Filed 8/27/15 In re K.S. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


In re K.S., a Person Coming Under the
Juvenile Court Law.

HUMBOLDT COUNTY DEPARTMENT                                           A144060
OF HEALTH AND HUMAN SERVICES,
                                                                     (Humboldt County
         Plaintiff and Respondent,                                   Super. Ct. No. JV140203)
v.
B.R.,
         Defendant and Appellant.


         K.S., the son of appellant B.R. (Father) and T.S. (Mother), was detained from
Father’s custody by the Humboldt County Department of Health and Human Services
(Agency) on allegations that Father neglected him. At the time, Mother was living in
Oregon. Following K.’s detention, the Agency found Mother to be a suitable caregiver.
The juvenile court removed K. from Father’s care, granted Mother legal custody, and
terminated dependency jurisdiction. Father contends the trial court’s findings that he
posed a substantial danger to K. and Mother presented no risk of detriment were not
supported by substantial evidence. We affirm.
                                               I. BACKGROUND
         K., then three years old, was the subject of a dependency petition under Welfare
and Institutions Code1 section 300, subdivisions (b) and (g), filed November 5, 2014.

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             All statutory references are to the Welfare and Institutions Code.
The petition alleged Father had been arrested recently on drug-related charges and, prior
to his arrest, had placed K. in danger while the two were homeless. In addition, it was
alleged Father had not made provision for K.’s care while he was incarcerated and
Mother was unable to take custody because she was living in Oregon. K. was detained
and placed in foster care.
       The Agency’s detention report stated that Father was terminated from his
employment and evicted from his apartment about four months before the detention. He
moved to a homeless encampment with K., where Father was assaulted in what was
apparently a drug-related dispute. K. witnessed the assault and was disturbed by it.
Thereafter, Father signed a “Safety Plan” with the Agency, and the Agency arranged for
the two to live at a motel. Throughout this period, Father was reputed to be a drug dealer,
and he was said to leave K. unattended or with strangers. Father was also reported to
have shot another man during an attempt to collect a debt, and there were concerns the
victim might retaliate.
       K. was detained after Father was arrested. According to a police press release,
Father was detained on an arrest warrant for brandishing a weapon, assault, and battery.
During a vehicle search, police located over an ounce of methamphetamine packaged for
sale, marijuana concentrate, and a “large amount” of cash. Father had suffered earlier
felony convictions for a variety of crimes in 1997, 2001, and 2006.
       At the time of K.’s detention, Mother was living in Oregon. While living in
California between 2006 and 2011, she had been investigated repeatedly by the Agency
in connection with alleged neglect of her children, often in association with alcohol
abuse. Father was similarly investigated for child neglect in 2013 and 2014, also in
connection with drug and alcohol abuse. In March 2014, the family court granted legal
custody of K. to Mother, but the order was stayed at Father’s request.2 Mother later



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        The report also stated, without citing a source, that legal custody of K. had been
awarded to Father 10 months prior to the detention because of Mother’s excessive
drinking. The Agency provided no explanation for the apparent contradiction. Because

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explained that she then abandoned her efforts to gain custody of K. because “[t]he trips
down from Oregon were expensive and she was nervous of coming into conflict with
[Father],” whom she feared.
       When contacted by the Agency at the time of K.’s detention, Mother asked to be
granted custody of K. through the dependency proceedings. Mother told a social worker
she had completed a program of substance abuse treatment while in Oregon and had not
abused alcohol in the last two years.
       In the detention report, the Agency noted that prior to any grant of custody to
Mother, “she should be able to demonstrate her ability to not be under the influence when
she is caring for [K.]” and said she would be required to undergo a “home evaluation.”
By the time of the jurisdictional report, filed a month later, Mother had been allowed a
visit with K., and it went well. Accordingly, the Agency recommended granting
temporary custody to Mother, and the juvenile court authorized the release of K. to
Mother pending the dispositional hearing. In the dispositional report, the Agency
concluded that K. was “safe in the care of his mother,” who had “remained in contact
with the [Agency] and has been able to adequately care for [K.]” since his detention.
       At the dispositional hearing, Father testified that he had continuous physical
custody of K. since the boy was a few months old. Father held a job for most of that
time, but he became homeless for a period of a month and a half prior to K.’s detention.
During the entire time Father had custody of K., Mother had a single, 45-minute visit.
Father said he had pleaded guilty in connection with the charges resulting from his arrest.
While he had not been sentenced, he believed he would be placed on probation rather
than incarcerated.
       The trial court awarded permanent legal and physical custody to Mother and
terminated the dependency proceeding, finding “we have a noncustodial parent who
appears to be able and willing to assume custody, . . . and the Court doesn’t find it would


the report attached a copy of the court order granting custody to Mother, the report of a
grant of custody to Father was presumably false.


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be detrimental to the child or in the child’s best interest to continue a dependency
proceeding.” Additionally, the court found by clear and convincing evidence that there
was a “substantial danger” to K.’s safety if he were returned to Father and found no
reasonable means of protecting K. other than his removal from Father’s custody.
                                     II. DISCUSSION
       Father appeals the juvenile court’s dispositional order, contending the court erred
both in removing K. from his custody and in granting custody to Mother.
       Section 361, subdivision (c)(1) precludes the juvenile court from removing a child
from the custody of a parent unless it finds, by clear and convincing evidence, “[t]here is
or would be a substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned home, and there are no
reasonable means by which the minor’s physical health can be protected without
removing the minor from the minor’s parent’s or guardian’s physical custody.” (See In
re Ethan C. (2012) 54 Cal.4th 610, 625.) The statute’s clear and convincing evidentiary
standard “ ‘demonstrates the “bias . . . is on family preservation, not removal.”
[Citation.] Removal “is a last resort, to be considered only when the child would be in
danger if allowed to reside with the parent.” ’ ” (In re A.R. (2015) 235 Cal.App.4th 1102,
1115.) While the juvenile court must apply the clear and convincing standard, “ ‘[w]e
review an order removing a child from parental custody for substantial evidence in a light
most favorable to the juvenile court findings.’ ” (Id. at p. 1116.)
       After the juvenile court removes a child from parental custody under 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).) If a qualifying noncustodial
parent is located, the court has the discretion to (1) grant legal and physical custody of the
child to the noncustodial parent and terminate dependency jurisdiction; (2) grant


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provisional custody pending a home visit; or (3) grant custody under court supervision,
while requiring the provision of reunification services to one or both parents. (Id.,
subd. (b).)
       Denial of custody to a noncustodial parent under section 361.2 requires clear and
convincing evidence that placement would be detrimental. (In re C.M. (2014)
232 Cal.App.4th 1394, 1401.) “The [noncustodial] parent does not have to prove lack of
detriment. Rather, the party opposing placement with a [noncustodial] parent has the
burden to show by clear and convincing evidence that the child will be harmed if the
[noncustodial] parent is given custody.” (Id. at p. 1402.)
       Father first contends the juvenile court’s decision to remove K. from his custody
was not supported by clear and convincing evidence of a “substantial danger” to K.’s
well-being and argues any concerns about his parenting could have been addressed by
means short of removal.
       The account of Father’s activities in the weeks preceding K.’s detention provides
substantial evidence of a threat to K. in Father’s care. Father engaged in a variety of
unlawful activities, at times involving violence and exposing Father to the threat of arrest
and detention. These activities placed K.’s safety and well-being in substantial danger,
both because they exposed K. to the possibility of violence and because they created a
risk he would be left without supervision and care. Indeed, at the time of the
dispositional hearing the possibility remained that Father would be imprisoned. Father
argues there is no evidence he neglected K. during the years prior to the events detailed in
the Agency reports. While that may be true, Father’s recent criminal behavior was not
novel or unprecedented. He suffered felony convictions for a variety of crimes in 1997,
2001, and 2006. This suggests his criminal behavior is part of a repeating pattern of
conduct, rather than an aberration.
       We also find no abuse of discretion in the juvenile court’s conclusion there was no
reasonable alternative to removing K. from Father’s custody. Father argues his
misconduct was being “resolved through a safety plan,” but Father had already agreed to
the safety plan when he engaged in the conduct leading to his arrest. Plainly, the safety


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plan provided no assurance he would act in K.’s best interests. It was reasonable for the
juvenile court to conclude there was no reliable means short of removal to protect K.
from risk.
       Father also contends the juvenile court erred in concluding Mother was a suitable
noncustodial parent, but we find little evidence to suggest placement with Mother will be
detrimental to K. It is certainly true that in past years Mother’s alcohol abuse rendered
her unsuitable. The most recent report of neglectful conduct, however, was 2011. By the
time of the proceedings, Mother had moved away from Father, completed a substance
abuse treatment program, and remained sober for two years. Less than a year prior to the
juvenile court’s decision, the family court had granted her legal and physical custody of
K. The evidence of her past conduct could therefore be discounted, and there was no
evidence, let alone clear and convincing evidence, to suggest Mother presented a current
risk of detriment to K.
       Father argues Mother presents a threat to K.’s emotional health because he is
unfamiliar with Mother, who apparently had little contact with K. prior to the dependency
proceedings. Mere unfamiliarity, however, does not constitute clear and convincing
evidence of a risk of detriment. Mother’s efforts to gain custody of K. through the family
court demonstrate her lack of contact with K. was not the result of indifference. By the
time of the dispositional hearing, K. had been living with her for two months, and there
was no report of problems.
       We agree with Father the Agency could have satisfied any doubts raised by
Mother’s past behavior by conducting a more formal investigation into her present
circumstances. Yet the Agency was well aware of Mother’s checkered history and the
need for caution. It had substantial contact with Mother during the course of the
dependency proceedings, and that contact satisfied the Agency with respect to her
competence. Ultimately, the Agency was under no burden to prove Mother’s suitability.
Rather, the burden was on Father to demonstrate unsuitability, and he failed to carry that
burden.



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       Given the lack of evidence of Mother’s present unsuitability, we find no abuse of
discretion in the juvenile court’s decision to grant Mother full custody and terminate the
dependency proceedings.
                                   III. DISPOSITION
       The juvenile court’s dispositional order is affirmed.




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                                _________________________
                                Margulies, J.


We concur:


_________________________
Humes, P. J.


_________________________
Dondero, J.




A144060


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