Filed 7/30/21 In re J.T. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re J.T., a Person Coming Under B308231
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No.
20CCJP02550A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.T.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Mary E. Kelly, Judge. Affirmed in part, reversed in part,
and remanded.
Karen B. Stalter, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Jane Kwon, Principal Deputy County
Counsel, for Plaintiff and Respondent.
2
The juvenile court removed J.T. (Minor) from the custody of
her mother D.G. (Mother) based on evidence Mother used
amphetamine or methamphetamine while pregnant with Minor’s
younger half-sibling, L.C. E.T. (Father) was Minor’s noncustodial
parent and the Department of Children and Family Services’
dependency petition (the Department’s) did not allege he had
done anything to warrant court jurisdiction over Minor. Father
asked the juvenile court to give him custody of Minor if it
sustained the jurisdiction allegations against Mother, but the
juvenile court denied his request based on a finding that placing
Minor with Father would be detrimental to her physical or
emotional well-being because Father drank multiple beers on
occasion, lacked a close relationship with Minor, and lived in a
converted garage with limited sleeping areas. We consider
whether there is substantial evidence supporting the juvenile
court’s finding, which must be made by clear and convincing
evidence, that placing Minor with Father would be detrimental.
I. BACKGROUND
A. The Department’s Investigation
The Department began its investigation when Minor was
four years old; Mother had just given birth to Minor’s half-sibling,
L.C., in April 2020. The Department received a referral from
hospital personnel alleging Mother admitted using amphetamine
during her pregnancy, specifically between November 2019 and
February 2020. Mother tested negative for amphetamine at the
time of L.C.’s delivery, however.
A Department social worker interviewed Mother a few days
after L.C.’s birth. Mother acknowledged she used
methamphetamine for approximately four months while
3
pregnant with L.C. She asserted, however, that she had been
sober for two months and did not consider herself an addict.
Mother was unable to give the social worker information about
Minor’s last physical examination or provide her immunization
records, stating she had fallen behind on everything and her
Medi-Cal benefits had stopped.
Minor was away visiting a family member during the social
worker’s first visit with Mother, so the social worker returned to
interview Minor the following day. She was shy, and had limited
speech abilities, and the social worker could not engage her in
conversation. The social worker did observe, though, that Minor
appeared well-dressed and there were no signs of abuse or
neglect. Mother identified Father as Minor’s biological father,
stated they had ended their relationship years prior and his
whereabouts were unknown, and said Father had no contact with
Minor in the past.
Mother’s boyfriend and L.C.’s father, J.A., told the social
worker that Mother had used methamphetamine once during
pregnancy and agreed she should enroll in a substance abuse
program. He also said he considered L.C. and Minor to be his
own children. He acknowledged Minor had a biological father,
but he maintained he was the children’s provider and was the
only one looking out for Minor.
J.A. and Mother submitted to on-demand drug testing.
Mother’s results were negative, but J.A. tested positive for
marijuana. The Department obtained a removal order and
removed Minor and L.C. from Mother’s custody.
4
B. The Petition and Detention Hearing
The Department filed a two-count dependency petition in
May 2020. Count b-1 alleged Mother has a history of substance
abuse and was a current user of amphetamine and
methamphetamine, which renders her incapable of providing
regular care for both Minor and L.C. It further alleged Mother
tested positive for amphetamine while pregnant with L.C. and
Mother had previously been under the influence of amphetamine
and methamphetamine while Minor was in Mother’s care.1 The
petition listed Father as Minor’s father but did not include any
adverse allegations against him.
The Department filed a detention report that stated
Father’s absence and lack of involvement with Minor
significantly endangered Minor’s physical and emotional health
and well-being. It also noted the Department was unable to
locate and interview Father prior to the filing of the report.
At the detention hearing, the juvenile court ordered Minor
detained and directed the Department to suitably place her
pending further dependency proceedings. The court found Father
was Minor’s presumed father, was a noncustodial parent, and it
would be detrimental to release Minor to him at the time because
his whereabouts were unknown. The court ordered Father to
have monitored visitation with Minor after contact with the
Department.
1
Count b-2, pertaining to L.C. only, alleged L.C.’s father has
a history of substance abuse and is a current user of marijuana,
interfering with his ability to provide regular care and
supervision of L.C.
5
C. Subsequent Events
1. Interviews of Minor, Mother, and Maternal
Aunt
A Department social worker attempted to interview Minor
in July 2020. Minor was unable to speak in full sentences and
would respond to questions with one-word answers. When asked
about her father, Minor said “‘mi papa’ (my father).” When asked
if she has seen him, Minor stated “‘fono’ (telephone).” When
asked if she had seen Father on the telephone (via video chat)
Minor nodded yes. When asked if she enjoyed seeing Father, she
also nodded yes.
Mother was interviewed again. As pertinent for our
purposes, Mother said that during her relationship with Father
they argued about Father’s jealousy issues. Mother also stated
Father once pulled her hair while she sat in the back seat of his
car, with Minor present. She said she did not report this incident
to law enforcement.
Karla O. (Maternal Aunt) was also interviewed. She
denied knowing about Mother’s drug use. Regarding Father,
Maternal Aunt said he had not been consistently involved in
Minor’s life. She stated he did not always provide Minor with
basic necessities and the last contact she knew of between Father
and Minor occurred two years earlier. Maternal Aunt stated
Father had a history of alcohol use during her interactions with
him two to three years prior to the dependency proceedings, and
he often drank alcohol to the point of intoxication. Maternal
Aunt did not know, however, if Father presently had any alcohol
issues.
6
2. Initial interview with Father
The Department initiated a due diligence search for Father
in early June 2020. He was located that same month and later
interviewed by a Department social worker.
Father has two other children from previous relationships:
thirteen-year-old Ja.T. and ten-year-old C.T. Father maintains
phone contact with Ja.T., who was living in New York with her
mother. Father visits with C.T. every other weekend. Father
asserted Mother had cut him off from Minor’s life and said he
wanted to obtain custody of Minor.
The social worker asked Father about Mother’s substance
abuse issues. Father stated Mother had not exhibited any
behaviors that led him to believe she was using drugs and he did
not suspect she was using when they were in a relationship. At
some point after Father and Mother broke up, one of Mother’s
aunts told Father that Mother was neglecting Minor. When
asked how Mother was neglecting Minor, Father said he didn’t
know, but he had been told Mother was leaving Minor with
relatives. When asked what Father did to protect Minor knowing
family members were concerned about Mother neglecting her,
Father stated he did nothing because he did not want to
complicate things with Mother.
When asked about his own substance use, Father denied
using drugs. Father admitted he occasionally drinks alcohol
socially. When he does so, he may drink four to six beers over the
span of a few hours. The last time he consumed alcohol was a
few days prior to the interview, when he was socializing with a
neighbor. Father denied feeling intoxicated after drinking four to
six beers, stated he only drinks when he is home, and denied ever
driving while intoxicated.
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3. Father’s visits with Minor
During his conversations with the Department, Father
expressed a desire to visit with Minor and understood the visits
must be monitored. Father had a video chat visit with Minor in
mid-July. Minor recognized Father and called him “papa.”
Father also had a 30-40 minute in-person visit with Minor a few
days later, at a local McDonald’s. Minor’s foster mother reported
no concerns with Father’s visit.
4. Interviews of others who know Father
A Department social worker interviewed Father’s wife, C.L.
(C.L.). By that time, she had been in a relationship with Father
for two years and married to Father for nine months. They do
not have any children together, C.L. she has a five-year-old son
from a previous relationship whom they raise together. C.L. said
Father drinks on occasion and will have about six beers when he
does. She denied observing any belligerent behavior when
Father drinks. C.L. does not have a problem with Father’s
occasional alcohol use because it does not affect his ability to
function as a parent, spouse, and provider. C.L. reported Father
had been responsible in caring for his children and had been
involved in Minor’s life until September 2019, when Mother
stopped communicating with Father. C.L. also told the social
worker there had never been any domestic violence between her
and Father.
The Department social worker also interviewed L.R. (L.R.),
the mother of Father’s ten-year-old child, C.T. L.R. said Father
has always been involved in C.T.’s life, has always provided
financial and emotional support, and has been a good father to
C.T. She was aware Father drinks occasionally but did not
8
believe he drinks to the point of intoxication. She reported C.T.
was regularly happy when returning from visits with Father and
did not express any concerns about Father being neglectful. L.R.
stated her relationship with Father ended because of their
lifestyle differences, but they maintain a good relationship and
are able to arrange visits between Father and C.T. without
issues. L.R. denied any domestic violence occurred during her
relationship with Father.
5. The Department’s assessment of Father’s home
The Department assessed Father’s home, a converted
garage unit. Father and C.L. currently occupy the bedroom, but
if Father were granted custody of Minor he would purchase twin
beds for Minor and his stepson and allow them to share the
bedroom while Father and C.L. shared the living room. The
social worker did not observe any safety issues in the home, but
informed Father the backyard was a hazard because it was dirty
and there were tools around that could be dangerous to a child.
Father and C.L. agreed that if Minor were released to his
care, C.L. would stop working and care for Minor while Father
works. C.L. stated not working would also allow her to spend
more time with her son.
D. The Jurisdiction and Disposition Hearing
In advance of the jurisdiction hearing, the juvenile court
gave the Department the discretion to place Minor with Father.
A last minute information report submitted in advance of the
hearing stated Minor had her first unmonitored visit with
Father. The visit, which lasted an hour, took place in a local
park. The information further stated the Department continued
9
to assess the relationship between Father and Minor because
they had not visited for several months prior to the Department’s
involvement.
After several continuances, the juvenile court held the
adjudication hearing in late September 2020. The court
sustained the petition in its entirety and declared Minor a
dependent of the court under section 300, subdivision (b). As to
the custody and placement of Minor, Minor’s attorney asked the
court to leave Minor in her foster care placement. Minor’s
counsel was concerned about placement with Father in light of
evidence he would drink about six beers at a time, Maternal
Aunt’s statement that he used to drink to the point of
intoxication, the absence of a strong bond or connection between
Father and Minor, and Father’s failure to provide Minor with
basic necessities in the past. Mother similarly objected to Minor
being released to Father and added that placing Minor with
Father might prevent Mother from reunifying with the child.
Father asked the juvenile court to give him custody of
Minor. Father noted he was currently having unmonitored visits
with Minor. He also addressed concerns the juvenile court had
articulated (off the record) regarding the space that would be
available for Minor in Father’s home. Father represented every
child would have their own bed if Minor were released to him,
and there is an additional sofa bed where his Minor’s half-sibling,
C.T., could sleep on the weekends she visits Father. Regarding
his alcohol consumption, Father noted that when he consumes six
beers, he does so over the course of several hours on social
occasions.
Counsel for the Department requested the court make a
finding that placing Minor with Father would be detrimental to
10
her. Counsel noted there had only been one unmonitored visit
with Father and argued there was a detriment to Minor because
she was a four-year-old of tender age and did not have a
significant bond with Father for the court to “just” release her
because Father is Minor’s presumed biological father.
The court stated it was finding by clear and convincing
evidence that there would be a substantial danger to Minor if she
were returned to Mother and there were no reasonable means
short of removal for protecting her. The court then further found
it would be detrimental to place Minor with Father.
The court opined that drinking a six pack of beer over
several hours is not minimal use but would be called binging in
Alcoholics Anonymous terms. The court stated that Father’s
binging from time to time is no less problematic than if he were
drinking every day and stated his drinking presented some
problems for the court. The court further stated it assumed
Father would stop drinking a six pack of beer on one occasion,
stating it did not think a court could safely place a child with a
parent who is drinking that amount of liquor at one time. The
court did not care if the consumption occurred over several hours,
stating Minor might have an emergency and need to be taken to
the emergency room and Father would not be in a position to
drive.
The court acknowledged, however, that Father was
developing a relationship with Minor. The court recognized this
was important and ordered continuing unmonitored visits in a
neutral location. The court stated it would like Father to have an
overnight visit after several unmonitored visits. The court also
wanted a commitment from Father that he would not drink in
11
Minor’s presence and a Department reassessment of the
suitability of Father’s home for multiple children.
The juvenile court also expressed concern that Minor had
already suffered from her removal from Mother and did not want
to see that happen again. In the court’s words, it was unwilling
to “gamble” on placing Minor with Father given the potential for
alcohol abuse and what the court described as another childhood
adverse experience.
II. DISCUSSION
The juvenile court erred in declining to place Minor with
Father. There is no substantial evidence that placing Minor with
Father would be detrimental to her safety, protection, or physical
or emotional well-being. The concerns cited by the court in
issuing its findings were speculative, unsupported by evidence,
and insufficient to support a detriment finding.
A. Governing Law
Welfare and Institutions Code section 361.2, subdivision (a)
provides: “If 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 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).) Welfare
and Institutions Code section 361.2, subdivision (a) evidences
“the Legislative preference for placement with [the nonoffending
12
noncustodial] parent.” (In re Austin P. (2004) 118 Cal.App.4th
1124, 1132.)
A juvenile court declining to place a child with a
nonoffending parent must make the detriment finding by clear
and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th
1412, 1426 (Luke M.); In re Isayah C. (2004) 118 Cal.App.4th 684,
700.) The party opposing the child’s placement with a
noncustodial parent bears the burden of proving the placement
would be detrimental. (In re K.B. (2015) 239 Cal.App.4th 972,
979 (K.B.).) On appeal, “[w]e 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 children would suffer
such detriment. [Citations.]” (Luke M., supra, at 1426; see also
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012.)
B. Substantial Evidence Does Not Support the Detriment
Finding
The juvenile court’s detriment finding rests on three given
reasons: (1) Father’s alcohol use; (2) Father’s lack of a robust
prior relationship with Minor; and (3) Father’s living situation.
None is supported by substantial evidence.
First, an unsubstantiated claim of alcohol abuse does not
constitute substantial evidence of detriment. (See In re
C.M. (2014) 232 Cal.App.4th 1394, 1403-1404 (C.M.); In re Abram
L. (2013) 219 Cal.App.4th 452, 463 [dismissing concerns that a
father “‘appeared to have an unresolved problem with alcohol and
a history of substance abuse’” where alcohol abuse allegations in
the dependency petition were dismissed and the father passed
the only drug and alcohol test he was given].) The only evidence
13
indicating Father’s drinking even rose to the level of intoxication,
much less alcohol abuse, was a statement from Maternal Aunt
describing Father’s behavior from two or three years prior.2 It
did not serve as evidence of Father’s behavior at the time of the
dependency proceeding—indeed, Maternal Aunt admitted she
was unaware if Father presently had a drinking problem. There
was also contemporary and strong countervailing evidence:
Father’s wife confirmed his drinking does not impact his ability
to function as a parent, spouse, or provider, and the mother of
Father’s ten-year-old child stated Father drinks occasionally but
did not believe he drinks to the point of intoxication. The record,
considered in its entirety, thus contains no evidence Father’s
occasional drinking would impair his ability to care for Minor.
The juvenile court also referenced Father’s lack of a close
relationship with Minor in reaching its detriment finding.
However, a “lack of contact between the child and the
nonoffending noncustodial parent, alone, is not a basis for finding
detriment.” (K.B., supra, 239 Cal.App.4th at 980-981.) Here,
Minor’s limited relationship with Father did not constitute
substantial evidence of detriment. It was undisputed that Father
held himself out as Minor’s father. Though he had not been
involved in Minor’s life in the year or two before he was informed
2
It is possible the juvenile court’s concern with Father’s
drinking stemmed from the court’s opinion that drinking four to
six beers (without knowing their alcohol content) over a few
hours (without knowing how many hours) amounted to binge
drinking in Alcoholics Anonymous terms (without citing any such
definition). Such an opinion does not rest on sufficient facts in
the record.
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of the dependency proceedings, the available evidence in the
record reflects this was due to Mother’s decision to cut him out of
Minor’s life, not a lack of interest on his part.3 And even with
limited contact, Minor still recognized Father as her father.
In arguing to the contrary, the Department references
Father’s minimal contacts with Minor after the Department’s
involvement. However, there is no evidence in the record that
Father declined or missed opportunities to visit with Minor
during the dependency proceedings. Nor does it establish the
three visits specifically referenced in the Department’s reports
were in fact the only visits between Father and Minor. The
record instead only indicates Father expressed a desire to visit
with Minor, Father visited with her, and neither her foster
mother nor the Department expressed concerns about the visits.
Given the foregoing, “the alleged lack of an established
relationship with father[] was [not] sufficient to constitute
substantial evidence of the high level of detriment required under
section 361.2[, subdivision] (a)].” (C.M., supra, 232 Cal.App.4th
at 1403.)
The juvenile court also relied on Father’s living situation in
finding detriment. However, the court did not cite any safety
concerns in its discussion.4 Rather, the court took issue with the
3
Maternal Aunt’s statements that Father had not
consistently been involved in Minor’s life, and had not always
provided her basic life necessities, does not establish those
omissions were due to any choice Father made.
4
Indeed, the Department had found no safety concerns
within the home itself, though it had noted the backyard was a
15
plan to have four-year-old Minor and her five-year-old
stepbrother share a room, noting the plan might be fine for the
time being but the court would prefer separate rooms for the
children of different sexes, or at least a partition between them,
in a year or so.5 While the proposed sleeping arrangements may
not have comported with the court’s ideal vision of a child’s room,
that does not suffice to establish a detriment. (In re Nickolas T.
(2013) 217 Cal.App.4th 1492, 1505 [the fact a home is not ideal is
not sufficient to establish detriment].) Neither the court nor the
Department identified any genuine issues with the sleeping
arrangements.
In its briefing on appeal, the Department advances several
additional arguments, not relied on by the juvenile court, that it
believes would support the court’s detriment finding. The record
lacks substantial evidence supporting these reasons too.
First, the Department argues Father’s prior failure to make
active efforts to ensure Minor’s well-being indicated he would not
have been invested in her care if she was placed in his physical
custody. The Department posits that because Father did not
previously seek custody of Minor or fight Mother’s decision to cut
him out of Minor’s life, he would have difficulty meeting Minor’s
needs for regular medical appointments, speech therapy, and
educational needs. This, however, is conjecture. Father’s prior
hazard because it was dirty and there were tools around that
could potentially be a hazard.
5
The court’s discussion also seems to reflect a belief that
Father’s ten-year-old daughter would be living in the room on a
regular basis, rather than staying at the home every other
weekend.
16
unwillingness to fight Mother’s decision to prevent him from
maintaining a presence in Minor’s life does not detract from
Father’s stated desire to care for Minor or indicate he is unable to
do so (especially given the assistance his wife intended to
provide).
Next, the Department argues Minor did not indicate she
wished to live with Father. As the Department acknowledges, a
Minor’s wishes are not dispositive. (C.M., supra, 232 Cal.App.4th
at 1403-1404.) Moreover, Minor also did not indicate she did not
want to live with Father, or that she did want to live with anyone
else. That Minor did not affirmatively indicate a desire to live
with Father does not establish a detriment.
The Department also argues it was reasonable for Mother
to be concerned about Father’s potential interference with her
desire to reunify with Minor. It supports that assertion by
referring to the conflicting descriptions Mother and Father
provided regarding the reason their relationship ended, and by
referring to Mother’s unsubstantiated report that Father had
pulled Mother’s hair once while the two were in a relationship.
The record contains no other indications of domestic violence, and
Mother did not report the incident. The Department makes no
effort to explain how these factors support a conclusion that
placing Minor with Father would be detrimental to Minor’s
safety, protection, or physical or emotional well-being.
Finally, the Department argues the juvenile court
reasonably determined Minor would suffer detriment if placed in
Father’s custody based on the “totality of the factors.” But the
totality of nothing is still nothing. Substantial evidence
supporting a detriment finding does not exist here.
17
DISPOSITION
The juvenile court’s disposition order is reversed and the
matter is remanded to the juvenile court to enter a new
disposition order giving custody of Minor to Father—unless the
juvenile court makes a finding on the record, based on evidence
not before this court in this appeal, that changed circumstances
render the issue moot or would justify a detriment finding by
clear and convincing evidence. In all other respects, the
jurisdiction finding and disposition order are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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