In August of 2019, Mother [M] tested positive for amphetamine use when she gave birth to her Son [S]. S also tested positive. The Los Angeles County Department of Children and Family Services [DCFS] filed a juvenile pendency petition with the Juvenile Court. The court took temporary jurisdiction of S and also of M’s other child Daughter [D], age 12. D’s Father [F] was living in the state of Washington with his wife and son. He had no contact with either M or D since D was a toddler. Nor did he pay child support for D. (F was not S’s father.)
The court placed D and S with M’s Mother, D’s grandmother [G], and ordered DCFS to locate F. DCFS located F and informed him of D’s status. F originally told DCFS that he did not want to take custody of D, but later appeared at the first status hearing with a lawyer and demanded custody. F’s lawyer argued that F was a good father. He and his family lived in a safe environment with good schools. He could afford to raise D. He said he hadn’t contacted D because M prevented it. He also said he never tried to get custody or visitation through the courts because of “his immigration problem.” The “problem” was now cleared up.
The court ordered DCFS to investigate F and his family for custody status, and to continue monitoring S and D’s current living status. The social worker assigned to D’s case, informed D that her father wanted custody of her. The social worker found that D was thriving in G’s care, she was a straight-A student, had many friends and extended family, and M visited with her every day. The social worker also found that the very thought D may have to leave her environment and live with her father in another state traumatized her. The court ordered DCFS to get mental health counseling for D and appointed a lawyer specifically for D.
At the following status hearing, the therapist stated that D was traumatized and that changing her environment would traumatize her even more. The court agreed that D should remain in G’s care, and ordered visitation for F.
F appealed arguing under Welfare and Institutions Code Section 361.2, that he was entitled to custody because he is a good father and there is no reason why he shouldn’t have custody. Also, a 12-year-old child’s opinion where she should live has no bearing in this case.
The Appellate Court agreed with the trial court.
Section 361.2, subdivision (a) requires a court ordering removal of a child first to determine whether there is a noncustodial parent who wants to assume custody. The court shall place the child with that parent, unless that placement would be detrimental to the child’s safety, protection, or physical or emotional well-being.
The Appellate Court stated: “There is substantial evidence [D] would suffer significant emotional harm if she were forced to live with [F].”