In re Heaven J.

Filed 10/24/06 In re Heaven J. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert W. Nagby, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Jacquelyn E. Gentry, under appointment by the Court of Appeal, for Minor.

INTRODUCTION

At a jurisdictional hearing held on December 14, 2005, the juvenile court found that the minor, Heaven J., came within the provisions of Welfare and Institutions Code^[1] section 300, subdivision (b), failure to protect. It then removed the minor from the physical custody of the parents under section 361, subdivision (c)(1). Father appeals, contending that the juvenile court erred when it made removal findings as to him under that subdivision. We disagree and affirm.

FACTUAL AND PROCEDURAL HISTORY

Juvenile dependency petitions were filed on October 4 and October 20, 2005, as to the minor Heaven J., age 4, and two of her siblings.^[2] The petition alleged that the mother, Vanessa J., had failed to protect her children within the meaning of section 300, subdivision (g). In support of the allegation, the petition specifically alleges that the mother abuses controlled substances and the father, although not residing in the household, had failed to provide for the child and had failed to protect the child from the mother. The petition further alleged that the father has a criminal history of charges relating to the abuse of controlled substances, and that this fact placed the child at risk of suffering serious physical harm.

In the detention report, the social worker stated that the child had been placed with the paternal grandparents after the mother was arrested for drug offenses. When the father was interviewed, he reportedly stated: “I want [the minor] to go with my parents. They had her a long time ago and they are really bonded with her. I am not in a situation where I could take her now. I am now just having visits with her and I work full time. I really want her placed with my parents.” The social worker then returned the child to the father and the father voluntarily placed her with his parents.

The detention hearing was held on October 5, 2005. The allegations of the petition were found to be prima facie true, except for the allegation that the father had a criminal history for drug abuse which placed the child at risk of suffering serious physical harm. Although the Department of Public Social Services (the Department) recommended removal of the child from the father’s physical custody pursuant to section 319, subdivision (a), the juvenile court refused to make such findings. The father agreed to placement of the child with the paternal grandparents.

The social worker’s jurisdiction/disposition report was filed November 9, 2005. The report recommended that the minor be removed from the care of her father and found to be a dependent of the court. The father was interviewed and admitted to a history of substance abuse, but denied current usage. With regard to alcohol, he admitted a continuing problem with alcohol and stated, “[h]e continues to ‘get drunk’ approximately two times a week at the local bar on the corner and walks home.” He admitted to being drunk the night before the interview and stated that, if his daughter was with him, he would not have been able to care for her. He also told the social worker that he does not have enough money to support his daughter. The social worker concluded that father “needs to resolve his issue with alcohol prior to having [the minor] in his care.”

The jurisdiction/disposition hearing was held on December 14, 2005. Although the father did not appear at the hearing, his attorney argued that the court should not make removal findings as to him because “he has not in any way caused any harm to this child while he [was] intoxicated.” The juvenile court rejected the argument, found that the minor and her siblings came within the jurisdiction of the court, and ordered the minor removed from her father’s custody pursuant to section 361. However, physical custody of the minor remained with the paternal grandparents. The court also ordered that reunification services be provided for the father.

DISCUSSION

Father’s sole contention on appeal is that the trial court erred in making removal findings under section 361.

Section 361, subdivision (c), states: “A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . . [that] [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 or guardian’s physical custody. . . . The court shall consider, as a reasonable means to protect the minor . . . allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm.”

The parties cite In re Isayah C. (2004) 118 Cal.App.4th 684. In that case, the court stated the governing general principles: “‘We begin by noting that in dependency proceedings the burden of proof is substantially greater at the dispositional phase than it is at the jurisdictional phase if the minor is to be removed from his or her home. [Citations.] This heightened burden of proof is appropriate in light of the constitutionally protected rights of parents to the care, custody and management of the children. [Citation.] “‘Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood.’ [Citation.] ‘In furtherance of these principles, the courts have imposed a standard of clear and convincing proof of parental inability to provide proper care for the child and resulting detriment to the child if it remains with the parent, before custody can be awarded to a nonparent.’ [Citation.]” [Citation.]’ [Citation.] We review the record in the light most favorable to the trial court’s order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard. [Citation.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.]” (Id. at pp. 694-695.)

The court here did not expressly say that it was making its findings on clear and convincing evidence but it did say that findings were made pursuant to section 361. The issue then is whether there is substantial evidence to support the court’s findings by clear and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) “We review the trial court’s findings for substantial evidence. [Citation.] We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. [Citation.] Substantial evidence must be of ponderable legal significance. It is not synonymous with ‘any’ evidence. [Citation.] The evidence must be reasonable in nature, credible, and of solid value. [Citation.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. [Citation.]” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

Father also cites In re Basilio T. (1992) 4 Cal.App.4th 155: “[I]n dependency proceedings the burden of proof is substantially greater at the dispositional phase than it is at the jurisdictional phase if the minor is to be removed from his or her home. [Citations.] This heightened burden of proof is appropriate in light of the constitutionally protected rights of parents to the care, custody and management of the children. [Citation.]” (Id. at p. 169.)

Applying this standard, father argues that a child may not be removed from the physical custody of a parent unless there is clear and convincing evidence that the child is in substantial danger if left with the parent. He finds no such evidence in this record because he made adequate provisions for the minor’s care by giving her to his parents. The basic principle he espouses is, “If a parent is able to protect his daughter by placing [her] with his parents, then the court has no basis for removing her from his parental custody.”

Father analogizes the situation to that of an incarcerated parent. Under section 361, subdivision (c)(5), the child may not be taken from the custody of an incarcerated parent unless that parent cannot arrange for the care of the minor. In Isayah C., supra, 118 Cal.App.4th 684, dispositional orders removing the child from parental custody were reversed because, although the father was arrested, he was able to arrange for his son to be cared for by his parents. (Id. at pp. 687-688.) The court said: “The cases addressing removal by reason of a custodial parent’s incarceration, under section 300, subdivision (g) . . . have held that ‘[t]here is no “Go to jail, lose your child” rule in California. [Citation.]’ [Citation.] If an incarcerated parent can make suitable arrangements for a child's care during his or her incarceration, ‘the juvenile court ha[s] no basis to take jurisdiction in th[e] case, and [the social services agency] simply ha[s] no say in the matter. [Citation.]’ [Citation.] Yet in the present case, where the allegation against appellant under section 300(g) was dismissed, he still lost his child by reason of his incarceration. We do not believe the Legislature intended section 361(c) (or section 361.2(a), for that matter) to be interpreted so as to permit a result that the courts have held to be unacceptable under section 300(g).” (Id. at p. 696.)

We disagree with father’s analogy. Father was not a nonoffending parent who was involuntarily taken from his parenting duties by incarceration. Instead, he was an offending parent who was unwilling or unable to care for the minor, and who merely sought to direct the placement of the minor by retaining ostensible physical custody. If custody with the grandparents was not formalized, the father could change his mind at any time and take physical custody. The question was whether there was substantial evidence to support the juvenile court’s conclusion that such physical custody would endanger the minor. The juvenile court found that father’s alcoholism issues and admitted inability to care for the minor were sufficient reasons for it to conclude that father should not have physical custody. We agree with the Department that the trial court’s decision was supported by the evidence, specifically the social worker’s report described above.

Father focuses on the juvenile court’s refusal to make section 319 findings at the detention hearing. At that hearing, the court did not remove the minor from her father’s physical custody, but instead approved her placement with the paternal grandparents. At the disposition hearing, with a higher applicable standard of proof, father argues that nothing had changed, and the placement with the paternal grandparents continued. But we agree with the Department that something had changed, namely, additional evidence as to father’s alcoholism had been presented. The juvenile court properly considered, and father conceded, that father would not be able to care for the child if she was actually in his physical custody, and it properly concluded that she should be removed from that technical physical custody.

Father relies on In re Henry V. (2004) 119 Cal.App.4th 522 (Henry V.). In that case, the minor had unexplained burn marks and was detained. (Id. at pp. 525-526.) At the dispositional hearing, the juvenile court refused to return the minor to his mother’s care until a recommended bonding study had been completed. (Id. at p. 528.) Although the juvenile court found a substantial danger to the child if he was returned to the mother’s custody, the appellate court found a lack of substantial evidence to support the juvenile court’s conclusion. (Id. at p. 529.) It said: “The fundamental right to the care and custody of one’s child is protected by Constitution and statute. [Citations.] A child may not be taken from a parent’s physical custody during juvenile dependency proceedings, except for a temporary detention period, unless clear and convincing evidence supports a ground for removal specified by the Legislature. Removal on any ground not involving parental rejection, abandonment, or institutionalization requires a finding that there are no reasonable means of protecting the child without depriving the parent of custody. [Citations.]” (Id. at p. 525.) Specifically, the appellate court found no evidence that the juvenile court had understood or applied the clear and convincing evidence standard. (Id. at p. 530.) Examining the evidence, the appellate court found that the physical abuse was a single occurrence which was not an obstacle to reunification. (Id. at p. 529.) Although the expert recommended a bonding study before the child was returned home, the appellate court found that the study could be completed while the child was living in the home. (Id. at p. 529.) In other words, the removal of the child from the mother’s custody could not be used as a club to convince her to cooperate with out of home placement services. (Id. at 529-530.)

The situation in Henry V. is distinguishable from the present case. In Henry V., there was insufficient evidence that the child would be in danger if returned to the mother’s custody while the bonding study was completed. Here, however, there was new and sufficient evidence presented at the jurisdiction/disposition hearing that the father’s continuing binges actually prevented him from caring for the child, and this inability to care for the child supports the conclusion that the child would be in danger if she was in the physical custody of her father. As the court observed: “In all too many cases, the risks involved in returning a child to parental custody at the dispositional phase are clearly established. When they are not, as in this case, the juvenile court must recognize the legal restraints against separating parent and child.” (Henry V., supra, 119 Cal.App.4th at p. 531.) In this case, the risks in returning the child to the actual physical custody of her father were clear. We find substantial evidence in the record to support the juvenile court’s dispositional order by clear and convincing evidence.

Finally, father cites In re Jeannette S. (1979) 94 Cal.App.3d 52. In that case, the juvenile court declared the child a ward of the court and removed the child from the mother’s custody. (Id. at p. 54.) The appellate court reversed. (Id. at p. 61.) The removal was based on evidence that the minor was being raised in filthy living conditions, and the appellate court found that the living conditions were a sufficient reason to assume dependency jurisdiction under section 300, subdivisions (a) and (b). (In re Jeannette S., at pp. 58-59.) But it also found that the living conditions were not sufficient to support a removal order under section 361. (Id. at pp. 59-61.) The appellate court said: “the courts have imposed a standard of clear and convincing proof of parental inability to provide proper care for the child and resulting detriment to the child if it remains with the parent, before custody can be awarded to a nonparent. [Citations.]” (Id. at p. 60.) The appellate court found that the standard had not been met because “the juvenile court had two reasonable alternatives available to it short of awarding custody to the Department.” (Ibid.) No such alternatives were shown here and, as noted above, the father conceded that he was unable to care for the child himself, particularly after he had been drinking excessively.

We find In re LaShonda B. (1979) 95 Cal.App.3d 593, a case cited by the Department, more persuasive. In that case, the mother physically abused the baby and the father did not live in the home. The baby was removed from the mother and placed in the physical custody of the father. The father agreed to physical custody by the maternal grandmother but, at the final hearing, the juvenile court dismissed the petition. (Id. at pp. 597-598.) The appellate court reversed and held that dismissal of the petition was an abuse of discretion. (Id. at pp. 601-602.) It said: “[W]here there are two parents with separate homes, the child can be removed from the home of the unfit parent at the adjudication hearing without prejudicing the other parent’s right to gain custody of the child at the disposition hearing upon a sufficient showing that he or she is capable of providing proper parental care. The court here felt that elements involved in a sufficient showing of proper and effective parental care include employment, a stable residence, and appropriate day-care arrangements. We need not decide in this case what constitutes a sufficient showing because the facts here obviously contradict such a finding, since the father had no home of his own and was away so often that he intended to leave the baby for full-time care with relatives instead of day-care arrangements. The court erred in this case by finding that La Shonda’s father had made a sufficient showing that he was ‘a parent capable of exercising proper and effective parental care’ when the evidence, discussed above, clearly refutes such a finding. It is possible that a noncustodial parent who lives apart from the custodial parent, and had no reason to believe the custodial parent would neglect or abuse the child, could make a sufficient showing that he or she is capable of exercising proper and effective parental control. However, this is not such a case.” (Id. at p. 600.)

The father here also failed to show that he was a parent capable of exercising proper and effective parental care. Instead, he showed only that he desired to control where the minor was placed, and for how long. As noted above, if physical custody was not terminated, the father could change his mind at any time and take the child back, even though he could not care for the child due to his alcoholism. We therefore agree with the trial court that removal was proper, and that services would be provided to address the father’s alcohol and other issues. Since we find sufficient evidence to support the juvenile court’s finding by clear and convincing evidence, there was no error.

DISPOSITION

The juvenile court’s December 14, 2005, order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ RAMIREZ

P.J.

We concur:

/s/ RICHLI

J.

/s/ MILLER

J.

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^[1] All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.

^[2] The siblings have different fathers and only Heaven and her father, Richard D., are involved in this appeal. Unless otherwise indicated, all references to “the child” or “the minor” are to Heaven, and all references to “father” are to Richard D.