In re Audrey C. CA2/3 ( 2015 )

Filed 10/16/15 In re Audrey C. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
In re AUDREY C., a Person Coming Under B259904
the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. DK03854)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ANA C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Tony L.
Richardson, Judge. Reversed and remanded with directions.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
_________________________
INTRODUCTION
Ana C. appeals from the disposition order of the juvenile court denying her request
to place her six-year-old daughter, Audrey C., in her custody and instead placing the
child in the physical custody of the Department of Children and Family Services (the
Department). We conclude, although there may be sufficient evidence on this record
from which the juvenile court could make the necessary finding by clear and convincing
evidence, the court neither indicated which statute it was following, nor made an express
finding of detriment as required by the applicable statute, Welfare and Institutions Code
section 361.2, subdivision (c).1 Accordingly, we reverse the order and remand the case to
the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
1. The family
Mother and father, Christopher C., who is not a party to this appeal, are married
but have not lived together in a while. Audrey has lived with her paternal great-
grandparents since she was born, and in December 2013, when the Department became
involved in this family, father was living there as well.
Mother was arrested in July 2013. According to the police report, in
December 2007, mother stuck her tongue inside father’s nine-year-old cousin’s mouth.
In April 2013, mother committed lewd acts with the cousin, just after the boy’s 15th
birthday. Mother was arrested for lewd acts against a child and oral copulation of a child.
(Pen. Code, § 288a.) The Department was unable to interview mother or determine the
date of her release from jail before the jurisdiction hearing because mother was subject to
an immigration hold.
Father has problems with anger and a history of drug abuse. He smokes marijuana
in front of Audrey, and uses cocaine. Father has a history of arrests for possession of
drugs, driving under the influence, domestic violence, and he was convicted of marijuana
1
All further statutory references are to the Welfare and Institutions Code, unless
otherwise noted.
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possession. He did not visit mother in jail because he had an outstanding warrant and his
license was suspended.
Father and mother have a history of domestic violence. The Department reported
that father cut the inside of mother’s mouth with a box cutter. Audrey witnessed the
physical and verbal violence. She saw father slam mother against the wall and throw a
glass picture and cut mother’s ear. Audrey reported hearing father scream “bad words” at
mother and great-grandmother. The screaming scares her. Mother did not follow
through with restraining orders but took Audrey to a shelter with her. The paternal great-
grandmother reported that mother “can’t give [father] up.” Mother told the social worker
that she and father could not live together because they fought too much.
Mother wanted Audrey placed with the maternal grandmother rather than in foster
care. The Department obtained a removal order and placed Audrey with the paternal
great-grandparents where the child felt comfortable and safe and would experience the
least disruption.
The Department found that mother’s criminal history, her conviction for orally
copulating a minor, and her incarceration prevented her from providing the child with
care and supervision. The Department was also concerned that mother stayed in a
relationship with father who was abusive to her, at times in front of Audrey.
By September 2014 mother had been deported to Mexico and could not return to
the United States for any reason. She asked that Audrey be sent to her in Mexico.
2. The jurisdiction and disposition hearing
The juvenile court sustained the petition under section 300, subdivision (b) (failure
to protect) alleging mother’s sexual abuse of a related child on more than one occasion;
the parents’ history of physical altercations; and father’s drug abuse. The court struck the
sexual abuse allegation under subdivision (d).
Turning to the disposition, father testified that he had visited mother three times in
the past year and a half, i.e., since mother’s arrest. He saw mother in Mexico after her
deportation. At the close of argument, the juvenile court stated it was following the
Department’s recommendations. The court found that the “Department has met its
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burden by clear and convincing evidence that release to the father at this time would not
be appropriate.” (Italics added.) After completing its ruling and orders concerning
father’s disposition, the court stated, “With respect to mother - - again the child is to be
suitably placed. Mother is to participate in the services which are reflected in her court-
ordered case plan.” At mother’s attorney’s request, the court ordered the Department to
look into initiating contact with the Department’s counterpart in Mexico to look into
visitation there. Mother filed her notice of appeal.
CONTENTION
Mother contends the record contains insufficient evidence to support the order
removing Audrey from her custody.2
DISCUSSION
Under section 361, subdivision (c), a dependent child cannot be removed from the
physical custody of a parent with whom the child resided at the time the petition was
initiated, unless the juvenile court finds by clear and convincing evidence that at least one
of certain enumerated circumstances exists. One such circumstance occurs when “[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 parent’s . . . physical custody.” (§ Id., subd. (c)(1).)
The juvenile court here found that the Department carried its burden under section 361,
subdivision (c)(1) to show substantial danger by clear and convincing evidence with
respect to father. Father does not appeal the dispositional order and hence that ruling is
not at issue.
2
Mother filed a supplemental opening brief on appeal challenging the sufficiency of
the evidence to support the order sustaining the petition’s count b-1 alleging that mother
sexually abused a child. However, mother does not challenge the other bases for
jurisdiction, namely the parents’ domestic violence and father’s drug abuse. “As long as
there is one unassailable jurisdictional finding, it is immaterial that another might be
inappropriate. [Citations.]” (In re Ashley B. (2011) 202 Cal.App.4th 968, 979.)
Accordingly, we need not address this contention.
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However, Audrey could not be removed from mother’s custody under section 361,
subdivision (c) because the child was not residing with mother when the petition was
initiated. (In re Abram L. (2013) 219 Cal.App.4th 452, 460; In re V.F. (2007)
157 Cal.App.4th 962, 969; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1816.)
Although no party addressed the issue and the juvenile court did not indicate under
which statute it was proceeding with respect to mother, the applicable statute governing
mother’s request for custody of Audrey is section 361.2. Thereunder, “[w]hen a court
orders removal of a child pursuant to Section 361, the court shall first determine whether
there is a parent of the child, with whom the child was not residing at the time that the
events or conditions arose that brought the child within the provisions of Section 300,
who desires to assume custody of the child. If that parent requests custody, the court
shall place the child with the parent unless it finds that placement with that parent would
be detrimental to the safety, protection, or physical or emotional well-being of the child.”
(Id., subd. (a), italics added.)
As we explained in Abram L., a case directly on point, “ ‘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.’ [Citation.] ‘[T]o comport with the
requirements of the due process clause, a finding of detriment pursuant to section 361.2,
subdivision (a) must be made by clear and convincing evidence.’ [Citations.]” (In re
Abram L., supra, 219 Cal.App.4th at p. 461.) Accordingly, section 361.2, subdivision (c)
specifies that the juvenile “court shall make a finding either in writing or on the record of
the basis for its determination under subdivisions (a) and (b).”
The record here reflects that the juvenile court did not consider the requirements
of section 361.2 in denying mother custody of Audrey. The minute order from that
hearing uses only the language of section 361, subdivision (c). The court’s oral
statements about removal of Audrey from mother’s custody neither referred to section
361.2, nor used the relevant, operative language of that statute. (Accord, In re Abram L.,
supra, 219 Cal.App.4th at p. 461.) Moreover, the Department’s Jurisdiction/Disposition
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Report did not request or recommend that the juvenile court consider section 361.2,
despite mother’s request that Audrey be placed with her in Mexico. The Department
only used the operative language of section 361, subdivision (c). At the disposition
hearing, the court stated it was following the Department’s recommendations. Thus, the
juvenile court did not apply the applicable law to mother’s request for physical custody of
Audrey.
We will not imply a finding of detriment under section 361.2 in this case because
to do so “presupposes the [juvenile] court considered the correct code provision.” (In re
Marquis D., supra, 38 Cal.App.4th at p. 1824.) Although arguably this record supports a
finding that placement with mother would be detrimental to Audrey, the better practice is
to remand the matter to the juvenile court because that court has not considered the facts
within the appropriate statutory provision. (In re V.F., supra, 157 Cal.App.4th at p. 973.)
Section 361.2 requires that the juvenile court make the finding on the record (id.,
subd. (c)) and the appellate court is not the finder of fact. (In re V.F., supra, at p. 973.)
Accordingly, we reverse the disposition order as to mother and remand the case to the
juvenile court to consider and make proper findings under section 361.2, subdivision (a).
(In re Marquis D., supra, at p. 1830.)
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DISPOSITION
The juvenile court’s order dated October 21, 2014, placing Audrey in the care of
the Department of Children and Family Services is reversed. The juvenile court is
directed to hold a hearing to consider and make findings under section 361.2,
subdivision (a) in writing or on the record.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
EDMON, P. J.
JONES, 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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