In re E.L.
Filed 7/19/13 In re E.L. CA1/5
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
the Juvenile Court Law.
DEPARTMENT,
and Respondent,
Defendant and
Appellant.
A136428
(
Super.
JV25470A, JV25471A)
Monique
L. (Mother) appeals from orders entered after the Marin County juvenile court
sustained a Welfare and Institutions Code section 387
supplemental petition filed by respondent Marin
County Health and Human Services Department (the Department). The juvenile court found its previous
disposition had been ineffective in protecting Mother’s three children, E, S,
and N (collectively “Minorsâ€), and it ordered them removed from Mother’s custody. E and N were placed with their maternal
grandmother, L.T. (Grandmother), while S was placed with his father, Kenneth C.
(Father).
Mother
challenges a number of the juvenile court’s findings as unsupported by the
evidence. We have reviewed the evidence
in the record and conclude it adequately supports the juvenile court’s
orders. Accordingly, we will affirm.
Factual and
Procedural Background
name="_ftnref3" title="">[3]
The
Department filed the first petition in this case in November 2011, by which
time it had already received seven referrals regarding the family. The Department entered into an informal
agreement with Mother that Minors would attend school regularly and meet with a
dentist, and it referred Mother to agencies for assistance with rent and
furnishing her home.
The
Department received three further referrals, including allegations that S, who
was then six years old, was wandering the streets alone rather than attending
school and that Minors were not regularly fed or supervised during the day. During a visit by a Department social worker,
Mother could not account for S’s whereabouts.
Additional referrals alleged S was stealing food from school and that
Minors were exposed to drug use, because Mother was using substances with
strangers in her home. Minors all had
poor school attendance, which was an obstacle to their receipt of services.
After
a home visit on November 10,
2011, during which the social worker saw a man who appeared to be
under the influence of drugs upstairs in the home with Minors, the Department
filed a petition alleging Minors were at substantial risk of physical harm or
illness. Mother submitted to
court-mandated services, and the juvenile court ordered her to attend parenting
education. Minors were not detained and
continued to reside with Mother in Marin
City.
At
the jurisdictional hearing, both Mother and Father submitted to jurisdiction,
and the juvenile court found true the allegations of the petition. The court explained its concerns to Mother:
“[W]e want to make sure that the children get to school on time; that they are
properly fed; that they are properly cared for; that they don’t miss school;
that you are living in a clean and sober environment.â€
Mother
had tested positive for cocaine and opiates in October 2011, and although the
Department asked Mother to take another drug test prior to filing the petition,
Mother failed to do so. It had also
referred Mother to Center Point, a residential drug treatment center, for a
drug and alcohol assessment, but Mother did not respond to Center Point’s
messages and did not complete the intake process to initiate drug testing. In its February 15, 2012 dispositional
report, the Department stated Mother was resistant to providing additional drug
tests. According to the report, Mother
believed “that she is still young and wants to have fun, and does not think it
is problematic to experiment with substances when the children are in the care
of others.†Mother was not concerned
about Minors’ exposure to drugs and drug paraphernalia. The report noted Mother still had not
followed through on drug testing at Center Point or on appointments with
CalWorks, a parent advocate, or the assigned family therapist.
Mother
was at risk of losing the family’s subsidized housing due to nonpayment of rent,
and she had difficulty keeping food in the house despite receiving food
assistance. The Department provided
Mother with a list of food banks and distribution centers in Marin County and
gave her a Safeway card to help her get through the month. In addition to the problems with housing and
food, all three Minors were in need of medical and dental care.
At
the dispositional hearing, Mother and Father submitted. Father was granted unsupervised visitation
with S. The juvenile court ordered
family maintenance services to Mother as set forth in the Department’s case
plan. Mother’s case plan included
requirements that she learn to develop a budget and to shop within her means
and that she stay free from illegal drugs and comply with all required drug
tests.
On
May 7, 2012, Mother received an eviction notice and reported windows had
been broken in her residence. Minors
called Grandmother to come get them, and they moved to her home in Oakland. Mother stayed in Marin City and later moved
in with her aunt in Hayward.
Also
on May 7, the Department filed a section 388 petition requesting a
change in Mother’s case plan to include court-ordered
Center Point. The Department’s request
came after Mother had had two positive drug tests and then failed on three
occasions to provide urine samples.
Mother was also inconsistent with her and her children’s appointments
and was not meeting the goals of her case plan.
Mother remained unable to keep Minors supplied with food, and Minors
were losing access to services because of continued poor school
attendance. Two days after the
Department filed the section 388 petition, the social worker informed
Mother there was an opening for her at Center Point. Mother scheduled an appointment with the
program but did not keep it.
At
the May 14, 2012 hearing on the petition, the Department indicated its
willingness to allow Minors to stay with Grandmother through the week without a
detention order on the condition that Mother enter Center Point. The juvenile court modified the case plan and
ordered Mother to enter Center Point no later than May 18. The court made clear that Mother “must enroll
in and remain in Center Point to have continued custody of these three
children, and she is to enroll and get herself admitted in the first available
bed.â€
Mother
did not enroll in Center Point, and the Department filed a section 387
petition seeking detention of Minors and their placement in out-of-home
care. The Department alleged Mother had
not complied with the court-ordered case plan and had failed to keep her intake
appointment at Center Point. Mother also
informed the social worker she did not intend to return to Marin County or go
to Center Point. The family had been
evicted from subsidized housing “for failure to pay rent for over a year.†Minors were living with Grandmother in
Oakland, but E and S were no longer attending school because there was no one
to transport them to Marin County. Mother
was still unable to provide food for the children throughout the month, even
though both E and S qualified for free breakfasts and lunches at their schools.
On
May 25, 2012, the juvenile court held a detention hearing on the
Department’s section 387 petition, and it also considered Father’s request
for custody of S. Mother did not object
to the proposed placement of Minors with Grandmother, but she did challenge
Father’s request for custody of S. After
hearing evidence of Mother’s failure to enter in-patient treatment and ongoing
substance abuse, her inability to manage her money to meet Minors’ needs, and
Minors’ continued poor school attendance, the juvenile court found there was a
substantial danger to Minors and there were no reasonable means to protect them
without removal from Mother’s custody.
The juvenile court placed Minors with Grandmother and ordered that
Mother receive services. It denied
Father’s petition for custody, but ordered that he receive services and
visitation.
The
Department’s August 13, 2012 section 387 jurisdiction/disposition
report made five recommendations to the juvenile court. It asked the court to: (1) continue to take
jurisdiction over Minors; (2) place S in Father’s custody; (3) order family
reunification services for Mother; (4) order adoption of the Department’s case
plan; and (5) transfer the child welfare case to Alameda County. The report recounted Mother’s failure to
engage in the substance abuse treatment the court had ordered in May and
Mother’s inability to provide food for Minors.
It noted Father had made clear his desire to have custody of S, and it
set out the facts underlying the Department’s opinion that placement with
Father would be appropriate.
At
the combined jurisdictional/dispositional hearing, the social worker testified
Mother had been living in Alameda County since the middle of May, but despite
referrals to treatment programs in that county, Mother had attended only one
meeting at the East Oakland Recovery Center.
Although Mother had an appointment with the Chrysalis inpatient
treatment program, she could not enter the program unless her Medi-Cal benefits
were transferred to Alameda County.
According to the social worker, it was Mother’s responsibility to
arrange for the transfer of her benefits, but Mother did not do so. Even without a transfer of benefits, Mother
could still have participated in treatment at the East Oakland Recovery Center,
submitted to drug testing, and attended parenting classes.
The
social worker also recommended that S be placed with Father, despite the boy’s
relationships with his half-siblings.
The social worker had visited Father’s home three times and had no
safety concerns, and her assessment was that Father would provide for S’s basic
needs. She had no evidence that Father’s
substance abuse would impair his ability to care for S, and although Father and
his wife admitted to occasional marijuana use, they had expressed a willingness
to stop using the drug in order to have custody of S. Although the social worker had sent Father
referrals for substance abuse counseling and parenting education, she did not
know whether he had participated in those services. Nevertheless, her recommendation that S be
placed with Father was not conditioned upon Father undergoing services. She explained that he maintained steady
employment, made appointments for S, and followed up “on other things that a
parent should follow up on.â€
The
court also heard S’s testimony about living with Father. S told the court that at his Father’s home,
the family ate dinner together. He liked
Father’s wife, whom he called “mom.†S
said Father’s wife would take him and his half-sister, A, to the park. The boy said he was in first grade and
enjoyed school. When he went to school,
Father and his wife would make S’s lunch.
Since living with Father, S said he had never been hit or yelled at by
either Father or his wife. S liked
living with his father, and he was allowed to call Grandmother and E from
Father’s home.
At
the conclusion of the hearing, the court sustained the Department’s petition
and ordered Minors removed from Mother’s custody, while granting Mother
reunification services and supervised visitation. The court changed the Department’s recommended
case plan for Mother, which had provided she would participate in a six-month
residential treatment program. Instead,
it ordered she be assessed in Alameda County, where the case was to be
transferred, and it noted that the Alameda court could adopt its own
recommendation for substance abuse treatment.
The
juvenile court ordered E and N placed with Grandmother, while S was placed with
Father. It considered the need for S to
maintain a bond with his half-siblings, but on balance concluded S would be
better off living with Father in a stable and secure home. It provided for regular visitation between S
and his half-siblings. Father was to
receive family maintenance services, including parenting counseling and some
form of substance abuse treatment or counseling. The court ordered the case transferred to
Alameda County.
Mother
then filed a timely notice of appeal from the court’s orders.
Discussion
Mother
raises four arguments on appeal, all of which challenge the sufficiency of the
evidence underlying the juvenile court’s findings. She first contends there was insufficient
evidence to support the juvenile court’s determination that its previous
disposition had been ineffective. She
then argues the evidence was insufficient to support Minors’ removal from her
custody. Mother also asserts the
Department failed to make reasonable efforts to prevent or eliminate the need
for removal. Finally, she contends the
juvenile court erred in placing S in Father’s custody. We address Mother’s contentions in the order
presented.
I.
the Previous Disposition Ineffective.
Mother
contends the evidence was insufficient to sustain the Petition’s allegation
that the previous disposition had been ineffective. (See Cal. Rules of Court,
rule 5.565(e)(1)(B) [at hearing on supplemental petition, juvenile court
must make finding that “[t]he allegation that the previous disposition has not
been effective is or is not trueâ€].) She
argues the previous disposition was effective because Mother kept Minors safe
by moving them to Grandmother’s home and because the juvenile court no longer
required Mother to be in residential substance abuse treatment. We disagree.
A.
Section 387
provides in relevant part: “(a) An order changing or modifying a previous
order by removing a child from the physical custody of a parent . . .
shall be made only after noticed hearing upon a supplemental petition. [¶] (b)
The supplemental petition shall be filed by the social worker in the
original matter and shall contain a concise statement of facts sufficient to
support the conclusion that the previous disposition has not been effective in
the rehabilitation or protection of the child . . . .†Such a petition is ordinarily required when,
as in this case, the Department “concludes that a previous disposition has not
been effective in the protection of a child declared a dependent under section
300 and seeks a more restrictive level of physical custody.†(Cal. Rules of Court, rule 5.560(c).)
The
hearing on a supplemental petition is a bifurcated proceeding. (Cal. Rules of Court,
rule 5.565(e).) In the first, or
“jurisdictional†phase of the proceeding, the Department has the initial burden
of showing by a preponderance of the evidence that the factual allegations in
the petition are true. (Cal. Rules of
Court, rule 5.565(e)(1)(A); In re
Jonique W. (1994) 26 Cal.App.4th 685, 691.)
“If the court finds the factual allegations are true, then the court
determines whether the previous disposition is no longer effective in
protecting the child . . . .â€
(In re H.G. (2006) 146
Cal.App.4th 1, 11; Cal. Rules of Court, rule 5.565(e)(1)(B).) “The ultimate ‘jurisdictional fact’ necessary
to modify a previous placement with a parent . . . is that the
previous disposition has not been effective in the protection of the
minor.†(In re Jonique W., supra, 26 Cal.App.4th at p. 691.)
If
the juvenile court finds the factual allegations of the petition true and
further finds that the previous disposition has not been effective, it must
then conduct a dispositional hearing in accordance with California Rules of
Court, rule 5.565(e)(2). (See
at p. 691.) In the dispositional
phase, the court must consider whether removal of the minor from his or her
placement is required. (
p. 12.) “Before a minor can be
removed from the parent’s custody, the court must find, by clear and convincing
evidence, ‘[t]here is or would be a substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the minor if the
minor were returned home, and there are no reasonable means by which the
minor’s physical health can be protected without removing the minor from the
minor’s parent’s . . . physical custody.’†(In re
T.W. (2013) 214 Cal.App.4th 1154, 1163, quoting § 361, subd. (c)(1).)
Removal
may be ordered if there is proof of the parent’s inability to provide proper
care for the minor and of potential detriment to the minor if he or she remains
in the parent’s care. (
p. 1163.) “The parent need not be
dangerous and the minor need not have been harmed before removal is
appropriate. The focus of the statute is
on averting harm to the child.†(Ibid.,
italics added.)
We
review an order sustaining a section 387 petition for substantial
evidence. (In re A.O. (2010) 185 Cal.App.4th 103, 109.) “The juvenile court has broad discretion to
determine what would best serve and protect the child’s interest and to fashion
a dispositional order. [Citation.] On a challenge to an order removing a
dependent child from his or her parent, we ‘view the record in the light most
favorable to the order and decide if the evidence is reasonable, credible and
of solid value.’ [Citation.] We draw all reasonable inferences from the
evidence to support the findings and orders of the dependency court.†(In re
Javier G. (2006) 137 Cal.App.4th 453, 462-463.) As a consequence, the substantial evidence
standard of review is extremely difficult to meet, because it is not the
function of an appellate court to determine the facts. (In re
Michael G. (2012) 203 Cal.App.4th 580, 589.)
B.
Court’s Findings.
Mother
does not appear to dispute the truth of the factual allegations of the
petition. (See Cal. Rules of Court,
rule 5.565(e)(1)(A).) Instead, she
argues there was no substantial evidence to support the juvenile court’s
finding that the previous disposition had been ineffective. She contends the allegations of the
supplemental petition involved matters “that were largely before the court when
the court sustained the original petition and ordered family maintenance
services, particularly Mother’s substance abuse and her inability to provide
the children with food.â€
name="_ftnref5" title="">[5] Mother acknowledges there were two new
issues—her family’s eviction and her failure to enroll in Center Point—but
asserts that neither of these allegations supported a finding that the previous
disposition was ineffective. We
disagree.
Initially,
we note Mother largely ignores the limited nature of substantial evidence
review. Her opening brief seeks to
reargue the evidence, but she “would be well advised to remember it is the
function of the trier of fact, not the appellate court, to determine the facts,
and to cast [her] arguments in this court within the confines of that basic
principle.†(In re Michael G., supra, 203 Cal.App.4th at p. 584.) As we have explained, “[t]he Court of Appeal
is not a second trier of fact[.]†(
Cal.App.4th 1014, 1021.) To prevail on
appeal, Mother must demonstrate that there is no substantial evidence to
support the juvenile court’s findings.
“‘A recitation of only [appellant’s] evidence is not the “demonstrationâ€
contemplated under the above rule.
[Citation.] Accordingly, if, as
[appellant] here contend[s], “some particular issue of fact is not sustained,
[appellant is] required to set forth in [her] brief all the material evidence on the point and not merely [her]
[forfeited].†(Italics added.) [Citations.]’†(In re
S.C. (2006) 138 Cal.App.4th 396, 414-415.)
The
Department’s brief sets out the evidence supporting the juvenile court’s
finding that the previous disposition had been ineffective in protecting
Minors. First, Mother continued to abuse
drugs, despite receiving services and despite the court’s warnings that failure
to address her substance abuse would lead to removal of Minors from her
custody. (See In re A.O. (2004) 120 Cal.App.4th 1054, 1063 [concerns about
grandmother’s drug use supported removal of dependent children from her
custody].) Because of her substance
abuse, Mother was unable to meet the goals in her case plan; she failed to take
Minors to scheduled dental appointments and was evicted for nonpayment of
rent. The detrimental effects on Minors
were obvious, as N lost her place at preschool due to poor attendance and S was
unable to receive special education services for the same reason. Mother could not even provide adequate food
for Minors. Moreover, Mother was not
participating in court-ordered services, and her parent aide and therapist
stopped working with her due to her failure to progress. (See Angela
S. v. Superior Court (1995) 36 Cal.App.4th 758, 763 [parent’s failure to
participate in services is prima facie evidence that return of minor to
parent’s custody would be detrimental].)
Thus, substantial evidence supports the juvenile court’s findings that
the previous disposition was ineffective in protecting Minors. (See In
re Javier G., supra, 137 Cal.App.4th at pp. 461-462 [affirming finding
that prior dispositional order was ineffective where mother was not able to
provide sufficient structure and supervision to control her sons’ abuse of
their siblings].)
Mother
nevertheless claims the previous disposition was effective because she had
moved the children to Grandmother’s home.
As the Department points out, however, this fact actually
since it demonstrates that Grandmother was caring for Minors because of
Mother’s inability to do so. We also
reject Mother’s argument that the previous disposition was effective because
the court no longer required Mother to be in residential treatment. This is a misreading of the record. The juvenile court did not rule that Mother
no longer required residential treatment.
Instead, it ordered Mother to have a substance abuse assessment in
Alameda County and left it up to the Alameda County court to “adopt its own
recommendation for substance abuse treatment.â€
This is a far cry from saying residential treatment was no longer
required.
II. Substantial
Evidence Supports the Decision to Remove Minors from Mother’s Custody.
Mother
contends there was insufficient evidence to support removal of the Minors from
her custody. She argues this is not a
case of extreme parental abuse and neglect and asserts that family maintenance
services were a reasonable means of protecting Minors without removal. Again, we disagree.
The
juvenile court found removal justified because there was clear and convincing
evidence of the circumstances stated in section 361,
subdivision (c)(1). Under that
subdivision, minors may be removed from parental custody when there is clear
and convincing evidence “[t]here is or would be a substantial danger to the
physical health, safety, protection, or physical or emotional well-being of the
minor if the minor were returned home, and there are no reasonable means by
which the minor’s physical health can be protected without removing the minor
from the minor’s parent’s . . . physical custody.†(§ 361, subd. (c)(1).)
Substantial
evidence supports the juvenile court’s findings. Many of the facts detailed in the preceding
section of this opinion also support the juvenile court’s decision to remove
Minors from Mother’s custody. Mother
continued to abuse drugs despite receipt of services. Perhaps most important, she was not providing
her children with adequate food. The
Department reported that on at least one occasion, Mother used money intended
for the purchase of food to buy cigarettes for herself. Mother’s continued substance abuse, her
failure to provide Minors with sufficient nutrition, and her neglect of her
children’s dental care fully support the juvenile court’s finding that there
would be a substantial danger to Minors’ well being if they remained in
Mother’s home, and there was no reasonable means of protecting their
were removed from Mother’s custody. (See
In re A.O., supra, 120 Cal.App.4th at
p. 1063 [concerns about grandmother’s drug use and failure to provide
adequate child care supported removal of dependent children from her custody].)
These
facts also refute Mother’s argument that family maintenance services would have
been adequate to protect Minors. Minors
were ordered removed because of Mother’s demonstrated failure to discharge her
parental responsibilities despite having what the social worker called “a long
list of supportive services in place.â€
As the Department’s jurisdiction/disposition report put it, “[d]espite
all of the extensive support and services provided to her and her family,
[Mother] was unable to utilize the assistance provided in order to stabilize
her life.†“A parent whose children have
been adjudged dependents of the juvenile court is on notice of the conduct
requiring such state intervention. If
such a parent in no way seeks to correct his or her own behavior or waits until
the impetus of an impending court hearing to attempt to do so, the legislative
purpose of providing safe and stable environments for children is not served by
forcing the juvenile court to go ‘on hold’ while the parent makes another stab
at compliance.†(In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.)
III. There
Is Substantial Evidence the Department Made Reasonable Efforts to Prevent or
Eliminate the Need for Minors’ Removal.
Mother
also contests the juvenile court’s finding that the Department made reasonable
efforts to prevent or eliminate the need for removal. (See § 361, subd. (d);
at p. 463.) Specifically, she
contends the Department failed to: (1) assist her in transferring her Medi-Cal
benefits to Alameda County and (2) provide adequate visitation between Mother
and S. We conclude the juvenile court’s
finding is supported by substantial evidence.
(See id. at p. 465.)
“[R]easonable
efforts, like reasonable services, need only be reasonable under the
circumstances, not perfect.
[Citation.]†(
725.) Furthermore, the social worker was
not required to “take [Mother] by the hand†if Mother refused to avail herself
of the services offered. (
at p. 1463, fn. 5.) Here,
there was substantial evidence from which the juvenile court could find the
Department’s efforts reasonable.
The
Department’s jurisdiction/disposition report contains a lengthy list of family
maintenance services it either provided or offered to Mother. These services were in addition to other
supportive services already in place before the family maintenance case was
established, including food stamps and other food assistance, subsidized
housing, a parent aide, and therapeutic services. While Mother faults the Department for being
insufficiently helpful in getting her Medi-Cal benefits transferred to Alameda
County, the social worker called a CalWorks provider about assisting Mother,
provided the name and phone number of a Medi-Cal worker for Mother to contact,
and spoke with a worker at a residential program for Mother about getting
Mother’s general assistance and Medi-Cal benefits transferred. The social worker also testified, however,
that she had no authority over the transfer of Medi-Cal benefits and that
arranging the transfer was Mother’s responsibility. After Mother’s move, the social worker sent
Mother a list of treatment programs in Alameda County, referred Mother for housing,
and provided public transportation cards so Mother could get to and from groups
at a treatment center where Mother had enrolled. Based on this evidence, the juvenile court
could certainly conclude the Department had made reasonable efforts. (In re
Javier G., supra, 137 Cal.App.4th at pp. 464-465.)
Mother’s
complaint about lack of visitation and contact with S appears to concern a
three-week period before the August 24, 2012 hearing in which Mother
contends no arrangements were made for contact between S and Mother, his
siblings, or Grandmother.
name="_ftnref6" title="">[6] The social worker testified this lack of
contact was due to an ongoing investigation into allegations S appears to have
made about being sexually assaulted by an adult male while in Mother’s care. The social worker also testified that she did
not arrange for contact between S and other family members because she did not
want to interfere with the Marin County Sheriff’s efforts to coordinate
interviews related to the investigation.
Mother
does not dispute the sexual assault allegations were made, nor does she claim
the social worker and the sheriff should not have investigated them. Her argument seems to be only that the
investigation either took too long or was merely an “excuse†for not
facilitating contact between S and his maternal family. Mother does not tell us why she believes the
investigation was unreasonably long, and she points us to no record evidence to
support her claim that the investigation was merely an excuse. Even though the allegations and investigation
did not result in a new petition, we hardly think it proper to fault the social
worker for taking them seriously and investigating them. On this record, the juvenile court could
certainly conclude the Department had made reasonable efforts despite any
failure to arrange visitation or contact with S during the relatively brief
period necessary to conduct an investigation into very serious
allegations. (See Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 692
[upholding finding that agency provided reasonable services despite social
worker’s admittedly erroneous, but temporary, suspension of visitation].)
IV. Father
Is Legally Entitled to Custody of S Absent Clear and Convincing Evidence the
Placement Would be Detrimental.
Finally,
Mother contends the juvenile court erred in placing S with Father, S’s
noncustodial parent. Under
section 361.2, subdivision. (a), when the juvenile court orders the
removal of a minor under section 361, the court shall place the child with
a noncustodial parent who requests custody “unless it finds that placement with
that parent would be detrimental to the safety, protection, or physical or
emotional well-being of the child.â€
(§ 361.2, subd. (a).)
Father requested custody of S in this case. When such a request is made, “[t]he court
must first determine whether it would be detrimental to the child to
temporarily place the child in [the noncustodial] parent’s physical
custody. If there is no showing of
detriment, the court must order the
[Department] to temporarily place the child with the nonoffending noncustodial
parent.†(In re Austin P. (2004) 118 Cal.App.4th 1124, 1135, italics
added.) Here, the juvenile court found
placement with Father would not be detrimental to S, and it awarded Father
custody.
Mother
seeks to persuade us that, contrary to the court’s findings, placement with
Father would be detrimental to S. We
reject Mother’s argument for a number of reasons. First, she misunderstands the burden of proof
on the detriment issue. Second, Mother
has forfeited this argument by ignoring our standard of review. Third, even if the argument were not
forfeited, substantial evidence supports the juvenile court’s decision.
While
Mother’s brief correctly notes that a detriment finding under section 361.2
must be made by clear and convincing
evidence, she fails to acknowledge she bore the burden of proof on this
issue in the court below. As the Third
District recently explained, “‘a nonoffending parent has a constitutionally
protected interest in assuming physical custody, as well as a statutory right
to do so, in the absence of clear and convincing evidence that the parent’s
choices will be “detrimental to the safety, protection, or physical or emotional
well-being of the child.â€â€™â€
[Citation.] It is
show that [he] is capable of caring for [his] child. Rather, it is the party opposing placement who has the burden to show by clear and
convincing evidence that the child will be harmed if the nonoffending parent is
given custody.†(In re Z.K. (2011) 201 Cal.App.4th 51, 70, italics added.) Thus, as the party opposing placement with
Father, it was up to Mother to demonstrate, by clear and convincing evidence,
that placing S with his father would be “detrimental to [S’s] . . .
safety, protection, or physical or emotional well-being[.]†(§ 361.2, subd. (a).)
The
allocation of the burden of proof in the juvenile court affects our standard of
review. Ordinarily, we would review the
juvenile court’s detriment finding under the substantial evidence test. (E.g., In
re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) “But this test is typically implicated when a
defendant contends that the plaintiff succeeded at trial in spite of
insufficient evidence. In the case where
the trier of fact has expressly or implicitly concluded that the party with the
burden of proof did not carry the burden and that party appeals, it is
misleading to characterize the failure-of-proof issue as whether substantial
evidence supports the judgment. . . . [¶] [W]here the issue
on appeal turns on a failure of proof at trial, the question for a reviewing
court becomes whether the evidence compels a finding in favor of the appellant
as a matter of law. [Citations.] Specifically, the question becomes whether
the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of
such a character and weight as to leave no room for a judicial determination
that it was insufficient to support a finding.’
[Citation.]†(
1528.)
Because
Mother bore the burden of proof on the detriment issue, on appeal, she must
show the evidence of detriment was so strong as to require the juvenile court
to find in her favor as a matter of law.
(In re I.W., supra, 180
Cal.App.4th at p. 1528.) Rather
than attempting this showing, Mother simply recites the evidence that favors
her position, while much of the evidence supporting the juvenile court’s
finding goes unmentioned. Such a factual
presentation would be inadequate even under the traditional substantial
evidence test, because “[e]vidence not favorable to the [appellant] cannot be
simply ignored as if it does not exist.â€
(James B. v. Superior Court,
Mother’s burden on appeal is not merely to show the lower court’s finding is
unsupported by the evidence, but also to show the uncontradicted and
unimpeached evidence compels a
finding in her favor. (
p. 1528.) “We therefore decline
[M]other’s implicit invitation to review the record so as to recount evidence
that supports her position (reargument) with the object of reevaluating the
conflicting, competing evidence and revisiting the juvenile court’s
failure-of-proof conclusion.†(
Her failure to provide an argument tailored to our limited standard of
review effectively forfeits the point.
(See In re S.C., supra, 138
Cal.App.4th at pp. 414-415.)
name="_ftnref7" title="">[7]
Even
if the argument is properly before us, it is meritless. Mother’s principal contentions are that
Father had unaddressed anger management and substance abuse problems and that
it was detrimental to separate S from his half-siblings. With respect to Father’s alleged anger
management problem, Mother herself testified Father had addressed his anger at
her. Grandmother testified she and
Father had always gotten along and that only Father’s relationship with Mother
was contentious. The social worker
testified S was not afraid of Father and that the boy had not witnessed any
kind of violence in Father’s home.
Although
both Father and his wife admitted to occasional marijuana use, they informed
the social worker that they would give up marijuana so they could parent S. The social worker testified there was no
evidence Father’s marijuana use would impair his ability to parent S. Furthermore, Father had already demonstrated
his ability to parent by maintaining steady employment, looking after things
such as S’s schooling and appointments, caring for S during the summer, and
successfully raising S’s little half-sister.
Finally, the juvenile court recommended Father be assessed by Alameda
County regarding marijuana use.
Mother’s
argument that it was detrimental to separate S from his siblings is based in
part on her assertion that there was no evidence that Father would maintain
visitation between the siblings. The
transcript of the juvenile court’s ruling demonstrates, however, that the court
devoted considerable time and attention to the issue of visitation and the
sibling bond. It ordered regular
visitation and telephone contact between S and his half-siblings. We presume these orders will be followed.
In
the end, the court did not place S with his half-siblings because the Minors
have different fathers, and it found it appropriate to place S in Father’s
care. Thus, the juvenile court stated it
had “considered very seriously the bond that exists between the children.†It desired to maintain that relationship, but
found “on balance, it is to [S’s] best interest and greater interest, that he
be living with his dad, . . . in a stable, secure home, attending
school and being well cared for, versus the benefit that may arise from being
with his brother and sister with his grandmother, and the possibility he may go
back to live with his mother or may wind up in foster care
. . . .†We cannot say
this decision is unsupported by the evidence.
Disposition
The
orders from which the appeal is taken are affirmed.
_________________________
Jones,
P.J.
We concur:
_________________________
Needham, J.
_________________________
Bruiniers, J.
name="_ftn1" title="">[1]
All statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2]
Mother’s three children all have different fathers.
