California Court of Appeal Oct 1, 2013 No. E057625Unpublished
Filed 10/1/13 In re M.G. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re M.G., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E057625
Plaintiff and Respondent, (Super.Ct.No. INJ1200493)
v. OPINION
R.G.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Lawrence P. Best,
sexual or other abuse (subds. (d) & (e)), or abandonment (subd. (g)), among others—the
child comes within the court‟s jurisdiction, even if the child was not in the physical
custody of one or both parents at the time the jurisdictional events occurred. [Citation.]
For jurisdictional purposes, it is irrelevant which parent created those circumstances.”
(Id. at pp. 1491-1492.)
As DPSS established jurisdiction based on C.R.‟s and Mother‟s physical abuse,
substance abuse, and neglect of M.G. and his half brother, the juvenile court properly
found that M.G. came within the jurisdiction of section 300, subdivision (b). (In re I.A.,
supra, 201 Cal.App.4th at pp. 1491-1492.) We therefore find no threatened prejudice to
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Father from this jurisdictional finding, and reject Father‟s challenge to the juvenile
court‟s jurisdiction. (Id. at p. 1495.)
B. Dispositional Orders
Father also contends the order removing M.G. from his custody was not supported
by substantial evidence. He specifically argues that because he was a noncustodial,
nonoffending parent who requested custody of M.G., the court should have placed M.G.
with him because he was “presumptively entitled to custody.” (In re Catherine H. (2002)
102 Cal.App.4th 1284, 1292.)
After ordering jurisdiction over M.G., the juvenile court made disposition orders,
which included removal of M.G. and his half brother from their parents‟ custody and
continued placement together in a foster home. The court found that section 361.2
applied to Father, and found that placement of M.G. with Father would be detrimental to
the safety, protection, and physical and emotional well-being of the child.
The juvenile court “has broad discretion to determine what would best serve and
protect the child‟s interest and to fashion a dispositional order” accordingly. (In re
Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) Among the permissible dispositional
choices is removing the child from the parent‟s physical custody. (§ 361, subd. (c).)
Generally, when a child has been removed from the physical custody of his or her
parents, the statutory scheme governing dependency proceedings obliges the juvenile
court to place the child “in a safe home or setting, free from abuse or neglect.” (In re
Adrianna P. (2008) 166 Cal.App.4th 44, 55.) The child‟s placement is subject to several
provisions of the statutory scheme, including section 361.2. (In re Adrianna P., at p. 55.)
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Section 361.2 governs placement in a specific set of circumstances, namely, when
the child has been removed from the home of a “custodial parent”—that is, a parent who
had physical custody of the child—but has a “noncustodial parent,” that is, “a parent 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.” (In re Adrianna P., supra, 166
Cal.App.4th at p. 55 & fns. 5, 6, italics omitted; see also § 361.2, subd. (a).) Under
subdivision (a) of section 361.2, when the noncustodial parent requests custody, the
juvenile court must place the child with the noncustodial parent unless the placement
would be detrimental to the child‟s safety, protection, or physical or emotional well-
being. This finding also must be made by clear and convincing evidence. (In re A.A.
(2012) 203 Cal.App.4th 597, 605; In re Isayah C. (2004) 118 Cal.App.4th 684, 694.)
The legislative preference is for placement with the nonoffending, noncustodial
parent. (In re John M. (2006) 141 Cal.App.4th 1564, 1569; In re Austin P. (2004) 118
Cal.App.4th 1124, 1132.) Section 361.2 gives “temporary physical custody” to the
nonoffending noncustodial parent “if doing so will not be detrimental to the child, but []
the court may not terminate jurisdiction until it analyzes whether ongoing supervision of
the child is necessary.” (In re Austin P., at p. 1129.)
“We review the record in the light most favorable to the court‟s order to determine
whether there is substantial evidence from which a reasonable trier of fact could find
clear and convincing evidence that [] the child[] would suffer such detriment [under
section 361.2, subdivision (a)]. [Citations.]” (In re Luke M. (2003) 107 Cal.App.4th
1412, 1426; see also In re Isayah C., supra, 118 Cal.App.4th at p. 694.) Substantial
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evidence is evidence that is reasonable, credible and of solid value, such that a reasonable
trier of fact could make such findings. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)
The focus is on the best interest of the child, not on the conduct of the parent: “although
a jurisdictional finding is predicated on parental conduct, a detriment finding for purposes
of deciding placement with a noncustodial, nonoffending parent need not be.” (In re
Luke M. at p. 1425.)
Here, there was substantial evidence that placing M.G. with Father would be
detrimental to M.G.‟s safety, protection, or physical or emotional well-being. (§ 361.2,
subd. (a).) M.G. had never lived with Father and Father had never acted in a capacity of
a primary caregiver. Father essentially had no relationship with M.G. He had not
maintained continual contact with M.G., and indeed lost all contact with M.G. once he
was incarcerated in 2011. Additionally, once he was released from incarceration in April
2012, Father took no efforts to find or protect M.G., even though he knew Mother‟s
boyfriend C.R. was abusing his child and had heard rumors that Mother had reconciled
with C.R. He had not visited M.G. in approximately 10 months after his release from
incarceration, reportedly because he was not allowed to leave his San Diego community.
He however acknowledged that M.G. had visited the paternal grandmother and explained
that she could not bring M.G. to him “as his schedule was too demanding for a visit.”
Moreover, M.G. was not familiar with Father‟s home or current family. Father
had planned on having his wife be M.G.‟s primary caretaker while he worked long hours
as an assistant cook. However, Father‟s wife reported that she had physically abused two
of her children and had failed to reunify with them. Mother also expressed concern about
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placing M.G. with Father under such circumstances, noting that on a prior occasion when
she had returned to pick up M.G. from an extended visit with Father, she could not locate
Father. Furthermore, M.G. and his half brother had always been together. Under the
circumstances of this case, there was sufficient evidence to support a finding of
detriment.
We conclude there was substantial evidence from which a reasonable trier of fact
could find clear and convincing evidence that M.G. would suffer detriment at the
disposition stage if he was placed with Father without having had any opportunity to
establish a relationship with Father and his current family. (In re Luke M., supra, 107
Cal.App.4th at p. 1426.)
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
McKINSTER J.
RICHLI J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court properly exercised jurisdiction over the child based on the mother's conduct and that there was substantial evidence to support the finding that placing the child with the father would be detrimental to the child's well-being.
Issues
Whether there was sufficient evidence to support the juvenile court's jurisdictional findings under Welfare and Institutions Code section 300, subdivision (b).
Whether the juvenile court erred in removing the child from the father's custody.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The agency “is not required to prove two petitions, one against the mother and one against the father, in order for the court to properly sustain a petition [pursuant to § 300] or adjudicate a dependency.””
“The juvenile court “has broad discretion to determine what would best serve and protect the child‟s interest and to fashion a dispositional order” accordingly.”
“there was substantial evidence that placing M.G. with Father would be detrimental to M.G.‟s safety, protection, or physical or emotional well-being.”