Filed 12/26/14; pub. order 1/13/15 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                              DIVISION EIGHT

In re C.M., a Person Coming Under the                   B255629
Juvenile Court Law.
LOS ANGELES COUNTY                                      (Los Angeles County
DEPARTMENT OF CHILDREN AND                              Super. Ct. No. DK03329)
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

ROBERT M.,

         Defendant and Appellant.



       APPEAL from an order of the Superior Court of Los Angeles County. Debra
Losnick, Juvenile Court Referee. Reversed in part, affirmed in part and remanded with
directions.

      Eva E. Chick, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Richard D. Weiss, Acting County Counsel, Dawyn R. Harrison, Assistant County
Counsel and Sharah Vesecky, for Plaintiff and Respondent Los Angeles County
Department of Children and Family Services.

         Cristina Gabrielidis for Minor C.M.

                                     __________________________
          Robert M. (father), the noncustodial and nonoffending father of C.M., appeals
from the juvenile court’s dispositional order granting physical custody of C.M. to the Los
Angeles County Department of Children and Family Services (DCFS) for placement with
maternal grandparents. Both C.M. and DCFS filed respondents’ briefs in support of the
order. We agree with father that there was insufficient evidence that placement with
father would be detrimental to C.M. Therefore, under Welfare and Institutions Code
section 361.2, subdivision (a), we reverse and remand for further proceedings.1

                    FACTUAL AND PROCEDURAL BACKGROUND

          Mother and father were living together but not married when C.M. was born in
August 2000. According to the Paternity Questionnaire completed by mother in these
dependency proceedings, father provided financial support and maintained a relationship
with C.M. C.M.’s half sibling, S., was born in November 2005. At all relevant times,
C.M. and S. (collectively, the children) lived with mother in the maternal grandparents’
home. Other maternal family members lived in the same apartment complex.
          From 2004 until 2013, the children were the subject of six referrals, all of which
DCFS concluded as unfounded or inconclusive. In a March 2013 interview, then 12-
year-old C.M. told a social worker that mother hit her occasionally, but she could not
recall any resulting marks or bruises; mother called S. fat and told her she would not get
married or have babies; mother also called C.M. names, told C.M. mother never liked her
and that father left them because C.M. was horrible; mother had threatened suicide;
mother slept a lot when she took her medication but mother believed she did not need
medication because there was nothing wrong with her. C.M. told the social worker that
she saw father on weekends and things were better there, but she did not want to live with
him. Mother and the maternal grandparents denied that mother had any mental health
issues.

1     All future undesignated statutory references are to the Welfare and Institutions
Code. Section 361.2, subdivision (a) is hereafter referred to as section 361.2(a).


                                                2
         S.’s absence from school for 50 days prompted another referral in May 2013,
which resulted in mother agreeing to a voluntary maintenance plan in July 2013. C.M.
continued to have regular contact with father and his wife (stepmother), including
frequent telephone calls and unmonitored overnight visits for Thanksgiving and
Christmas, which C.M. said she enjoyed. C.M.’s therapist encouraged these contacts.
         On January 9, 2014, mother was arrested following an incident in which she
pushed maternal grandmother to the ground causing her to lose consciousness; mother
next threw a vase at a cousin; the vase hit that cousin’s mother (maternal aunt) causing
injuries which required surgery to repair severed tendons. DCFS did not learn about the
incident until two weeks later, after a family maintenance worker was unable to make
contact with mother. When asked about what happened, maternal grandmother was
evasive. Various family members gave different versions of what occurred. C.M. denied
she was present during the altercation.
         DCFS filed a petition which alleged the children were persons described by
section 300, subdivisions (a) and (b) as the result of the January 9 altercation which C.M.
witnessed (paragraphs a-1 and b-1). There were no allegations against father. Following
a Team Decision Meeting on January 30, it was agreed that the children would be
detained from mother (who was still incarcerated) and temporarily placed with maternal
grandparents, notwithstanding DCFS’s concerns that the maternal grandparents were in
denial about mother’s problems.2
         According to the detention report, a “teary-eyed” C.M. told the social worker that
she was not home when the altercation occurred, but was home by the time mother was
being taken to jail. C.M. said, “Now that she’s in jail, hopefully she can get the help she
needs. I don’t know how to explain this. But my mom can get very nervous. Sometimes
she’ll pull out her hair. There’s a bunch of hair in a shoe box under her bed. Or when
she takes me and [S.] to the mall, she’ll start picking her face . . . .” When told of the
altercation, father said: “I knew something like this would happen. That’s why when I

2        Father was not present at the meeting because he had to work, but stepmother was
there.

                                              3
go over there to pick up [C.M.], I don’t want any dealing with [mother]. She needs a lot
of help. I’ve wanted custody of [C.M.] for a long time.” Father said he and stepmother
were also willing to have S. live with them. Father had noticed a recent negative change
in C.M.’s attitude, which he attributed to the influence of the maternal relatives.
       Father appeared at the detention hearing on February 4, 2014, and requested that
C.M. be released to him. C.M. wanted to continue living with maternal grandparents, but
was not opposed to overnight visits with father. DCFS opposed releasing C.M. to father.
Observing that DCFS’s report focused on mother, the juvenile court concluded that it did
not have enough information about father to give him custody of C.M. It vested
temporary custody and placement of the children in DCFS, pending further orders.
Father was given reasonable unmonitored visits with C.M. and DCFS was given
discretion to allow father overnight visits with C.M.’s consent. The matter was continued
to March 21, 2014, for adjudication and disposition.
       On March 3, 2014, the children’s counsel filed a Walk On Request seeking an
order that C.M. “not be released to father without court hearing with full report from
DCFS and notice to parties in advance.” The request states that C.M. “is terrified of
being released to her father . . . (‘nonoffending’ under the petition). [C.M.] informed the
court at the detention hearing on 2-4-14, that her father ‘missed 11 years’ of her life.
There is no order for CSW discretion to release, but CSW is to evaluate placement with
[father.]” The juvenile granted the request and ordered: “[C.M.] is not to be released to
father without prior court order, and a full report is to be filed to the court in advance.”
       According to the Jurisdiction/Disposition Report, the maternal grandparents
continued to deny that mother pushed maternal grandmother on January 9th. They did
not “acknowledge their daughter has mental health issues and how they impact the
children’s well being.” The social worker had been unable to make contact with father.
C.M. wanted unmonitored bi-monthly weekend visits with father, but did not want to live
with him: “I don’t want to live at a new home, I have never lived with him before and I
don’t want to change schools. I have only lived here [with maternal grandparents] and
my grandma has always taken good care of me.” Noting that both fathers were

                                               4
nonoffending, the report states: “[T]the fact remains there have been issues of domestic
violence in the past between mother and each father. [C.M.’s father] has been reported to
be an alcoholic and in fact has been arrested on 2 occasions for inflicting corporal injury
on spouse.[3] . . . Furthermore, while the father has an ‘odd’ work schedule and travels
for days at a time, if [C.M.] was released to him, [she] would hardly spend time with
[him].” The report concludes: “releasing the children to their respective fathers would
create more emotional harm to the children and the siblings would be separated.
Furthermore, the children have never lived in a different home and have been raised
primarily by the maternal grandparents. Therefore, it is respectfully recommended that
the children remain placed with the maternal grandparents since it is not in their best
interest to be released to their respective fathers. It is recommended the fathers have
unmonitored overnight visits with their children and that a visitation schedule be made in
order not to interfere with the children’s school and weekend extra-curricular activities.”
       At the March 21, 2014 hearing, father submitted on the petition, which included
no allegations against him. The children’s counsel stated: “[The children] indicate in the
jurisdiction report that they denied ever seeing their mother use drugs, act bizarre, and
they do not know about the incidents that occurred resulting in the police report that the
court has before it [of the January 9 altercation]. [¶] My clients are supportive of the
mom, find themselves in a very difficult position today and would prefer that I do not
argue anything against the mother. So at this point I am going to submit to the court and
ask the court to carefully review all of the evidence. . . .” The juvenile court sustained the
section 300 petition.
       Following adjudication, the juvenile court proceeded immediately to disposition.
C.M. remained “adamant that she does not wish to reside with her father. She is beyond
uncomfortable.” Even so, father wanted custody of C.M. Father “has attempted
throughout [C.M.]’s life to see her and to be a part of her life but has been prevented from
doing so by mother and also by maternal grandmother. [¶] . . . Father’s main concern for

3    Father had a 1994 conviction for a domestic violence-related offense and a
misdemeanor domestic violence arrest which was dismissed.

                                              5
[C.M.] remaining with maternal grandmother is that she will continue to act to protect
mother and not protect the children.” Although no one at the hearing referred specifically
to section 361.2(a), father argued that C.M.’s reluctance to change schools and leave the
maternal grandmother’s home did not “rise to the level of clear and convincing evidence
required or for the court to make a finding of detriment . . . .” If the juvenile court was
not inclined to give father immediate custody of C.M., the alternative father requested
was a “home of parent – father” order, conditioned on C.M. remaining in the maternal
grandparents’ home. Father expressed concern that, if C.M. remained suitably placed
with maternal grandparents and mother failed to reunify, father would be disadvantaged
at any future permanent placement plan hearing.
       The juvenile court found it would be detrimental to place C.M. with father, in a
home in which she had never lived. The court explained: “I don’t think [C.M.] is
comfortable with her father because he’s not been in her life for whatever reason. The
reason doesn’t matter. But the more time she spends with him, the more acclimated she
gets, the more comfortable she gets, the more time that she will want to spend with her
father is my belief, and the court is going to make a visitation schedule to allow that to
happen. [¶] . . . [T]o just move her from everything she has ever known is not going to
work, and it is going to detrimentally impact the child. So I am not prepared to do that.”
The juvenile court did not state that it was making the detriment finding under
section 361.2(a), or under the clear and convincing standard required by that statute, nor
does the minute order so state. The juvenile court took custody of both children from
mother and both fathers and placed them with DCFS for suitable placement. Father was
given unmonitored visits with C.M., including overnight and weekends; DCFS was given
discretion to liberalize those visits. Father was not ordered to participate in any services.
Father timely appealed.

                                       DISCUSSION

       Father’s challenge to the disposition order is two-fold: (1) the detriment finding
was not expressly made pursuant to section 361.2(a) or under the clear and convincing

                                              6
standard; and (2) there was insufficient evidence of detriment. We begin with a brief
discussion of the governing statute, section 361.2(a). We next turn to the sufficiency of
the evidence to support the juvenile court’s finding of detriment. Finding insufficient
evidence to support the detriment finding, we reverse the dispositional order and remand
for a new dispositional hearing.

A.     Section 361.2(a)

       “ ‘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.’
[Citation.]” (In re Abram L. (2013) 219 Cal.App.4th 452, 460-461 (Abram L.).) A
nonoffending parent has a constitutionally protected interest in assuming physical
custody of his or her dependent child which may not be disturbed “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’ ” (Ibid.)
       The rights of a noncustodial and nonoffending parent to custody of a dependent
child are governed by section 361.2(a), which 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 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.)

The statute “evinces the legislative preference for placement with the noncustodial parent
when safe for the child. [Citation.]” (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1262
(Patrick S.).) It requires placement with a noncustodial, nonoffending parent who
requests custody “unless the placement would be detrimental to the child.” (In re
Luke M. (2003) 107 Cal.App.4th 1412, 1422 (Luke M.).)



                                              7
       To comport with due process, the detriment finding must be made under the clear
and convincing evidence standard. (Abram L., supra, 219 Cal.App.4th at p. 461;
Patrick S., supra, 218 Cal.App.4th at p. 1262; In re John M. (2006) 141 Cal.App.4th
1564, 1569 (John M.); In re Marquis D. (1995) 38 Cal.App.4th 1813, 1828-1829
(Marquis D.).) Clear and convincing evidence requires “a high degree of probability,
such that the evidence is so clear as to leave no substantial doubt. [Citation.]” (Patrick
S., at p. 262; Luke M., supra, 107 Cal.App.4th at p. 1426.) The court in Marquis D.,
supra, explained the higher standard of proof as follows:
               “[T]he 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. At all later review hearings, the court may deny return of
       the child to the parent’s physical custody based on a finding supported only
       by a preponderance of the evidence that return would create a substantial
       risk of detriment to the child’s physical or emotional well-being.
       (§§ 366.21, subds. (e) & (f), 366.22, subd. (a).) [¶] If a preponderance of
       the evidence standard of proof is applied to deny initial placement with the
       noncustodial parent, that parent may have his or her parental rights
       terminated without the question of possible detriment engendered by that
       parent ever being subjected to a heightened level of scrutiny. Moreover,
       applying a clear and convincing standard of proof to remove custody from
       the custodial parent while denying placement with the noncustodial parent
       based on a preponderance of the evidence would lead to the anomalous
       result that a parent who had no connection with the circumstances that
       brought the child within the jurisdiction of the court could have his or her
       rights terminated upon a lesser showing than the parent who created those
       circumstances.” (Marquis, D., supra, 38 Cal.App.4th at p. 1829.)

       The nonoffending parent does not have to prove lack of detriment. Rather, the
party opposing placement with a nonoffending parent has the burden to show by clear
and convincing evidence that the child will be harmed if the nonoffending parent is given
custody. (In re Jonathan P. (2014) 226 Cal.App.4th 1240, 1256.)




                                                8
B.     There Was Insufficient Evidence that Placement With Father Would be
       Detrimental to C.M.’s Physical or Emotional Well-Being

       Father contends the disposition order is not supported by substantial evidence that
placing C.M. with him would be detrimental to her safety, protection or physical or
emotional well-being. DCFS (joined by C.M.) counters that the following evidence was
sufficient to support a finding of detriment under the clear and convincing evidence
standard: C.M. wanted to remain with maternal grandparents; she wanted to visit but did
not want to live with father; she did not want to be separated from S. or change schools;
father worked long hours and was often away from home, as a result of which C.M.
would often be in the care of her stepmother; although he was nonoffending, father had a
history of alcohol abuse (as reported by mother) and domestic violence (one 1994
conviction and a dismissed misdemeanor arrest). Viewing the evidence under the
substantial evidence standard of review (John M., 141 Cal.App.4th at pp. 1569-1570;
Patrick S., supra, 218 Cal.App.4th at p. 262), we conclude the order was not supported
by substantial evidence of detriment.
       While the child’s wishes, sibling bonds and the child’s relationship with the
noncustodial parent may be considered by the juvenile court in determining whether
placement of a dependent child with a noncustodial, nonoffending parent would be
detrimental to the child’s physical or emotional well-being, none of these factors is
determinative. (Abram L., supra, 219 Cal.App.4th at pp. 460-461 [wishes of 14- and 15-
year-old brothers and alleged lack of relationship between children and noncustodial
parent not sufficient]; John M., supra, 141 Cal.App.4th at p. 1570 [14-year-old child’s
wishes not sufficient]; In re Isayah C. (2004) 118 Cal.App.4th 684, 700 [sibling
relationships not sufficient]; but see Luke M., supra, 107 Cal.App.4th at pp. 1425-1426
[wishes of 10 and eight-year-old and unusual bond with half siblings sufficient to support
detriment finding].) Expert opinion is helpful, but not essential. (Luke M., at p. 1427.)
       For example, in John M., supra, 141 Cal.App.4th 1564, John (13 years old) and
his 10-month-old half sister, were detained and placed with the maternal grandmother
after the mother physically abused John. John’s father, who lived in Tennessee, wanted

                                             9
custody of John, with whom he had been in telephone contact for a year after a four-year
hiatus; John wanted to live with a maternal aunt. The juvenile court declined to place
John with the father because there had been little contact between them, John did not
want to move to Tennessee, the father’s out-of-state location made him “an unknown
entity,” there was a reunification plan for the mother, and services would be necessary to
ensure John’s safety and the success of a placement with father. The appellate court
reversed, finding these factors were not sufficient to support a finding of detriment under
section 361.2(a). (Id. at pp. 1570-1571.)
       In Patrick S., supra, 218 Cal.App.4th at page 1262, the court stated that John M.
“stands for the principle that where a child has a fit parent who is willing to assume
custody, there is no need for state involvement unless placement with that parent would
create a substantial risk of detriment to the child. (§ 361.2, subd. (a).) When the parent is
competent, the standard of detriment is very high. [Citation.]” In Patrick S., the juvenile
court’s finding that placement of the 13-year-old child with his father in Washington
State would create a substantial risk of detriment was based on “the totality of
circumstances, including [the child’s] wishes, anxiety about moving to his father’s home,
need for continued therapeutic services, the lack of an established relationship with his
father and stepmother, father’s scheduled [military] deployments and his plan to home
school [the child], and the lack of available child welfare services in father’s home state.”
The Patrick S. court found these factors did not constitute substantial evidence of
detriment. (Ibid.) Regarding the long military deployments, the court found no detriment
because the stepmother was available to care for the child. (Ibid.)
       Under John M. and Patrick S., neither C.M.’s understandable wish to remain with
the maternal grandparents in the only home she had ever known, nor the alleged lack of
an established relationship with father, were sufficient to constitute substantial evidence
of the high level of detriment required under section 361.2(a). Likewise, the bond
between C.M. and S., and the fact that C.M. would be in stepmother’s care much of the
time because of father’s work schedule, were equally insufficient.



                                             10
       Father’s 1994 conviction for domestic violence and mother’s unsubstantiated
claim that father abused alcohol do not change our analysis, especially since neither
formed the basis of jurisdiction. (Abram L., supra, 219 Cal.App.4th at p. 464 [finding of
detriment was not supported by allegations of father’s unresolved alcohol problem and
history of substance abuse where the juvenile court dismissed those allegations from the
petition and there was no evidence the father used illicit drugs or drank an inappropriate
amount of alcohol at any time after the dependency proceedings commenced].) Not only
did the petition in this case not include any allegations of substance abuse or domestic
violence against father, there was no evidence of any recent, much less current, domestic
violence by father, and mother’s mental health issues made her a questionable reporter on
the issue of father’s alcohol use.
       DCFS’s reliance on Luke M., supra, 107 Cal.App.4th 1412, for a contrary result is
misplaced. In that case, a noncustodial, nonoffending father challenged the order placing
his 10-year-old and eight-year-old children with maternal relatives, rather than with him
in Ohio. The appellate court affirmed the order based on a finding that moving the
children to Ohio would be detrimental to their well-being because of the unusually strong
bond they had with their half siblings. (Id. at pp. 1418-1419.) The appellate court found
substantial evidence that moving to Ohio would have a devastating emotional impact on
the children, including the emotional testimony of one of the children. (Id. at pp. 1426-
1428.) Here, the evidence of detriment from separating C.M. and S. was nowhere near as
strong as that in Luke M. First, C.M. was not being moved half way across the country,
as were the children in Luke M. Second, there was no evidence that the bond between
C.M. and S. was any greater than the normal sibling bond, in contrast to Luke M. where
the relationship among the siblings “was much closer than in normal sibling
relationships.” (Id. at p. 1427.) Finally we observe that father offered to have S. live in
his home, and there was nothing to suggest he would not foster an ongoing relationship
between siblings.
       In light of our conclusion that there was insufficient evidence of detriment to
support the order placing C.M. with maternal grandmother rather than father, we need not

                                             11
consider father’s second contention, that the juvenile court prejudicially erred by not
expressly stating that it was making the detriment finding under the clear and convincing
standard set forth in section 361.2.
       Our conclusion that the March 21, 2014 disposition order was not supported by
substantial evidence is based on the facts extant on the day of the hearing, which we have
determined from the record on appeal. At the dispositional hearing following our
remand, the juvenile court may, of course, take into account circumstances and events
that have taken place subsequent to the March 21 hearing.

                                       DISPOSITION

       The detriment finding is reversed and the matter is remanded to the juvenile court
with directions to hold a new dispositional hearing on the issue of placement of C.M.
with father under section 361.2(a). On remand, the court may consider new evidence or
changed circumstances that may have occurred during the pendency of this appeal. In all
other respects, the jurisdictional and dispositional findings and orders are affirmed.




                                                  RUBIN, J.
WE CONCUR:




              BIGELOW, P. J.




              FLIER, J.




                                             12
Filed 1/13/15
                          CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION EIGHT

In re C.M., a Person Coming Under the             B255629
Juvenile Court Law.
LOS ANGELES COUNTY                                (Los Angeles County
DEPARTMENT OF CHILDREN AND                        Super. Ct. No. DK03329)
FAMILY SERVICES,

        Plaintiff and Respondent,
                                                ORDER FOR PUBLICATION
        v.                                      OF OPINION

ROBERT M.,

        Defendant and Appellant.




        IT IS HEREBY ORDERED that the opinion filed in the above matter on
December 26, 2014, is certified for publication with no change in the judgment.




_________________________________________________________________
BIGELOW, P. J.                      RUBIN, J.                FLIER, J.
