Filed 9/5/13 (unmodified opn. attached)
                                 CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 SECOND APPELLATE DISTRICT

                                          DIVISION THREE


In re ABRAM L. et al., Persons Coming                B245706
Under the Juvenile Court Law.
                                                     (Los Angeles County
                                                     Super. Ct. No. CK94529)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND                           ORDER MODIFYING OPINION
FAMILY SERVICES,                                     [NO CHANGE IN JUDGMENT]

        Plaintiff and Respondent,

        v.

ABEL L.,

        Defendant and Appellant.



THE COURT:
        It is ordered that the opinion filed herein on September 4, 2013, be modified as
follows:
        On page 1, in the caption, the designation of “Robert Stevenson, Referee” is
replaced with “Marguerite D. Downing, Judge.”
        There is no change in the judgment.
Filed 9/4/13 (unmodified version)
                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                         DIVISION THREE


In re ABRAM L. et al., Persons Coming                 B245706
Under the Juvenile Court Law.
                                                      (Los Angeles County
                                                      Super. Ct. No. CK94529)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

        Plaintiff and Respondent,

        v.

ABEL L.,

        Defendant and Appellant.



        APPEAL from an order of the Superior Court of Los Angeles County, Robert
Stevenson, Referee. Reversed and remanded.

        Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and
Appellant.

        John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.

                                       _____________________
                                    INTRODUCTION
       Appellant Abel L. (father) appeals the juvenile court‟s dispositional order granting
physical custody of his sons, Abram L. and Jacob L., to respondent Los Angeles County
Department of Children and Family Services (the Department) for suitable placement.
The court removed the children from their biological mother, Juanita R. (mother), after
she allegedly threatened them with physical harm. Because father was a noncustodial
parent, the juvenile court was required to adjudicate his request for physical custody of
the children pursuant to Welfare and Institutions Code section 361.2.1 Under the statute,
father was entitled to physical custody of the children unless the juvenile court found that
placement with father would be detrimental to the safety, protection, or physical or
emotional well-being of the children. (§ 361.2, subd. (a).) The juvenile court, however,
did not make an express finding of detriment as the statute requires (§ 361.2, subd. (c)),
and it is unclear from the record whether the court considered the requirements of the
statute before denying father‟s request for custody of his children. We thus reverse the
order and remand the case for further proceedings consistent with this opinion.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1.     The Children’s Family
       When this action commenced, Abram L. and Jacob L. were 15 and 13 years old,
respectively. The two boys lived with mother, mother‟s husband Francisco R.
(stepfather), and their adult sister Andrea L., who was 19 years old. Pursuant to a family
court order, mother had physical and legal custody of Abram and Jacob for more than
10 years.
       Father lived with his girlfriend. Abram and Jacob visited father on Saturdays,
approximately every two weeks.
       2.     History of Domestic Violence and Physical Abuse
       Mother and stepfather had a history of domestic violence in the three years they
had been together. The couple engaged in verbal confrontations about two times a day,

1
       All future statutory references are to the Welfare and Institutions Code.


                                             2
which often involved name-calling. On about two occasions the arguments escalated to
physical violence. In December 2011, mother pulled out a box cutter knife and
threatened stepfather with it.
       According to Abram, Jacob and Andrea, mother occasionally physically abused
them by hitting them with objects, such as a broom or belt, and with her fists. Mother
once beat Abram on his leg, chest and face with a belt because he refused to attend a
youth church conference. When Abram was 13 years old, mother hit him with a broom,
injuring his eye. According to Jacob, mother hit him with a belt more than five times.
Jacob also claimed that mother hit him with a stick when he was seven or eight years old.
Andrea claimed that mother hit her with a metal pipe on one occasion, and with a broom
on another.
       Underlying mother‟s abuse of her children was her struggle with mental health.
Father believed that mother had a “problem in her brain.” He claimed that mother would
say, “I want to kill you” if someone disagreed with her. Jacob described mother as
“psychotic” and having a “loose screw in there.” Abram described her as a “psycho.”
According to mother‟s adult daughter, Emily E., mother was “paranoid.” Mother‟s sister
stated that mother would be happy one day, and “down and sleeping all day, another
day.” The children‟s maternal grandmother stated that mother “has mood swings, and
easily goes from being very lovable to being very angry, within a split second.”
       Approximately four months before these proceedings began, after mother hit
Abram with a belt and Andrea with a metal pipe, Abram and Andrea left mother‟s home
and went to stay with father and his girlfriend. About three months later, however,
Abram and Andrea returned to live with mother because of conflicts they had with
father‟s girlfriend.
       3.      July 6, 2012, Incident
       On July 6, 2012, mother and Andrea had a verbal altercation at home. Mother
broke a mirror, grabbed a piece of broken glass, and threatened to stab Andrea and
Abram with it. At one point, mother also threatened to stab Abram with a knife. Andrea
and mother called the police, who arrived at the scene and arrested mother for child


                                            3
endangerment. The Department temporarily detained Abram and Jacob and placed them
in foster care.
          4.      The Juvenile Dependency Petition and Initial Court Hearing and Order
          On July 11, 2012, the Department filed a juvenile dependency petition requesting
the juvenile court to take jurisdiction over Abram and Jacob pursuant to section 300,
subdivisions (a), (b) and (j). All of the counts in the petition except one concerned
mother‟s alleged acts or omissions. Count b-6 alleged that father had a history of using
illicit drugs and was a current abuser of alcohol. This count, however, would later be
dismissed by the juvenile court.
          On the same day the petition was filed, the juvenile court held a hearing on the
case. Father‟s counsel stated at the hearing that father could not take custody of Jacob
and Abram because he did not yet have appropriate housing. The court entered an order
stating that there was a prima facie case for detaining Abram and Jacob. The order also
granted father unmonitored visits, required father to submit to random alcohol tests, and
directed the Department to include in its jurisdictional report a discussion about placing
the children with relatives.
          5.      The Department’s Investigation into Whether the Children Should Be
                  Placed with Father
          Between the time the Department became involved in this matter on July 6, 2012,
and the jurisdictional and dispositional hearing on September 25, 2012, the Department
considered placing Abram and Jacob with several different relatives, including father.
At the time the children were initially detained, however, the Department could not locate
father.
          Later, on several occasions, the Department asked Abram and Jacob whether they
wished to live with father. Both boys stated that they did not wish to live with father if
father continued to live with his girlfriend.
          The children‟s maternal aunt stated she had concerns about the children living
with father‟s girlfriend because she had heard the girlfriend “talk down” to Abram, tell
him to look into her eyes when he talked to her, and make inappropriate “innuendos” to


                                                4
the child. Abram stated that he and Andrea left father‟s home because father‟s girlfriend
had taken Andrea‟s ring and argued with Andrea. Jacob stated that father‟s girlfriend did
not “like” Abram and Jacob.
       On August 6, 2012—a month after the children were detained—the Department
interviewed father about being a potential caretaker for the children. Father stated he
wanted his sons to live with him but he could not take care of them at the time because
there was no space for the children where he was living. He also stated that he was
saving money to rent a two-bedroom apartment for himself, Andrea and the two boys.
At the time, father‟s girlfriend still lived with father, but father said he would be willing
to live separately from her for the sake of his children.2
       On September 5, 2012, father reported to the Department that he had found a
bigger place to live for himself and the children. Father, however, declined to allow the
Department to inspect his home because he was in the process of moving. He promised
to contact the Department the next week to schedule an inspection. But father did not
call the Department before the September 25, 2012, hearing.
       After Abram and Jacob were detained and placed with a foster parent, father only
visited them one time. Father advised the Department he had difficulty visiting the
children because they lived in Palmdale and he lived in Los Angeles. In the meantime,
Abram and Jacob were doing well in foster care.
       The Department determined that it was in the best interest of the children to
remain in foster care. In its report to the juvenile court dated September 25, 2012, the
Department requested the court to enter an order removing the children from the
“physical custody of the parents” pursuant to section 361, subdivision (c)(1). The
Department did not request in this report that the juvenile court make a finding or order
under section 361.2, subdivisions (a) or (c), which we shall discuss post.

2
      Father later told the Department that he was not willing to “avoid contact”
between his children and girlfriend, and that the children could not “manipulate” his life.
Nothing in the record indicates, however, that father revoked his offer to live separately
from his girlfriend in order to obtain custody of his children.


                                               5
       6.     The Department’s Assessment of Father’s Alleged Alcohol and Drug
              Problem
       After the petition was filed, in mid and late July, 2012, the Department
interviewed Abram, Jacob and mother regarding the allegations in the petition, including
father‟s alleged drug and alcohol problem. Abram stated that father sometimes drinks
alcohol and that father attends “AA meetings.” Jacob stated that he did not know
whether father had a problem with alcohol, and that he had never seen father drink.
Mother stated that father used to use alcohol and cocaine but does not know if he
continued to do so.
       During a telephone interview by a Department social worker, father denied having
current alcohol dependence, and expressed a willingness to comply with on-demand
testing. Father took a drug and alcohol test on August 6, 2012 that was negative. The
record does not indicate why father did not take additional drug and alcohol tests before
the jurisdictional and dispositional hearing. Within approximately a month after that
hearing, father took three additional drug and alcohol tests, all of which were negative.
       7.     The September 25, 2012, Hearing and Order
       On September 25, 2012, the juvenile court held a jurisdictional and dispositional
hearing. At the hearing, the Department‟s attorney argued that placing the children with
father was “premature” because father‟s home had not yet been assessed, father had only
visited the children once since they were detained, the children did not want to live with
father‟s girlfriend, and father had a history of alcohol abuse. Counsel for Abram and
Jacob requested that the children not be placed with father because of the “friction”
between the children and father‟s girlfriend and because the foster parent was “very, very
good” to the children.
       Father‟s counsel requested that the children be placed with father. As to the
Department‟s concern that father‟s home had not been assessed, counsel stated that father
did not call the social worker to arrange for an inspection because some required repairs
were not completed. She further stated that those repairs “have been done.” Counsel
also stated that father‟s girlfriend was not residing in father‟s new apartment and, in any


                                             6
case, the fact that the children did not like father‟s girlfriend was not a sufficient basis to
deny father‟s request for custody. Counsel concluded by stating that “[t]he Department
has not met its burden by clear and convincing evidence to prove that return [of the
children] to the father at this time would create a substantial risk of detriment.”
       The juvenile court stated it agreed with the Department‟s counsel that placing the
children with father was “premature.” The court also expressed concerns about
“inappropriate housing and drug testing.” The court further stated: “Since the children
are now stable, I‟m disinclined to move them until I know that the placement with
[father] is going to work out, even though he is non offending. I note . . . he‟s only
visited once. So there‟s a relationship that needs to be resolved . . . . So, at this time, I‟m
not going to send them [to father.]” The court did not, however, refer to section 361.2 or
use the operative language of the statute.
       At the end of the hearing, the juvenile court entered an order dated September 25,
2012. The order sustained some counts in the dependency petition and dismissed other
counts. The court dismissed the only count against father, count b-6. The order also
declared the children dependents of the court, removed the children from mother‟s
physical custody pursuant to section 361, subdivision (c),3 gave the Department custody
of the children for suitable placement, and provided father with family reunification
services. The order further provided that father was to take five random drug and alcohol
tests. The order did not make any reference to section 361.2.
       Father filed a timely notice of appeal of the September 25, 2012, order.




3
       The minute order erroneously refers to section 361, subdivision (b), but the court
stated on the record that the children would not be returned to their “parents physical
custody” under section 361, subdivision (c). We presume the reporter‟s transcript is the
most accurate statement of the court‟s intent. (In re A.C. (2011) 197 Cal.App.4th 796,
799-800.) We also note that we have observed this same erroneous reference to section
361, subdivision (b) in minute orders in many other cases. We urge the juvenile court to
correct this error.


                                               7
                                      CONTENTIONS
       Father argues that the juvenile court failed to make a finding that placing Abram
and Jacob in his custody would be detrimental to the safety, protection or physical or
emotional well-being of the children, as required by section 361.2. He further contends
that there was no substantial evidence to support such a finding.
                                       DISCUSSION
       1.        The Juvenile Court Erroneously Failed to Apply Section 361.2
       Section 361, subdivision (c) provides that a dependent child may not be taken
from the physical custody of a parent with whom he 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 is 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.” (§ 361, subd.
(c)(1).)
       The juvenile court found that the requirements of section 361, subdivision (c)(1)
were satisfied in light of mother’s conduct. Mother did not appeal the dispositional order
and we assume the court‟s finding was supported by substantial evidence. Abram and
Jacob, however, could not be removed from father’s physical custody under section 361,
subdivision (c)(1) because they were not residing with him when the petition was
initiated. (In re V.F. (2007) 157 Cal.App.4th 962, 969 (V.F.) [section 361,
subdivision (c) “ „ “does not, by its terms, encompass the situation of the noncustodial
parent” ‟ ”].)
       The statute governing father‟s request that the children be placed in his custody
was section 361.2. Subdivision (a) of the statute provides: “When 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


                                              8
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), italics added.)
       “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.” (In re
Marquis D. (1995) 38 Cal.App.4th 1813, 1828 (Marquis).) “[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.” (Id. at p. 1829; accord
In re Isayah C. (2004) 118 Cal.App.4th 684, 697 [“a nonoffending parent has a
constitutionally protected interest in assuming physical custody, as well as a statutory
right to do so, in the absence of clear and convincing evidence that the parent‟s choices
will be „detrimental to the safety, protection, or physical or emotional well-being of the
child‟ ”].)
       Under the plain terms of the statute, if the juvenile court finds that placing a child
in the physical custody of a noncustodial parent would not be detrimental to the child
within the meaning of section 361.2, subdivision (a), it must place the child in the
physical custody of the noncustodial parent. If the child is placed with the noncustodial
parent, the juvenile court may (1) order that the parent become legal and physical
custodian of the child; (2) order that the parent assume custody subject to the jurisdiction
of the juvenile court and require that a home visit be conducted within three months; or
(3) order that the parent assume custody subject to the supervision of the juvenile court.
(§ 361.2, subd. (b).) Section 361.2, subdivision (c) provides that “[t]he court shall make
a finding either in writing or on the record of the basis for its determination under
subdivisions (a) and (b).”
       Nothing in the record indicates that the juvenile court considered the requirements
of section 361.2 in determining whether to deny father‟s request for physical custody of
Abram and Jacob. The order dated September 25, 2012, does not refer to section 361.2


                                              9
or the standard set forth in subdivision (a) of the statute to deny a noncustodial parent
physical custody of his or her children. Likewise, in its oral remarks regarding the
possible placement of the children with father, the juvenile court did not refer to section
361.2, or use the operative language of the statute. It is also worth noting that the
Department did not request the court to consider section 361.2 in its September 25, 2012,
report to the court. Therefore, we find the juvenile court did not apply the applicable law
to father‟s request for physical custody of the children.
       2.     Father Did Not Forfeit His Arguments
       The Department argues that father forfeited any argument that the juvenile court
failed to apply or comply with section 361.2 because he did not raise the issue below. As
a general rule, a party who does not raise an argument below, forfeits the argument on
appeal. (In re T.G. (2013) 215 Cal.App.4th 1, 14.) Application of the forfeiture rule,
however, is not automatic. (Ibid.) When an appellant raises a question of law, for
example, the appellate court can exercise its discretion to address the issue. (V.F., supra,
157 Cal.App.4th at pp. 967-968 [father did not forfeit his arguments that he was entitled
to retain custody of his children under section 361, subdivision (c) and that the court was
required to make findings under section 361.2].)
       We conclude that father did not forfeit appellate review of whether the juvenile
court failed to apply or comply with section 361.2. The arguments raised by father are
primarily issues of law. Further, at the dispositional hearing, father‟s counsel argued that
the Department did not meet its showing that placing the children in father‟s custody
“would create a substantial risk of detriment.” This argument appears to be based on
section 361.2, subdivision (a). Under these circumstances, we decline to hold that father,
a nonoffending and noncustodial parent, forfeited his arguments regarding his
constitutionally protected interest in assuming physical custody over his children.
       3.     We Decline to Make Implied Findings
       The Department argues that although the juvenile court did not make any express
findings regarding alleged detriment to the safety, protection or physical or emotional
well-being of the children, we can imply such findings. We reject this argument.


                                             10
       The court in Marquis rejected a similar argument. There, the juvenile court denied
a noncustodial father‟s request for physical custody of his children under former section
361, subdivision (b), a statute that did not apply to the father because the children did not
reside with him at the time the petition was initiated.4 (Marquis, supra, 38 Cal.App.4th at
pp. 1824-1825.) Because it was not clear from the record that the trial court even
considered the correct statute—section 361.2—the Court of Appeal held that implied
findings were not “warranted.” (Id. at p. 1825.)
       Likewise, in V.F., the father‟s children were not residing with him when the
petition was initiated because the father was incarcerated. The juvenile court removed
the children from father‟s custody under section 361, subdivision (c), and did not
consider section 361.2. The Court of Appeal held that the juvenile court applied the
wrong statute. (V.F., supra, 157 Cal.App.4th at p. 973.) The court further held:
“Although this record arguably would support a finding that placement with [father]
would be detrimental to the children, we believe the better practice is to remand the
matter to the trial court where that court has not considered the facts within the
appropriate statutory provision.” (Ibid.; accord 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”].)




4
       In 1995, when the Marquis opinion was issued, former section 361, subdivision
(b)(1) contained the same key provisions as the current version of section 361,
subdivision (c)(1). (See Marquis, supra, 38 Cal.App.4th at pp. 1820-1821, fn. 6.)


                                             11
         Under Marquis and V.F., it is inappropriate to make implied findings when the
juvenile court fails to make express findings as required by section 361.2, subdivision (c).
We thus decline to make implied findings in this case.5
         4.     There Was a Miscarriage of Justice
         The final issue is whether the juvenile court‟s failure to consider or apply section
361.2 resulted in a miscarriage of justice. We 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.” (In re J.S., supra,
196 Cal.App.4th at p.1078.) We conclude that if the juvenile court applied section 361.2,
it was reasonably probable that it would have found that placement of the children with
father would not be detrimental to the safety, protection or physical or emotional well-
being of the children.
         The Department argues there were four factors that supported a finding of
detriment. The first is that father “appeared to have an unresolved problem with alcohol
and a history of substance abuse.” The juvenile court, however, dismissed the allegations
in the petition relating to father‟s alleged drug and alcohol problems. Further, father
passed the only drug and alcohol test he was given before the dispositional hearing.
Although mother claimed that father had substance abuse problems, she had not lived
with father for many years, and there is no evidence in the record that father used illicit
drugs or drank an inappropriate amount of alcohol at any time after these proceedings
began.


5
        The Department argues that there was substantial evidence to support an implied
finding that placement of the children with father would be detrimental to the safety,
protection, or physical or emotional well-being of the children. We normally review the
sufficiency of the evidence to support a finding under the substantial evidence test, which
requires us to review the entire record in a light most favorable to the order. (Marquis,
supra, 38 Cal.App.4th at p. 1825.) Where the juvenile court fails to make express
findings required by statute, however, we imply such findings, if at all, “only where the
evidence is clear.” (Ibid.) As we explain in Section 4 post, the evidence was far from
clear in this case.


                                               12
       The Department also argues that placement with father was detrimental to the
children because it had not yet inspected his residence. At the dispositional hearing,
however, father‟s counsel stated that the repairs to father‟s residence were complete, and
that the Department could conduct an inspection. Moreover, section 361.2 contemplates
the Department inspecting a noncustodial parent‟s home after the parent is given physical
custody of the child. Section 361.2, subdivision (b) states: “If the court places the child
with that parent it may . . . [¶] . . . [¶] [o]rder that the parent assume custody subject to the
jurisdiction of the juvenile court and require that a home visit be conducted within three
months.” (§ 361.2, subd. (b)(2), italics added)
       The Department argues that father‟s girlfriend‟s relationship with the children
“was also cause for concern.” Father and his counsel, however, stated father‟s girlfriend
was not living with father at the time of the dispositional hearing. In any case, merely
because Abram and Jacob did not have a good relationship with father‟s girlfriend does
not necessarily mean placing the children with father would be detrimental to the safety,
protection, or physical or emotional well-being of the children. At the time of the
dispositional hearing, Abram and Jacob were 15 and 14 years old, respectively. Although
they were entitled to have their wishes considered, the boys were not entitled to decide
where they would be placed. (In re John M. (2006) 141 Cal.App.4th 1564, 1570.)
       Finally, the Department argues that placing the children with father would have
been detrimental to them because “father was totally uninvolved in the children‟s lives.”
Father, however, was not a stranger to the children. Abram and Jacob had visited father
every other Saturday for many years. Moreover, an alleged lack of a relationship
between father and the children is not, by itself, sufficient to support a finding of
detriment for purposes of section 361.2, subdivision (a). (In re John M., supra,
141 Cal.App.4th at p. 1570 [child‟s wishes, need for services, lack of a relationship with
father and other factors were not sufficient to support a finding of detriment].)




                                               13
       In light of the evidence in this case, or lack thereof, there is a reasonable
probability that the juvenile court would have rejected the Department‟s detriment
argument had it properly considered the standard set forth in section 361.2.6
Accordingly, the juvenile court‟s failure to consider the applicable statute resulted in a
miscarriage of justice requiring reversal of the court‟s dispositional order.
                                      DISPOSITION
       The juvenile court‟s order dated September 25, 2012, is reversed, and the case is
remanded for further proceedings consistent with this opinion.


       CERTIFIED FOR PUBLICATION




                                                   KITCHING, J.

We concur:




              CROSKEY, Acting P. J.




              ALDRICH, J.




6
       We reach this conclusion based on the existing facts at the time of September 25,
2012 hearing, which we determined from the record on appeal. On remand the juvenile
court must make a decision based on the facts existing at that time.


                                              14
