In re V.F.

Filed 2/11/10 In re V.F. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.

Scott F. is the father of V.F., U.F., O.F, and M.F. (together the minors.) Scott appeals from orders of the juvenile court following a disposition hearing held under section 361, subdivision (c). He asserts that the court erred by denying him placement of the minors under section 361.2. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2009, the San Diego County Health and Human Services Agency (Agency) filed petitions on behalf of the minors under section 300. The petitions alleged the minors' mother, Claudine F., was arrested for possession of marijuana, methamphetamines and hypodermic needles. Drug paraphernalia had been found in the family home and Claudine admitted to using methamphetamines. She appeared to be under the influence of drugs at the time of her arrest.

The Agency filed a detention report that showed Claudine had a history with Child Welfare Services. That history included a prior dependency that resulted from Claudine's substance abuse problems. The prior dependency started in January 2007 and closed in December 2008.

Scott was convicted of several violent felonies and in 2004, he started serving a 13-year prison sentence on convictions that included robbery with the personal use of a firearm and possession of a firearm by a felon stemming from an attempted carjacking. In addition to his felony convictions, Scott had a history of domestic violence and drug problems. He had acted violently toward Claudine on more than one occasion and struggled with a methamphetamine addiction. In March 2004, the court ordered a restraining order again Scott stating that V.F., U.F. and Claudine were to be protected from Scott for three years. Scott was disallowed from contacting Claudine directly and permitted only to visit the minors under supervision. Scott and Claudine divorced in 2009 and a court order allowed for Scott to have supervised visits with the minors. Scott remained in contact with the minors through cards and letters.

The court held a detention hearing on March 30, 2009 and appointed counsel for both Scott and Claudine. The court detained the minors in out-of-home care. Claudine immediately started services.

In the jurisdiction and disposition reported filed by the Agency, the Agency recommended that the court deny services to Scott, order services for Claudine and continue the minors' placement at Polinsky's Children Center until a home evaluation of various relatives could be completed and approved. The Agency requested expedited Interstate Compact on the Placement of Children (ICPC) home evaluations of paternal relatives that lived out of state. Claudine objected to the minors being placed out of state. She wanted the minors to remain in San Diego while she pursued services so that she could visit them and have the opportunity to reunify with them.

An Agency social worker met with the minors and discussed their preferences concerning where they wanted to live. V.F. stated she would like to live with her mom. She enjoyed living with her paternal relatives but she was not sure whether she wanted to go back to Michigan. U.F. wanted to stay in San Diego and reunite with Claudine. M.F. and O.F. told the social worker that they wanted to stay in San Diego and O.F. said she wanted to go home to Claudine.

The court held a jurisdiction hearing in June 2009. The Agency recommended that the minors remain in San Diego while Claudine participated in services. Scott argued at the hearing that although he was in prison, he was a noncustodial parent as defined under section 361.2 and therefore, he had the right to make arrangements for the care of the minors. Scott requested that the children be placed with paternal relatives in Michigan. At the conclusion of the hearing, the court ordered an ICPC evaluation of a relative's home in Michigan and continued the contested disposition hearing to a later date.

The court held a disposition hearing in July 2009. The court heard testimony from Scott, various paternal relatives and social worker Andria Flores. Ms. Flores testified that the minors had been placed with their paternal stepgrandmother and paternal stepfather in San Diego. The minors expressed wanting to return home to Claudine. Ms. Flores stated that Scott had not had any direct involvement in the minors' lives since his incarceration in 2004. Claudine remained committed to participating in services and had made progress. Claudine also remained drug free. Ms. Flores opined that it was in the minors' best interests to reunify with Claudine by remaining in San Diego instead of moving to live with relatives in Michigan. The minors shared a close relationship with Claudine and enjoyed spending time with her. In the event Claudine was not successful in reunification, only then should moving the minors to Michigan be considered an option.

Irus C., the minors' paternal aunt, testified that she came to San Diego from Michigan about four months before the hearing in order to help take care of the minors. The minors had lived with Irus's sister from about June 2007 through June 2008 during a prior dependency. Irus helped her sister look after the minors. Irus testified that she wanted the court to place the minors with her in Michigan and she stated that she would consider a guardianship arrangement. Irus further testified that upon Scott's release from prison in 2013, Scott would need to participate in services before regaining custody of the minors.

Scott testified that he remained in contact with the minors while in prison. He called them and sent them letters. He believed the minors would be best taken care of in Michigan and asked the court to place the minors with his relatives. He also wanted the court to order him services. Scott did not object to Claudine receiving services. He agreed with Irus that he would need family assistance and support to rebuild his life after his release from prison.

The court found that Scott qualified as a noncustodial parent under section 361.2 and acknowledged that Scott had requested custody of the minors. The court declared the minors dependents of the court and removed them from Claudine's custody. The court found it would be detrimental to place the minors with Scott because he had a violent felony conviction, he was to remain in prison for four more years, he had a history of negative behavior and the minors could not immediately be placed with Scott upon his release from prison. The court placed the minors in foster care, ordered services for Claudine and granted her unsupervised visits with the minors. The court denied services for Scott under section 361.5, subdivisions (b)(12) and (e)(1) because it would not be in the minors' best interests to order services for Scott.^[1]

DISCUSSION

I.

Scott argues the court erred: (1) when it did not deny services to Claudine under section 361.5, subdivision (b)(13), which in turn caused the court to deny him placement; and (2) when it misinterpreted the ICPC and concluded that placement of the minors with Scott's relatives in Michigan would require compliance with the ICPC.

Before addressing Scott's arguments, we first look to whether there is sufficient evidence to support the court's findings under section 361.2, subdivision (a) that placing the minors with Scott would be detrimental to them.^[2]

A. Section 361.2 and Standard of Review

Under section 361.2, subdivision (a), the court must place a dependent child with a noncustodial, nonoffending 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.) 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.) The overriding consideration for the court is the minor's best interests. (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268; In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.)

If the court determines the child's placement with the noncustodial parent would be detrimental, the court then orders the Agency to place the child in a suitable home. (In re Adrianna P. (2008) 166 Cal.App.4th 44, 55.) The court makes the aforementioned assessment under section 361.2 even if the noncustodial parent is incarcerated. (In re Isayah C. (2004) 118 Cal.App.4th 684, 700 [incarcerated parent may have placement of a child while delegating daily care of the child to a third party].)

When the court's findings as to detriment are challenged on appeal, we consider the record favorably to the order and determine whether there was substantial evidence from which a reasonable trier of fact could make the findings by clear and convincing evidence. (In re Luke M., supra, 107 Cal.App.4th at p. 1426.) In this regard, we may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Issues of fact and credibility are matters for the trial court alone. (In re Nada R., supra, 89 Cal.App.4th at p. 1177.) We must 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. Substantial Evidence Supports a Finding of Detriment

Here, the record shows Scott had been convicted of several violent felonies in 2004, including robbery with the personal use of a firearm. Scott started serving a lengthy sentence in 2004 and his expected release date is 2013. In addition to the 2004 conviction, Scott has a criminal history that includes arrests from 1998, 2001 and 2004. Scott also had a restraining order in place against him that was effective from 2004 through 2007 stemming from allegations of domestic violence brought by Claudine. This lengthy history shows that Scott had a pattern of living a violent lifestyle. It was reasonable for the court to infer from Scott's criminal history, it would be detrimental to place the minors with him. Moreover, Scott and his sister both testified that Scott would not be in a position to take care of the minors immediately upon his release. Rather, he would need services to address his criminal history, his history of substance abuse and support to establish a relationship with the minors.

In addition to not having the means or ability to care for the minors once released from prison, the record shows Scott had not supervised the minors for many years. We acknowledge that during the years since Scott's incarceration, Scott has maintained contact with the minors by writing to them and calling them. Beyond this communication, however, Scott has not parented or supervised the minors for quite some time. U.F. was three years old when Scott went to jail. O.F. was a small infant and M.F. was born after Scott started his sentence. The social worker opined that O.F. and M.F. did not share a typical daughter-father relationship with Scott. In contrast, the minors indicated they wanted to reunify with their mother and remain placed in San Diego. Under these circumstances, substantial evidence supports the court's finding it would be detrimental to place the minors in Scott's custody.

C. Reunification Services for Claudine

Scott argues that the court erred when it ordered reunification services for Claudine. Specifically, he asserts that the court erred when it stated it had no legal basis to deny services to Claudine.

We question whether Scott has standing to assert that the court should have denied services to Claudine because he has not shown how he has been aggrieved. (See In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1807; In re Joshua S. (1986) 186 Cal.App.3d 147, 150.) In any event, we note the Agency's argument that to the extent Scott attacks the propriety of the court's order granting Claudine services, he has forfeited this argument. " '[A] parent's failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court. [Citations.]' " (In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) At the start of the contested jurisdiction hearing, the Agency represented that it would be requesting services for Claudine and that it did not have a legal basis to not offer her services. There was no objection raised to the Agency's position or mention of denying services to Claudine under section 361.5, subdivision (b)(13) as currently raised in Scott's opening brief. Also, when asked if he opposed the recommendation to grant services to Claudine, Scott stated that he did not oppose services if Claudine was ready to receive them. Scott has forfeited this argument on appeal.

In addition, Scott has not shown how he has been prejudiced by the court's decision to grant Claudine services. Even had the court denied Claudine services, Scott would not have gained custody of the minors because, as noted ante, the court properly found it would have been detrimental to place the minors with Scott under section 361.2. Further, the denial of services to Claudine did not guarantee that the minors would be placed in Michigan. An ICPC of the relative's homes in Michigan had yet to be approved and the minors told an Agency social worker that they wanted to remain in San Diego. The court did not err by ordering reunification services for Claudine.

D. ICPC

Scott also argues the court misunderstood the application of the ICPC to the proceedings. He believes the court's alleged belief that it could not place the minors in Michigan influenced its decision to deny placing the minors with him.

Scott supports his argument by referring to the court's comments made at the conclusion of the disposition hearing. After finding that it would be detrimental to place the minors with Scott, the court noted the practical problems associated with this dependency. One of the problems the court referenced was that it could not place the minors out of state without an ICPC because otherwise, Claudine could travel to Michigan and request custody of the children.

First, we note that Scott did not raise this issue before the trial court. There was no objection made concerning the pending ICPC or to the statements made by the court about ICPC. Regardless of Scott's failure to object to this issue at trial, nothing in the record shows the court misapplied or misinterpreted the ICPC that would warrant a reversal. The record shows the court simply commented on the many aspects of the case and one of those aspects was the necessity of ICPC compliance before moving the minors to Michigan. Moreover, the minors had been ordered to be placed with family in California and thus, the court did not need to have ICPC compliance. In the event the minors had to be placed with relatives out of state, the court would then consider the directives of the ICPC to ensure the safety of the minors. (See Fam. Code,  7901; In re Luke L., (1996) 44 Cal.App.4th 670, 677-682.) The court did not err.

DISPOSITION

The orders are affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

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^[1] Section 361.5, subdivision (b)(12) states in pertinent part: "Reunification services need not be provided to parent . . . when the court finds . . . [] (12) that the parent or guardian of the child has been convicted of a violent felony as defined in subdivision (c) of Section 667.5 of the Penal Code." Section 361.5, subdivision (e)(1) states in pertinent part: "If the parent or guardian is incarcerated . . . the court shall order reasonable services unless the court determines . . . those services would be detrimental to the child."

^[2] Scott did not specifically challenge the court's finding of detriment on appeal. However, in order to properly address Scott's arguments, it is appropriate for this court to address the merits of the court's findings under section 361.2, subdivision (a).