California Court of Appeal Feb 2, 2016 No. D068511Unpublished
Filed 2/2/16 In re Y.I. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Y.I., a Person Coming Under the Juvenile Court Law. D068511 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. CJ1228) Plaintiff and Respondent,
v.
ANGEL M.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Donal B.
Donnelly, Judge. (Judge of the Imperial Sup. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part and remanded with
directions.
Michelle D. Peña, 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.
Terence M. Chucas, under appointment by the Court of Appeal, for Minor.
Angel M., the noncustodial father of minor Y.I., appeals from the juvenile court's
dispositional order placing Y.I. in foster care rather than with Angel. We agree with
Angel that there was insufficient evidence that placement with him would be detrimental
to Y.I.'s safety, protection or physical or emotional well-being under Welfare and
requires a high probability, such that the evidence is so clear as to leave no substantial
doubt." (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1262 (Patrick S.).)
On appeal, "[w]e 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 placement would be detrimental to the
child." (Patrick S., supra, 218 Cal.App.4th at p. 1262; see In re Luke M. (2003) 107
Cal.App.4th 1412, 1426 (Luke M.).) Our role on review for substantial evidence is
limited. We do not reweigh evidence or reassess the credibility of witnesses; instead, we
review the record for evidence of reasonable, credible and solid value such that a
6
reasonable trier of fact could find as the juvenile court did. (In re K.B. (2015) 239
Cal.App.4th 972, 979 (K.B.).)
II. Analysis
The juvenile court rested its finding of detriment under section 361.2, subdivision
(a) on two factors: the lack of information regarding Angel's New Jersey living
environment, and the potential emotional harm to Y.I. if he were to be uprooted from
Polinsky, in light of his deteriorating behavior. As we explain, there is no substantial
evidence supporting a finding of detriment under either ground. The limited evidence
regarding Angel's prior criminal and child dependency histories in Florida, considered
and rejected by the juvenile court, does not change this conclusion.
A. Lack of Information about Angel's Living Environment
Angel testified that since his release from prison in 2014, he lived in New Jersey
with his girlfriend. They lived on the third floor of a home owned by his girlfriend's
mother; his girlfriend's mother lived on the second floor, and a family friend lived on the
first floor. Angel traveled to Florida "[p]robably twice a year" for "[p]robably a week or
two" in connection with his work as a music engineer and promoter for artists. He was
looking for work in New Jersey. Angel testified he had an aunt and cousins in New
Jersey who lived nearby and that there were good schools near his home.
The juvenile court stated it had no reason to disbelieve Angel's testimony but gave
it little weight, absent corroborating information about his living environment. The court
stated it lacked information regarding basic matters of food, clothing, shelter and daycare;
health, safety and welfare; and the emotional, educational and developmental support Y.I.
7
would receive from Angel, Angel's live-in girlfriend, and Angel's relatives in New Jersey.
Absent this basic information, the court found Y.I. would face detriment under section
361.2, subdivision (a) if he were placed with Angel.
As Angel argues and the Agency concedes, a lack of information about the living
environment in New Jersey does not constitute substantial evidence that could support a
finding of detriment under section 361.2, subdivision (a). John M. rejected a similar
argument, concluding a paucity of information about an out-of-state father, who was
essentially an " 'unknown entity,' " was not substantial evidence supporting a finding of
detriment. (John M., supra, 141 Cal.App.4th at pp. 1568, 1570.) Here, although the
juvenile court raised important questions about Angel's relatives and girlfriend in New
Jersey, the lack of information responsive to these questions is not substantial evidence
that would allow a reasonable trier of fact to find detriment under section 361.2,
subdivision (a) by clear and convincing evidence.
B. Potential Emotional Harm to Y.I.
The juvenile court found Y.I.'s behavior was deteriorating at Polinsky. The court
acknowledged it was unclear exactly why Y.I.'s behavior was getting worse, stating it
"could simply be the situation at the shelter itself"; "more deep-seated problems"; or
"separation anxiety from the mother." There were no therapeutic evaluations of Y.I. to
evaluate the root cause of Y.I.'s behavioral difficulties. Nevertheless, the court credited
the Agency's evidence that during one supervised visit, Y.I. brought a potted plant for Z.I.
On this basis, the court concluded that separation from Z.I. was the cause. In view of
Y.I.'s worsening emotional state, the court concluded based on "basic common sense"
8
and "life experience" that Y.I. potentially would face emotional harm if he were uprooted
from Polinsky, flown across the country, and placed in a new home with a father with
whom he had had very little contact.
The court's hypothesis as to potential emotional harm to Y.I. is not substantial
evidence that would support a finding of detriment under section 361.2, subdivision (a)
by clear and convincing evidence. Although Y.I.'s behavior was deteriorating at
Polinsky, the court noted the cause was unclear, and no therapeutic evaluations had been
done. The court relied on evidence that Y.I. brought Z.I. a potted plant during one
supervised visit. However, the court did not make any findings that Y.I. shared an
unusually strong bond with Z.I., such that moving to New Jersey would have a
"devastating emotional impact." (Luke M., supra, 107 Cal.App.4th at p. 1426.)3
Although the social worker testified that Y.I. seemed bonded to Z.I., the court did not
make any findings to that effect. (§ 361.2, subd. (c); compare Luke M., at p. 1426
[minors' unusually strong bond with half siblings supported finding that move to Ohio
would be detrimental] with K.B., supra, 239 Cal.App.4th at p. 980 [although child loved
his maternal family, no facts to suggest moving to Virginia presented a high probability
of devastating emotional impact].) While the juvenile court appropriately considered
Y.I.'s preference for living with his mother (Patrick S., supra, 218 Cal.App.4th at
3 We disregard the discussion in Angel's opening brief concerning the "three phases in the cycle of abuse," material that was not before the juvenile court. 9
p. 1265), on its own, a "seven-year-old child's preference is not clear and convincing
evidence of emotional detriment." (K.B., at p. 980.)4
The court found Y.I. had little prior contact with Angel.5 However, "a lack of
contact between the child and the nonoffending noncustodial parent, alone, is not a basis
for finding detriment." (K.B., supra, 239 Cal.App.4th at p. 981; see John M., supra, 141
Cal.App.4th at p. 1568 [years of no contact with out-of-state father did not support
juvenile court's detriment finding]; In re Abram L. (2013) 219 Cal.App.4th 452, 464
[alleged lack of relationship with noncustodial parent not sufficient to support a finding
of detriment] (Abram L.).) Neither Y.I.'s understandable desire to continue living with
his maternal family in the only home he remembers, nor his lack of a close relationship
with Angel, was sufficient to constitute substantial evidence of "the high level of
at p. 1403.) Although the juvenile court found Y.I.'s behavior was worsening, it made no
findings that Angel would be unwilling or unable to obtain the recommended services.
(John M., supra, 141 Cal.App.4th at pp. 1570-1571 [fact that minor was troubled and in
need of therapeutic services did not support a finding of detriment absent evidence the
4 Contrary to Angel's assertion, the record does not reflect any statement by Y.I. that he wished to "go to [Angel]'s home."
5 The social worker testified Y.I. did not remember ever living with Angel. Y.I. remembered visiting Angel "a long time ago." He said he used to talk to him on the phone but had not done so in a while. He had no memories of any shared experiences with Angel. Angel testified having last seen Y.I. in February 2011, before Angel went to prison in Florida; he had not seen Y.I. in person since his release in 2014. He stated he spoke with Y.I. frequently by phone and videoconference. 10
noncustodial, out-of-state father was unable to meet the child's special needs]; Patrick S.,
supra, 218 Cal.App.4th at pp. 1263, 1264 ["P.S.'s anxiety and diagnosis of adjustment
order, unspecified, does not support a detriment finding without a showing that his father
would not be willing or able to obtain recommended therapeutic services for him."].)
In finding detriment on the basis of potential emotional harm to Y.I., the court
relied on "basic common sense" and "life experience" to conclude it would be detrimental
for this child to move across the country. However, a finding of detriment to the
" 'emotional well-being of the child' " under section 361.2, subdivision (a) must be made
by clear and convincing evidence―i.e., evidence "so clear as to leave no substantial
doubt." (Patrick S., supra, 218 Cal.App.4th at p. 1262.) Here, there is no substantial
evidence upon which a reasonable trier of fact could find detriment under that standard.
(In re H.B. (2008) 161 Cal.App.4th 115, 120 ["A judgment is not supported by
substantial evidence if it is based solely upon unreasonable inferences, speculation or
conjecture."].)6
C. Angel's Criminal and Child Welfare Histories In Florida
The Agency argues Angel's criminal and dependency histories in Florida may be
considered as part of the totality of information supporting the juvenile court's detriment
6 Because we conclude substantial evidence of detriment is lacking, we need not consider Angel's arguments that the juvenile court should have continued the disposition hearing sua sponte, or that the juvenile court erroneously shifted the burden of proof to require Angel to prove the absence of detriment. We note, however, that the record reflects the juvenile court repeatedly stated the correct standard: the Agency bore the burden of establishing, by clear and convincing evidence, that Y.I. would face detriment were he to be placed with Angel. (§ 361.2, subd. (a); C.M., supra, 232 Cal.App.4th at p. 1402.) 11
finding. We disagree. As we explain, because the juvenile court did not credit this
evidence in making its detriment finding, we exclude it on appellate review.
During the disposition hearing, the juvenile court received evidence regarding
Angel's past criminal and child welfare histories in Florida. Angel had been arrested in
Florida four times for aggravated assault with a deadly weapon. He was convicted of
misdemeanor aggravated assault with a deadly weapon in 2011 and was incarcerated until
May 2014. At the time of the disposition hearing, Angel had an outstanding Florida
arrest warrant for driving with a suspended or revoked license.
Angel also had a past child welfare history in Florida, with three separate referrals.
The first referral, in January 2007, occurred about six months before Y.I. was born; it
alleged there was no parent to care for an unidentified child. Angel and Z.I. were both
incarcerated; Angel had been arrested for "disorderly conduct against his now ex-landlord
due to being evicted." The disposition of the 2007 referral is unknown. The second and
third referrals, in October 2010 and January 2011, alleged Angel left baby Y.I. alone and
inadequately supervised. The latter referrals were found to be "not substantiated," and
Z.I. and Angel refused voluntary services.7
7 The record does not explain the meaning of "not substantiated." In California, a " '[s]ubstantiated report' means a report that is determined by the investigator . . . to constitute child abuse or neglect . . . based upon evidence that makes it more likely than not that child abuse or neglect . . . occurred." (Pen. Code, § 11165.12, subd. (b).) An " '[i]nconclusive report' means a report that is determined by the investigator . . . not to be unfounded, but the findings are inconclusive and there is insufficient evidence to determine whether child abuse or neglect . . . has occurred." (Id., subd. (c).) An " '[u]nfounded report' means a report that is determined by the investigator . . . to be false, 12
The juvenile court did not credit the evidence of Angel's criminal or child welfare
histories in Florida in finding detriment. The court noted that the facts underlying
Angel's charges were unknown, and the court could not determine whether the offenses
involved "the kind of force or violence that would spill over to children within [the]
father's home[.]" Likewise, there was insufficient information about the Florida
dependency referrals to support a finding of detriment. The court noted it lacked
information regarding what transpired and whether Angel did anything to precipitate the
referrals. Moreover, the court found Angel's failure to participate in services in the
Florida dependency actions was not relevant absent evidence he had been ordered to
participate in services or offered such services.
The Agency's reference to Angel's past criminal and dependency histories in
Florida is unavailing. Because the juvenile court did not credit this evidence, we do not
consider it on appellate review. (In re I.J. (2013) 56 Cal.4th 766, 773 [on review for
substantial evidence, " ' "[w]e do not reweigh the evidence or exercise independent
judgment" ' "]; Associated Builders & Contractors, Inc. v. San Francisco Airports Com.
(1999) 21 Cal.4th 352, 374 [where two or more inferences may be drawn, "the reviewing
court has no power to substitute its deductions for those of the fact finder"].)
IV. CONCLUSION
In sum, there is no substantial evidence that would allow a reasonable trier of fact
to find detriment under section 361.2, subdivision (a) by clear and convincing evidence.
to be inherently improbable, to involve an accidental injury, or not to constitute child abuse or neglect . . . ." (Id., subd. (a).) 13
Section 361.2, subdivision (c) requires a court to make express findings, either in writing
or on the record, for the basis of its determination under subdivision (a). Where, as here,
the juvenile court fails to make express findings that support a finding of detriment, "it is
inappropriate to make implied findings." (Abram L., supra, 219 Cal.App.4th at p. 462.)8
Therefore, we remand the cause to the trial court for a new disposition hearing on the
issue of placement of Y.I. with Angel under section 361.2, subdivision (a). At the
disposition hearing following our remand, the juvenile court is directed to make express
findings to support a detriment finding by clear and convincing evidence. On remand,
the court may, of course, take into account circumstances and events that have taken
place subsequent to the disposition hearing on June 19, 2015.
DISPOSITION
The detriment finding is reversed, and the matter is remanded to the juvenile court
with directions to hold a new dispositional hearing on the issue of placement of Y.I. with
Angel under section 361.2, subdivision (a), in a manner consistent with this opinion. On
remand, the court may consider new evidence or changed circumstances since the
8 "Ordinarily, of course, appellate courts will indulge all reasonable inferences favorable to the judgment. But this familiar doctrine becomes potentially subversive where the Legislature requires the trial court to make an express finding. Such a requirement may be deprived of all force if appellate courts feel free to infer a supporting finding where the trial court has left the record silent. For that reason the doctrine of implied findings may be given limited scope where an express finding is required." (In re J.S. (2011) 196 Cal.App.4th 1069, 1078.) 14
pendency of this appeal. In all other respects, the dispositional findings and orders are
affirmed.
O'ROURKE, J.
WE CONCUR:
MCDONALD, Acting P. J.
IRION, J.
15
AI Brief
AI-generated · verify before citing
Holding. The court held that there was insufficient evidence to support the juvenile court's finding that placing the minor with his noncustodial father would be detrimental to the minor's safety or well-being under Welfare and Institutions Code section 361.2, subdivision (a). Consequently, the court reversed the detriment finding and remanded for a new dispositional hearing.
Issues
Whether the juvenile court's finding of detriment under Welfare and Institutions Code section 361.2, subdivision (a) was supported by substantial evidence.
Whether a lack of information regarding a noncustodial parent's out-of-state living environment constitutes sufficient evidence of detriment.
Whether potential emotional harm from uprooting a child from their current placement constitutes sufficient evidence of detriment under the clear and convincing standard.
Disposition. Affirmed in part, reversed in part and remanded.
Quotations verified verbatim against the opinion
“We agree with Angel that there was insufficient evidence that placement with him would be detrimental to Y.I.'s safety, protection or physical or emotional well-being under Welfare and Institutions Code section 361.2, subdivision (a).”