In re Isabella T.
Filed 11/7/13 In re Isabella T. CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
In re ISABELLA T., a Person
Coming Under the Juvenile Court Law.
B248146
(Los Angeles
County
Super. Ct.
No. CK61512)
LOS ANGELES COUNTY DEPARTMENT OF
CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ARMANDO T.,
Defendant and Appellant.
APPEAL from
orders of the Superior Court
of
County, Anthony Trendacosta, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.
Jack A.
Love, under appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County
Counsel, James M. Owens, Assistant County Counsel and Navid Nakhjavani, Deputy
County Counsel for Plaintiff and Respondent.
Armando T. (father) appeals the
juvenile court’s order removing his daughter, Isabella, from his custody. Father was incarcerated at the time of
Isabella’s birth in September 2010, has never had
expected to be released from prison until 2023.
Nonetheless, he maintains the juvenile court erred by not placing
Isabella in his custody so that he could make an appropriate plan for her. Father also challenges the juvenile court’s
failure to make a visitation order. We
hold the juvenile court’s findings and order were supported by
orders.
I. FACTS AND
PROCEDURAL HISTORY
At the time the
lived with her mother, her half-brother N.G. (born in 2003), and N.G.’s
paternal grandparents, Mr. and Mrs. G., who have legal custody of N.G. The family came to the attention of the
Department of Children and Family Services (DCFS) in September 2012, when a
referral alleged that Malissa T. (mother) abused methamphetamine, marijuana and
alcohol, causing her to neglect Isabella and N.G., and that mother and N.G.’s
father, L.G., had engaged in domestic violence.
Both children were detained and placed with Mr. and Mrs. G.
Isabella adjusted well in her
placement. Mr. and Mrs. G. ensured Isabella
had daily visits with her mother and maternal grandmother, as well as
occasional visits with her paternal relatives.
Isabella’s placement with the G.’s allowed her to remain in the same
home as her brother, with whom she was closely bonded.
At the jurisdiction hearing on February 25, 2013, both mother and L.G. waived trial and entered no contest pleas to the
allegations of the petition as amended.
The court continued the matter to March 1, 2013, for a contested disposition hearing.
In advance of that hearing, father
filed a motion to grant him a home-of-parent–father order and to allow him to
make an appropriate plan for Isabella
Father also requested the court terminate jurisdiction over Isabella and
issue an order giving him sole legal and physical custody of Isabella. Isabella’s counsel filed an opposition to the
request, arguing that, pursuant to Welfare and Institutions Code section 361.2,
subdivision (a),
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the court has discretion not to place a dependent child with a non-offending,
non-custodial father if such a placement is detrimental to the safety,
protection, and well-being of the child.
Counsel explained that Isabella was in a familiar placement with people
she recognized as her family, and noted that prior to the inception of
dependency proceedings, Isabella had had very limited contact with father’s
family. He argued that removing the
minor from such a stable placement with her sibling would be detrimental to her
emotional well-being.
At the March 1, 2013 dispositional
hearing, the juvenile court heard testimony from father, mother, maternal
grandmother, paternal aunt, and father’s aunt, Mrs. M. Father intended to have Mrs. M. care for
Isabella.
Mother testified she took Isabella
to see father fewer than five times while he was in the county jail, between
September 2010 and January 2011, and two times since he was transported to
state prison in January 2011.
Mother testified Isabella and her
brother were “absolutely†bonded, had never been apart since her birth, and
were supportive of each other. Isabella
reacted positively to N.G.’s presence, and would try to follow him when he
would leave. N.G.’s name was one of Isabella’s
first words.
The maternal grandmother testified Isabella
lived with her for approximately one year, and continued to see the minor on a
daily basis even after she went to live with Mr. and Mrs. G. Maternal grandmother described the children’s
routine as follows. The children were
dropped off at her house each morning. N.G.
helped her serve Isabella breakfast. She
and Isabella then walked N.G. to school.
Isabella sometimes cried because she wanted to stay with N.G. at
school. Maternal grandmother and Isabella
picked N.G. up from school in the afternoon whereupon the children spent time
together feeding N.G.’s fish or watching DVDs.
Mrs. M. testified she was ready to
care for Isabella in her home and there was a bedroom ready for her. She had plans to add Isabella to her medical
insurance, enroll her in preschool and daycare, and seek guardianship of the
child.
The court then heard argument from
the parties. DCFS contended placing Isabella
with father so he could make an appropriate plan by then placing the child with
Mr. and Mrs. M. was detrimental to Isabella because it required tearing her
away from the only family members she had ever known, and removing her from a
placement in which she was thriving.
Counsel also pointed out that Isabella had no relationship with father,
who was not expected to be released from prison until 2023. Isabella’s counsel joined these arguments,
and objected to father’s request that the juvenile court terminate jurisdiction
over Isabella upon her return to father’s custody.
Father’s counsel argued no evidence
had been presented to prove Isabella would suffer emotional harm if she were
removed from Mr. and Mrs. G.’s home and lived apart from her brother. Mr. and Mrs. M.’s counsel also argued there
had been no showing of detriment, which was required under section 361.2.
The court issued its decision on the
disposition of this case on March 14, 2013.
After declaring Isabella to be a dependent of the court, the court found
that a home-of-parent – father order would be detrimental to the child. In its written decision, the court noted that
Mrs. M.’s plan of guardianship was completely inconsistent with any
home-of-parent order, “as it by its very nature contemplates a court removing
the child from legal custody of the parents.â€
The court continued, “Father’s plan would be to remove [Isabella] from
the only home she has ever known, separate her from her sibling so that she can
reside with father’s relatives with whom she has had only limited contact at
best.†The court further noted that
father’s plan would deprive Isabella of the ability to reunify with her mother.
The court continued Isabella’s
placement with Mr. and Mrs. G., ordered reunification services and monitored
visits for mother and, pursuant to section 361.5, subdivision (e), denied
reunification services to father based on the length of his incarceration.
At the conclusion of the hearing,
father’s counsel requested father “be allowed to have visitation, as well as
his family be allowed to have visitation.â€
The court responded, “Well, what I was going to propose is that there be
at least once-per-month visits with the paternal relatives. And I believe that they can transport the child,
if they so desire, up to see the father.â€
Father timely filed a notice of
appeal.
II. DISCUSSION
1. Denial of Request for Home-of-Parent Order
Father maintains the juvenile court’s denial
of his request for a home-of-parent order was not supported by substantial
evidence of detriment to Isabella. “We
consider the entire record to determine whether substantial evidence supports
the juvenile court’s findings.†(
139, 146.)
Section
361.2, subdivision (a) states in pertinent part: “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.â€
Thus,
if a noncustodial, incarcerated parent seeks custody of a child removed from
his or her home, the court must determine whether placement with that parent
would be detrimental to the child’s safety, protection, or physical or
emotional well-being. Among the factors
to be considered in making that determination are the incarcerated parent’s
ability to make appropriate arrangements for the care of the child and the
length of the parent’s incarceration. (
966.)
Here,
Isabella was just two years old when dependency proceedings commenced. At that time, Isabella, her brother N.G. and
mother were all living with Mr. and Mrs. G.
In fact, the G.’s son (and N.G.’s father), L.G., moved out of the home
after a domestic dispute with mother so that mother and the children could
continue to reside in the home. The
juvenile court detained Isabella and placed her with her brother in the G.’s
care. Mother visited daily, as did Isabella’s
maternal grandmother. Isabella was
strongly bonded with both her brother and her mother. Thus, Isabella was placed in a loving home,
living with her brother, and saw her mother and maternal grandmother every
day.
Father
had never lived with Isabella, and had visited with her but a handful of
times. He was serving a 16-year sentence
for gang-related assault with a deadly weapon and was not expected to be
released before 2023. His proposed plan
was to remove Isabella from her extended family and place her in the Orange
County home of the M.’s.
Substantial
evidence supports the juvenile court’s finding that this proposed plan would be
detrimental to Isabella. Not only would
she be taken from the familiar home of the G.s and lose daily contact with her
mother, but she would be separated from her brother, with whom she was strongly
bonded and had lived her entire life. Her
established daily routine with the maternal grandmother would come to an
end.
Moreover,
the plan put at substantial risk mother’s reunification efforts.
classes, substance abuse counseling, and a 17-week anger management course, as
well as a dual diagnosis program at Harbor UCLA. Both Isabella and N.G. had a bond with
mother, who was motivated to regain custody of them. Father’s plan jeopardized mother’s
reunification efforts and exposed Isabella to an environment detrimental to her
well-being.
Furthermore,
we reject father’s contention that the juvenile court “erred by reasoning that
a preponderance of the evidence standard applied to section 361.2.†Though the court initially determined the
preponderance of the evidence standard applied,
it explicitly stated, “[T]he court makes all these findings not only by
a preponderance, but by clear and convincing evidence.†Thus, the court’s mistaken belief that the
preponderance of the evidence standard applied to its finding of detriment
under section 361.2 was harmless, since the court also weighed the evidence
using the correct legal standard. (
1827.)
The
juvenile court’s denial of father’s request for a home-of-parent order was
supported by substantial evidence that placement with father would be
detrimental to Isabella under section 361.2, subdivision (a).
2. Visitation Order
Although
father acknowledges that he was properly denied reunification services due to
the length of his incarceration, he
relies on In re Dylan T. (1998) 65
Cal.App.4th 765 to argue that he was
entitled to court-ordered visits with Isabella (Id., at p. 770 [“in dependency proceedings, absent certain
circumstances, visitation must be provided to the incarcerated parentâ€].) He further argues that the court’s comments
to the effect that his relatives may use their visits to transport Isabella to
prison to visit him amounted to an improper delegation of authority over his
visitation rights, a practice disapproved of in In re Rebecca S. (2010) 181 Cal.App.4th 1310 and other cases.
DCFS
agrees a juvenile court may not delegate its authority regarding the frequency
and duration of a parent’s visit, but contends that father forfeited the issue
by failing to object in the juvenile court.
A
review of the record reveals that the juvenile court made no visitation order
with respect to father. The court’s
written decision, attached to and incorporated into the minute order, makes no
mention of any visitation by father. In
response to father’s counsel’s request that father be allowed to have
visitation, the court’s only comments were, “Well, what I was going to propose
is that there be at least once-per-month visits with the paternal
relatives. And I believe that they can
transport the child, if they so desire, up to see the father.†When counsel interjected that the paternal
relatives had been having weekly visits, the court responded, “I understand
that, but that’s my order today.â€
A
plain reading of the transcript makes clear that the court did not order
visitation for father; indeed, father acknowledges this in his reply
brief: “There was no order for father to
actually receive any visitation and it was delegated to the relatives to allow
father to visit if they desired to.†Instead,
the court ordered visitation for the paternal relatives only, who would be
permitted to transport the child to the prison to see father. The court did not delegate authority over
father’s visitation rights to the relatives, since the court granted him no
visitation rights. The court simply made
clear that the relatives would not be in violation of a court order if they
transported Isabella to the prison to visit with father.
Moreover,
the juvenile court’s failure to order visitation for father was consonant with
the law. When a parent is denied reunification
services due to his or her incarceration, the court is required to determine
whether to set a hearing under section 366.26 in order to determine whether
adoption, guardianship, or long-term foster care is the most appropriate
plan. If so, the court is to conduct
that hearing within 120 days after the disposition hearing. “However, the court shall not schedule a
hearing so long as the other parent is being provided reunification services
pursuant to subdivision (a). The
court may continue to permit the parent to visit the child unless it
finds that visitation would be detrimental to the child.†(§ 361.5, subd. (f), italics added.) Thus, where the parent is not receiving
reunification services, a visitation order is not required, even if visits would
not be detrimental to the child. This
provision makes good sense, particularly as it applies to the circumstances of
this case: Since visitation is the
primary reunification service available to the incarcerated parent of a
two-year-old child, it would be nonsensical for the law to authorize the court
to deny visits as a reunification service, but then immediately require the
court to provide for visits through the conclusion of the
III. DISPOSITION
The
orders are affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KUMAR,
J.
We concur:
TURNER, P. J.
KRIEGLER, J.
name="_ftn1" title=""> [1]
All further statutory references are to
the Welfare and Institutions Code.
name="_ftn2" title=""> [2]
Indeed, as noted by the
juvenile court, if a child is placed with the non-custodial parent, the other
parent is not entitled to reunification services. (Welf. & Inst. Code § 361.2,
subd.(a).) Said the court: “This is especially true if the court were to
grant father’s request to terminate jurisdiction with a family law order.â€
