Filed 10/4/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re JULIEN H., a Person Coming Under B267953
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. DK11981)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JACOB M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Annabelle
Cortez, Judge. Affirmed and remanded with directions.
Matthew J. Hardy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County
Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
Jacob M., father (Father) of Julien H. appeals from a dispositional order relating to
Father made pursuant to Welfare and Institutions Code section 361, subdivision (c)(1).1
Father contends that section 361, subdivision (c)(1) applies only to a parent with whom a
child resides, and because Julien did not reside with Father, the court had no authority
under that section to make the orders restricting his rights to Julien. Father also contends
that the error was prejudicial because no other authority supports the court’s order.
We agree with Father that section 361, subdivision (c) does not apply but we conclude
that Father has failed to demonstrate prejudice. Consequently, we affirm but remand
with directions.
FACTUAL AND PROCEDURAL BACKGROUND
Julien (born in 2010) lived with his mother, Janelle H.,2 and had weekend visits
with Father. The parents were never married, and the family never lived together.
In February 2015, DCFS received an anonymous referral indicating that the
mother regularly left Julien for several days a week with his grandmother who smoked
cigarettes in the child’s presence, left prescription medicine accessible to him and
allowed him to eat candy. The report also indicated that Julien’s mother did not provide
him with proper dental or medical care.
When the social worker responded to the mother’s home, she denied the
allegations, and she reported problems with Father’s violent and angry behavior,
including that he abused drugs and alcohol and suffered from mental health problems.
The mother also told the social worker that Father had a pending child abuse referral
involving Julien’s half-sibling (M.) based on Father’s arrest for felony driving under the
influence while M. was a passenger in his car and that Father caused an automobile
accident in which M. was injured. The mother also indicated that police had responded
to her home several times because of Father’s actions, including once when Father
1 All statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2 Janelle H. is not a party to this appeal.
2
blocked the grandmother’s car and another time when he tried to take Julien without a car
seat.
The social worker unsuccessfully attempted to contact Father. In late March 2015,
Father called the social worker, stating that he had not returned her phone calls because
he had been incarcerated. Father said he was bipolar and had been taking medication for
the condition, but was considering discontinuing the medication after consulting with
his doctor. Father conceded that he used marijuana, and agreed to drug test.3 Father
indicated that he wanted to remain involved in Julien’s life and to continue visits with his
son; he did not, however, seek custody of the child.
DCFS discovered that the parents had a family law order that did not contain
any express legal or physical custody determination, but nonetheless awarded Father
unmonitored visitation with Julien every Saturday from 2:00 p.m. to 7:00 p.m. The
mother also reported that she had agreed to allow Father to have unmonitored visits with
Julien for the entire weekend every other week.
The social worker expressed concerns about Father’s ongoing unmonitored visits
with Julien and requested that the mother obtain an order in the family law court for sole
custody of the child and a modification of the visitation order to require monitored visits
for Father. Although the mother agreed to seek a modification of the family law order,
she failed to do so.
On June 22, 2015, DCFS obtained an order to remove Julien from Father
pending the detention hearing. Thereafter, DCFS filed a section 300 petition under
subdivisions (b) and (j) alleging Julien was at risk based on Father’s conduct. Among
other allegations, the petition alleged in b-2 that Father abused marijuana, alcohol, and
prescription medication and that he had mental and emotional problems that rendered him
3 On March 30, 2015, Father tested positive for marijuana.
3
incapable of providing regular care for the child. It also alleged that the mother knew or
should have known of Father’s substance abuse but failed to protect the child.4
At the detention hearing, DCFS asked the court to order monitored visitation
for Father and to order that Father participate in random drug and alcohol testing. Father
agreed to the drug testing and stated that he is “submitting to detention today.” The court
found a prima facie case for detention based on substantial danger to the physical or
emotional health of the child and no reasonable means to protect him without removal
from Father. The court vested temporary custody of Julien with DCFS and ordered the
child released to his mother.
In its jurisdiction/disposition report, DCFS reported Father’s monitored visits were
inconsistent, and the report described the parents as “aggressive” towards each other.
Father was participating in a substance abuse program; however, he was not required to
test as part of the program unless he appeared to be under the influence. Father was also
participating in an individual drug counseling program and domestic violence counseling
and had enrolled in alcohol and drug testing, but he had missed all seven drug/alcohol
tests.
On September 30, 2015, the juvenile court conducted the combined
jurisdiction/disposition hearing. Although the parents requested that the court terminate
jurisdiction, the court found by a preponderance of the evidence, that allegations j-1, b-2
and b-3 were true,5 and proceeded to the disposition. The court declared Julien a
dependent of the court, released the child to his mother and ordered family maintenance
services for her. The court ordered enhancement services, monitored visits, and
4
In allegation b-1 and j-1, the petition alleged Father drove under the influence
and collided with a parked vehicle, causing M. to sustain injuries that required emergency
medical treatment. The petition further alleged in b-3 that Father had mental and
emotional problems and failed to take his prescribed medication and that as a result he
was unable to provide care to the minor.
5 The court dismissed allegation b-1.
4
substance abuse treatment for Father. The court continued the case for a section 364
hearing.6
Father appealed.
DISCUSSION
On appeal, Father does not challenge the order declaring Julien a dependent of the
juvenile court. Rather, Father’s only contention is that the order limiting his access to
Julien must be reversed because the court had no authority to “impose restrictions on his
parental rights.” 7 We disagree.
Preliminarily, we address DCFS’s argument that Father forfeited any argument
that the juvenile court erred when it removed Julien from him because he did not raise
the issue in the dependency court. Although in general, a party who does not raise
an argument below forfeits the argument on appeal, where as here, an appellant poses
a question of law, the appellate court can exercise its discretion to address the issue.
(See In re V.F. (2007) 157 Cal.App.4th 962, 967-968 [holding that father did not forfeit
his arguments that he was entitled to retain custody of his children under section 361,
subdivision (c)], superseded on other grounds, as stated in In re Adrianna P. (2008)
166 Cal.App.4th 44, 57-58.) Because the arguments Father raises are primarily issues of
law, we decline to hold that he forfeited his arguments regarding the disposition order.
Section 361, subdivision (c) authorizes a child’s removal “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.” (§ 361, subd. (c).) At the disposition hearing, the
court declared Julien a dependent of the court and ordered him removed from Father
6 The dependency court conducted additional review hearings in January, April
and July 2016 but did not change the orders relating to Julien and set the matter for
another hearing for September 30, 2016.
7 To the extent Father challenges the court’s pre-detention removal and detention
orders that challenge is moot because those orders were superseded by the disposition
orders and there is no effectual relief that may be provided by this court. (See In re
Sabrina H. (2007) 149 Cal.App.4th 1403, 1420 [a detention order is by its nature
temporary; it lasts only until the court decides placement at the disposition hearing].)
5
pursuant to section 361, subdivision (c). Although Julien and Father have had
unmonitored weekend visits, Julien did not reside with Father. Consequently, the
court could not remove Julien from Father’s physical custody under section 361,
subdivision (c)(1) because Julien was not residing with him when the petition was
initiated. (In re Dakota J. (2015) 242 Cal.App.4th 619, 628 (Dakota J.) [holding that
“the statute does not contemplate that a child could be removed from a parent who is not
living with the child at the relevant time”]; In re V.F., supra, 157 Cal.App.4th at p. 969
[section 361, subdivision (c) “ ‘ “does not, by its terms, encompass the situation of the
noncustodial parent” ’ ”].) Thus, as a matter of law, section 361, subdivision (c) did not
apply.
Notwithstanding this conclusion, reversal is unwarranted unless the error resulted
in prejudice, i.e., it is reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error. (See, e.g., Dakota J., supra,
242 Cal.App.4th at pp. 630-632.)8
Father contends that he suffered prejudice because the order denied his
fundamental right to parent his child and the order would disadvantage him in future
matters. The underlying premise of this argument is that he suffered prejudice because
no other authority grants the court the power to limit his access to his child in a manner
analogous to a removal order under section 361, subdivision (c). Father is mistaken.
8To the extent Father suggests that Dakota J. holds that an error in removing a
child from a noncustodial parent based on section 361, subdivision (c) is prejudicial
per se, Father misreads Dakota J. The appellate court in Dakota J. did not conclude that
the error was per se prejudicial. Instead the court found prejudice based on the parent’s
showing of actual prejudice in that case—the removal order jeopardized arrangements the
mother had made for the children to live with a relative who had provided a stable home
for five years. (Dakota J., supra, 242 Cal.App.4th at pp. 630-632.)
6
As the court in Dakota J. implicitly acknowledged,9 the dependency court has
the power under section 361, subdivision (a) and section 362, subdivision (a) to limit
the access of a parent with whom the child does not reside and thus effectively remove
the child from the noncustodial parent. (See Dakota J., supra, 242 Cal.App.4th
at pp. 632-633.) Specifically, section 361, subdivision (a)(1), grants the court authority
to “limit the control to be exercised over the dependent child by any parent or guardian.”
(§ 361, subd. (a)(1).) And unlike subdivision (c) of section 361, subdivision (a)(1)
applies to “any parent,” not solely to parents with whom the child resides. Similarly,
section 362, subdivision (a) further authorizes the court to “make any and all reasonable
orders for the care, supervision, custody, conduct, maintenance, and support of the child.”
(§ 362, subd. (a).) (See Dakota J., supra, 242 Cal.App.4th at pp. 632-633.)
Father does not argue that in order to justify exercise of its power under
section 361, subdivision (a) and section 362, subdivision (a), the dependency court must
make a different factual finding or apply a higher standard of proof than would be
required under section 361, subdivision (c). Nor does he argue that the factual findings
made by the dependency court are not supported by substantial evidence. Accordingly,
Father has failed to show that the court’s reliance on section 361, subdivision (c) was
prejudicial. Therefore, we order the juvenile court to amend the order to reflect that it is
made pursuant to section 361, subdivision (a) and section 362, subdivision (a).
9 This matter has also generated commentary from legal analysts. (See Menetrez,
Protect Kids From Abusive Noncustodial Parents, L.A. Daily Journal (Sept. 1, 2016)
p. 7 [recognizing the dearth of legal guidance on this issue, and urging the Legislature to
amend the Welfare and Institutions Code to expressly provide for removal from
noncustodial parents and to identify the findings required to support the order].)
7
DISPOSITION
The order is affirmed, and the matter is remanded for the juvenile court to amend
its order to reflect that it is made pursuant to section 361, subdivision (a) and section 362,
subdivision (a).
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
LUI, J.
8