In re Carmelo M. CA4/1

Filed 6/6/13 In re Carmelo M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 CARMELO M., a Person Coming
Under the Juvenile Court Law.
D063162
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J518491B)
Plaintiff and Respondent,

v.

CARL M.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, David B.

Oberholzer, Judge. Affirmed.

Michele Ann Cella for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
 Carl M. appeals following the dispositional hearing in the juvenile dependency

case of his son, Carmelo M. Carl contends that there is no substantial evidence to support

the finding that Carmelo would suffer detriment if he were placed with Carl. Carl also

contends that the juvenile court failed to issue an order to ensure that he was provided

regular and consistent visitation. We reject Carl's contentions and affirm the juvenile

court's judgment.

BACKGROUND

Carmelo tested positive for marijuana at his birth in October 2011. Carl was

aware of the positive test. On August 13, 2012, 10-month-old Carmelo was found in

Carl's car with a friend of Carmelo's mother, C.E. The friend was smoking

methamphetamine, and police found methamphetamine and a methamphetamine pipe in

the car. Carmelo was detained at Polinsky Children's Center (Polinsky), where he tested

positive for methamphetamine and marijuana. Carmelo had a healing second degree burn

on his arm. C.E. said that the burn had been caused by a curling iron, and admitted that

she had not sought medical attention for Carmelo. Carl acknowledged that he was aware

of the burn. He said that he had "brought [Carmelo] Neosporin" but had not taken him to

the hospital.

On August 14, 2012, social worker Thomas Ruff went to the home of a paternal

aunt in search of Carl. The paternal aunt said that Carl did not live with her but that he

"sometimes use[d] her address." The paternal aunt telephoned Carl, who agreed to meet

Ruff that afternoon.

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 During the afternoon meeting, Carl told Ruff that he was going to sign a lease for

a condominium that day, but did not give Ruff the address. Carl denied knowing about

C.E.'s drug use. Carl said that he had a medical marijuana card and that he used

marijuana occasionally for back spasms. Ruff told Carl that it would be better if he

stopped using marijuana. Carl submitted to a drug test after the meeting. The test was

positive for marijuana.

On August 15, 2012, the San Diego County Health and Human Services Agency

(the Agency) filed a dependency petition for 10-month-old Carmelo. The petition alleged

that C.E. used marijuana and methamphetamine to excess and that Carl had failed and

had been unable to protect and supervise Carmelo. At the detention hearing on August

16, the court found that Carl was Carmelo's presumed father, ordered unsupervised

visitation at Polinsky and gave the Agency discretion to detain Carmelo with Carl. Carl

visited once during the 10 days Carmelo was detained at Polinsky.

Ruff wanted "to place . . . Carmelo with [Carl] pending a second drug test to

confirm no current use and pending a home visit where [Carl] is living." On August 23,

2012, Ruff asked Carl to disclose his address and to drug test again. Carl refused both

requests. On August 24, Carmelo was moved to the home of a maternal cousin, where

Carl visited Carmelo once. In September, Carmelo was moved to the home of a different

maternal cousin, D.H. Carl visited Carmelo in D.H.'s home once that month. Carl never

visited again, even on Carmelo's birthday, and never called D.H. to inquire about

Carmelo's welfare. Carl ignored Ruff's attempts to contact him.

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 On October 11, 2012, the paternal aunt told Ruff that Carl kept his belongings at

her home and that he sometimes slept there. Despite previously having told Ruff that

Carl did not live at her residence, she said that she would testify that he lived there. At a

hearing that day, Carl said that he was living in the paternal aunt's home and that he had

lived there for a couple of months. The court ordered Carl to drug test that day. Carl

tested positive for marijuana. The test results indicated recent use, since by this time, the

marijuana reflected in the prior test "should be out of [Carl's] system."

The jurisdictional and dispositional hearing began on October 19, 2012. Carl's

counsel asked the court to order paternity testing and to continue the dispositional hearing

for three-weeks. Counsel informed the court that Carl would request placement if the

paternity test was positive. The court denied the request for a continuance and ordered

paternity testing.

Carl testified that he had given Ruff an address where he could be contacted, but

explained that he had hesitated to provide his residence address because he did not have a

stable home. Carl testified that he was living with the paternal aunt during the week and

with his daughter's mother, Monica L., on weekends. Carl stayed in the garage at the

paternal aunt's home and did not have a room there. Carl initially testified that if

Carmelo were placed with him that day, Carl would take Carmelo to the paternal aunt's

home or to Monica's home. However, Carl later testified that he would be living with the

paternal aunt. He said that he was willing to allow the Agency to inspect the paternal

aunt's home that day. Monica required that a paternity test be conducted before she

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would agree to allow the Agency to inspect her home. Carl did not have a bed for

Carmelo, but said that he would purchase one that day.

Carl testified that he had last used medical marijuana three weeks to one month

earlier. He was working with a doctor to identify alternative muscle relaxers and

painkillers. Carl did not believe that marijuana affected his parenting ability, but said that

he had never used medical marijuana while caring for Carmelo. Carl said that if Carmelo

were returned to him, he would stop using marijuana.

The court made a true finding on the petition. Carl's counsel asked the court to

order Carmelo placed with Carl. The court found that it would be appropriate to place

Carmelo with Carl, pursuant to Welfare and Institutions Code1 section 361.2, but that

Carmelo could not be placed with Carl until Carl decided where he was going to live and

until it could be determined that his home was safe and appropriate. The court declared

Carmelo a dependent and ordered that he be removed from C.E.'s custody (§ 361, subd.

(c)(1)) and detained with a relative. Carl's counsel asked the court to order that Carmelo's

caregiver allow Carl at least two visits each week. The court did not expressly address

this request, but stated that Carmelo needed "frequent and continuing visits." The court

continued the hearing for a determination of the appropriate placement.

On October 29, 2012, Ruff left a voicemail message for Carl asking which home

he wished to have evaluated. On October 30, Ruff sent a certified letter to each of Carl's

two addresses, asking Carl to call him. On October 30 and 31, Ruff called Carl. On both

1 All further statutory references are to the Welfare and Institutions Code.
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days, Carl's voice mailbox was full. On November 2, Ruff left another voicemail

message for Carl. That day, Ruff went to the paternal aunt's home, but the paternal aunt

would not allow Ruff to enter. The paternal aunt said that Carl "sleeps in the garage

sometimes [but] doesn't always stay here," and that if Carmelo "had to come here we

would make room." Ruff asked the paternal aunt to have Carl call him, and the paternal

aunt relayed the message to Carl. On November 5, Ruff left another voicemail message

for Carl. On November 8, the Agency received the paternity test results, which showed a

99.99 percent probability that Carl was Carmelo's biological father.

By the time of the continued dispositional hearing on November 13, 2012, Carl

had not responded to any of Ruff's messages or letters. Carl testified that if 13-month-old

Carmelo were placed with him that day, they would live with his daughter's mother,

Monica L.. Carl admitted that he had not allowed the Agency to assess his home for

placement. Carl testified that he had the money to buy a bed for Carmelo, but that he was

still trying to decide what kind of bed to buy. Carl explained that he had not visited

Carmelo because Carl sometimes worked outside of San Diego County. Carl testified

that he had visited with Carmelo via Skype about six or seven times since October 19.

However, maternal cousin D.H., in whose home Carmelo was placed, testified that Carl

had never Skyped with Carmelo since Carmelo had been in her care. Ruff confirmed that

D.H. did not have Skyping capability in her home.

The court found that Carl was a non-offending, noncustodial parent and declined

to order that Carmelo be placed with Carl. The court found by clear and convincing

evidence that Carl was a stranger to Carmelo and that Carmelo was bonded with D.H.,

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and that it would therefore be detrimental to Carmelo to remove him from D.H.'s home

and place him with Carl. The court noted that the Agency had worked toward placing

Carmelo with Carl, but that Carl had provided no information about his home, had not

made an emotional commitment to Carmelo, had not visited or taken care of Carmelo,

and had not maintained their bond. The court ordered that Carmelo remain in his relative

placement.

DISCUSSION

The Agency asserts that "the doctrine of disentitlement should be applied to

[Carl]'s claims" because he refused to provide his home address and give the Agency

access to the home, thus "prevent[ing] the court from determining whether Carmelo could

be safely placed with [Carl]." "Under the disentitlement doctrine, a reviewing court has

the inherent discretionary power to dismiss an appeal when the appellant has refused to

comply with trial court orders. The doctrine thus 'prevents a party from seeking

assistance from the court while that party is in an attitude of contempt to legal orders and

processes of the court' and 'may be applied when the balance of equitable concerns make

it a proper sanction.' [Citation.] . . . 'In dependency cases the doctrine has been applied

only in cases of the most egregious conduct by the appellant that frustrates the purpose of

dependency law and makes it impossible for the court to protect the child or act in the

child's best interests . . . ." (In re A.G. (2012) 204 Cal.App.4th 1390, 1399, italics

omitted.) Although Carl did not cooperate with the Agency, we conclude that his

conduct cannot be categorized as being among "the most egregious." We therefore

decline to dismiss the appeal under the doctrine of entitlement.

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 The court proceeded on the assumption that Carl was a noncustodial parent.2

"When a court orders removal of a child pursuant to Section 361, the court shall first

determine whether there is a [noncustodial] parent . . . 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).)

"[O]nce dependency jurisdiction is acquired because of the custodial parent's conduct, the

court's inquiry shifts to a focus on the child's best interests, albeit with a preference

towards parental reunification. " (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425.)

In the juvenile court, the Agency must prove detriment by clear and convincing

evidence. (In re Luke M., supra, 107 Cal.App.4th at p. 1426; In re Isayah C. (2004) 118

Cal.App.4th 684, 700; In re John M. (2006) 141 Cal.App.4th 1564, 1569-1570.) On

appeal, we apply the substantial evidence standard of review, and view the record in the

2 There is no evidence to support this assumption. "[N]oncustodial parent" signifies
the parent "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." (§ 361.2, subd. (a);
In re V.F. (2007) 157 Cal.App.4th 962, 969.) Carl testified that Carmelo lived with him
most of the time and C.E. declared that Carmelo lived primarily with Carl. It would
therefore have been more appropriate for the court to proceed according to section 361.
Under that section, the court would have been required to return Carmelo to Carl unless
the Agency proved, by clear and convincing evidence, that "[t]here is or would be a
substantial danger to [Carmelo's] physical health, safety, protection, or physical or
emotional well-being" and that there were no reasonable alternative means of protecting
his physical health. (§ 361, subd. (c)(1).) We conclude that the error in proceeding under
section 361.2 rather than section 361 is harmless in this case because we conclude that
the result under section 361, which is subject to the substantial evidence test (In re
Diamond H. (2000) 82 Cal.App.4th 1127, 1135; In re Geoffrey G. (1979) 98 Cal.App.3d
412, 420), would be the same as the result under section 361.2.
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light most favorable to the court's order. (In re Luke M., supra, at p. 1426.) " ' "The

sufficiency of evidence to establish a given fact, where the law requires proof of the fact

to be clear and convincing, is primarily a question for the trial court to determine, and if

there is substantial evidence to support its conclusion, the determination is not open to

review on appeal." [Citations.]' [Citation.] Thus, on appeal from a judgment required to

be based upon clear and convincing evidence, 'the clear and convincing test

disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to

the respondent's evidence, however slight, and disregarding the appellant's evidence,

however strong.' [Citation.]" (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872,

880-881, quoted in In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.) "We do not

reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary

conflicts." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

Although a home evaluation was not required before Carmelo could be moved into

Carl's home (§ 361.2, subds. (a), (b)), the court properly insisted on knowing where Carl

would be living, in order to be able to assess whether the home and/or its occupants

would present a danger to Carmelo. This requirement did not, as Carl asserts, assign to

him "the burden of proving he was a fit parent." As additional support for his argument

that the juvenile court shifted the burden to him to prove his fitness as a parent, Carl cites

another statement by the court, i.e., that Carl "prevented the Agency from doing its job

here, and shouldn't be heard to complain and talk about burden of proof when it's his own

actions or inactions that have put up a barrier to the Agency finding out what it needed to

know or finding out enough at least to be made comfortable with the decision to place

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[Carmelo] with [Carl]." Although the court's intent in making this statement is unclear, it

is clear that the court understood that the Agency had the burden of proof. On October

19, 2012, during a discussion concerning placement, the court expressly stated that the

Agency bore the burden of showing that placement with Carl would cause detriment to

Carmelo. Carl also asserts that on October 19, the court found that the Agency had failed

to carry its burden of showing detriment. However, the court made no such finding.

Rather, the court simply stated that not knowing where Carl would be living and under

what conditions did not, in and of itself, constitute detriment.

Carl cites In re Z.K. (2011) 201 Cal.App.4th 51 (Z.K.) in support of his argument

that the court erroneously required him to prove his parental fitness. In Z.K., the father

left Nevada with infant Z.K. and essentially disappeared. (Id. at p. 55.) The mother

eventually returned to her home state of Ohio but never stopped searching for Z.K. (Id.

at pp. 55-56.) Five years later, she learned that the father had been arrested in California

and that Z.K. was in foster care. (Id. at p. 55.) By that time, the section 366.26 hearing

was imminent. (Ibid.) The mother immediately requested custody of Z.K. (Ibid.)

Neither the court, the social services department (the department), nor the mother's

appointed attorney recognized that the mother had a constitutional right to custody unless

it was proven, by clear and convincing evidence, that giving her custody would be

detrimental to Z.K. (Ibid.) "[T]he department—with the complicity of the juvenile court,

and with no meaningful opposition from mother's attorney—essentially required mother

to prove her fitness to be Z.K.'s custodial parent through multiple home studies and

psychological examinations." (Ibid.) The juvenile court found that the mother had not

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proved her fitness and terminated parental rights. (Ibid.) The reviewing court reversed,

holding that, "by terminating her parental rights without finding it would be detrimental

to the minor to be placed in her custody, the juvenile court violated mother's

constitutional right to due process of law, which is rooted in her fundamental interest in

the care, companionship, and custody of her child." (Id. at pp. 55-56.) The reviewing

court also concluded that "there was no evidence to support an implied finding of

detriment." (Id. at p. 56.)

Z.K. is easily distinguishable from the instant case. L.K., the mother in Z.K., was

forthcoming and cooperative with the department. (Z.K., supra, 201 Cal.App.4th at

pp. 60, 67.) L.K. allowed her home to be inspected. (Id. at pp. 59, 62, 68.) She visited

Z.K., and the visits went well. (Id. at p. 59.)

Unlike L.K., throughout this case Carl was evasive about where he lived. By

November 13, 2012, he still had not provided Ruff with his home address and had failed

to respond to Ruff's multiple attempts at contact. As a result, critical information

concerning Carl's home was lacking. Further, Carl had not visited Carmelo for

approximately two months. Carl falsely claimed that he had communicated with

Carmelo via Skype. Even if this claim had been true, this type of contact would not assist

in strengthening a bond with such a young child. In addition, Carl had promised to help

with Carmelo's support, but had not provided any assistance since August or September

2012. At that time, Carl merely gave the caregivers diapers, wipes and some clothing.

At the same time, Carl claimed that he worked hard and sent his older son to private

school. Further, Carl continued to use marijuana after Ruff had advised him to stop.

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 Ruff made every effort to move Carmelo into Carl's home, and the court supported

those efforts. However, Carl utterly failed to cooperate. It was his own actions, and not

those of the Agency or the court, that led to Carmelo's placement with D.H. rather than

with Carl. There is substantial evidence to support the juvenile court's finding that

Carmelo would suffer detriment if he were placed with Carl.

Carl also contends that the court failed to issue an order to ensure that he was

provided regular and consistent visitation. On October 19, 2012, when Carl's counsel

asked the court to order at least two visits per week, the court stated that Carmelo needed

"frequent and continuing visits." If counsel believed that this response was inadequate,

she should have said so. Further, if Carl had wished to visit, he could have responded to

Ruff's calls and letters. Any lack of visitation resulted solely from Carl's persistent

failure to communicate and cooperate with the Agency.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

NARES, J.

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