Filed 7/15/16 In re J.L. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


In re J.L. et al., Persons Coming Under the
Juvenile Court Law.

ALAMEDA COUNTY SOCIAL                                                A147211
SERVICES AGENCY,
                                                                     (Alameda County
         Plaintiff and Respondent,                                    Super. Ct. Nos. OJ13021089,
v.                                                                    OJ13021090)
J.L.,
         Defendant and Appellant.


         The twin daughters of appellant J.L. (Father) were taken from the custody of their
mother (Mother) in June 2013. Although Mother suffered from substance abuse and
mental illness, Father had left the children in Mother’s care a year earlier when he was
charged with abusing Mother. After the dependency proceeding was commenced, Father
delayed becoming involved for several months. In part as a result of these delays, he was
denied reunification services. Later, at a hearing conducted pursuant to Welfare and
Institutions Code section 366.26,1 the juvenile court found that return of the children to
Father would be detrimental to their emotional well-being and terminated Father’s
parental rights. We affirm.




         1
             All statutory references are to the Welfare and Institutions Code.
                                     I. BACKGROUND
       In June 2013, the Alameda County Social Services Agency (Agency) filed
dependency petitions in connection with E.L. and J.L. (twins), the two-year-old twin
daughters of Father and Mother. The petitions alleged Mother was no longer willing and
able to care for the twins as a result of financial difficulties, due in part to her substance
abuse. (§ 300, subd. (g).) Mother was also alleged to suffer from poorly treated bipolar
disorder.
       As detailed in our prior opinion in this matter, In re J.L. (Nov. 10, 2015, A144486)
[nonpub. opn.] (J.L. I)), the twins had lived in Father’s home for the first 18 months of
their lives. Mother left with them in May 2012, after Father was arrested on a charge of
domestic violence against her, and they had no further contact with him until after
commencement of these proceedings. Father learned of the proceedings in July 2013, but
he did not seek visitation with the twins until December.2 Father’s status was elevated to
presumed father in March 2014, just one week before the juvenile court terminated
Mother’s reunification services and scheduled a section 366.26 permanency planning
hearing. Although Father’s attorney made an unsuccessful oral motion for reunification
services at that time, it was not until late June 2014 that a proper written section 388
petition for modification granting Father reunification services was filed. By that time,
Father had completed only four visits with the twins. In the meantime, the twins had
developed a strong relationship with their foster parent, Mother’s sister, with whom they
had been placed in September 2013. Father continued to have twice-monthly visits
thereafter, but he had little contact with the twins outside of the visits. In January 2015,
the trial court denied Father’s section 388 petition, concluding the twins’ interests would
be better served by a permanent placement with their aunt, who was willing to adopt
them, than the possibility of reunification with Father. We affirmed that decision.
       The section 366.26 hearing, scheduled to begin the month following denial of the
section 388 petition, did not conclude until November 2015. In reports filed in

       2
           As a result of Agency delays, the visits did not actually begin until May 2014.


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connection with the hearing, the Agency recommended termination of the parents’
parental rights and adoption by the aunt. The twins were, by that time, over four years
old and had not lived with Father for nearly three years. They were thriving in the home
of their aunt, whom they referred to as their mother. Through June 2015, Father
continued to have regular visits with the twins, but he had little other contact, despite the
aunt’s willingness to permit telephone calls. The twins were comfortable with Father and
enjoyed their visits, but he played little, if any, other role in their lives.
       During the hearing, Father testified that he had no contact with the twins from
May 2012 until visitation began in this proceeding because he was subject to a domestic
violence restraining order. In the fight that led to entry of the restraining order, he
claimed to have merely responded to violence by Mother, who was “frequently” violent.
In connection with the subsequent domestic violence charge, Father attended a domestic
violence course. Although Father had been concerned about leaving the twins with
Mother, who was mentally unstable and a substance abuser, he made no attempt to check
on their well-being or assist Mother in obtaining drug treatment after the restraining order
was entered. Father acknowledged a 2008 or 2009 conviction for possession for sale of
cocaine and said he completed his probation several years ago. Father did not attend any
drug treatment programs in connection with the conviction.
       The responsible social worker also testified. She said the Agency recommended
adoption as the permanent plan because the twins had successfully accepted their aunt as
a parent and were “very much connected” to her. In her care, they had overcome the
anxiety they displayed at the time of their detention. The social worker was concerned
Father’s domestic violence was more severe than he acknowledged. Having reviewed the
police report and spoken to Mother about the incident, the social worker testified that
Father attempted to choke Mother in the presence of the twins, leaving bruises. Further,
she had examined the restraining order entered against Father and noted it allowed him to
visit with the twins. According to the social worker, the twins did not view Father as a
parent or caregiver because he was absent from their life for nearly two years, had only



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semi-monthly visits with them after that, and had little contact with them outside the
visits.
          The juvenile court adopted the Agency’s recommendation and terminated Father’s
parental rights, finding by clear and convincing evidence that placement of the twins with
him would be detrimental. Explaining its finding, the court noted Father’s apparent lack
of interest in the twins’ well-being after the restraining order was entered, his present lack
of contact with them outside of scheduled visits, his history of domestic violence and
drug abuse, and the lack of a strong emotional bond between Father and the twins,
particularly when compared to the bond between the twins and their aunt. As the court
said, Father “has not demonstrated during these proceedings a strong interest or priority
in assuming a parental role in the children’s lives and he does not occupy that role now
despite visitation.”
                                       II. DISCUSSION
          Father contends the order terminating his parental rights must be reversed because
the juvenile court’s finding that placement of the twins with Father would be detrimental
is not supported by substantial evidence.
          Before a parent can be deprived of his or her constitutional right in the care and
custody of a child, a court must find by clear and convincing evidence that the parent is
unqualified. (Santosky v. Kramer (1982) 455 U.S. 745, 747–748.) That determination
ordinarily occurs at the dispositional stage in a California dependency proceeding, which
requires a finding by clear and convincing evidence that “placement with [the] parent
would be detrimental to the safety, protection, or physical or emotional well-being of the
child” before a parent can be denied custody of his or her child. (§ 361.2, subd. (a); In re
Liam L. (2015) 240 Cal.App.4th 1068, 1081.) If that finding is made at the time of the
dispositional hearing, no further finding of detriment is necessary prior to the termination
of the parent’s parental rights in the child. (Cynthia D. v. Superior Court (1993)
5 Cal.4th 242, 253–254.) If no finding of detriment is made with respect to a particular
parent at the dispositional stage, however, that parent’s parental rights cannot be
terminated at a later stage in the proceedings unless the juvenile court, at that time, makes


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a section 361.2 finding of detriment on the basis of clear and convincing evidence. (In re
T.G. (2013) 215 Cal.App.4th 1, 20.)
       “In general, under the detriment standard, it is not the nonoffending parent’s
burden to show that she is capable of caring for her child. Instead, the party who is
opposing placement has the burden to show by clear and convincing evidence that the
child will be harmed if the nonoffending parent is given custody.” (In re Jonathan P.
(2014) 226 Cal.App.4th 1240, 1256.) “A detriment evaluation requires that the court
weigh all relevant factors to determine if the child will suffer net harm.” (In re Luke M.
(2003) 107 Cal.App.4th 1412, 1425.) In doing so, the 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.)
The detriment standard, while “vaguely worded to be sure, must be construed as a fairly
high one.” (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789; see In re
Patrick S. (2013) 218 Cal.App.4th 1254, 1263 (Patrick S.) [“When the parent is
competent, the standard of detriment is very high.”].)
       “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. Clear
and convincing evidence requires a high probability, such that the evidence is so clear as
to leave no substantial doubt.” (Patrick S., supra, 218 Cal.App.4th at p. 1262.)
       As we discussed in J.L. I, once reunification services have been terminated, the
state’s interest requires the court to focus its efforts on the child’s placement and well-
being, rather than on the parent’s interest in regaining custody. (In re Marilyn H. (1993)
5 Cal.4th 295, 307.) When a parent appears in his or her child’s dependency proceedings
for the first time after attempts to reunify the child with the other parent have been
unsuccessful, that parent’s untimely appearance does not alter the statutory context of the
section 366.26 hearing, which is focused on the child’s interest in permanency and
stability. (Marilyn H., at p. 309; In re A.S. (2009) 180 Cal.App.4th 351, 361 [court may


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terminate the parental rights of a previously noncustodial parent without having made a
dispositional finding that he or she is an unfit parent].)
       We find substantial evidence to support a finding of emotional detriment in these
circumstances. By the time the section 366.26 hearing was concluded, the twins had
been living with their aunt for nearly half their young lives, and they had come to accept
her as their parent. The stability they found in her home helped them overcome the
anxiety created by their chaotic life with Mother. In contrast, their time with Father since
he left them with Mother three years earlier had been fairly limited, and they did not see
him in a parental role. As the juvenile court noted, their removal from their aunt’s home
in favor of custody with Father would have been seriously emotionally disturbing, at a
minimum.
       There were also, as the juvenile court noted, reasons for doubting Father’s
competence in parenting the twins. Father was well aware of Mother’s violence and
emotional instability, yet he essentially abandoned the twins to Mother’s care when they
were 18 months old. Although the terms of his restraining order permitted him contact
with the twins, he neither saw them nor spoke to them for nearly two years. Once they
were removed from Mother’s custody, Father still made little attempt to assert his
parental rights or even become involved in their lives. He was notified by the Agency of
the dependency proceedings in July 2013, but he did not even seek visitation with the
twins until December. It was January 2014 before he expressed an interest in custody,
and he did not become formally involved in the dependency proceedings until March,
when he was declared a presumed father. Since then, while he has visited with the twins
twice a month, he has made little additional effort to establish a bond with them. In other
words, Father’s attitude toward assuming parental responsibility for his children has
been, at best, ambivalent, providing the court with no assurance he would be a reliable
parent. Compounding this was the serious nature of the incident of domestic violence
against Mother, which Father minimized rather than acknowledging frankly.
       Father contends it was improper for the court to consider “what it perceived to be
delays in [Father] coming forward to assert rights, his limited visitation with his


                                               6
daughters, and the length of time [the twins] had been in placement” because, while
Father “did contribute to some limited delays,” the delays were primarily due to the
Agency. The argument badly mischaracterizes the record. The most troubling aspect of
Father’s history was his decision to leave the twins in Mother’s care, knowing her to be
violent and unstable. The Agency had no responsibility for that decision. Once the
dependency proceeding began, the Agency promptly notified Father by telephone of the
proceeding, but he delayed substantive involvement for months. While it is true the
Agency failed to provide Father proper written notice, Father’s participation was not
dependent upon such notice. The Agency was responsible for a four-month delay in
commencing visitation, but that is the extent of the Agency’s fault. It is simply not true,
as Father argues, that he “could not have done much more any sooner.” We find no error
in the juvenile court’s consideration of Father’s past conduct with respect to the twins in
evaluating detriment.
       Father also contends the juvenile court should not have considered the incident of
domestic violence because it occurred three years prior to the section 366.26 hearing and
he had attended a domestic violence program. We do not agree that Father’s domestic
violence was rendered irrelevant by the passage of three years. As the social worker
noted, it was a seriously violent incident committed in the presence of the twins. Further,
while Father’s program attendance might mitigate to some degree the concern, his
testimony at the hearing, in which he minimized the degree of violence and effectively
blamed the incident on Mother, demonstrates that the lessons presumably taught in the
program were not fully absorbed. In any event, we do not understand the juvenile court
to have placed decisive importance on the incident of domestic violence in finding
detriment. For the reasons discussed above, the twins’ well-established bond with their
aunt, the lack of a comparable bond with Father, Father’s past failure to protect the twins,
and his current failure to pursue stronger bonds with them constitute substantial evidence
of detriment if the twins were placed with Father.
                                   III. DISPOSITION
       The orders of the trial court are affirmed.


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                                _________________________
                                Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.




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