Filed 4/18/16 In re Hailey V. CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


In re HAILEY V.,                                                                 B265099
                                                                                 (Los Angeles County
a Person Coming Under the Juvenile Court Law.                                     Super. Ct. No. DK07279 )


LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

BRAD V.,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert S. Draper, Judge. Reversed.
         Jamie A. Moran, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant
County Counsel, and Kimberly Roura, Deputy County Counsel, for Plaintiff and
Respondent.
       Brad V. (Father) appeals from an order of the dependency court removing
his daughter Hailey from his custody. Father challenges the removal order on the
basis that Hailey was not in his custody prior to removal. We conclude that the
juvenile court erred in removing Hailey from Father’s custody because she was not
residing with him when the dependency petition was initiated. We therefore
reverse.


               FACTUAL AND PROCEDURAL BACKGROUND1
       The Los Angeles County Department of Children and Family Services
(DCFS) detained Hailey’s half-sister from Mother in June 2014 for general
neglect. Mother was residing in a Regional Center home with a mentor and did not
live with Father. Hailey was born in December 2014 and was placed in foster care
in January 2015.
       On January 21, 2015, DCFS filed a petition under Welfare and Institutions
Code section 3002 alleging, inter alia, that Mother suffered from “Mild Mental
Retardation” and depression, making it difficult for her to care for Hailey and her
half-sister. The petition also alleged that Father had made verbal threats to Mother.
Mother reported that Father was Hailey’s alleged father.
       Father asked for a DNA test to determine whether he was Hailey’s father
and stated that he would take “full responsibility for providing and caring for” her
if he was determined to be the father. The juvenile court ordered a DNA test on



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        Irma V. (Mother) does not challenge the jurisdictional or dispositional findings.
Because the facts underlying the court’s decision to detain and remove Hailey and her
half-sister from Mother are not pertinent to the issue Father raises on appeal, we do not
set them forth in detail.
2
       Further unspecified statutory references are to the Welfare and Institutions Code.
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January 21, 2015, and on April 2, 2015, the court declared Father to be Hailey’s
biological father. The court ordered monitored visits for Father three times a week.
      At the April 30, 2015 adjudication/disposition hearing, Father’s counsel
argued that Father had not had any contact with Hailey before the petition was
filed, reminding the court that Father requested the DNA test because he did not
know if he was the father. The court found Hailey to be a child described by
section 300, finding true the allegations that Father made verbal threats to Mother;
Mother’s mental ability and depression made it difficult for her to care for the
children; and Mother’s home was unsanitary. The court further found by clear and
convincing evidence that there was substantial danger to Hailey if she were
returned home and there was no reasonable means to protect her other than
removal. The court thus ordered Hailey removed from Mother and Father under
section 361, subdivision (c). Father timely appealed.


                                   DISCUSSION
      The sole issue on appeal is whether the juvenile court may order a child
removed from a parent under section 361, subdivision (c) if the child was not
residing with that parent when the petition was initiated. The answer is no. (See
In re Dakota J. (2015) 242 Cal.App.4th 619, 627 (Dakota J.) [juvenile court may
not order removal of children who are not living with the parent at the relevant
time].)
      DCFS does not address the merits of Father’s claim, arguing only that Father
forfeited his claim by failing to object in the juvenile court. “However, application
of the forfeiture rule is not automatic. [Citation.]” (In re Nickolas T. (2013) 217
Cal.App.4th 1492, 1501 (Nickolas T.).) Where the facts are undisputed and the



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effect of those facts is a question of law, we may exercise our discretion to address
the issue. (Ibid.) We review a legal question de novo. (Ibid.)
      It is undisputed that Hailey was not living with Father at the time DCFS
initiated the dependency petition. The only issue is the legal question whether,
given that fact, the juvenile court could order Hailey removed from Father’s
custody. We therefore exercise our discretion to address Father’s appeal. (See
Nickolas T., supra, 217 Cal.App.4th at p. 1501 [exercising discretion to address
legal question because facts were undisputed]; Dakota J., supra, 242 Cal.App.4th
at p. 630 [rejecting DCFS’ contention that the mother forfeited her argument where
it was undisputed the children were not living with her].)
      The juvenile court removed Hailey from Father’s custody under section 361,
subdivision (c), which “authorizes a child’s removal ‘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), italics added.)” (Dakota J., supra,
242 Cal.App.4th at p. 628.) In Dakota J., the juvenile court found clear and
convincing evidence supported removal of the mother’s three children from her.
However, two of the three children were not living with the mother at the time the
petition was initiated. On appeal, the court held that this was error, stating, “it is
plain that the statute does not contemplate that a child could be removed from a
parent who is not living with the child at the relevant time.” (Ibid.; see also In re
Abram L. (2013) 219 Cal.App.4th 452, 460 [although the mother did not appeal the
dispositional order, the court held the children could not be removed from the
father’s physical custody under § 361, subd. (c)(1) because they were not residing
with him when the petition was initiated]; Nickolas T., supra, 217 Cal.App.4th at p.
1504 [“By its plain terms, § 361, subd. (c) concerns removal of the child from ‘the



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physical custody of [the] parents or guardian . . . with whom the child resides at the
time the petition was initiated’ . . . . (Italics added.)”].)
       In Dakota J., the children “were not residing with mother when [DCFS]
initiated the petition and had not been residing with her for at least five years.”
(Dakota J., supra, 242 Cal.App.4th at p. 630.) Similarly here, Hailey was not
living with Father when DCFS initiated the petition and Father did not even know
if he was Hailey’s father at the time. The juvenile court therefore erred in
removing her from Father’s physical custody. (Id. at pp. 629-630.)
       Moreover, as in Dakota J., the error was prejudicial. (See Dakota J., supra,
242 Cal.App.4th at p. 630.) “‘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. [Citations.]’ [Citation.] . . . [¶] . . . ‘Removal on
any ground not involving parental rejection, abandonment, or institutionalization
requires a finding that there are no reasonable means of protecting the child
without depriving the parent of custody. [Citations.] [¶] The heightened standard
of proof is crucial, and necessary to provide due process, because ‘[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 termination of parental
rights.’ [Citation.]” (Id. at pp. 630-631.)
       The only allegation in the petition pertaining to Father was that he made
verbal threats in text messages to Mother. There were no allegations that he
carried out any threats. The evidence is not sufficient to constitute clear and
convincing evidence that there is a substantial risk of harm to Hailey and no
reasonable means to protect her without removal. (See In re A.E. (2014) 228

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Cal.App.4th 820, 822 [single incident of spanking three-year-old with a belt on her
legs and buttocks not sufficient to support removal order]; In re Henry V. (2004)
119 Cal.App.4th 522, 529 [removal order not supported by substantial evidence
where “[t]he physical abuse suffered by [the child], while substantial, was
apparently a single occurrence, and neither the Agency nor the court considered it
an obstacle to reunification in the near future.”].) The error therefore was
prejudicial. (See Dakota J., supra, 242 Cal.App.4th at pp. 630-632.)


                                  DISPOSITION
             The dispositional order removing Hailey from Father’s custody is
reversed and the matter remanded for further proceedings.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              WILLHITE, J.




             We concur:




             EPSTEIN, P. J.




             MANELLA, J.

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