Filed 7/30/21 In re J.T. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re J.T., a Person Coming Under 

the Juvenile Court Law.

B308231

(Los Angeles County

Super. Ct. No.

20CCJP02550A)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

E.T.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles 

County, Mary E. Kelly, Judge. Affirmed in part, reversed in part,

and remanded.

Karen B. Stalter, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

Rodrigo Castro-Silva, County Counsel, Kim Nemoy,

Assistant County Counsel, Jane Kwon, Principal Deputy County 

Counsel, for Plaintiff and Respondent.
3

The juvenile court removed J.T. (Minor) from the custody of 

her mother D.G. (Mother) based on evidence Mother used 

amphetamine or methamphetamine while pregnant with Minor’s 

younger half-sibling, L.C. E.T. (Father) was Minor’s noncustodial 

parent and the Department of Children and Family Services’ 

dependency petition (the Department’s) did not allege he had 

done anything to warrant court jurisdiction over Minor. Father 

asked the juvenile court to give him custody of Minor if it 

sustained the jurisdiction allegations against Mother, but the 

juvenile court denied his request based on a finding that placing 

Minor with Father would be detrimental to her physical or 

emotional well-being because Father drank multiple beers on 

occasion, lacked a close relationship with Minor, and lived in a 

converted garage with limited sleeping areas. We consider 

whether there is substantial evidence supporting the juvenile 

court’s finding, which must be made by clear and convincing 

evidence, that placing Minor with Father would be detrimental. 

I. BACKGROUND

A. The Department’s Investigation 

The Department began its investigation when Minor was 

four years old; Mother had just given birth to Minor’s half-sibling,

L.C., in April 2020. The Department received a referral from 

hospital personnel alleging Mother admitted using amphetamine

during her pregnancy, specifically between November 2019 and 

February 2020. Mother tested negative for amphetamine at the 

time of L.C.’s delivery, however. 

A Department social worker interviewed Mother a few days 

after L.C.’s birth. Mother acknowledged she used 

methamphetamine for approximately four months while 
4

pregnant with L.C. She asserted, however, that she had been 

sober for two months and did not consider herself an addict. 

Mother was unable to give the social worker information about 

Minor’s last physical examination or provide her immunization 

records, stating she had fallen behind on everything and her 

Medi-Cal benefits had stopped. 

Minor was away visiting a family member during the social 

worker’s first visit with Mother, so the social worker returned to 

interview Minor the following day. She was shy, and had limited 

speech abilities, and the social worker could not engage her in 

conversation. The social worker did observe, though, that Minor 

appeared well-dressed and there were no signs of abuse or 

neglect. Mother identified Father as Minor’s biological father, 

stated they had ended their relationship years prior and his 

whereabouts were unknown, and said Father had no contact with 

Minor in the past. 

Mother’s boyfriend and L.C.’s father, J.A., told the social 

worker that Mother had used methamphetamine once during 

pregnancy and agreed she should enroll in a substance abuse 

program. He also said he considered L.C. and Minor to be his 

own children. He acknowledged Minor had a biological father,

but he maintained he was the children’s provider and was the 

only one looking out for Minor. 

J.A. and Mother submitted to on-demand drug testing. 

Mother’s results were negative, but J.A. tested positive for 

marijuana. The Department obtained a removal order and 

removed Minor and L.C. from Mother’s custody. 
5

B. The Petition and Detention Hearing

The Department filed a two-count dependency petition in 

May 2020. Count b-1 alleged Mother has a history of substance 

abuse and was a current user of amphetamine and 

methamphetamine, which renders her incapable of providing 

regular care for both Minor and L.C. It further alleged Mother 

tested positive for amphetamine while pregnant with L.C. and 

Mother had previously been under the influence of amphetamine 

and methamphetamine while Minor was in Mother’s care.1 The 

petition listed Father as Minor’s father but did not include any 

adverse allegations against him. 

The Department filed a detention report that stated 

Father’s absence and lack of involvement with Minor 

significantly endangered Minor’s physical and emotional health 

and well-being. It also noted the Department was unable to 

locate and interview Father prior to the filing of the report. 

At the detention hearing, the juvenile court ordered Minor

detained and directed the Department to suitably place her 

pending further dependency proceedings. The court found Father 

was Minor’s presumed father, was a noncustodial parent, and it 

would be detrimental to release Minor to him at the time because 

his whereabouts were unknown. The court ordered Father to 

have monitored visitation with Minor after contact with the 

Department. 

1 Count b-2, pertaining to L.C. only, alleged L.C.’s father has 

a history of substance abuse and is a current user of marijuana, 

interfering with his ability to provide regular care and 

supervision of L.C. 
6

C. Subsequent Events

1. Interviews of Minor, Mother, and Maternal 

Aunt

A Department social worker attempted to interview Minor 

in July 2020. Minor was unable to speak in full sentences and 

would respond to questions with one-word answers. When asked 

about her father, Minor said “‘mi papa’ (my father).” When asked 

if she has seen him, Minor stated “‘fono’ (telephone).” When 

asked if she had seen Father on the telephone (via video chat) 

Minor nodded yes. When asked if she enjoyed seeing Father, she 

also nodded yes. 

Mother was interviewed again. As pertinent for our 

purposes, Mother said that during her relationship with Father 

they argued about Father’s jealousy issues. Mother also stated 

Father once pulled her hair while she sat in the back seat of his 

car, with Minor present. She said she did not report this incident 

to law enforcement. 

Karla O. (Maternal Aunt) was also interviewed. She 

denied knowing about Mother’s drug use. Regarding Father, 

Maternal Aunt said he had not been consistently involved in 

Minor’s life. She stated he did not always provide Minor with 

basic necessities and the last contact she knew of between Father 

and Minor occurred two years earlier. Maternal Aunt stated 

Father had a history of alcohol use during her interactions with 

him two to three years prior to the dependency proceedings, and 

he often drank alcohol to the point of intoxication. Maternal 

Aunt did not know, however, if Father presently had any alcohol 

issues. 
7

2. Initial interview with Father 

The Department initiated a due diligence search for Father 

in early June 2020. He was located that same month and later 

interviewed by a Department social worker. 

Father has two other children from previous relationships: 

thirteen-year-old Ja.T. and ten-year-old C.T. Father maintains 

phone contact with Ja.T., who was living in New York with her 

mother. Father visits with C.T. every other weekend. Father

asserted Mother had cut him off from Minor’s life and said he 

wanted to obtain custody of Minor. 

The social worker asked Father about Mother’s substance 

abuse issues. Father stated Mother had not exhibited any 

behaviors that led him to believe she was using drugs and he did 

not suspect she was using when they were in a relationship. At 

some point after Father and Mother broke up, one of Mother’s 

aunts told Father that Mother was neglecting Minor. When 

asked how Mother was neglecting Minor, Father said he didn’t 

know, but he had been told Mother was leaving Minor with 

relatives. When asked what Father did to protect Minor knowing 

family members were concerned about Mother neglecting her, 

Father stated he did nothing because he did not want to 

complicate things with Mother. 

When asked about his own substance use, Father denied 

using drugs. Father admitted he occasionally drinks alcohol 

socially. When he does so, he may drink four to six beers over the 

span of a few hours. The last time he consumed alcohol was a 

few days prior to the interview, when he was socializing with a 

neighbor. Father denied feeling intoxicated after drinking four to 

six beers, stated he only drinks when he is home, and denied ever 

driving while intoxicated. 
8

3. Father’s visits with Minor

During his conversations with the Department, Father 

expressed a desire to visit with Minor and understood the visits 

must be monitored. Father had a video chat visit with Minor in 

mid-July. Minor recognized Father and called him “papa.” 

Father also had a 30-40 minute in-person visit with Minor a few 

days later, at a local McDonald’s. Minor’s foster mother reported 

no concerns with Father’s visit. 

4. Interviews of others who know Father

A Department social worker interviewed Father’s wife, C.L. 

(C.L.). By that time, she had been in a relationship with Father 

for two years and married to Father for nine months. They do 

not have any children together, C.L. she has a five-year-old son 

from a previous relationship whom they raise together. C.L. said

Father drinks on occasion and will have about six beers when he 

does. She denied observing any belligerent behavior when 

Father drinks. C.L. does not have a problem with Father’s 

occasional alcohol use because it does not affect his ability to 

function as a parent, spouse, and provider. C.L. reported Father 

had been responsible in caring for his children and had been 

involved in Minor’s life until September 2019, when Mother 

stopped communicating with Father. C.L. also told the social 

worker there had never been any domestic violence between her 

and Father. 

The Department social worker also interviewed L.R. (L.R.), 

the mother of Father’s ten-year-old child, C.T. L.R. said Father 

has always been involved in C.T.’s life, has always provided 

financial and emotional support, and has been a good father to 

C.T. She was aware Father drinks occasionally but did not 
9

believe he drinks to the point of intoxication. She reported C.T. 

was regularly happy when returning from visits with Father and 

did not express any concerns about Father being neglectful. L.R. 

stated her relationship with Father ended because of their 

lifestyle differences, but they maintain a good relationship and 

are able to arrange visits between Father and C.T. without 

issues. L.R. denied any domestic violence occurred during her 

relationship with Father. 

5. The Department’s assessment of Father’s home

The Department assessed Father’s home, a converted 

garage unit. Father and C.L. currently occupy the bedroom, but 

if Father were granted custody of Minor he would purchase twin 

beds for Minor and his stepson and allow them to share the 

bedroom while Father and C.L. shared the living room. The 

social worker did not observe any safety issues in the home, but 

informed Father the backyard was a hazard because it was dirty 

and there were tools around that could be dangerous to a child. 

Father and C.L. agreed that if Minor were released to his 

care, C.L. would stop working and care for Minor while Father 

works. C.L. stated not working would also allow her to spend 

more time with her son. 

D. The Jurisdiction and Disposition Hearing

In advance of the jurisdiction hearing, the juvenile court

gave the Department the discretion to place Minor with Father. 

A last minute information report submitted in advance of the 

hearing stated Minor had her first unmonitored visit with 

Father. The visit, which lasted an hour, took place in a local 

park. The information further stated the Department continued 
10

to assess the relationship between Father and Minor because 

they had not visited for several months prior to the Department’s 

involvement. 

After several continuances, the juvenile court held the 

adjudication hearing in late September 2020. The court 

sustained the petition in its entirety and declared Minor a 

dependent of the court under section 300, subdivision (b). As to 

the custody and placement of Minor, Minor’s attorney asked the 

court to leave Minor in her foster care placement. Minor’s 

counsel was concerned about placement with Father in light of 

evidence he would drink about six beers at a time, Maternal 

Aunt’s statement that he used to drink to the point of 

intoxication, the absence of a strong bond or connection between 

Father and Minor, and Father’s failure to provide Minor with 

basic necessities in the past. Mother similarly objected to Minor 

being released to Father and added that placing Minor with 

Father might prevent Mother from reunifying with the child. 

Father asked the juvenile court to give him custody of

Minor. Father noted he was currently having unmonitored visits 

with Minor. He also addressed concerns the juvenile court had 

articulated (off the record) regarding the space that would be 

available for Minor in Father’s home. Father represented every 

child would have their own bed if Minor were released to him, 

and there is an additional sofa bed where his Minor’s half-sibling,

C.T., could sleep on the weekends she visits Father. Regarding 

his alcohol consumption, Father noted that when he consumes six 

beers, he does so over the course of several hours on social 

occasions. 

Counsel for the Department requested the court make a 

finding that placing Minor with Father would be detrimental to 
11

her. Counsel noted there had only been one unmonitored visit 

with Father and argued there was a detriment to Minor because 

she was a four-year-old of tender age and did not have a 

significant bond with Father for the court to “just” release her 

because Father is Minor’s presumed biological father. 

The court stated it was finding by clear and convincing 

evidence that there would be a substantial danger to Minor if she 

were returned to Mother and there were no reasonable means 

short of removal for protecting her. The court then further found 

it would be detrimental to place Minor with Father. 

The court opined that drinking a six pack of beer over 

several hours is not minimal use but would be called binging in 

Alcoholics Anonymous terms. The court stated that Father’s

binging from time to time is no less problematic than if he were 

drinking every day and stated his drinking presented some 

problems for the court. The court further stated it assumed 

Father would stop drinking a six pack of beer on one occasion, 

stating it did not think a court could safely place a child with a 

parent who is drinking that amount of liquor at one time. The 

court did not care if the consumption occurred over several hours, 

stating Minor might have an emergency and need to be taken to 

the emergency room and Father would not be in a position to 

drive. 

The court acknowledged, however, that Father was 

developing a relationship with Minor. The court recognized this

was important and ordered continuing unmonitored visits in a 

neutral location. The court stated it would like Father to have an 

overnight visit after several unmonitored visits. The court also 

wanted a commitment from Father that he would not drink in 
12

Minor’s presence and a Department reassessment of the 

suitability of Father’s home for multiple children. 

The juvenile court also expressed concern that Minor had 

already suffered from her removal from Mother and did not want 

to see that happen again. In the court’s words, it was unwilling 

to “gamble” on placing Minor with Father given the potential for 

alcohol abuse and what the court described as another childhood 

adverse experience. 

II. DISCUSSION

The juvenile court erred in declining to place Minor with 

Father. There is no substantial evidence that placing Minor with 

Father would be detrimental to her safety, protection, or physical 

or emotional well-being. The concerns cited by the court in 

issuing its findings were speculative, unsupported by evidence, 

and insufficient to support a detriment finding.

A. Governing Law

Welfare and Institutions Code section 361.2, subdivision (a) 

provides: “If 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.” (§ 361.2, subd. (a).) Welfare 

and Institutions Code section 361.2, subdivision (a) evidences 

“the Legislative preference for placement with [the nonoffending 
13

noncustodial] parent.” (In re Austin P. (2004) 118 Cal.App.4th 

1124, 1132.)

A juvenile court declining to place a child with a 

nonoffending parent must make the detriment finding by clear 

and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 

1412, 1426 (Luke M.); In re Isayah C. (2004) 118 Cal.App.4th 684, 

700.) The party opposing the child’s placement with a 

noncustodial parent bears the burden of proving the placement 

would be detrimental. (In re K.B. (2015) 239 Cal.App.4th 972, 

979 (K.B.).) On appeal, “[w]e review the record in the light most 

favorable to the court’s order to determine whether there is 

substantial evidence from which a reasonable trier of fact could 

find clear and convincing evidence that the children would suffer 

such detriment. [Citations.]” (Luke M., supra, at 1426; see also 

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012.)

B. Substantial Evidence Does Not Support the Detriment 

Finding

The juvenile court’s detriment finding rests on three given 

reasons: (1) Father’s alcohol use; (2) Father’s lack of a robust 

prior relationship with Minor; and (3) Father’s living situation. 

None is supported by substantial evidence. 

First, an unsubstantiated claim of alcohol abuse does not 

constitute substantial evidence of detriment. (See In re 

C.M. (2014) 232 Cal.App.4th 1394, 1403-1404 (C.M.); In re Abram 

L. (2013) 219 Cal.App.4th 452, 463 [dismissing concerns that a 

father “‘appeared to have an unresolved problem with alcohol and 

a history of substance abuse’” where alcohol abuse allegations in 

the dependency petition were dismissed and the father passed 

the only drug and alcohol test he was given].) The only evidence 
14

indicating Father’s drinking even rose to the level of intoxication, 

much less alcohol abuse, was a statement from Maternal Aunt 

describing Father’s behavior from two or three years prior.2 It 

did not serve as evidence of Father’s behavior at the time of the 

dependency proceeding—indeed, Maternal Aunt admitted she 

was unaware if Father presently had a drinking problem. There 

was also contemporary and strong countervailing evidence: 

Father’s wife confirmed his drinking does not impact his ability 

to function as a parent, spouse, or provider, and the mother of 

Father’s ten-year-old child stated Father drinks occasionally but 

did not believe he drinks to the point of intoxication. The record, 

considered in its entirety, thus contains no evidence Father’s 

occasional drinking would impair his ability to care for Minor. 

The juvenile court also referenced Father’s lack of a close 

relationship with Minor in reaching its detriment finding. 

However, a “lack of contact between the child and the 

nonoffending noncustodial parent, alone, is not a basis for finding 

detriment.” (K.B., supra, 239 Cal.App.4th at 980-981.) Here, 

Minor’s limited relationship with Father did not constitute 

substantial evidence of detriment. It was undisputed that Father 

held himself out as Minor’s father. Though he had not been 

involved in Minor’s life in the year or two before he was informed 

2

It is possible the juvenile court’s concern with Father’s 

drinking stemmed from the court’s opinion that drinking four to 

six beers (without knowing their alcohol content) over a few 

hours (without knowing how many hours) amounted to binge 

drinking in Alcoholics Anonymous terms (without citing any such 

definition). Such an opinion does not rest on sufficient facts in 

the record. 
15

of the dependency proceedings, the available evidence in the 

record reflects this was due to Mother’s decision to cut him out of 

Minor’s life, not a lack of interest on his part.3 And even with 

limited contact, Minor still recognized Father as her father. 

In arguing to the contrary, the Department references 

Father’s minimal contacts with Minor after the Department’s 

involvement. However, there is no evidence in the record that

Father declined or missed opportunities to visit with Minor 

during the dependency proceedings. Nor does it establish the 

three visits specifically referenced in the Department’s reports 

were in fact the only visits between Father and Minor. The 

record instead only indicates Father expressed a desire to visit 

with Minor, Father visited with her, and neither her foster 

mother nor the Department expressed concerns about the visits. 

Given the foregoing, “the alleged lack of an established 

relationship with father[] was [not] sufficient to constitute 

substantial evidence of the high level of detriment required under 

section 361.2[, subdivision] (a)].” (C.M., supra, 232 Cal.App.4th 

at 1403.)

The juvenile court also relied on Father’s living situation in 

finding detriment. However, the court did not cite any safety 

concerns in its discussion.4 Rather, the court took issue with the 

3 Maternal Aunt’s statements that Father had not 

consistently been involved in Minor’s life, and had not always 

provided her basic life necessities, does not establish those 

omissions were due to any choice Father made.

4

Indeed, the Department had found no safety concerns 

within the home itself, though it had noted the backyard was a 
16

plan to have four-year-old Minor and her five-year-old 

stepbrother share a room, noting the plan might be fine for the 

time being but the court would prefer separate rooms for the 

children of different sexes, or at least a partition between them, 

in a year or so.5 While the proposed sleeping arrangements may 

not have comported with the court’s ideal vision of a child’s room, 

that does not suffice to establish a detriment. (In re Nickolas T.

(2013) 217 Cal.App.4th 1492, 1505 [the fact a home is not ideal is 

not sufficient to establish detriment].) Neither the court nor the 

Department identified any genuine issues with the sleeping 

arrangements. 

In its briefing on appeal, the Department advances several 

additional arguments, not relied on by the juvenile court, that it 

believes would support the court’s detriment finding. The record 

lacks substantial evidence supporting these reasons too.

First, the Department argues Father’s prior failure to make 

active efforts to ensure Minor’s well-being indicated he would not 

have been invested in her care if she was placed in his physical 

custody. The Department posits that because Father did not 

previously seek custody of Minor or fight Mother’s decision to cut 

him out of Minor’s life, he would have difficulty meeting Minor’s 

needs for regular medical appointments, speech therapy, and 

educational needs. This, however, is conjecture. Father’s prior 

hazard because it was dirty and there were tools around that 

could potentially be a hazard.

5 The court’s discussion also seems to reflect a belief that 

Father’s ten-year-old daughter would be living in the room on a 

regular basis, rather than staying at the home every other 

weekend. 
17

unwillingness to fight Mother’s decision to prevent him from 

maintaining a presence in Minor’s life does not detract from 

Father’s stated desire to care for Minor or indicate he is unable to 

do so (especially given the assistance his wife intended to 

provide).

Next, the Department argues Minor did not indicate she 

wished to live with Father. As the Department acknowledges, a 

Minor’s wishes are not dispositive. (C.M., supra, 232 Cal.App.4th 

at 1403-1404.) Moreover, Minor also did not indicate she did not

want to live with Father, or that she did want to live with anyone 

else. That Minor did not affirmatively indicate a desire to live 

with Father does not establish a detriment. 

The Department also argues it was reasonable for Mother 

to be concerned about Father’s potential interference with her 

desire to reunify with Minor. It supports that assertion by 

referring to the conflicting descriptions Mother and Father 

provided regarding the reason their relationship ended, and by 

referring to Mother’s unsubstantiated report that Father had 

pulled Mother’s hair once while the two were in a relationship. 

The record contains no other indications of domestic violence, and 

Mother did not report the incident. The Department makes no 

effort to explain how these factors support a conclusion that 

placing Minor with Father would be detrimental to Minor’s 

safety, protection, or physical or emotional well-being. 

Finally, the Department argues the juvenile court 

reasonably determined Minor would suffer detriment if placed in 

Father’s custody based on the “totality of the factors.” But the 

totality of nothing is still nothing. Substantial evidence 

supporting a detriment finding does not exist here.
18

DISPOSITION

The juvenile court’s disposition order is reversed and the 

matter is remanded to the juvenile court to enter a new 

disposition order giving custody of Minor to Father—unless the 

juvenile court makes a finding on the record, based on evidence 

not before this court in this appeal, that changed circumstances

render the issue moot or would justify a detriment finding by 

clear and convincing evidence. In all other respects, the 

jurisdiction finding and disposition order are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

MOOR, J.