In re Samantha H. CA2/2 ( 2023 )

Filed 12/6/23 In re Samantha H. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re SAMANTHA H., a Person B324288
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 22CCJP03221)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
SANDRA O. et al.,
Defendants and
Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Pete R. Navarro, Juvenile Court Referee.
Affirmed.
Leslie A. Barry, under appointment by the Court of Appeal,
for Defendant and Appellant Sandra O.
Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant Danny H.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Avedis Koutoujian, Deputy
County Counsel, for Plaintiff and Respondent.
******
Sandra O. (mother) and Danny H. (father) separately
appeal from a dispositional order entered under Welfare and
Institutions Code section 300 on behalf of their daughter, 17-
year-old Samantha H. (born August 2006).1 Mother, who resides
in Argentina, contends that the juvenile court erred in denying
mother’s request for custody of Samantha. Father joins in
mother’s arguments. We find no error and affirm the order.
COMBINED FACTUAL AND PROCEDURAL
BACKGROUND
Initial referral and investigation
The Los Angeles County Department of Children and
Family Services (DCFS) received a referral in July 2022 alleging
father physically abused Samantha and that her older brother,
Matthew H. (born November 2004), was at risk. The reporting
party claimed father looked through Samantha’s phone and
found pictures of her smoking with friends and performing sexual
acts. Father tried to get a confession from Samantha, as father
believed she was not being honest, which led to an argument.
1 All further statutory references are to the Welfare and
Institutions Code.
2
Father hit Samantha with an open hand causing a visible injury.
Samantha’s brother was not present during the incident as he
was reported to be staying with the paternal grandmother
(PGM).
The DCFS social worker had telephonic contact with PGM
on July 26, 2022. Samantha too was staying with PGM. PGM
stated father was “very violent” and has physically hit Matthew
in the past. PGM reported both children were scared of father.
PGM had observed marks and bruises on Samantha in the past
and was concerned Samantha would be physically abused if she
returned to father’s home. PGM stated father physically abuses
the children to the point of bruising and then keeps them home
until the bruising subsides. Samantha had disclosed to PGM
that she found a bag of marijuana in father’s home. The social
worker suggested the children meet her at the DCFS office so the
children could be interviewed. PGM agreed.
PGM reported that the children barely remembered their
mother. The parents were divorced, and father had sole legal and
physical custody of the children.
The social worker spoke with father by telephone on
July 26, 2022. Father said he found videos of Samantha doing
explicit acts and drugs. Father confiscated Samantha’s phone
and changed all the passwords to her social media and e-mail.
Father reported the behavior to the other children’s parents.
Father said Samantha asked to go to PGM’s home and he
consented. Father wanted to be present during Samantha’s
interview so he could show her the videos he found. Father
wanted to teach Samantha a lesson and preferred she go to foster
care rather than PGM’s home.
3
On July 27, 2022, the social worker met with Samantha in
person at the DCFS office. Samantha informed the social worker
that she did not want to see father because she was afraid of him.
Samantha believed if she were to go home, father would hit her.
Samantha had not disclosed past abuse because father told her
not to say anything. Samantha felt safe with PGM and wanted to
stay in PGM’s home.
Samantha said father found pictures of her friends using
inappropriate substances. Samantha denied using such
substances. Her mother used in the past, and Samantha did not
want to end up like her. Samantha disclosed that father uses
marijuana, and she recently found a bag of marijuana in the
home. Samantha denied sexual abuse and denied having explicit
videos on her phone. She stated there was one picture of her with
her head on her boyfriend’s shoulder, and when father saw the
picture he called her a whore, a slut, and a prostitute. Father
slapped Samantha on the face approximately three times. She
had a cut on her inner lip and a bruise under her left eye for
about three days. Father put her in a choke hold and started
pulling her hair while she yelled for him to stop. Samantha did
not know who called the police, but they took an injury report
and pictures of her bruise. Samantha confirmed that Matthew
was not home during the incident as he was staying with PGM.
Samantha said she never wants to return to father’s home.
The social worker interviewed father in person with mother
present on Facetime. The social worker informed father that
interviews were normally done privately but father insisted
mother be present via Facetime. Father stated when he
confronted Samantha with the videos and photos, she started
insulting him, hit him, and pushed him away. Father lifted his
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shirt and pointed to two marks on his stomach. Father admitted
to slapping the child with an open hand on the left side of her
face. He did not know if she sustained bruising because her hair
was covering her face. Father was of the opinion that Samantha
was not safe with PGM because PGM would take Samantha to
the homes of friends he does not know.
DCFS had received multiple prior referrals alleging
physical abuse by father over several years. The children and
PGM would recant or minimize the abuse once interviewed by
DCFS. In 2012, mother and father engaged in mutual violence.
In 2011, mother was hospitalized on a section 5150 hold when
she believed there were people watching her in her home.
Mother reported running out of the home after being scared the
people in her home were coming after her. Mother was diagnosed
with schizophrenia, depression, and psychosis. Both PGM and
Samantha reported that mother did not follow through with her
prescriptions.
Petition and initial detention
On August 15, 2022, DCFS obtained a removal order
authorizing detention of Samantha from father’s custody.2 On
August 17, 2022, DCFS filed a petition on behalf of Samantha
pursuant to section 300, subdivisions (a) and (b). The petition
alleged that father physically abused Samantha and created a
dangerous home environment by keeping accessible marijuana in
the home.
When DCFS filed the petition, mother’s whereabouts were
unknown. Mother was not named in the petition. Mother
2 A removal order was not requested for Matthew because he
refused to be involved in the investigation and was going to
Argentina to be with mother.
5
appeared telephonically from Argentina at the detention hearing
with the assistance of an interpreter. At the detention hearing,
mother did not request Samantha be released to her custody.
Instead, she requested telephone visits and video visits.
Subsequent reports
In a last minute information for the court filed on
August 18, 2022, DCFS reported that Samantha had provided a
video in which Samantha was crying and telling father that she
will never forget witnessing father beat Matthew and make his
nose bleed, pull his hair, and punch him. Father stated, “You
better not forget that because some day it can totally happen to
you.” Father threatened to take Samantha to Las Vegas and do
the same thing to her because it was “totally legal” to beat her up
there. Matthew reported he did not remember the details of the
incident because it happened so fast. Father denied hitting or
punching Matthew. Samantha said Matthew was unlikely to
disclose abuse because Matthew does not really talk, and father
was sending Matthew to Argentina. PGM told the social worker
she overheard father talking to mother on speakerphone and
mother said the best way for Samantha to learn her lesson would
be to send her to Argentina.
When the social worker interviewed father, she found
father continuously tried to intimidate her, stating he owned a
photo journalist investigative company and knew people of
influence. Father claimed he contacted the FBI and other
agencies to investigate DCFS and its social workers. Father
reiterated that he saw a video on Samantha’s phone of her
engaging in sexual activity and admitted his reaction was to slap
her. He denied seeing a bruise, stating that Samantha went with
him to T.V. sets and knew how to create fake bruises and marks.
6
An anonymous witness reported Samantha told the witness
that father would hit Samantha. Two of Samantha’s friends had
received phone calls from father telling them to stay away from
her. Samantha sent a picture of herself with a raised mark on
her face and shared a video of father in which he told Samantha
he was going to “kick her ass” like Matthew.
In a conversation with mother in September 2022, mother
reported to a social worker that Samantha had visited her two
years earlier and they are close despite the distance. Mother
described Samantha as “very aggressive.” Mother said she had a
good relationship with father, and father keeps her informed of
everything going on with the children. Father called her after
the incident with Samantha and said he defended himself against
Samantha. Mother denied ever hearing of father hitting
Samantha prior to this incident. Father admitted to mother that
he hit Matthew in Las Vegas. Mother said father is a good
father; if he has been strict with Samantha, it is because of the
things Samantha is doing. Mother acknowledged that father
uses marijuana, but denied knowing the frequency.
As to her mental health, mother denied use of alcohol or
drugs. She admitted there was a time when she was very
depressed due to her divorce and losing her children. Mother
reported she is currently stable and no longer suffers from
depression. Mother has been taking anti-depressants for about
10 years. Mother acknowledged that in the United States she
was diagnosed with schizophrenia, but in Argentina she was
diagnosed with depression.
Jurisdiction/disposition
The combined jurisdiction and disposition hearing took
place on September 29, 2022. Father testified. He referred to
7
mother as his “best friend.” He claimed the accusations in the
petition were all false. Father explained that his form of
discipline involved withholding privileges and spanking on the
butt. He testified that during the recent situation, Samantha
assaulted him, and he reflexively slapped her on the neck.
Father clarified that he did not hit her on the face. Father
testified that mother supported his form of discipline “100
percent.” Father admitted he wanted to send Samantha to
Argentina so she could “learn[] [a] lesson.”
Father’s counsel argued that the juvenile court should
dismiss the allegation of physical abuse because father only hit
Samantha one time and denied physically abusing her
previously. He argued heightened punishment was necessary
due to Samantha’s disrespect and the inappropriate content on
her phone. Mother’s counsel did not oppose father’s position.
Mother’s counsel added that mother believed father had been a
good parent to Samantha and did his best with the difficulties he
faced with her. Regarding disposition, mother’s counsel
requested that Samantha be released to home of mother, as
mother was nonoffending.
Counsel for Samantha argued that the court should sustain
the physical abuse allegation due to the abundance of evidence
before the court that father had been physically abusing
Samantha and Matthew for years, father’s attempts to intimidate
the social worker, and his clear coaching of mother in the
presence of social workers.
The court declared Samantha a dependent of the court
under section 300. It found by clear and convincing evidence that
there would be a “substantial danger” to Samantha’s “physical
health, safety, protection, or physical and emotional well-being” if
8
returned home, and there were no reasonable means to protect
her without removal from the parent’s custody. Reasonable
efforts to prevent removal were made. The court ordered the care
and custody of Samantha to be placed with DCFS.
Following the court’s placement order, DCFS requested the
court make a “detriment finding against allowing the child to be
released to mother.” The court responded, “I made a suitable
placement order.” The court explained, “The court declines to
place the child with the mom. That is almost like placing the
child back in the home of the father.”
In its written order, the court wrote:
“The court finds by clear and convincing evidence, pursuant
to Welfare and Institutions Code sections 361(a)(1), 361(c), 361(d)
and 362(a), and additionally applying to noncustodial
parent(s)/legal guardian(s) the constitutional and statutory
safeguards available to custodial parents.
“It is reasonable and necessary to remove the child from the
parents, as such removal is defined in 45 CFR 1356.21(k)(1)(ii),
and the care, custody, and control of the parent(s)/legal
guardian(s) from whom the child is are [sic] being removed
because there is a substantial danger to the physical health,
safety, protection, or physical or emotional well-being, and special
needs, if applicable, of the child, and there are no reasonable
means by which the child’s physical health can be protected,
without removing the child from the home and the care, custody,
and control of that or those parent(s)/legal guardian(s).
“The Court further finds that it would be detrimental to the
safety, protection, or physical or emotional well-being, and special
needs, if applicable, of the child to be returned to or placed in the
9
home or the care, custody, and control of that or those
parent(s)/legal guardian(s).” (Boldface omitted.)
On September 30, 2022, the court called the parties to court
because it reconsidered its no-visit order as to father, and instead
allowed father to visit Samantha in a therapeutic setting.
DISCUSSION
I. Applicable law and standard of review
Mother argues the juvenile court erred as a matter of law
in failing to apply section 361.2 in connection with mother’s
request that Samantha be placed in her custody. Mother seeks
remand with directions to the juvenile court.
When a child is adjudged a dependent of the court on the
ground that he or she is a child described by section 300, the
juvenile court is authorized to limit the control over the child by
any parent or guardian. (§ 361, subd. (a)(1).)
Section 361, subdivision (c) permits the juvenile court to
remove physical custody of the child from the parent “with whom
the child resides at the time the petition was initiated” where it
finds by clear and convincing evidence that there is a substantial
danger to the physical health, safety, protection, or emotional
well-being of the child or would be if the child were returned
home, and there are no reasonable means to protect the child
without removal from the parent’s physical custody.
Section 361, subdivision (d) requires that the dependent
child “shall not” be taken from the physical custody of a parent
with whom the child “did not reside” at the time the petition was
initiated, unless the juvenile court finds clear and convincing
evidence of substantial danger to the physical health, safety,
protection, or emotional well-being of the child if the child were to
10
live with that parent, and there are no reasonable means to
protect the child without removal from that parent’s physical
custody.
Section 361.2, subdivision (a) applies when “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 such a noncustodial parent requests
custody, the juvenile 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.” (Ibid.)
Because mother contends that the juvenile court applied
the wrong statute, we review her contention as a matter of law.
“When the issue on appeal involves the interpretation and proper
application of the dependency statutes, . . . our review is de novo.”
(In re Anthony Q. (2016) 5 Cal.App.5th 336, 344.)
II. Forfeiture
We first address the issue of forfeiture. Mother contends
on appeal that the juvenile court failed to apply section 361.2.
However, mother provides no citation to the record showing that
she requested the juvenile court to apply this statute.
Section 361.2 applies where there is a noncustodial parent
who “desires to assume custody of the child.” At no time prior to
the jurisdiction/disposition hearing did mother make it known
that she desired to assume custody of Samantha. Therefore, the
statute was inapplicable throughout the preliminary
investigation and decisionmaking regarding Samantha’s
placement.
11
During oral argument at the jurisdiction/disposition
hearing, mother’s attorney addressed “additional information
today with mother’s statement.” Among other things, it was
“further apparent that the mother is asking that the child live in
Argentina with her. So at this point for the mother, I would ask
that the child be released to home of mother.” Mother’s counsel
made no mention of section 361.2 and did not ask the juvenile
court to make an analysis under this statute. Nor did mother’s
counsel request a continuance for the parties to explore the
possibility of placement with mother or the issue of detriment.
Mother’s counsel did not object to or seek clarification regarding
the court’s reasoning for declining to place Samantha with
mother. By never having requested the juvenile court make a
finding under section 361.2, mother has forfeited the issue. (See,
e.g., In re E.A. (2012) 209 Cal.App.4th 787, 791 [finding failure to
request a detriment finding forfeits the issue on appeal because
the “alleged defect . . . could have been easily cured, if raised in a
timely fashion”].)
Mother argues that because she raises an issue of law, the
forfeiture rule is inapplicable. Mother cites Ward v. Taggart
(1959) 51 Cal.2d 736, 742 (Ward), which held that “a change in
theory is permitted on appeal when ‘a question of law only is
presented on the facts appearing in the record. . . .’” Ward
permits, but does not require, consideration of a new theory on
appeal where the theory advanced on appeal “does not
contemplate any factual situation different from that established
by the evidence in the trial court.” (Ibid.; see In re V.F. (2007)
157 Cal.App.4th 962, 968 [“A question of law is not automatically
subject to the doctrine of forfeiture.”], superseded by statute as
stated in In re Isabella G. (2016) 246 Cal.App.4th 708, 724)
12
While these authorities allow this court to consider issues of law
raised for the first time on appeal, we decline to do so here.
Mother’s last minute request for custody, without further factual
or legal development and without a request for continuance to
further address the issue, was insufficient to avoid forfeiture in
this case.3
III. Harmless error
Because mother failed to timely alert the court that she
desired custody and failed to direct the court’s attention to
section 361.2, she forfeited the issue of whether the court should
have applied the statute. However, we note that even if mother
had raised the issue, the juvenile court made findings that
placement with mother would be detrimental to Samantha.
Thus, any error is harmless.
The court made it clear that placing the child in the home
of mother would be detrimental. The court explained that there
was “clear and convincing evidence there is substantial danger if
3 Mother points out that it was DCFS’s burden to prove that
placement with mother would be detrimental to Samantha.
Mother cites In re Brian P. (2002) 99 Cal.App.4th 616, 623, as
support for her position that even if the issue was not a question
of law and was a substantial evidence argument, the issue would
still not be forfeited because DCFS bore the burden of proving
that placement with mother would be detrimental to Samantha.
By failing to raise the issue until the disposition hearing, mother
deprived DCFS of an opportunity to formally address the issue of
detriment. Nevertheless, as the record shows, the juvenile court
found that there was sufficient evidence in the record to prove
that it would be detrimental to Samantha to be placed with
mother. Since mother has not raised a sufficiency of the evidence
challenge, we decline to address this point further.
13
she were to be returned home to her physical health, safety,
protection, or physical and emotional well-being.” In making this
finding, the juvenile court did not differentiate between
Samantha returning to father’s home or to mother’s home,
commenting that placing the child with mother “is almost like
placing the child back in the home of the father.” In making this
comparison, the juvenile court was justifiably relying on the
testimony of father that he and mother were best friends, as well
as mother’s repeated admissions that she approved of father’s
form of discipline and felt that he was a good father even while
acknowledging that she was aware father hit both Samantha and
Matthew. Given mother’s alliance with father and agreement as
to his means of discipline, the juvenile court acted reasonably in
treating the two homes as similarly detrimental to Samantha’s
well-being.
In its written order, the juvenile court also did not
differentiate between the two homes, noting that it was necessary
to remove Samantha from the “parents” and that “it would be
detrimental to the safety, protection, or physical or emotional
well-being . . . of the child to be returned to or placed in the home
or the care, custody, and control of that or those parent(s) . . . .”
Even if, as mother argues, the juvenile court erred in
relying on section 361, subdivision (d) instead of section 361.2,
subdivision (a), mother has failed to demonstrate how such error
has prejudiced her. We cannot reverse a judgment unless the
error was prejudicial, meaning “‘“‘it is reasonably probable that a
result more favorable to the appealing party would have been
reached in the absence of the error.’”’” (In re D’Anthony D. (2014)
230 Cal.App.4th 292, 303.) In light of the juvenile court’s finding
that it would be detrimental to Samantha if placed in mother’s
14
custody, and that placing Samantha in mother’s custody would
subject her to the same harm as if placed in father’s custody, we
conclude that any error with respect to application of the wrong
statute did not result in a miscarriage of justice. (Id. at pp. 303-
304 [concluding the juvenile court’s application of § 361 instead of
§ 361.2 to a noncustodial parent was harmless error].)
In re V.F., supra, 157 Cal.App.4th 962, 968, is
distinguishable. In V.F., an incarcerated father argued on appeal
that the juvenile court erred when it removed the children from
his custody under section 361, subdivision (c). He argued that
because jurisdiction was based solely on the conduct of the
children’s mother, he should have been treated as a nonoffending
parent and allowed to retain custody of the children under
section 361, subdivision (c)(1). (V.F., at pp. 967-968.)
Significantly, there was no detriment finding in the record,
although the V.F. court acknowledged that the record arguably
would support a finding that placement with the father would be
detrimental to the children. (Id. at p. 973.) The court declined to
make an implied finding of detriment, instead holding that the
juvenile court was required to make a finding of detriment “‘in
writing or on the record.’” (Ibid.) In contrast, the juvenile court
in this case made both oral and written findings of detriment to
the child if placed with mother. While the court never cited
section 361.2, we need not speculate as to the juvenile court’s
position on whether placement with mother would be detrimental
to Samantha. The court was clear that it would be. Thus, V.F.
does not convince us that forfeiture is not warranted in this case.
Mother also cites In re Adam H. (2019) 43 Cal.App.5th 27,
32-33, as support for her position that the error in this case was
not harmless. In Adam H., like in In re V.F., the appellate court
15
declined to imply a finding that placement with the child with
father would be detrimental to the child where no such finding
was made on the record. The court explained, “minor was doing
very well under the care of father during unmonitored visits. In
addition, there was evidence father was receptive to services and
cooperative with the Department. The only concern cited at the
disposition hearing was that Adam did not yet know father very
well.” (Adam H., at p. 33.) Under those circumstances, the court
declined to imply a finding of detriment. As set forth above, we
need not make an implied finding in this case. The juvenile court
stated both orally and in writing its finding that placement of
Samantha with mother would be detrimental to the child.
Any error of the juvenile court in failing to specifically
reference section 361.2 was harmless.
DISPOSITION
The dispositional order denying mother custody is affirmed.
___________________________
CHAVEZ, J.
We concur:
_______________________________
ASHMANN-GERST, Acting P. J.
_______________________________
HOFFSTADT, J.
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