Filed 10/14/14 In re Aria G. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re ARIA G., a Person Coming Under the                             B253952
Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. DK00993)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

P.W.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Anthony
Trendacosta, Juvenile Court Referee. Affirmed.
         Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant, P.W.
         Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and
Appellant, H.G.
         No appearance by Plaintiff and Respondent.
                                           ______________________
       P.W. (Mother) appeals from the juvenile court’s order placing her eldest child, 10-
year-old Aria, with her noncustodial, nonoffending father, H.G., thus separating her from
her half-siblings, A.W. and D.W. Mother contends the juvenile court failed to consider
the importance of the bond between Aria and her half-siblings and her clearly expressed
preference to live with them. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       On September 18, 2013 the Los Angeles County Department of Children and
Family Services (Department) initiated dependency proceedings on behalf of Aria, A.W.
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and D.W. pursuant to Welfare and Institutions Code section 300, subdivisions (a)
(serious physical harm) and (b) (failure to protect) alleging mother and D.W., Sr. (father
of A.W. and D.W.) had engaged in violent altercations in the presence of the children and
D.W., Sr. had physically abused D.W. The petition also alleged Mother had a history of
drug use and currently used drugs, including methamphetamine, ecstasy and marijuana;
D.W., Sr. had a history of drug use and currently used drugs, as well as cared for the
children while under the influence of drugs; and the home was filthy and unsanitary. At a
detention hearing the same day the court detained the children in shelter care and found
H.G. to be the presumed father of Aria. The Department was given discretion to release
the children to appropriate relatives or nonrelated, extended family members.
       In a November 18, 2013 report prepared for the jurisdiction and disposition
hearing, the Department stated H.G. had been located and wanted custody of Aria
although he had not had contact with her since 2011 because Mother had been “hiding”
her. According to H.G., prior to 2011 Aria had been in H.G.’s care for approximately
one year, and she had a positive relationship with H.G.’s live-in girlfriend and her 7-year-
old daughter. As reflected in a supplemental report dated November 18, 2013, Aria told a
Department investigator she did not want to live with H.G. unless her half-siblings could
as well; however, she did want to visit him. Mother expressed concern about Aria living
with H.G., explaining there had been domestic violence between Mother and H.G. and

1      Statutory references are to the Welfare and Institutions Code.

                                             2
claiming H.G. had only lived with Aria for six weeks. The maternal grandmother
reported H.G. had been absent most of the time Aria was in his care and Aria had been
frightened and nervous because H.G. and his girlfriend frequently fought. Mother and
the maternal grandmother also expressed concern about drug abuse by H.G. and alcohol
abuse by his girlfriend.
       Counsel for H.G. was appointed at the November 18, 2013 hearing and
represented that H.G. was willing to drug test. Counsel also requested the court order
visitation for H.G. and Aria and expedite placement with him. Counsel for the children,
as well as counsel for the Department, requested Aria not be placed with H.G. because of
concerns the Department had raised in its supplemental report. The court ordered
visitation for H.G. and Aria, directed the Department to set up a drug test schedule for
H.G. and continued the matter.
       In a supplemental report dated January 9, 2014 the Department informed the court
H.G. had tested positive for marijuana on November 19, 2013 and failed to appear for a
drug test on December 12, 2013. H.G. told Department personnel he had a medical
marijuana card and used marijuana approximately four times a month for pain from a
work-related injury. He denied past or current use of any other drug and indicated he was
willing to stop using marijuana even though it was used to control pain. The report also
reiterated Aria’s desire to remain placed with her half-siblings notwithstanding the
Department’s assurance she could visit with them if she was placed with H.G. According
to the report, the Department discussed Aria’s wishes with H.G., but H.G. believed she
was too young to make her own decisions and said he had her best interests in mind. In a
January 22, 2014 last minute information for the court, the Department reported H.G. had
failed to appear for a December 23, 2013 drug test.
       At the continued January 22, 2014 jurisdiction and disposition hearing the court
sustained an amended petition after Mother and D.W., Sr. pleaded no contest to the
allegations. The court ordered Aria be placed with H.G., stating “the case law and the
code is clear” that section 361.2 requires the court, upon removal of a child from a
custodial parent, to place the child in the care of the noncustodial parent unless it finds by

                                              3
clear and convincing evidence the placement would be detrimental. The court explained,
“[C]ases . . . talk[] about the fact that children are children. And yes, the court is to take
some heed as to their desires, but that’s why they’re nine and that’s why they are not
adults. So if [H.G.] wants to be a jerk and put her out of the family home, I can’t do
anything about that. So it’ll be home-of-parent father.”
       Counsel for the Department asked the court to consider the supplemental and last
minute reports indicating H.G. had tested positive for marijuana and missed two drug
tests. The court responded that the Department had not filed a petition against H.G. or
presented clear and convincing evidence of detriment. When the maternal grandmother
protested it was not fair to place Aria with H.G. because “for the last three years her dad
has not picked her up,” the court agreed, but reiterated the Department had not carried its
burden to show detriment: “[T]he problem is that the dependency scheme is not that the
parent has to prove why the court needs to take away; it’s the Department’s obligation to
prove why there’s a substantial risk of detriment to a parent who otherwise has a
constitutional right to the care, custody, control of the child, absent some proof, that by
substantial evidence that the child’s at risk. . . . And the law, as I’ve indicated, is very
clear, that as much as I want to keep Aria together with the rest of the family the law is
                                                                                       2
very clear that I can’t. So I appreciate everybody’s concerns, but I’m hamstrung.”
                                       DISCUSSION
       1. Standard of Review
       Although the juvenile court’s factual determinations are generally reviewed for
substantial evidence, the Department’s failure to carry its burden of proof to demonstrate
detriment by clear and convincing evidence is properly reviewed, as in all failure-of-
proof cases, for whether the evidence compels a finding in favor of the appellant as a




2       Describing H.G. as the “appropriate respondent,” the Department informed this
court it would not file a brief in support of the juvenile court’s order because it was
contrary to the Department’s recommendation Aria not be placed with H.G.

                                               4
              3
matter of law. (See Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013)
218 Cal.App.4th 828, 838 [“where the issue on appeal turns on a failure of proof at trial,
the question for a reviewing court becomes whether the evidence compels a finding in
favor of the appellant as a matter of law”]; In re I.W. (2009) 180 Cal.App.4th 1517, 1527-
1528 [same].) The question “‘becomes whether the appellant’s evidence was
(1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave
no room for a judicial determination that it was insufficient to support a finding.”’”
(Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th
456, 466.)
       2. The Department Failed To Carry Its Burden To Demonstrate by Clear and
          Convincing Evidence Separating Aria from Her Half-siblings Would Be
          Detrimental
                                      4
       Section 361.2, subdivision (a), requires the juvenile court to “place a dependent
child with a noncustodial, nonoffending parent who requests custody unless the
placement would be detrimental to the child.” (In re Luke M. (2003) 107 Cal.App.4th
1412, 1422 (Luke M.).) “[U]nder this statute a court has broad discretion to evaluate not
only the child’s physical safety but also his or her emotional well-being. In an
appropriate case, all that might be required is a finding such a placement would impair
the emotional security of the child.” (In re C.C. (2009) 172 Cal.App.4th 1481, 1490.) In
determining detriment, “a court is authorized to evaluate the appropriateness of keeping
half-siblings together, and to consider sibling relationships as one factor, among many,
when determining detriment for purposes of its placement decisions.” (Luke M., at


3      It is immaterial that Mother, not the Department, is the appellant.
4       Section 361.2, subdivision (a), states, “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.”

                                             5
p. 1422; see id. at p. 1425 [“detriment finding can properly be supported by the emotional
harm arising from the loss of sibling relationships even in the absence of the noncustodial
parent’s contribution to the detriment”].) Because a parent’s right to the care, custody
and management of a child is a fundamental liberty interest protected by the federal
Constitution, a finding of detriment pursuant to section 361.2, subdivision (a), must be
made by clear and convincing evidence. (In re Abram L. (2013) 219 Cal.App.4th 452,
461.) “Clear and convincing evidence requires a high probability, such that the evidence
is so clear as to leave no substantial doubt.” (Luke M., at p. 1426.)
       Mother contends the court failed to consider clear and convincing evidence
severing Aria’s bonded sibling relationships would be detrimental to her emotional well-
being, believing it was “hamstrung” to release Aria to H.G. because the Department had
failed to file a petition as to him. To be sure, Aria did not want to be separated from her
half-siblings; she was even willing to live with H.G. if her half-siblings could be placed
with him as well. However, without more than Aria’s statements to the social worker we
cannot say—as we must in failure-of-proof cases—that the evidence compels as a matter
of law a finding of detriment if Aria were to be placed with H.G.
       In re John M. (2006) 141 Cal.App.4th 1564 (John M.) is instructive. John, a 13-
year-old boy with serious emotional problems including uncontrollable aggression and
attention deficit hyperactivity disorder, did not want to be placed with his nonoffending,
noncustodial father, Dewayne, because he “lived in the country” (Tennessee). (Id. at
pp. 1568, 1570-1571.) Notwithstanding the social worker’s concession she had no
information suggesting Dewayne would be unable to meet John’s special needs (id. at
p. 1571), the juvenile court found it would be detrimental to place John with Dewayne
based “on John’s wishes, his need for services, his relationship with S.E.[, his 10-month-
old sibling,] and members of his extended family in San Diego, his lack of relationship
with Dewayne, the paucity of information about Dewayne, and [mother’s] reunification
plan” (id. at p. 1570). In holding this evidence—significantly more than the instant
case—did not support the detriment finding by clear and convincing evidence, the
John M. court explained in part, “While . . . [John] was entitled to have his wishes

                                             6
considered, he was not entitled to decide where he would be placed.” (Ibid.; see
In re Patrick S. (2013) 218 Cal.App.4th 1254,1265 [although 13-year-old boy was
“entitled to have his wishes considered[,] . . . a child’s preference is not the deciding
                                   5
factor in a placement decision”].) With respect to John’s sibling bond with 10-month
old S.E., Dewayne had been willing to facilitate visitation as H.G. is willing to do with
Aria and her half-siblings. (John M., at p. 1570.)
       Indeed, Luke M., supra, 107 Cal.App.4th 1412, on which Mother heavily relies,
demonstrates much more is needed than Aria’s preference, as expressed to Department
personnel, to remain with her half-siblings. In Luke M. four children (Leanna, Luke,
Lenay and Lindsey) were removed from their mother’s care after she was arrested for
drug possession. A social worker for the San Diego County Health and Human Services
                                                                                       6
Department initially recommended the children be placed with their father, Jeffrey, who
was living in Ohio, because he was able to provide for them and there was an “extremely
strong bond between the children, as evidenced by a . . . counselor’s assessment that it
would be detrimental to separate the children.” (Id. at p. 1417.) After Lindsey, the
youngest child, reunified with the mother in the treatment facility, the social worker
recommended the other three children remain placed with their paternal aunt and uncle as
the children had requested: “The social worker opined that, based on her four-month
involvement in the case, the wishes of the children should be followed. She noted that
the children are bonded to each other and become depressed when approached with the
thought of being separated. Ever since they were removed from the mother, the children
had repeatedly asked not to be separated. The children depended on each other for

5       As Mother correctly observes, In re Patrick S., supra, 218 Cal.App.4th 1254 did
not involve the separation of bonded siblings. Nevertheless, the fundamental point that a
child’s wishes will not alone dictate placement is applicable. The separation of siblings
is just one potential cause of emotional harm to a child. The relevant consideration is
whether the placement will impair the emotional security of the child, whatever its cause.
6      Jeffrey was the biological father of three of the children (Luke, Lenay and
Lindsey) and de facto father of Leanna (the eldest), who viewed him as her biological
father. (Luke M., supra, 107 Cal.App.4th at p. 1416.)

                                              7
support, love and security. Noting that the mother had made great strides in her
treatment, the social worker concluded moving the children to Ohio would be detrimental
to them and would cut off the possibility of the mother reunifying as soon as possible.”
(Id. at p. 1418.)
       After the court heard testimony from Luke, the social worker and Jeffrey, it
ordered Lindsey placed with her mother in the treatment facility and Leanna placed with
her aunt and uncle because “send[ing] her to Ohio would seriously impede her mother’s
ability to reunify with her.” (Luke M., supra, 107 Cal.App.4th at p. 1419.) With respect
to Luke and Lenay, the juvenile court found placing them “with Jeffrey in Ohio would be
detrimental to their emotional well-being because of their significant bond with their
siblings. The court observed ‘the raw emotions and true sense of fear [of] separation
from [his] siblings’ when Luke testified, and emphasized ‘the record would [not] come
anywhere close to revealing the depth of that young man’s reaction to the prospect of
being separated.’” (Ibid.) In rejecting Jeffrey’s argument substantial evidence did not
support the juvenile court’s detriment finding, the Luke M. court recognized, “Although a
detriment finding may not be supportable based on [Luke’s and Lenay’s] preferences
alone, at their respective ages of 10 and eight,” their preferences—in part demonstrated
by Luke’s “demeanor,” which was “critical” to the court’s determination—in conjunction
with opinions from the social worker and . . . counselor constituted sufficient evidence
that separating the children would be detrimental. (Id. at pp. 1426-1427.)
       In contrast, Aria did not testify nor did the social worker clearly state separating
Aria from her half-siblings would cause her to suffer emotionally. Although the
Department noted in conclusory terms Aria and her half-siblings were “extremely
bonded” and recommended Aria not be separated, it is unclear whether the
recommendation was based on anything more than Aria’s adamancy; and, in any event, it
fell far short of the powerful and persuasive assessment the social worker had provided in
Luke M. (Luke M., supra, 107 Cal.App.4th at p. 1427 [“Although the social worker here
was not formally qualified as an expert, she had been working with these children for
four and one-half months, had observed them together on multiple occasions, and had

                                              8
frequently interviewed them. The social worker’s interviews with and observations of
the children and her ensuing opinion provided the court with sufficient information to
render its ruling.”].) On this record, we cannot say as a matter of law placing Aria with
H.G. would be detrimental to her emotional well-being.
       Finally, the court did not misunderstand the statutory scheme and fail to consider
the sibling bond as Mother contends. Although the court may have “want[ed] to keep
Aria together with the rest of the family,” it was “hamstrung” because it could not do so
absent clear and convincing evidence of detriment. As we have discussed, Aria’s
preference alone was not sufficient, and that is essentially what the court acknowledged
when it commented it was to take “some heed as to [the children’s] desires, but . . . they
are not adults.” Indeed, at the November 18, 2013 hearing, after noting H.G. had been
located and the Department was beginning to assess him, the court first acknowledged the
sibling bond was a factor to be considered when determining whether to place Aria with
H.G.: “At this particular point it’s really a best-interest issue, No. 1, to separate the child
from her half-siblings when she is clearly bonded to them. I’m not particularly
concerned if she said she wants to return to her mother at this particular point. But I am
more concerned with the fact that in light of even if I take father at his words, there’s still
some bonding and some relationship that has to be rebuilt.” The court then ordered
visitation between Aria and H.G. This experienced dependency bench officer clearly
understood the statutory scheme and concluded the Department had failed to meet its
burden of proving at the January 22, 2014 hearing that separating Aria from her half-
siblings would constitute sufficient determinant to warrant deviating from the statutory
preference for placing a child with a nonoffending, noncustodial parent.




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                                    DISPOSITION
      The juvenile court order is affirmed.




                                                   PERLUSS, P. J.
      We concur:



             ZELON, J.



             SEGAL, J.*




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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