Filed 11/20/19; Certified for Publication 12/6/19 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                DIVISION FIVE

In re ADAM H., a Person Coming                          B298289
Under the Juvenile Court Law.
                                                        (Los Angeles County
LOS ANGELES COUNTY                                      Super. Ct. No. 19CCJP01248A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

        Plaintiff and Respondent,

        v.

JAVIER H.,
     Defendant and Appellant.


      APPEAL from orders of the Superior Court of Los Angeles
County. Marguerite D. Downing, Judge. Affirmed in part,
reversed in part, and remanded with directions.

     Johanna R. Shargel, under appointment by the Court of
Appeal, for Defendant and Appellant.

      Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
      Father appeals from the juvenile court’s dispositional order
removing his 14-year-old son from his custody under Welfare and
Institutions Code section 361, subdivision (c).1 Father argues the
court applied the wrong statute: since father was a non-custodial
parent, the court should have evaluated whether the child should
be placed with him under section 361.2. The Department of
Children and Family Services (Department) concedes the error,
but argues it was harmless. We reverse.
       FACTUAL AND PROCEDURAL BACKGROUND
      On February 22, 2019, the Department received a child
welfare referral alleging mother exposed 14-year-old Adam to
narcotics and prostitution by trafficking drugs and operating a
brothel at the family home. Adam told a Department social
worker that mother physically and emotionally abused him, and
sold drugs at their house. The minor said he was depressed and
had suicidal tendencies. The court immediately removed him
from mother’s care and custody.
      On February 26, 2019, the Department filed a petition
alleging Adam was at risk due to mother’s substance abuse and
emotional abuse, and father’s criminal history.2 At the time of
detention hearing, the Department had not yet located father.
Adam was detained in shelter care.
      Adam said he did not know father. When the Department
located father, he said he had not seen mother for eight years and
that she had abused drugs when he was in a relationship with


1     All further statutory references are to the Welfare and
Institutions Code.

2    We do not address allegations in the petition that were
dismissed and are not at issue on appeal.


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her. He was incarcerated after they ended their relationship.
When he was released in 2010, he participated in parenting
classes and counseling in 2010 in an attempt to re-establish his
relationship with Adam. His therapist at the time documented
mother’s aggression toward father and her refusal to cooperate
with the family court’s visitation orders. According to mother,
father had been violent toward her, and she had not had contact
with him for over 10 years.
       Father appeared at an interim hearing and was ordered to
drug test. The court granted him monitored visitation with
Adam. Father asked for custody of Adam. Father was employed
and lived with his fiancée. He missed his first three drug tests,
and indicated he feared going to the drug test facility because it
was in mother’s gang’s territory. He was allowed to drug test at a
different facility, and the results were negative.
       In early April 2019, Adam told his therapist that he
enjoyed visits with father but expressed concern about living with
him since Adam did not know him well. The Department
reported that Adam was benefitting from the “structure, support
and boundaries established” in his current placement “as
evidenced by his academic progress and emotional stability.”
       On May 7, 2019, the court held a combined jurisdiction and
disposition hearing. Mother pled no contest and the court
sustained the allegations of mother’s drug abuse and emotional
abuse of Adam. Minor’s counsel joined father’s counsel in
arguing that the court dismiss the allegation of neglect against
father based on his criminal record. Minor’s counsel argued, “It
seems to be historical information, based on prior
conduct. [¶] There does not seem to be any nexus between that
conduct and the current situation. [¶] I think father seems to




                                3
have really turned things around. [¶] He’s making a genuine
effort to bond with his son. [¶] His home has been
assessed. [¶] He’s, now, actually receiving unmonitored
visits. . . . which have been going very well.” Father’s counsel
agreed that the allegation about father’s criminal record was
based on “stale information” which was “over nine years old.”
The court dismissed the allegation against father.
         With respect to disposition, father’s counsel argued that
Adam was “bonding well with his father, and also with his
siblings. . . . [¶] Father and his current [fiancée] are well on
their way to . . . making sure Adam has not only his mental
health care needs, also his schooling needs taken care
of. . . . [¶] The home assessment . . . does not identify any
hazards in the home [or] anything that would present a risk to
the child. . . .” Father’s counsel asked that Adam be placed with
father, and argued that the Department had not “presented any
evidence, today, that there is any detriment to . . . Adam being
placed with father. [¶] In fact, the Department’s own conduct
demonstrates it does not believe there is any detriment by
liberalizing father’s visits in a very short time.”
         The Department and minor’s counsel argued that it was
premature to place Adam with father because Adam was still
getting to know him. According to the Department’s counsel, “the
father needs to keep doing what he’s doing, [the] transition to a
home of parent father, needs to be gradual to accommodate the
mental and emotional needs of this child, who has special needs.”
         The court removed Adam from the custody of both parents
under section 361, subdivision (c). Although the court found that
father was “the non[-]custodial parent,” it also applied section
361 in finding that Adam would be in substantial danger of harm




                                4
if “returned” to his parents’ care. As to father specifically, the
court only found that it would be “premature” to “return” Adam
to father “given the fact he does not have a history of a
relationship with his father.” Father timely appealed.
                           DISCUSSION
1.     The Juvenile Court Erroneously Failed to Apply
       Section 361.2
       Section 361.2, subdivision (a) provides that, when the
juvenile court removes a dependent child from a custodial parent,
the court “shall first determine” whether there is a parent who
wants to assume custody who was not residing with the child at
the time the events that brought the minor within the provisions
of section 300 occurred. If so, 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 argues, respondent concedes, and we agree that
section 361.2 governed father’s request that Adam be placed in
his custody. Instead of considering placement of Adam with
father as directed by section 361.2, the court removed Adam from
father under section 361, subdivision (c). However, that statute
governs the child’s removal from the physical custody of a
parent.3 “ ‘It does not, by its terms, encompass the situation of


3     Section 361, subdivision (c) provides that a dependent child
shall not be taken from the physical custody of a parent “with
whom the child resides at the time the petition was initiated,”
unless the court makes certain findings, including that there
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


                                 5
the non[-]custodial parent.’ ” (R.S. v. Superior Court (2007)
154 Cal.App.4th 1262, 1270.)
       As Adam did not reside with father at the time the petition
was initiated, the court was required under section 361.2 to place
Adam with father unless such placement would be “detrimental
to the safety, protection, or physical or emotional well-being of
the child.” The court did not apply the correct law to father’s
request for custody of Adam.
2.     The Error Was Not Harmless
       Although we have concluded the juvenile court erred in
failing to make a finding under section 361.2, subdivision (a),
“[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.” ’ ” (In re Abram L. (2013) 219 Cal.App.4th
452, 463.)
       Respondent argues the error was harmless in light of the
juvenile court’s “substantial danger” finding under section 361,
subdivision (c)(1), and the evidence that (1) father had been
absent from Adam’s life for almost 10 years, (2) father did not
take any action to protect Adam from mother, and (3) Adam
preferred to remain in his current placement. We decline to
imply a finding that father neglected Adam when it is clear from
the juvenile court’s comments at the hearing that it only found
that it would be premature to place Adam with father.
       “[W]here the trial court has failed to make express findings
the appellate court generally implies such findings only where
the evidence is clear. [Citations.]” (In re Marquis D. (1995)

by which the minor’s physical health can be protected without
removing the minor.” (§ 361, subd. (c)(1).)



                                 6
38 Cal.App.4th 1813, 1825.) Here, the evidence is not clear. In
support of the argument that an implied finding of detriment is
warranted, respondent cites to father’s criminal history which
was over 10 years old, and that “[f]ather knew [m]other was
capable of engaging in substance abuse and other abusive
conduct but remained absent from Adam’s life for nearly a
decade.” However, there was also evidence in the record that
mother aggressively threatened father when he tried to maintain
contact with Adam. This is not the clear-cut case in which we
may imply such a finding.
       According to the Department’s own reports and minor’s
counsel, minor was doing very well under the care of father
during unmonitored visits. In addition, there was evidence
father was receptive to services and cooperative with the
Department. The only concern cited at the disposition hearing
was that Adam did not yet know father very well. Respondent
now suggests that this alone justified a finding of detriment
under section 361.2. We disagree.
       An “alleged lack of a relationship between father and [a
child] is not, by itself, sufficient to support a finding of detriment
for purposes of section 361.2, subdivision (a). [Citation.]” (In re
Abram L., supra, 219 Cal.App.4th at p. 464.) Even when a child
prefers not be placed with a non-custodial parent, that preference
is outweighed by the “long-term benefits [minors] gain from
becoming an integrated member of a family.” (In re Patrick S.
(2013) 218 Cal.App.4th 1254, 1265.) Although a teenager is
entitled to have his wishes considered, “a child’s preference is not
the deciding factor in a placement decision . . . .” (Ibid.)
       We do not suggest whether the record would or would not
support a finding of detriment in this case. In light of Adam’s
mental health needs, there may be evidence of emotional



                                  7
detriment should he be forced against his will to move in to
father’s home, away from his current home and school where he
is doing well. This is not our decision to make. Given that the
juvenile court did not expressly consider placement with father
under section 361.2 and there was conflicting evidence as to
whether such placement would be detrimental to Adam, we
believe the better practice is to remand the matter to the juvenile
court to consider the facts within the appropriate statutory
provision.
       When the juvenile court proceeds under section 361.2,
subdivision (a), it is required to make a finding “in writing or on
the record of the basis for its determination under subdivisions
(a) and (b).” (§ 361.2, subd. (c).) This requirement is directed to
the juvenile court, not this court. (In re V.F. (2007)
157 Cal.App.4th 962, 973.) “This view comports with the long-
standing rule that the reviewing court is not the finder of fact.
[Citation.]” (Ibid.)




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                             DISPOSITION
      The juvenile court’s order dated May 7, 2019, removing
Adam from father’s custody under section 361 is reversed. The
case is remanded to the juvenile court with directions to hold a
new dispositional hearing to consider placing Adam with father
under section 361.2. Nothing in this opinion is intended to
foreclose the court from considering new evidence or changed
circumstances that may have arisen during the pendency of this
appeal. In all other respects, the dispositional findings and
orders are affirmed.


                                         RUBIN, P. J.


WE CONCUR:


           BAKER, J.


           KIM, J.




                                9
Filed 12/6/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION FIVE

In re ADAM H., a Person Coming             B298289
Under the Juvenile Court Law.
                                           (Los Angeles County
LOS ANGELES COUNTY                         Super. Ct. No. 19CCJP01248A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
                                         ORDER CERTIFYING OPINION
       Plaintiff and Respondent,             FOR PUBLICATION

       v.

JAVIER H.,
     Defendant and Appellant.


THE COURT:
      The opinion in the above-entitled matter filed on November
20, 2019, was not certified for publication in the Official Reports.
For good cause, it now appears that the opinion should be
published in the Official Reports and it is so ordered.




___________________________________________________________
RUBIN, P. J.                BAKER, J.             KIM, J.
