Alex R. v. Superior Court CA5

Filed 11/8/21 Alex R. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

ALEX R.,
F083250
Petitioner,
(Super. Ct. No. 19CEJ300095-1)
v.

THE SUPERIOR COURT OF FRESNO OPINION
COUNTY,

Respondent;

FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,

Real Party in Interest.

THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Kimberly J.
Nystrom-Geist, Judge.
Alex R., in pro. per., for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County
Counsel, for Real Party in Interest.
-ooOoo-

* Before Poochigian, Acting P. J., Meehan, J. and Snauffer, J.
 Alex R. (father), in propria persona, seeks an extraordinary writ from the juvenile
court’s orders issued at a contested jurisdiction/disposition hearing on a supplemental
petition (Welf. & Inst. Code, § 387)1 denying him reunification services and setting a
section 366.26 hearing as to his now 12-year-old daughter, R.R., 10-year-old son,
Xavier R., seven-year-old son, Jaxon R., six-year-old daughter, X.G.R., and five-year-old
daughter, X.K.R., for December 1, 2021. Father contends the juvenile court erred in not
placing the children with him or relatives. We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
On March 16, 2019, the Fresno County Department of Social Services
(department) received a referral that then 10-year-old R.R. had a visible mark or scratch
on her neck inflicted by her mother’s significant other, Kevin M. The family had 11 prior
child welfare referrals, the latest one dated the day before for neglect and emotional
abuse. Several days before the March 16 referral, law enforcement was called to
mother’s home. She would not open the door and talked to the officers through the fence.
She asked them to arrest Kevin, claiming he assaulted her children, ripped her purse off
her arm, took her keys, robbed her, and pushed her while she was holding her daughter.
One of the officers noted that mother was acting “ ‘very odd and strange.’ ”
On March 18, 2019, a social worker met with R.R. at her school. She had a small
red circle, faint in color, on her cheekbone but not any visible marks on her neck as had
been reported. She denied that any adult caused her to have marks or bruises on her
body. She last had contact with father in January. Mother did not allow her to visit him.
She said Kevin was “ ‘nice’ ” and she liked him. She denied Kevin was mean to her or
yelled at or hit her. She denied anyone at her house used drugs or alcohol.
R.R. only saw Kevin treat mother mean once. It occurred two days prior to the
interview and no one was hurt. Kevin yelled at mother while then two-year-old X.K.R.

1 Statutory references are to the Welfare and Institutions Code.

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(the two year old) was in her arms. Kevin did not want mother to take the two year old to
the hospital. Mother was walking backwards and tripped and fell. The two year old was
not hurt from the fall or from hitting the wall when Kevin pushed her. Kevin grabbed the
lanyard of car keys from mother’s neck and left. R.R. and the other children witnessed
the incident and were afraid.
On the same date, the social worker also met with Xavier at school. Xavier
witnessed Kevin push mother into the wall, causing her to fall. While she was on the
ground, Kevin took her keys and punched her and the two year old in the arm before
leaving. The two year old had a red mark on her arm. The next day, Kevin broke into
their house while they were asleep and stole all of mother’s money. Kevin tried to break
into their house a second time a few days prior to the interview and mother showed the
police the marks on his siblings, but Kevin was not arrested. The two year old had a
scratch on her mouth that Kevin caused while picking her up, and a red mark on her neck
caused by Kevin’s daughter using a wrapper to choke her. Jaxon had a mark on his back,
also attributed to Kevin.
Mother had full custody of the children as there was a restraining order against
father protecting her and the children. The restraining order expired on March 5, 2019.
She and Kevin were only friends, but she understood that her children were affected by
her relationship with him. She denied Kevin hit her or the two year old.
The department took the children into protective custody and filed a dependency
petition, alleging mother exposed them to an unsafe environment by engaging in
domestic violence with Kevin. The department placed the children together in foster
care.
The juvenile court ordered the children detained and offered the parents parenting
classes, substance abuse, mental health and domestic violence assessments, and
recommended treatment and random drug testing pending its disposition of the case. The
court set a jurisdiction/disposition hearing for May 1, 2019. In its report for the hearing,

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the department advised the court the maternal grandmother and a mentor were interested
in placement and were provided the information to apply.
On April 5, 2019, the restraining order against father was dissolved, and the family
law case was dismissed.
In its report for the jurisdiction/disposition hearing, the department reported that
father had an open dependency case regarding a minor from another relationship and was
only recently compliant with services and visitation in that case. In the children’s case,
he completed a mental health assessment and did not require treatment. He was
participating in random drug testing. He completed a substance abuse assessment and,
although he reported a long history of drug and alcohol abuse, he also reported abstaining
since 2018 and was not recommended for treatment. He was on a waiting list for a
parenting class and completed a domestic violence assessment, but the results were not
yet available to the department. Father appeared to have a relationship with the children.
He was employed full time and lived with his parents in their home, which was well
above minimal standards. His sister, Cassandra, and her children also lived in the home.
If recommended for placement, Cassandra and the paternal grandmother would care for
the children while father worked.
The department recommended the court place the children with father under
family maintenance and provide mother enhancement services, consisting of the services
previously ordered.
On May 1, 2019, the juvenile court sustained the allegations, adopted the
department’s recommended dispositional orders, set a family maintenance review hearing
for August 14 and a six-month review hearing for October 30.
On June 10, 2019, the department filed a modification petition under section 388
(388 petition), advising the juvenile court that father was refusing to drug test and asking
the court to order him to submit to hair follicle analysis. Father objected to participating

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in services, asserting he was not to blame for the children’s removal. Neither father nor
his parents were willing to follow the court’s orders.
The juvenile court granted the department’s section 388 petition and ordered
father to submit to a hair follicle analysis.
On June 19, 2019, the department removed the children from father’s custody and
filed a supplemental petition under section 387, alleging family maintenance services
were not effective in protecting them because father refused to drug test. The children
were placed in foster care.
The juvenile court ordered the children detained pursuant to the supplemental
petition and offered the parents the same services previously ordered. The department
noted in its report for the hearing that there were no relatives to consider but it would
continue to inquire if there were any relatives or mentors to be considered for placement.
Mother stated there were no relatives or friends that could take custody of the children.
The maternal grandmother previously inquired but required a written exemption, which
required her to complete the Resource Family Approval process.
On October 15, 2019, the juvenile court sustained the supplemental petition,
terminated family maintenance services for father and set a six-month review hearing for
April 1, 2020.
The six-month review hearing was continued and conducted on June 10, 2020.
The juvenile court continued reunification services and set a combined 12- and 18-month
review hearing for September 2, 2020. The court found both parents made moderate to
significant progress in meeting the objectives of their services plans.
By September 2020, father had completed a parenting class and a domestic
violence program. He enrolled in drug testing on June 19, 2020, and tested negative on
that day. He subsequently failed to test five times in June and was dropped from the drug
testing program. He was given a referral to reenroll but had not done so. The department
was concerned he may still be using drugs.

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 The department opined it would be detrimental to return the children to father’s
custody because of his history of drug and alcohol use and noncompliance with drug
testing. Further, although father regularly visited the children, he had not advanced
beyond supervised visits and was dropped from the visitation schedule for missing
three consecutive visits.
Mother, on the other hand, had made significant progress and the children had
been in her care on a liberal visit since July 17. The department wanted to continue
monitoring mother but believed the children could be safely placed in her custody. The
department recommended the juvenile court place the children with mother under family
maintenance services and terminate father’s family reunification services.
The juvenile court adopted the department’s recommendations at the review
hearing on September 2, 2020, and set a family maintenance review hearing for
February 17, 2021. The court granted the department discretion to spot test father for
drugs prior to visits.
On November 4, 2020, the juvenile court terminated father’s enhancement
services. He had been dropped from visits because of absences and from drug testing for
multiple no-shows.
On February 17, 2021, the juvenile court continued family maintenance services
for mother and set the next review hearing for August 18, 2021. However, in
March 2021, the department removed the children from her custody and filed a
supplemental petition after the children reported that she drank alcohol while caring for
them and fought with her boyfriend “Rob,” who hit her. In addition, the home was found
to be unsanitary and unsafe. Mother was arrested and the children were placed in
two foster homes.
Mother asked the responding social worker to place the children with their
maternal grandmother but was told it was not appropriate at that time because the
maternal grandmother told mother not to cooperate with law enforcement the night

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before. Mother asked if the paternal grandmother could be considered and gave the
social worker the paternal grandmother’s telephone number. The social worker agreed to
contact her.
On March 8, 2021, father appeared at the detention hearing on the supplemental
hearing and asked the court to assess his sisters, Cassandra and Marissa, for placement.
The juvenile court continued the hearing and directed the parents to provide the names of
relatives to the social worker that they would like considered for placement. At
subsequent hearings, the court found prima facie evidence to detain the children and
ordered the department to offer the parents parenting classes, substance abuse, mental
health and domestic violence assessments and any recommended treatment and random
drug testing. The court set a jurisdiction/disposition hearing on the supplemental petition
(combined hearing) for May 19, 2021, and a family maintenance review hearing for
August 18, 2021.
In its report for the combined hearing, the department recommended the juvenile
court terminate all reunification efforts and set a section 366.26 hearing.
At the May 19, 2021 hearing, the juvenile court set a contested combined hearing
for August 18, 2021, the date set for the family maintenance review hearing.
Beginning on August 18, 2019, the juvenile court conducted a contested combined
hearing over several sessions in August 2021. 2 Social worker Brenda Basulto testified
she assessed the paternal grandparents for placement. The department decided not to
place the children with them because they encouraged father not to comply with services.
She last spoke to the paternal grandmother on June 3, 2021, and explained why the
children could not be placed with her. There was nothing the paternal grandparents could

2 The hearing was combined with a contested jurisdiction/disposition hearing
regarding mother’s sixth child, a son, Kevin M. (the minor), born in June 2020. Mother’s
boyfriend, Kevin M., was the alleged father. The minor was removed from mother’s
custody in March 2021. The department recommended the juvenile court deny mother
and Kevin reunification services.

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do to have the children placed with them. The department assessed paternal aunt,
Cassandra, on March 9, 2021, but the department decided not to place the children with
her because of inconsistencies in her statements. The inconsistencies were discussed
with her, but she was not able to explain them.
The paternal grandfather testified he and his wife finished all the programs
required for placement. They purchased a larger home and car to accommodate the
children but had since moved into a smaller home. They could quickly move to a larger
home if the children were placed with them. He denied that the department explained to
him why the children could not be placed with him and denied encouraging father not to
participate in services. If the children were placed in his care, he would obey all the
court’s orders. He would be willing to adopt the children or enter into a legal
guardianship.
Cassandra testified she completed an orientation for placement and her home was
not inspected, although she asked for an inspection. She was waiting for the
department’s decision. She believed she could adequately raise the children and provide
suitable housing. She was willing to adopt the children or assume a legal guardianship
and enforce the court’s orders.
The paternal grandmother testified she had a good relationship with the children.
The social worker told her the department had reservations about placing the children
with her but did not elaborate. No one from the department gave her the opportunity to
address and discuss its concerns. She would adopt the children or be their legal guardian.
She did not discourage father from participating in services.
Minors’ counsel offered a stipulation that, if called, the children would testify that
they wanted to be placed with relatives but were happy in their current placement.
Counsel agreed to the stipulation and it was accepted by the court.
Father testified concerning what he learned in his various classes. He was
employed and believed he would be better able to juggle work and the demands of raising

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the children if they were placed in his custody. He would also obey the court’s orders.
Asked what he wanted the court to know about his sobriety, he said his ability to hold
down a job and support himself was evidence he did not have a substance abuse problem.
If the children were not returned to him, he wanted them placed with his parents or
Cassandra.
Father’s attorney asked the juvenile court to place the children in his care with
family maintenance services or place them with relatives. Mother’s attorney objected to
the children’s removal and denial of services.
Before issuing its ruling, the juvenile court inquired whether the paternal
grandparents and Cassandra were visiting the children and, if not, whether they requested
visits. Basulto stated they were not visiting and had not requested visits.
The juvenile court removed the children from parental custody and found it would
be detrimental to return them. The court denied mother further reunification services, 3
denied father’s request for family maintenance services and set a section 366.26 hearing.
As to relative placement, the juvenile court found the paternal grandparents were
not credible in regard to their interactions with the social workers and believed they
attempted to mislead the court. The court noted that father and his parents exhibited
disdain and disrespect for the department in their testimony. The court stated:

“It is clear that the paternal grandparents have operated of a mind
with the father, have advocated that he did not need to do everything, that
everything was the mother’s fault. That they have been verbally aggressive
and threatening to law enforcement within the hearing of the children. It
appears to the Court that placement with the paternal grandparents would
be the equivalent of the placement with father…. [I]t is concerning to the
Court that the paternal grandparents have made no requests or efforts to
visit with the children.”

3 The juvenile court denied mother services to reunify with the minor.

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 Regarding Cassandra, the juvenile court expressed its concern she would surrender
the children to father. In addition, she had not requested visitation or attempted to
educate herself about the special mental health needs of the three oldest children.4 The
court believed placement of the children with Cassandra was the equivalent of placement
with father. The court did not, however, believe that the department provided Cassandra
an adequate assessment of her home and instructed it to do so and offer her supervised
visitation in the event she still desired placement.
DISCUSSION
As he did throughout the proceedings, father complains that he is the nonoffending
parent. Therefore, the children were wrongfully removed from his custody. He also
contends he completed his court-ordered services and faults the department and the
juvenile court for not placing the children with his relatives.
Removal
The juvenile court serves to protect children from harm and to preserve families
when safe for the child. (§ 300.2.) In order to remove a child from parental custody, the
court must first find, by a preponderance of the evidence, the actions of a parent bring the
child within one of the statutory definitions set forth in section 300 and its subdivisions.
(In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) Here, the juvenile court adjudged
the children minors described under section 300, subdivision (b)(1), which applies as
relevant here, where “[t]he child has suffered, or there is a substantial risk that the child
will suffer, serious physical harm or illness, as a result of the failure or inability of his or
her parent … to adequately supervise or protect the child, or … by the inability of the
parent … to provide regular care for the child due to the parent’s … mental illness ….”
(§ 300, subd. (b)(1).) In so doing, the court specifically found that mother endangered
the children by exposing them to domestic violence with Kevin.

4 The three older children were participating in trauma-focused cognitive behavioral
therapy.

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 Father is correct that he was the “nonoffending” parent in that his conduct did not
necessitate the children’s removal in March 2019. Nevertheless, mother’s conduct was
sufficient for the juvenile court to exercise its dependency jurisdiction. At the
dispositional hearing less than two months later, the juvenile court placed the children in
father’s custody with services.
Had father wished to challenge the juvenile court’s removal of the children from
mother, assuming he had standing to do so, he would have had to appeal from the court’s
jurisdictional findings and dispositional orders. Section 395 provides in part: “ ‘A
judgment in a proceeding under Section 300 may be appealed from in the same manner
as any final judgment, and any subsequent order may be appealed from as from an order
after judgment; .…’ In a dependency proceeding, the dispositional order constitutes a
judgment. [Citations.] A jurisdictional finding, while not appealable, may be reviewed
in an appeal from the dispositional order. [Citation.] But appellate jurisdiction is
dependent upon the filing of a timely notice of appeal. [Citations.] ‘An appeal from the
most recent order entered in a dependency matter may not challenge prior orders, for
which the statutory time for filing the appeal has passed.’ ” (In re Megan B. (1991)
235 Cal.App.3d 942, 950, fn. omitted.)
Since neither father nor mother appealed the juvenile court’s removal order, it is
final and not reviewable on this writ petition.
Although father’s focus is on being the “nonoffending” parent, the children were
removed from him in June 2019 because he was not complying with family maintenance
services. Using his terminology, he was the “offending” parent. The children were
removed because he refused to drug test. Since he did not appeal from that removal
order, it is also final and not reviewable.

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Detrimental Return
Father contends he completed his court-ordered services, in effect arguing there
was insufficient evidence to find it would be detrimental to return the children to his
custody. We disagree.
“The dependency scheme is based on the law’s strong preference for maintaining
family relationships whenever possible. [Citations.] When a child is removed from
parental custody, certain legal safeguards are applied to prevent unwarranted or arbitrary
continuation of out-of-home placement. [Citations.] Until reunification services are
terminated, there is a statutory presumption that a dependent child will be returned to
parental custody.” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400.)
However, the presumption to return is premised on a finding that doing so would
not be detrimental to the child. If the court finds by a preponderance of the evidence that
returning the child to parental custody would “create a substantial risk of detriment to the
safety, protection, or physical or emotional well-being of the child,” the court must either
continue reunification services if the statute allows or set a hearing under section 366.26.
(§ 366.22, subd. (a)(1).)
The juvenile court may find prima facie evidence of detriment in a parent’s failure
to regularly participate and make substantive progress in court-ordered treatment
programs. (§ 366.25, subd. (a)(1).) However, even a parent who complies with the
reunification plan by completing court-ordered programs is not guaranteed the return of
his or her child. The court must be satisfied that the child would be safe in parental
custody. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141–1143.) We review the
juvenile court’s finding of substantial risk of detriment for substantial evidence. (In re
Yvonne W., supra, 165 Cal.App.4th at pp. 1400–1401.)
Here, father received in excess of two years of reunification services from the
date the children were initially removed from mother’s custody in March 2019. Under
the law, reunification services are limited to 24 months from the date the child was

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initially removed from parental custody. (§ 361.5, subd. (a)(4)(A).) By August 2021,
father had received in excess of 24 months. Although he technically complied with his
services plan to the extent that he completed his assessments and recommended
treatment, he refused to comply with the drug testing component of the plan. In addition,
he denied the department access to the children while they were in his custody. Because
of his noncompliance with drug testing and resistance to departmental oversight, the
court could not establish the children would be safe in father’s care. Substantial
evidence, therefore, supports the court’s finding it would be detrimental to return the
children to him.
Relative Placement
Dependency law favors placing a child with relatives. To that end, section 361.3,
subdivision (a) requires the juvenile court when removing a child from parental custody
to give preferential consideration to relatives who have requested placement.
“ ‘Preferential consideration’ means that the relative seeking placement shall be the
first placement to be considered and investigated.” (§ 361.3, subd. (c)(1).) “The relative
placement preference, however, is not a relative placement guarantee.” (In re Joseph T.
(2008) 163 Cal.App.4th 787, 798.) The preference accorded by section 361.3 is not “ ‘an
evidentiary presumption that placement with a relative is in the child’s best interests’ ”;
rather, the statute requires the juvenile court to determine whether such a placement is
appropriate, applying the factors set forth in subdivision (a) of the statute. (In re R.T.
(2015) 232 Cal.App.4th 1284, 1295.) “[F]irst and foremost” among those factors is
“ ‘[t]he best interest of the child, including special physical, psychological, educational,
medical, or emotional needs.’ ” (In re Maria Q. (2018) 28 Cal.App.5th 577, 592.)
Section 361.3, subdivision (a) contains a nonexclusive list of factors for the
juvenile court and county social worker to consider “[i]n determining whether placement
with a relative is appropriate,” including “[t]he best interest of the child, including special
physical, psychological, educational, medical, or emotional needs” (id., subd. (a)(1));

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“[t]he good moral character of the relative and any other adult living in the home”
including any past history of violent criminal acts or child abuse or neglect (id.,
subd. (a)(5)); “[t]he nature and duration of the relationship between the child and the
relative” (id., subd. (a)(6)); “[t]he safety of the relative’s home,” (id., subd. (a)(8)(A));
and the relative’s ability to “[p]rovide a safe, secure, and stable environment for the
child,” “[e]xercise proper and effective care and control of the child,” “[p]rovide a home
and the necessities of life for the child,” and “[p]rotect the child from his or her parents”
(id., subd. (a)(7)(A)–(D)).
“When considering whether to place the child with a relative, the juvenile court
must apply the placement factors, and any other relevant factors, and exercise its
independent judgment concerning the relative’s request for placement.” (In re
Isabella G. (2016) 246 Cal.App.4th 708, 719.) We review the juvenile court’s
determination regarding a child’s placement under section 361.3 for abuse of discretion.
(In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
Father contends his immediate family was never considered for placement even
though they requested it. Although father does not specify when his relatives were
refused placement, the record reflects that relative placement was considered from the
beginning. The maternal grandmother expressed interest but required an exemption and
had to go through the application process. Since there were no other relatives with whom
to place the children at that time, they were placed in foster care. Within two months of
their removal, the children were placed in father’s custody. The next opportunity to
consider relative placement occurred after the children were removed from father in
June 2019. The department declined to place them with their paternal grandparents
because they did not comply with the court’s orders. The maternal grandmother had not
applied for placement and mother stated there were no other relatives or friends who
could take custody. The department had no choice but to place them in foster care where
they remained until September 2020 when they were placed with mother. When the

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children were removed from mother in March 2021, the department assessed father’s
parents and sister, Cassandra, for placement and declined to place the children with them.
Relative placement was litigated at the hearing in August 2021. The juvenile court
denied the paternal grandparents’ and Cassandra’s placement requests after considering
the evidence as it related to the factors in section 361.3, subdivision (a).
We find no abuse of discretion in the juvenile court’s decision not to place the
children with father’s relatives. The court equated placing the children with the paternal
grandparents or Cassandra with placing them with father, who refused to comply with the
court’s orders and openly demonstrated contempt for the department. The court could
not be assured that the relatives would not allow father to take custody of the children.
Consequently, placing the children with father’s relatives did not serve their best
interests.
We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This court’s opinion is final
forthwith as to this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).

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