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

Filed 8/17/21 In re J.S. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re J.S. et al., Persons Coming B307694
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 20CCJP02885A-B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JESSICA B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Marguerite D. Downing, Judge. Affirmed.
Katie Curtis, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
____________________________________
INTRODUCTION
Jessica B., mother of now 10-year-old Joaquin S. and nine-
year-old Nevaeh S., appeals from the juvenile court’s jurisdiction
findings and disposition order declaring the children dependents
of the court under Welfare and Institutions Code section 3001 and
removing them from their father’s care. Jessica contends the
court erroneously removed the children from her. The court,
however, did not remove the children from Jessica or otherwise
err in making its disposition order, and any error was harmless.
Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2011 the Los Angeles County Department of Children
and Family Services filed petitions under section 300 alleging
Joaquin and Nevaeh were at risk of harm as a result of Jessica’s
history of mental and emotional problems and substance abuse.
After sustaining the allegations in those petitions, the juvenile
court ultimately—at least according to Jessica in this appeal—
1 Statutory references are to the Welfare and Institutions
Code.
2
terminated its jurisdiction and awarded the children’s father,
Joaquin Sr., sole legal and physical custody.2
In April 2020 Joaquin Sr. had Joaquin and Nevaeh in the
car with him when a California Highway Patrol officer stopped
Joaquin Sr. for speeding and arrested him for driving under the
influence of alcohol. The officer contacted Jessica, who drove to
the scene, picked up the children, and took them to the home of
Joaquin Sr.’s parents.
The Department filed this case in May 2020, alleging
Joaquin and Nevaeh came within the jurisdiction of the juvenile
court under section 300, subdivision (b)(1), as a result of
Joaquin Sr.’s history of alcohol abuse and Jessica’s history of
substance abuse, and under section 300, subdivision (j), as a
result of Jessica’s substance abuse.3 The Department alleged the
children, who had been detained, were residing with Joaquin Sr.
when the Department intervened. In August 2020 the juvenile
court sustained the allegations under section 300,
subdivision (b)(1), relating to Joaquin Sr. and the allegations
2 The Department does not dispute Jessica’s account of those
custody orders, and the record confirms the account regarding
Nevaeh. The record is less clear regarding Joaquin, but it does
reflect Joaquin Sr. and Jessica understood that, following the
previous dependency proceeding involving Joaquin, Joaquin Sr.
had “full custody” of him.
3 The count under section 300, subdivision (j), alleged that,
because of Jessica’s substance abuse, two additional children of
hers, D.B. and G.B., were declared dependents of the juvenile
court in earlier proceedings that led to those children receiving
permanent placement services.
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under section 300, subdivision (j), and dismissed the allegations
under section 300, subdivision (b)(1), relating to Jessica.
At disposition the juvenile court removed the children from
Joaquin Sr. under section 361, subdivision (c). The court also
stated: “As to [Jessica], the court is denying reunification
services pursuant to [section 361.5, subdivision (b)(10)]. The
court notes that [Jessica] is not the previously custodial parent.
These children were previously removed. She never had them
returned to her care. So she is a noncustodial parent. [The] court
has no information she has ever enrolled in . . . and completed the
programs she needed for the last case. So at this point,
reunification services are being denied. Placement with her
would be detrimental.” Jessica timely appealed.
DISCUSSION
A. Relevant Law
Section 361 “governs removal of the child from his or her
parent or guardian.” (In re Nickolas T. (2013) 217 Cal.App.4th
1492, 1496.) In particular, section 361, subdivision (c), describes
the juvenile court’s authority to remove a dependent child “from
the physical custody of his or her parents . . . with whom the child
resides at the time the petition was initiated.” Section 361,
subdivision (d), describes the court’s authority to remove a
dependent child “from the physical custody of his or her parents
. . . with whom the child did not reside at the time the petition
was initiated.”
Section 361.2 “governs placement of a child after the court
issues a valid removal order” under section 361. (In re Dakota J.
(2015) 242 Cal.App.4th 619, 630; see In re V.F. (2007)
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157 Cal.App.4th 962, 969 [“section 361.2 is not a removal
statute”].) Subdivision (a) of the statute provides that, “[i]f 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.”
B. Jessica Has Not Demonstrated the Juvenile Court
Removed the Children from Her or Otherwise Erred
Jessica contends the juvenile court “erred by removing the
children from [her] custody” because no statute authorizing
removal applied to her. Citing section 300, subdivisions (c) and
(d), and section 361.2, subdivision (a), she argues that, “[w]here a
parent does not have legal custody and does not request custody
of the child, the necessity to protect the child is absent and
removal is not contemplated in the dependency statute scheme.”
This argument is without merit, however, for the simple reason
that the court did not remove the children from Jessica.
Insisting otherwise, Jessica cites the minute orders from
the disposition hearing, which include a recital that “[i]t is
reasonable and necessary to remove the child from the parents
. . . .” The reporter’s transcript of the hearing, however,
unambiguously reflects the court removed the children from
Joaquin Sr. only, pursuant to section 361, subdivision (c). And
“[w]here there is a conflict between the juvenile court’s
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statements in the reporter’s transcript and the recitals in the
clerk’s transcript, we presume the reporter’s transcript is the
more accurate.” (In re A.C. (2011) 197 Cal.App.4th 796, 799-800;
accord, In re Abram L. (2013) 219 Cal.App.4th 452, 459, fn. 3.)
Though she does not clearly advance it as an additional,
independent ground for reversal, Jessica also suggests that, in
finding the children’s placement with her “would be detrimental,”
the juvenile court erroneously applied section 361.2,
subdivision (a). She argues that provision did not apply because
she did not, at disposition, ask the court to place the children
with her. Jessica forfeited this argument, however, by failing to
raise it in the juvenile court. (See In re S.B. (2004) 32 Cal.4th
1287, 1293 [“[d]ependency matters are not exempt” from the rule
that “a reviewing court ordinarily will not consider a challenge to
a ruling if an objection could have been but was not made in the
trial court”]; In re A.A. (2012) 203 Cal.App.4th 597, 605 [“Failure
to object to noncompliance with section 361.2 in the lower court
results in forfeiture.”].)
The argument is also meritless. The juvenile court did not
indicate it was making the detriment finding under section 361.2,
subdivision (a), and Jessica cites no statute or case law
suggesting the court lacked authority to make the finding.4 The
juvenile court’s “broad discretion to determine what would best
serve and protect the child’s interest and to fashion a
dispositional order in accord with this discretion, permits the
court to formulate disposition orders to address parental
deficiencies when necessary to protect and promote the child’s
welfare, even when that parental conduct did not give rise to the
4 Nor does she challenge the evidentiary basis for the
finding.
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dependency proceedings.” (In re K.T. (2020) 49 Cal.App.5th 20,
25; see § 362, subd. (a) [where it adjudges a child a dependent of
the court on the ground the child is a person described by section
300, “the court may make any and all reasonable orders for the
care, supervision, custody, conduct, maintenance, and support of
the child”]; In re K.T., at p. 24 [“The juvenile court has ‘wide
latitude’ in formulating reasonable disposition orders for the care,
custody, support, and well being of juvenile dependents.”].)
Particularly given that Jessica did (unsuccessfully) request
custody of the children at the detention hearing in this case, and
that section 361.2, subdivision (e)(1), permits the Department to
place a child under its supervision in “[t]he home of a
noncustodial parent, as described in subdivision (a),” the juvenile
court did not abuse its discretion by including a detriment finding
in its disposition orders. (See In re K.T., at p. 25 [“We review the
juvenile court’s disposition orders for an abuse of discretion
[citation], and review for substantial evidence the findings of fact
on which dispositional orders are based.”].)
C. Any Error by the Juvenile Court Was Harmless
Finally, even assuming the juvenile court erred—either by
removing the children from Jessica or by making a detriment
finding against her—any error was harmless. (See In re Celine R.
(2003) 31 Cal.4th 45, 59-60 [harmless error doctrine applies in
dependency cases, and a reviewing court should not set aside a
dependency court order unless it is “reasonably probable the
result would have been more favorable to the appealing party but
for the error”].) Jessica suggests Joaquin Sr. “may fail in services
and the juvenile court might eventually be required to select a
permanent plan for the children under section 366.26,” in which
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event “termination of [her] parental rights may ultimately be at
stake.” She argues that, because the “overall dependency scheme
. . . permits the termination of parental rights based on a finding
of detriment or parental unfitness made by clear and convincing
evidence in conjunction with a removal order,” the removal order
here could “satisfy the requirement that a finding of detriment or
unfitness be made against [her].”
Before the juvenile court may terminate parental rights,
the court must find by clear and convincing evidence that
“awarding custody of a dependent child to a parent would be
detrimental to the child.” (In re G.P. (2014) 227 Cal.App.4th
1180, 1193; accord, In re D.H. (2017) 14 Cal.App.5th 719,
730-731.) Jessica is correct that this finding need not occur at the
section 366.26 hearing, but may occur earlier, including at
disposition. (In re D.H., at p. 730.) Nothing in the record,
however, suggests the court made its detriment finding here
under the clear and convincing evidence standard. The court will
have to make a detriment finding under that standard before it
may terminate Jessica’s parental rights under section 366.26.
(See In re Z.K. (2011) 201 Cal.App.4th 51, 65-66 [where the
mother “‘was not the custodial parent, the child was not removed
from her custody[,] and she was not denied placement [at the
dispositional hearing],’” the juvenile court had to make “a specific
finding of detriment, supported by clear and convincing
evidence,” before terminating the mother’s “parental rights at the
section 366.26 hearing over her request for custody”].)
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DISPOSITION
The juvenile court’s jurisdiction findings and disposition
order are affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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