Filed 8/18/15 In re Eric A. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re ERIC A., et al., Persons Coming
Under the Juvenile Court Law.
                                                                 D067898
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. NJ15000 D,E)
         Plaintiff and Respondent,

         v.

RAUL A.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Michael J.

Imhoff, Commissioner. Reversed in part and remanded with directions.



         Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
       Raul A. appeals following the dispositional hearing in the juvenile dependency

case of his son, Eric A., and his daughter, A.A. (together, the children). Raul contends

there is not substantial evidence supporting the court's finding it would be detrimental to

the children to be placed with Raul in Oklahoma and the court abused its discretion by

denying his request for a continuance of the dispositional hearing. Respondent the San

Diego County Health and Human Services Agency (the Agency) concedes the first point.

We accept the concession.

                                     BACKGROUND

       In November 2014, the Agency filed dependency petitions for seven-year-old Eric

and five-year-old A.A. Together, the petitions alleged the following. The children's

mother, M.R., had custody. She had been chronically homeless and admitted suffering

from anxiety and depression. She used amphetamines and subjected the children to an

unsafe living environment. In May, A.A. was stuck by a syringe in the hotel room where

they resided. M.R. refused to participate in voluntary services.

       At the time the petitions were filed, Raul's whereabouts were unknown. At the

detention hearing, the court ordered the Agency to search for Raul. The children were

detained in the home of a maternal uncle, where they had been living since June 2014.

Also living in the home were the children's three older half-siblings (the half-siblings),

M.R.'s children. The children were bonded with their half-siblings and preferred not to

be separated from them.

       By early December 2014, the Agency had found Raul. He was living in

Oklahoma with his three children, aged eight to 17, from another relationship. Raul

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acknowledged he had a criminal history, including crimes involving violence and

substance abuse.1 He had stopped using methamphetamine when he moved to Oklahoma

several years earlier. He had left M.R. due to her methamphetamine use. He said the

children needed stability, which M.R. was unable to provide, and believed they should be

placed with him in Oklahoma. He did not feel comfortable being in San Diego County

because of the life of drugs and crime he had left behind. Raul also asked for visitation

with the children and said he would like the half-siblings to live with him. The half-

siblings viewed Raul as their father.

       The maternal uncle told the Agency that Raul had "always been involved

with . . . the children" and sent them money, gifts, school supplies and other necessities.

M.R. did not allow Raul to visit the children. When asked why Raul had not come to

California to see the children, the maternal uncle replied that Raul had remarried, had

other children to care for, knew M.R. was violent and did "not want to get in the middle

of a gang-related incident."

       In December 2014, the Agency reported that Raul had a child welfare history

consisting of four referrals between 2009 and 2012 in Oklahoma. At the time of the first

three referrals, he was living with M.R. The first referral, for neglect of Raul's two-year-

old child from a prior relationship, was unsubstantiated; the investigating social worker

concluded that Raul "had been diligent in getting medical care for the child." There is no

information in the record concerning the second referral, except that "no investigation


1    Raul said his last arrest was in 2004. According to information obtained by the
Agency, Raul's criminal history spanned the years 2002 to 2007.
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was done." The third referral alleged Raul "gets drunk two or three times a week and one

time[] when he was drunk he became very angry and gave the finger to someone and

threw a knife at the wall." During the investigation, M.R. denied the allegations but

admitted her relationship with the father of the half-siblings had been violent. The

investigation was closed as unsubstantiated. The fourth referral alleged Raul had left the

home and was no longer living with the family. M.R. behaved in a "crazy and erratic"

manner, used drugs and left the children in the care of gang members. The investigation

was closed as unsubstantiated.

       In December 2014, the Agency also reported that Eric was attending family

therapy and A.A. had "severe dental caries". When detained, A.A. had exhibited

aggressive behavior, but was no longer doing so.

       In February 2015, Raul said it was okay for the children to stay with the maternal

uncle; he wanted them to finish school and then visit him in Oklahoma for as long as

possible. He said he would cooperate with the Agency and would "take care of [the

children] no matter what." When asked whether he wished the children to come live with

him in Oklahoma even if they did not want to, Raul replied that whatever the Agency did

was okay and "I'm sure they will come to me eventually." Raul acknowledged the

children were safe with the maternal uncle and said he would not "fight him over the

kids." Raul spoke to the children regularly by telephone. At some point, he had been

aware of the neglect the children had suffered in M.R.'s care and had "hop[ed] the




                                             4
government [w]ould see that [M.R. was] crazy."2 He had not come to San Diego to

claim the children, believing M.R. would not let him have the children and he might go to

jail if he "just came and got them."

       In February 2015, the maternal uncle told the Agency that he had moved with the

children to the maternal grandmother's home. The Agency requested an evaluation of

Raul's home pursuant to the Interstate Compact on the Placement of Children (ICPC)

(Fam. Code, § 7900 et seq.).

       The jurisdictional and dispositional hearing took place in March 2015. The court

made true findings on the petitions, declared the children dependents, ordered them

removed from M.R.'s custody, found it would be detrimental to the children to be placed

with Raul and ordered the children placed with a relative. The court ordered

reunification services for Raul and M.R. For Raul, the court authorized unsupervised

visitation in Oklahoma during school breaks and unsupervised visits in San Diego and

gave the Agency discretion to arrange a 60-day visit with the concurrence of the

children's counsel. The court set a special hearing concerning progress on the ICPC and

visitation.

       The Agency requests judicial notice of minute orders from a July 27, 2015, special

hearing, set by the Agency to request that the children be placed with Raul. At the




2      The record does not disclose when Raul became aware of the neglect or the timing
and nature of the neglect to which he referred. The Agency had a voluntary services case
in place for M.R. during the six months before the petitions were filed.
                                            5
special hearing, the court set a contested hearing on the issue for August 19, 2015. We

grant the request for judicial notice.

                                         DISCUSSION

       "When a court orders removal of a child pursuant to [Welfare and Institutions

Code3] 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).) Section 361.2, subdivision (a) evidences "the Legislative

preference for placement with [the noncustodial] parent." (In re Austin P. (2004)

118 Cal.App.4th 1124, 1132.)

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

evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) On appeal, we apply the

substantial evidence standard of review. (Ibid.)

       Here, the court cited the following reasons for finding detriment. First, Raul

acknowledged being "aware of what the children were going through [with M.R.];" he

had experience "with the authorities in Oklahoma;" and "[h]e could have tried to access

some help with them in order to get some information to the State of California."

Second, Raul "had a working relationship and a good relationship with the relatives" and

he could have asked them for an update and "use[d] them in partnership to protect the



3      Further statutory references are to the Welfare and Institutions Code.
                                              6
children." Third, the proximity and support of the half-siblings was "very important to

[the children's] continued emotional development and recovery" from "the life

circumstances created by [M.R.]." Fourth, it was "incumbent [on Raul] to have [a] much

more detailed plan of where the children will be attending school [and] how they will be

maintaining their relationship with their siblings . . . ."

       The above factors do not constitute a current risk of detriment to the children.

(See In re S.O. (2002) 103 Cal.App.4th 453, 461.) The first two factors relate to Raul's

past inaction, not his current circumstances. The second two factors concern the

children's "emotional well-being" insofar as they relate to the children's close relationship

with the half-siblings. Those two factors do not constitute detriment to the children's

"emotional well-being" (In re C.M. (2014) 232 Cal.App.4th 1394, 1402-1403), however,

especially in light of Raul's own relationship with the half-siblings, his willingness to

take them into his home, his expressed desire not to disrupt the children's schooling and

his promise to cooperate with the Agency.

       In view of our conclusion that the detriment finding is not supported by substantial

evidence, we need not discuss Raul's contention regarding the court's denial of a

continuance.




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                                     DISPOSITION

       The detriment finding is reversed. The case is remanded to the juvenile court for a

further dispositional hearing based on the children's current circumstances.



                                                                 HUFFMAN, Acting P. J.

WE CONCUR:



MCDONALD, J.



MCINTYRE, J.




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