Opinion
B301510
01-23-2020
In re A.B., A Person Coming Under the Juvenile Court Law. G.B., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES et al., Real Parties in Interest.
Los Angeles Dependency Lawyers, Law Office of Amy Einstein, Teri Yin and Blanca Martinez, for Petitioner. No appearance for Respondent. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Real Party in Interest the Los Angeles County Department of Children and Family Services. Children's Law Center of California, CLC-3, and Anna E Yi, for Real Party in Interest the minor child.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. DK24370 ORIGINAL PROCEEDINGS in mandate, Superior Court of Los Angeles County, Lisa A. Brackelmanns, Juvenile Court Referee. Petition granted. Los Angeles Dependency Lawyers, Law Office of Amy Einstein, Teri Yin and Blanca Martinez, for Petitioner. No appearance for Respondent. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Real Party in Interest the Los Angeles County Department of Children and Family Services. Children's Law Center of California, CLC-3, and Anna E Yi, for Real Party in Interest the minor child.
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INTRODUCTION
G.B. (father), a non-offending parent, petitions for extraordinary relief from the juvenile court's order entered at the 18-month review hearing (Welf. & Inst. Code, § 366.22, subd. (a)(1)), terminating his reunification services and setting a selection and implementation hearing for his daughter, A.B. Father argues insufficient evidence supports the court's finding that returning A.B. to his custody would be detrimental to the child's physical and emotional well-being. We conclude insufficient evidence supports the court's detriment finding and grant father's petition.
All undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Petition
In August 2017, the Department of Children and Family Services (Department) filed a dependency petition under section 300, subdivisions (a) and (b), on behalf of then two-year-old A.B. and her younger half-sister, J.W., after receiving a referral that J.R. (mother) and her boyfriend, J.W.'s father, engaged in domestic violence in front of the children. The petition alleged, among other things, that the domestic violence between mother and her boyfriend placed the children at risk of harm (a-1, b-1 allegations), and that mother and father also have a history of engaging in domestic violence (a-2, b-5 allegations).
A.B. and J.W. have different fathers. J.W. is not the subject of, nor is mother or J.W.'s father a party to, this writ proceeding.
At the time the Department filed the petition, mother was 18 years old and father was 20 years old. Father had not been in contact with mother or A.B. for a while, and his whereabouts and contact information were unknown. Mother told the Department that father had physically assaulted her in the past. On one occasion in November 2014, when mother was pregnant with A.B., father shoved her into a fence. Mother left father when A.B. was three months old because of the "domestic disputes."
2. The Detention Hearing
Although father did not appear at the detention hearing, the court found he was A.B.'s presumed father. After finding the petition alleged a prima facie case, the court detained A.B. from father and ordered her to remain placed with mother. The court ordered the Department to conduct a due diligence search for father's whereabouts.
Father made his first appearance in A.B.'s case in early September 2017. The court ordered the Department to provide father six hours of monitored visits per week. The court also issued a temporary restraining order protecting mother and A.B. from J.W.'s father.
The Department interviewed mother and father in September 2017. Mother confirmed that father physically abused her when they were together. He would "slam [her] in the wall and grab[] [her] wrist." Mother never reported father's abuse to the police or tried to obtain a restraining order against him. According to mother, father was not involved with any gangs. Although father used to smoke marijuana on a daily basis, mother didn't know if he still used the drug or if he had used any other drugs.
Father admitted that he had pushed mother in the past, but he claimed mother was not pregnant at the time. " 'There was one time before she was pregnant with [A.B.]. I pushed her against the fence. She was talking smack to me. She pushed me and hit me and I pushed her to the fence and held her down.' " Father also admitted that he used marijuana regularly in the past, but he hadn't used it for "over five months."
In late October 2017, the Department filed an ex parte application under section 385, seeking an order removing the children from mother's custody. The Department alleged mother failed to abide by the temporary restraining order by initiating contact with J.W.'s father, she was not complying with the Department's drug testing program, and she did not remain in contact with the Department. On October 31, 2017, the court ordered the children detained from mother's custody.
In early November 2017, father cancelled an appointment with the Department to assess his home for A.B.'s placement. Father told the social worker he was looking for a new home and that he would prefer to conduct an assessment after he moved because he didn't want the Department to "judge" his mother, with whom he was living at the time. Father told the social worker he would contact the Department when he found a new home.
As of late November 2017, father was still living with his mother. Father had talked to A.B. over "face time," but he had yet to visit her in person. Father told the Department he was busy with work and didn't have any days off.
3. The Jurisdiction and Disposition Hearings
In early February 2018, the court conducted the jurisdiction hearing. Mother pled no contest to allegations that the history of domestic violence between herself and J.W.'s father, as well as mother's failure to comply with the temporary restraining order against J.W.'s father, placed A.B. and J.W. at risk of harm (§ 300, subds. (a), (b)). The court dismissed the other allegations in the petition, including the allegations against father. After dismissing the allegations against father, the court expressly found he was "non offending on the petition." The court ordered A.B. to remain detained from her parents' custody and set a disposition hearing for March 2018.
Before the jurisdiction hearing, the Department amended the dependency petition to add an allegation that mother's failure to comply with the temporary restraining order placed the children at risk of harm (b-6 allegation).
In late February 2018, the Department assessed father's home. He was living in a converted garage. The garage contained one bed, but it was fully-equipped and did not pose any safety hazards for young children. Father told the Department he would get a second bed for A.B. if the court placed her with him.
Father had visited A.B. only once since December 2017 because of his work schedule. Father reported that he was working long hours so he could save up for a new home for himself and A.B., but he told the social worker he would work fewer hours if the court released the child to his custody. The social worker "stressed the importance of [father] visiting with [A.B.]" if he wanted to reunite with the child.
Father explained that he had not been "heavily involved" in A.B.'s life before the child came to the Department's attention because J.W.'s father "would want to fight him." Father was frustrated that mother and J.W. were not doing anything to improve the situation that led to the court exercising jurisdiction over A.B. The Department recommended the court continue to detain A.B. from father's custody because father had yet to develop a sufficient bond with the child.
The court held the disposition hearing on March 12, 2018. The court declared A.B. a dependent of the court and ordered her removed from mother's custody. The court found placing the child in father's custody would be detrimental to her well-being. Although the court ordered the Department to provide mother and father reunification services, the record does not contain a case plan for father. The parties agree, however, that the only service the court ordered father to participate in was visitation with A.B. The court gave the Department discretion to place A.B. in father's custody.
Although father appealed from the disposition order, his appeal was later dismissed as abandoned. --------
4. The Six-month Review Period
As of late March 2018, father had visited A.B. only once recently. A.B.'s caretaker reported that father had missed a visit because he was sick.
In May 2018, the court held a progress hearing. The court ordered the Department to establish a visitation schedule for father, consisting of six hours of visitation per week. The court did not return A.B. to father's custody, but continued to provide the Department discretion to place the child with father.
After the progress hearing, father did not contact the Department until late July 2018 because he had lost his phone. A.B.'s caretaker, the child's maternal great grandmother, reported that father's attempts to visit the child had been sporadic. The caretaker was upset with father's inconsistency and believed A.B. was "affected by this behavior."
In early August 2018, the Department provided father a written visitation schedule, allowing father to visit A.B. for three hours on Thursday afternoons. On August 9, 2018, father visited A.B. for the first time since the March 2018 disposition hearing. The visit went well, and father asked the Department to schedule his second weekly visit for Sundays because his work schedule made it difficult to visit any other day of the week. By late August, father had started visiting A.B. on a weekly basis.
In early September 2018, father texted the Department's social worker that he would be working in San Francisco for about three weeks and, as a result, would not be able to visit A.B. Although father did not contact the Department until mid-October 2018, he had two successful visits with A.B. in late September. According to A.B.'s caretaker, the child "has been fine when she comes back [from visits with father,] and that she does not seem sad."
On October 16, 2018, the court conducted a contested six-month review hearing (§ 366.21, subd. (e)). The court found returning A.B. to father's custody would create a substantial risk of detriment to the child's well-being. The court found father was in partial compliance with his case plan and ordered the Department to continue providing him reunification services.
5. The 12-month Review Period
In late October 2018, the Department conducted another assessment of father's home. Father lived in a "converted garage/studio" in La Puente. Father had a "queen size bed, restroom, stove, and refrigerator in the studio. The home [was] spacious enough for a small full size bed. The home [was] clean and organized with all the utilities in working condition." The social worker did not observe any safety hazards inside or outside father's home. Father told the Department that if A.B. were placed in his custody, his friend Alma would be able to assist him with childcare on the days he worked. Alma had custody of her infant grandson, but she was willing to help father care for A.B. Alma had no criminal history.
Between late October and mid-December 2018, father missed nine scheduled visits with A.B. Father claimed it was difficult for him to regularly visit A.B. because of "his work, not having a car, [and] just being busy with other stuff." But father and A.B. attended a holiday party at the Department's office in December, at which A.B. appeared to be happy and comfortable.
In March 2019, the Department reported on the family's progress. Father had not visited with A.B. since the first week of January. Father claimed he hadn't visited the child recently because he was hospitalized following a car accident. Father didn't provide the Department with proof that he had been hospitalized.
On March 11, 2019, the court held the 12-month review hearing (§ 326.21, subd. (f)(1)). The court found returning A.B. to father's and mother's custody would be detrimental to her well-being. The court found mother and father were in partial compliance with their case plans and ordered the Department to continue providing them reunification services. The court ordered father "to visit as much as he can" and requested the Department to provide father transportation assistance and a new written schedule for visits to occur on Tuesdays and Wednesdays.
6. The 18-month Review Period
In mid-April 2019, the Department notified father that he could visit A.B. on Wednesdays and Fridays. The Department denied father's request to visit A.B. on Tuesdays, instead of Wednesdays, because mother visited the child on Tuesdays.
Between early May and mid-September 2019, father visited A.B. six times. According to A.B.'s caregiver, father had not called or otherwise contacted her to cancel or reschedule any of his missed visits. Father also had not been in contact with the Department since early June 2019.
On October 11, 2019, the court held an 18-month review hearing (§ 366.22, subd. (a)(1)). Father asked the court to place A.B. in his custody. The Department and A.B. opposed father's request and asked the court to terminate father's reunification services and set a permanency planning hearing. After reviewing father's history of visiting with A.B., the court found it would be detrimental to return A.B. to his custody because he "has not consistently cooperated with staying in touch not only with the social worker on a constant basis but [also] not visiting his child." The court also found it would be detrimental to A.B.'s well-being to return her to mother's custody. The court terminated mother's and father's reunification services and scheduled a selection and implementation hearing under section 366.26 for early February 2020.
On November 14, 2019, father filed a petition for review of the October 11, 2019 order setting the selection and implementation hearing. We issued an order to show cause.
DISCUSSION
Father contends insufficient evidence supports the court's finding at the 18-month review hearing that returning A.B. to his custody would be detrimental to the child's safety or physical or emotional well-being. The Department argues father's lack of consistent visitation with A.B. prevented him from establishing a sufficient bond with the child, which supports the court's detriment finding. A.B. joins in the Department's arguments. As we explain, insufficient evidence supports the court's detriment finding.
California's dependency system is designed "to protect children from harm and to preserve families when safe for the child." (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1423 (Tracy J.); see also § 300.2.) During the reunification period of a dependency case, the primary focus is on preserving the family by addressing the issues that led to dependency jurisdiction. (Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 507.) That means until reunification services have been terminated, "family reunification is the goal and the parent is entitled to every presumption in favor of returning the child to parental custody." (Tracy J., at p. 1423; see also §§ 366.21, 366.22.) Once reunification services are terminated, however, the focus shifts to finding the child a safe and permanent home. (Tracy J., at p. 1423.)
At each review hearing following disposition, "there is a statutory presumption that the child will be returned to parental custody." (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) A court, therefore, must return the child to her parent's custody unless it finds by a preponderance of the evidence that doing so would "create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (See §§ 366.21, subd. (e)(1), 366.22, subd. (a)(1).) "It is not the nonoffending parent's burden to show that [he] is capable of caring for [his] child." (In re Z.K. (2011) 201 Cal.App.4th 51, 70.) Rather, the Department must prove that the child would face some actual, non-speculative risk if she were returned to her parent's custody. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400 (Yvonne W.).)
"The 'substantial risk of detriment' standard 'must be construed as a fairly high one. It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.' [Citation.]" (In re E.D. (2013) 217 Cal.App.4th 960, 965.) The standard is "very high" when the parent requesting custody, like father in this case, is competent and was not responsible for the conditions leading to the child's dependency. (See In re Patrick S. (2013) 218 Cal.App.4th 1254, 1263.)
"In evaluating detriment, the juvenile court must consider the extent to which the parent participated in reunification services. [Citations.] The court must also consider the efforts or progress the parent has made toward eliminating the conditions that led to the child's out-of-home placement." (Yvonne W., supra, 165 Cal.App.4th at p. 1400.)
We review a juvenile court's detriment finding for substantial evidence. (Tracy J., supra, 202 Cal.App.4th at p. 1424.) " ' "Substantial evidence" is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. [Citation.]' [Citation.] 'Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence. [Citations.]' " (Ibid.)
At the outset, we acknowledge the legitimacy of the court's and the Department's concerns about father's inconsistent visitation with A.B. and his irregular contact with the Department. Maintaining regular visitation is undoubtedly a critical component of the family reunification process. (In re Mark L. (2001) 94 Cal.App.4th 573, 580.) But these deficiencies, without more, do not support a finding of detriment in this case because, for the reasons discussed below, the Department failed to prove that placing A.B. in father's custody would endanger the child's safety or place her at a substantial risk of physical or emotional harm. (See In re K.B. (2015) 239 Cal.App.4th 972, 981 ["a lack of contact between the child and the nonoffending noncustodial parent, alone, is not a basis for finding detriment"]; see also In re John M. (2006) 141 Cal.App.4th 1564, 1571 [child's "need for services, his lack of a relationship with [father], and the paucity of information about [father] do not support the detriment finding" made at the disposition hearing].)
First, the Department presented no evidence that placing A.B. with father would expose the child to any of the issues that led to her dependency. Father was a non-offending parent. Although the Department alleged, and father acknowledged, that he and mother had engaged in domestic violence before A.B. came to the Department's attention, the court struck the allegations addressing mother's and father's history of violence. Nothing in the record suggests father engaged in any violent behavior after the Department filed the petition. And the court apparently was not concerned that father had on-going issues with violence because it never ordered him to participate in a domestic violence program or any other services related to issues of violence.
Second, there is no evidence that father has issues with substance abuse that would place A.B. at risk of harm in his custody. While father admitted he used marijuana on a daily basis in the past, he told the Department he stopped using the drug in April 2017, or more than four months before the Department filed the petition in this case. The Department presented no evidence that father used marijuana, or any other substance, while A.B. was in his care or at any time after A.B.'s dependency proceedings were initiated. Indeed, nothing in the record shows the court was concerned that father had issues with drug use, as it never ordered him to drug test or attend drug treatment or counseling.
Third, the Department failed to prove that father could not provide A.B. a stable home or otherwise meet the child's needs if she were placed in his custody. The Department assessed father's home on two separate occasions, and each time it concluded the home was safe for a child and equipped with adequate food and supplies. Although father worked long hours, which affected his ability to consistently visit with A.B., he told the Department he would reduce his hours if A.B. were placed in his custody. And, as an alternative plan, father proposed that his friend Alma, who was willing to help care for A.B., could watch the child when he was at work. Nothing in the record suggests that father's plan for caring for A.B. would have placed the child at any risk of physical or emotional harm.
Finally, there is no evidence to support an inference that placing A.B. in father's custody would be detrimental to her emotional well-being. Although A.B. was doing well with her caretaker, there is nothing to suggest A.B.'s bond with the caretaker was so strong that it would cause A.B. substantial, long-term emotional harm should she be removed from the caretaker and placed with father. (See In re Jasmon O. (1994) 8 Cal.4th 398, 418 [the existence of a successful relationship between a child and foster parent cannot be the sole basis for depriving a parent of custody unless severing that relationship "would do serious, long-term emotional damage to [the child]"].) And while father did not visit with A.B. as much as he could (or should) have, the records of his visits were positive. A.B. appeared happy and comfortable when she was with father, and, according to the caretaker, the child never displayed any signs of negative emotional effects when she came home after visiting father. There is also no evidence that father acted inappropriately during his visits with A.B. or otherwise engaged in any negative contact with the child throughout the dependency proceedings.
In sum, evidence of father's failure to consistently visit with A.B. or to establish a significant bond with the child, without more, is insufficient to support a detriment finding during the reunification stage of the child's dependency proceedings. (See David B. v. Superior Court (2004) 123 Cal.App.4th 768, 788 [the issue at the review hearing "is whether placing [the child] in her father's care represents some danger to her physical or emotional well-being[;] [t]he existence of a parental bond takes on independent significance only after the reunification effort is terminated and the case is sent to the permanency planning stage"].) Because insufficient evidence supports the court's finding that placing A.B. in father's custody would be detrimental to the child's safety or physical or emotional well-being, the October 11, 2019 order terminating father's reunification services and setting a selection and implementation hearing must be vacated. We remand the matter with directions for the court to return A.B. to father's custody.
We express no opinion whether the court should, after returning A.B. to father's custody, terminate dependency jurisdiction or retain jurisdiction and order family maintenance services to ensure A.B.'s safety and physical and emotional well-being. (See Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 316 ["at the six-month, 12-month [and] 18-month review hearing, the juvenile court has the authority, in its discretion, to return a dependent child to the physical custody of his or her parent or guardian and either to terminate its jurisdiction or to retain dependency jurisdiction and order family maintenance services to ensure the safety and physical and emotional well-being of the child"].) Nothing in this opinion should be construed to preclude the court on remand from considering, or to prejudice the Department's right to bring further proceedings based on, facts and circumstances that have taken place since the October 11, 2019 18-month review hearing.
DISPOSITION
The petition for extraordinary relief is granted. The juvenile court is directed to vacate its October 11, 2019 order terminating reunification services, finding that returning A.B. to father's custody would create a risk of detriment to her, and setting a selection and implementation hearing under section 366.26. On remand, the court is directed to return A.B. to father's custody and either terminate its jurisdiction or retain dependency jurisdiction and order family maintenance services to ensure the safety and physical and emotional well-being of the child. This opinion is final immediately upon filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
EGERTON, J.