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In re Patrick S.

California Court of Appeals, Fourth District, First Division

August 15, 2013

In re PATRICK S. III, a Person Coming Under the Juvenile Court Law.
v.
PATRICK S. II, Defendant and Appellant. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v.

APPEAL from an order of the Superior Court of San Diego County Super. Ct. No. CJ1082, Laura J. Birkmeyer, Judge.

Joseph T. Tavano, 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.

Julie E. Braden, under appointment by the Court of Appeal, for Minor.

McINTYRE, J.

Patrick S. II appeals an order denying his request for placement of his son, Patrick S. III (P.S.), under Welfare and Institutions Code section 361.2, subdivision (a) (further statutory references are to the Welfare and Institutions Code), which requires the court to place a dependent child in the care of a noncustodial parent unless it finds that placement would be detrimental to the child's safety, protection or physical or emotional well-being. Father argues there is not substantial evidence to show that placement in his care would be detrimental to his son. We agree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

P.S. is the 14-year-old son of Patrick and D.S. When P.S. was 11 months old, D.S. left Patrick, taking P.S. with her. D.S. and P.S. moved from Hawaii to California to New Mexico to Texas and, in 2009, to San Diego. She did not maintain contact with Patrick or other family members.

Patrick searched for his son. He hired attorneys and a private investigator, contacted D.S.'s relatives, federal and state law enforcement and child welfare agencies and visited locations where he thought he might find his son. Patrick served in the United States Navy as a noncommissioned officer. He paid child support through the court and maintained medical and dental coverage for his son. In 2011, he redoubled his efforts to locate his son after learning that D.S. had filed a lawsuit in federal court in San Diego in 2009, later dismissed, alleging she and P.S. were homeless and law enforcement was not protecting them from physical and sexual abuse.

In May 2012, the San Diego County Health and Human Services Agency (Agency) detained P.S., who was then 13 years old, in protective custody after D.S. was involuntarily hospitalized with paranoia and visual and auditory hallucinations. Her mental health condition was diagnosed as schizophrenia, disorganized type, chronic. D.S. became distressed when the social worker asked her about P.S.'s father. She said Patrick had sexually abused P.S. when he was four months old. D.S. knew this by the strange way the baby was crying. She did not make a report to child protective services but reported it to family court when she and Patrick divorced.

P.S. and his mother moved frequently. At times, they were homeless. P.S. attended 13 different schools. In May 2011, P.S. was diagnosed with disruptive behavior after yelling and running out of a classroom. When teachers followed him, he became combative and yelled, hit and kicked. According to the school nurse, P.S. had no friends and other students saw him as odd. He did well academically but lacked age-appropriate social skills. Currently, P.S. was enrolled in Home Independent Study. He spent a lot of time on the computer playing games and writing a book.

The Agency located Patrick, who lived with his wife and two young children in Washington State. Patrick said during their marriage, D.S. claimed she was afraid of him and accused him of sexually abusing their son. Patrick participated in services through the Navy Family Advocacy Program. The case was closed as unsubstantiated. As part of the divorce settlement from the State of Hawaii in 2000, he agreed to undergo a psychosexual evaluation before having unsupervised visitation with his son. Patrick never completed the evaluation.

Patrick flew to San Diego the day after he spoke to the social worker. He was happy and excited to see his son. Patrick asked to be considered for placement but was willing to proceed slowly to allow his son to adjust.

At the detention hearing, the court granted Patrick unsupervised visitation with P.S. and gave the Agency discretion to begin a 60-day trial visit with concurrence of minor's counsel. The court appointed a guardian ad litem and an attorney to represent D.S., who did not appear at any dependency hearings after June 2012. The Agency placed P.S. in a foster home.

The social worker said P.S. had a great week visiting Patrick and his family in San Diego. However, the social worker believed that Patrick and his wife, N.S., were overly optimistic about P.S.'s adjustment into their family. After the visit, Patrick telephoned P.S. every night. When the social worker asked P.S. where he wanted to live, P.S. responded, "I wish there was a place you could go and pick your parents, but no one does." He then sighed and said "go with dad...."

Washington State social services did a courtesy check of Patrick's home. Patrick and N.S. did not have any criminal or child protective services history. Their home was clean, well-organized and safe. Patrick's ...


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