In re I.F. CA3

Filed 8/20/14 In re I.F. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)

In re I.F. et al., Persons Coming Under the Juvenile C074326
Court Law.

SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. Nos.
HEALTH AND HUMAN SERVICES, JD233229, JD233230,
JD233231, & JD233232)
Plaintiff and Respondent,

v.

Jose F.,

Defendant and Appellant.

Jose F., father of the minors, appeals from the judgment of disposition. (Welf. &
Inst. Code, §§ 356, 358, 395.)1 Father argues the court erred by failing to place the
minors with him as the noncustodial parent. He further contends substantial evidence
does not support the court’s finding that placement with him would be detrimental to the
minors. Finally, father asserts that, if he is considered a custodial parent, substantial

1 Further undesignated statutory references are to the Welfare and Institutions Code.

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evidence did not support removal of the minors because there was no substantial danger
to the well-being of the minors and there were other reasonable means to protect the
minors without removal from his physical custody. We affirm.
FACTS
The family consists of a father who sees his role as providing support for the
family and a mother whose primary responsibility is caring for the four boys ranging in
age from ten years to two years old. In October 2012 father reported mother was leaving
the minors without supervision while mother claimed she was the victim of father’s
domestic violence. The parents agreed to a safety plan requiring mother to leave the
home and have her contact with the minors supervised by the grandparents. Father filed
for divorce and told the social worker mother was abusing prescription drugs. Mother
did not leave the home because the parents reconciled, but, by December 2012, mother
took the minors and went to live with the maternal grandparents after an argument with
father over child support.
In January 2013 the social worker spoke with father who said mother was not
happy with the paternal relatives in the house so he told his relatives their supervision
was no longer necessary. Father appeared more concerned about his relationship with the
mother than about the minors’ welfare. In later conversations with the mother, the social
worker learned there was a domestic violence incident the day mother left the home and
observed fading bruises on mother’s arm.
The parents agreed to an informal supervision plan which provided that the minors
would remain with the maternal grandparents, who would supervise mother’s contact
with the minors, and the parents would engage in services. The informal services
included drug treatment for mother and an anger management program for father.
Mother struggled with services and tested positive for methamphetamine in February and
March 2013. Mother entered a residential drug treatment program in March 2013 but
was discharged two weeks later and went back to father’s home. In April 2013 mother

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tested positive for marijuana and admitted using both methamphetamine and marijuana
daily. Father excluded her from the home for using drugs. On April 10, 2013, the family
court removed custody of the minors from the parents and granted custody to a paternal
aunt and uncle.
On April 12, 2013, the Sacramento County Department of Health and Human
Services (Department) filed petitions to detain the minors due to mother’s substance
abuse issues and father’s failure to protect them by allowing her to care for them
unsupervised instead of following the safety plan. At the initial hearing, the court
ordered the minors detained.
The jurisdiction/disposition report stated that father said he knew mother was
abusing prescription medication, but denied knowledge of her methamphetamine abuse.
Mother admitted she had a substance abuse problem, had several positive tests, and there
was domestic violence between her and father in September 2012. The oldest child told
the social worker his parents hit him. Father admitted yelling at the oldest child but
denied hitting or physically abusing him. The sheriff’s log from May 2012 through April
2013 showed numerous calls for both domestic violence and mother leaving the minors
unattended. The report concluded father was unable to maintain clear boundaries with
mother and protect the minors, ignored the safety plan, and repeatedly reconciled with
her knowing the risk she posed to the minors.
The Department filed amended petitions adding allegations of physical abuse of
the children and domestic violence by the parents. By mid-May 2013 the parents were
living together again. At the prejurisdiction hearing in May 2013 the court sustained the
amended petitions and set a contested disposition hearing.
At the contested disposition hearing in June 2013 the first social worker assigned
to the case testified she had developed the case plan after the minors were detained. The
social worker initially referred father to anger management to address the domestic
violence issues as well as his anger and reactivity. She was later made aware that there

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was a separate class for domestic violence and believed that father needed that class as
well as joint counseling with the oldest minor to complete his service plan. The social
worker was concerned that mother’s sobriety was still recent and father would not protect
the minors if she relapsed.
The current social worker testified that, by the end of May 2013, father reported he
had completed his anger management and parenting classes. She believed father still
needed a domestic violence program whether the parents were together or not because
they still had to coparent the minors. In their discussions, father was vague about how he
would protect the minors from a possible relapse by mother since she was still early in
her recovery, suggesting perhaps the paternal grandmother could supervise mother. The
social worker said mother did not get much support at home, in part, because father did
not understand the recovery process and blamed her for the minors’ removal. The social
worker believed joint counseling to address support issues was needed. The social
worker stated that overall father’s visits were positive. However, during visits, the
parents talked about both the case and the minors’ return. The social worker testified that
an academic report for the oldest minor stated he had an intellectual disability and that
the parents needed a lot of patience working with him. However, father characterized
him as lazy.
Father testified he was told if he did the classes he would get his children back and
he has done the classes. He said he now sees the big picture and wants to be involved.
He was recently referred to a domestic violence class. He did not think he needed it in
real life but would do it for the court.
The current social worker was recalled and testified that she met with the parents
on June 14, 2013, and referred father to a domestic violence class. Father kept asking
how this was his fault and got so loud security came and the meeting was terminated.
She also spoke with the paternal grandmother who had reservations about supervising the

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mother and the minors because she did not feel she could control mother and feared for
the minors’ safety.
At argument father’s counsel referred to father’s pretrial statement, which cited
section 361, subdivision (c)(1) as the controlling statute regarding removal and return of
the minors. Counsel stated father was requesting return of the minors while continued
services were in place. After discussing father’s progress and explaining his testimony,
counsel said that, while father wanted all four minors returned, father acknowledged that
the oldest child might not be ready but that the other three minors could be returned.
In ruling, the court stated that it was father’s “lack of understanding of the
complexity of the problems that confronts his family” which created the greatest risk of
harm to the minors if they were to be placed back in the parents’ care. The court
recognized both parents had made progress in services but substantial danger to the
minors’ physical and emotional well-being remained if the minors were returned to the
parents. Father’s work required him to be away for long periods and he had little
understanding of the needs of the minors and what was necessary to meet those needs.
Mother was early in her recovery from severe polysubstance abuse and at risk of relapse.
Father was learning tools to avoid physical violence when dealing with family members
but was still working on applying his new knowledge. The court stated that the parents
would not be able to meet the minors’ needs until they had addressed their own. The
court adopted the recommended findings and orders and set a review hearing.
DISCUSSION
I
Father contends the court erred in failing to place the minors with him as he was a
noncustodial parent and the court should have applied the provisions of section 361.2
rather than section 361.
Section 361.2, subdivision (a) states: “When a court orders removal of a child
pursuant to Section 361, the court shall first determine whether there is a parent of the

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child, 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, 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 child.” (Italics added.)
In one sense, neither parent was a custodial parent because at the time the petition
was filed, custody had been removed from both parents by the family court. However, as
defined by the statute, the noncustodial condition must occur when “the events or
conditions arose that brought the child within the provisions of Section 300.” (§ 361.2,
subd. (a).) In this case, those events occurred prior to the family court order of removal,
even if some were not alleged until the amended petitions were filed. Therefore, father
was a custodial parent and section 361.2, subdivision (a) could not apply.
Moreover, even if father had been a noncustodial parent within the meaning of the
statute, he forfeited his claim to return the minors pursuant to section 361.2. The
statutory provision is triggered by the request for custody. In the absence of such a
request, the statute is inapplicable. (In re A.A. (2012) 203 Cal.App.4th 597, 605.) Father
never requested custody as a noncustodial parent, instead relying only on section 361,
subdivision (c)(1). Accordingly, the court had no duty to consider the application of
section 361.2.
II
Father argues substantial evidence did not support a finding that placement with
him would be detrimental to the minors or, alternatively, a finding that continued custody
would be a substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minors if they were returned home. (§§ 361, subd. (c)(1),
361.2, subd. (a).)
When the sufficiency of the evidence to support a finding or order is challenged on
appeal, even where the standard of proof in the trial court is clear and convincing, the

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reviewing court must determine if there is any substantial evidence--that is, evidence
which is reasonable, credible, and of solid value--to support the conclusion of the trier of
fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d
1206, 1214.) In making this determination we recognize that all conflicts are to be
resolved in favor of the prevailing party and that issues of fact and credibility are
questions for the trier of fact. (In re Jason L., at p. 1214; In re Steve W. (1990)
217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when
assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-
319.)
The requirement of finding detriment is a part of section 361.2, subdivision (a).
We have concluded that the provisions of that statute do not apply to this case.
This case is governed by section 361, subdivision (c)(1) which provides, in
relevant part: “A dependent child may not be taken from the physical custody of his or
her parents . . . unless the juvenile court finds clear and convincing evidence . . . : [¶]
(1) There 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 . . . physical custody.”
The evidence showed mother was early in her recovery from serious
polysubstance abuse and needed support and time to succeed. Father had made some
progress but still had little understanding of the need to support mother and continued to
see the dependency as her fault. Father needed additional treatment for anger control and
domestic violence as evidenced by the recent incident when the social worker was trying
to discuss the additional plan elements with him. Father still had issues with denial and
impatience which had historically led him to physical abuse and domestic violence. He
has characterized the oldest minor as lazy regarding schoolwork and did not understand
that the minor had intellectual challenges. Despite the services and some increase in

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understanding, father does not yet appreciate the complexity of the family problems.
Further, he has no real plan for protection and supervision of the minors should mother
relapse while he is at work except reliance on family members who were previously
unsuccessful in protecting the minors from the effects of mother’s addiction. Both
parents need additional time to work on their own issues before reassuming the burdens
of caring for four special needs children. Substantial evidence supports the juvenile
court’s findings that there was a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the minors if they were returned home.
DISPOSITION
The orders of the juvenile court are affirmed.

BLEASE , Acting P. J.

We concur:

NICHOLSON , J.

MAURO , J.

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