In re K.J. CA2/7 ( 2021 )

Filed 1/28/21 In re K.J. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re K.J., a Person Coming B302870
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF Super. Ct. No. 19CCJP04537A)
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JONATHAN J.,
Defendant and Appellant.
APPEAL from order of the Superior Court of Los Angeles
County, Steff Padilla, Juvenile Court Referee. Remanded with
directions.
Johanna R. Shargel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Amir Pichvai for Plaintiff and Respondent.
_______________________
Jonathan J. (Father) appeals from the juvenile court’s
disposition order declining to place his 11-year-old son K.J. in his
custody under Welfare and Institutions Code1 section 361.2.
Father argues the juvenile court erred by evaluating removal of
K.J. under section 361, subdivision (c), rather than section 361.2,
which applies to noncustodial parents, and failing to make the
necessary findings regarding K.J.’s placement pursuant to section
361.2. We reverse the disposition order removing K.J. from
Father and, if Father still desires custody of K.J., direct the
juvenile court to reconsider Father’s request for custody pursuant
to section 361.2 in light of Father’s and K.J.’s then-current
circumstances. We otherwise affirm the disposition order.
FACTUAL AND PROCEDURAL BACKGROUND
K.J. was born in January 2010 to D.L. (Mother) and
Father. Mother and Father married in 2011 and divorced in
September 2015.
A. Prior Dependency Proceedings
On November 13, 2012, the juvenile court sustained a
petition under section 300, subdivision (b)(1), based on Mother’s
“mental and emotional problems, including suicidal ideation,
suicide attempts, and a diagnosis of Mood Disorder NOS and
ADHD.” The petition further alleged that Mother’s problems
rendered her “incapable of providing regular care for [K.J.].” The
petition also alleged that Father “knew of the mental and
emotional problems of [Mother] and failed to protect [K.J.] in that
[Father] allowed [K.J.] to reside in the [Mother’s] home.” The
1 Statutory references are to the Welfare and Institutions
Code.
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juvenile court declared K.J. a dependent of the juvenile court and
detained K.J. from his parents. The juvenile court ordered
Mother to participate in individual counseling, submit to a
psychiatric evaluation, and take all prescribed medication and
ordered Father to obtain stable housing, complete individual
counseling, and submit to a mental health evaluation. On
June 27, 2014, because Mother and Father “did not make
significant progress with the case plan[s],” the juvenile court
terminated family reunification services. On October 23, 2014,
the juvenile court terminated jurisdiction and placed K.J. in a
permanent plan of legal guardianship with maternal aunt Janice
T. and uncle Deondray W.
In 2014, Mother gave birth to K.C., and in 2015 she gave
birth to K.L. On November 15, 2016, based on Mother’s “history
of mental and emotional problems,” the juvenile court sustained a
petition and detained K.C. and K.L. from Mother and presumed
father Calvin C. In February 2018, the juvenile court terminated
K.J.’s legal guardianship and ordered the Department to provide
Mother with reunification services. In September 2018, the
juvenile court terminated jurisdiction over K.J., K.C., and K.L.
and granted Mother sole legal and physical custody of the
children. Because of Father’s “unknown whereabouts,” the court
granted him monthly monitored visitation with K.J.
B. Current Dependency Proceedings
1. July 15, 2019 Incident and the Department’s
Investigation
On July 15, 2019, after receiving a report of a “woman
threatening to kill herself,” sheriff’s deputies responded to
Mother’s home. The deputies confiscated Mother’s firearm along
with ammunition and placed Mother on a 72-hour involuntary
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hold pursuant to section 5150. The Department removed K.L.
and K.C. from Mother’s custody. K.J. was not present because he
was visiting a relative. Once located, K.J. joined K.C. and K.L. in
protective custody. Mother’s cousin told the Department that
Janice and Deondray were willing to care for the children. Janice
and Deondray reported to the Department that K.J. “has been in
their home for most of his life” and that they were willing to care
for him again. After the Department’s assessment, the
Department cleared Janice for K.J.’s placement, but the
Department did not clear Deondray.
On July 16, 2019, after Mother had been discharged from
the hospital, Mother told the Department that, although she had
expressed that “she wanted to die,” “she did not say she was
going to kill herself.” Mother reported that she had been doing
“very well with her mental health treatment” and that she was
seeing “a therapist and psychiatrist” and taking prescribed
medications. However, Mother stated that she felt
“overwhelmed” by the recent death of maternal great aunt
Valerie S. Mother told the Department that Father was not
involved in K.J.’s life. In his July 17 interview with the
Department, K.J. stated that Father lived in Las Vegas and that
K.J. “went to visit him a while ago.” K.J. told the social worker
that “he want[ed] to go home, but he will always want to go” live
with Janice and Deondray. K.J. asked the social worker “if she
knew how long he had lived with them.” Although K.J. had been
diagnosed with ADHD, K.J. stated that he had “not taken
medication for a long time” and that he no longer “had a hard
time sitting still.”
On July 17, 2019, the Department left Father a voicemail
message requesting that he return the call.
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2. Dependency Petition and Detention Hearing
The Department filed a petition on July 17, 2019 on behalf
of K.L., K.C., and K.J. under section 300, subdivision (b). The
petition alleged “[Mother] has mental and emotional problems,
including suicidal ideation and a history of suicide attempts, a
diagnosis of Mood Disorder NOS, which render [Mother]
incapable of providing regular care of the children. . . . The
children are prior Dependents of the Juvenile Court due to
[Mother’s] mental and emotional problems. Such mental and
emotional problems on the part of [Mother] endanger the
children’s physical health and safety and place the children at
risk of serious physical harm, damage and danger.”
At the July 18 detention hearing, the juvenile court found a
prima facie case for detaining the children from Mother and
finding that the children were persons described by section 300.
The juvenile court detained the children from Mother and placed
them in the Department’s temporary custody and care. As to
K.L. and K.C., the juvenile court found it had “reason to believe
those children are Indian Children under the Indian Child
Welfare Act.” The court set a jurisdiction hearing for August 12,
2019. On August 2, the Department sent Father a letter
informing him of K.J.’s detention and the August 12 jurisdiction
hearing. The Department placed the children with separate
foster families.
C. Jurisdiction and Disposition Hearings
1. The Department’s Reports
During his interview in his foster home on August 6, 2019,
K.J. “appeared to have difficulty focusing on the conversation”
and he “often began to talk about unrelated information.” K.J.
denied hearing Mother express that she wanted to kill herself or
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witnessing Mother engage in violent or abnormal behavior. K.J.
reported that, while living with Mother, his cousin Marquis
“‘whooped me with a belt and, one time, he picked me up by my
shirt and he choked me.” K.J. stated that Mother was not at
home “when Marquis whooped him.” K.J. stated that “Marquis
used to live with him,” but Marquis moved out. According to
K.J., Marquis also “whooped” K.C. K.J. reported that maternal
great aunt Valerie “whooped” and “popped” the children and that
he thought about killing a teacher at his school. During K.C.’s
interview with the Department, when asked if Mother “would
sometimes whoop [K.J.] with a belt, K.C. responded: “No, she
will always whoop us with a belt when she gets mad or we’re
doing bad stuff.” K.C. reported hearing Mother say, “I want to
kill myself.” The Department reported that K.J. appeared to be
“developing age-appropriately” and that K.J., K.C., and K.L. were
“scheduled to be placed together in the home of maternal great
cousin, Kristi [W.]” on August 8, 2019. In response to a question
about his needs, K.J. stated, “‘To learn how to draw, me and my
dad are the only artistic ones in the family.’”
During an August 6 interview, Mother stated that “she did
not understand why her children were removed” from her
custody. Mother stated “she was involuntarily hospitalized even
though she was not homicidal or suicidal.” Mother further
reported that “she had a license for the gun because she had
obtained it through her job as a security guard.” Mother stated
that she “‘had no idea” about Marquis “choking” K.J. and
“whooping” the children. Mother knew that Valerie “hit the
children with an open hand on [their] hand[s].” After Mother
reported that “[K.C.] and [K.L.] were registered with the Salt
River Pima-Maricopa Indian Community through [Calvin],” she
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provided the Department the children’s tribe registration
numbers and advised that the tribe was involved in the previous
dependency proceeding.
While Mother had allowed K.J. to visit with Father during
their spring 2019 trip to Las Vegas, Mother reported: “[S]he
stopped allowing [K.J.] to see [Father] because he did not follow
through with the orders from the previous [dependency] case.
[Mother] reported concerns about [Father’s] mental health and
explained that he had a sexual abuse history as a minor, where
[Father] had been both a perpetrator and a victim.” Mother also
told the Department that Father had “disclosed that he had slept
with his biological sister and that he was in love with her so
[Mother] kept [K.J.] away from him by lying and saying that
[K.J.] was occupied with other things when [Father] asked to see
[K.J.].”
During an August 7 telephonic interview, Father reported
that he had been living in Las Vegas for five or six years and that
he shared a two-bedroom home with his wife and their two young
children. Father also reported that there was a bed for K.J. in
the children’s room. Although he was not currently working and
“was in his first year of college,” Father stated that his wife was
employed and that “he was using financial aid to cover bills.”
Father reported that he and his siblings “were raised in foster
care, as a result of paternal grandfather sexually abusing them.”
Father denied having any mental illness, a criminal history, or a
history of “sexual abuse as a perpetrator.”
Father reported that he had prevented Mother from
committing suicide “a couple of times.” However, Father had not
mentioned Mother’s suicide attempts during the prior
dependency proceeding because he did not want Mother to “look
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bad.” In retrospect, Father stated he would have disclosed
Mother’s previous suicide attempts if he had known “that this
was going to be a pattern.” Father stated, “[H]e didn’t want
[Mother] to be in jail or anything like that so [he] shut up.’”
Father also stated that he thought Mother’s mental health had
“stabilized” because the juvenile court released K.J. to Mother’s
custody in 2018. Father reported that he had been involved in
K.J.’s previous dependency case and that he had asked for
custody of K.J.. However, according to Father, “[Mother] told her
attorney that [Father] had been sexually abused by paternal
grandfather and this was held against [Father].” Father added,
“[H]e never gained custody of [K.J.] because his history as a
sexual abuse victim was continuously held against him.” Father
also reported that “even though he was a non-offending parent”
and the juvenile “court never ordered him to do anything,” “he
voluntarily participated in a parenting class through his church.”
Father reported speaking with K.J. consistently between
October 2018 and May 2019. However, when Valerie “passed
away, there’s been like a different side to [Mother] where [Father
was] just kind left out of the loop.” Although Father he did not
“want to badmouth” Mother, Father “was willing to do anything
to gain custody of [K.J.].” Father stated: “‘[He was] just sad that
it took this long to get [K.J.] and under these circumstances.’”
Father also reported that he and K.J. “‘don’t communicate that
much because [Mother] usually tells [Father] she’s at work’”
when Father calls to speak with K.J. Father reported that, when
he called Mother on July 31 to speak with K.J., Mother had
“made it seem like everything was okay” and that she had not
informed Father about the current dependency proceeding.
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Father reported he had last seen K.J. in May 20192 when
Mother and her three children traveled to Las Vegas to visit
K.J.’s maternal grandmother after Valerie’s death. Father stated
that during their visit, Mother was “drinking, crying, and . . .
talking about ending her life.” Father stated: “‘The reason [he]
didn’t take it too extreme was because her aunt had just passed
away so [he] didn’t judge her for that.’” Father told the
Department: “[D]uring this visit to Las Vegas, [K.J.] said he
wanted to live with [Father] but, when [Father] talked to
[Mother] about it, she got upset and said that [K.J.] could not live
with [Father] because [Father] had not gone to court to fight for
custody.” When asked what specifically K.J. had said about
“preferring to live with [Father] over [Mother],” Father stated:
“He said [he] don’t feel safe. [He] want[ed] to live with [Father].
[He] just want to stay with [Father]. [K.J.] was basically crying
his heart out and . . . he explained to [Father] that [Mother] had
talked about suicide a few times and [K.J.] didn’t like it.” Father
stated that “he wanted [K.J.] to remain in his care but [Father]
did not have legal custody and did not want to get charged with
kidnapping.”
Father told the Department that, because he lived in Las
Vegas, he would not be able to attend the August 12 hearing.
The Department provided Father with information for him to
contact K.J. and participate in the August 12 hearing. As to
Father, the Department concluded: “[I]t appears that [Father]
was not forthcoming regarding his criminal history and sexual
abuse history as a perpetrator, as [Father’s] CLETS results
2 Mother testified that her trip to Las Vegas took place in
March 2019, rather than in May.
9
indicate hits for sexual crimes as a minor. Given this information
and the concerns expressed by [Mother] during previous court
proceedings, the Department believes it would be in the best
interest of [K.J.] for [Father] to participate in parenting classes,
a mental health evaluation and individual counseling, as
previously ordered; [Father] to participate in all recommended
treatment including medication compliance.” The Department
recommended that the juvenile court detain the children from
their parents, declare them dependents of the juvenile court, and
place them under the Department’s care and custody.
2. August 2019 Jurisdiction Hearings
At the August 12 hearing, the juvenile court confirmed that
Father had contacted the court. After finding “good legal cause to
continue the matter over Mother’s strenuous objection” so that
Father could speak with his counsel, the juvenile court confirmed
that the children “are now in an [ICWA] compliant home and
they are together.” At the continued hearing on August 19, 2019,
after Father’s counsel stated that Father was “interested in
placement and Father was “non-offending on this petition,” the
juvenile court continued the jurisdiction hearing to August 26,
2019. At the August 19 hearing during a discussion with the
court, Mother stated: “[I]t came to my attention out of his mouth
that [Father] had sex with his own sister, cheated on his new
wife with his own sister. He was kicked out the house. After I
learned that, I kept [K.J.] away from [Father].” The juvenile
court responded: “I understand that Ma’am. I’m not returning
[K.J.] to [Father]. What I’m indicating to you, Ma’am, is [Father]
has a right to have an attorney just like you do. [Father’s]
attorney was just appointed this morning. . . . I’m not giving
[K.J.] to his Father. . . . He had a right to be present. He ha[s] a
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right to have an attorney and be prepared for trial. . . . I’m doing
a very, very short turnaround for [Father’s] attorney to be
present, and we will be going forward on that next date. Okay. I
just wanted to explain to you why I was doing what I was doing.
Okay.” On August 22, 2019, Father advised the Department that
he would be unable to attend the August 26 hearing.
At the August 26 jurisdiction hearing, Mother testified
about her mental health history, the incident on July 15, her visit
to Las Vegas with the children, and the progress with her case
plan. After pointing out that Father was nonoffending on the
petition, Father’s counsel waived argument at the hearing. The
children’s counsel submitted on the Department’s
recommendation. The juvenile court sustained the petition under
section 300, subdivision (b), declared K.J. a dependent of the
court, and ordered K.J. to remain placed with his relative under
the Department’s supervision. After Father’s counsel stated that
Father and K.J. were “having some phone contact,” the juvenile
court ordered the Department to provide an update regarding
Father’s visits with K.J. for the next hearing. The juvenile court
scheduled the disposition hearing for October 3, 2019. In a last
minute information for the court filed on October 3, 2019, the
Department stated that Father had not visited K.J. since his
removal from Mother.
3. October 2019 Disposition Hearing
At the October 3, 2019 contested disposition hearing, after
Mother testified and introduced evidence in support of her
progress with the case plan. Father’s counsel argued: “[Father]
was interviewed for the jurisdiction report in which he indicated
he was seeking custody. He’s non-offending in this petition, and I
don’t believe that there really has been a serious effort to assess
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whether or not release to Father would be appropriate at this
time. He does live in Las Vegas. . . . I don’t believe that there’s
sufficient evidence to not release—I don’t believe there’s
significant evidence of a detriment under 361.2 to avoid releasing
[K.J.] to Father at this point. I do understand the Department in
the jurisdiction report was concerned about a sex crime that is in
Father’s CLETs from when he was a juvenile; however, Father
was approximately 14 years old at the time of that incident, and
the current reports have no information about any of the
substance of that matter. Father . . . has made efforts to be in
contact with the child. He’s noncustodial. He’s non-offending. I
believe that absent a count pleaded against the Father absent
evidence of detriment that we have to release [K.J. to Father].”
Counsel for the children submitted on the Department’s
recommendation.
The juvenile court found that “return of the children to the
care, custody, and control of . . . the parents places the children at
imminent risk of physical and emotional harm. The court’s going
to order removal. . . . And that’s to [M]other and as to the fathers.
The juvenile court’s October 3 minute order stated: “The Court
finds by clear and convincing evidence, pursuant to . . . sections
361(a)(1), 361(c), 361(d), and 362(a), and additionally applying to
noncustodial parent(s)/legal guardian(s) the constitutional and
statutory safeguards available to custodial parents. [¶] It
is reasonable and necessary to remove the child from the
parents . . . because there is a substantial danger to the physical
health, safety, protection, or physical or emotional well-being . . .
of the child, and there are no reasonable means by which the
child’s physical health can be protected, without removing the
child from the home and the care, custody, and control of that or
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those parent(s)/legal guardian(s). [¶] The Court further finds
that it would be detrimental to the safety, protection, or physical
or emotional well-being . . . of the child to be returned to or placed
in the home or the care, custody, and control of that or those
parent(s)/legal guardian(s).” The juvenile court did not mention
section 361.2 at the hearing or in its minute order.
The juvenile court ordered Mother and Father to enroll in
parenting classes and individual counseling and “take all
prescribed psychotropic medications.” The court further ordered
monitored visitation for Father and “unmonitored visitation in
placement” for Mother. The juvenile court scheduled a six-month
review hearing (§ 366.21, sub. (e)). The juvenile court found that
K.C. and K.L. were Indian children under ICWA. The juvenile
court determined that K.J. was not an Indian child under ICWA.
Father did not attend the hearing.
On August 28, 2020, at Father’s request, the juvenile court
continued the six-month review hearing to September 17, 2020
for a contest regarding K.J.’s “release” to Father.3 The juvenile
court ordered Father “to make himself available for possible
testimony.” At the September 17 six-month review hearing,
Father withdrew his request for a contested hearing. After
finding Mother’s and Father’s progress with their case plans had
“not been substantial,” the court scheduled an 18-month
permanency review hearing (§ 366.22) for January 15, 2021. At
the hearing on January 15, 2021, the juvenile court terminated
Mother’s and Father’s reunification services and scheduled a
3 We take judicial notice of the juvenile court’s August 28,
2020, September 17, 2020, and January 15, 2021 minute orders
pursuant to Evidence Code sections 452, subdivision (d), and 459.
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section 366.26 selection and implementation hearing for April 12,
2021. Because Father withdrew his request for a contested
hearing on September 17, 2020, it is unclear whether Father is
still seeking custody of K.J.
Father timely appealed the October 3 disposition order.
DISCUSSION
A. Substantial Evidence Did Not Support The Juvenile
Court’s Order
1. Applicable Law
Section 361, subdivision (c), authorizes the court to remove
a child from “the physical custody of his or her parents . . . with
whom the child resides at the time the petition was initiated [if]
the juvenile court finds clear and convincing evidence [that] . . .
[¶] [t]here is or would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of
the minor if the minor were returned home, and there are no
reasonable means by which the minor’s physical health can be
protected without removing the minor from the minor’s parents’
. . . physical custody.”
Section 361.2, in contrast, is not a removal statute. (In re
Luke M. (2003) 107 Cal.App.4th 1412, 1422.) Rather, section
361.2 governs placement of a child after the dependency court
has acquired jurisdiction of a child, and “evinces the legislative
preference for placement with the noncustodial parent when safe
for the child.” (In re Patrick S. (2013) 218 Cal.App.4th 1254,
1262.) Section 361.2, subdivision (a), provides: “When 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
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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.” Section 361.2, subdivision (c), provides:
“The court shall make a finding either in writing or on the record
of the basis for its determination under subdivisions (a) and (b).”
The detriment standard, “while vaguely worded to be sure, must
be construed as a fairly high one. It cannot mean merely that the
parent in question is less than ideal, did not benefit from the
reunification services as much as we might have hoped, or seems
less capable than an available foster parent or other family
member. [¶] We do not get ideal parents in the dependency
system. But the fact of the matter is that we do not get ideal
parents anywhere.” (David B. v. Superior Court (2004) 123
Cal.App.4th 768, 789; accord, In re C.C. (2009) 172 Cal.App.4th
1481, 1490.)
A court’s ruling that a child should not be placed with a
noncustodial parent requires the finding of detriment to be made
by clear and convincing evidence. (See In re Marquis D. (1995) 38
Cal.App.4th 1813, 1827-1828 [“[a] parent’s right to care, custody
and management of a child is a fundamental liberty interest
protected by the federal Constitution that will not be disturbed
except in extreme cases where a parent acts in a manner
incompatible with parenthood”]; In re Karla C. (2010) 186
Cal.App.4th 1236, 1243 [“[t]he noncustodial ‘parent has a
constitutionally protected interest in assuming physical custody,
as well as a statutory right to do so, in the absence of clear and
convincing evidence that the parent’s choices will be ‘detrimental
to the safety, protection, or physical or emotional well-being of
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the child””]; In re Henry V. (2004) 119 Cal.App.4th 522, 530
[“[d]ue process requires the findings underlying the initial
removal order to be based on clear and convincing evidence”].)
“We 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 child[ ] would suffer such detriment.” (In re
Luke, supra, 107 Cal.App.4th 1412, 1426; accord, In re Patrick S.,
supra, 218 Cal.App.4th at p. 1262.) “When reviewing a finding
that a fact has been proved by clear and convincing evidence, the
question before the appellate court is whether the record as a
whole contains substantial evidence from which a reasonable
factfinder could have found it highly probable that the fact was
true.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
The court in In re Marquis D., supra, 38 Cal.App.4th 1813explained the importance of the clear and convincing standard for
the section 361.2 detriment finding: “Here, we do not deal with
the termination of parental rights but rather with the denial of
placement with a noncustodial parent. However, the trial court’s
decision at the dispositional stage is critical to all further
proceedings. Should the court fail to place the child with the
noncustodial parent, the stage is set for the court to ultimately
terminate parental rights. At all later review hearings, the court
may deny return of the child to the parent’s physical custody
based on a finding supported only by a preponderance of the
evidence that return would create a substantial risk of detriment
to the child’s physical or emotional well-being. [Citations.] [¶] If
a preponderance of the evidence standard of proof is applied to
deny initial placement with the noncustodial parent, that parent
may have his or her parental rights terminated without the
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question of possible detriment engendered by that parent ever
being subjected to a heightened level of scrutiny. Moreover,
applying a clear and convincing standard of proof to remove
custody from the custodial parent while denying placement with
the noncustodial parent based on a preponderance of the evidence
would lead to the anomalous result that a parent who had no
connection with the circumstances that brought the child within
the jurisdiction of the court could have his or her rights
terminated upon a lesser showing than the parent who created
those circumstances.” (In re Marquis D., at p. 1829; see In re
C.M. (2014) 232 Cal.App.4th 1394, 1401-1402.).
2. Substantial Evidence Did Not Support a Detriment
Finding
K.J. did not reside with Father at the time the events or
conditions arose that brought K.J. within the provisions of
section 300. And Father made clear he wanted custody of K.J.
Therefore, the juvenile court had an obligation under section
361.2, subdivision (a), to place K.J. with Father unless the court
found by clear and convincing evidence that placement with
Father would be detrimental to K.J.’s safety, protection, or
physical or emotional well-being. (See In re C.M., supra, 232
Cal.App.4th at p. 1401 [“[t]o comport with due process, the
detriment finding must be made under the clear and convincing
evidence standard”].) Father argues the juvenile court
“unmistakably erred in applying section 361, not section 361.2” to
Father’s request for custody. Father also argues that “this is not
the ‘clear-cut case’ in which detriment can be implied under
section 361.2, requiring remand to the juvenile court for a new
disposition hearing.” The Department argues that “the record
does not support Father’s contention that the court did not apply
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Section 361.2 to him” because “the language in the [October 3,
2019] minute order mirrors the language in Section 361.2,
subdivision (a).” The Department further argues that, even if the
juvenile court “did not apply Section 361.2 to the Father, such
error was harmless as the evidence of detriment required by the
statute was ‘clear’ in this case.”
We agree with the Department that, although the juvenile
court did not reference section 361.2, the court included language
in its minute order that arguably tracks the language of section
361.2.4 Further, there was no question that the court made a
“substantial danger” finding under section 361, subdivision (c), as
to Father. Because it is questionable whether there is any
substantive difference between the standards in section 361,
subdivision (c), and section 361.2, subdivision (a),5 substantial
4 As stated, the October 3, 2019 minute order provided: “The
Court finds by clear and convincing evidence, pursuant to . . .
sections 361(a)(1), 361(c), 361(d), and 362(a), and additionally
applying to noncustodial parents(s)/legal guardian(s) the
constitutional and statutory safeguards available to custodial
parents. [¶] . . . [¶] The Court further finds that it would be
detrimental to the safety, protection or physical or emotional
well-being . . . of the child to be returned to or placed in the home
. . . of . . . those parent(s)/legal guardian(s).”
5 As stated, section 361, subdivision (c) permits the juvenile
court to remove a child from a parent’s custody only if it finds
clear and convincing evidence of “a substantial danger to the
physical health, safety, protection, or physical or emotional well-
being of the minor if the minor were returned home . . . .” (§ 361,
subd. (c).) Section 361.2 requires placement with a noncustodial
parent “unless [the court] finds [by clear and convincing evidence]
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evidence to support removal under section 361, subdivision (c),
would almost certainly equate to a finding of detriment under
section 361.2, subdivision (a). (See In re D’Anthony D. (2014) 230
Cal.App.4th 292, 303 [“we can neither ignore the similarity
between these statutes’ mandatory findings, nor disregard the
evidence supporting the court’s ‘substantial danger’ finding
concerning placement with father”].) However, reversal is
nonetheless required because substantial evidence did not
support a detriment finding under section 361.2.
Although the Department had the burden to establish
detriment and the “nonoffending parent does not have to prove
lack of detriment” (In re C.M., supra, 232 Cal.App.4th at p. 1402;
In re Jonathan P. (2014) 226 Cal.App.4th 1240, 1256), the
Department submitted virtually no evidence concerning Father’s
competence as a parent, his ability to provide for K.J.’s needs, or
other factors that might support a finding that placing K.J. with
Father would be detrimental to K.J. There was a paucity of
information about how Father’s background, including his
juvenile criminal conviction, might impact his ability to parent
K.J. The Department did not conduct an investigation regarding
Mother’s accusation about Father’s alleged inappropriate sexual
conduct. There was no information regarding the nature and
extent of reunification services Father had completed during the
prior dependency proceeding or the basis for the juvenile court’s
order granting Mother sole legal and physical custody of K.J.
Nor was there information regarding K.J.’s relationship with
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).)
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K.C. and K.L. Rather, the Department recommended that the
juvenile court detain K.J. from Father based on his criminal
record and Mother’s accusations. However, while Father had not
visited K.J. during the current dependency proceeding, K.J. had
expressed a desire to live with Father and had confided in Father
regarding Mother’s problems. Mother admitted that she impeded
Father’s contact with K.J. In any event, “[a]n ‘alleged lack of a
relationship between [a] father and [a child] is not, by itself,
sufficient to support a finding of detriment for purposes of section
361.2, subdivision (a).’” (In re Adam H. (2019) 43 Cal.App.5th 27,
32-34; see In re Liam L. (2015) 240 Cal.App.4th 1068, 1086
[“‘where a child has a fit parent who is willing to assume custody,
there is no need for state involvement unless placement with that
parent would create a substantial [risk] of detriment to the
child’”]; In re Patrick, supra, 218 Cal.App.4th at p. 1263 [“[w]hen
the parent is competent, the standard of detriment is very
high”].)
Given the lack of information about the factors that might
support a finding that placing K.J. with Father would be
detrimental to K.J., substantial evidence did not support such a
finding under section 361.2, subdivision (a). (In re K.B. (2015)
239 Cal.App.4th 972, 980 [mother failed to provide clear and
convincing evidence that placement of child with father was
detrimental to child where father could provide “safe, healthy,
and happy home”]; In re Patrick S., supra, 218 Cal.App.4th at p.
1263 [agency did not prove by clear and convincing evidence
placement of child with father in Washington State would be
detrimental to child where father was “competent, caring and
stable parent,” even though child was anxious about moving to
live with father and father was scheduled to deploy with the
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Navy].)
Therefore, we reverse the disposition order. On remand, if
Father still desires custody of K.J., the juvenile court is to
reconsider placement of K.J. pursuant to section 361.2 based on
the facts existing at the time of the proceeding. (See In re
Abram L., supra, 219 Cal.App.4th at p. 464, fn. 6 [“[o]n remand
the juvenile court must make a decision based on the facts
existing at the time of the further proceedings”].)
DISPOSITION
The disposition order denying Father’s request for
placement of K.J. with him is reversed. On remand, if Father
still desires custody of K.J., the juvenile court is to reconsider
that request pursuant to section 361.2 in light of Father’s and
K.J.’s then-current circumstances. In all other respects, the
disposition findings and order are affirmed.
DILLON, J.*
We concur:
PERLUSS, P. J. FEUER, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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