needs.

We believe the trial court adequately explored whether Travis's placement with his father would be detrimental to him. (Marquis D., supra, 38 Cal.App.4th at p. 1825.) The court acknowledged that Jack had past problems, as did most parents whose children were dependents of the court. The question before the court was whether a parent was able to leave his or her "bad background behind." Here, Jack had evidenced a "strong period of sobriety," and his fiancée had a long history of remaining clean and sober. Jack and his fiancée attended weekly NA meetings, submitted to drug testing, and completed parenting education. Jack participated in individual counseling. There was no evidence of domestic violence or criminal activity in recent years. The ICPC evaluation was favorable. The court remarked Jack showed he was serious about providing Travis a safe home.

On this record, we believe the court fully addressed detriment to Travis within the meaning of section 361.2. We do not find it necessary to imply a finding under section 361.2, subdivision (a). Although Jack's history naturally prompted concerns, social services investigated his home and his current circumstances. All reports indicated Jack had remained sober, employed and stable during the last two years. We note this is a longer period of stability than required to reunify with a dependent child under state law. (See §§ 366.21, 366.22.)

Shelly also contends Travis's placement in Oklahoma would be detrimental to him because Travis was bonded to her. Until he was detained, Travis had been in her care all his life. Generally, their visitation went well. Shelly was affectionate and appropriate with Travis. When Travis was asked where he wanted to live, his mother was his first choice.

The record supports the court's finding that placement in Oklahoma would not be detrimental to Travis. Psychological testing showed Travis to be a "young, undeveloped boy who is internally impoverished and emotionally hungry." The psychologist doubted Shelly would be able to meet his emotional needs. The social worker opined there would be no negative consequences to Travis from living away from his mother and his brother. Shelly, even though she was entitled to weekly supervised visitation with Travis, missed approximately one-third of her visits. More often than not, Travis ended visits from 15 to 45 minutes early. Travis needed stability, consistency and strong parenting.

When the child is placed with the noncustodial parent under section 361.2, subdivision (a), the other parent's interest in reunification does not outweigh the constitutional interests of the noncustodial parent in the care and custody of his or her child. (In re Isayah C., supra, 118 Cal.App.4th at pp. 698-699.) Unless limitations on visitation are clearly detrimental to the well-being of the child, visitation interests of the other parent cannot be the basis to deny placement to the previously noncustodial parent. (Ibid.) Here, substantial evidence supports the court's conclusion that it would not be detrimental to Travis to place him with his father under Agency supervision.

IV

The Court's Orders Under Section 361.2, Subdivision (b)

If the court does not make a finding of detriment and places the child with the noncustodial parent, it then determines whether on-going supervision is required.^[5] (In re Austin P. (2004) 118 Cal.App.4th 1124, 1130.) If the court retains jurisdiction it may (1) provide reunification services to the parent from whom the child was removed, (2) provide services solely to the parent assuming physical custody to allow that parent to retain later custody without court supervision or, (3) provide services to both parents and, in a later review hearing under section 366, determine which parent, if either, will have custody of the child. (§ 361.2, subd. (b)(3).) Here, the court chose to provide services to both parents.

Shelly argues that Travis's placement in Oklahoma "effectively sabotaged visitation" with Travis and denied her "any meaningful opportunity" for family reunification. She argues she was entitled to visitation absent a clear and convincing showing of detriment. (See In re Mark L. (2001) 94 Cal.App.4th 573, 580-581, In re Luke L., supra, 44 Cal.App.4th at p. 681.) The Agency readily acknowledges visitation is an integral factor in family reunification. (In re Luke L., supra, 44 Cal.App.4th at p. 681.)

The court made several attempts to explain its decision to Shelly, who was distraught over the possibility she would not be able to visit or contact Travis in Oklahoma. The court described the risk Travis would be institutionalized if not placed with his father. Shelly had not been able to reunify with Tyler who remained in long-term foster care. The court told Shelly it did not "have a choice."^[6] Travis's stipulated testimony told the court he wanted to be with family. Both parents had troubling histories. However, Shelly had not complied with services, including SARMS. The court did not believe it was in Travis's best interests to be in an institutionalized setting while Shelly struggled with the same issue she had struggled with for years. Jack demonstrated his commitment to Travis by immediately complying with case plan requirements. In addition, Travis's grandparents lived nearby and could provide support, if needed.

The Agency argues that the court did not prohibit Shelly's visitation with Travis, "it only restricted them based on the mother's compliance with her services and based on his placement with his father in Oklahoma." We do not believe the court intended to restrict visitation by placing Travis in Oklahoma. Rather, as a practical matter, the impact on visitation was an unavoidable consequence of having one parent in California and the other in Oklahoma. (See, e.g., In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 142 [in move-away cases, it is unavoidable that existing custody arrangements will be disturbed].)

The court ordered the Agency to facilitate supervised visitation in Oklahoma between Shelly and Travis and authorized the Agency to lift supervision and extend weekend visitation with the concurrence of minor's counsel. Jack was required to facilitate telephone and written communications between Shelly and Travis and between Travis and Tyler. The court left open the possibility it would provide Shelly travel funds to visit Travis if she made progress in recovery. The court's visitation order was reasonable. We do not believe the order was inconsistent with the goal of family reunification.

From the state's perspective, family reunification is achieved when the child is placed with a parent. (See In re Erika W. (1994) 28 Cal.App.4th 470, 476-477 ["Section 361.2, subdivision (a)(2)^[7] expressly contemplates that reunification services will be offered only for the purpose of facilitating permanent parental custody of the child by one or the other parent."].) At disposition, Shelly conceded she could not provide Travis a home until she completed her case plan. Jack was in a position to care for his son immediately. Here, the court offered services to both Shelly and Jack and postponed making custody and visitation orders until a later date. (§ 361.2, subd. (b)(3).) Shelly

has the opportunity to establish and maintain her sobriety, complete other case plan requirements, remain in regular contact with Travis and visit him when possible.

The court carefully fashioned its visitation orders to ensure continued contact between Shelly and Travis. Its decision was reasonable and informed. The court acted within the legal discretion afforded it by section 361.2, subdivision (b). (See City of Sacramento v. Drew, supra, 207 Cal.App.3d 1287 at p. 1298.)

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

McDONALD, J.

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^[1] Unless otherwise indicated, statutory references are to the Welfare and Institutions Code.

^[2] Jack submitted to jurisdiction at the December 2005 disposition hearing.

^[3] Jack was incarcerated from 2001 to 2003.

^[4] See In re Isayah C. (2004) 118 Cal.App.4th 684, for use of the shorthand phrase "noncustodial parent" to describe "a parent with whom the child was not residing at the time events or conditions arose that brought the child within the provisions of Section 300." (§ 361.2, subd. (a).)

^[5] Under a subdivision effective January 1, 2006, the court may also allow the noncustodial parent to conditionally assume custody of the child subject to the social worker's home visit and a report to the court. (§ 361.2, subd. (b)(2).) After the report is completed, the court then makes a determination under section 361.2, subdivision (b)(1) or (b)(3).

^[6] Shelly argues this statement indicates the court based its placement decision on impermissible balancing factors, ignoring evidence that placement with Jack would be detrimental to Travis. As discussed in part III, supra, the court adequately explained its findings under section 361.2, subdivision (a). The record shows that the court, in direct conversation with Shelly, made an additional effort to help her understand Travis's needs and the problems presented by her sporadic compliance with the case plan. When the court told Shelly that it had no choice in the matter, it was explaining its determination under section 361.2, subdivision (b).

^[7] Now section 361.2, subdivision (b)(3). (See Stats. 1993 ch. 1089, § 5.5, pp. 6017-6018; Stats. 2005, ch. 632, § 2, pp. 3754-3455.)