Filed 9/8/16 In re B.T. CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


In re B.T., a Person Coming Under the                                    B268317
Juvenile Court Law.
                                                                         (Los Angeles County
                                                                         Super. Ct. No. DK05046)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

M.L.,

         Defendant and Appellant.


         APPEAL from orders of the Superior Court of Los Angeles County, Amy
Pellman, Judge. Affirmed.
         Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County
Counsel, and Sarah Vesecky, Senior Deputy County Counsel, for Plaintiff and
Respondent.
        M.L. (Father) is the biological, or “natural,” father of his son B.T. When B.T. was
about four months old, the Department of Children and Family Services (DCFS) filed a
petition to declare B.T. a dependent child under Welfare and Institutions Code section
        1
300(b). At the time, B.T.’s mother A.T. (Mother) had physical custody of him and
Father was incarcerated. The juvenile court found jurisdiction was proper under section
300, removed B.T. from Mother’s custody, and ordered B.T. suitably placed. Later,
when Father was released from custody, the juvenile court permitted him to participate in
the proceedings, finding DCFS did not earlier exercise due diligence to discover his
whereabouts. DCFS then filed a section 342 petition with allegations against Father
under section 300, based on his 34-year history of substance abuse and an incident of
domestic violence with Mother. The juvenile court sustained the section 342 petition and
ordered B.T. removed from Father’s physical custody. Although DCFS concedes this
removal order was “in error” because B.T. was not in Father’s physical custody at the
time the petition was filed, DCFS urges us not to disturb the order because Father’s
notice of appeal is defective and the error was harmless in any event. We consider
whether DCFS is correct on either score.


                                    I. BACKGROUND
        Mother and Father separated when she was six months pregnant with B.T., in the
fall of 2013. They were no longer living together when B.T. was born in January 2014.
Mother was living in a shelter for pregnant women and Father was living with his parents
in Perris, California.
        Just over two months after B.T.’s birth, DCFS received a referral alleging Mother
was neglecting and abusing B.T. by, among other things, hitting him and screaming at
him. Ultimately, at DCFS’s recommendation, Mother enrolled in Heritage House’s




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

                                             2
inpatient alcohol and drug treatment program, which permitted children to live with the
parent while the parent was undergoing treatment.
       At about the same time, Father was taken into custody (after a revocation of bail)
on a 2013 charge of domestic violence against Mother. Father was convicted and sent to
Wasco state prison.
       During Mother’s first six weeks at Heritage House, staff members expressed
concern to DCFS about Mother’s ability to care for B.T. A medical social worker from
Children’s Hospital called DCFS and expressed concern for B.T.’s safety. This prompted
DCFS to detain B.T. pursuant to a removal warrant and place him in foster care. Three
days later, DCFS filed a section 300 petition alleging B.T. was at risk of harm due to
Mother’s substance abuse; DCFS later filed a first amended petition that added an
allegation that Mother suffered from Bipolar Disorder, which endangered B.T.
       In a June 30, 2014, report in advance of the jurisdiction and disposition hearing on
the allegations against Mother in the petition, DCFS identified M.L. as an alleged father
of B.T. with unknown whereabouts. DCFS stated that it had been unable to locate M.L.,
and attached a due diligence declaration describing the efforts it had undertaken to locate
him. DCFS recommended the court provide no reunification services to Father because
his location was unknown and he was an alleged father only. At the jurisdiction hearing,
the juvenile court found the allegations against Mother in the first amended petition true
(as amended by interlineation) and removed B.T. from Mother’s physical custody
                                         2
pursuant to section 361, subdivision (c). The court further found B.T.’s existing foster
care placement was appropriate and the court ordered there would be no reunification




2
        Section 361, subdivision (c) authorizes a juvenile court to remove a dependent
child from the physical custody of parents with whom the child resides at the time the
petition was initiated if the court finds by clear and convincing evidence there is or would
be a substantial danger to the health, safety, or well-being of the minor if the minor were
returned home, and there are no reasonable means by which the minor’s physical health
can otherwise be protected.

                                             3
services for Father, who had not appeared in the proceedings and whose whereabouts
                     3
were then unknown.
       Father was released from prison on February 12, 2015. DCFS’s records show that
Father had telephone contact with DCFS staff on February 19, 2015. Father subsequently
completed a Statement Regarding Parentage that asked the court to determine if he was
B.T.’s biological father and to enter a judgment of parentage.
       Not long thereafter, Father filed a section 388 petition and asked the court to
vacate its prior orders on the ground that DCFS did not exercise due diligence in
attempting to locate him. Father asked “to have his day in court represented by counsel,
including the opportunity to establish paternity and seek custody.” The juvenile court
ordered DNA testing for Father, which established he was B.T.’s natural father, and the
court also granted a hearing on the section 388 petition.
       When the court held the hearing on the section 388 petition, which was combined
with the 12-month review hearing on Mother’s efforts to reunify with B.T., Father was
present with counsel. Father told the court he was in custody when DCFS filed the
original section 300 petition seeking court jurisdiction over B.T. The offense for which
he had been in custody concerned a domestic violence incident involving Mother, which
had taken place about a year earlier. Father’s counsel implicitly acknowledged that
Father was not a presumed father, but contended that he “could qualify as [a] presumed
father under the law and could be entitled to custody.”
       The court granted the section 388 petition in part. The court found DCFS did not
exercise due diligence when it failed to attempt to find Father through the inmate locator.
The court found, however, that the only harm Father suffered from the lack of notice was
that the court had not earlier found he was B.T.’s natural father. The court pointed out
that as only a natural father (not a presumed father), Father was not automatically entitled


3
       Section 361.5, subdivision (b)(1) states reunification services need not be provided
to a parent if a juvenile court finds by clear and convincing evidence the parent’s
whereabouts are unknown.

                                             4
to custody or reunification services. The court explained the question of whether to order
reunification services was one within the court’s discretion and it would not exercise its
                                 4
discretion to order such services. The court stated it would, however, order visitation for
Father, adding “if he would like to work towards being [a] presumed [father], I ,
certainly, encourage him to do that and I, certainly, encourage him to continue visiting
and address whatever issues he believes [are] keeping him from requesting custody, if he
wants to obtain status of presumed.” The court directed DCFS to meet with Father to
discuss the possibility of unmonitored visits, and ordered DCFS to make a home visit.
       Father noticed an appeal from the juvenile court’s order, which denied him a new
disposition hearing and all associated rights, including reunification services. His
appellate attorney filed an opening brief pursuant to In re Phoenix H. (2009) 47 Cal.4th
835, and we dismissed his appeal as abandoned.
       The matter proceeded in the juvenile court while Father’s prior appeal was
pending. On August 11, 2015, DCFS filed a subsequent petition under section 342
                                     5
regarding B.T., then 19 months old. The petition alleged Father’s 34-year history of
substance abuse and related criminal history “endanger the child’s physical health and
safety and create a detrimental home environment, placing the child at risk of serious
physical[ ] harm, damage and failure to protect.” The petition also alleged there was a
substantial risk that B.T. would suffer serious physical harm because Mother and Father
had engaged in a prior violent altercation.



4
       The juvenile court explained it chose to exercise its discretion to deny such
services because father “has missed 50 percent, I think, over 50 percent of the visits that
were already offered to him. He did sit on his rights. He did know the child was going to
be born. He did not appear . . . to really make any diligent effort to contact the mother to
find out about the birth of his child. It wasn’t until the Department finally contacted him
in December, at which point, he again sat on his rights until February.”
5
        A section 342 petition is used to allege new facts or circumstances, other than
those under which an original petition was sustained, that would further justify
jurisdiction over a child under section 300.

                                              5
       In the detention report filed concurrently with the petition, DCFS summarized
three interviews a social worker had conducted with Father. He discussed his criminal
history, which began at the age of 18 for driving under the influence (DUI). Additional
DUI convictions followed. Father acknowledged an arrest for domestic violence with his
first wife in 1998 or 1999, and a subsequent arrest in 2005. Father was also arrested in
2013 for inflicting corporal injury on Mother. In addition, Father discussed his substance
abuse history. He began drinking alcohol and using marijuana at the age of 15. He used
cocaine, methamphetamine, and other substances when younger, but quit using cocaine in
about 2000 and methamphetamine in May 2014. Father acknowledged he had a medical
marijuana card but initially claimed that he had not used marijuana since his arrest in
2014. He then clarified that he had smoked a small amount of marijuana with his adult
son two days prior to the interview.
       The detention report also summarized Father’s visits with B.T. Since June 1,
2015, monitored visits had been set up for Father on Mondays at a park in Corona,
California. Father attended three visits, cancelled four visits, and failed to show up or
cancel an additional two visits. Thus, Father attended about one-third of the visits, all of
which lasted about an hour. Father was reluctant to undertake longer visits in the
community, but was interested in having longer visits with B.T. in Father’s home.
       In a Last Minute Information report filed with the court shortly before the
adjudication hearing on the subsequent petition, DCFS described the results of walk-
through of Father’s residence. The social workers were able to view the entire
downstairs area of the home and Father’s sleeping area, which was a couch in a common
room upstairs. There were also two bedrooms upstairs, both of which were locked, that
the social workers could not view; one room was occupied by two tenants, the other by
Father’s adult son. When asked whether there were any weapons in the home, Father
said there were not, but he also “stated that the adult son’s room remains locked so that if
Probation [Officers] were to stop by they would know that whatever things his son has in
his room aren’t associated with [Father].”



                                              6
       At the adjudication hearing on the subsequent petition, the court sustained the
counts alleged under section 300(b), as amended by interlineation. Specifically, the court
found B.T. “continues to be the person described under Welfare and Institutions Code
[section] 300” based on the substantial risk of harm to the child presented by Father’s
substance abuse and Mother and Father’s history of engaging in violence, “such [as] in
2013, when father slapped the mother.” The court then asked if anyone wanted to be
heard concerning disposition. Father’s counsel requested to continue the matter so that
Father could continue attempts to enroll in the Cherokee nation and to give Father “a fair
opportunity to present his case to the court regarding reunification services,” which
DCFS had recommended the court deny. Further discussion ensued, and the court
ordered the parties back on October 19 for a contested hearing on disposition.
       Father was not present at the October 19 hearing. Father’s counsel presented
several character reference letters written on Father’s behalf. Father’s counsel then asked
the court to exercise its discretion and offer Father reunification services. Counsel
argued, “My client has stepped up in regards to going forth with the paternity tests. And,
he’s the biological father. . . . My client has been coming to court. He has had visitation.”
Counsel acknowledged Father’s significant criminal history but pointed to the letters of
reference vouching that he “is an excellent father, an outstanding father [to his other,
now-adult children].” Unpersuaded, DCFS and counsel for B.T. recommended the court
continue to deny reunification services.
       The court declined to order family reunification services for Father, who, the court
stated, “continues to be an alleged father.” Using language we will revisit momentarily,
the transcript of the hearing indicates the court further ordered as follows: “The court
finds that continuance in the home of both parents is contrary to the child’s welfare. [¶]
The court finds by clear and convincing evidence pursuant to [section] 361(c) that there is
substantial danger to the physical health, safety, protection, or physical or emotional
well-being of the child if the child were to be returned home. And there are no
reasonable means by which the child’s physical health can be protected without removal
from the parent’s physical custody. Care, custody and control are placed with the

                                              7
Department. [¶] Reasonable efforts have been made to prevent and eliminate the need
for the child’s removal.”
        After the continued hearing on disposition, Father timely filed a notice of appeal
which states he is appealing from: “All findings and orders made during the adjudication
on September 29, 2015. Denial of reunification services at the Dispositional hearing on
10-19-2015.”


                                     II. DISCUSSION
        Father interprets the juvenile court’s dispositional order as one that removed B.T.
from his physical custody, and he argues this was error. He asserts a child may only be
removed from the physical custody of a parent with whom the child resides, and since
B.T. never resided with Father, the court’s order removing B.T. from Father’s physical
custody was erroneous. DCFS notes the ambiguity in the record as to whether the court’s
removal order at the October 19 hearing was meant to apply to both Mother and Father,
see ante (“both parents” vs. “the parent’s”), but DCFS proceeds on the understanding it
applied to Father and concedes the order was erroneous for the reason Father identifies.
The agreement between the parties, however, ends there. DCFS contends we should
dismiss the appeal in any event because Father’s notice of appeal does not clearly
challenge the removal order. DCFS further asserts any error was not prejudicial because
the record demonstrates there was no legal basis on which Father could have obtained
physical custody of B.T. We agree with DCFS on the second point. Any error was
harmless because a natural father is not entitled to physical custody under the applicable
statute, section 361.2, and the removal order had no legal effect on the availability of
reunification services, which the court had by then already exercised its discretion to
deny.




                                              8
       A.     DCFS’s Motion to Dismiss
       After Father filed his notice of appeal, he filed an opening brief in which he asserts
the court erred in removing B.T. from Father’s physical custody because B.T. never
resided with Father. He contends the court should have placed B.T. with him instead.
       DCFS filed a motion to dismiss, asserting we lack jurisdiction to hear the claims
raised in Father’s brief because those claims are not listed in his notice of appeal. DCFS
argues the court’s removal order was made at the October 19 hearing, but Father’s notice
of appeal limits his appeal from the October 19 hearing to the court’s refusal to grant
family reunification services.
       Father opposes dismissal and requests that we liberally construe his notice of
appeal to include the challenge to the removal order he presents for our review. Seeing
no prejudice to DCFS, we give the notice such a construction and reach the merits of his
contentions. (California Rules of Court, rule 8.100(a)(2); In re Madison W. (2006) 141
Cal.App.4th 1447, 1450.)


       B.     The Removal Order Is, At Most, Harmless Error
       Section 361, subdivision (c) provides in relevant part: “A dependent child shall
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 . . . [¶] (1) There is or would be a substantial danger
to the physical health, safety, protection, or physical or emotional well-being of the minor
if the minor were returned home, and there are no reasonable means by which the minor’s
physical health can be protected without removing the minor from the minor’s parent’s or
guardian’s physical custody. . . . The court shall consider, as a reasonable means to
protect the minor, each of the following: [¶] (A) The option of removing an offending
parent or guardian from the home. [¶] (B) Allowing a nonoffending parent or guardian
to retain physical custody as 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.”
It is undisputed that B.T. never resided with Father. Thus, an order removing B.T. from

                                             9
Father’s physical custody pursuant to section 361, subdivision (c)(1) would be erroneous.
(In re Dakota J. (2015) 242 Cal.App.4th 619, 627-630.)
       Father contends the removal order was prejudicial, as he must to obtain reversal,
because the trial court should have instead considered whether to place B.T. with him
under section 361.2 and it is reasonably probable he would have obtained physical
custody under that statute. (See, e.g., In re Celine R. (2003) 31 Cal.4th 45, 59-60
[reversal warranted only where error is prejudicial, meaning a more favorable outcome
would be “reasonably probable” absent the error].) As relevant here, section 361.2
provides as follows: “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.” (§ 361.2, subd. (a).)
       Father’s argument fails because he would not have been entitled to custody under
section 361.2. “[O]nly a presumed father is entitled to assume immediate custody” under
section 361.2. subdivision (a). (In re Zacharia D. (1993) 6 Cal.4th 435, 454 (Zacharia
D).) Father was not a presumed father at the time of either the original dispositional
                                                                                     6
hearing or the later dispositional hearings on the section 342 subsequent petition. Father
counters by asserting the court’s ruling in Zacharia D. does not preclude application of
section 361.2 to natural fathers because the court explained that “the statute assumes the


6
       “Presumed fatherhood, for purposes of dependency proceedings, denotes one who
‘promptly comes forward and demonstrates a full commitment to his paternal
responsibilities—emotional, financial, and otherwise [.]’ [Citation].” (In re Jerry P.
(2002) 95 Cal.App.4th 793, 801-802.) Father’s consistent status as at most a natural
father makes it unnecessary for us to address whether section 361.2 applies only at the
time the child is first removed from the custodial parent or guardian’s home, which in this
case would have been long before the dispositional hearing on the section 342 subsequent
petition.

                                             10
existence of a competent parent able to immediately assume custody” ( Zacharia D.,
supra, 6 Cal.4th at p. 454), which he believes he is. Father has taken this quote out of
context. Our Supreme Court unmistakably held section 361.2 applies only to presumed
fathers. (See, e.g., In re Liam L. (2015) 240 Cal.App.4th 1068, 1080, fn. 5 [citing
Zacharia D. for the proposition that “[a] mere alleged or biological father does not
qualify as a ‘parent’ under this statute; he must obtain presumed father status”].)
       Moreover, Father’s argument is unpersuasive even on its own terms. Although
Father contends that he had a home for his child, the record does not support that
contention. Father shared a home with three others, and DCFS was unable to complete a
walk-though of the residence because (a) the other residents kept their doors locked, and
(b) DCFS had not been able to do background checks on the other residents. Plus, the
record also reveals Father’s multiple drug-related offenses and prior incidents of
domestic violence, in addition to his inconsistent visitation and lackluster efforts to
inquire as to B.T.’s welfare. We are confident a request for physical custody under
section 361.2, if made, would have been denied as detrimental to B.T.’s well being.
       Father further maintains that even if he were not entitled to immediate custody, he
was prejudiced by the removal order because it started the clock running for reunification
services, and eventually for termination of parental rights. This argument fails. The
removal order on October 19, 2015, had no effect on the unavailability of reunification
services for Father. As we highlighted when summarizing the factual and procedural
background of this case, the juvenile court had already denied Father reunification
services in connection with his section 388 petition, and while Father noticed an appeal
from that determination, we dismissed that appeal as abandoned. And as to the “clock”
for reunification services, that had begun running earlier, when B.T. was removed from
Mother’s custody.




                                             11
                                     DISPOSITION
      The juvenile court’s removal order is affirmed.


               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                         BAKER, J.



We concur:



      TURNER, P.J.



                     
      RAPHAEL, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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