In re Alejandro S.

Filed 4/19/07 In re Alejandro S. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Hideo Chino, Juvenile Court Referee. Affirmed.

Blanca L. appeals an order of the juvenile court denying her request to have her minor son, Alejandro S., placed with her under Welfare and Institutions Code^[1]section 361.2, subdivision (a) because she was a non-offending, noncustodial parent. Blanca challenges the sufficiency of the evidence to support the court's finding that placing Alejandro with her would be detrimental to him. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2006 the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court under section 300, subdivision (a) alleging Alejandro's father, Alejandro S., Sr. (father) subjected Alejandro to serious physical harm when he hit and kicked him, and struck him with a telephone cord, causing lacerations and bleeding.^[2] Alejandro, who was 10 years old at the time, lived with the father, the father's girlfriend Catalina, Alejandro's 14-year-old sister and his newborn half-brother. Blanca lived in Georgia with her boyfriend Elfego, their two children, a maternal uncle, the maternal grandmother and the grandmother's boyfriend.

Blanca contacted the social worker to say she wanted Alejandro placed with her. She had not seen him since he was a year old. Blanca explained she left the father because he mistreated her. She allowed the children to stay in San Diego with the father until she found a job and a home in Atlanta. When Blanca tried to get custody of the children, the father refused to send them to her. She telephoned the children twice a week until the father changed his telephone number. Blanca did not keep her promise to visit the children because she was an undocumented immigrant and feared deportation. Despite this fear, she traveled to and from Mexico.

The court detained Alejandro at Polinsky Children's Center (Polinsky). Blanca seemed concerned about Alejandro and maintained contact with him through the social worker. Alejandro was not sure he wanted to live with Blanca. Catalina offered to care for Alejandro, as she had done for the past eight years. The social worker believed placing Alejandro with either Blanca or the father was not in Alejandro's best interests because he had had minimal contact with Blanca for the past 10 years and he had unresolved issues with the father.

Blanca requested initiation of an Interstate Compact on the Placement of Children (ICPC) to have Alejandro placed with her in Georgia. She agreed to have him detained with Catalina pending the ICPC. Alejandro now prioritized his placement preferences as follows: Blanca, a paternal uncle, Catalina and foster care. He explained that returning home was not his first choice because he was afraid the father might come home and hit him again. Also, Alejandro wanted to meet Blanca.

At a settlement conference, the court sustained the allegations of the petition and ordered an expedited ICPC for Blanca's home. The court continued the disposition hearing pending the outcome of Blanca's home evaluation.

The social worker in Georgia visited Blanca's home and found it to be appropriate. Although a background check showed no criminal histories for the adults living in Blanca's home, Agency wanted them to be fingerprinted because they were undocumented and could be using aliases.

As of October 2, 2006, neither Blanca nor Elfego had submitted to a drug test or prepared a medical statement, both of which were required by Georgia's ICPC protocol. Blanca said Elfego refused to be fingerprinted because he had a criminal history in California and was afraid he would get in trouble or be deported. Blanca did not know what crimes Elfego had committed. Elfego's refusal to cooperate concerned Agency.

At a contested disposition hearing on October 27, 2006, the court accepted the social worker's stipulated testimony that the results of Blanca's criminal background and fingerprint clearance checks were negative, and Georgia had approved the condition of her home. The court also accepted Alejandro's stipulated testimony that his preference was to remain in San Diego with Catalina. The court declared Alejandro a dependent, removed him from the father's custody and placed him with Catalina, a non-relative extended family member. The court found Blanca was a non-offending, noncustodial parent, but placing Alejandro with her would be detrimental to him.

DISCUSSION

Blanca contends she was a non-offending, noncustodial parent entitled to custody of Alejandro under section 361.2, subdivision (a), and there was no evidence to support the court's finding that placing Alejandro with her would be detrimental to him. Blanca asserts her home was appropriate and a favorable ICPC was not required for placement of Alejandro with her.

A

Under section 361.2, subdivision (a), the court must place a dependent child with a noncustodial, non-offending parent who requests custody, unless the placement would be detrimental to the child's safety, protection, or physical or emotional well-being. The juvenile court must make its finding of detriment by clear and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) On appeal, we review this finding to determine whether there is substantial evidence to support it. (Ibid.) We do not evaluate the credibility of witnesses, attempt to resolve conflicts in the evidence or determine the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, consider the record favorably to the juvenile court's order and affirm the order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) 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.)

B

Here, the evidence supported a finding that in the absence of a fingerprint clearance check for Blanca's live-in boyfriend Elfego, placing Alejandro with Blanca would be detrimental to Alejandro's safety and protection. Elfego had a criminal history and refused to be fingerprinted, giving rise to an inference that the information being withheld would negatively interfere with the court's duty to ensure Alejandro's placement in a safe home.

Contrary to Blanca's argument, the court did not improperly rely on the lack of a completed ICPC to find detriment. (See In re John M. (2006) 141 Cal.App.4th 1564, 1572). Although "ICPC compliance is not required for an out-of-state placement with a parent," an ICPC evaluation is a suitable means of gathering information before placing a child with a noncustodial parent. (Ibid.) Here, the court was entitled to evaluate all available information before making its placement decision. The absence of that information was attributable to Blanca, who would not disclose Elfego's criminal history, and to Elfego, who refused to be fingerprinted.

Further, a finding of detriment for purposes of deciding placement with a non-offending, noncustodial parent need not be related to parental conduct. (In re Luke M., supra, 107 Cal.App.4th at p. 1425.) Because "detriment" has no clear-cut meaning, courts making placement decisions must have flexibility based on facts unique to each child and parent. (See Guardianship of Zachary H. (1999) 73 Cal.App.4th 51, 66.) In evaluating detriment, the court is entitled to consider the emotional impact its placement decision has on the minor. (In re Luke M., supra, 107 Cal.App.4th at pp. 1425-1426.)

Here, Alejandro had no relationship with Blanca because she left him nine years earlier and failed to maintain regular contact with him. (Cf. In re John M., supra, 141 Cal.App.4th at p. 1571 [father's lack of contact with minor was not father's fault].) Despite promises to visit Alejandro, Blanca never did so. Alejandro was curious about Blanca, but he did not want to live with her. Although Alejandro's placement preference was not determinative, it was relevant to the court's exercise of its duty to protect Alejandro once dependency was declared. Substantial evidence supports the court's finding it would be detrimental to Alejandro to place him with Blanca.

DISPOSITION

The order is affirmed.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P.J.

IRION, J.

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^[1] Statutory references are to the Welfare and Institutions Code.

^[2] The father was later arrested and charged with child cruelty for the incident that led to Alejandro's injuries.