Filed 10/3/14
                          CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION THREE


In re D’ANTHONY D. et al., Persons                 B251066
Coming Under the Juvenile Court Law.
                                                   (Los Angeles County
                                                   Super. Ct. No. CK70406)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

        Plaintiff and Respondent,

        v.

CHRISTIAN D.,

        Defendant and Appellant.



        APPEAL from an order of the Superior Court of Los Angeles County,
Patricia Spear, Judge. Affirmed.


        Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and
Appellant.


        John F. Krattli, County Counsel, and Jessica S. Mitchell, Deputy County Counsel,
for Plaintiff and Respondent.
                                _____________________
                                    INTRODUCTION
       Christian D. (father) appeals from a dispositional order denying his request for
custody of his seven-year-old son D’Anthony and five-year-old daughter Dalia, who were
removed from their mother’s custody under Welfare and Institutions Code1 section 361.
Father contends the juvenile court erred by failing to consider his custody request under
section 361.2, which requires the court to place a dependent child with the noncustodial
parent unless the court finds the placement would be detrimental to the child’s safety,
protection, or physical or emotional well-being. The Los Angeles County Department of
Children and Family Services (the Department) contends section 361.2 applies to a
“nonoffending” parent only, and father was precluded from requesting custody under the
statute because the juvenile court sustained jurisdictional allegations against him
concerning physical abuse of D’Anthony and failure to protect his children.
       We conclude the juvenile court erred when it failed to consider father’s request
under section 361.2, but the error was harmless in this case. In so concluding, we reject
the Department’s contention that a parent is precluded from requesting custody under
section 361.2 based on jurisdictional findings made under a preponderance of the
evidence standard. As we shall explain, reading this purported “nonoffending” parent
requirement into the statute would effectively undermine the constitutional due process
mandate that a detriment finding be made by clear and convincing evidence before a
noncustodial parent is denied custody under section 361.2. Nevertheless, because the
record establishes the juvenile court made a finding under section 361, by clear and
convincing evidence, that placing the children with father would pose a substantial
danger to their physical health and well-being, we conclude the court’s error was
harmless in this case. On this basis, we affirm.




1
       Statutory references are to the Welfare and Institutions Code.

                                             2
                   FACTS AND PROCEDURAL BACKGROUND
       On February 15, 2013, the Department received a Child Protection Hotline referral
alleging general neglect and drug use by mother. At the time, mother and the two
children lived in a two bedroom apartment with the paternal grandparents, mother’s
friend, and the friend’s three children. A year earlier, father moved to Colima, Mexico,
after prepaying the family’s rent for a year. When the year expired, mother reportedly
refused to help pay rent, and regularly sold her food stamps, leaving the children without
food in the home. The reporting party also alleged that mother used methamphetamine
and marijuana, drank alcohol, played loud music late into the night, and frequently left
the children unattended to roam outside the apartment.
       A Department social worker investigated the report and found the apartment
messy, with clothing and toys scattered throughout the living room. There also were
approximately six trash bags filled with alcohol bottles and other recyclables in the
apartment. The kitchen appeared to have adequate food. Mother claimed she drank
alcohol only occasionally and denied smoking methamphetamine or marijuana.
D’Anthony, however, reported seeing mother smoke “ ‘weed or cigarettes.’ ” Mother
submitted to a drug test, which came back positive for methamphetamine. On February
28, 2013, the Department removed the children from mother’s home.
       On March 1, 2013, father telephoned the Department social worker concerning the
children’s detention. Father reported living in a three-bedroom house in Mexico with his
wife and their newborn son. Since moving to Mexico, he said he called to check on the
children three to four times per week, and the children had visited him in Mexico on two
or three occasions. Father said he thought the children were doing well with mother,
until he learned from the paternal grandfather that mother was not paying rent and had
moved a friend into their apartment. Father told the social worker he was making
arrangements to have the children move in with him.




                                             3
          On March 5, 2013, the Department filed a section 300 petition on behalf of the
children, alleging physical abuse and illicit drug use by mother. The juvenile court found
a prima facie case for detention, and ordered the children detained in shelter care, with
supervised visits for mother.
          On March 19, 2013, father appeared at an arraignment hearing and submitted to
the juvenile court’s jurisdiction. Father’s counsel requested that the children be released
to father’s custody, arguing there was no evidence of risk to the children. The juvenile
court denied the request, citing evidence that the children had frequent contact with
father, yet he had failed to protect them from mother’s abuse and neglect. The court
added that it had no information about whether the children would be safe in Mexico, and
ordered the Department to conduct a Pre-Release Investigation (PRI) on father.
          On March 28, 2013, a dependency investigator interviewed the children in
advance of the jurisdiction and disposition hearing. In the course of the interview,
D’Anthony reported that father had hit him with “ ‘his snake belt.’ ” When asked where
he had been struck, D’Anthony looked down and rubbed his stomach area. Dalia
similarly reported that she had seen “ ‘dad hitting [D’Anthony] a lot, a lot, a lot of
times.’ ” When asked if she had seen any marks on D’Anthony’s body, Dalia reported “
‘I saw purple then all the colors of the rainbow.’ ” Dalia denied ever being struck by
father.
          When confronted with the children’s reports, father denied physically disciplining
them. He stated, “ ‘I never hit them. I consider myself strict with them but I don’t hit
them.’ ”
          On April 9, 2013, the Department filed a first amended section 300 petition,
adding allegations concerning father’s reported physical abuse of D’Anthony and his
failure to protect the children.
          Prior to the disposition hearing, the Department received a report from the
Mexican social services agency, Desarrollo Integral de la Familia (DIF). The report
indicated that father had sufficient economic solvency to cover the children’s basic needs
and recreational activities, and his home was in good hygienic condition with ample


                                               4
space and adequate furnishings for the family to live comfortably. The Department
nevertheless expressed concern that the DIF report did not include a criminal background
check or detailed assessment of father’s background, which the Department asserted was
necessary to ensure the children’s safety before releasing them to father’s custody.
       On August 14, 2013, the juvenile court conducted a contested jurisdiction and
disposition hearing on the amended petition. Father’s counsel called D’Anthony as a
witness, and the child testified in chambers. D’Anthony testified that during one of his
month-long visits to Mexico, father had hit him on the cheek, though he was unclear
about when the incident occurred. When asked why father hit him, D’Anthony
responded “I don’t know, I didn’t do nothing. He just hit me.” The child denied that any
marks had been left by the incident, though he said it hurt a “[l]ittle bit” when father
struck him. D’Anthony also testified that father hit him with a belt in Mexico when he
urinated on the floor. He denied that it hurt, stating father hit him “really soft.” Though
he said this was the only time father struck him with a belt in Mexico, D’Anthony
testified that father hit him five other times before. D’Anthony also claimed to have seen
father smoke “kush” marijuana in Mexico.
       After hearing argument from counsel, the juvenile court sustained the amended
petition’s jurisdictional allegations, including those concerning father’s physical abuse of
D’Anthony and failure to protect the children.
       The juvenile court then heard argument on the contested disposition, at which
father requested that the children be placed in his custody. The court denied the request,
finding “by clear and convincing evidence there exist[s] a substantial danger to the
children’s health.” The court explained, “I’ve now heard a trial. I heard a little boy say
‘oh yeah he hit me, he hit me in the face, he hit me there.’ ” The court continued, “I
realize that there are different standards in different countries about what’s appropriate
child discipline . . . . But I’m here, he’s [father] here, [and] he’s been here before. And I
am not comfortable releasing [the children] to him period.”
       The juvenile court filed a minute order reflecting its substantial danger findings
pursuant to section 361. The court made no finding with respect to section 361.2.


                                              5
                                      DISCUSSION
       1.     There Is No Requirement that a Noncustodial Parent Must Be
              “Nonoffending” to Be Considered for Placement Under Section 361.2
       We begin with father’s contention that the juvenile court erred by failing to
consider his request for custody under section 361.2.2 The Department argues section
361.2 does not apply, because the juvenile court sustained jurisdictional allegations
against father concerning his physical abuse of D’Anthony and failure to protect the
children. In view of the sustained allegations, the Department maintains father is not a
“nonoffending” parent as that term has been used in some cases addressing section
361.2’s requirements.
       Because the parties’ contentions involve the interpretation and application of a
statute, our review is de novo. (In re Christian P. (2012) 208 Cal.App.4th 437, 446.) In
construing section 361.2, our role is to ascertain the Legislature’s intent so that we may
effectuate the purpose of the law. (In re J. W. (2002) 29 Cal.4th 200, 209.) In doing so,
we consider the words of the statute first, because they are normally the most reliable
indicator of legislative intent. (In re John M. (2013) 217 Cal.App.4th 410, 421 (John M.)
Where, as here, the statutory language is unambiguous, the plain meaning controls.
(Ibid.; In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1504 (Nickolas T.).)




2
        We reject the Department’s contention that father forfeited this issue by failing to
request a detriment finding below. As we noted in In re Abram L. (2013) 219
Cal.App.4th 452 (Abram L.), application of the forfeiture rule “is not automatic.
[Citation.] When an appellant raises a question of law, for example, the appellate court
can exercise its discretion to address the issue.” (Id. at p. 462.) Here, father requested
that the children be placed in his custody, which triggered section 361.2, subdivision (a)’s
mandate that “the court shall place the child with the parent unless it finds that placement
with that parent would be detrimental to the safety, protection, or physical or emotional
well-being of the child.” (Italics added.) In any event, the question whether the sustained
jurisdictional allegations against father alone precluded him from being considered for
placement under the purported “nonoffending” parent requirement is a pure issue of law
that we may address for the first time on appeal. (Abram L., at p. 462.)

                                             6
       Section 361.2, subdivision (a) 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.” Section 361.2,
subdivision (c) requires the court to “make a finding either in writing or on the record of
the basis for its determination under subdivision[ ] (a) . . . .”
       The word “nonoffending” is not found in the text of section 361.2. (Nickolas T.,
supra, 217 Cal.App.4th at p. 1504; John M., supra, 217 Cal.App.4th at p. 421.)
Nonetheless, “[i]n a few decisions, reviewing courts have used the phrase ‘nonoffending
noncustodial parent’ as shorthand for ‘a parent . . . 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.’ ” (In re V.F. (2007) 157 Cal.App.4th 962, 969, fn. 4 (V.F.) [rejecting
use of phrase because “nonoffending” does not appear in the text of section 361.2]; see,
e.g., In re Joshua G. (2005) 129 Cal.App.4th 189, 202; In re Austin P. (2004) 118
Cal.App.4th 1124, 1129.) These earlier decisions generally “assumed, without deciding,
that section 361.2 applied solely to nonoffending parents, and ha[d] not analyzed whether
the statute could apply to a noncustodial parent who was also the subject of the current
dependency proceeding . . . .” (John M., supra, 217 Cal.App.4th at p. 421.) The courts
in these cases nevertheless “characterized section 361.2, subdivision (a) as permitting
placement with a ‘nonoffending noncustodial parent,’ as though ‘nonoffending’ [was] a
separate statutory requirement.” (Ibid.)
       By contrast, the court in In re A.A. (2012) 203 Cal.App.4th 597 (A.A.) recently
articulated a basis for reading a “nonoffending” parent requirement into section 361.2,
notwithstanding the word’s absence from the text of the statute. In A.A., the juvenile
court removed the child from his mother, who had been arrested and incarcerated for five
years on federal drug charges, and placed the child with his father. Shortly thereafter, the


                                                7
child was removed from the father’s custody, based on new allegations of physical abuse
by the father, while the mother was still serving her federal sentence. (A.A., at p. 602.)
On appeal from a subsequent order terminating her parental rights, the mother asserted
the juvenile court erred when it failed to consider placing the child in her care under
section 361.2 after ordering the child removed from the father’s custody. The mother
argued she was a noncustodial parent and could have arranged for the child’s care with
family members during her incarceration. (A.A., at p. 604.)
       The A.A. court rejected the mother’s contention, holding she was not entitled to
consideration under section 361.2, because the statute authorizes placement with a
“nonoffending” parent only. (A.A., supra, 203 Cal.App.4th at p. 608.) The court did not
draw this requirement from the text of section 361.2, but rather from the reference to a
“nonoffending parent” in section 361, subdivision (c). The A.A. court explained its
reasoning as follows: “Section 361.2 comes into play after a child has been removed
from the physical custody of his or her parents under section 361, subdivision (c).
Subparagraph (1) of section 361, subdivision (c), requires the court to consider allowing a
nonoffending parent to ‘retain physical custody’ so long as that parent or guardian
presents a plan acceptable to the court demonstrating that he or she will be able to protect
the child from future harm. We interpret the phrase ‘retain physical custody’ to mean
that the parent seeking temporary placement of the child under section 361.2 must not
have suffered a previous loss of custody of the child by a juvenile court order of removal
after a finding of detriment.” (A.A., at p. 608.) Thus, “[r]eading section 361.2 in light of
section 361, subdivision (c),” the A.A. court held, “the parent must be both a
nonoffending and noncustodial parent in order to be entitled for consideration under
section 361.2, that is, the parent must retain the right to physical custody, and must not
have been the subject of a previous detriment finding and removal.” (A.A., at p. 608;
accord John M., supra, 217 Cal.App.4th at p. 424 [concluding “nonoffending” is a
requirement under section 361.2 where the noncustodial parent’s offense “was the cause
of his noncustodial status”].)



                                              8
       More recently, the court in Nickolas T. held there is no implicit nonoffending
parent requirement in section 361.2, thereby rejecting the A.A. court’s “analysis that in
view of section 361, subdivision (c) a parent must be both ‘noncustodial’ and
‘nonoffending’ to be considered for placement under section 361.2.” (Nickolas T., supra,
217 Cal.App.4th at p. 1504.) Addressing the A.A. court’s rationale head-on, the court in
Nickolas T. explained that “section 361, subdivision (c)(1) states the court may remove
the ‘offending parent’ from the home and allow the “nonoffending parent” to retain
physical custody on a showing that he or she can protect the child from future harm.
Thus, the term ‘nonoffending parent’ in section 361 refers to a custodial parent who is not
the perpetrator of any child abuse or neglect. It does not refer to a noncustodial parent
under section 361.2, subdivision (a).” (Nickolas T., at p. 1505.)
       In addition to the fact that “[t]he term ‘nonoffending’ does not appear in the text of
section 361.2” (Nickolas T., supra, 217 Cal.App.4th at p. 1504), the Nickolas T. court
found further support for its interpretation in the broader statutory framework. As the
court explained, “[u]nder section 361, subdivision (c)(1), a finding of detriment is
required to remove a child from the custody of an offending custodial parent. At each
status review hearing, a parent who is the subject of a detriment finding is presumptively
entitled to custody unless the [Department] proves detriment. (§§ 366.21, subds. (e)
& (f), 366.22, subd. (a).) A prior detriment finding is not given preclusive effect at
subsequent review hearings. (§ 366.22, subd. (a).) . . . Even if the noncustodial parent
was the subject of a prior detriment finding and did not regain custody of the child, that
parent is presumptively entitled to custody at each and every subsequent status review
hearing. Thus, the presumption for placement with a noncustodial parent at a disposition
hearing is consistent with the statutory scheme as a whole, and furthers the legislative
goals to maintain or place a child in the care of a parent when safe for the child,
strengthen the child’s relationship with siblings and other relatives, and avoid the child’s
placement in foster care. (§§ 300.2, 361, 361.2, 361.3, 361.5, 366.21, 366.22.)”
(Nickolas T., at pp. 1505-1506, italics omitted.)



                                              9
       We agree with the Nickolas T. court’s analysis and likewise reject the contention
that an implicit “nonoffending” requirement can be invoked to preemptively deny a
noncustodial parent consideration for custody without assessing whether the placement
would pose a detriment to the child under section 361.2, subdivision (a). Moreover, apart
from the reasons articulated in Nickolas T., we hold this conclusion is compelled in the
instant case by constitutional due process, which requires a detriment finding by clear
and convincing evidence before a noncustodial parent can be denied placement under the
statute. (See In re Marquis D. (1995) 38 Cal.App.4th 1813, 1829 (Marquis D.).)
       Here, the Department maintains no detriment finding was required, because the
sustained jurisdictional allegations disqualified father from obtaining custody under
section 361.2’s purported “nonoffending” parent requirement. But were this the law, the
heightened clear and convincing evidence standard would disappear, having been
supplanted by the lower preponderance standard used to make the earlier jurisdictional
findings. This has serious constitutional ramifications, because “the trial court’s decision
at the dispositional stage is critical to all further proceedings.” (In re Marquis D., supra,
38 Cal.App.4th at p. 1829.) As explained in Marquis D., “[s]hould 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.” (Ibid., citing §§ 366.21, subds. (e) & (f), 366.22, subd. (a).)
Thus, “[i]f 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.” (Ibid.; see also In re Henry V. (2004)
119 Cal.App.4th 522, 530 [“A dispositional order removing a child from a parent’s
custody is ‘a critical firebreak in California’s juvenile dependency system’ [citation],
after which a series of findings by a preponderance of the evidence may result in



                                             10
termination of parental rights. Due process requires the findings underlying the initial
removal order to be based on clear and convincing evidence.”].)
       Because a jurisdictional finding need only be made under the preponderance of
evidence standard, reading a nonoffending requirement into section 361.2 will effectively
undermine the mandate that there be clear and convincing evidence of detriment before
placement with a noncustodial parent can be denied. Such a result, and its consequences
for all proceedings following the dispositional stage, does not comport with constitutional
due process.3 (See Marquis D., supra, 38 Cal.App.4th at p. 1829 [explaining, “[t]he fact
that the child could not initially be removed from custody absent a finding supported by
clear and convincing evidence is a linchpin of the [Supreme Court’s] determination [in
Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253] that the statutory scheme for
terminating parental rights comported with due process requirements”].)

3
        We acknowledge our colleagues in Division 1 rejected an identical due process
challenge in holding a nonoffending parent requirement is implicit in section 361.2. (See
John M., supra, 217 Cal.App.4th at p. 424.) In doing so, the John M. court relied on the
following passage from Marquis D.: “ ‘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.’ ”
(John M., at pp. 424-425, quoting Marquis D., supra, 38 Cal.App.4th at p. 1829, italics
added by John M.) Based on this passage, the John M. court reasoned that “Marquis D.
likewise implicitly recognizes the nonoffending requirement in section 361.2.” (John M.,
at p. 425.) We respectfully disagree. Though Marquis D.’s reference to “a parent who
had no connection with the circumstances that brought the child within the jurisdiction of
the court” serves to highlight the “anomalous result” that a noncustodial parent could be
denied custody based on a lower standard of proof than is constitutionally mandated to
remove a child from a custodial parent, the critical point of the passage is not the parents’
different levels of culpability. Rather, the passage underscores that due process requires
the heightened clear and convincing evidence standard to be applied to both custodial and
noncustodial parents before the state may intervene to deny a parent’s right to physical
custody of his or her child. As we have explained, imposing a preemptive nonoffending
parent requirement, which could result in the termination of parental rights without any
finding of detriment by clear and convincing evidence, is inconsistent with Marquis D.
and constitutional due process.

                                             11
       Of course, this is not to say that the juvenile court should ignore evidence
supporting sustained jurisdictional allegations in determining whether placement with a
noncustodial parent is suitable under section 361.2, subdivision (a). As Nickolas T.
explains, the statute requires the court to focus on “the effect placement with the
noncustodial parent would have on the child’s safety, protection and physical and
emotional well-being. If a noncustodial parent is in some way responsible for the events
or conditions that currently bring the child within section 300—in other words, if the
parent is an ‘offending’ parent—those facts may constitute clear evidence of detriment
under section 361.2, subdivision (a).” (Nickolas T., supra, 217 Cal.App.4th at p. 1505.)
Be that as it may, the juvenile court cannot preemptively deny placement with a
noncustodial parent, based solely on sustained jurisdictional allegations, without finding,
by clear and convincing evidence, the placement would be detrimental to the child.
(§ 361.2, subds. (a) & (c).)
       2.     The Error Was Harmless Because the Juvenile Court Found by Clear and
              Convincing Evidence That Placement with Father Would Pose a
              Substantial Danger to the Children’s Health
       Though we have concluded the juvenile court erred in failing to make a finding
under section 361.2, subdivisions (a) and (c), “[w]e cannot reverse the court’s judgment
unless its error was prejudicial, i.e., ‘ “it is reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the error.” ’ ”
(Abram L., supra, 219 Cal.App.4th at p. 463.) In view of the juvenile court’s “substantial
danger” finding under section 361, subdivision (c)(1), and the evidence supporting that
finding with respect to father, we conclude the court’s error did not result in a miscarriage
of justice. (Cal. Const., art. VI, § 13 [“No judgment shall be set aside . . . for any error as
to any matter of procedure, unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error complained of has resulted in a
miscarriage of justice”].)




                                              12
       Section 361, subdivision (c) provides in relevant part: “A dependent child may
not be 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, unless the juvenile court
finds clear and convincing evidence of . . . [¶] (1) . . . a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of the minor if the minor
were returned home . . . .” Similarly, section 361.2, subdivision (a) requires the juvenile
court to place a child with a noncustodial 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.” By its terms, section 361 applies to a custodial parent, while placement
with a noncustodial parent is to be assessed under section 361.2. (See V.F., supra,
157 Cal.App.4th at pp. 969-970.) Accordingly, the juvenile court’s findings under
section 361 with respect to father—a noncustodial parent—did not comport with
statutory requirements. Nevertheless, in assessing whether this error was prejudicial, we
can neither ignore the similarity between these statutes’ mandatory findings, nor
disregard the evidence supporting the court’s “substantial danger” finding concerning
placement with father. (See, e.g., Nickolas T., supra, 217 Cal.App.4th at pp. 1507-1508
[applying the best interests standard and placing child in long-term foster care without
considering detriment under section 361.2 was harmless error where the record contained
substantial evidence to support a detriment finding]; cf. Abram L., supra,
219 Cal.App.4th at pp. 460-464 [finding miscarriage of justice where court made section
361 finding as to custodial mother, but not noncustodial father, and “nothing in the
record” indicated the court considered the requirements of section 361.2].)
       In addressing father’s request for custody, the juvenile court specifically
referenced father’s physical abuse of D’Anthony, and was unequivocal about its
dispositional findings under section 361: “I’ve now heard a trial. I heard a little boy say
‘Oh yeah he hit me, he hit me in the face, he hit me there.’ ” The court continued, “I
realize that there are different standards in different countries about what’s appropriate
child discipline . . . . But I’m here, he’s [father] here, [and] he’s been here before. And I
am not comfortable releasing [the children] to him period.” On this basis, the court found


                                              13
“by clear and convincing evidence” that the requested placement with father posed “a
substantial danger to the children’s health.” In view of this evidence, and the court’s
express finding under section 361, we cannot say it is “reasonably probable” that the
court would have made a different finding had it considered whether the placement
would be detrimental to the children’s safety or physical well-being under section 361.2.
(Cf. Abram L., supra, 219 Cal.App.4th at p. 464 [finding miscarriage of justice “[i]n light
of the evidence in this case, or lack thereof”], italics added.)
                                       DISPOSITION
       The juvenile court’s order is affirmed.

       CERTIFIED FOR PUBLICATION




                                                   KITCHING, J.

We concur:




                      KLEIN, P. J.




                      ALDRICH, J.




                                              14
