In re Ezra K. CA2/2

Filed 2/1/22 In re Ezra K. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re EZRA K. et al., B311192
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. Nos.
DK16835A,
20LJJP00780A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.K.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Robin R. Kesler, Judge Pro Tempore. Affirmed in part,
reversed in part, and remanded with directions.
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Principal
Deputy County Counsel, for Plaintiff and Respondent.
______________________________
On March 9, 2021, the juvenile court sustained a Welfare
and Institutions Code section 3001 dependency petition on behalf
of Noel K. (Noel, born 2014) and a section 342 subsequent
petition on behalf of Ezra K. (Ezra, born 2012).2 On appeal,
defendant and appellant J.K. (father) challenges the dispositional
orders that followed.
We affirm the dispositional order regarding Ezra. We
reverse the dispositional order removing Noel from father’s
custody and remand the matter for the juvenile court to hold a
new hearing where, if father still requests custody, the court
shall consider placing Noel with father under section 361.2,
subdivision (a).
BACKGROUND
April 2016 Dependency Petition
In April 2016, the Los Angeles County Department of
Children and Family Services (DCFS) filed a dependency petition
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 We refer to Noel and Ezra, collectively, as minors.
2
under section 300 seeking the juvenile court’s exercise of
jurisdiction over minors. In pertinent part, the petition alleged
that minors’ mother, L.M. (mother),3 left minors alone without
adult supervision for three hours. Ezra has cerebral palsy and a
seizure disorder and is immobile. Mother was inconsistent in
providing medication to Ezra. Mother had been arrested for
“Child Cruelty: Possible Injury/Death.” Father was
nonoffending.
Nearly a year later, in April 2017, the juvenile court
declared minors dependents under section 300, subdivision (b)(1)
(failure to protect). Minors were placed with father under DCFS
supervision. Mother was granted unmonitored visitation.
Father’s court-ordered case plan required him to participate in
parenting classes regarding special needs children.
December 2017 Supplemental Petition
Minors were detained from father in December 2017. Noel
was placed with a caregiver, while Ezra was hospitalized. A few
days later, DCFS filed a supplemental petition under section 387
alleging that father had failed to comply with the juvenile court’s
orders regarding minors’ follow-up medical examinations and
regional center and school enrollment for Ezra. Father had also
failed to complete a special needs parenting class.
In January 2018, the juvenile court placed Noel on an
extended visit with father. Ezra remained detained. Later that
month, the court sustained the section 387 supplemental petition,
placed Noel on an extended visit with both mother and father,
and granted DCFS discretion to release both minors to one or
both parents.
3 Mother is not a party to this appeal.
3
As for disposition, in May 2018, the juvenile court ordered
minors released to home of parents and ordered DCFS to provide
family maintenance services. Father’s new case plan required
him, inter alia, to complete parenting classes regarding special
needs children, attend individual counseling to address case
issues, and complete medical training regarding feeding pumps
and G-tubes.
October 2018 Supplemental Petition
In October 2018, DCFS filed another section 387
supplemental petition on behalf of Ezra. For the s-1 count, the
petition alleged that mother and father continued to medically
neglect Ezra through their failure to keep his “scheduled
appointments necessitated by the child’s persistent weight loss
resulting in the child’s hospitalization . . . .” The s-2 count
alleged that mother failed to regularly participate in her court-
ordered individual counseling and mental health assessment.
The s-3 count alleged that father failed to complete the court-
ordered medical training regarding Ezra’s feeding pump and G-
tube.
On the same day, the juvenile court detained Ezra from
both parents. Mother and father were granted unmonitored
visits. A few weeks later, the court modified the visits “to
monitored given . . . [DCFS’s] concern with the family being a
flight risk.”
In February 2019, the juvenile court sustained the s-1
count (mother’s failure to participate in counseling and mental
health assessment) and s-2 count (parents’ failure to keep Ezra’s
medical appointments), as alleged in the supplemental petition,
and dismissed the s-3 count (father’s failure to complete medical
training).
4
For the disposition, in March 2019, the juvenile court
removed Ezra from mother and father but ordered unmonitored
visitation.
Termination of Jurisdiction over Noel
The juvenile court terminated jurisdiction over Noel in
February 2019. Mother and father were granted joint physical
and legal custody of Noel, with mother having primary residence.
December 2020 Removal Order
By April 2020, Ezra had returned to mother’s home. But in
early December 2020, the juvenile court granted DCFS’s request
for a removal order of minors from mother after minors were
found, once again, unsupervised. Ezra was hospitalized, and
Noel was placed in foster care.
December 2020 Dependency Petition and Subsequent Petition
On December 8, 2020, DCFS filed another dependency
petition on behalf of Noel. The petition sought juvenile court
jurisdiction under section 300, subdivision (b)(1), based on the
allegation that, in November 2020, mother left minors
unsupervised for over 90 minutes. Noel was found naked, and
Ezra was found only wearing a diaper. Based on the same
allegations, a section 342 subsequent petition was filed on behalf
of Ezra.
December 2020 Detention Report and Hearing
According to the December 2020 detention report, father
was living in Las Vegas. When contacted by DCFS, father
indicated that he understood the reason for minors’ detention.
At the December 2020 detention hearing, the juvenile court
found a prima facie case that minors were children described by
section 300 and detained them from the parents.
5
January 2021 Jurisdiction/Disposition Report
According to the January 2021 jurisdiction/disposition
report, Ezra continued to be hospitalized.
The dependency investigator had interviewed father
telephonically.4 Father stated that he was currently residing
with his mother and was not working due to the COVID-19
pandemic. He advised that he was able and willing to take
custody of Noel. He understood, however, that Ezra had not been
returned to his care because he had not completed a special needs
parenting class or individual counseling.
Mother believed that father was “a great father,” but she
did not think it would be in Noel’s best interest to be placed with
him. Because father lived in Las Vegas, mother would not have
much contact with Noel if she lived with father.
DCFS categorized the family as being at very high risk of
future abuse and/or neglect based on the “referral and case
history, ongoing neglect issues in the home, and . . . Ezra having
significant developmental delays[.]” Accordingly, DCFS
recommended minors’ continued detention from the parents.
Regarding father, DCFS recommended that he comply with
previous court orders, such as participating in a support group for
parents with children with special medical needs and to learn
about Ezra’s medication needs. DCFS noted that although father
was a nonoffending parent in the most recent petitions regarding
leaving minors unsupervised, he had “played a minimal role in
4 The jurisdiction/disposition report indicates that the
interview was conducted on December 22, 2019. Based on the
content and context of the interview, this date appears to be an
error, and we assume that the interview took place, instead, on
December 22, 2020.
6
the care of his children and ha[d] been living in Las Vegas while
mother ha[d] been caring for the children full time.”
March 2021 Last Minute Information for the Court
DCFS reported that Ezra had adjusted well to his
caregiver’s home and that his health had stabilized. There were,
however, concerns regarding Noel’s behavior. Noel’s caretaker
described severe tantrums when the child did not get her way.
Noel would become “so angry that she w[ould] pull open her
dresser drawer so hard” that it would almost fall on her. Noel
spit on other children living in the home and broke their
belongings as well as her own.
Adjudication Hearing
At the March 9, 2021, adjudication hearing, the juvenile
court sustained the December 2020 section 300 petition as to
Noel and the section 342 petition as to Ezra.
With respect to disposition, father’s counsel first requested
“a case plan narrowly-tailored to the case issues” and “a
minimum amount of services, if at all.” As for custody, father’s
counsel requested “release to either [father] or . . . mother.”
The juvenile court declared minors dependents of the court.
The court removed Ezra from mother. The court removed Noel
from both parents’ custody. Regarding Noel and father, the court
found that it was “not in the child’s best interests to be returned
to [father], even though he’s nonoffending under the [section] 300
petition[.]” The court noted that father “did not follow through
with Ezra’s needs and . . . had the child removed from him.
While Noel doesn’t have the same medical needs, she does have
emotional needs, and it’s not in her best interests that we place
the child with her [sic] when father failed to follow up with other
needs.”
7
This timely appeal ensued.
DISCUSSION
I. Custody of Noel
Father argues that, because he was a noncustodial and
nonoffending parent, the juvenile court erred by denying his
request for placement of Noel without making a detriment
finding, as required by section 361.2, subdivision (a). He further
contends that, had the court made such a finding, it would not
have been supported by substantial evidence.
A. Standard of review
“We normally review an order removing a child from
parental custody for substantial evidence viewing the record in
the light most favorable to the juvenile court’s findings.
[Citations.] When the issue on appeal involves the interpretation
and proper application of the dependency statutes, however, our
review is de novo.” (In re Anthony Q. (2016) 5 Cal.App.5th 336,
344 (Anthony Q.).)
B. Relevant law
Section 361.2 provides, in relevant part, that if a juvenile
court orders the removal of a child under section 361, it “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
[s]ection 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.” (§ 361.2, subd. (a).) The basis for the
court’s determination under section 361.2, subdivision (a), must
be made “either in writing or on the record[.]” (§ 361.2, subd. (c).)
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The juvenile court must “weigh[] all relevant factors to
determine if the child will suffer net harm[,]” and any finding of
detriment in this context must be made by clear and convincing
evidence. (In re A.C. (2020) 54 Cal.App.5th 38, 43.)
C. Analysis
Noel was not residing with father when “the events or
conditions arose that brought the child within the provisions of
[s]ection 300” in November/December 2020.5 Accordingly, “the
[juvenile] court was required under section 361.2 to place [Noel]
with father unless such placement would be ‘detrimental to the
safety, protection, or physical or emotional well-being of the
child.’” (In re Adam H. (2019) 43 Cal.App.5th 27, 32 (Adam H.);
see also In re Abram L. (2013) 219 Cal.App.4th 452, 455
(Abram L.).)
5 While father might have had joint physical and legal
custody of Noel, the record reflects that father had minimal, if
any, contact with the child while father was living in Las Vegas.
DCFS nevertheless contends that the record “does not clearly
establish that . . . father was noncustodial.” This argument
misses the mark, as DCFS does not suggest that Noel was
residing with father. [“[Father] had joint legal and physical
custody of Noel but moved to Las Vegas, leaving . . . mother to
care for both children by herself.”])~ A parent who technically
has physical and/or legal custody of a child may still be deemed
noncustodial because the child does not live with the parent. (See
In re Dakota J. (2015) 242 Cal.App.4th 619, 628 (Dakota J.)
[“historically the term ‘resides’ has been commonly used and
understood to mean ‘“‘to dwell permanently or for a considerable
[amount of] time[]’”’”]; Anthony Q., supra, 5 Cal.App.5th at
pp. 351–352.)
9
The juvenile court failed to make such an express finding of
detriment as to Noel.6 Indeed, the court failed to make any
reference to the requirements of section 361.2, subdivision (a), at
the hearing or in its minute order. Rather, the court found that it
was “not in the child’s best interests to be returned to [father],
even though he’s nonoffending under the [section] 300 petition[.]”
(Italics added.) But “[t]he ‘finding of detriment standard’ and the
‘best interest standard’ are not legal equivalents.” (In re
Jonathan P. (2014) 226 Cal.App.4th 1240, 1256 (Jonathan P.).)
We conclude that the court applied the wrong legal standard in
adjudicating father’s request for custody of Noel. (See Adam H.,
supra, 43 Cal.App.5th at p. 32; Jonathan P., supra,
226 Cal.App.4th at p. 1256; Abram L., supra, 219 Cal.App.4th at
p. 461.)
6 To the extent that DCFS suggests that father forfeited this
issue on appeal by “never request[ing] custody under section
361.2[,]” we disagree. As noted in the January 2021
jurisdiction/disposition report, father told the dependency
investigator that he was able and willing to take custody of Noel.
Moreover, at the adjudication hearing, father’s counsel requested
“release to either” parent. These requests were sufficient to
“trigger[] section 361.2, subdivision (a)’s mandate that ‘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.’” (In
re D’Anthony D. (2014) 230 Cal.App.4th 292, 298, fn. 2
(D’Anthony D.).) Even if forfeiture could be found, because “[t]he
arguments raised by father are primarily issues of law”
(Abram L., supra, 219 Cal.App.4th at p. 462), we would still
exercise our discretion to address them (see D’Anthony D., supra,
230 Cal.App.4th at p. 298, fn. 2).
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“Although we have concluded the juvenile court erred in
failing to make a [detriment] finding under section 361.2,
subdivision (a), ‘[w]e cannot reverse the court’s judgment unless
its error was prejudicial, 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.’”’” (Adam H., supra,
43 Cal.App.5th at p. 32.)
The juvenile court’s finding that it was not in Noel’s best
interest to be placed with father was based on father’s failure to
“follow through with Ezra’s needs . . . .” (Italics added.) The
court acknowledged that Noel did not “have the same medical
needs” as Ezra, but that she did “have emotional needs.” Given
the wide chasm between the severity and nature of Ezra’s
lifelong, serious medical needs and Noel’s more recent behavioral
issues in foster care, we conclude that it is reasonably probable
that father would have obtained a more favorable result had the
juvenile court evaluated his request for custody of Noel under
section 361.2, subdivision (a), and applied the detriment standard
rather than the best interest standard. We can locate nothing in
the record that would compel a finding, as a matter of law, that
placement with father would be detrimental to Noel. 7 Our
conclusion is bolstered by the overarching objective of the
7 For the same reasons, “[t]his is not the clear-cut case in
which we may imply” a finding of detriment. (Adam H., supra,
43 Cal.App.5th at p. 33; see also Abram L., supra,
219 Cal.App.4th at p. 463, fn. 5 [“Where the juvenile court fails to
make express findings required by statute, . . . we imply such
findings, if at all, ‘only where the evidence is clear[]’”]; In re J.S.
(2011) 196 Cal.App.4th 1069, 1078 [“the doctrine of implied
findings may be given limited scope where an express finding is
required”].)
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dependency scheme to preserve the family unit. (See Dakota J.,
supra, 242 Cal.App.4th at pp. 628–629.)
“We do not suggest whether the record would or would not
support a finding of detriment in this case. . . . This is not our
decision to make. Given that the juvenile court did not expressly
consider placement with father under section 361.2 and there
was conflicting evidence as to whether such placement would be
detrimental to [Noel], we believe the better practice is to remand
the matter to the juvenile court to consider the facts within the
appropriate statutory provision.” (Adam H., supra,
43 Cal.App.5th at p. 33.)
II. Custody of Ezra
Unlike with Noel, the juvenile court never terminated its
jurisdiction over Ezra arising from the initial April 2016
dependency petition. In March 2019, the court removed Ezra
from father and did not subsequently return him.
Relying on section 361 and Dakota J., supra, 242
Cal.App.4th 619, father argues that because he did not have
custody of Ezra, it was legal error for the juvenile court to order
Ezra removed from him at the March 9, 2021, adjudication
hearing.
We reject father’s argument for the simple reason that the
juvenile court did not remove Ezra from father’s custody at the
March 9, 2021, hearing. Rather, the court removed Ezra from
mother only; after all, it had already removed Ezra from father in
March 2019. The court stated: “Court will make findings as to
the mother and the kids pursuant to . . . section 361[, subdivision]
(c), and by clear and convincing evidence that [is] also included
for Ezra, . . . that there’s still a substantial risk to the children, if
they were returned to the physical custody of the parents, [and]
12
no reasonable means today by which to protect them without
removing them from their parents’ care.” (Italics added.) The
minute order regarding Ezra unambiguously provides: “It is
reasonable and necessary to remove the child from the
mother . . . .”8
In his reply brief, father argues that the prior removal
order did not preclude him from requesting custody of Ezra under
section 361.2 and that, in denying that request, the juvenile court
was required to make a detriment finding. Although father
forfeited this argument by failing to raise it in his opening brief
(Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487,
fn. 4 [“An appellant’s failure to raise an argument in the opening
brief waives the issue on appeal”]), for the sake of completeness,
we will consider it on the merits.
Assuming, arguendo, that it was error for the juvenile court
to fail to make a finding of detriment under section 361.2,
subdivision (a), before denying father’s request for custody of
Ezra, we conclude that the error was not prejudicial and does not
warrant reversal. (See Adam H., supra, 43 Cal.App.5th at p. 32
[to reverse, failure to make detriment finding must be
prejudicial].)
The juvenile court was justifiably concerned by father’s
previous failures to comply with orders related to learning to care
for Ezra’s serious medical needs. Ezra was repeatedly
hospitalized during the pendency of this dependency matter, and
there was a sustained count directly related to father’s medical
8 In contrast, the minute order regarding Noel, who was
removed from both mother and father, states: “It is reasonable
and necessary to remove the child from the parents . . . .”
13
neglect of Ezra through the failure to keep Ezra’s medical
appointments.
The gravity of the juvenile court’s concerns about father’s
failures with respect to Ezra’s medical needs is apparent given
that the court found that such conduct threatened Noel’s
wellbeing—despite Noel not sharing Ezra’s medical problems.
This is a compelling indicator that it is not reasonably probable
that father would have obtained a more favorable result had the
juvenile court made an explicit detriment finding under
section 361.2, subdivision (a), when denying father’s request for
custody of Ezra. Accordingly, we will not disturb the court’s
order. (Adam H., supra, 43 Cal.App.5th at p. 32.)
DISPOSITION
The March 9, 2021, dispositional order regarding Ezra is
affirmed. We reverse the March 9, 2021, dispositional order
removing Noel from father’s custody and remand the matter for
the juvenile court to hold a new hearing where, if father still
requests custody, the court shall consider placing Noel with
father under section 361.2, subdivision (a).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, J.
ASHMANN-GERST
We concur:
________________________, P. J. ________________________, J.
LUI CHAVEZ
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