Filed 11/30/20 In re Isabella F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re Isabella F., a Person Coming
Under the Juvenile Court Law.
D077807
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. SJ11682D)
Plaintiff and Respondent,
v.
JESSICA F.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Browder A. Willis III, Judge. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for
Defendant and Appellant.
Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for
Plaintiff and Respondent.
Jessica F. (Mother) claims that insufficient evidence supports the
juvenile court’s dispositional findings regarding her three-year-old daughter,
Isabella F. The court found that placing Isabella with presumed father,
Jesus R., would be detrimental to the child under Welfare and Institutions
Code section 361.2, subdivision (a),1 or in the alternative, that Isabella’s
removal from Jesus was necessary and appropriate under section 361,
subdivision (c)(1). We conclude that substantial evidence supports the court’s
detriment finding and accordingly, affirm the dispositional findings and
order.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has a long history of substance abuse. Her parental rights over
three of Isabella’s older siblings were terminated. Despite participating in
various treatment programs associated with the prior dependency cases,
Mother remains addicted to methamphetamine.
In February 2017, Mother gave birth to Isabella. The man who Mother
believed was Isabella’s biological father (Y.R.) was not present or involved. A
few weeks after Isabella’s birth, Mother met Jesus and began a relationship
with him. In July 2018, Mother gave birth to another child (half sibling),
over whom Jesus claimed paternity. The family lived together until about
mid-2019. Around that time, Mother was taken into police custody, and her
relationship with Jesus ended. Mother went from custody to the FRC drug
treatment program and then to the KIVA drug treatment program. The half
sibling continuously lived with Jesus. Isabella stayed with Jesus most of the
time, but when Mother was able to, she cared for Isabella.
1 Further unspecified statutory references are to the Welfare and
Institutions Code.
2
In early January 2020,2 Mother left KIVA and thereafter, smoked
methamphetamine every other day. Jesus reportedly had no suspicions or
concerns that she was using drugs.
In early February, Mother picked up Isabella from Jesus and took her
to the Big 7 Motel in Chula Vista where Mother’s boyfriend had a room. The
next day, officers from the US Marshals Fugitive Task Force located Mother’s
boyfriend, who was a known fugitive, at the motel. Officers breached the
motel room and arrested Mother and her boyfriend, both of whom had felony
arrest warrants. Two-year-old Isabella was sitting on the bed. Within the
toddler’s reach were a large quantity of various illegal drugs and drug
paraphernalia. The drugs were intended for sale.
The San Diego County Health and Human Services Agency (Agency)
filed a petition on behalf of Isabella, alleging that she was at substantial risk
of serious physical harm due to Mother’s failure or inability to supervise or
protect her. (§ 300, subd. (b).) The petition specifically alleged that Isabella
was inadequately supervised during the motel drug incident, Mother has a
long history of drug use and was currently using methamphetamine, and her
parental rights over three other children had been terminated. The juvenile
court detained Isabella at Polinsky Children’s Center, and she was later
placed in a foster home.
As part of its investigation, the Agency spoke to Y.R., the man who
Mother believed was Isabella’s father. He denied paternity, said he had
previously undergone a paternity test to confirm this, and had no desire to be
involved in the case.
2 Subsequent unspecified date references occurred in 2020.
3
The Agency also interviewed Jesus. He and Mother had no formal
custody arrangement over Isabella and her half sibling. Jesus reported that
he normally cared for Isabella four times a week and considered her to be his
daughter. He sometimes had to leave San Diego County for work, during
which time the children “would remain with [Mother] for up to two weeks.”
Although Jesus was aware of Mother’s history of incarceration and her
participation in various court-ordered drug treatment programs, he had no
worries or concerns about leaving Isabella in Mother’s care. When the
Agency asked him whether he ever suspected that Mother was using drugs or
affiliating with drug users, Jesus stated, “as long as I don’t see it I wouldn’t
ask her.” He did not ask because “whenever he would tell [her] something it
usually led to an argument.” Jesus said he did not know that Mother’s
boyfriend was involved in drugs and had heard that the boyfriend was “a
good person.”
In its jurisdiction and disposition report, the Agency noted that Jesus
wanted to elevate his paternity status and have Isabella placed with him.
However, the Agency had been unable to conduct a home visit and
assessment because Jesus had recently moved multiple times. The Agency
also expressed concern that at the time Isabella was detained, Jesus was her
longtime care provider, and he claimed not to have suspected Mother’s
substance abuse. The Agency recommended Isabella’s continued placement
in foster care, where she was doing well.
In a parentage inquiry form, Jesus attested that he held himself out as
Isabella’s father and that he had supported her financially and emotionally
since she was three weeks old.
On the date set for the jurisdiction and disposition hearing in early
March, the court granted Jesus’s request to be elevated to presumed father
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status. (Hereinafter, we refer to Jesus as Father.) Mother’s counsel
requested a continuance so that Father’s home could be evaluated and the
Agency could develop a case plan for him. The court continued the hearing
without objection.
The Agency followed up with Father, who disclosed a past drinking and
marijuana problem. He was self-employed as a car painter and struggled
with maintaining stable housing. He had gone from living with a roommate,
to living in hotels for a year, to his current arrangement of living with
roommates. On March 12, the date scheduled for the Agency’s home visit,
Father notified the social worker—who was at the time standing outside the
address that he had given her—that he had moved out the night before and
was staying somewhere else for only one night. According to Father, his
roommates did not want to go through the Agency’s home clearance process.
Father continued his search for housing, and in late March, moved in
with a different roommate, Guillermo. Father told the Agency that he would
be entering into a lease agreement with Guillermo, who was aware of, and
willing to abide by, the Agency’s clearance process. However, when the
Agency interviewed Guillermo, he was hesitant, stating that he was merely
allowing Father to stay with him temporarily, “to get on his feet.” A day
later, Guillermo refused to proceed with the clearance process and reported
that Father was going to be living with him for only one to two months. At
that point, Father no longer wished to proceed with an evaluation of
Guillermo’s home.
Due to the COVID-19 pandemic and related juvenile court closure, the
parties stipulated to a continued contested hearing date. The new hearing
date was set in June.
5
In late April, Father notified the Agency that he had moved again, this
time to a two-bedroom home without roommates. However, between April
and May, Father did not respond to the Agency’s attempts to contact him to
schedule a home visit. He failed to participate in substance abuse services
and failed to respond to two Agency requests for drug tests.
By June, Father was staying at a hotel in Chula Vista. He planned to
stay at the hotel on a weekly or monthly basis until he could find an
apartment. As of June 10, he had not responded to the Agency’s request to
schedule a home evaluation.
In mid-June, trial proceeded on the jurisdictional and dispositional
issues by way of documents and stipulated testimony. Without objection, the
court received in evidence (1) the Agency’s reports detailing the foregoing
events and (2) testimony regarding Father’s current housing situation.
Based on the evidence and arguments of counsel, the court made a true
finding on the petition by clear and convincing evidence. Further, the court
declined to place Isabella with Father, finding that he was a noncustodial
parent and that placement with him would be detrimental to Isabella under
section 361.2; the court found, in the alternative, that if Father was a
custodial parent, removal from him was necessary and appropriate under
section 361, subdivision (c)(1). The court continued Isabella’s placement in
foster care.
Mother’s appeal followed.3
3 Father separately appealed, but his appeal was dismissed after his
appellate counsel filed a brief pursuant to In re Sade C. (1996) 13 Cal.4th
952, indicating that there were no arguable issues. (In re I.F. (Aug. 17, 2020,
D077629) [dismissal order].)
6
DISCUSSION
Mother claims that there is insufficient evidence to support the court’s
removing Isabella from Father (§ 361, subd. (c)(1)), or alternatively, that
insufficient evidence supports the detriment finding for placement purposes
(§ 361.2, subd. (a)). The Agency responds that the court found that Father
was a noncustodial parent and that substantial evidence supports a finding
that placing Isabella with him would be detrimental. Even if Father was a
custodial parent, the Agency submits that substantial evidence supports
Isabella’s removal from him. We agree with the Agency.
Preliminarily, we address the issue of whether Father was a custodial
or noncustodial parent. The issue was thoroughly argued at trial, with the
court taking a recess at one point to consult relevant legal authorities, and
subsequently, allowing additional argument on the issue. Both Mother’s and
Father’s counsel conceded, and repeatedly urged the court to find, that
Father was a noncustodial parent with whom placement was appropriate
under section 361.2. For example, Father’s trial counsel stated, “the evidence
before the [c]ourt clearly establishes father as a noncustodial parent. . . .”
Mother’s trial counsel stated, “[M]other supports father in his request for
placement and agrees that he was noncustodial. . . .” However, on appeal,
Mother has taken a different position, contending that Isabella lived with
Father at the time the protective issues arose, i.e., that he was a custodial
parent, and that removal from him was improper.
The statements of counsel for Mother and Father amounted to judicial
admissions that Father was a noncustodial parent. (Physicians Committee
for Responsible Medicine v. KFC Corp. (2014) 224 Cal.App.4th 166, 180
[counsel’s oral statement at hearing is a binding judicial admission if the
statement was an unambiguous concession of a matter then at issue and was
7
not made improvidently or unguardedly].) A judicial admission “is a
conclusive concession of the truth of the matter.” (Bucur v. Ahmad (2016)
244 Cal.App.4th 175, 187.) Similarly, the doctrine of judicial estoppel
precludes a party from taking inconsistent positions in a judicial proceeding.
(Ibid.) Having taken the position that Father was a noncustodial parent,
Mother cannot now posit that he was a custodial parent.4 (Id. at p. 188.)
Consistent with the foregoing doctrines, the juvenile court observed
that whatever arrangement the parents had was uncertain and found that
“[Father] was a noncustodial parent. Even though he did care for
[Isabella] . . . a lot of time, that was very informal, and I think the law
requires a little more formality than just: [‘]Here you take [the child] today
because I’ve got to go out and do something.[’]”5 As noted, the juvenile court
made an alternative finding that even if Father was a custodial parent,
removal from him would be necessary.
Section 361.2 governs the rights of noncustodial parents. It provides:
“When a court orders removal of a child pursuant to Section 361, the court
shall first determine whether there is a parent of the child, with whom the
4 On reply, Mother maintains that Isabella was living solely with Father
“at the time that the events or conditions arose that brought the child within
the provisions of Section 300.” (§ 361.2, subd. (a).) Mother is incorrect.
According to both Mother and Father, Isabella did not live with Father all the
time, and Mother took the child essentially whenever Mother wanted. There
is substantial evidence that Isabella recently lived with Mother at the
maternal aunt’s house. Of course, Isabella was in her mother’s physical care
during the motel drug incident, when Mother was taken into custody.
5 The court’s ruling is contained in the hearing transcript. To the extent
that there is a discrepancy between the court’s oral ruling and minute order,
the oral ruling prevails. (E.g, People v. Zackery (2007) 147 Cal.App.4th 380,
385.)
8
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.” (§ 361.2, subd. (a), italics added; In re Liam L. (2015) 240
Cal.App.4th 1068, 1081.)
“ ‘A detriment evaluation requires that the court weigh all relevant
factors to determine if the child will suffer net harm.’ ” (In re Liam L., supra,
240 Cal.App.4th at p. 1086.) A finding of detriment is tantamount to a
finding that placing the child with the noncustodial parent is not in the
child’s best interests. (Ibid.) “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.” (In re Luke M. (2003)
107 Cal.App.4th 1412, 1426.)
In this case, substantial evidence supports a finding by clear and
convincing evidence that placing Isabella with Father would be detrimental
to her “safety, protection, or physical or emotional well-being.” (§ 361.2, subd.
(a).) The juvenile court was significantly concerned about Father’s
inadequate parenting skills and/or his conflict-avoiding, nonprotective
mentality that led to Isabella’s detention. According to Father’s own
statements, he knew about Mother’s drug problem and/or consciously avoided
knowing about it, and he nevertheless had no concerns about leaving Isabella
in Mother’s care. Father said that he did not inquire about Mother’s
activities or associations in order to avoid arguments with her. His conduct
in this regard posed a significant risk to Isabella’s safety and well-being.
9
The record contains substantial evidence of other factors that support a
finding of detriment, as well. Father became unresponsive as the case
progressed, failing to participate in services and in drug testing. This was
problematic, in view of his disclosure of past drinking and drug issues. (Cf.
In re E.E. (2020) 49 Cal.App.5th 195, 217 [father’s minimizing mother’s drug
problem and failing to cooperate with child welfare agency supported removal
order].) In addition, Father struggled to secure stable housing, which,
combined with all of the other circumstances, was concerning. Between
March and June alone, the Agency was aware of Father’s having moved four
times, and he was planning to move again. He would not allow the Agency to
assess any of his homes, and in one instance (with Guillermo), Father
mischaracterized the willingness of his roommate to have their home
evaluated for placement. By the time of the hearing, the Agency still had not
seen where Father proposed to live with Isabella. In totality, the record
supports a finding of detriment by clear and convincing evidence.
Mother argues that Father’s continuing custody over Isabella’s half
sibling is an indication that Father would keep Isabella safe. However, as
the Agency points out, the record contains little or no information about the
half sibling’s current safety or whereabouts. Moreover, we do not reweigh
evidence on appeal or substitute our judgment for that of the trial court. (In
re Stephanie M. (1994) 7 Cal.4th 295, 319.) The juvenile court was aware
that the half sibling was in Father’s custody and considered Father’s general
parenting abilities, but also discussed serious areas of concern that, in the
court’s judgment, put Isabella at significant risk of harm. Mother has failed
to establish reversible error.
Mother also argues that the juvenile court could have placed Isabella
with Father and restricted Mother’s access to Isabella to keep the child safe.
10
Mother never previously requested or argued that her access to Isabella
should be restricted; to the contrary, at trial she sought in-person visitation.
Mother’s argument is therefore forfeited. (In re E.A. (2012) 209 Cal.App.4th
787, 791 [forfeiture of “alleged defect that could have been easily cured, if
raised in a timely fashion”].) In any event, Father’s allowing contact with
Mother was not the only potential detriment to Isabella.
In summary, substantial evidence supports the court’s detriment
finding and decision not to place Isabella with Father.6
6 Given our resolution of this appeal, we have no need to provide a
detailed discussion of the court’s alternative finding that, assuming Father
was a custodial parent, removal from Father was necessary under section
361, subdivision (c)(1). Assuming that Father was a custodial parent,
substantial evidence supports Isabella’s removal from him for the same
reasons that placement with him would be detrimental.
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DISPOSITION
The dispositional findings and order are affirmed.
AARON, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
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