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In Re D.C., A Person Coming Under the Juvenile Court Law. v. D.C

September 27, 2012

IN RE D.C., A PERSON COMING UNDER THE JUVENILE COURT LAW. BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
D.C., DEFENDANT AND APPELLANT.



(Super. Ct. No. J35966)

The opinion of the court was delivered by: Hull , Acting P. J.

In re D.C. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Father, David C., appeals the dispositional order in which the juvenile court did not place his son David (the minor) with him as the non-custodial parent. Father contends he was entitled to custody under Welfare and Institutions Code section 361.2 and the court's failure to make a "proper" finding of detriment and state the basis for that finding was reversible error. (Undesignated statutory references are to the Welfare and Institutions Code.) We agree the court erred, but find the error harmless. Alternatively, father contends if the court acted under section 361, there was insufficient evidence to support removal. The record does not support this claim. We affirm the juvenile court's order.

FACTUAL BACKGROUND

In July 2011, mother left father's home with the one-year-old minor in a stroller. She stopped at a store and because she appeared seriously intoxicated, a store employee called the sheriff's department to conduct a welfare check on the minor. Mother was found in possession of hydrocodone pills and marijuana. The sheriff also concluded based on her level of intoxication, mother could not care for the minor. Mother was arrested and the minor was detained.

Butte County Children's Services Division (CSD) of the Butte County Department of Employment and Social Services filed a petition seeking to have the minor declared a dependent of the court based on mother and father's failure to protect the minor. (§ 300, subd. (b).) In addition to the allegations against mother, the petition alleged father had a lengthy criminal history and was not available to take custody of the minor at the time of mother's arrest.

At the detention hearing, father requested custody of the minor under section 361.2, as a non-custodial parent. The court ordered the minor detained and indicated it would consider placing the child with father as the nonoffending parent. Two weeks later at the jurisdiction hearing, the court found the allegations of the petition true and sustained the petition. Father again requested placement of the minor under section 361.2 as the non-custodial parent and the court ordered CSD to "look into that for Dad."

A contested disposition hearing was held on November 17, 2011. The social worker recommended the minor remain in foster care and both parents be offered reunification services. The social worker noted father had a substantial criminal and substance abuse history, had not provided adequate supervision of the minor and had not protected the minor from mother's neglect. This failure on father's part contributed to the minor being declared a dependent. Father acknowledged having a significant substance abuse problem. He had first used drugs and alcohol at age 12. Father's criminal history extended from 1991 to 2009 and included multiple felony convictions and violations of parole. Many of the offenses were drug or alcohol related.

The social worker concluded returning the minor to mother or placing him with father would create a substantial risk of detriment to the minor's safety, protection or well-being. As to father, the social worker based this conclusion on father's criminal and substance abuse history, his lack of a current source of stable income and his related inability to provide evidence he could pay rent. As recently as August 15, 2011, father had shown up at the mother's home under the influence of alcohol, he was very upset, refused to leave and caused "a considerable disturbance." The social worker also noted that father had been in a personal injury accident and had suffered injuries which required prescription narcotics. It appeared he had been taking 30 percent more pills than prescribed. Father, however, identified his problem substance as alcohol.

Father had unsupervised visits with the minor and participated in services. He attended an Alcohol and Other Drugs assessment and an Assessment Outcome meeting and had scheduled a meeting with the Family Treatment Court. He had also participated in three of five scheduled drug tests. Only one of the tests was negative. Reunification services were recommended for both parents.

Father also has an autistic daughter with Shannon F. Shannon testified father has unsupervised weekend visits with their daughter, and Shannon does not have any concerns about the daughter's safety when visiting father.

Father acknowledged his history of substance abuse, and testified that other than the incident on August 15, 2001, he has been clean and sober. He had been working part-time doing maintenance and yard work, had received some money from General Assistance and was following up on receiving disability. He had completed a parent support group, was starting another parenting class and was attending Alcoholics Anonymous meetings. He was willing ...


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