In re E.S. CA4/1

• Court: California Court of Appeal
• Decided: August 12, 2014
• Docket: D065689
• Status: Unpublished

Opinion

Filed 8/12/14 In re E.S. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re E.S., a Person Coming Under the Juvenile Court Law. D065689 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. EJ003767) Plaintiff and Respondent,

v.

E.S.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Gary Bubis,

Judge. Affirmed.

William Hook, under appointment by the Court of Appeal, for Defendant and

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

Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and

Respondent.

Dependency Legal Group of San Diego and Tilisha Martin for Minor.

Defendant and appellant E.S. (father) appeals the juvenile court's order from the

contested jurisdictional/dispositional hearing that it would be detrimental to place then

one-year-old E.S. (minor) with him pursuant to Welfare and Institutions Code1 section

361.2, subdivision (a). Father alternatively contends the court erred when it refused to

place minor with minor's paternal grandmother. Affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff and respondent San Diego County Health and Human Services Agency

(agency)2 on January 23, 2014 filed a petition under section 300, subdivision (e)

(petition) on behalf of minor after agency received a referral from a child abuse hotline

on January 17, 2013 alleging physical abuse of minor. The petition alleged that minor

"suffered severe physical abuse, including multiple extensive bruises to her face

consistent with forceful grabbing, [hair loss] on the top of her scalp consistent with

forceful grabbing, a skull fracture with soft tissue swelling and two round circular scars

1 All statutory references are to the Welfare and Institutions Code.

2 Pursuant to California Rules of Court, rule 8.200(a)(5), minor's counsel submitted an informal letter brief joining the arguments and position of the agency. 2 to her right shoulder from a previous bruising injury inflicted by her parent or by a person

the parent reasonably should have known was inflicting the injuries . . . ."

Agency's January 23, 2014 detention report noted an agency social worker

responded to minor's home, observed minor's injuries and instructed minor's mother, C.S.

(mother),3 to take minor to Rady Children's Hospital (Rady's) for examination. An

examining physician from Rady's concluded minor's injuries were concerning for

inflicted injury and, as a result, minor was taken into protective custody on January 17,

2014. Minor was examined the following day by a child abuse expert who also

concluded minor's injuries were nonaccidental.

The January 23 detention report included an in-person interview of mother's

boyfriend, J.H. (boyfriend), who had been caring for minor over the last couple of months

while mother was working. Boyfriend reported minor received the bruises to her face a

week earlier when they were playing a "'chasing game,'" and minor lost her balance, fell

forward and hit her forehead on the left side of a wood dresser. In response to how minor

received the bruises to her shoulder and chin, boyfriend responded that about a week

earlier minor had incorrectly put on boyfriend's shirt, which had two snaps at the top of

the collar, and that the snaps caused the bruising when they pressed against minor's

shoulder; with regard to the bruises on the chin, boyfriend reported that minor received

them when she rested her chin on the top of a wooden crib and/or when she was in her

(padded) playpen.

3 Mother is not a party to this appeal. 3 Boyfriend denied hitting or spanking minor and stated he used timeouts to

discipline minor. When asked by agency social worker Maria Araiza about concerns

expressed by neighbors over minor's welfare, boyfriend dismissed them and stated that

one of the neighbors "'ha[d] a thing for [mother]'" and spoke to mother "'for comfort.'"

Araiza interviewed the neighbor. He reported that about a month earlier he

noticed a "knot" on minor's head. At that time, mother told the neighbor that minor had

fallen off a table. However, when the neighbor subsequently saw pictures taken by

another neighbor showing bruises on minor's face, he became concerned. Thus, on

January 16, 2014 when he heard minor crying, the neighbor went to the apartment of

mother and boyfriend, found the door open and saw boyfriend drying off minor on the

living room floor after bathing minor. The neighbor reported minor was on her back. He

next saw boyfriend "grab[] [minor] by the ankles and flip[] her over causing [minor] to

land on her face." The neighbor also heard boyfriend using "foul" language toward

minor. The neighbor notified mother of this incident.

The detention report included several in-person interviews of mother. Mother

identified defendant and appellant E.S. as minor's father. Mother reported they were

married in 2011 and separated in October 2013. Mother also reported that father was

being discharged from the military because he tested positive for marijuana. Mother

stated father did not pay any child support.

Mother described minor as "clumsy," particularly because minor had recently

learned to walk. Mother stated boyfriend was "very caring" towards minor and was the

4 "'only father that [minor] knows.'" She also stated that minor "'loves'" boyfriend; that

minor showed no fear of him; and that boyfriend did not cause the injuries sustained by

minor. When Araiza told mother that minor had a skull fracture, mother began to cry but

repeated that boyfriend "'would not lay a hand on [minor,] I know it.'"

The next day, when Araiza arrived for another in-person interview with mother

and boyfriend, mother stated she had been trying to call Araiza that morning to explain

how minor received the skull fracture. Mother then recounted how minor fell and hit her

head on the tile floor in their apartment sometime between early December and

Christmas 2013.

The detention report included an in-person interview of father conducted on

January 21, 2014. He reported he was being discharged from the military because mother

had called his commanding officer and reported father used marijuana, which led to a

failed drug test. Father stated he had not seen minor for three weeks.

Father reported he maintained regular contact with minor, including on weekends,

but that it had been about a month and a half since he last had her for an overnight visit.

Father stated until recently he had no concerns about minor's welfare because he

considered mother to be responsible and "'good'" to minor. Father also stated he became

concerned about minor when he saw her with a black eye in mid-December 2013, but

mother told him that minor had fallen and hit the door.

Father reported he heard from one of mother's neighbors on January 16, 2014 that

minor was being abused. Father did not go to mother's apartment then to check on minor,

5 however, because the neighbor was calling police and because father believed he and

mother would have ended up arguing. Father reported he wanted custody of minor and

planned to move to Roseville, California to live with minor's paternal grandparents.

At the January 23, 2014 detention hearing, the court found that E.S. was minor's

presumed father and that a prima facie showing had been made minor was a person

described by section 300, subdivision (e), and, as such, ordered minor detained in foster

care. The record shows the court ordered reunification services including "crisis

intervention, case management, transportation and counseling." The court also ordered

supervised visitation between minor and minor's parents.

In the March 10, 2014 jurisdiction/disposition report, Araiza recommended minor

be declared a dependent of the juvenile court and placed in a licensed foster home.

Araiza also recommended the parents continue to receive reunification services and have

supervised visits with minor.

The March 10 jurisdiction/disposition report included several in-person interviews

between agency social workers and mother. As relevant to the instant appeal, mother

reported father drank alcohol "'every night,'" was a "'heavy drinker'" and spent $200 or

more each week on alcohol. Mother denied any domestic violence in her relationship

with father. Mother also stated that boyfriend was not responsible for minor's injuries;

that she did not trust any of the doctors or their explanations regarding the cause of

minor's injuries; and that minor was taken from her as a result of complaints by her

neighbor.

6 In response to whether mother could have done anything differently to protect

minor, mother told Araiza that she "'did everything humanly possible to protect [minor]'";

that there was nothing she could have done differently; and that minor was safe around

boyfriend because mother knew him as they had been "dating . . . for approximately four

months."

The jurisdiction/disposition report states mother reported that while mother and

father were waiting for a court hearing on February 18, 2014, father showed her a picture

of a "'three foot bong'" he had just purchased with their tax return money. Mother also

reported that she was "'done'" trying to "'protect'" father; that she was upset father was

seeking custody of minor; and that minor was not a priority for him.

During this same interview, mother reported that father had a history of smoking

marijuana and that they both started smoking marijuana on an everyday basis starting in

the spring of 2013, when she obtained her medical marijuana card. Mother indicated she

did not trust father taking care of minor, as he had not made any lifestyle changes and

continued to smoke marijuana, was unemployed and was not living with the paternal

grandparents as he claimed, but instead was staying with friends. Mother also reported

the paternal grandmother was going through cancer treatment and, thus, mother did not

believe the paternal grandmother was in a position to support father, who, according to

mother, had "never cared for [minor] for more than a few hours."

The jurisdiction/disposition report noted that Araiza attempted to contact father

numerous times after the January 23, 2014 detention hearing by calling his mobile phone

7 and leaving messages, but that father did not return her calls or call the agency in

response. Araiza and another agency social worker were able to speak with father by

telephone on February 5, 2014, however. During that interview, father denied using

marijuana with mother, denied he had a problem with alcohol and stated the last time he

had smoked marijuana was on his birthday on January 28, 2014.

Father reported that while he and mother were married and living together, mother

would bring boyfriend to their home when father was away; that when father got home,

mother and boyfriend sometimes would be "'hanging out'" together; that, on one occasion

when father came home from work, he found them together in his home and asked

boyfriend to leave, but boyfriend refused; and that, on this occasion, father went into his

bedroom and locked the door in order to get some sleep. When asked about minor, father

reported on this occasion she was sleeping in her bedroom in another part of their home.

Father also reported that when they separated in October 2013, father paid the

security deposit on mother's new apartment, knowing that boyfriend and mother would be

living together along with minor. Father admitted he did not ask mother about boyfriend

or seek any information about him from mother; when asked why not, father stated he

"'assumed [mother] would make good decisions.'"

Father reported he did not attend minor's first birthday party because he believed

that boyfriend would be in attendance, which made father "feel 'weird.'" Father also

reported he was discharged from the military on January 22, 2014 because he had

purchased marijuana for mother.

8 When asked about minor's injuries, father reported he believed boyfriend "'was

smacking [his] daughter around.'" Father did not believe mother "'did this'" to minor,

however, because mother was a "'good mom.'" When Araiza again asked about minor's

black eye that father had seen in December 2013, father repeated mother had told him

that minor had fallen and hit her head on the door. When Araiza informed father that

mother had explained to Araiza that minor had fallen and hit her head on a toy wheel,

father immediately agreed that he had given the wrong explanation and that mother was

correct. Father denied changing his story to protect mother and reiterated that mother

was not responsible for minor's injuries and that she was a"'good mom.'"

Father reported that one of mother's coworkers contacted him on January 16, 2014

concerned about minor's welfare. When asked why father did not go and pick up minor

after he received this call, father stated he wanted to avoid a fight with boyfriend. When

asked if he had called police to do a "welfare check" on minor, father said he did not

because he had been told law enforcement already had been called. When asked if he

would have done anything differently, father stated, "'I don't know what I could have

done.'"

The record shows Araiza spoke to father by telephone on or about February 19,

2014 when father was living with the paternal grandparents in Roseville and after father

and the paternal grandmother had visited minor. Father reported he wanted minor placed

with him. In response, Araiza asked why father had not shown more interest in minor

since she had been removed from mother, including calling minor's foster mother to

9 check in on minor or calling agency to learn what he needed to do to reunify with minor.

Father stated that he called mother for updates regarding minor and that he trusted what

mother told him about minor. Father also stated that he called minor's foster mother but

did not leave voicemails "because in the military he [i.e., father] has been trained to be

careful with personal information."

During this same telephone interview, Araiza told father if he wanted minor

placed with him he needed to make his daughter a priority. Father reported that while he

was living with the paternal grandparents, he did not always stay with them because it

was "'hard to live with [his] parents again, but if [minor was] placed with [him] then [he

would] live there.'" Araiza reminded father to enroll in parenting classes and find a

therapist. Father in response said he preferred not to participate in individual therapy.

Araiza told father that his participation in such services was completely voluntary.

The March 10 jurisdiction/disposition report also included the summary of a

February 13, 2014 telephone interview initiated by father's mother, minor's paternal

grandmother. She reported to Araiza that she was then receiving cancer treatment two

times per month but that she had two daughters who lived nearby that also could help in

caring for minor. The paternal grandmother then asked Araiza if father was "doing

everything he has been asked to do by the Agency" with respect to minor. Araiza

responded father had recently started communicating with her but had not called the

foster parents to check on minor, which Araiza found "very concerning." The paternal

grandmother stated in response, "'That's what I figured. That's why I'm calling.'"

10 The jurisdiction/disposition report included the following summary of a

conversation between Araiza and the paternal grandmother:

"I [i.e., Araiza] explained to the paternal grandmother that it is the father's

responsibility to call the Agency and to check on the well being of [minor]. The paternal

grandmother reported that she has been asking him [i.e., father] if he had called the social

worker. She stated, 'I got the F U, when I asked him why he was not calling you.' I

asked her if the father is living in her home at the time. She stated, 'His stuff is here, but I

have not seen much of him. He has not been spending the night here.' She reported that

she has advised the father to call and follow up on what he needs to do in order to have

[minor] in his care. She stated, 'If she was my child I would stop at nothing to get her

back.' I asked the paternal grandmother if she was surprised that the father had not been

in communication, she stated, 'No.' She reported that the father has not been sharing any

information with her or her husband. I informed the paternal grandmother that I was

encouraging the father to attend the next Court hearing. She asked if she could come

with him so that he could visit with [minor.] I encouraged her to be a support to the

father."

As to father, the jurisdiction/disposition report concluded as follows:

"[H]e has not demonstrated that he can be protective of [minor] or that [minor] is a

priority for him at this time. On 1/16/2014 the father was contacted and informed by the

mother's neighbor that [minor] was at risk of physical abuse and the father took no action

to protect [minor] because he says he wanted to avoid a fight with [boyfriend]. This

11 indicates that his daughter's safety was not important to him at that critical moment and

he chose to put his daughter's life in the hands of the neighbor who is a stranger to him.

In addition, the father failed to communicate with the Agency from 1/23/2014 to

2/5/2014 until the mother contacted him and put him in contact with PSW Araiza. As of

2/18/2014 the father had not had any contact with [minor] and failed to communicate

with [minor's] foster parents to check on [minor's] wellbeing especially since he is

unemployed and has additional free time. The Agency would like to see the father

demonstrate that he wants to put [minor's] needs ahead of his own . . . and wants to make

[minor] a priority in his life. It is unknown if the father can or is willing to be protective

of [minor] to avoid further abuse to [minor]. On 1/22/2014 the father was discharged

from the [military] due to substance abuse and tested positive for marijuana on

2/18/2014."

The March 18, 2014 addendum report summarized a March 13, 2014 telephone

conversation between Araiza and the paternal grandmother, which took place a few days

after a Placer County social worker had visited the paternal grandmother's home.4 After

4 At the March 18 contested jurisdictional/dispositional hearing, the record shows father objected to the admission of the March 18 addendum report on the basis his counsel had not yet had an opportunity to interview the Placer County social worker and the paternal grandfather, whose statements/observations were included in that report. The court in response admitted the March 18 addendum report with the exception of these statements/observations. It does not appear from the record that the portions of the addendum report excluded at the March 18 hearing were subsequently admitted at the continued hearing held on March 24, 2014. Nonetheless, in his briefing, father relies on portions of the March 18 addendum that were excluded at his request, when he contends the court abused its discretion by failing to place minor with the paternal grandmother. Even if we considered the (allegedly) excluded portions of the March 18 addendum report, however, we would still affirm the juvenile court's order in this case. 12 becoming aware that the paternal grandfather smoked marijuana for a medical condition,

Araiza asked where it was kept at the house. The paternal grandmother in response

"paused and stated, 'I don't think he keeps any here.'" When Araiza asked again where

the marijuana was stored, the paternal grandmother "again paused and appeared to sound

hesitant to respond, [then] stated, 'He gets it from [father].'"

The paternal grandmother reported in this same telephone conversation that father

had stopped smoking marijuana. She also reported that she and her daughter (paternal

aunt) had decided father no longer could go to the paternal aunt's home because the

"paternal aunt's boyfriend and the father were playing video games and smoking

marijuana all day."

The paternal grandmother also reported that she and the paternal aunt had prepared

a room in the paternal grandmother's house for minor; that she and the paternal aunt had

purchased all the supplies for minor's room and had spent all day decorating the room;

that, if necessary, she would be willing to take guardianship of minor; and that she was

excited to care for minor. The paternal grandmother said father had not paid for any of

the baby items and had not invested any time in preparing minor's room.

The paternal grandmother reported she was disappointed father did not personally

attend the court hearing on March 10, 2014. According to the paternal grandmother, she

and father had planned to drive to San Diego for that hearing, but the day before they

were set to leave, father stated they were not going because "'it was not worth spending

all the money to visit with [minor] for an hour.'" The paternal grandmother also reported

13 she was upset by father's decision and believed it was important for them to visit with

minor. Araiza, in response, told the paternal grandmother that father needed to set up

visits with the foster mother ahead of time in order to visit with minor longer and that it

was "father's responsibility to take [the] lead [in] this situation."

The March 18 addendum report shows Araiza also spoke to father the same day

Araiza had spoken to the paternal grandmother. When asked by Araiza why he did not

personally attend the March 10, 2014 hearing, father responded his "'front right tire and

brakes needed to be looked at and [he] was not able to take [the car] in. Three tires were

good and one was ready to pop at any time.'"

Father reported he had signed up for parenting classes that were set to begin on

March 24, 2014. He also reported he had stopped smoking marijuana. With regard to the

bong father had purchased, he stated he gave it and the rest of his marijuana away.

Araiza in the March 18 addendum report noted mother called the same day (i.e.,

March 13, 2014) and stated she did not want minor placed with father. Because mother

was crying, Araiza found it hard to understand mother. Araiza recommended mother

write down her concerns and address them with the court at the upcoming hearing.

At the March 18, 2014 contested jurisdictional/dispositional hearing, the juvenile

court admitted the above reports (with certain exceptions, as noted ante in fn. 4). As

relevant here, Araiza testified it would be detrimental to place minor with father. She

testified that although father was not present when minor suffered the injuries, he did not

take steps to protect minor. As an example, Araiza noted father's response, or lack

14 thereof, to the neighbor's January 16, 2014 report that minor was at risk. In that instance,

father had not called police, had not gone and picked up minor or taken other steps to

ensure that minor was no longer at risk of abuse, and had not followed up to check on

minor's welfare.

Araiza testified that after minor was removed from mother's care, father failed to

communicate with agency and minor's foster mother, including scheduling visits to see

minor. Father instead waited almost a month after minor was placed in foster care to

contact the foster mother. Moreover, after the January 23, 2014 detention hearing, Araiza

noted father never called to check on minor, including to ensure she was recovering from

what were serious injuries.

Araiza also testified that father had a history of substance abuse for marijuana and

smoked marijuana on a "regular basis." Araiza noted father had tested positive for

marijuana on February 18, 2014 and had been discharged from the military because of

marijuana use.

When father saw minor in mid-December 2013 and noticed the child had a black

eye, Araiza testified that father did nothing because he was afraid of boyfriend, even

though boyfriend was caring for minor. Moreover, at the team decisionmaking meeting

(TDM) in early February 2014, Araiza noted that father (who participated by telephone)

did not object to boyfriend's participation in that meeting until after it had ended, despite

the fact father believed boyfriend was responsible for minor's injuries; that father seemed

unwilling or unable to stand up to mother and, thus, father might allow mother and/or

15 boyfriend to have contact with minor; and that because of his passivity and his past

behavior, father was not able to protect minor, particularly when agency still had

concerns about mother and her role in minor's injuries and when father continued to

believe mother was not the cause of minor's injuries and was a "good mom."

Araiza also believed it would be a detriment to place minor with father because

mother reported father also drank alcohol excessively; while living in Roseville, father

regularly went to the home of the paternal aunt (who also would help with the care of

minor), smoked marijuana and played video games with the paternal aunt's boyfriend; the

paternal grandfather also smoked marijuana; the paternal grandmother was undergoing

chemotherapy twice a month and took medication that at times depressed her immune

system and/or required her to rest; father never parented minor on his own and was not a

"hands on parent" with respect to minor; father only visited minor about three or four

times in the four months before the hearing; and, despite being given referrals by the

agency in early February 2014, father delayed in enrolling in services, including

parenting classes and individual therapy.

The paternal grandmother testified that her husband used medical marijuana on

occasion to manage back pain and that father supplied him with it. She further testified

that as a result of her undergoing cancer treatment, the paternal aunt (who lived about

five minutes away) would help with the care of minor when necessary. The paternal

grandmother admitted that before minor was removed from mother, it had been more

than a year since the paternal grandmother had visited with minor.

16 The paternal grandmother testified father could care for minor in their home, and

she believed he was then ready to do so without any services, including parenting classes.

When asked why she believed father had the requisite parenting skills to then care for

minor, the paternal grandmother stated, "We raised him." The paternal grandmother also

stated father was no longer smoking marijuana "[b]ecause he gave all of it away."

The paternal grandmother confirmed that when father returned to Roseville after

being discharged from the military, father went over to the paternal aunt's house "a

couple times a week" to play video games and smoke marijuana with the paternal aunt's

boyfriend. The paternal grandmother stated father stopped going to the paternal aunt's

home "about a month ago." Although the paternal grandmother recognized father would

be minor's primary caregiver if minor was placed with him, she stated her husband (i.e.,

the paternal grandfather), the paternal aunt and another paternal aunt who lived about an

hour away also were ready to assist father in providing care for minor, including after he

found employment.

Father testified he did not have a drug problem, and he last smoked marijuana

about a month before the hearing. He also testified he did not have a drinking problem,

and had "a drink" of alcohol in the evening.

When asked about the incident on January 16, 2014 when the mother left work in

response to neighbors' concerns about minor, father testified one of mother's coworkers

initially left him a message that "there was something going on with [minor]" and mother

had to "rush out of work." Father stated he asked the coworker to have the "people that

17 were calling" mother at work call him so he "could try to figure out what was going on."

Father admitted the message he received from mother's coworker raised some "red flags."

Father next received a call from one of mother's neighbors who told him "they had seen a

bunch of stuff going on," including "see[ing] this guy [i.e., boyfriend] hitting [minor] and

all this stuff happening, and they were going to call the police."

Even though father lived close by, father testified he did not go over to mother's

home to check on minor because the "sheriff[] had already been called out, and I [had]

been threatened [by] this guy [i.e., boyfriend] about fighting with me several times . . .

and he was going to, quote, unquote, kick my ass. I didn't want to go over there and get

in a fistfight and get in trouble with the law myself. So I counted on the sheriff to go

over there, and I assumed since I was the father, I would be contacted if anything was

going on." Father further testified he subsequently learned from mother the sheriff had

checked on minor and had found nothing wrong.

Father stated that he had in fact purchased a bong to smoke marijuana but that it

was not three-feet long and that, in any event, he no longer owned it. Father also stated

he gave the bong away to the paternal aunt's boyfriend. Father admitted he played video

games and smoked marijuana with the paternal aunt's boyfriend about 10 hours a week.

When asked whether he would allow the paternal aunt to watch minor in the paternal

aunt's home despite the fact her boyfriend smoked marijuana, father said "Yes."

Father testified he learned about the end of October 2013 that mother and

boyfriend were moving in together. At the time, father was living about a mile and a half

18 from mother's new apartment. Father admitted he did "nothing really" to investigate

boyfriend before he moved in and began taking care of minor. Father testified he was not

then concerned that mother and boyfriend were going to live together with minor even

though father did not know boyfriend.

Father testified minor had a black eye in early December 2013. Mother told father

that minor had fallen and hit a door. Father at that time did not check minor for any other

injuries or seek a medical examination of minor, despite the fact boyfriend was then

threatening to "kick [father's] ass" and was then living with and taking care of minor.

Father admitted he did no further investigation regarding minor's black eye other than to

speak to mother. When asked why he did nothing more, father stated: "I didn't think this

was something that people did to kids."

Father testified mother sometimes gave minor a "little swat on the bottom" when

minor misbehaved. Father did not like spanking and tried to address it with mother. He

noted, however, mother was "very opinionated" and it was "hard for [him] to ever win an

argument [with mother] about anything."

With regard to the February 2014 TDM in which father appeared by telephone,

father testified he did not know he could object beforehand to boyfriend's participation in

that meeting. Father also testified he had not planned on coming to San Diego for that

meeting until the paternal grandmother told him the Friday before that she had made

plans for them to attend in person. Father said when he learned of those plans, he tried to

19 fix his car but was unable to do so in time to make the long drive from Roseville to San

Diego.

Father admitted an agency social worker gave him referrals for services, including

parenting classes as early as February 5, 2014, but he had yet to begin such services.

However, father testified he was then on one or more waiting lists to begin those services.

Father explained that he did not visit minor after he moved from San Diego on or

about January 23, 2014 until about February 16, 2014 because he had been helping the

paternal grandparents with their house in Roseville and because he was preparing to bring

minor home to live with him.

Mother testified at the contested jurisdiction/disposition hearing that minor was

better off living in foster care than with father. When they were married, mother testified

father smoked marijuana a "few times a week"; that he got drunk "every night," played

video games and fell asleep on the couch; and that she alone provided the day-to-day care

of minor. Mother confirmed father recently had said he purchased a three-foot bong and

had even showed her a picture of it. She testified that, after they separated, she contacted

father weekly about visiting minor. However, between October 2013 and January 2014,

mother stated father visited minor only about three times.

Mother testified when minor visited father, including overnights, father did not

know how to care for minor. For example, on one visit she told father that minor needed

to "start eating real food like people food, and if he didn't have that, I [i.e., mother] would

go to the grocery store and buy it myself and bring it there so she [minor] would have

20 something to eat." The next day when mother picked up minor, father said he gave minor

"some pistachios or some cashews and milk, no formula bottles, no baby food, no snacks,

or anything of that kind," which concerned mother. Mother stated she always packed a

diaper bag, which included food for minor, when minor visited with father because

mother did not trust father to buy basic items for minor.

Mother testified she was concerned about the paternal grandmother caring for

minor because the paternal grandmother drank alcohol when she took her medications,

which made her "loopy. I guess I [i.e., mother] could say she [i.e., the paternal

grandmother] is not really coherent a good portion of the time." Mother also recounted

that when minor was a newborn, the paternal grandmother in minor's presence had

become angry and thrown a wine glass across the room.

Mother reaffirmed her belief that boyfriend was not in any way responsible for

minor's injuries. Mother testified she still wanted boyfriend to visit with minor because

boyfriend was a "good father" and "he did not do the things people are saying he did."

On rebuttal, Araiza testified that the TDM facilitator specifically asked everyone

to identify themselves at the beginning of the February 2014 meeting. Araiza recalled

boyfriend introduced himself, and the facilitator then asked if anyone had any questions

or objections. According to Araiza, father then did not object to boyfriend's participation

in the TDM despite being given that opportunity.

At the conclusion of the contested jurisdiction/disposition hearing, the trial court

sustained the petition, ruling in part as follows:

21 "The court has read and considered the reports admitted into evidence, takes

judicial notice of the findings and orders. [¶] I have listened carefully to the testimony

and the manner in which the witnesses have testified, and I would be remiss in saying

that every so often I get a trial and people take the same oath, and you get such divergent

stories. So somebody is really lying to me today, and I don't like that, and it's not easy

for me to figure out, but oaths are something that we should take seriously because we

swear that we are going to tell the truth.

"I have listened to the arguments of counsel. [¶] I have considered the

documentary evidence that was admitted into evidence. [¶] . . . [¶]

"By clear and convincing evidence the allegations of the petition are true;

however, I will be amending according to proof and indicate that the previous bruising

injury instead of burn injury, I will modify the petition with regards to that, but I will

make the finding by clear and convincing evidence.

"Then with regard to disposition, the court makes the following findings by clear

and convincing evidence:

"That jurisdiction having been found under section 300[, subdivision] (e), the child

is declared a dependent pursuant to [section] 360[,] subdivision (d).

"Custody will be removed from the mother pursuant to [section]

361[, subdivision] (c)(1) . . . and [minor will be] placed with the agency for suitable

placement.

22 "There is a substantial danger to the physical, health, safety, protection or physical

or emotional well-being of the child or would be if the child was returned home.

"There are no reasonable means by which the child's physical health can [be]

protected without removing the child from the mother's custody.

"Reasonable efforts have been made to prevent or eliminate the need for the

removal of the child from the home of the mother.

"The father was a noncustodial parent. Pursuant to [section] 361.2 by clear and

convincing evidence it would be detrimental to place the child with him, and I want to

note that this isn't a substantial risk of physical harm. You make that finding when you

are removing from a custodial parent. Father was noncustodial and under [section] 361.2

the court has to find by clear and convincing evidence that it would be detrimental to the

safety, protection, or physical or emotional well-being of the child. So it's a little bit

different when are you dealing with a noncustodial parent and what is the detriment?

"The detriment is his true passivity. That's the number one piece of detriment

here. Any parent who has had a one-year-old child in their arms, and I'm just trying be

reasonable here, you know, I have experienced this, and I'm not holding myself up as the

parent of the year, but anybody who has that and gets a buzz in their ear that this child

could be in danger, that this child could be harmed, is going to move heaven and earth

because that is how vulnerable little babies are, and even if mom is living with sasquatch,

and he's the meanest, badest guy in the world, then, you call the cops or you do

something to make sure that your child is okay.

23 "Now, I'd be a little concerned if I walked into my house, and sasquatch was

sitting there, and I asked him to leave, and he gave me a dirty look, and I just left it there.

I mean, this is someone who has some serious issues about protecting a child. As I sit

here today, I think he's afraid of the mom, and I truly believe if she went up to Roseville

and brought her boyfriend with her and did something aggressive, I'm not sure that the

dad would be able to protect [minor].

"Now, I'm not criticizing him for this. This might be his personality, but I'm

discharging him with the need to change that personality if he's going to be a protective

custodial parent. So I'm not saying there is a ton of work to be done, but he certainly has

to understand what his obligation is, a very high obligation, to protect a child let alone an

infant child.

"Marijuana is an issue. We haven't been able to rule it out, but from his own

admission, he was a stoner in high school. He smoked quite a bit. He went into the

military, and I have got to say this, I doubt he was smoking as much as everybody said he

was because they probably would have nabbed him because they do test in the military,

and they do it at random, but then he goes home with all this stuff going on, and when the

new boyfriend is in the house, who is according to in his mind is threatening to kick his

ass, he leaves his little baby there and tells me I didn't think adults would do that to kids,

well, then, my question is what if he takes this child to a day care, and the child comes

home bruised, would he say, gee, I didn't think adults could do that? So I'm just going to

ignore these bruises.

24 "These are the things I don't get because to me they're pretty reasonable, but

obviously, he needs to wrap his head around this as to how vulnerable these kids are,

what he needs to look for and what it takes to be protective parent. We will try to rule

out the marijuana issue. He's bummed, though, he's in the home of his parents so he goes

somewhere else.

"I've got another suggestion. Go get a job. He obviously has skills. He is not

some guy who only can flip a burger . . . . He was in the military for a while. I really

have a suspicion here that there is some kind of job out there that he could find and now

it's time for the party to be over. So put those video games away, put the bong away, and

get to work because parenting is hard, hard work, and it's all about that child now. It's not

about you anymore. You have got to put the bong away. [¶] . . . [¶]

"That's my detriment finding. That's the facts that support the detriment finding.

"Placement is in licensed foster home.

"I'm going to order that all relative homes continue to be evaluated. This is one of

those regulation things. I'm not going to fault the agency.

"Father was requesting custody. The agency can't do a full investigation until the

father is out of the home [i.e., of the paternal grandparents]. He is going to have to make

a decision now whether he is going to get a job and move out and let this home be

evaluated. If he gets himself in services and does well in individual therapy, I believe he

could be in a position to have custody of this child sooner rather than later if some

25 therapist could tell me that he gets it, and he will become someone, and he tests negative

for marijuana.

"With regard to the mom, I'm going to order services. . . . [¶] I will find that the

child is closely and positively attached to the mother.

"The other alternative is for me to find that the services are likely to prevent

reabuse or continued neglect.

"To be honest with you, I don't think she is ever going to believe that the boyfriend

did this stuff, and I don't know where this case is going to go in reunification if she won't

even consider the fact that this guy may have done this in light of this evidence that you

can't even consider it, then, my conclusion is she needs him to pay that rent right now, or

she needs him to support her so she's not about to say anything bad because she needs

him.

"I'd like you to consider that, or I may be wrong. If I am, I deeply apologize,

ma'am. These are very, very well-trained people. They don't make this stuff up because

they enjoy removing babies from their parents. Where there is some smoke there is some

fire, and I think you just might want to consider that maybe some of this evidence is true

and maybe he just busted your kid's skull. Just think about it. Maybe he did. [¶] . . . [¶]

"The parents are ordered to comply with the plans.

"The agency is ordered to provide services consistent with the plans. [¶] . . . [¶]

"I want to comment on some evidence that I have indicated this last time dad does

live ten hours away. It isn't easy to travel to and from north Sacramento. That is a long

26 drive. That was not the basis for any kind of detriment finding. Same with the

grandparents, but you can do a lot of things over the phone, and even if you are broke,

you can make those calls. You can make them until you annoy people to no end so much

that they respond to you. So I don't believe the fact that there was some distance to

excuse him from doing everything I think he should have done, and could have done, and

reasonably should have done, as a responsible parent."

DISCUSSION

A. Placement of Minor with Father

Father contends that the juvenile court erred by finding that placement with him

would be detrimental.

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

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."

A court's determination of detriment under section 361.2, subdivision (a) requires

a finding by clear and convincing evidence. (See In re Marquis D. (1995) 38

Cal.App.4th 1813, 1827; see also In re Mark L. (2001) 94 Cal.App.4th 573, 580-581

[noting that in an appeal from a judgment or order based upon clear and convincing

27 evidence, "'"the clear and convincing test disappears . . . [and] the usual rule of

conflicting evidence is applied, giving full effect to the respondent's evidence, however

slight, and disregarding the appellant's evidence, however strong"'"].)

In making this determination, a court should weigh all relevant factors, decide

whether the dependent child "will suffer net harm" (In re Luke M. (2003) 107

Cal.App.4th 1412, 1425), and consider the "fundamental premise that the underlying

purpose of dependency law is to protect the welfare and best interests of the dependent

child" and "the purpose of any dependency hearing is to determine and protect the child's

best interests." (Id. at pp. 1424-1425.)

When the sufficiency of the evidence is challenged on appeal, even where the

standard of proof in the trial court is clear and convincing, the reviewing court must

determine if there is any substantial evidence—that is, evidence which is reasonable,

credible, and of solid value—to support the conclusion of the trier of fact. (In re Angelia

P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) All

conflicts are to be resolved in favor of the prevailing party, and issues of fact and

credibility are questions for the trier of fact. (See In re Jason L., supra, at p. 1214; In re

Steve W. (1990) 217 Cal.App.3d 10, 16; see also In re Casey D. (1999) 70 Cal.App.4th

38, 52–53 [noting a court of review has "no power to judge the effect or value of the

evidence, to weigh the evidence [or] to consider the credibility of witnesses"].)

28 Here, we conclude there is substantial evidence in the record to support the finding

that placement of minor with father would be detrimental to minor's "safety, protection,

or physical or emotional well-being." (See § 361.2, subd. (a).)

There is ample evidence in the record that father routinely smoked marijuana,

including after he was discharged from the military for drug use in late January 2014 and

after he moved to Roseville to live with the paternal grandparents shortly thereafter. This

evidence included mother's testimony that she and father routinely smoked marijuana

when they were married, including after she obtained her medical marijuana card in

spring 2013, and that while they were waiting for a court hearing on February 18, 2014,

father told her he had just purchased a bong and had even showed her a picture of it.

In addition, the paternal grandmother testified that father (her son) provided the

paternal grandfather (her husband) marijuana for a medical condition and that, after

moving to Roseville, father routinely went to the paternal aunt's house and smoked

marijuana and played video games with the paternal aunt's boyfriend.

Father himself also admitted that he recently had purchased a bong. He also

admitted going over to the paternal aunt's house a few times a week and smoking

marijuana with her boyfriend after father moved to Roseville to live with the paternal

grandparents. Father testified that he gave his bong to the boyfriend of the paternal aunt

and that, if minor was placed with father, he would allow minor to be watched at the

paternal aunt's home even though the paternal aunt's boyfriend routinely smoked

marijuana.

29 The record also shows father tested positive for marijuana on February 18, 2014

and was discharged from the military in late January 2014 also because of a positive

marijuana test result.

We conclude this evidence alone supports the finding that placing minor with

father would be a "detrimental to the safety, protection, or physical or emotional well-

being" of minor. (See § 361.2, subd. (a).)

But, there is more. The record also shows that after mother's neighbor notified

father in mid-January 2014 that minor was at risk, father did little if anything to protect

minor. Indeed, the record shows father took no initiative to determine whether minor was

being abused despite the neighbor's report: father did not call police or otherwise go to

mother's house, which was located about a mile away from his, to check on minor.

Father instead merely spoke to mother on the telephone, even after father admitted there

were "red flags," and took her word that minor was fine and that the reports of abuse

were false. Father assumed that he would be contacted if there was a problem.

Father's lack of initiative with respect to protecting minor and ensuring her safety

is even more concerning given the evidence in the record of his awareness that minor

suffered a black eye in early December 2013, when minor was also living with, and being

taken care of by, boyfriend. The record shows father then also accepted mother's

explanation that minor received the injury accidently. Father also did no additional

investigation then to determine the cause of minor's injury and took no other steps,

including having minor examined, to ensure mother's explanation was credible.

30 And, if that was not enough, father's failure to do more in caring for minor is even

more alarming given the evidence in the record that mother had moved in with boyfriend

in late October 2013, after knowing boyfriend for just a few months and after boyfriend

had threatened to "kick [father's] ass." Father also testified that he never investigated

boyfriend; that he assumed minor was safe and well-cared for because mother was a

"good mom"; and that he was unaware that people like boyfriend actually hurt "kids" like

minor. We conclude this evidence also supports the finding of detriment pursuant to

section 361.2, subdivision (a).

Finally, the record shows father had spent very little time parenting minor both

after he and mother separated and after minor was removed from mother. Although

father testified at the contested jurisdictional/dispositional hearing that he wanted to care

for minor, there is ample evidence in the record supporting a contrary finding, including

that father visited infrequently with minor after father was discharged from the military in

late January 2014, despite being unemployed; that he did not call the foster mother for

about a month after minor was removed to inquire about minor and to ensure she was

recovering from what were serious physical injuries; that he did not give the foster

mother sufficient advance notice regarding visits with minor and, thus, such visits were

unnecessarily short, lasting just a few hours; that he delayed obtaining the services

referred by agency that would promote reunification; and that, when minor visited father

including on overnights, father ostensibly was unable to meet minor's basic needs,

including proper feeding of minor. Again, we conclude this evidence, standing alone,

31 more than supports the finding of detriment under subdivision (a) of section 361.2 and,

along with the other evidence already discussed, overwhelmingly supports such a finding.

B. Placement of Minor with the Paternal Grandmother

Father alternatively contends the juvenile court erred when it failed to place minor

with the paternal grandmother. The record shows that the court refused to place minor

with the paternal grandmother because the home evaluation of the paternal grandparents

was incomplete; that agency guidelines precluded agency from completing the home

evaluation because father was then living with the paternal grandparents; and that agency

therefore was not at fault for failing to complete that evaluation at the time of the

jurisdictional/dispositional hearing.

Appellate courts recognize that the relative placement preference in section 361.3

confers upon a relative a separate, protectable interest with a dependent child. (Cesar V.

v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035.) Thus, an aggrieved relative

who was denied placement, such as the paternal grandmother in the instant case, may

therefore possess standing to challenge a court's placement order, while a parent, such as

father, might not. (See ibid.)

Although neither father nor agency has briefed the issue of standing, we will

assume, without deciding, that father has standing to challenge the court's decision not to

place minor with the paternal grandmother.5 (See In re Esperanza C. (2008) 165

5 In reaching this issue, we are not unaware that if minor had been placed with grandmother without any additional conditions imposed by the juvenile court, minor then would have been living under the same roof as father, despite the court's finding under 32 Cal.App.4th 1042, 1053 [noting courts liberally construe the issue of standing in juvenile

dependency matters and resolve doubts in favor of a right to appeal].)

Section 361.3, subdivision (a) provides in part: "In any case in which a child is

removed from the physical custody of his or her parents pursuant to Section 361,

preferential consideration shall be given to a request by a relative of the child for

placement of the child with the relative, regardless of the relative's immigration status. In

determining whether placement with a relative is appropriate, the county social worker

and court shall consider, but shall not be limited to, consideration of all the following

factors: [¶] (1) The best interest of the child, including special physical, psychological,

educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative,

and child, if appropriate. [¶] . . . [¶] (5) The good moral character of the relative and any

other adult living in the home, including whether any individual residing in the home has

a prior history of violent criminal acts or has been responsible for acts of child abuse or

neglect. [¶] (6) The nature and duration of the relationship between the child and the

relative, and the relative's desire to care for, and to provide legal permanency for, the

child if reunification is unsuccessful. [¶] (7) The ability of the relative to do the

following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶] (B)

Exercise proper and effective care and control of the child. [¶] (C) Provide a home and

the necessities of life for the child. [¶] (D) Protect the child from his or her parents. [¶]

(E) Facilitate court-ordered reunification efforts with the parents. [¶]

section 361.2, subdivision (a) that placing minor with father was then detrimental to minor. 33 (F) Facilitate visitation with the child's other relatives. [¶] (G) Facilitate implementation

of all elements of the case plan. [¶] (H) Provide legal permanence for the child if

reunification fails. [¶] . . . [¶] (I) Arrange for appropriate and safe child care, as

necessary."

Applying these factors, we conclude substantial evidence supports the finding it

was not in minor's best interests to be placed with the paternal grandmother and,

accordingly, there was no abuse of discretion in not doing so here. (See In re Stephanie

M. (1994) 7 Cal.4th 295, 318 [noting denial of a relative placement request is reviewed

under an abuse of discretion standard].)

The record shows that minor recently had endured severe child abuse that

included, among other injuries, a cracked skull; that there were concerns regarding

minor's development, including communication, fine motor and problem solving skills;

and that minor was slated to undergo behavioral/social-emotional screening and also

speech evaluation at Rady's. This evidence supports the finding it was then in minor's

best interests to continue placement in foster care in San Diego, where minor could

obtain these services and continue without interruption to receive necessary medical

treatment.

In addition, the record shows that mother opposed placement of minor with the

paternal grandmother (see § 361.3, subd. (a)(2)) and that mother and minor were "closely

and positively attached," a finding that is both supported by substantial evidence in the

record and, in any event, not challenged by father on appeal. As such, the record

34 supports the separate finding that it was not then in minor's best interest to place her with

the paternal grandmother in Roseville, which is north of Sacramento, while mother was

receiving services in San Diego in an effort to reunify with minor. (See In re Joseph T.

(2008) 163 Cal.App.4th 787, 798 [noting "compelling reasons" in the record supported a

finding that it was not in a dependent child's best interests to be placed with a paternal

aunt because, among other factors, the aunt lived in another county and, as such,

placement of the child there would have frustrated the child's best chance of reunification

with his mother]; but see In re Robert L. (1993) 21 Cal.App.4th 1057, 1068 [noting the

court abused its power in not placing dependent children with the paternal grandparents

when the evidence showed the grandparents had been caring for the children since they

were infants, including providing them housing, clothing, medical care and schooling,

and when the children said they wanted to remain living with their grandparents].)

Moreover, although the paternal grandmother made efforts to visit with minor

after she was removed from mother's care, the record shows the paternal grandmother did

not visit with minor for more than a year before her removal. The evidence in the record

thus supports the finding there was not then a close relationship between the paternal

grandmother and minor, in contrast to the relationship between mother and minor. We

conclude the "nature and duration" of the relationship between minor and the paternal

grandmother therefore was not such that minor's psychological or emotional needs would

be compromised or unmet if minor remained in foster care in San Diego and continued

weekly visits with mother. (See § 361.3, subd. (a)(1) & (6).)

35 Finally, the record shows agency then did not support placement of minor with the

paternal grandmother because of various risk factors, including the paternal

grandmother's ability to care for minor as a result of her undergoing cancer treatments,

which the record shows at times made her feel tired and weak; the grandfather's use of

(medical) marijuana, which the record shows he obtained from father and which he used

to treat his back pain; and the regular use of marijuana by the boyfriend of the paternal

aunt, who lived about five minutes from the paternal grandparents' home, which aunt, the

record shows, had also agreed to care for minor if placed in the care of father or the

paternal grandmother.

In light of the statutory criteria ante, we conclude substantial evidence supports

the finding that placement of the minor with the paternal grandmother was not then in

minor's best interests. (See In re Lauren R. (2007) 148 Cal.App.4th 841, 855 [noting that

section 361.3 does not create a presumption that relative placement is in a dependent

child's best interest and noting the overarching duty of the court is to "'assure the best

interests of the child'" in placing that child].)

36 DISPOSITION

The juvenile court's order placing minor in a licensed foster home in San Diego

and not placing minor with father or the paternal grandmother in Roseville is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

IRION, J.