In re Camila M. CA2/8 ( 2021 )

Filed 1/22/21 In re Camila M. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re Camila M., a Person B307092
Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 20CCJP00692A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
BRYAN P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Victor G. Viramontes, Judge. Affirmed.
William Hook, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, Acting County Counsel, Kim
Nemoy, Assistant County Counsel, and Navid Nakhjavani,
Deputy County Counsel, for Plaintiff and Respondent.
**********
Father Bryan P. appeals from the dispositional order
removing his then nearly three-year-old daughter, Camila M.
from his custody. Father argues that because he was a
noncustodial parent, had no right to custody of Camila, and never
requested custody of her, the court had no legal basis to remove
her from his care under Welfare and Institutions Code
section 361, subdivisions (c), (d), or section 361.2, subdivision (a).1
Father does not challenge the juvenile court’s jurisdictional
findings, or any other aspect of the court’s dispositional order.
Respondent contends father forfeited any challenge to the
removal order by failing to object, and that removal was
warranted under section 361, subdivision (d), which applies to
noncustodial parents. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This family came to the attention of the Los Angeles
County Department of Children and Family Services
(Department) in December 2019, after mother and father were
involved in a domestic violence incident. (Mother was found to be
nonoffending, and is not a party to this appeal.) As mother was
driving, father attempted to remove Camila from her car seat.
Mother told father it was unsafe, and slammed the brakes, not
realizing the child had already been removed from her seat.
Camila hit her head on the console as the car abruptly stopped,
causing a small bump. Father became enraged, dragged mother
from the car, and repeatedly punched her until bystanders
intervened. According to mother, father was holding Camila as
he struck her, and Camilla was yelling “Mommy!” Father was
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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arrested and charged with inflicting corporal injury on a spouse.
Father ultimately pled no contest to a violation of Penal Code
section 273.5 and was sentenced to nine days in jail and
probation. The court also issued a criminal protective order
protecting mother.
Mother and father were no longer in a romantic
relationship. Mother and Camila lived with mother’s boyfriend
and maternal relatives. According to mother, Camila lives
“primarily with mother” but has overnight visits with father.
One time, father refused to return Camila to mother, and she left
Camila in his care after paternal grandmother threatened to call
police to report that mother was trespassing. According to
mother, father’s contact with Camila is inconsistent.
Father lives with paternal grandmother. Their home was
filthy, with trash, clothes, dishes, and dog feces strewn on the
floor. Father confirmed that Camila visits him there, but told the
Department she rarely sleeps over. However, he tries to see her
daily. According to father, there was a family law case
concerning Camila, but they had not yet established a visitation
schedule. Father has a diagnosis of severe depression, but does
not take medication. He was no longer receiving mental health
services due to insurance issues.
According to paternal grandmother, father was in the
process of obtaining a family law order, and there was a
mediation scheduled for January 2020. However, neither father
nor paternal grandmother ever provided paperwork concerning
the family law case to the social worker.
Mother denied that there was a family law order and said
she “wants nothing to do with father,” but then told the social
worker she has “full custody and father only has visits.” She said
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father had not served her with any paperwork pertaining to
custody or visitation.
Father has a history of domestic violence. In July 2019,
father repeatedly punched paternal grandmother on her face and
body, and choked her so hard that she saw white and could not
breathe. He pushed and kicked paternal aunt when she tried to
intervene to help their mother.
In August 2019, father threatened to kill his then girlfriend
after she refused his marriage proposal. He put a knife to her
throat, choked her and beat her. He also threatened to kill
himself if she left him.
At the detention hearing, father’s counsel represented that
father has daily contact with his daughter and is her “main
caregiver.” Father also filed a “Statement Regarding Parentage”
stating that Camila lived with him “off and on” since birth, and
spends time with his family every week.
Mother’s counsel represented that the child only had
“sporadic” overnight visits with father, and argued that he had
not achieved the status of a presumed father. The court found
father to be a biological father, and deferred addressing whether
father was entitled to presumed father status until the
adjudication hearing. The court detained Camila from father,
and released her to mother.
At the adjudication hearing, the parties submitted on the
Department’s reports, and no oral testimony was taken. The
court sustained allegations in an amended petition against
father, based on his mental health, domestic violence history, and
the car seat incident. Mother was found to be nonoffending.
Father did not argue against removal, or contend removal
was unwarranted. The court removed Camila from father, and
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ordered father to participate in reunification services. The court’s
minutes state that removal was warranted under “sections
361(a)(1), 361(c), 361(d) and 362(a).” The court did not further
address father’s paternity status. This timely appeal followed.
DISCUSSION
Father contends there is no evidence he was a custodial
parent, or otherwise entitled to custody, and he never requested
custody of Camila, so there was no statutory basis for the court’s
removal order under section 361, subdivisions (c), (d) or
section 361.2, subdivision (a).2
Respondent argues this issue was forfeited because father
never objected on this basis below. Notwithstanding father’s
failure to object, we exercise our discretion to reach the merits of
his claim. (See In re Dakota J. (2015) 242 Cal.App.4th 619, 630
[whether a juvenile court has statutory authority to order
removal under § 361, subd. (c) presents a question of law which
may be reviewed in absence of an objection below]; see also In re
R.V. (2012) 208 Cal.App.4th 837, 848 [a claim that the evidence is
insufficient to support a dispositional order “is not forfeited even
if not raised in the juvenile court”].)
Section 361, subdivision (c) applies only to removal from
custodial parents with whom the child resided at the time the
petition was initiated. (In re Abram L. (2013) 219 Cal.App.4th
2 It appears the parties and the court treated him as a
presumed father at the jurisdiction and disposition hearing. We
will assume he is a presumed father for purposes of resolving this
appeal, without prejudice to the juvenile court making a finding
in future proceedings that he is not a presumed father, if the
circumstances warrant such a finding. (In re Zacharia D. (1993)
6 Cal.4th 435, 454–455.)
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452, 460; see also § 361, subd. (c) [“A dependent child shall not be
taken from the physical custody of his or her parents . . . with
whom the child resides at the time the petition was
initiated . . . .”].) The evidence is conflicting, but we will assume
without deciding that Camila did not reside with father for
purposes of removal pursuant to section 361, subdivision (c).
A noncustodial parent must request custody for
section 361.2, subdivision (a) to apply, and section 361.2 applies
only to nonoffending parents. (In re John M. (2013) 217
Cal.App.4th 410, 425; see also § 361.2, subd. (a) [when parent
with whom the child did not reside when the conditions giving
rise to jurisdiction arose requests custody, the court shall place
the child with that parent unless it finds it would be detrimental
to do so].)
Father did not request custody of Camila, the court never
made a detriment finding under section 361.2, and father is an
offending parent. Therefore, section 361.2 does not apply.
But section 361, subdivision (d) supports removal.
Section 361, subdivision (d) provides that “[a] dependent child
shall not be taken from the physical custody of his or her parents
. . . with whom the child did not reside at the time the petition was
initiated, unless the juvenile court finds clear and convincing
evidence that there would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of
the child for the parent . . . to live with the child or otherwise
exercise the parent’s . . . right to physical custody, and there are
no reasonable means by which the child’s physical and emotional
health can be protected without removing the child from the
child’s parent’s . . . physical custody.” (Italics added.) This
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section controls removal of children from noncustodial parents.
(See In re S.S. (2020) 55 Cal.App.5th 355, 373.)
Father contends he did not have a “right to custody” as
required by section 361, subdivision (d). Whether or not father
had a “right to custody,” section 361, subdivision (d) applies when
there is clear and convincing evidence of a substantial danger for
the parent either to live with the child or otherwise exercise the
parent’s right to physical custody. The family law status of the
case was unclear, with mother claiming to have full custody and
father claiming the child consistently lived with him. The record
does not include an order establishing mother’s exclusive custody
of the child. Regardless of the legal custody arrangement, it is
undisputed that father visited with Camila and kept her
overnight. There was ample evidence to support a finding that
there would be a “substantial danger” for father “to live with the
child or otherwise exercise [his] right to physical custody.” (Ibid.)
Father also contends the Department never attempted to
prove that section 361, subdivision (d) applied, and that the
juvenile court did not apply section 361, subdivision (d) when
making its removal order. But the court’s minutes expressly
state that removal was warranted under “sections 361(a)(1),
361(c), 361(d) and 362(a).” Father did not object or offer any
argument against removal, and there was no argument
concerning the legal basis of the removal order. Disposition
proceeded on the basis of the Department’s reports, which
contained ample evidence, discussed ante, concerning custody
and the danger of Camila living with father.
We see no prejudice to father from the removal order.
Although an erroneous removal order may prejudice a parent by
interfering with a parent’s liberty interest in caring for their
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child, and by “start[ing] the clock running on reunification
efforts” leading to the potential termination of parental rights (In
re Dakota J., supra, 242 Cal.App.4th at pp. 630–632), we find no
prejudice here, where father has not challenged jurisdiction, or
any other aspect of the court’s dispositional order (such as the
requirement that he participate in services and that his visitation
be monitored).
DISPOSITION
The removal order is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.
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