California Court of Appeal Aug 18, 2015 No. D067898Unpublished
Filed 8/18/15 In re Eric A. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re ERIC A., et al., Persons Coming Under the Juvenile Court Law. D067898 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. NJ15000 D,E) Plaintiff and Respondent,
v.
RAUL A.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Michael J.
Imhoff, Commissioner. Reversed in part and remanded with directions.
Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Raul A. appeals following the dispositional hearing in the juvenile dependency
case of his son, Eric A., and his daughter, A.A. (together, the children). Raul contends
there is not substantial evidence supporting the court's finding it would be detrimental to
the children to be placed with Raul in Oklahoma and the court abused its discretion by
denying his request for a continuance of the dispositional hearing. Respondent the San
Diego County Health and Human Services Agency (the Agency) concedes the first point.
In November 2014, the Agency filed dependency petitions for seven-year-old Eric
and five-year-old A.A. Together, the petitions alleged the following. The children's
mother, M.R., had custody. She had been chronically homeless and admitted suffering
from anxiety and depression. She used amphetamines and subjected the children to an
unsafe living environment. In May, A.A. was stuck by a syringe in the hotel room where
they resided. M.R. refused to participate in voluntary services.
At the time the petitions were filed, Raul's whereabouts were unknown. At the
detention hearing, the court ordered the Agency to search for Raul. The children were
detained in the home of a maternal uncle, where they had been living since June 2014.
Also living in the home were the children's three older half-siblings (the half-siblings),
M.R.'s children. The children were bonded with their half-siblings and preferred not to
be separated from them.
By early December 2014, the Agency had found Raul. He was living in
Oklahoma with his three children, aged eight to 17, from another relationship. Raul
2
acknowledged he had a criminal history, including crimes involving violence and
substance abuse.1 He had stopped using methamphetamine when he moved to Oklahoma
several years earlier. He had left M.R. due to her methamphetamine use. He said the
children needed stability, which M.R. was unable to provide, and believed they should be
placed with him in Oklahoma. He did not feel comfortable being in San Diego County
because of the life of drugs and crime he had left behind. Raul also asked for visitation
with the children and said he would like the half-siblings to live with him. The half-
siblings viewed Raul as their father.
The maternal uncle told the Agency that Raul had "always been involved
with . . . the children" and sent them money, gifts, school supplies and other necessities.
M.R. did not allow Raul to visit the children. When asked why Raul had not come to
California to see the children, the maternal uncle replied that Raul had remarried, had
other children to care for, knew M.R. was violent and did "not want to get in the middle
of a gang-related incident."
In December 2014, the Agency reported that Raul had a child welfare history
consisting of four referrals between 2009 and 2012 in Oklahoma. At the time of the first
three referrals, he was living with M.R. The first referral, for neglect of Raul's two-year-
old child from a prior relationship, was unsubstantiated; the investigating social worker
concluded that Raul "had been diligent in getting medical care for the child." There is no
information in the record concerning the second referral, except that "no investigation
1 Raul said his last arrest was in 2004. According to information obtained by the Agency, Raul's criminal history spanned the years 2002 to 2007. 3
was done." The third referral alleged Raul "gets drunk two or three times a week and one
time[] when he was drunk he became very angry and gave the finger to someone and
threw a knife at the wall." During the investigation, M.R. denied the allegations but
admitted her relationship with the father of the half-siblings had been violent. The
investigation was closed as unsubstantiated. The fourth referral alleged Raul had left the
home and was no longer living with the family. M.R. behaved in a "crazy and erratic"
manner, used drugs and left the children in the care of gang members. The investigation
was closed as unsubstantiated.
In December 2014, the Agency also reported that Eric was attending family
therapy and A.A. had "severe dental caries". When detained, A.A. had exhibited
aggressive behavior, but was no longer doing so.
In February 2015, Raul said it was okay for the children to stay with the maternal
uncle; he wanted them to finish school and then visit him in Oklahoma for as long as
possible. He said he would cooperate with the Agency and would "take care of [the
children] no matter what." When asked whether he wished the children to come live with
him in Oklahoma even if they did not want to, Raul replied that whatever the Agency did
was okay and "I'm sure they will come to me eventually." Raul acknowledged the
children were safe with the maternal uncle and said he would not "fight him over the
kids." Raul spoke to the children regularly by telephone. At some point, he had been
aware of the neglect the children had suffered in M.R.'s care and had "hop[ed] the
4
government [w]ould see that [M.R. was] crazy."2 He had not come to San Diego to
claim the children, believing M.R. would not let him have the children and he might go to
jail if he "just came and got them."
In February 2015, the maternal uncle told the Agency that he had moved with the
children to the maternal grandmother's home. The Agency requested an evaluation of
Raul's home pursuant to the Interstate Compact on the Placement of Children (ICPC)
(Fam. Code, § 7900 et seq.).
The jurisdictional and dispositional hearing took place in March 2015. The court
made true findings on the petitions, declared the children dependents, ordered them
removed from M.R.'s custody, found it would be detrimental to the children to be placed
with Raul and ordered the children placed with a relative. The court ordered
reunification services for Raul and M.R. For Raul, the court authorized unsupervised
visitation in Oklahoma during school breaks and unsupervised visits in San Diego and
gave the Agency discretion to arrange a 60-day visit with the concurrence of the
children's counsel. The court set a special hearing concerning progress on the ICPC and
visitation.
The Agency requests judicial notice of minute orders from a July 27, 2015, special
hearing, set by the Agency to request that the children be placed with Raul. At the
2 The record does not disclose when Raul became aware of the neglect or the timing and nature of the neglect to which he referred. The Agency had a voluntary services case in place for M.R. during the six months before the petitions were filed. 5
special hearing, the court set a contested hearing on the issue for August 19, 2015. We
grant the request for judicial notice.
DISCUSSION
"When a court orders removal of a child pursuant to [Welfare and Institutions
Code3] Section 361, the court shall first determine whether there is a [noncustodial]
parent . . . who desires to assume custody of the child. If that parent requests custody, the
court shall place the child with the parent unless it finds that placement with that parent
would be detrimental to the safety, protection, or physical or emotional well-being of the
preference for placement with [the noncustodial] parent." (In re Austin P. (2004)
118 Cal.App.4th 1124, 1132.)
In the juvenile court, the Agency must prove detriment by clear and convincing
evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) On appeal, we apply the
substantial evidence standard of review. (Ibid.)
Here, the court cited the following reasons for finding detriment. First, Raul
acknowledged being "aware of what the children were going through [with M.R.];" he
had experience "with the authorities in Oklahoma;" and "[h]e could have tried to access
some help with them in order to get some information to the State of California."
Second, Raul "had a working relationship and a good relationship with the relatives" and
he could have asked them for an update and "use[d] them in partnership to protect the
3 Further statutory references are to the Welfare and Institutions Code. 6
children." Third, the proximity and support of the half-siblings was "very important to
[the children's] continued emotional development and recovery" from "the life
circumstances created by [M.R.]." Fourth, it was "incumbent [on Raul] to have [a] much
more detailed plan of where the children will be attending school [and] how they will be
maintaining their relationship with their siblings . . . ."
The above factors do not constitute a current risk of detriment to the children.
(See In re S.O. (2002) 103 Cal.App.4th 453, 461.) The first two factors relate to Raul's
past inaction, not his current circumstances. The second two factors concern the
children's "emotional well-being" insofar as they relate to the children's close relationship
with the half-siblings. Those two factors do not constitute detriment to the children's
"emotional well-being" (In re C.M. (2014) 232 Cal.App.4th 1394, 1402-1403), however,
especially in light of Raul's own relationship with the half-siblings, his willingness to
take them into his home, his expressed desire not to disrupt the children's schooling and
his promise to cooperate with the Agency.
In view of our conclusion that the detriment finding is not supported by substantial
evidence, we need not discuss Raul's contention regarding the court's denial of a
continuance.
7
DISPOSITION
The detriment finding is reversed. The case is remanded to the juvenile court for a
further dispositional hearing based on the children's current circumstances.
HUFFMAN, Acting P. J.
WE CONCUR:
MCDONALD, J.
MCINTYRE, J.
8
AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court's finding of detriment to the children, which prevented their placement with their noncustodial father, was not supported by substantial evidence.
Issues
Whether substantial evidence supports the juvenile court's finding that placement with the noncustodial father would be detrimental to the children.
Whether the juvenile court abused its discretion by denying the father's request for a continuance of the dispositional hearing.
Disposition. reversed and remanded
Quotations verified verbatim against the opinion
“The above factors do not constitute a current risk of detriment to the children.”
“The detriment finding is reversed. The case is remanded to the juvenile court for a further dispositional hearing based on the children's current circumstances.”