Filed 1/7/15 In re S.F. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
In re S.F., Jr., a Person Coming Under the B256408
Juvenile Court Law. (Los Angeles County
Super. Ct. No. DK03397)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
S.F., Sr.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Stephen
Marpet, Commissioner. Affirmed in part and reversed in part with directions.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
Richard D. Weiss, Acting County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
——————————
S.F., Sr., (father) appeals from a dispositional order denying his request for custody of
his six-month-old son, S.F., Jr., (S.F.) who was removed from his mother’s custody under
Welfare and Institutions Code section 361.1 Father contends the juvenile court erred when it
amended the allegations of the petition to conform to proof at the jurisdictional hearing after
respondent Department of Children and Family Services (DCFS) had chosen not to do so,
and that the evidence is, in any event, insufficient to support the sustained amended
allegation against him. Father argues further that the juvenile court erred by failing to
consider and make appropriate findings regarding his custody request under section 361.2.
We conclude that father’s final contention has merit. Accordingly, we will reverse the
dispositional findings as to father and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On February 2, 2014,2 DCFS received a referral that L. P. (mother), the mother of
then six-month-old S.F., had untreated mental health issues (had been diagnosed as bipolar
and/or schizophrenic, had hallucinations and heard voices), and was providing inadequate
care for her son. According to the referral, the mother kept the “very skinny” child on a diet,
the baby’s diaper often was soaked through to his clothing, and he cried continuously while
mother yelled at him to shut up. The referral also alleged that mother often left S.F. alone for
30 to 60 minutes and that father, who had recently been released from prison, was not
involved in the infant’s care and did not reside in the home.3
A Children’s Social Worker (CSW) visited mother’s home the day DCFS received
the referral. During that visit, mother confirmed she had been diagnosed as bipolar, but
claimed she could control her illness. Mother told the CSW she lived alone with S.F. and did
not receive help from or get along with anyone. When the CSW asked mother if she had
1All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2 All further date references are to 2014.
3 Mother is not a party to this appeal.
2
been involved in a violent relationship, she responded that she “beat the shit out of people.”
Mother said she took good care of S.F. and denied that he had any medical issues. Mother
said father visited S.F. sometimes, but could not recall when he had last seen his son. Father
had been in prison and was currently on parole. Mother later told DCFS that father was
present at S.F.’s birth, had lived with her and the baby for about a month and provided for
S.F. “whenever he could.”
Mother agreed to participate in a metal health assessment the results of which
revealed she was bipolar with psychotic features. Mother told the assessor she wanted to but
had been unable to refill her prescription medications because her doctor wanted to place her
on an involuntary psychiatric hold pursuant to section 5150. She revealed that she had
previously been placed on section 5150 holds five times and had been threatened with
another section 5150 hold the week before. Mother said father had a medical marijuana card
and she and he smoked marijuana the month before.
The CSW interviewed the maternal grandmother (grandmother) who expressed
concerns about S.F.’s safety in mother’s care due to her mental health problems and refusal
to seek treatment. Grandmother said mother had stopped taking psychotropic medication for
her schizophrenia and bipolar disorder about three years earlier. She had visited mother and
S.F. the previous weekend. The weather was cold, but mother had dressed the infant in
nothing but a shirt. As was her habit, mother also had not fed S.F. much and left him in a
wet diaper for long periods of time until grandmother ultimately changed him. Grandmother
said mother received no help from father, who only occasionally visited S.F., and that mother
was about to be evicted. Grandmother said mother’s neighbors told her that mother and
father were “always fight[ing],” but didn’t know if the fights were verbal or physical. The
neighbors were afraid of mother and father and did not want to get involved. To
grandmother’s knowledge, mother had been placed on section 5150 holds three times.
Grandmother said she was afraid of father, whom she had met only once at the child’s birth.
He was purportedly a gang member and told grandmother he “doesn’t threaten, he just
makes things happen.”
3
S.F. was taken into protective custody on February 4. The child’s diaper was
saturated and his clothes, including his socks, were drenched with urine, the skin on his
pelvis, inner thighs and the tip of his penis was red and irritated, he had discharge in one eye,
and the back of his head was flat, suggesting the infant had spent long periods of time lying
on his back.
The following day the CSW met father. He said he had been homeless for the past
four or five years, and slept in parks, at friends’ homes or on the streets. Father did not have
a regular work schedule, but worked odd jobs to provide for S.F. Father said he visited S.F.
every 10 days or two weeks, and stayed for up to a week at a time. Father told the CSW he
brought diapers, clothes and formula and provided his son everything he needs. He and
mother had prepared for S.F.’s birth, buying a bassinet, playpen and clothing, and father had
pawned his jewelry to buy things for his son. Father wanted S.F. released to his custody so
he could arrange for him to live with a paternal aunt. Father was unconcerned when the
CSW described S.F.’s condition when taken into protective custody (i.e., his red and irritated
thighs and urine-soaked clothing). He said mother acted normal with S.F. when he was
around, was not abusing his son and that DCFS lacked a “leg to stand on.”
At first, father denied any criminal history. He later admitted having served a 20-year
sentence, but told the CSW he had done his time and was done talking about it.4 Father then
became confrontational and told the CSW he had not been in “‘no chicken shit prison. [He]
was in San Quentin, Folsom, Pelican Bay, [he] was in real prison and [he wasn’t] afraid to go
back.’” Father threatened that if DCFS did not return S.F. to his custody at the upcoming
hearing he would “‘drop the hammer’” and “‘call every channel and newspaper.’” He
explained that mother did not know how to defend herself, but he had told her, “‘Don’t just
bark, throw chairs because chairs hurt. Then, they will listen.’” He threatened that at the
hearing he would stop barking, would “‘show the judge’” and it would “‘be bad.’” Father
believed that mother’s neighbors were the source of the referral and planned to confront
4Father’s criminal history includes convictions for resisting arrest, disorderly
conduct, robbery, vandalism, assault with a firearm and kidnapping.
4
them. After the CSW advised him to remain calm, father replied, “‘You’re now acting like
a lieutenant, captain, from Folsom, San Quentin, Pelican Bay . . . “Think about your release
date. Don’t do it, Son.’” Father refused to discuss his gang affiliation.
On February 7, DCFS filed a section 300 petition on behalf of S.F. The petition
alleged that S.F. was at risk due to mother’s history of substance abuse and mental health
problems and her failure to take prescribed psychotropic medication, and because of father’s
historical and current marijuana use. The court found father to be a presumed father. On
February 14, S.F. was detained and placed with his maternal grandparents, and the parents
were given monitored visitation. At first, grandmother refused to monitor father’s visits; that
changed later.
On March 25, DCFS interviewed father in connection with its report for the April 3
jurisdictional/dispositional hearing. Father reported that he had never used drugs and never
saw mother use drugs or alcohol. Father conceded that he understood when he met mother
that she “‘was not playing with a full deck.’” She told him she had been diagnosed with
schizophrenia, heard voices and admitted she was “‘not all there.’” He knew she had been
hospitalized for mental health problems, that she was not taking medication and that she
sometimes got hostile if someone gave her directions or instructions. Father also told DCFS
that after S.F.’s birth, mother was hesitant to bathe, clean or feed him, and sometimes let S.F.
continue to cry without responding to him. On several occasions he had instructed mother to
feed and tend to S.F., but she refused. He had constantly instructed and educated mother as
to how to bathe, feed, burp and clean S.F. because she either did those things incorrectly or
refused to do them at all.
Father had very actively cared for S.F. at first, but left the family home when S.F. was
three weeks old because of mother’s behavior. Before he moved out, mother had shouted at
him constantly and accused him of cheating on her. She watched him very closely whenever
he prepared food because she was afraid he would poison her. Mother had instructed father
not to feed S.F. because the child would “get ‘fat,’” and insisted that the baby go to bed with
her at 7:00 p.m. Father had tried to explain that the baby could not just sleep when mother
wanted and offered to stay up with the baby, but mother insisted everyone go to sleep at
5
7:00 p.m. There were also occasions on which mother awoke at 2:00 a.m. and insisted on
cleaning the house, even though she did not know how to clean, cook or care for the
household, and he was the one who predominantly took care of the baby and did the
household chores. After a few weeks father realized he could no longer live with mother.
He contradictorily told the CSW that he “never felt that . . . mother would harm [S.F.]
but . . . warned [her] not to harm his baby.” Father told DCFS he had provided for S.F. and
“accepted any and all responsibilities with being a presumed father,” but was content with
S.F. remaining in grandmother’s care for the time being. He acknowledged that mother
needed counseling and “needs to take her medications because without them, he does not
believe that his son would be safe living with the mother.” However, because he had not
done “anything wrong,” father refused to participate in reunification services.
DCFS interviewed grandmother for its jurisdictional report. She reported that mother
was diagnosed with schizophrenia when she was 15, threatened to commit suicide numerous
times, and was hospitalized for mental health issues as many as 10 times. Mother refused to
take her prescribed medication, or would take it only for a short time. Once, in 2006, mother
physically attacked grandmother and the police were summoned. Grandmother provided
additional information regarding mother’s inability to care for S.F., including her refusal to
feed him, even though he cried incessantly out of hunger, for fear he would get “fat” and her
concern for his safety. Grandmother said mother needed help and needed medication, and
she did not believe mother was capable of caring for S.F. alone. She was willing to adopt
S.F. if reunification efforts failed.
DCFS reported that mother’s medical records revealed she had been prescribed
psychotropic medication, a mood stabilizer, anti-seizure medication, and a medication used
to treat schizophrenia. DCFS concluded that mother’s condition was so severe and her
behavior so defiant and unpredictable that releasing S.F. to her custody would place him at
extreme risk of abuse and neglect. DCFS went on to observe that, “although mother was the
primary caretaker of [S.F.] at the time of detention, it should not be forgotten that the
father . . . was aware of some of the mother’s disturbing behaviors, yet did not make a safety
plan for the child.” Further, in light of father’s “descriptions of the mother . . . , it is not
6
unreasonable for the father to have known or to have been aware of the mother’s mental
instability, and given that he left his child under the care of the mother, knowing of the
mother’s unstable and erratic behaviors, the father was complicit in the neglect of his child.”
Both parents had exhibited combative, aggressive or threatening behavior. DCFS
recommended that the juvenile court declare S.F. a dependent of the court, require mother to
undergo a psychiatric evaluation and offer both parents reunification services and monitored
visitation.
The April 3 hearing was continued so DCFS could interview mother.
In its April 28 supplemental report, DCFS noted that to date, mother had visited S.F.
only once, and father had not visited at all.5 Neither parent ever cancelled a visit or
explained his or her absence. DCFS had tried unsuccessfully to contact mother to schedule
an interview, but her phone was disconnected or would not accept messages.
DCFS reported that S.F. had adjusted appropriately to his grandparents’ home and
had developed a connection with the family. Grandmother reported S.F. was easy to soothe
and enjoyed being held or wrapped in a blanket. She described him as “easygoing and
mellow,” and a solid sleeper.
Mother was not present at the Apri1 28 adjudication hearing. The court received
three DCFS reports into evidence, and the hearing proceeded by way of argument. At the
outset, counsel for S.F. requested that the juvenile court amend the petition to add father to
count (b)(1) regarding mother’s mental health issues. Counsel argued that the evidence
indicated that father “knew mother had mental health issues,” and “decided he could no
longer live with her,” but nevertheless “left the residence and allowed [S.F.] to remain with
mother knowing that mother really didn’t have the ability to care for that child given her
mental health issues.” DCFS joined this request.
5This is inconsistent with information conveyed verbally at the April 28 hearing
informing the court that grandmother had been monitoring father’s visits.
7
Father requested that all allegations against him be stricken. His counsel also
objected to the requested amendment, arguing “there being no notice of it, I would ask the
court not make the finding. It appears the father has been denied any due process
opportunity to address any such attempt to conform as to proof.” The court indicated its
intent to amend count (b)(1) to read: “father knew of mother’s mental health issues and left
the child with mother putting the child at risk.” Father’s counsel again objected, arguing that
it was improper to conform the allegation to proof to add father to the (b)(1) allegation as to
which he had not been named and had had no opportunity to prepare to defend. This
exchange then took place:
“The Court: I’d be happy to put it over, if you wish.
“Father’s Counsel: Noting the father’s objection, your honor.
“The Court: So you don’t want to put it over then?
“Father’s Counsel: I am indicating the father received no notice—
“The Court: I said—
“Father’s Counsel:—of the allegation. [DCFS] had more than adequate time to
amend the petition if they really believed these things were an issue. They chose not
to. I don’t believe it’s adequate process to now ask to conform to proof—
“The Court: Well—
“Father’s Counsel:—for allegations [DCFS] made no attempt to include him in.
“The Court: I’d be happy to allow you additional time to have your client address
those issues, some opposition. If you want a supplemental report to address these
issues, I’d be happy to do that. We can put the adjudication over.
“Father’s Counsel: . . . I don’t believe it’s the father’s burden to now produce
evidence to try to defend himself from an allegation that wasn’t pled against him.
“The Court: It may be the pleading part but there’s certainly ample evidence in the
reports about father leaving this child with mother who had a history and father
knew.”
8
“Father’s Counsel: And [DCFS] has had that . . . information, at least, since the 14th
of February when they interviewed the father and chose not to proceed . . . by way of
amendment or in any other fashion to change this petition.”
After father rejected the court’s offer to delay the adjudication hearing or to obtain a
supplemental report, the court amended and sustained counts (b)(1) and (2), and struck the
allegations of drug use against father.
When the court proceeded to disposition, father requested that S.F. be returned to his
custody so he could “make a plan to allow his child to remain in the care of the maternal
grandmother.” His counsel acknowledged that father was homeless and currently unable to
provide a home for S.F., but argued that he should be permitted to make the plan that S.F.
remain with grandmother. The juvenile court found, by clear and convincing evidence, that
S.F. could not safely be returned to either parent’s custody. S.F. was removed from parental
custody, and reunification services and monitored visits were ordered for both parents.
Father appeals.
DISCUSSION
Father notes that even before the petition in this matter was filed, DCFS knew he
stayed with mother intermittently and helped care for S.F. He also notes that DCFS chose
not to amend the petition despite that fact that long before the April 28 adjudication hearing,
it knew both that father was aware of mother’s mental health problems and that he had not
made a safety plan for S.F. Accordingly, he contends it was a violation of due process and
an act in excess of judicial authority when the court took “over the power of [DCFS] by
adding an allegation to the petition against father . . . .” He also argues there is insufficient
evidence to support the sustained allegation against him, and that the juvenile court erred by
failing to consider and make appropriate findings regarding his custody request under section
361.2. Only father’s final contention has merit.
1. The juvenile court appropriately amended the petition to conform to proof
In dependency proceedings amendments to conform to proof are generally permitted,
indeed, they are favored. (In re Andrew L. (2011) 192 Cal.App.4th 683, 688–689
(Andrew L.); In re Jessica C. (2001) 93 Cal.App.4th 1027, 1042 (Jessica C.).) The decision
9
to amend to conform to proof is largely in the discretion of the trial court and its
determination will not be set aside unless it clearly appears its discretion was abused.
(Trafton v. Youngblood (1968) 69 Cal.2d 17, 31; Duchrow v. Forrest (2013) 215
Cal.App.4th 1359, 1377–1378.) An amendment to conform to proof should not be allowed
if it changes the very nature of the issues which the adverse party had no opportunity to
defend. (Trafton, at p. 31; Andrew L., at p. 689 [“‘If a variance between pleading and
proof . . . is so wide that it would, in effect, violate due process to allow the amendment, the
court should, of course, refuse any such amendment’”].) Where such an amendment is
proposed, the court should, before allowing it, permit the adverse party to introduce evidence
on the new issues. (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1212, pp. 645–646.)
Otherwise, it “is error . . . to allow the amendment and render judgment without a further
hearing.” (Id. at p. 646.) Whether a variance is material depends on the circumstances of the
case. (Chelini v. Nieri (1948) 32 Cal.2d 480, 486.) Jessica C. illustrated this concept with
the following example: “[S]uppose a petition only alleges, under subdivision (d) of
section 300, a variety of specific sexual acts perpetrated by a parent, but the trial judge does
not find these are true. The county then attempts to amend the petition to allege serious
emotional damage under subdivision (c) of section 300, based on the idea that any child who
would make such allegations, even if false, has obviously been subject to emotional abuse.
Such a tactic would be nothing more than a cheap way to establish dependency without
giving the parent adequate notice of dependency jurisdiction under an emotional abuse
theory.” (Jessica C., at p. 1042, fn. 14.)
No similar variance exists here. Unlike the Jessica C. 93 Cal.App.4th 1027
illustration, the juvenile court found the existing allegations of the petition regarding
mother’s inability to care for S.F. due to her mental health problems true. The court
amended those allegations to add that father knew about mother’s mental health issues and
nevertheless left S.F. in her care, placing the infant at risk. DCFS’s reports noted that, when
interviewed in March 2014, father stated that he had always known mother had significant
mental health problems, “‘was not playing with a full deck,’” and that she had provided
inadequate, or no care, for S.F. since his birth. Indeed, father was so concerned about S.F.’s
10
safety in mother’s care that when he left the family home he “warned mother not to harm his
baby,” and told the CSW that, without counseling and medication “he [did] not believe that
his son would be safe living with mother.”
The record does not support father’s claim that he was disadvantaged or denied due
process. At the outset of the adjudication hearing, the court signaled its inclination to name
father in an amended (b)(1) count relating to failure to protect S.F. The court noted that the
record contained “ample evidence” about father having left S.F. in mother’s care even
though he knew she had an extensive history of severe mental health problems. Recognizing
that father might want additional time to respond to the amended allegation, the court
accordingly afforded him an opportunity to delay and fully prepare for the adjudication
hearing. The court also offered to require DCFS to prepare a supplemental report to address
the newly amended allegation. Father’s counsel refused the court’s offers, arguing only that
DCFS had chosen not to amend its pleading, so it was not father’s “burden to now produce
evidence to try to defend himself from an allegation that wasn’t pled against him.”
In light of its intention to proceed in the manner it did, the court recognized that the
evidentiary portion of the hearing should be reopened to allow (after an appropriate
continuance) father to present evidence to refute the amended allegations. (In re Justice P.
(2004) 123 Cal.App.4th 181, 188 [“[d]ue process requires that a parent is entitled to notice
that is reasonably calculated to apprise him or her of the dependency proceedings and afford
him or her an opportunity to object”]; Nickolas F. v. Superior Court (2006) 144 Cal.App.4th
92, 117–118 [juvenile court safeguarded parent’s due process rights by providing him an
opportunity to be heard, including the right to present evidence and confront witnesses].)
Father, however, rejected the court’s offer to continue the adjudication hearing and chose to
forgo the opportunity to try to refute the new allegation.
Father does not argue he would have prepared his defense differently if the original
petition had contained the language of the amendment. Nor does he point to any evidence he
would have presented or argument he would have made had he been provided specific notice
of the amendment. Further, the DCFS reports provided notice of the issues being litigated
and the variance between pleading and proof was not so wide that the amendment to
11
conform to proof violated father’s right of due process. The court committed no violation of
father’s due process rights by amending the petition to reframe the allegations to address
father’s admitted knowledge of mother’s mental health problems and the negative and
potentially dangerous impact those problems had and, if left untreated, would likely continue
to have on S.F. The amendment conformed the allegations of the petition to the evidence
before the juvenile court and did not cause father prejudice or mislead him to his detriment.
(Jessica C., supra, 93 Cal.App.4th at pp. 1042–1043; see Andrew L., supra, 192 Cal.App.4th
at p. 689 [amendment to dependency petition did not violate due process where parent had
explicit notice of issues being litigated and court conducted full hearing affording each party
opportunity to be heard].)6 Regardless of the way the amendment occurred, all parties were
on equal notice of the change minor’s counsel proposed and the court made it clear it was
prepared to provide ample opportunity for the parties to fully and fairly litigate the issues and
their legal rights in the context of a full hearing. Under the circumstances, no unfairness or
prejudice to father resulted. (Andrew L., at p. 690.)
2. Remand is required for findings under section 361.2
Father argues that the juvenile court erred when it failed to make the requisite
findings when it declined to release S.F. to his legal custody or to permit him to make a plan
that would allow the child to remain placed with grandmother. We agree that the court failed
to make the requisite findings, and that remand is required for the juvenile court to consider
and make proper findings under section 361.2, subdivision (a).
6 Moreover, even if we assume for purposes of discussion an error or a violation of
due process in the assertion of jurisdiction on this basis, father does not challenge the
sufficiency of the evidence to support the jurisdictional allegations as to mother. Because
substantial evidence supported a finding of jurisdiction as to mother, any impropriety in the
amendment of the petition with respect to father did not affect the juvenile court’s
assumption of jurisdiction, even if father’s conduct did not form an independent basis for
jurisdiction. (See, e.g., In re Alexis H. (2005) 132 Cal.App.4th 11, 16; In re Alysha S. (1996)
51 Cal.App.4th 393, 397 [“a jurisdictional finding good against one parent is good against
both”].)
12
“Section 361.2 establishes the procedures a court must follow for placing a dependent
child following removal from the custodial parent pursuant to section 361.”7 (In re Z.K.
(2011) 201 Cal.App.4th 51, 70; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1820–1821
(Marquis D.).) When a juvenile dependency court orders removal of a child under
section 361, the court first must determine whether there is a parent who wants to assume
custody who did not reside with the child at the time the events that brought the child within
the provisions of section 300 occurred. (§ 361.2, subd. (a).) “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).) And the court must state the bases for its determination “either
in writing or on the record.” (§ 361.2, subd. (c); In re Jonathan P. (2014) 226 Cal.App.4th
1240, 1252–1253.)8
7 As relevant here, section 361 provides: “(c) A dependent child may not be taken
from the physical custody of his or her parents or guardian or guardians with whom the
child resides at the time the petition was initiated, unless the juvenile court finds clear and
convincing evidence of any of the following circumstances . . . :
“(1) There 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 parent’s or guardian’s physical
custody. . . .”
8 We recognize there is a split of authority as to whether section 361.2,
subdivision (a) applies to both “offending” and “nonoffending” noncustodial parents.
(Compare, e.g., In re A.A. (2012) 203 Cal.App.4th 597, 608 [an offending noncustodial
parent is not entitled to consideration under section 361.2, subd. (a)], and In re John M.
(2013) 217 Cal.App.4th 410, 424–425 [in which this court, in dicta, reached the same
result], with In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1505–1506 [plain language
of section 361.2, subd. (a) precludes consideration of whether noncustodial parent is
“offending” and any relevant facts may appropriately be considered as part of detriment
determination under that statute]; and In re D’Anthony D. (2014) 230 Cal.App.4th 292,
300–303 [same].) We need not address this issue here, where the juvenile court made no
finding that father was offending and failed to state any basis for its detriment finding.
13
A court’s ruling under section 361.2, subdivision (a) that a child should not be placed
with a noncustodial parent must be made by clear and convincing evidence. (Marquis D.,
supra, 38 Cal.App.4th at pp. 1827–1829; In re Isayah C. (2004) 118 Cal.App.4th 684, 699–
700 (Isayah C.).) The clear and convincing evidence standard requires evidence so clear “as
to leave no substantial doubt.” (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) On
appeal, we employ the substantial evidence test, bearing in mind the heightened burden of
proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
Father argues that the trial court refused his request for custody without ever
making—on clear and convincing evidence or otherwise—the findings required by
section 361.2. DCFS implicitly acknowledges that the court failed to make these findings,
but argues that the “same evidence that supports [S.F.’s] removal also supports the detriment
findings.” We are at a loss to understand DCFS’s assertion, given that the juvenile court did
not make any detriment finding. This, even though since 1994, section 361.2, subdivision (c)
has required an express finding of detriment. (Stats.1994, ch. 461, § 1, p. 2166.)
At disposition, after listening to the parties’ arguments as to whether S.F. should be
released to father subject to his plan for the child to remain in grandmother’s care, the court’s
verbal ruling stated only that “the care, custody, control of the child is taken from the
parents . . . pursuant to section 300 . . . , as the court does find by clear and convincing
evidence there’s a substantial danger to the minor’s physical and mental well-being. There is
no reasonable means to protect without removal. [¶] Reasonable efforts have been made to
prevent the removal.” The minute order yields no more useful information. It states that
“[b]y clear and convincing evidence pursuant to . . . [section] 361[, subdivision] (c):
Substantial danger exists to the physical health of minor(s) and or minor(s) is suffering
severe emotional damage, and there is no reasonable means to protect without removal from
parent’s or guardian’s physical custody,” and that “”[r]easonable efforts have been made to
prevent or eliminate the need for removal . . . .”
Although some courts have done so (see In re Andrea G. (1990) 221 Cal.App.3d 547,
554–555; In re Corienna G. (1989) 213 Cal.App.3d 73, 83–85), we decline to imply a
finding of detriment. Implying a finding of detriment under section 361.2, presupposes the
14
court considered the correct code provision. However, we find no reference to any of
section 361.2’s requirements regarding placement with a noncustodial parent anywhere in
DCFS’s reports, the hearing transcript or the court’s order. Rather, the court removed S.F.
pursuant to sections 300 or 361, subdivision (c), sections that are either irrelevant to
disposition or that did not apply to father with whom S.F. did not reside at the time the
petition was initiated.
Thus, it is not clear the court ever considered the statutory provision applicable to
father’s request for custody of S.F. in accordance with his plan.9 We are not satisfied on this
record that the trial court adequately explored whether placing S.F. with father would be
detrimental to him within the meaning of section 361.2, subdivision (a) or that implied
findings are warranted. (See In re R.S. (1985) 167 Cal.App.3d 946, 961.) Moreover, even if
the court had considered the correct code provision, we would be reluctant to imply that it
made a finding of detriment based on the evidence presented. Where insufficiency of the
evidence is an issue, an appellate court reviews the entire record in the light most favorable
to the order and determines whether any substantial evidence supports the conclusion of the
trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) However, where the trial court
fails to make express findings the appellate court generally implies such findings only where
the evidence is clear. (See, e.g., In re Andrea G., supra, 221 Cal.App.3d at pp. 554–555
[“ample” evidence supported implied finding and result “obvious” from the record]; In re
Corienna G., supra, 213 Cal.App.3d at pp. 83–84 [substantial evidence “amply” supported
an implied finding].)
DCFS argues that the same evidence that supported the juvenile court’s jurisdictional
findings made by a preponderance of evidence would also support a finding (by clear and
9 We note that father, who was homeless at the time of the disposition hearing,
recognized that he was in no position to ask that S.F. be placed in his physical care.
Rather, he requested custody of S.F., but proposed that the child remain in grandmother’s
care. His request may not have been unreasonable. “[A] parent may have custody of a
child, in a legal sense, even while delegating the day-to-day care of that child to a third
party for a limited period of time. (Isayah C., supra, 118 Cal.App.4th at p. 700.)
15
convincing evidence) of detriment, given that father exposed S.F. to risk by leaving him in
mother’s care, and that father has a history of violent crime, engaged in arguably threatening
behavior at the outset, is homeless and refused to participate in reunification services. DCFS
also contends that father’s plan to leave S.F. with grandmother was “somewhat problematic”
given that she feared father. The latter point is a red herring; by disposition, grandmother
was monitoring father’s visits with S.F. without incident and with DCFS’s apparent
permission.
“In making a finding of detriment, the court may consider any jurisdictional findings
that may relate to the noncustodial parent under section 300, as well as any other evidence
showing there would be a protective risk to the child if placed with that parent.” (In re V.F.
(2007) 157 Cal.App.4th 962, 970 (V.F.).) Leaving S.F. in mother’s care is by far the most
serious issue raised by DCFS and demonstrates poor judgment on father’s part, as do his
threats and his refusal to participate in reunification services. However, on remand, these
factors must be viewed in the context of the entire record to determine whether giving father
legal custody of S.F. would be detrimental. There is no evidence S.F. suffered harm in
father’s care. The record contains undisputed evidence that, before S.F. was detained, father
visited every 10 days or so for up to a week at a time, and provided necessities for his son
before and after his birth. In addition, when father was around, he provided most or all of
S.F.’s daily care and tried to instruct mother as to how to care for and feed S.F. According to
DCFS’s own reports, S.F. was well cared for by grandmother, had adjusted well and was
content and in good health. DCFS, mother, father and S.F.’s counsel all agreed it was in
S.F.’s best interest to remain in grandmother’s care at least for the time being, and in the
event reunification was not possible.10 A parent invoking section 361.2 is usually expected
to make appropriate arrangements for the child’s care in a suitable setting. (V.F., at p. 971;
10 It is not clear from the record whether father intended ultimately to try to provide a
home for S.F., or to leave him with grandmother indefinitely. It is clear, however, that the
trial court’s decision did not turn on this point. Moreover, if it had, father should have been
told so he could make his intentions clear, or possibly change them, if doing so could affect
the court’s decision. (See Isayah C., supra, 118 Cal.App.4th at p. 700, fn. 12.)
16
Isayah C., supra, 118 Cal.App.4th 684, 699–700; In re Erika W. (1994) 28 Cal.App.4th 470,
476.) A clear and convincing evidence standard of proof applies to the section 361.2,
subdivision (a) decision whether placing S.F. in the care of his father and allowing father to
make a plan for his care would be detrimental. We question whether viewing the record as a
whole, a trial court could reasonably find that maintaining S.F. in the same placement DCFS
itself recommends would be detrimental to the child. In any event, this is certainly not the
clear-cut case in which an appellate court may imply such a finding.
We agree with those courts that have declined to imply a finding of detriment under
section 361.2 that the better practice is to remand the matter to the juvenile court to consider
the facts in accordance with the appropriate statutory provision. (V.F., supra, 157
Cal.App.4th 962, 973; Marquis D., supra, 38 Cal.App.4th at pp. 1821–1824.) “Section
361.2, subdivision (c) is directed to the juvenile court, and we do not believe making express
findings is an appropriate task for a reviewing court. This view comports with the long-
standing rule that the reviewing court is not the finder of fact. (In re Zeth S. (2003) 31
Cal.4th 396, 405 [‘“it is the province of the trial court to decide questions of fact and of the
appellate court to decide questions of law”’ [citations]]; [citation].)” (V F., at p. 973.)
Dependency statutes embody three principal goals for children adjudged
dependents of the juvenile court: “(1) [t]o protect the child [citation]; (2) to preserve the
family and safeguard the parents’ fundamental right to raise their child, so long as these
can be accomplished with safety to the child [citation]; and (3) to provide a stable,
permanent home for the child in a timely manner.” (In re Santos Y. (2001) 92
Cal.App.4th 1274, 1317.) Section 361.2 evidences a legislative preference for placement
of a dependent child with a noncustodial parent who requests custody, absent a finding of
detriment. (In re John M. (2006) 141 Cal.App.4th 1564, 1569.) In view of these goals
and the legislative preference, we will reverse the dispositional findings as to father and
remand the matter with directions to the juvenile court to conduct a hearing to consider and
make findings under section 361.2, subdivision (a) in writing or on the record. (V.F.,
supra, 157 Cal.App.4th at pp. 971–974; § 361.2, subd. (c).)
17
DISPOSITION
The jurisdictional findings and order declaring S.F. a dependent of the juvenile
court are affirmed, but the dispositional order is reversed with regard to father. The
dispositional order is affirmed in all other regards as to mother. The juvenile court is
directed to conduct a new dispositional hearing to consider and make findings in
accordance with Welfare and Institutions Code section 361.2 as to father’s request for
custody of S.F. and placement of the child in the home of the maternal grandmother.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
18