In re K.M. CA2/8

Filed 9/3/20 In re K.M. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re K.M., a Person Coming B300629
Under the Juvenile Court Law.

LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 18LJJP00476E)
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

STEWART M.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County. Robin R. Kesler, Judge Pro Tempore. Affirmed.
Jaime A. Moran, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and John C. Savittieri, Deputy County Counsel,
for Plaintiff and Respondent.
___________________________
 Stewart M. (Father) appeals from the juvenile court’s
refusal to release his son K.M. to his custody at the disposition
hearing. Substantial evidence supports the juvenile court’s
dispositional finding by clear and convincing evidence that there
would be a substantial danger to K.M.’s physical health, safety,
protection, physical or emotional well-being, and special needs
and that there are no reasonable means by which K.M.’s physical
health can be protected if K.M. were released to Father.
We affirm.
FACTS
On July 15, 2018, five-year-old K.M. was found alone
approximately a mile from his home in the Antelope Valley.
K.M. was not wearing a shirt or shoes. His maternal
grandmother found him shortly after the police arrived. She and
A.S. (Mother) had been searching for K.M. in the neighborhood
but did not report him missing because he often ran away from
home. The maternal grandmother told officers he would leave
whenever a door was left open so they kept the doors locked.
She believed he left through a window that day.
The officers escorted K.M. and the maternal grandmother
home. They called the paramedics when K.M. fell unconscious
after he arrived home. The maternal grandmother speculated he
was unwell because it was very hot. The paramedics determined
K.M. had low blood pressure and a low pulse. They gave K.M. a
dose of Narcan, which is used to combat drug overdose, on the
way to the hospital. He did not respond to the Narcan and he
later tested negative for narcotics at Antelope Valley Hospital.
Because medical personnel at Antelope Valley Hospital were
unable to diagnose him, K.M. was transferred to Children’s
Hospital of Los Angeles where he spent several days under

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observation. Children’s Hospital diagnosed K.M. with an
unspecified neuro-developmental disorder, which could be
associated with neglect or trauma, and childhood disintegrative
disorder, which is included in autism spectrum disorder. He also
exhibited altered mental status and developmental regression.
The Los Angeles County Department of Children and
Family Services (DCFS) filed a petition pursuant to Welfare and
Institutions Code section 300, subdivisions (b) and (j),1 on behalf
of K.M. and his half-siblings, John S., P.S., D.S., and L.G.2 The
petition alleged K.M. and his half-siblings were at substantial
risk of harm due to Mother’s failure to provide the children with
appropriate parental care, supervision, and a secure home
environment, as evidenced by the incident involving K.M.
running away from home on July 15, 2018. A first amended
petition added an allegation under section 300, subdivision (b),
that Mother’s history of substance abuse and alcohol abuse
rendered her incapable of providing regular care for the children.
DCFS located Father in Las Vegas and he contacted DCFS
on September 13, 2018. He confirmed he was living with his
mother in Las Vegas. When the children’s social worker advised
Father of the allegation against Mother, he stated, “I’m not
surprised that she had her kids taken. She is always drunk.”
He related an incident in which Mother was detained in Nevada
with K.M. because she was intoxicated and the maternal
grandmother had to travel there to retrieve K.M.

1 All further section references are to the Welfare and
Institutions Code.

2 Neither Mother nor the half-siblings are parties in this
appeal. As a result, we need not discuss the facts of the
dependency proceedings that relate solely to them.

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 Father also told the social worker he visited K.M. at the
maternal grandmother’s house before he moved to Las Vegas
approximately three to four months ago. Mother was drunk and
had locked herself in a room. K.M. was knocking and screaming
to get in the room with her. He was so upset, he had a seizure.
Father, who also had seizures, put him on his side and wiped his
face with a warm rag. Father stated neither Mother nor the
maternal grandmother knew what to do. Additionally, they
failed to obtain anti-seizure medication for K.M.
Father expressed concern for K.M.’s safety and believed he
could better care for K.M. He planned to seek custody of K.M. in
family court but “wanted to get [him]self together first.” Father
indicated he had applied for a housing voucher for a four-bedroom
apartment in Las Vegas for himself, K.M., and his two other sons
who stay with him during the summer. Father described the
maternal grandmother as “a cold piece of work” who spanked
K.M., but not her other grandchildren.
The children were ordered removed from Mother’s custody
at the September 25, 2018 detention hearing. Father appeared at
the detention hearing and requested custody of K.M. Father
acknowledged he had a criminal history but was working toward
turning his life around. While he was incarcerated, he completed
a parenting course, a Hope for Prisoners program and received
numerous certificates of recognition. Father advised the court he
had two other children who were in his care and he was pursuing
low income housing for all of them. He complained to the
juvenile court he had not had visits with K.M. due to the
maternal grandmother’s lack of support. The children were
placed in foster care.

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 K.M.’s counsel advised she had no objection to releasing
K.M. to Father if K.M. showed familiarity with Father and did
not have an adverse reaction to him. DCFS counseled against
moving “too fast” in releasing K.M. to Father since he currently
lived in a small apartment with his mother and his two other
children. Additionally, DCFS observed Father did not have a
relationship with K.M. Mother joined in DCFS’s position.
The juvenile court ordered DCFS to use its best efforts to
conduct an assessment of Father’s housing in Las Vegas. It also
allowed DCFS discretion to release K.M. to Father, but stated it
wanted Father to visit with K.M. first. DCFS later reported it
was unable to conduct an assessment of Father’s home without
making a request to the local child welfare agency in Nevada
through the Interstate Compact on the Placement of Children.
In its jurisdiction/disposition report, DCFS recommended
the juvenile court sustain the allegations against Mother. The
social worker surmised Mother was intoxicated or under the
influence of drugs at the time K.M. was found on July 15, 2018.
The family reported K.M. was speaking, knew his letters,
numbers, and name, and was potty trained by the age of three or
four. He regressed after his maternal grandfather died last year,
however. At age five, he stopped speaking and reverted to
bedwetting. Despite this regression, Mother failed to seek any
developmental or medical services for him.
DCFS also questioned Father’s ability to care for K.M.
DCFS noted Father moved to Las Vegas even though he had
concerns about K.M.’s safety. In addition, Father had an
extensive criminal history, including convictions for domestic
violence and a possible outstanding warrant. As a result, the
juvenile court ordered DCFS to address Father’s warrant and

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parole standing and any safety obstacles to releasing K.M. to
him. DCFS later reported Father did not have any active arrest
warrants and his parole had been terminated. It continued to
question Father’s ability to care for K.M., however.
The juvenile court ordered an assessment of the maternal
grandmother’s home as well as the maternal great-aunt’s home
for the children. DCFS opposed placement with the maternal
grandmother, noting K.M. ran away while he was at the
maternal grandmother’s home and questioning whether the
maternal grandmother had the ability to care for all of the
children. The children were subsequently placed with the
maternal great-aunt.
On January 2, 2019, a second amended petition was filed to
include failure-to-protect allegations against Father. By April 9,
2019, Father had yet to visit with K.M. despite the juvenile
court’s concern that he lacked a relationship with K.M. The
children’s social worker reported he did not have a visitation plan
and DCFS had no contact with Father since January 2019.
At the jurisdictional hearing, the juvenile court sustained
an allegation under section 300, subdivision (b) that Mother was
under the influence of alcohol when she failed to adequately
supervise K.M., who was found alone a mile from home on July
15, 2018. The court further found Father knew of Mother’s
failure to provide adequate supervision, and his failure to protect
K.M. placed him at substantial risk of serious physical harm.
The dispositional hearing was continued to August 29, 2019, to
allow notice to be made to the father of John S., P.S., and D.S.

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 In a last-minute information, DCFS informed the juvenile
court it alerted Father by letter dated June 3, 2019, that he could
call K.M. on Monday, Wednesday, and Friday of each week at
4:30 p.m. However, Father failed to make contact with K.M.
At the dispositional hearing, Father again requested K.M.
be released to him. K.M.’s attorney opposed releasing K.M. to
Father because he had failed to keep contact with K.M. or DCFS
during the proceedings. K.M.’s attorney expressed concern
regarding Father’s commitment to parenting K.M. DCFS argued
Father was aware K.M. did not have anti-seizure medication and
was apprehensive about his safety in Mother’s care, yet decided
to move to Las Vegas without notifying the authorities about his
concerns.
The juvenile court found by clear and convincing evidence
under section 361, subdivisions (c) and (d), that a substantial
danger existed to the physical health, safety, protection, physical
or emotional well-being, and special needs of K.M. and there are
no reasonable means by which K.M.’s physical health can be
protected if K.M. were released to Father or returned to Mother.
The court declined to liberalize Father’s visits to unmonitored
visits, noting Father had no visitation with K.M. during the
entirety of the proceedings. However, it maintained its order to
allow DCFS discretion to release K.M. to Father. Father
appealed.

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 DISCUSSION
On appeal, Father does not challenge the court’s
jurisdictional finding that he failed to protect K.M. from Mother’s
neglect. He instead argues there was not clear and convincing
evidence to support removing K.M. from his custody. We
conclude substantial evidence supports the juvenile court’s
dispositional findings.
I. Standard of Review
Section 361, subdivision (d), decrees: “A dependent child
shall not be taken from the physical custody of his or her
parents . . . with whom the child did not reside at the time the
petition was initiated, unless the juvenile court finds clear and
convincing evidence that there would be a substantial danger to
the physical health, safety, protection, or physical or emotional
well-being of the child for the parent . . . to live with the child or
otherwise exercise the parent’s . . . right to physical custody, and
there are no reasonable means by which the child’s physical and
emotional health can be protected without removing the child
from the child’s parent’s . . . physical custody.” If the court orders
that a child be removed from parental custody at the
dispositional hearing, it must determine “whether reasonable
efforts were made to prevent or to eliminate the need for removal
of the minor from his or her home . . . .” (§ 361, subd. (e).)
“ ‘ “The focus of the statute is on averting harm to the child,” ’ ”
and the court “ ‘may consider a parent’s past conduct as well as
present circumstances.’ ” (In re A.S. (2011) 202 Cal.App.4th 237,
247, disapproved on other grounds by Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1010, fn. 7.)

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 We review the dispositional findings for substantial
evidence. (In re T.W. (2013) 214 Cal.App.4th 1154, 1161, 1163–
1164; In re A.R. (2015) 235 Cal.App.4th 1102, 1115–1116.)
The California Supreme Court has recently explained that “when
reviewing a finding that a fact has been proved by clear and
convincing evidence, the question before the appellate court is
whether the record as a whole contains substantial evidence from
which a reasonable factfinder could have found it highly probable
that the fact was true. Consistent with well-established
principles governing review for sufficiency of the evidence, in
making this assessment the appellate court must view the record
in the light most favorable to the prevailing party below and give
due deference to how the trier of fact may have evaluated the
credibility of witnesses, resolved conflicts in the evidence, and
drawn reasonable inferences from the evidence.”
(Conservatorship of O.B., supra, 9 Cal.5th at pp. 995–996.)
II. Substantial Evidence Supports the Dispositional
Findings
Here, the record as a whole contains substantial evidence
from which a reasonable factfinder could have found it highly
probable that there would be a substantial danger to K.M.’s
physical health, safety, protection, physical or emotional well-
being, and special needs if he were released to Father’s custody,
and that there are no reasonable means by which K.M.’s physical
health can be protected if Father gained custody.
(Conservatorship of O.B., supra, 9 Cal.5th at pp. 995–996.)
The record discloses Father admitted he knew Mother “is
always drunk” and that she was detained in Nevada on one
occasion with K.M. because she was intoxicated. He also
witnessed K.M. suffer from a seizure during a visit and knew

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Mother had failed to obtain anti-seizure medication for K.M. He
believed the maternal grandmother singled K.M. out for harsher
punishment than his half-siblings. As a result, Father had
concerns about K.M.’s safety while in Mother’s custody.
Yet, Father moved to Nevada without addressing any of the
issues he perceived K.M. faced while in Mother’s care. Father did
not confront Mother about her alcohol abuse. He failed to obtain
anti-seizure medication for K.M. or remind Mother to get it. He
also failed to raise the issue of the maternal grandmother’s
treatment of K.M. with Mother or the maternal grandmother.
Although Father indicates his decision to move was not frivolous
and was the result of family or economic circumstances, he fails
to explain why he did not report his concerns to authorities or
address them with Mother before he left.
Moreover, Father failed to visit K.M. during the year-long
dependency proceedings. —Father first contacted DCFS on
September 13, 2018, and the court made its dispositional orders
on August 29, 2019. Although Father reported at the detention
hearing that the maternal grandmother did not support his
visits, he still failed to visit when K.M. was placed elsewhere.
Indeed, Father never called K.M. even when the children’s social
worker advised him she had set up thrice-weekly telephonic visits
in June 2019. The only documented interaction between Father
and K.M. in the record is Father’s visit with him three or four
months prior to his move to Nevada.
Further, the record discloses K.M. had special needs. His
family reported he had regressed substantially in the past year;
he no longer spoke and he wet himself despite having previously
been successfully potty trained. He was diagnosed with an
unspecified neuro-developmental disorder and autism spectrum

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disorder. There is no indication Father has educated himself
about K.M.’s diagnoses or worked to ensure he could properly
care for K.M. Indeed, Father failed to maintain regular contact
with DCFS to discuss K.M.’s progress, indicating an
unwillingness or inability to care for K.M. The record contains
substantial evidence supporting the juvenile court’s dispositional
findings.
Father asserts he has demonstrated his ability to care for
K.M. because he was out of legal trouble, had no outstanding
warrants, completed programs, including a parenting education
class in connection with his parole, and attained appropriate
housing for K.M. and his other children. While it is apparent
Father is trying to turn his life around and we presume Father’s
housing is appropriate for K.M., none of these facts override the
substantial evidence cited above. There simply is no evidence
Father has the ability to care for K.M. and his special needs, has
ever tried to care for K.M., or has actually provided care for K.M.
in a parental capacity.
Father argues removal is not warranted because his is not
an “extreme” case of abuse or neglect as set forth in section 361,
subdivision (c). Father, however, acknowledges that removal of a
child from a noncustodial parent is governed by subdivision (d) of
section 361, not subdivision (c), which focuses on removal of a
child from a custodial parent. Father is a noncustodial parent
because K.M. did not live with him at the time of the proceedings.
In any case, both subdivision (c) and (d) of section 361
permit removal where “[t]here would be a substantial danger to
the physical health, safety, protection, or physical or emotional
well-being” of the minor and “there are no reasonable means by
which [his or her] physical health can be protected” without

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removal. As discussed above, substantial evidence supports the
juvenile court’s finding by clear and convincing evidence that
there would be a substantial danger to K.M.’s physical health,
safety, physical or emotional well-being, and special needs if he is
released to Father’s custody. Substantial evidence also supports
the finding that there are no reasonable means by which his
physical health can be protected if he is released to Father.
Finally, Father contends the juvenile court’s removal order
was based on speculative concerns over future occurrences of past
behavior, citing to In re Jasmine G. (2000) 82 Cal.App.4th 282
(Jasmine G.). According to Father, his decision to move to Las
Vegas was the past behavior which led to the speculative
concerns about his ability to care for K.M. We do not agree the
juvenile court’s concerns were speculative.
In Jasmine G., the juvenile court ordered a teenager
removed from her parents, who were separated and shared
custody, because they each used corporal punishment to
discipline their daughter. (Jasmine G., supra, 82 Cal.App.4th at
p. 288.) The appellate court reversed the removal order because
there was no evidence the daughter would be at risk of physical
harm if returned to her parents. Both parents had forsworn
corporal punishment, expressed remorse for their actions,
attended parenting classes, and undergone therapy to improve
their parenting skills. The daughter stated she did not fear her
parents and wanted to return home. One therapist opined it was
totally safe to return the child and the other simply had no
recommendation. (Id. at pp. 288–289.)
Here, Father has not similarly demonstrated he regrets his
failure to protect K.M. or that he has learned from his failures
and will do better. Indeed, Father has not visited K.M. to

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establish a relationship with him despite the juvenile court’s
admonishment that it would like to see some visits between
Father and K.M. to ensure K.M. did not have an adverse reaction
to Father. Unlike Jasmine G., the juvenile court’s removal order
in this case was not based on speculation.
DISPOSITION
The challenged dispositional order is affirmed.

BIGELOW, P. J.

We Concur:

STRATTON, J.

WILEY, J.

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