Filed 2/2/16 In re Y.I. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re Y.I., a Person Coming Under the
Juvenile Court Law.
                                                                 D068511
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. CJ1228)
         Plaintiff and Respondent,

         v.

ANGEL M.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Donal B.

Donnelly, Judge. (Judge of the Imperial Sup. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part and remanded with

directions.



         Michelle D. Peña, 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.

       Terence M. Chucas, under appointment by the Court of Appeal, for Minor.

       Angel M., the noncustodial father of minor Y.I., appeals from the juvenile court's

dispositional order placing Y.I. in foster care rather than with Angel. We agree with

Angel that there was insufficient evidence that placement with him would be detrimental

to Y.I.'s safety, protection or physical or emotional well-being under Welfare and

Institutions Code section 361.2, subdivision (a).1 Therefore, we reverse the detriment

finding and remand for a new disposition hearing.

                  FACTUAL AND PROCEDURAL BACKGROUND

       In April 2015, the San Diego County Health and Human Services Agency (the

Agency) filed a dependency petition under section 300, subdivision (a) alleging that Z.I.,

the mother and custodial parent of seven-year-old Y.I., had inflicted excessive discipline

and physical abuse on Y.I. Y.I. was detained in a foster home.

       Angel told the Agency he lived in New Jersey but spent time in Florida. He

reported having minimal contact with Y.I. over the past year and having last spoken with

Y.I. on the phone about a month before. Angel stated he had been concerned previously

about Z.I.'s physical abuse when he saw a bruise on Y.I.'s buttocks and a welt on Y.I.'s

leg when Y.I. was two years old.




1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
                                             2
       Angel appeared telephonically at the detention hearing, stating he lived in New

Jersey. The court ordered the Agency to provide voluntary services to Angel and Z.I. and

interview Y.I. regarding his relationship with Angel. The court deferred ruling on

paternity and, noting Angel remained an alleged father, denied him visitation.

       In May 2015, the foster parent asked Y.I. to be removed from her home because

he fought with the other children, hit, yelled and screamed, and acted defiantly. Y.I.'s

school reported that since his detention, he had exhibited troubled behavior: he acted

defiantly, shut down, hit and kicked his teacher, and ripped a teacher's blouse. The

school reported Y.I. was not learning because he required full-time supervision and was

not spending time in the classroom. Y.I. was suspended from school three separate times

in May 2015 after attacking a teacher and exhibiting behavioral problems. He was

moved from foster care to Polinsky Children's Center (Polinsky) and pulled from his

school for the remainder of the school year to avoid expulsion.

       On May 29, 2015, the juvenile court granted Angel presumed father status under

Family Code section 7611, subdivision (d). The court ordered supervised phone or video

visits for Angel and supervised in-person visits if Angel were to come to San Diego, with

discretion for the Agency to permit unsupervised phone or in-person visits. Although

Angel sought custody, the court deferred ruling on that issue.

       Meanwhile Y.I.'s behavioral problems continued. In June 2015, Y.I. tried to walk

out of Polinsky. He attempted to stab a staff member with a pen, threw things at her,

kicked her, followed her, and hit her. He made sexual and racial comments to three

Polinsky staff members, behaved disrespectfully, and did not follow instructions.

                                             3
       The court held a jurisdictional and dispositional hearing on June 19, 2015. The

parents waived their rights to a trial on jurisdiction, and the court entered a true finding

on the petition. Turning to disposition, Angel asked the court for custody of Y.I. under

section 361.2, subdivision (a). The court received into evidence the Agency's reports

from April, May, and June and the father's parentage inquiry; the court also heard

testimony from Angel and the social worker. 2

       Angel declined when the court asked if he wanted a continuance. The court

acknowledged lacking the information it needed "to make a well-informed, rational, and

legally justifiable decision" but proceeded to find detriment under section 361.2,

subdivision (a), so as to prevent placement with Angel. The court found that evidence

regarding Angel's past criminal and child welfare histories in Florida could not establish

detriment by clear and convincing evidence. Instead, the court found detriment based on

the potential emotional harm to Y.I. if he were placed with Angel in New Jersey. The

court determined Y.I.'s behavior was deteriorating and that uprooting him from California

to live with Angel, with whom he had had little contact, would be detrimental. The court

also found detriment based on the lack of information regarding Angel's living

environment in New Jersey.

       The court ordered Y.I. to be removed from Z.I.'s custody (§ 361, subd. (c)) and

held, by clear and convincing evidence, that it would be detrimental under section 361.2,

subdivision (a) to place Y.I. in Angel's custody, with or without services. The court



2      To avoid repetition, we will review the evidence in the discussion section.
                                              4
directed the Agency to initiate an investigation through the Interstate Compact on

Placement of Children (Fam. Code, § 7900 et seq.) or alternative means to evaluate

Angel's home environment in New Jersey. The court ordered Y.I. detained at Polinsky

pending placement in a foster home and ordered reunification services and supervised

visitation for the parents. Angel's visitation was to be by telephone, in writing, or in

person in San Diego. The court gave the Agency discretion to lift the supervision

requirement with notice to Y.I.'s counsel and discretion to begin a 60-day trial visit with

either parent with the advance concurrence of Y.I.'s counsel.

       Angel filed a timely notice of appeal.

                                       DISCUSSION

       Angel contends there is not substantial evidence to support the juvenile court's

finding of detriment under section 361.2, subdivision (a) so as to deny placement with

him. In response, the Agency contends the juvenile court properly found detriment under

section 361.2, subdivision (a), based on the potential emotional harm to Y.I. if he were to

be uprooted from California and sent to live with Angel in New Jersey. We conclude

there is not substantial evidence to support the juvenile court's finding of detriment under

section 361.2, subdivision (a) and remand for a new dispositional hearing.

                                    I. Legal Principles

       Section 361.2, subdivision (a) provides: "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

                                                5
custody of the child. If that [noncustodial] 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."

(Italics added.) 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.) Courts must make express findings, either in writing or on the record,

reflecting the basis for the detriment finding. (§ 361.2, subd. (c).)

       As the party opposing placement with the noncustodial parent, the Agency bore

the burden before the juvenile court "to show by clear and convincing evidence that the

child will be harmed if [Angel were] given custody." (In re C.M. (2014) 232 Cal.App.4th

1394, 1402 (C.M.); see In re Isayah C. (2004) 118 Cal.App.4th 684, 700; In re John M.

(2006) 141 Cal.App.4th 1564, 1569-1570 (John M.).) "Clear and convincing evidence

requires a high probability, such that the evidence is so clear as to leave no substantial

doubt." (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1262 (Patrick S.).)

       On appeal, "[w]e 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; see In re Luke M. (2003) 107

Cal.App.4th 1412, 1426 (Luke M.).) Our role on review for substantial evidence is

limited. We do not reweigh evidence or reassess the credibility of witnesses; instead, we

review the record for evidence of reasonable, credible and solid value such that a



                                              6
reasonable trier of fact could find as the juvenile court did. (In re K.B. (2015) 239

Cal.App.4th 972, 979 (K.B.).)

                                        II. Analysis

       The juvenile court rested its finding of detriment under section 361.2, subdivision

(a) on two factors: the lack of information regarding Angel's New Jersey living

environment, and the potential emotional harm to Y.I. if he were to be uprooted from

Polinsky, in light of his deteriorating behavior. As we explain, there is no substantial

evidence supporting a finding of detriment under either ground. The limited evidence

regarding Angel's prior criminal and child dependency histories in Florida, considered

and rejected by the juvenile court, does not change this conclusion.

A. Lack of Information about Angel's Living Environment

       Angel testified that since his release from prison in 2014, he lived in New Jersey

with his girlfriend. They lived on the third floor of a home owned by his girlfriend's

mother; his girlfriend's mother lived on the second floor, and a family friend lived on the

first floor. Angel traveled to Florida "[p]robably twice a year" for "[p]robably a week or

two" in connection with his work as a music engineer and promoter for artists. He was

looking for work in New Jersey. Angel testified he had an aunt and cousins in New

Jersey who lived nearby and that there were good schools near his home.

       The juvenile court stated it had no reason to disbelieve Angel's testimony but gave

it little weight, absent corroborating information about his living environment. The court

stated it lacked information regarding basic matters of food, clothing, shelter and daycare;

health, safety and welfare; and the emotional, educational and developmental support Y.I.

                                             7
would receive from Angel, Angel's live-in girlfriend, and Angel's relatives in New Jersey.

Absent this basic information, the court found Y.I. would face detriment under section

361.2, subdivision (a) if he were placed with Angel.

       As Angel argues and the Agency concedes, a lack of information about the living

environment in New Jersey does not constitute substantial evidence that could support a

finding of detriment under section 361.2, subdivision (a). John M. rejected a similar

argument, concluding a paucity of information about an out-of-state father, who was

essentially an " 'unknown entity,' " was not substantial evidence supporting a finding of

detriment. (John M., supra, 141 Cal.App.4th at pp. 1568, 1570.) Here, although the

juvenile court raised important questions about Angel's relatives and girlfriend in New

Jersey, the lack of information responsive to these questions is not substantial evidence

that would allow a reasonable trier of fact to find detriment under section 361.2,

subdivision (a) by clear and convincing evidence.

B. Potential Emotional Harm to Y.I.

       The juvenile court found Y.I.'s behavior was deteriorating at Polinsky. The court

acknowledged it was unclear exactly why Y.I.'s behavior was getting worse, stating it

"could simply be the situation at the shelter itself"; "more deep-seated problems"; or

"separation anxiety from the mother." There were no therapeutic evaluations of Y.I. to

evaluate the root cause of Y.I.'s behavioral difficulties. Nevertheless, the court credited

the Agency's evidence that during one supervised visit, Y.I. brought a potted plant for Z.I.

On this basis, the court concluded that separation from Z.I. was the cause. In view of

Y.I.'s worsening emotional state, the court concluded based on "basic common sense"

                                              8
and "life experience" that Y.I. potentially would face emotional harm if he were uprooted

from Polinsky, flown across the country, and placed in a new home with a father with

whom he had had very little contact.

       The court's hypothesis as to potential emotional harm to Y.I. is not substantial

evidence that would support a finding of detriment under section 361.2, subdivision (a)

by clear and convincing evidence. Although Y.I.'s behavior was deteriorating at

Polinsky, the court noted the cause was unclear, and no therapeutic evaluations had been

done. The court relied on evidence that Y.I. brought Z.I. a potted plant during one

supervised visit. However, the court did not make any findings that Y.I. shared an

unusually strong bond with Z.I., such that moving to New Jersey would have a

"devastating emotional impact." (Luke M., supra, 107 Cal.App.4th at p. 1426.)3

Although the social worker testified that Y.I. seemed bonded to Z.I., the court did not

make any findings to that effect. (§ 361.2, subd. (c); compare Luke M., at p. 1426

[minors' unusually strong bond with half siblings supported finding that move to Ohio

would be detrimental] with K.B., supra, 239 Cal.App.4th at p. 980 [although child loved

his maternal family, no facts to suggest moving to Virginia presented a high probability

of devastating emotional impact].) While the juvenile court appropriately considered

Y.I.'s preference for living with his mother (Patrick S., supra, 218 Cal.App.4th at




3       We disregard the discussion in Angel's opening brief concerning the "three phases
in the cycle of abuse," material that was not before the juvenile court.
                                             9
p. 1265), on its own, a "seven-year-old child's preference is not clear and convincing

evidence of emotional detriment." (K.B., at p. 980.)4

       The court found Y.I. had little prior contact with Angel.5 However, "a lack of

contact between the child and the nonoffending noncustodial parent, alone, is not a basis

for finding detriment." (K.B., supra, 239 Cal.App.4th at p. 981; see John M., supra, 141

Cal.App.4th at p. 1568 [years of no contact with out-of-state father did not support

juvenile court's detriment finding]; In re Abram L. (2013) 219 Cal.App.4th 452, 464

[alleged lack of relationship with noncustodial parent not sufficient to support a finding

of detriment] (Abram L.).) Neither Y.I.'s understandable desire to continue living with

his maternal family in the only home he remembers, nor his lack of a close relationship

with Angel, was sufficient to constitute substantial evidence of "the high level of

detriment" required under section 361.2, subdivision (a). (C.M., supra, 232 Cal.App.4th

at p. 1403.) Although the juvenile court found Y.I.'s behavior was worsening, it made no

findings that Angel would be unwilling or unable to obtain the recommended services.

(John M., supra, 141 Cal.App.4th at pp. 1570-1571 [fact that minor was troubled and in

need of therapeutic services did not support a finding of detriment absent evidence the



4     Contrary to Angel's assertion, the record does not reflect any statement by Y.I. that
he wished to "go to [Angel]'s home."

5      The social worker testified Y.I. did not remember ever living with Angel. Y.I.
remembered visiting Angel "a long time ago." He said he used to talk to him on the
phone but had not done so in a while. He had no memories of any shared experiences
with Angel. Angel testified having last seen Y.I. in February 2011, before Angel went to
prison in Florida; he had not seen Y.I. in person since his release in 2014. He stated he
spoke with Y.I. frequently by phone and videoconference.
                                             10
noncustodial, out-of-state father was unable to meet the child's special needs]; Patrick S.,

supra, 218 Cal.App.4th at pp. 1263, 1264 ["P.S.'s anxiety and diagnosis of adjustment

order, unspecified, does not support a detriment finding without a showing that his father

would not be willing or able to obtain recommended therapeutic services for him."].)

       In finding detriment on the basis of potential emotional harm to Y.I., the court

relied on "basic common sense" and "life experience" to conclude it would be detrimental

for this child to move across the country. However, a finding of detriment to the

" 'emotional well-being of the child' " under section 361.2, subdivision (a) must be made

by clear and convincing evidence―i.e., evidence "so clear as to leave no substantial

doubt." (Patrick S., supra, 218 Cal.App.4th at p. 1262.) Here, there is no substantial

evidence upon which a reasonable trier of fact could find detriment under that standard.

(In re H.B. (2008) 161 Cal.App.4th 115, 120 ["A judgment is not supported by

substantial evidence if it is based solely upon unreasonable inferences, speculation or

conjecture."].)6

C. Angel's Criminal and Child Welfare Histories In Florida

       The Agency argues Angel's criminal and dependency histories in Florida may be

considered as part of the totality of information supporting the juvenile court's detriment


6       Because we conclude substantial evidence of detriment is lacking, we need not
consider Angel's arguments that the juvenile court should have continued the disposition
hearing sua sponte, or that the juvenile court erroneously shifted the burden of proof to
require Angel to prove the absence of detriment. We note, however, that the record
reflects the juvenile court repeatedly stated the correct standard: the Agency bore the
burden of establishing, by clear and convincing evidence, that Y.I. would face detriment
were he to be placed with Angel. (§ 361.2, subd. (a); C.M., supra, 232 Cal.App.4th at
p. 1402.)
                                             11
finding. We disagree. As we explain, because the juvenile court did not credit this

evidence in making its detriment finding, we exclude it on appellate review.

       During the disposition hearing, the juvenile court received evidence regarding

Angel's past criminal and child welfare histories in Florida. Angel had been arrested in

Florida four times for aggravated assault with a deadly weapon. He was convicted of

misdemeanor aggravated assault with a deadly weapon in 2011 and was incarcerated until

May 2014. At the time of the disposition hearing, Angel had an outstanding Florida

arrest warrant for driving with a suspended or revoked license.

       Angel also had a past child welfare history in Florida, with three separate referrals.

The first referral, in January 2007, occurred about six months before Y.I. was born; it

alleged there was no parent to care for an unidentified child. Angel and Z.I. were both

incarcerated; Angel had been arrested for "disorderly conduct against his now ex-landlord

due to being evicted." The disposition of the 2007 referral is unknown. The second and

third referrals, in October 2010 and January 2011, alleged Angel left baby Y.I. alone and

inadequately supervised. The latter referrals were found to be "not substantiated," and

Z.I. and Angel refused voluntary services.7




7       The record does not explain the meaning of "not substantiated." In California, a
" '[s]ubstantiated report' means a report that is determined by the investigator . . . to
constitute child abuse or neglect . . . based upon evidence that makes it more likely than
not that child abuse or neglect . . . occurred." (Pen. Code, § 11165.12, subd. (b).) An
" '[i]nconclusive report' means a report that is determined by the investigator . . . not to be
unfounded, but the findings are inconclusive and there is insufficient evidence to
determine whether child abuse or neglect . . . has occurred." (Id., subd. (c).) An
" '[u]nfounded report' means a report that is determined by the investigator . . . to be false,
                                              12
       The juvenile court did not credit the evidence of Angel's criminal or child welfare

histories in Florida in finding detriment. The court noted that the facts underlying

Angel's charges were unknown, and the court could not determine whether the offenses

involved "the kind of force or violence that would spill over to children within [the]

father's home[.]" Likewise, there was insufficient information about the Florida

dependency referrals to support a finding of detriment. The court noted it lacked

information regarding what transpired and whether Angel did anything to precipitate the

referrals. Moreover, the court found Angel's failure to participate in services in the

Florida dependency actions was not relevant absent evidence he had been ordered to

participate in services or offered such services.

       The Agency's reference to Angel's past criminal and dependency histories in

Florida is unavailing. Because the juvenile court did not credit this evidence, we do not

consider it on appellate review. (In re I.J. (2013) 56 Cal.4th 766, 773 [on review for

substantial evidence, " ' "[w]e do not reweigh the evidence or exercise independent

judgment" ' "]; Associated Builders & Contractors, Inc. v. San Francisco Airports Com.

(1999) 21 Cal.4th 352, 374 [where two or more inferences may be drawn, "the reviewing

court has no power to substitute its deductions for those of the fact finder"].)

                                    IV. CONCLUSION

       In sum, there is no substantial evidence that would allow a reasonable trier of fact

to find detriment under section 361.2, subdivision (a) by clear and convincing evidence.


to be inherently improbable, to involve an accidental injury, or not to constitute child
abuse or neglect . . . ." (Id., subd. (a).)
                                             13
Section 361.2, subdivision (c) requires a court to make express findings, either in writing

or on the record, for the basis of its determination under subdivision (a). Where, as here,

the juvenile court fails to make express findings that support a finding of detriment, "it is

inappropriate to make implied findings." (Abram L., supra, 219 Cal.App.4th at p. 462.)8

Therefore, we remand the cause to the trial court for a new disposition hearing on the

issue of placement of Y.I. with Angel under section 361.2, subdivision (a). At the

disposition hearing following our remand, the juvenile court is directed to make express

findings to support a detriment finding by clear and convincing evidence. On remand,

the court may, of course, take into account circumstances and events that have taken

place subsequent to the disposition hearing on June 19, 2015.

                                       DISPOSITION

       The detriment finding is reversed, and the matter is remanded to the juvenile court

with directions to hold a new dispositional hearing on the issue of placement of Y.I. with

Angel under section 361.2, subdivision (a), in a manner consistent with this opinion. On

remand, the court may consider new evidence or changed circumstances since the




8       "Ordinarily, of course, appellate courts will indulge all reasonable inferences
favorable to the judgment. But this familiar doctrine becomes potentially subversive
where the Legislature requires the trial court to make an express finding. Such a
requirement may be deprived of all force if appellate courts feel free to infer a supporting
finding where the trial court has left the record silent. For that reason the doctrine of
implied findings may be given limited scope where an express finding is required." (In
re J.S. (2011) 196 Cal.App.4th 1069, 1078.)
                                             14
pendency of this appeal. In all other respects, the dispositional findings and orders are

affirmed.



                                                                            O'ROURKE, J.

WE CONCUR:



MCDONALD, Acting P. J.



IRION, J.




                                             15
