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In re Nickolas T.

California Court of Appeals, Fourth District, First Division

July 22, 2013

In re NICKOLAS T., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
B.T., Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, No. EJ003553 Carol Isackson, Judge.

William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.


B.T. appeals a dispositional order denying her request for custody of her son, Nickolas T., who was living with his maternal aunt pursuant to a guardianship order from a Mississippi dependency court. B.T. contends the court erred when it did not consider her request for placement under Welfare and Institutions Code section 361.2, [1] which requires the court to place the child with the noncustodial parent unless it finds that placement would be detrimental to the child, and instead shifted the burden of proof to the parent to show that such placement was in the child's best interests. B.T. asserts this error despite agreeing to a best interests standard and objecting to a finding of detriment at trial.

We conclude that the court erred when it acquiesced to the parties' theory that because a permanency plan of guardianship had been selected for Nickolas in 2006 through Mississippi dependency proceedings, his new California dependency case was also at the postpermanency stage. Instead, we conclude that once the State of Mississippi declined jurisdiction and the juvenile court found that the child was described by section 300, the court should have proceeded under section 361, which governs removal of the child from his parent or guardian, and section 361.2, which governs placement of a child who has been removed from his parent or guardian. We further conclude that the juvenile court is required to consider a noncustodial parent's request for custody under section 361.2, subdivision (a), even if that parent was the subject of a finding of detriment in an earlier dependency case and did not retain the right to physical custody of the child. However, the error was not prejudicial to B.T., and we affirm the order denying her request for placement.


Nickolas T., the eldest of B.T.'s nine children, was born in 1997. B.T. was then 14 years old. In 2001, pregnant, homeless and without means to support her children, B.T. voluntarily placed Nickolas, who was not yet three and a half years old, and his siblings in the custody of the Hinds County, Mississippi Department of Human Services (MDHS). MDHS placed the children with their maternal grandmother and closed the case in 2002.

B.T. was subsequently incarcerated on charges of strong arm robbery, motor vehicle theft and receiving stolen property. In 2004, MDHS reopened the dependency case. The Mississippi Youth Court (Youth Court) then placed Nickolas and several of his siblings in Louisiana with their maternal aunt, Faith W., pursuant to the Interstate Compact on Placement of Children (ICPC). Paternal relatives gained custody of two other siblings.

In 2006, the Youth Court placed Nickolas and his siblings[2] in the legal custody of his maternal aunt, Faith, relieved MDHS of the children's care, custody and supervision and allowed MDHS to close its case in the matter. The order further stated B.T. was allowed to petition the court to regain custody of her children "when she has proven that she has the means to care for them."

B.T. was released from prison in 2008. She subsequently married, obtained employment, gave birth to twins and regained custody of a child through family court proceedings. Another child, who had a medical condition, lived nearby with his paternal grandmother. B.T. saw him frequently, helped pay for his expenses and attended all his medical appointments and hospitalizations. B.T. did not seek to regain custody of Nickolas and his four siblings. She said the children loved living in California and Faith was able to provide opportunities to them that she could not. B.T. visited the children in California every year and remained in close contact with them.

In May 2012, Nickolas told a teacher the W.'s hit him and his siblings with an extension cord on their palms and D.W. punched and slapped him and his brothers in the face. Nickolas was afraid to return home. He had a cut on his right thumb, which was swollen and sore. Nickolas said the W.'s had hit him "all [his] life." Nickolas's maternal grandmother, who lived in the home, confirmed the W.'s disciplined the children by hitting them on their hands with an extension cord.

According to Nickolas, B.T. knew that the W.'s were hitting him. During B.T.'s last visit to California, Nickolas was sent home from school. When Faith came home, she hit Nickolas with a pole on his back, arms and legs. B.T. yelled at Faith to stop hitting him. Nickolas said his mother did not like his aunt hitting him but whenever he was in trouble, she would say, "You get him [Faith]." B.T.'s husband, whom Nickolas had never met, would take the telephone and tell him, "I'm going to take care of you when we get down there and you had better best believe that."

B.T. denied she saw Faith hitting Nickolas with a pole. B.T. said Faith provided a good home for her children. Nickolas had been acting out in school. Faith said she did not hit Nickolas. B.T. believed her sister.

The W.'s denied hitting Nickolas and characterized him as "the problem child." Faith said Nickolas was a great kid and they loved him, but he was getting into trouble at home and at school. He had a lighter in his pocket; he was found at a girl's home and stayed out past his curfew. According to B.T., Nickolas made the allegations a week after they told him he was going to spend the summer in Mississippi with B.T.

Nickolas's siblings denied any physical abuse. During child welfare investigations in 2006 and 2010, two other children in the home said they were hit with an extension cord or belt. They recanted the allegations when interviewed. According to Nickolas, during those investigations Faith promised to take the children to Disneyland if they did not tell the social worker about the W.'s use of physical discipline. When interviewed about the current allegations, one of Nickolas's siblings, then six years old, said she learned that morning the family was going to Disneyland. She denied she or her siblings were spanked, hit or physically harmed in any way.

The social worker said Nickolas was a very sweet boy who did not want to return to the W.'s home. Nickolas believed that they would hit him again. Nickolas did not want to live with B.T. in Mississippi. He said his mother was ...

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