Filed 11/19/14 In re J.S. CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


In re J.S. et al., Persons Coming Under the
Juvenile Court Law.

SONOMA COUNTY HUMAN
SERVICES DEPARTMENT et al.,
         Petitioners,
v.
                                                                     A142662
THE SUPERIOR COURT OF SONOMA
COUNTY,                                                              (Sonoma County
         Respondent;                                                 Super. Ct. Nos. 4312-DEP, 4313-DEP)
JAMES G.,
         Real Party in Interest.


         In this dependency case, twins J.S. and K.S. (Minors) were removed from their
mother’s custody and placed in foster care. Although identified as Minors’ presumed
father, James G. (Father) did not directly participate in the dependency proceedings until
about a year and a half after their original detention when he filed a petition under
Welfare and Institutions Code section 3881 seeking visitation and objecting to any
adoption plan for the children. At the time of his section 388 petition, Father was
hospitalized, having suffered a massive stroke, and was physically incapacitated with
only limited ability to communicate through head and eye movements. After a hearing,

         1
             Undesignated statutory references are to the Welfare and Institutions Code.


                                                             1
the juvenile court “placed” the Minors with Father pursuant to section 361.2,
subdivision (a) (section 361.2(a)), retaining jurisdiction (§ 361.2, subd. (b)(2)). The
Sonoma County Human Services Department (Agency) and Minors (collectively
Petitioners) challenge that order by petition for writ of mandate. They argue that
section 361.2(a), which provides for preferred custodial placement with a nonoffending
parent, has no application here and that Minors’ “constructive” placement with Father
was an abuse of discretion in these circumstances. We issued an order to show cause and
stayed the placement order pending our decision. We hold that, under the circumstances
presented here, the juvenile court was required to consider placement of the Minors with
Father, and to grant such placement absent clear and convincing evidence of resulting
detriment to the children. We find, however, that the court applied an incorrect standard
in assessing detriment and remand for further consideration under the correct legal
standard.
                                   I.     BACKGROUND
A.     Marin County Original Petition
       In August 2012, Marin County Health and Human Services (Marin HHS) filed a
petition pursuant to section 300, subdivision (b), based on conduct of the two-year-old
Minors’ mother (Mother).2 At the detention hearing, the juvenile court in Marin County
declared Father to be the presumed father and appointed counsel to represent him. The
jurisdiction report stated that in January 2010, about two months after Minors were born,
Father was arrested for choking Mother. Mother obtained a restraining order that allowed
peaceful contact between the parents. Father was back in the home by the following July,
and two unsubstantiated reports of domestic violence were lodged four months later.
Father was arrested for domestic violence against Mother in March and June of 2011.
Minors reportedly had no contact with Father after June 2011, when they were about
19 months old. In October 2012, the court sustained the petition.


       2
         Mother filed no pleadings in this proceeding and has submitted only a letter to
this court indicating her support for Father’s “position and arguments.”

                                             2
       Notice of the September 2012 jurisdiction hearing was mailed to Father’s
appointed counsel, but not to Father, whose address was listed as “Hospitalized” and
“Hospital in Coma address currently unknown.” The jurisdiction report provided an
address for Father on Ocean Parkway in Bolinas. At hearings in September and October,
Father’s counsel said she had not been able to contact Father and asked the other parties
if they had contact information for him. Mother’s counsel stated during an October
hearing that “[F]ather was incarcerated and . . . subsequently suffered a stroke . . . .”
B.     Subsequent Marin County Petition
       On December 13, 2012, Marin HHS filed a subsequent petition3 alleging that on
three occasions in October and December, Mother was found asleep and unresponsive
with the children in her care. The court sustained the petition as amended at hearing in
January 2013. Around the same time, Minors were placed in a “foster-adopt” home in
Marin County.
       Notices of the detention, jurisdiction and disposition hearings regarding the
subsequent petition were mailed to Father at the Bolinas address and returned
undelivered. In December, Mother disclosed during a hearing that the Bolinas address
was the family’s former home when she, Minors and Father lived together. Mother said
she thought Father was in a coma in a hospital in Marysville or Susanville. She said
Father’s family lived in Fairfax and provided phone numbers for Father’s mother and his
adult daughter. About the same time, the social worker and Father’s counsel reported
they had not been able to contact Father. The social worker said letters sent to the
Bolinas address continued to be returned undelivered, Father’s relatives were withholding
information about Father’s whereabouts, and a search of prison and parole records and
Zabasearch.com were not fruitful.




       3
       Marin HHS first filed an amended petition, which was superseded by the
procedurally-correct subsequent petition.


                                              3
C.     Appointment of Guardian Ad Litem and Disposition
       The social worker said she had spoken with Father’s relatives in January or
February 2013. Father’s mother said she had no way of communicating with Father,
although she received his mail at an address in Fairfax. Father’s brother and sister
reported that Father had suffered a massive stroke, remained hospitalized, and could only
communicate by blinking his eyes. They did not disclose Father’s location but expressed
interest in relative placement.
       In March 2013, the court granted the request of Father’s counsel to appoint a
guardian ad litem (GAL) for Father to facilitate contact. In April, Father’s counsel
reported that she and the GAL still had not spoken with Father, and the court granted her
request to formalize the GAL appointment in a written order, again to facilitate contact.
The written application for the GAL’s appointment provided an accurate Healdsburg
District Hospital address for Father.4
       At the April 2013 disposition hearing, the court and parties agreed to defer any
findings as to Father until after “everybody’s had a chance to visit with the father.” The
court ordered removal of the Minors from Mother’s care and reunification services for
Mother. Mother appealed the order, and this court affirmed the removal order in early
2014. (In re J.S. (Feb. 13, 2014, A138506) [nonpub. opn.].)
D.     Return to Mother’s Care and Transfer to Sonoma County
       In May 2013, Minors were informally returned to Mother’s care at her residential
treatment facility, where they remained until about July. In September, a Marin HHS
section 388 petition was granted to formally order their return to her care. The case was


       4
         Attached to Father’s return are October 2014 declarations by Father’s Marin
County-appointed counsel and GAL discussing their efforts to contact Father during their
appointments. The record in a writ proceeding is limited to materials that were before the
trial court and evidence that is a proper subject of judicial notice. (Evid. Code, §§ 451,
452; Cal. Rules of Court, rule 8.486(b)(1)(B), (C).) Because the declarations were not
before the court below, we must disregard them. (Peterson v. Superior Court (1995)
10 Cal.4th 1185, 1200, fn. 9; Butler v. Superior Court (2000) 78 Cal.App.4th 1171,
1181.)


                                             4
transferred to Sonoma County in October because Mother and Minors had moved there.
Upon the case’s transfer, the court in Marin County relieved Father’s GAL of her
appointment. The GAL had reported in September that she still had not made contact
with Father and that Father’s relatives still had not disclosed his location. Notices of
Marin HHS’s section 388 petition and the October hearing on transfer were sent to Father
at the Bolinas address and returned undelivered.
E.     Sonoma County Proceedings and Supplemental Petition
       In December 2013, the Sonoma County Superior Court accepted the transfer and
appointed new counsel for Mother, Father and Minors. A new GAL was appointed for
Father.5
       In February 2014, the Agency filed a section 387 supplemental petition alleging
Mother had tested positive for methamphetamine and seeking Minors’ removal from her
custody. Notice of the detention hearing was sent only to Father’s counsel and GAL;
Father’s personal address was listed as unknown. At the detention hearing, Father’s
counsel told the court, “[N]either the [GAL] nor I have heard back from him or his
family.” The children were detained, and the Agency ultimately recommended

       5
         The court also conducted a paternity inquiry during this hearing. Mother
reported that Father was present at Minors’ birth, lived with them, and held them out as
his own children, although his name was not on their birth certificates. For the first time,
Mother disclosed that she was married to someone else, S.B., when Minors were born.
The Agency located S.B. in Algeria. S.B. confirmed that he was married to Mother when
Minors were conceived and born, but denied that he was their biological father and
expressed no interest in acting as their father.
        In May 2014, Minors’ counsel filed a section 388 petition to change Father’s
status from presumed to alleged father, but did not ask that S.B. or anyone else be named
the presumed father. Minors’ counsel withdrew the request at a later hearing: “[G]iven
the [Minors] did have some relationship with [Father] when they were very little, and
although [they] may not have memory of him, they have a story of who he is, and he is, at
least now, expressing an interest in having some kind of relationship with [them], and
[S.B.] has no interest whatsoever, and no relationship with the [Minors], it seems to me,
to be in their best interests [Father] be considered the presumed father.” Mother
maintained her position that Father was the presumed father, and the Agency took no
position on presumed father status as between Father and S.B. The court declared Father
the Minors’ presumed father.


                                              5
termination of services because Mother would not be able to complete her planned four-
month residential treatment program before the 18-month time limit on services expired.
       The combined jurisdiction and disposition report and an addendum were sent only
to Father’s appointed counsel and GAL; Father’s address was listed as “Whereabouts
unknown.” The social worker reported that she had not located Father and his sister had
not responded to requests for assistance. While the sister’s home had been approved for
placement by Marin County, Minors did not bond with her during multiple visits and
remained with their former Marin County foster parents.
F.     Father’s Section 388 Petition
       In May 2014, before the jurisdiction and disposition hearing on the supplemental
petition was held, Father’s counsel filed a section 388 petition asking the court to order
visitation for Father, consider Father’s relatives for placement, and rule out adoption at a
possible permanent plan at the section 366.26 hearing. He wrote, “Contrary to various
reports, Presumed (non offending) [Father’s] whereabouts are known, and have been for
about a year. . . . [¶] According to Father’s Case Management Supervisor . . . Father was
admitted to Healdsburg District Hospital October 30, 2012, after falling and suffering a
seizure July 29, 2012 in Marysville. He has been at this facility since then. . . . [¶] . . . [¶]
[I]n April 2013, [Father’s] attorney filed an application for [GAL], and listed Father’s
address as the Healdsburg hospital, with phone number. . . . Minutes from the
Dispositional Hearing in April, 2013 indicate that the Marin [GAL] would be in contact
with him, but apparently that never happened. Subsequent reports from Marin and then
Sonoma County continued to list Father’s whereabouts as unknown, and as of April 18,
2014, no social worker had seen Father. [¶] . . . [¶] . . . [After the transfer to Sonoma
County,] I was able to review the Marin file, [which I received] from County Counsel via
the social worker on March 19, 2014. I discovered the Healdsburg hospital address then,
and contacted [Father’s case management supervisor] and Father’s sister to arrange a
visit. The visit did not require the sister’s cooperation or attendance.
       “On April 15, 2014, counsel and [GAL] for Father visited Father at the hospital;
also present were his sister[,] . . . her husband, and [F]ather’s brother . . . . Father was


                                                6
able to respond to questions by moving his eyes upward to signal ‘yes,’ and shaking his
head to signal ‘no.’ He confirmed that he is the father of [Minors], that he acted as the
father from birth, that he let others know he was the father, and he still wants to be
considered the father. He lived with Mother and [Minors] for about a year after the birth.
He obviously wants to have visits with [Minors]; he became very emotional, starting to
cry when the issue was raised. He indicated that he wanted his [sister or brother] to take
care of [Minors]. [¶] . . . [¶] . . . Based on statements from Father’s relatives, and from
Father’s responses, he was very involved in their lives for the first year, and developed a
bond with them.”
       Counsel argued, “Despite the fact that Father was non offending, and apparently
has never had any findings of unfitness made against him, the [Agency] in its proposed
Findings and Orders contemplates setting a section 366.26 hearing, and [freeing Minors
for adoption]. This is improper under basic elements of due process. . . . [¶] . . . [Father]
has been ignored in this process, and, through no fault of his own, he is faced with having
his children adopted. . . . The proposed findings and orders should be revised to reflect
that any section 366.26 findings only consider guardianship or long term foster care.
[¶] . . . Given [Minors’ early bond with Father], it would be in the children’s best interests
to provide for visitation as well as to consider his relatives for placement. It would also
be in their interests to preserve the family connection with Father and his family.”
       In a May 15, 2014 memorandum, the Agency described a visit with Father at the
hospital as follows: “[Father] is nearly 100% disabled. He can indicate ‘yes’ and ‘no’ by
raising his eyes or moving his head from side to side. [¶] . . . [Father] became very
emotional when the [social worker] brought up a possible visit with his daughters. [¶] He
was able to indicate that he knew the allegations of the petition, and confirmed that
[Mother] drank alcohol and used a variety of drugs during the time they were together. A
more in-depth discussion of their history together and the Emergency Response referrals
and subsequent substantiated allegations respecting [Father’s] arrests for domestic
violence in Marin County were not possible given [his] limitations.”



                                              7
       The Agency wrote that Minors did not remember Father but knew their father was
seriously disabled. After the social worker described his condition, they expressed
interest in seeing him. The social worker nevertheless wrote, “Because of his condition,
demonstrations of emotion on the part of [Father] could be upsetting or frightening to
[Minors]. When he expresses emotion, especially with respect to [Minors], he rolls his
eyes back and moves his head spasmodically. As he is unable to speak, he makes
guttural, primitive sounds, which to a four-year-old could be frightening. [¶] It may be
the case that, in the first year of the children’s lives, a bond developed between [Father
and Minors]. However, three years have passed—three-quarters of [Minors’] lives—and
their father is a stranger to them, not only due to the lack of contact, but due to his
dramatically altered circumstances. This investigator recognizes that this may be through
no fault of [Father], but the fact remains that would not be in either child’s best interests
to expose them to [Father] in his present condition. A solid therapeutic relationship
needs to be established with the therapist recently contracted to work with the foster
parents and minors before visitation with [Father] can be revisited.”
       On relative placement, the Agency reported that Father’s sister had not maintained
contact with the Agency’s placement specialist and had made inconsistent statements
regarding her interest in placement.
       The court set a hearing on Father’s petition.
G.     Subsequent Hearings
       At a May 21, 2014 hearing, the court authorized therapeutic visits between Minors
and Father. Hearing on Father’s section 388 petition was continued to July to be heard
concurrently with disposition of the Agency’s supplemental petition. Because Mother
submitted on the Agency’s recommendation, the hearing addressed only Father’s
concerns.6 The social worker, the only witness, predicted that Father’s condition would
not improve based on her own experience with strokes and the fact that Father’s


       6
        The court ultimately made detriment findings as to Mother and S.B., removed the
children from Mother’s care, and denied services to both.


                                               8
condition had not improved in three years. She testified that the persons Father had
proposed as caregivers were not appropriate for placement. Moreover, “until [Father’s
counsel] contacted him, [Father] didn’t come forward” with arrangements for Minors’
care. The court asked whether the Agency had asked Father about appointing a guardian
for the Minors and the social worker replied, “No, not directly.” Before the disposition
hearing’s conclusion, Father informed the court that he consented to Minors’ remaining
in the care of their current foster parents.7
       Most of the hearing consisted of argument. The court said it had “an extraordinary
amount of difficulty with what I see as basically taking the easy route because this
gentleman is disabled. . . . What efforts have been made to assist a disabled parent, who is
a non-offending parent in this situation . . . ?” Counsel for the Agency disagreed: “[I]t’s
not that he’s disabled; it’s that he’s not capable of caring for them. He can’t get up out of
bed. He can’t prepare meals for them. He has not, in two years, arranged for anyone else
to provide for the care of the children.” Minors’ counsel similarly argued, “It just seems
kind of self-evident [Minors] can’t be placed with their father today. And that’s the basis
of saying it would be detrimental to return them to his care.”
       Father and Mother both argued that the court could not find detriment based on
Father’s physical disability alone. Father’s GAL argued, “[T]o say he didn’t arrange for
the care of his children may be . . . hyper-technical, because he was in a coma . . . . He
did have people in mind he felt would be able to step forward, and I think he is able to
communicate what he thinks can be done in terms of care of the children.” Mother
argued that insufficient inquiry had been made to determine whether Father could arrange
for Minors’ care. Father’s counsel argued, “Dad is able to communicate and could assist
in making decisions about these children.”

       7
         On July 17, 2014, Father’s GAL signed a “declaration” (not sworn under penalty
of perjury) stating that Father “authorized that the minors shall live in the home of [the
foster parents], pending further proceedings in this juvenile dependency matter[,] [¶] . . .
[and] has authorized that [the foster parents] shall have the authority to make medical,
dental and educational decisions for the minors while the minors are residing in the home
of [the foster parents].”


                                                9
       The court noted Father’s constitutional rights were at issue and asked if any court
ever had made a detriment finding as to Father. Counsel for both the Agency and Minors
said the detriment finding could be made based on the fact that Minors “cannot be safely
placed in his care today.” The Agency argued that section 361.2(a), which requires a
detriment finding, did not apply because Father did not request custody at the initial
disposition hearing in April 2013. It further argued that ability to arrange for the care of
dependent minors was legally relevant only for custodial parents at jurisdiction or the
first disposition stage of a dependency proceeding, never for noncustodial parents. Father
argued section 361.2(a) could be applied at later stages of the dependency proceeding.
       The court made comments suggesting that the Agency’s efforts to locate Father
were inadequate: “efforts for Father have basically been trying to find a guy who was
about eleven miles away from the courthouse”; “despite the fact that Marin County knew
where he was, they were too daggone lazy or too cheap to put three gallons of gas into a
car and drive up to Healdsburg.”
       At the conclusion of the July 1, 2014 hearing, the court tentatively found
insufficient evidence of detriment if custody were granted to Father. “[W]hile the Court
does have concerns regarding Father’s ongoing ability to make those decisions, my
concerns are more humanistic than they are evidentiary. I simply have not received
clear-and-convincing evidence, at this time, to give rise to the Court making a detriment
finding. . . . [¶] I’m not happy with Father’s domestic-violence background, but as I think
everyone has acknowledged, Father’s physical limitations, quite frankly with the
evidence that I have right now, take that off the table.” After briefing and additional oral
argument, the court stood by its previous ruling.
       The court placed Minors with Father, stating that “Father’s designated someone.
[¶] . . . [¶] . . . He’s the one who has the right to make that decision, and he has said he
wishes the children to remain in their current placements.” Consistent with section 361.2,
subdivision (b)(2), the court ruled, “ ‘Father shall assume custody subject to jurisdiction
of the Court, and a home visit shall be conducted within three months of today’s date.’ ”
The matter was continued for “ ‘Family Maintenance Review.’ ”


                                              10
       The Agency and Minors appealed the order (appeal No. A142777) and filed this
action, a petition for a writ of mandate to vacate the order and a writ of supersedeas to
stay the order pending a decision in appeal No. A142777. We issued an order to show
cause on this writ proceeding, stayed the juvenile court’s order pending finality of the
opinion in this proceeding, denied the petition for writ of supersedeas as moot, and
dismissed appeal No. A142777.
                                     II.    DISCUSSION
       We begin by examining the extent of Father’s constitutional right to custody of
Minors in the procedural context of this case.
A.     Father’s Constitutional Right to Custody
       “Before a State may sever completely and irrevocably the rights of parents in their
natural child, due process requires that the State support its allegations [of parental
unfitness] by at least clear and convincing evidence.” (Santosky v. Kramer (1982)
455 U.S. 745, 747–748 (Santosky); see also Stanley v. Illinois (1972) 405 U.S. 645, 658
[parents entitled to hearing on parental fitness before children are removed from their
custody].) Our Supreme Court has held that the California dependency scheme complies
with due process as to custodial parents because it ensures parental rights will not be
terminated absent a finding of parental unfitness by clear and convincing evidence at
some point in the dependency proceeding. (Cynthia D. v. Superior Court (1993)
5 Cal.4th 242, 253, 256 (Cynthia D.) [constitutional to allow termination of parental
rights at section 366.26 hearing on a preponderance of evidence standard of proof]; see
also In re Marilyn H. (1993) 5 Cal.4th 295, 308–310 (Marilyn H.) [constitutional to
exclude a return to a parent’s custody as a possible permanent plan at section 366.26
hearing].)8 Section 361.2 is not a removal statute, and here we do not deal with

       8
         Although the holding of Cynthia D. is not expressly limited to custodial
parents—i.e., parents whose children are removed from their custody during a
dependency proceeding—the restriction is implicit. The Supreme Court explained that
procedural safeguards render the dependency scheme constitutional under Santosky, and
identified those safeguards as (1) the removal finding (that the child would face a
substantial risk of harm if left in parental custody), which is made by clear and

                                              11
termination of parental rights but rather with the potential denial of placement with a
noncustodial parent. “However, the trial court’s decision at the dispositional stage is
critical to all further proceedings. Should the court fail to place the child with the
noncustodial parent, the stage is set for the court to ultimately terminate parental rights.”
(In re Marquis D. (1995) 38 Cal.App.4th 1813, 1829.)
       Father also has a due process right to adequate notice and an opportunity to be
heard before his constitutionally protected interest in parenting his children may be
infringed. (In re B.G. (1974) 11 Cal.3d 679, 688–689.) We have recently held that, as a
matter of constitutional law, “a court may not terminate a nonoffending, noncustodial . . .
presumed father’s parental rights” even at a late stage in the dependency proceedings
“without finding, by clear and convincing evidence, that awarding custody to the parent
would be detrimental.” (In re T.G. (2013) 215 Cal.App.4th 1, 20, fn. omitted
[noncustodial father who appeared prior to jurisdictional hearing, but who was unable to
obtain presumed father status until after permanency planning]; see also In re Z.K. (2011)
201 Cal.App.4th 51, 56–58, 65–66 (Z.K.) [noncustodial mother who did not receive
notice of dependency case until shortly before § 366.26 hearing]; In re Frank R. (2011)
192 Cal.App.4th 532, 534–536, 539 [noncustodial presumed father who never sought
custody]; In re Gladys L. (2006) 141 Cal.App.4th 845, 847–849 [noncustodial father who
had disappeared for three years during dependency proceeding].)
B.     Section 361.2
       “Section 361.2 establishes the procedures a court must follow for placing a
dependent child following removal from the custodial parent pursuant to section 361.

convincing evidence, (2) the jurisdictional finding, which the Court assumes is made
with respect to the same parent, and (3) subsequent findings at status review hearings that
return of the child to the parent’s custody would be detrimental to the child. (Cynthia D.,
supra, 5 Cal.4th at pp. 254–256; see also Marilyn H., supra, 5 Cal.4th at p. 308.) These
findings are all made with respect to the custodial parent. Santosky also involved
custodial biological parents whose children were removed from their care on allegations
of neglect in a dependency proceeding. (Santosky, supra, 455 U.S. at p. 751; see also
Stanley v. Illinois, supra, 405 U.S. at pp. 646–649 [custodial biological father’s children
removed from his care upon death of biological mother without finding of his unfitness].)


                                              12
[Citation.] Subdivision (a) of section 361.2 provides that when a court orders removal of
a minor under section 361, the court ‘shall first determine’ whether there is a parent who
wants to assume custody who was not residing with the minor at the time the events that
brought the minor within the provisions of section 300 occurred. (§ 361.2, subd. (a).) 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 minor.’ (Ibid.) If the
court places the child with that parent it may either: (1) order that the parent become
legal and physical custodian of the child and terminate jurisdiction; or (2) order that the
parent assume custody subject to the supervision of the juvenile court with services
provided to either one or both of the parents. (§ 361.2, subd. (b).) The court is
specifically required to make either written or oral findings setting forth its basis for its
determinations under subdivisions (a) and (b). (§ 361.2, subd. (c).) If the minor is not
placed with a noncustodial parent requesting custody, the court orders ‘the care, custody,
control, and conduct of the minor to be under the supervision of the probation officer’
who may place the minor in any of several placements including a licensed foster family
home. ([Former] § 361.2, subd. (d)(4); [citation].)” (In re Marquis D., supra,
38 Cal.App.4th at pp. 1820–1821, fns. omitted; § 361.2, subd. (e)(4).) To comport with
due process requirements, a finding of detriment pursuant to section 361.2,
subdivision (a) must be made by clear and convincing evidence, even though the statute
does not expressly so provide. (Id. at p. 1829.)
       “Thus, ‘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.” ’ (In re Isayah C. [(2004)]
118 Cal.App.4th [684,] 697.) It is not the nonoffending parent’s burden to show that she
is capable of caring for her child. Rather, it is the party opposing placement who has the
burden to show by clear and convincing evidence that the child will be harmed if the
nonoffending parent is given custody.” (Z.K., supra, 201 Cal.App.4th at p. 70.)



                                              13
       Petitioners contend that section 361.2(a) is inapplicable for several reasons. First,
the Agency (but not Minors) argue that section 361.2(a) does not apply after disposition
or the first hearing where a child is removed from a custodial parent. Second, Petitioners
argue that section 361.2(a) does not apply unless the noncustodial parent requests
custody, which Father did not do. Third, section 361.2(a) applies only to a noncustodial
parent’s request for custody, not to a request for an opportunity to arrange care for the
child with others.
       1.     Applying Section 361.2(a) After Initial Removal
       Our Supreme Court has held that section 361.2(a) by its plain language applies
only at disposition: “Nothing in this statute suggests that custody must be immediately
awarded to a noncustodial parent regardless of when in the dependency process the
parent comes forward. Rather, its language suggests that the statute is applicable only at
the time the child is first removed from the custodial parent or guardian’s home.” (In re
Zacharia D. (1993) 6 Cal.4th 435, 453; see id. at p. 439.) However, several appellate
courts (including this one) have applied the section 361.2 detriment standard to requests
for custody made by a noncustodial parent after the disposition phase of the dependency
proceedings. (In re Jonathan P. (2014) 226 Cal.App.4th 1240, 1254; see also In re T.G.,
supra, 215 Cal.App.4th at p. 20; Z.K., supra, 201 Cal.App.4th at p. 71 [“issue of a return
to parental custody can be raised late in the dependency proceeding . . . by means of a
section 388 petition to change, modify, or set aside a previous order based on a change in
circumstances or new evidence” (italics omitted)]; In re Frank R., supra,
192 Cal.App.4th at p. 538; In re Gladys L., supra, 141 Cal.App.4th at pp. 848–849.) The
court in In re Suhey G. (2013) 221 Cal.App.4th 732, 744–745, similarly held that a
presumed father who did not receive notice of the dependency proceeding due to the
agency’s negligence (a due process violation) could invoke section 361.2(a) even though
the disposition hearing had already taken place. Relying in part on Z.K. and Suhey G.,
the court in Jonathan P. also held that section 361.2(a) may apply after the disposition
stage of a dependency case. (Jonathan P., at pp. 1254–1256.)



                                             14
       Several courts have also held that section 361.2(a)’s “procedures” apply at
postdisposition review hearings and at hearings on section 387 supplemental petitions by
dint of California Rules of Court. (See In re Janee W. (2006) 140 Cal.App.4th 1444,
1450–1451 [citing former rule 1460(c)(2)(h)]; In re Suhey G., supra, 221 Cal.App.4th at
pp. 743 & fn. 22, 745 & fn. 25 [citing rules 5.710(b)(2), 5.565(e)(2), 5.695(a)(7)]; In re
Jonathan P., supra, 226 Cal.App.4th at 1254 & fn. 11 [citing rules 5.708(k), 5.710(b)(2)];
see also In re Jaden E. (2014) 229 Cal.App.4th 1277, 1283–1284 & fn. 10 [in dicta
discussing rules 5.708(k), 5.710(b)(2), 5.715(b)(3), 5.720(b)(2)].)
       Finally, Father notes that during the initial disposition hearing in April 2013, the
court in this case expressly reserved issues regarding Father because he had not been
located. Those issues had not been revisited by the time Father actually appeared in the
case and sought custody. Thus, the court’s application of section 361.2(a) at the
July 2014 hearing can be viewed as simply a delayed stage, as to Father, of the original
disposition hearing, consistent with the Supreme Court’s construction of the statute in In
re Zacharia D., supra, 6 Cal.4th at pages 439, 453.
       We conclude the court properly applied section 361.2(a) under these
circumstances, despite the late stage of the proceedings.
       2.     Father’s Request for “Custody”
       Section 361.2(a) requires the court, upon removal of a child pursuant to
section 361, to determine if there is a noncustodial parent “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.” (Italics added.) Petitioners
argue that section 361.2(a) does not apply because Father never requested custody of
Minors, a statutory prerequisite to considering placement with a noncustodial parent.
(See § 361.2(a) [“[i]f that parent requests custody”]; In re Terry H. (1994)
27 Cal.App.4th 1847, 1854, superseded by statute on another ground as stated in In re
Nolan W. (2009) 45 Cal.4th 1217, 1233, fn. 7.) They insist that “custody” means a
request for physical custody, not an opportunity to arrange care for the child with others,


                                             15
and they contend that Father’s condition renders him physically incapable of taking
physical custody and providing care for the Minors.
       First, Father correctly argues the Agency forfeited the first argument by failing to
raise it below. Although the Agency argued section 361.2(a) did not apply because
Father did not request custody at the disposition hearing, it did not argue that Father
never requested custody of Minors. That is, the Agency never argued that, assuming that
section 361.2(a) may be applied at the last review hearing, Father is nevertheless
ineligible because his request to arrange for Minors’ placement did not amount to a
request for “custody” within the meaning of the statute. We generally do not address
arguments that are raised for the first time on appeal. (Ward v. Taggart (1959) 51 Cal.2d
736, 742.)
       In any event, the argument lacks merit. The Fourth District Court of Appeal
considered the meanings of “custody” and “place” in section 361.2(a). (In re Austin P.
(2004) 118 Cal.App.4th 1124, 1128, 1130 (Austin P.).) Based on definitions of
“custody” in the Welfare and Institutions Code, the Family Code, the California Code of
Regulations, and Black’s Law Dictionary, the Austin P. court concluded that word
connotes “the parent has the right to make decisions pertaining to the child, and has legal
possession of the child.”9 (Id. at pp. 1130–1131; see also In re A.A. (2012)

       9
         In Austin P., a noncustodial parent argued that the juvenile court was required to
terminate dependency jurisdiction if it found no detriment under section 361.2(a) and the
court could not simply “place” the child with the parent and continue dependency
jurisdiction. (Austin P., supra, 118 Cal.App.4th at pp. 1128–1129.) In this context, the
Court of Appeal held that a “request for custody” pursuant to section 361.2(a) “means the
parent is asking for the exclusive right to control decisions about the child and to have
possession of the child—i.e., the parent is seeking sole legal and physical custody,”
whereas “place” means “a temporary arrangement that necessarily involves the ongoing
supervision of the juvenile court.” (Austin P., at p. 1131, italics added.) If the juvenile
court decides to place the child with the noncustodial parent under section 361.2(a), it
then separately decides whether to grant permanent custody to the parent under
section 361.2(b) and terminate jurisdiction—termination of jurisdiction does not
automatically follow. (Austin P., at p. 1132.) Although the quoted language, standing
alone, implies that “custody” includes physical custody and does not mean legal custody
alone, the Austin P. court’s earlier discussion of the meaning of “custody” clearly

                                             16
203 Cal.App.4th 597, 609–610 [parent with whom child does not reside because of a
family law custody order still “is presumptively entitled to custody because he or she has
not been previously found to pose a risk of harm to the child”].) We agree that “custody”
in section 361.2(a) therefore includes legal custody, i.e., the power to make decisions
about a child’s upbringing, including where that child will live. In his section 388
petition, Father asked for regular visitation, consideration of placement with his relatives,
and elimination of adoption as a possible permanent plan. Father’s section 388 petition
states that, when interviewed in the hospital, Father “indicated that he wanted his [sister
or brother] to take care of [Minors].” Although relative placement usually is governed by
section 361.3, in the context of this case the court reasonably construed Father’s request
for relative placement as a request that he be allowed to exercise legal custody over
Minors by making arrangements for their care with suitable caretakers.
       3.     Father’s Disability and Placement
       Consistent with the broad Austin P. definition of “custody” (albeit based on a
different rationale), courts have held that the mere fact of incarceration does not preclude
section 361.2(a) “placement” with incarcerated noncustodial parents if they are able to
arrange care for the child. (In re Isayah C., supra, 118 Cal.App.4th 684, 696, 699–700
(Isayah C.);10 In re V.F. (2007) 157 Cal.App.4th 962, 971, superseded on other grounds
by statute as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 57–58; In re A.A.,
supra, 203 Cal.App.4th at pp. 606–607; In re Noe F. (2013) 213 Cal.App.4th 358, 368;
cf. In re John M. (2013) 217 Cal.App.4th 410, 415, 417, 424 [rule does not apply where
noncustodial father was incarcerated for domestic violence that was a basis for

encompassed a broader understanding of the term. Because the noncustodial parent in
Austin P. sought both legal and physical custody, it was not necessary for the reviewing
court to clearly distinguish between the two.
       10
          In re A.O. (2010) 185 Cal.App.4th 103 (A.O.), cited by the Agency, is factually
similar to Isayah C. but reaches an apparently inconsistent result. (A.O., at pp. 105–106.)
The A.O. court, however, considered only whether section 300, subdivision (g) allowed
an incarcerated noncustodial parent to arrange for the child’s care during his incarceration
under section 361.2(a), and did not consider constitutional issues or the meaning of
“custody” in section 361.2(a). (A.O., at pp. 109–112.)


                                             17
dependency jurisdiction].) The Isayah C. court reasoned that “the applicable statutes
must be read and applied in the appropriate constitutional context. . . . ‘[F]reedom of
personal choice in matters of family life is a fundamental liberty interest protected by the
Fourteenth Amendment. [Citations.]’ ([Santosky, supra,] 455 U.S. [at p.] 753.) Thus,
the constitutional right of parents to make decisions regarding their children’s
upbringing precludes the state from intervening, in the absence of clear and convincing
evidence of a need to protect the child from severe neglect or physical abuse.
[Citations.]” (Isayah C., at p. 696, italics added & parallel citation omitted.) The court
also noted that section 300, subdivision (g) provides that initial jurisdiction cannot be
taken on the sole ground of parents’ incarceration if the parent is able to arrange for care
of their children.11 (Isayah C., at pp. 696–697, 700.)
       We find no principled way to distinguish the situation of an incarcerated
noncustodial parent from that of a hospitalized or institutionalized noncustodial parent
with respect to the parent’s ability to exercise legal custody of a child.12 The capacity of
an institutionalized parent to assume actual physical custody at some future date may be
relevant to the court’s determination of detriment, just as the length of incarceration is
relevant to the detriment analysis in section 361.2(a) cases with an incarcerated parent.
(In re A.A., supra, 203 Cal.App.4th at p. 606.) However, the parent’s inability to take


       11
          A split in authority exists as to whether a noncustodial parent must also be a
nonoffending parent in order to be entitled to placement under section 361.2(a).
(Compare In re V.F., supra, 157 Cal.App.4th at pp. 965–966 with In re John M., supra,
217 Cal.App.4th at pp. 421–423; see also In re D’Anthony D. (2014) 230 Cal.App.4th
292.) In this writ proceeding, the parties have not made an issue of Father’s status as an
offending or nonoffending parent, although there is a documented history of Father’s
domestic violence against Mother. We follow the guidance of the Seiser and Kumli
treatise, which recommends ignoring the distinction and apply section 361.2(a) “in cases
involving a noncustodial presumed parent based on a thorough assessment of detriment.”
(Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2014) § 2.127[1][a], p. 2-
396 (Seiser & Kumli).)
       12
          We note that section 300, subdivision (g), which authorizes jurisdiction on the
ground of incarceration only if an incarcerated parent cannot arrange for the children’s
care, also applies to institutionalized parents.


                                             18
immediate physical custody does not justify a refusal to apply the section 361.2(a)
standard in the first instance.
       The evidence is clear that Father’s medical condition has rendered him physically
incapable of providing direct care and support for his children, and he is unable to assume
physical custody of the minors. Father has been hospitalized since October 2012, and is
“nearly 100% disabled.” Nothing in the record indicates that recovery is probable, or
even possible. The juvenile court, however, rejected a finding of detriment based on
physical disability, and found that there was no evidence that his impairment would
“prevent him from parenting these children.”13
       Father’s physical disability does not automatically disqualify him from obtaining
placement under section 361.2(a). “[I]f a person has a physical handicap it is
impermissible for the court simply to rely on that condition as prima facie evidence of the
person’s unfitness as a parent or of probable detriment to the child; rather, in all cases the
court must view the handicapped person as an individual and the family as a whole. To
achieve this, the court should inquire into the person’s actual and potential physical
capabilities, learn how he or she has adapted to the disability and manages its problems,
consider how the other members of the household have adjusted thereto, and take into
account the special contributions the person may make to the family despite—or even
because of—the handicap.” (In re Marriage of Carney (1979) 24 Cal.3d 725, 736 & fn. 8
[analogizing marital dissolution child custody issues to dependency scheme].) “We do
not mean, of course, that the health or physical condition of the parents may not be taken

       13
          The court expressed concern that a finding of detriment based on physical
disability alone would violate the Americans with Disabilities Act (42 U.S.C. § 12101
et seq.). As Petitioners note, a parent may not invoke disability as an affirmative defense
in a dependency proceeding because that proceeding is for the benefit of the child and is
not a government service for the parent. (In re Anthony P. (2000) 84 Cal.App.4th 1112,
1115–1116; Seiser & Kumli, supra, § 2.129[12], pp. 2-460 to 2-461.) Nevertheless, a
court must still take a parent’s disabilities into account in making other determinations
under the dependency scheme, such as whether reasonable reunification services have
been provided. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1139, disapproved on
other grounds by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)


                                              19
into account . . . . [W]henever it is raised[, however,] . . . it is essential that the court
weigh the matter with an informed and open mind.” (Id. at p. 736.) “[I]t is vitally
important that the court have as much information as possible regarding [the parent’s]
alleged . . . disorder and the extent to which, if at all, it will affect his [or her] ability to
care for [the minor].” (Manela v. Superior Court (2009) 177 Cal.App.4th 1139, 1151
[marital dissolution child custody case].) In other words, Father’s medical condition is
among the factors that the court may legitimately consider in assessing detriment to the
children under section 361.2(a).
C.     Other Legal Arguments
       Petitioners argue the court “exceeded its jurisdiction by ‘constructively’ placing
the children with their father, but leaving them in the physical custody of their licensed
foster family.” They argue the court’s jurisdiction is limited by statute (In re Silvia R.
(2008) 159 Cal.App.4th 337, 345–346), and the statutory scheme limits the court’s
dispositional options in the circumstances of this case to those set forth in section 361.2,
subdivision (b). Those options, Petitioners contend, do not include a grant of custody to
Father with the understanding that Minors would stay in the care of the former foster
parents. They rely in part on cases holding that a court lacks jurisdiction to remove a
child from parental custody and then immediately place the child with the parent under
agency supervision, a procedure not authorized by the statutory scheme. (See In re
Damonte A. (1997) 57 Cal.App.4th 894, 899–900; In re Andres G. (1998) 64 Cal.App.4th
476, 481.)
       Section 361.2(a) requires the court to “place” a dependent minor with the
noncustodial parent unless it finds detriment. We have concluded that “placement” must
be construed so as to allow Father to arrange for care of Minors by suitable caretakers in
order to comport with due process requirements. We emphasize, however, that mere
passive consent or acquiescence to the recommendations of others (i.e., Father’s counsel
or GAL, or the social worker) does not amount to an exercise of custody that can
outweigh Minors’ interest in permanence and stability. The fundamental issue in
proceedings under section 361.2 is whether a parent has the potential to provide a safe


                                                20
and secure permanent home for the minor. (In re Erika W. (1994) 28 Cal.App.4th 470,
476–477.) The juvenile court here may consider in assessing detriment to Minors the
extent of Father’s ability, given his physical restrictions, to receive and convey sufficient
information to make informed decisions about Minors’ upbringing.
        Section 361.2, subdivision (b)(2) permits the court, once it has placed a child with
a noncustodial parent under section 361.2(a), to “[o]rder that the parent assume custody
subject to the jurisdiction of the juvenile court . . . .” Here, the court granted Father legal
custody of Minors subject to the continuing jurisdiction of the dependency court. We
perceive no conflict with the statutory scheme.
        In sum, we conclude that Father was entitled to placement of Minors in his care
(subject, in the court’s discretion, to continued court supervision under § 361.2, subd. (b))
unless the court found by clear and convincing evidence that the placement would be
“detrimental to the safety, protection, or physical and emotional well-being of the child.”
(§ 361.2(a).)
D.      The Placement Order
        On appeal of a section 361.2(a) detriment finding, “[w]e review the record in the
light most favorable to the court’s order to determine whether there is substantial
evidence from which a reasonable trier of fact could find clear and convincing evidence
that the children would suffer such detriment. [Citations.] Clear and convincing
evidence requires a high probability, such that the evidence is so clear as to leave no
substantial doubt. [Citation.]” (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426
(Luke M.).) Petitioners contend that, even assuming applicability of section 361.2(a), the
juvenile court applied an incorrect standard in assessing detriment, and consequently
abused its discretion in placing Minors with Father under these circumstances. We
therefore first review the juvenile court’s finding of no detriment to determine if the
correct legal standard was applied. “[A] court abuses its discretion when it applies
incorrect legal standards. [Citation.]” (In re Shannon M. (2013) 221 Cal.App.4th 282,
289.)



                                              21
       Petitioners argue that they did not need to show wrongdoing by Father, the
noncustodial parent, in order to establish detriment under section 361.2(a). We agree.
Section 361.2(a) “does not mandate placement with the noncustodial parent absent a
judicial examination of the circumstances of [both] the parent and child.” (In re
Nickolas T. (2013) 217 Cal.App.4th 1492, 1506.) “Although a parent’s interest in the
care, custody and companionship of a child is a liberty interest that may not be interfered
with in the absence of a compelling state interest, the welfare of a child is a compelling
state interest that a state has not only a right, but a duty, to protect. [Citations.]”
(Marilyn H., supra, 5 Cal.4th at p. 307.)
       Even dependency jurisdiction is premised on the conduct or omission of a parent
that, regardless of personal fault, causes harm or a risk of harm to the child. (§ 300;
Seiser & Kumli, supra, § 2.84[1], p. 2-251.)14 “The parent need not be dangerous and the
minor need not have been actually harmed before removal is appropriate. The focus of
the statute is on averting harm to the child. [Citations.]” (In re Diamond H., supra,
82 Cal.App.4th at p. 1136.) Thus, in In re Daniel S., the court affirmed a jurisdiction
order even though the custodial parent was so mentally disabled that she could not
comprehend notice of the proceedings. (In re Daniel S. (2004) 115 Cal.App.4th 903,
908–909, 916.) Once jurisdiction is established, dependent children may be removed
from a parent’s custody only on a similar showing of harm or risk of harm to the child
arising from parental conduct or omission, regardless of personal fault, but with a clear
and convincing evidence standard of proof. (§ 361, subd. (c).)
       Parental fault or wrongdoing similarly is not a prerequisite for a detriment finding
under section 361.2(a). “California’s dependency scheme no longer uses the term
‘ “parental unfitness,” ’ but instead requires the juvenile court make a finding that
awarding custody of a dependent child to a parent would be detrimental to the child.

       14
         A child may be declared a dependent if the actions of either parent bring the
child within the statutory definitions of dependency. (In re Alexis H. (2005)
132 Cal.App.4th 11, 16; In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [“a jurisdictional
finding good against one parent is good against both”].)


                                               22
[Citations.]” (Z.K., supra, 201 Cal.App.4th at p. 65; see Cynthia D., supra, 5 Cal.4th at
pp. 254–255 [constitutional standard satisfied by jurisdiction and removal findings of
substantial risk of harm to child and subsequent findings that return would create
“ ‘substantial risk of detriment to the physical or emotional well-being of the minor’ ”];
see also In re B.G., supra, 11 Cal.3d at pp. 694–695.) Although a jurisdictional finding is
predicated on parental conduct, “a detriment finding for purposes of deciding placement
with a noncustodial, nonoffending parent need not be.” (Luke M., supra,
107 Cal.App.4th at p. 1425.)
       Father argues that a finding of parental unfitness remains a requirement under
section 361.2 to meet the constitutional due process requirements of Santosky: “[U]ntil
the State proves parental unfitness, the child and his parents share a vital interest in
preventing erroneous termination of their natural relationship.” (Santosky, supra,
455 U.S. at p. 760, fn. omitted & italics added.) He notes that the removal standards of
section 361, subdivision (c)(1), likewise make no reference to parental fitness—requiring
evidence of “a substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned home”—but that the
California dependency scheme satisfies due process requirements because a finding of
unfitness is required, by clear and convincing evidence, before parental rights may be
terminated. (See Cynthia D., supra, 5 Cal.4th at p. 256.) “At issue in both Santosky and
Cynthia D.[, however,] was the quantum of proof required for termination of parental
rights, which indisputably are fundamental in nature. (Santosky, supra, 455 U.S. at
pp. 758–759, 769.)” (Renee J. v. Superior Court, supra, 26 Cal.4th at p. 750, parallel
citation omitted.)
       Section 361 addresses the substantial threshold required to remove a child from the
home of a custodial parent. By its terms, it applies when a child is “taken from the
physical custody of his or her parents or guardian or guardians with whom the child
resides at the time the petition was initiated . . . .” (§ 361, subd. (c).) In this context,
parental “unfitness” means only “parental inability to provide proper care for the minor
and proof of a potential detriment to the minor if he or she remains with the parent.


                                               23
[Citation.]” (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.) Section 361
establishes the basis for judicial intervention in custodial care of the child. Removal
under that statute places both legal and physical custody, for all practical purposes, with
the probation officer and creates broad authority for “the juvenile court to make any and
all reasonable orders ‘for the care, supervision, custody, conduct, maintenance, and
support of the minor . . . .’ ” (In re Robert A. (1992) 4 Cal.App.4th 174, 184; § 362,
subd. (a).)
       As we have noted, section 361.2 is not a removal statute. (See Luke M., supra,
107 Cal.App.4th at p. 1422.) By its terms, section 361 applies to a custodial parent, while
placement after removal with a noncustodial parent is assessed under section 361.2. (See
In re V.F., supra, 157 Cal.App.4th at pp. 969–970.) “Once removal from the custodial
parent under section 361 has occurred, section 361.2 requires the court to evaluate
placement with the noncustodial parent based on detriment[, not unfitness].”15 (Luke M.,
at p. 1423.) We find nothing in that focus that would deprive Father of his constitutional
rights as a parent. “Due process is a flexible concept which depends upon the
circumstances and a balancing of various factors. [Citation.]” (In re Jeanette V. (1998)
68 Cal.App.4th 811, 817.) In its role as parens patriae, the state has a “weighty interest[]
in assuring the proper care and safety of children in the dependency system” (Renee J. v.
Superior Court, supra, 26 Cal.4th at p. 750), an interest recognized by the United States
Supreme Court (Santosky, supra, 455 U.S. at pp. 766–767). While a “parent’s interest in
the companionship, care, custody and management of his children is a compelling one,”
children also have “compelling rights to be protected from abuse and neglect and to have
a placement that is stable, permanent, and that allows the caretaker to make a full
emotional commitment to the child. [Citation.] The interests of the parent and the child,
therefore, must be balanced.” (Marilyn H., supra, 5 Cal.4th at p. 306.) “A detriment
evaluation [under 361.2] requires that the court weigh all relevant factors to determine if


       15
         Petitioners suggest that this is a “best interest” standard. It is not. A showing of
physical or emotional detriment is required.


                                             24
the child will suffer net harm. [Citation.]” (Luke M., at p. 1425.) Constitutional due
process requirements are satisfied by a detriment finding made by clear and convincing
evidence before denying placement under section 361.2 to a noncustodial parent. (See In
re Marquis D., supra, 38 Cal.App.4th at p. 1829.)
       Petitioners argue that the court here focused entirely on Father’s circumstances
and parental “fitness,” rather than on harm to the Minors. Petitioners insist that there was
substantial evidence of detriment in this case because Father was almost completely
physically incapacitated for an indefinite period; Minors had no relationship with Father
since they were about 19 months old and Minors had no memory of him;16 Father’s
condition might frighten Minors; the social worker was unable to conduct an in-depth
conversation with Father; and Father made no independent and appropriate arrangements
for Minors’ care, but only requested Minors be placed with relatives who had not
demonstrated suitability for placement. In addition, Petitioners note that Father had made
no effort to contact or support Minors prior to his incapacity and that a constructive
“placement” with Father jeopardizes Minors’ stability in an existing foster care
placement and deprives Minors of the financial support otherwise available to them under
Aid to Families with Dependent Children-Foster Care (§ 11400, subd. (a).)17 Petitioners
contend that the court’s order leaves Minors “in limbo,” without real reunification with
either parent, and with no permanent plan within the timeframes contemplated by the
statutory dependency scheme. “[T]he Legislature has directed the juvenile court to ‘give
substantial weight to a minor’s need for prompt resolution of his or her custody status, the
need to provide children with stable environments, and the damage to a minor of



       16
          As noted ante, the social worker reported that Minors knew their father was
seriously disabled and said they would like to see him. Minors’ counsel similarly told the
court that Minors “have a story of who [Father] is.”
       17
          Father cites alternative sources of funding that might be available to help
support Minors in their current placement. Petitioners did not raise this argument below,
and the record is not developed on the funding issue. Since we remand for further
hearing, the parties and the court will have an opportunity to address this issue further.

                                             25
prolonged temporary placements.’ (§ 352, subd. (a).)” (Marilyn H., supra, 5 Cal.4th at
p. 308.)
       We agree that these are all relevant factors that the court must consider in
determining if placement with Father would be detrimental to the Minors. We normally
presume that the court knows and applies the correct statutory and case law and
recognizes those facts which properly may be considered in the judicial decisionmaking
process. (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on other grounds
by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) In this case, however,
the record is not at all clear that the court actually did so. At the July 2014 hearing the
court discussed almost exclusively Father’s disability and stated “I have to make a
finding of detriment based on something because of Father,” indicating that the court
erroneously believed that it was required to make a determination of parental fault, rather
than assessing the effect that placement with Father would have on the safety, protection
and physical and emotional well-being of the Minors. We cannot be satisfied on this
record that the juvenile court adequately explored whether placing Minors with Father
would be detrimental to them within the meaning of section 361.2(a). Since we cannot
confidently say that the court applied the correct legal standard in this instance, we will
remand for further hearing.18
                                    III.   DISPOSITION
       Let a peremptory writ of mandate issue directing respondent juvenile court to
vacate its order placing Minors with Father, and to conduct further proceedings to
reconsider the question of placement in accordance with the views expressed in this

       18
         Mother asks us to take judicial notice of a petition she recently filed in the court
below, seeking return of the Minors to her custody. Father asks us to take judicial notice
of the outcome of the juvenile court’s status review under section 361.2,
subdivision (b)(2). Although not accompanied by a request for judicial notice, Minors’
counsel seeks to advise us of an order entered by the court suspending Minors’ visitation
with Father. We decline to take notice of any of these matters. We generally do not
consider evidence that was not before the trial court when the order under review was
issued, and no unusual circumstances justify doing so in this case. (See In re Zeth S.
(2003) 31 Cal.4th 396, 400.)


                                              26
opinion. This opinion shall become final as to this court 15 days after its filing. (Cal.
Rules of Court, rule 8.490(b)(2)(A).) Our temporary stay shall dissolve upon finality of
the opinion as to this court.




                                             27
                                 _________________________
                                 BRUINIERS, J.


WE CONCUR:


_________________________
JONES, P. J.


_________________________
SIMONS, J.




                            28
