Filed 8/1/14 In re Brooke G. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

In re BROOKE G., a Person Coming Under the
Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF                                                                F068724
SOCIAL SERVICES,
                                                                           (Super. Ct. No. 12CEJ300053-3)
         Plaintiff and Respondent,

                   v.                                                                    OPINION
WILLIAM H.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from orders of the Superior Court of Fresno County. Mary Dolas,
Commissioner.
         Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Daniel C. Cederborg, County Counsel, and Amy K. Cobb, Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-



*        Before Gomes, Acting P.J., Kane, J. and Franson, J.
       William H., a noncustodial father, appeals from the juvenile court’s dispositional
order denying him custody of his 19-month-old daughter Brooke under Welfare and
Institutions Code section 361.2.1 He contends the juvenile court erred in not specifying a
factual basis for its determination that returning Brooke to his custody would be
detrimental. Alternatively, he contends substantial evidence does not support the juvenile
court’s finding of detriment. We affirm.
                    PROCEDURAL AND FACTUAL SUMMARY
       In August 2013, police were called after then eight-month-old Brooke was found
on the floor crying and her mother, Jennifer, was intoxicated and asleep in bed. Jennifer
was unaware that Brooke had fallen on the floor. Brooke was taken into protective
custody by the Fresno County Department of Social Services (department), evaluated in
the emergency room and released. Jennifer was arrested for child endangerment.
       Jennifer has a history of substance abuse, child welfare intervention and failure to
benefit from family reunification and voluntary family maintenance services.
Consequently, the department filed a dependency petition on Brooke’s behalf, alleging
she came within the juvenile court’s jurisdiction based on Jennifer’s failure to protect her.
The department identified William as Brooke’s alleged father.
       The juvenile court ordered Brooke detained pursuant to the petition and offered
Jennifer substance abuse treatment and parenting classes. The department placed Brooke
in foster care.
       In September 2013, the juvenile court convened the jurisdictional hearing.
William made his first appearance and was appointed counsel. William’s attorney
advised the court that William believed he could be Brooke’s father. He had taken her
into his home and she lived with him and he has acted as her father. William requested a



1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


                                             2
paternity test, which the court ordered. He also asked for visitation and to be assessed for
placement.
       The paternity test established William as Brooke’s biological father. He asked the
juvenile court to elevate him to presumed father status and place Brooke in his custody.
       In October 2013, the juvenile court sustained the dependency petition and elevated
William to presumed father status. The court also set the dispositional hearing and,
recognizing that William was Brooke’s noncustodial parent, ordered the department to
assess him for placement. During the hearing, minor’s counsel expressed concern about
William’s criminal history, which, according to the record, included misdemeanor
convictions in 2002 for willful cruelty to a child and infliction of corporal injury on a
spouse or cohabitant and a felony conviction the same year for possession of a controlled
substance for sale and transporting a controlled substance.
       In its report for the dispositional hearing, the department recommended the
juvenile court provide Jennifer and William reunification services but recommended
against placing Brooke in William’s custody. The department opined that doing so
would be detrimental to Brooke mainly because of William’s alcohol consumption. On
the morning of the paternity test, Brooke’s foster father stated that William appeared to
be under the influence of some substance because he was speaking loudly and rapidly and
swaying from side to side. William also attempted to take Brooke from the foster father
and was threatening to him and his wife. The woman responsible for taking the DNA
samples confirmed that William was threatening and she feared for her own safety. She
called the authorities and two sheriff’s deputies escorted William from the premises after
the testing was complete.
       William admitted drinking alcohol in the morning before taking his paternity test.
He told the social worker that he drank alcohol three times a week but rarely drank to
intoxication. He had participated in two substance abuse treatment programs but did not
believe he had a problem with alcohol. He also said he smoked marijuana every night for


                                              3
medicinal purposes and showed the social worker his medical marijuana card. He said he
could quit using drugs and alcohol. The social worker asked William about his criminal
history. He said his criminal convictions were “dope cases,” which occurred when he
was young.
       The department also opined in its dispositional report that placing Brooke with
William could cause her severe emotional distress. According to the visitation narratives,
Brooke was very uncomfortable with William during visits. She clung to the staff, not
wanting to be held by William, and would not stop crying in his presence. Afterward, her
foster parents stated she let out “terrible screams.” Once the department included
Jennifer in Brooke’s visits with William, however, Brooke was calmer. Still, Brooke
remained apprehensive toward William.
       In November 2013, the juvenile court conducted the dispositional hearing.
William objected, through his attorney, to evidence in the department’s report that he was
intoxicated and trying to take Brooke from her foster parent at the paternity testing
facility. He also objected to the department’s recommendation not to place Brooke with
him.
       The juvenile court adjudged Brooke its dependent, ordered her removed from
Jennifer’s custody and ordered reunification services for Jennifer and William. As to
William’s request for custody, the juvenile court denied it, stating: “Based on the
information that’s been provided, [the] court will acknowledge that the noncustodial
parent [William] has requested custody of [Brooke]. I’ll find at this time that there [was]
sufficient evidence that placement … would be detrimental to [Brooke’s] safety,
protection, [and] physical and emotional well-being ….”
       This appeal ensued.
                                      DISCUSSION
       William contends the juvenile court’s decision not to place Brooke in his custody
under section 361.2 was error because the juvenile court did not set forth a factual basis


                                             4
to support its decision. Alternatively, he contends substantial evidence does not support
the juvenile court’s finding that it would be detrimental to place Brooke in his custody.
We find no merit to his contentions.
       Section 361.2 protects the custody rights of a noncustodial parent when the
juvenile court removes the child from the custodial parent. In essence, it requires the
juvenile court to place the child with the noncustodial parent unless doing so would be
detrimental to the child. Specifically, section 361.2 states in subdivision (a):

              “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 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.”
       A juvenile court’s finding of detriment under section 361.2, subdivision (a)
(subdivision (a)) must be by clear and convincing evidence. (In re Patrick S.
(2013) 218 Cal.App.4th 1254, 1262 (Patrick S.).) If the juvenile court finds
detriment under subdivision (a), subdivision (c) of section 361.2 requires it to
“make a finding either in writing or on the record of the basis for its
determination.”
       William contends section 361.2, subdivision (c) (the statute) requires the juvenile
court to set forth a factual basis to support its finding of detriment either orally or in
writing. He further contends this court cannot imply the requisite factual findings if the
juvenile court fails to expressly make them, citing In re Marquis D. (1995) 38
Cal.App.4th 1813 (Marquis D.); In re V.F. (2007) 157 Cal.App.4th 962 (V.F.) and In re
Abram L. (2013) 219 Cal.App.4th 452 (Abram L.).
       We find no support for William’s contention in the plain language of the statute.
The statute does not require the juvenile court to set forth a factual basis to support its
detriment finding. Rather, it requires the juvenile court to make an express finding of

                                               5
detriment if it determines that the child cannot be placed with the noncustodial parent. In
this case, the juvenile court made an express finding of detriment on the record.
       Further, we are confident the Legislature would have inserted the requirement
William urges had it so intended. In fact, it did, for example, in section 366.22, which
governs the proceedings at the 18-month review hearing. In subdivision (a) of section
366.22, it states: “If the child is not returned to a parent … , the court shall specify the
factual basis for its conclusion that return would be detrimental.” (Italics added.)
       Having concluded the statute does not require the juvenile court to specify a
factual basis for its finding of detriment, we need not discuss Marquis D., V.F. and
Abram L. except to say that the issue in those cases was whether the appellate
court could imply a finding of detriment, not whether it could imply a factual basis
to support a finding of detriment. In those cases, the juvenile court decided not to
place a child with the noncustodial parent but did not make a finding of detriment.
The appellate courts declined to imply a finding of detriment and reversed because
it was not clear the juvenile court even considered section 361.2, subdivision (a) in
making its decision. (Marquis D., supra, 38 Cal.App.4th at pp. 1820-1821, 1824-
1825, 1830; V.F., supra, 157 Cal.App.4th at pp. 965-966; Abram L., supra, 219
Cal.App.4th at p. 455.)
       In light of the foregoing, we conclude the juvenile court complied with
section 361.2, subdivision (c) by making an express finding of detriment and turn
to William’s contention that substantial evidence does not support it.
       William contends the juvenile court’s finding of detriment is not supported
by substantial evidence because the court improperly relied on his alcohol abuse
and Brooke’s negative reaction to him in assessing detriment. Such evidence, he
argues, is insufficient to support a finding of detriment.
       On appeal, we review a juvenile court’s decision under section 361.2,
subdivision (a) for substantial evidence, bearing in mind the heightened clear and


                                               6
convincing evidence burden of proof required by the statute. Under the substantial
evidence test, 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 placement would be
detrimental to the child.” (Patrick S., supra, 218 Cal.App.4th at p. 1262.)
       In this case, we conclude substantial evidence supports the juvenile court’s
finding of detriment. The juvenile court had before it evidence that William had
an unresolved problem with alcohol and a history of substance abuse. He was
treated twice for alcohol abuse yet drank on a daily basis. On the morning of the
paternity test, he was intoxicated and threatening, requiring law enforcement
intervention. Further, there was evidence that Brooke had an extremely negative
reaction to William during and after visitation to the point that she screamed and
cried. Given William’s alcohol abuse and Brooke’s aversion to him, the juvenile
court could find that placing Brooke in William’s custody could result in physical
and/or emotional harm to her.
       William argues, citing Abram L., supra, 219 Cal.App.4th at p. 463, that the
juvenile court could not consider his alcohol abuse without having sustained an
allegation related to his alcohol abuse in the dependency petition. However,
Abram L. does not stand for that proposition. As we stated above, the court in
Abram L. concluded that the juvenile court did not consider or apply section 361.2.
The question then became whether a miscarriage of justice occurred as a result.
The Abram L. court concluded that it had and reversed the juvenile court’s
dispositional order. In reviewing the miscarriage of justice issue, the Abram L.
court addressed factors the department argued supported a finding of detriment.
One of those factors was that the “‘father appeared to have an unresolved problem
with alcohol.’” (Abram L., supra, at p. 463.) However, the Abram L. court did not
find evidence that the father had an alcohol problem in part because the juvenile


                                             7
court dismissed the allegations in the petition relating to the father’s alleged
alcohol problems. Thus, the Abram L. court did not hold, as William contends,
that the juvenile court cannot find detriment unless it previously sustained an
allegation of alcohol abuse. Rather, it considered the fact that the juvenile court
did not sustain an allegation of alcohol abuse as some evidence that the father in
that case was not abusing alcohol. (Id. at p. 463.)
       William further argues, citing In re John M. (2006) 141 Cal.App.4th 1564
(John M.), that the lack of a parent/child relationship is insufficient by itself to
support a finding of detriment under section 361.2, subdivision (a). The juvenile
court in this case did not base its detriment finding solely on William’s lack of a
relationship with Brooke. As we discussed above, William’s alcohol abuse was
also a factor. In any event, John M. is distinguishable on two key facts.
       In John M., the juvenile court denied a noncustodial father, who lived out
of state, custody of his 14-year-old son, basing its detriment finding in part on the
son’s wishes, lack of relationship with his father, sibling bond and need for
services. The appellate court concluded those factors did not support the juvenile
court’s detriment finding and reversed. (John M., supra, 141 Cal.App.4th at pp.
1570-1571.) However, there are two important factors that distinguish John M.
from William’s case. In John M. the minor was a teenager and the lack of a
parent/child relationship related to a four-year lack of contact. However, the
father resumed contact with his son a year before the dependency proceedings
were initiated and there are no facts in the opinion that the son exhibited a
negative emotional reaction to his father. (Id. at p. 1571.) Here, Brooke is an
infant and had an aversion to William. More importantly, there was no evidence
in John M. that the father’s conduct posed any threat to his son or that he could not
properly care for his son. (Id. at pp. 1568, 1571.) In contrast, there was strong




                                               8
evidence in this case that William was abusing alcohol and would place Brooke at
risk of physical and/or emotional harm if she were placed in his custody.
      We conclude that the department met its burden of proving detriment by clear and
convincing evidence, and we affirm the juvenile court’s orders finding Brooke’s
placement with William would be detrimental within the meaning of section 361.2.
                                    DISPOSITION
      The judgment is affirmed.




                                            9
