Filed 6/13/16 In re Jazmin H. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN


In re JAZMIN H., et al., Persons Coming                              B269370
Under the Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. DK10808)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

RAUL H.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Rudolph A.
Diaz, Judge. Affirmed.
         Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County
Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.


                                      ___________________________
       The juvenile court sustained a dependency petition alleging that Rita G.’s mental
health problems and drug use placed her children at risk of harm. The children’s
noncustodial parent, Raul H., requested custody of the children pursuant to Welfare and
Institutions Code section 361.2. The court, however, assessed his request under Welfare
and Institutions Code section 361, subdivision (c)(1), concluding that placing the children
with him would be a substantial danger to their safety and was therefore not appropriate.
       Father argues the trial court erred in assessing his custody request under section
361, subdivision (c), which governs the circumstances under which a child may be
removed from a custodial parent, rather than under 361.2, subdivision (a), which governs
a noncustodial parent’s request for custody of a child that has been removed from a
custodial parent. We affirm, concluding that although the court applied the wrong
statute, the error was harmless.

                 FACTUAL AND PROCEDURAL BACKGROUND
       A. Referral and Detention
           1. Events preceding the section 300 petition
       Rita G. (mother) was living in an apartment with her 22-year-old son Samuel H.,
her 15-year-old daughter Jazmin H. and her two-year-old son Alfonso H. The children’s
presumed father, Raul H. (father), did not reside with the family and was not involved in
their lives.
       On April 2, 2015, the Los Angeles County Department of Children and Family
Services (DCFS) received a referral alleging mother had stated she “wanted to kill herself
and take her children with her.” Mother was placed on a psychiatric hold at an urgent
care facility, where she received a urinalysis that tested positive for marijuana and
methamphetamine.
       On April 3, 2015, an employee of the facility informed DCFS mother was
returning home. The employee explained that mother’s children had not been present
when she disclosed her suicidal thoughts, and that she had remained calm and
cooperative throughout her hospitalization. The employee also stated that mother denied


                                             2
having any suicidal ideations when she left the hospital, and had promised to follow
through with mental health services. The employee confirmed mother had tested positive
for methamphetamine and marijuana.
       DCFS travelled to mother’s apartment to interview the family about the referral
allegations. Mother explained that the incident began after she informed her “GAIN”
representative (see Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1334
[describing “GAIN” as a California “work program for welfare recipients”]) she wanted
mental health counseling. The representative instructed mother to fill out a questionnaire
in which she disclosed she had thought about killing herself and “taking her kids with
her.” Mother informed DCFS that despite the statement in her questionnaire, she had
never actually intended to harm her children. Mother explained that she occasionally felt
“overwhelmed” by Alfonso, who exhibited “autistic symptoms” that included limited
speech capabilities and an inability to follow directions. Mother stated that Alfonso was
currently working with two therapists to address his issues. Mother also admitted she had
been taking drugs to “cope” with her depression and loneliness.
       Mother stated that she had separated from father when Jazmin was one year old.
Mother briefly renewed her relationship with father in 2011, at which time she became
pregnant with Alfonso. Mother reported that father had been physically and emotionally
abusive toward her, and believed the family was better off without him. Father’s abuse
included calling mother a “worthless bitch” and throwing food at her. Mother also stated
that father was not involved in the children’s lives, and had never helped her support
them. According to mother, father had previously “failed to reunify” with his two other
children during “a prior DCFS case.”
       Jazmin informed DCFS mother had previously told her she “felt like committing
suicide but that was in the past.” Jazmin stated that mother had never actually attempted
to hurt herself or made any recent statements about wanting to do so, and had never
threatened to hurt Jazmin or her siblings. Jazmin explained mother was frustrated with
Alfonso, who “throws toys everywhere” and “acts crazy.” Jazmin had never seen mother
under the influence of drugs, and did not believe that she took drugs. Jazmin also stated

                                             3
that she had never been subjected to any physical or mental abuse, and that she felt safe
around mother. Jazmin reported her father was “not involved in their lives,” and that she
had not seen him in more than a year.
       DCFS also interviewed Samuel, who said he was not aware that mother had
sought mental health services or that she felt like she wanted to hurt herself. Samuel also
said he had never seen mother use drugs, but had smelled marijuana in the car. He stated
that his father was not involved in the family’s life, and that he did not want to have any
contact with father. Samuel said he was his willing to care for his siblings with help from
his mother’s relatives.

              2. Section 300 petition and detention
       On April 14, 2015, DCFS filed a petition alleging Jazmin and Alfonso fell within
the jurisdiction of the juvenile court under Welfare and Institution Code section 300,
subdivision (b).1 Count one of the petition alleged mother had a history of substance
abuse that endangered the children’s “physical health and safety.” Count two alleged
mother had a history of mental and emotional problems that rendered her unable to care
for the children, and placed them at “risk of serious physical and emotional harm.”
       DCFS filed a detention report in support of the petition summarizing the results of
its initial investigation. The report stated that DCFS had been unable to locate father,
whose whereabouts were unknown. The report contained a printout from the “California
Law Enforcement Telecommunications System” (CLETS) (see People v. Martinez
(2000) 22 Cal.4th 106 [discussing CLETS]) showing father had prior felony convictions
for drug possession (1996, 2006), robbery (1999), possession of a firearm by a felon
(1999) and violation of parole (2001, 2003, 2007). The CLETS report also listed several
misdemeanor convictions and juvenile matters.
       In its evaluation and summary, DCFS concluded that mother’s substance abuse
and mental health issues, combined with Alfonso’s young age and developmental

1
        Unless otherwise noted, all further statutory citations are to the Welfare and
Institutions Code.

                                              4
problems, placed the family at high risk of abuse. DCFS recommended that the court
detain the children from mother and place them with Samuel.
       At the detention hearing, the juvenile court found DCFS had provided prima facie
evidence that the children were persons described in section 300 and ordered them
detained. The court ordered DCFS to provide mother reunification services, and
scheduled a jurisdictional hearing.

       B. Jurisdiction and Disposition
           1. Summary of Jurisdiction/Disposition Report and the jurisdiction hearing
       On May 18, 2015, DCFS filed a “Jurisdiction/Disposition Report” stating that
Jazmin and Alfonso had been placed with Samuel in mother’s home. Mother had agreed
to leave the home, and was residing with the maternal grandmother. DCFS reported that
it had still not located father.
       The jurisdiction report summarized additional interviews the agency had
conducted with the family. Mother informed DCFS she had started dating father when
she was 13 years old, and had remained in a relationship with him for 12 or 13 years.
Mother was 16 years old when she gave birth to Samuel, and 22 years old when she gave
birth to Jazmin. Mother said she ended her relationship with father because he was
“always in prison.” Mother also stated father was in a gang named “Street Saints.”
Mother reported that Alfonso had recently been diagnosed with autism, and that Jazmin
had been placed in special education classes at her school. Mother expressed concern
about Jazmin’s mental health, explaining that she hoped the child would receive
treatment and services.
       DCFS reported that it had not interviewed father because he had made no effort to
participate in the proceedings or visit his children. According to DCFS, its investigation
revealed that father had an “extensive criminal history including felony convictions[] for
possessing of a controlled substance, robbery, weapons and assault.” These convictions
had resulted in “several prison sentences.” DCFS also reported father had “failed to
reunify with two other children in a previous dependency case, [had] failed to provide for


                                             5
the basic need of his children, and [had] failed to maintain contact for at least 6 months.”
DCFS concluded that although father was not “a named parent on the petition, it [would]
certainly not be in the children’s best interest for [father] to have unlimited access to his
children.” DCFS recommended that if father did choose to contact Jazmin or Alfonso,
the court should only provide him enhancement services “until . . . he can address any
and all issues that may place his children at risk of harm.”
       At the jurisdiction hearing, the court sustained the section 300 petition and ordered
DCFS to provide reunification services for mother only. The court scheduled a
disposition hearing for June 22, 2015.

            2. Summary of “Addendum/Disposition Report” and disposition hearing
       On June 22, 2015, DCFS provided an “Addendum/Disposition Report” updating
the court on the agency’s “attempts to notice father.” The report included a “Declaration
of Due Diligence” describing the agency’s efforts to contact father, all of which were
unsuccessful. According to DCFS, father remained “uninvolved, and disinterested in his
children’s lives.” The agency requested that the court: (1) find due diligence as to father
had been completed; (2) order the children “suitably placed”; (3) provide mother
reunification services and monitored visitation; and (4) provide father enhancement
services.
       Following a hearing, the court entered an order removing the children from the
mother’s custody. The court also ordered DCFS to continue providing mother
reunification services, but denied services to father based on his absence from the
proceedings. (See § 361.5, subd. (b)(1) [“Reunification services need not be provided to
a parent . . . when the court finds . . . That the whereabouts of the parent or guardian is
unknown”].) The court scheduled a progress hearing for September 21, 2015, and a six
month review hearing (see § 366.21, subd. (e)) for December 18, 2015.




                                              6
       C. Denial of Father’s Custody Request
          1. Father’s initial request for custody
       On September 21, 2015, DCFS filed an “Interim Review Report” informing the
court that father had contacted the agency and said he wanted to be “involved in visiting
with the children and . . . reunify with [them].” The interim report included a summary
of father’s prior dependency history. On October 27, 2011, the court had sustained a
petition against father alleging he had failed to provide his then four- year-old daughter
Sienna H. and his then two-year-old daughter Scarlett H. the “necessities of life,
including food, clothing, shelter and medical treatment as father has been incarcerated on
numerous occasion of which some have been drug related.” The 2011 petition further
alleged that father’s “failure to provide” and “history of incarcera[tion]” placed the
children at risk of harm. Although father was initially provided reunification services, his
services were terminated in December of 2012, and the children were placed with their
mother.
       At the progress report hearing, the court announced it intended to authorize
reunification services for father. Father’s counsel, however, informed the court that
father wanted immediate custody of the children. The court ordered DCFS to interview
father and make a recommendation on the issue. The court scheduled a hearing for
October 20, 2015.

       2. Court’s denial of father’s custody request
       On October 20, 2015, DCFS provided a report summarizing its interview with
father, who was then working full time and living with the paternal grandmother. Father
admitted he had a “past criminal history” that included convictions for “fire arms and
conspiracy.” He denied, however, any prior convictions for substance abuse, which
conflicted with the information in his CLETS report. In response to questions about his
2011 dependency case, father stated that he was “not present when the case got opened
and felt that he should not have had to fulfill [c]ourt requirements because it was not his
fault.” Father stated that the juvenile court had ordered him to attend a parenting class,


                                              7
which he had done, and to participate in a substance abuse program and drug testing.
Father stated that although he had not complied with his case plan in the 2011 matter, he
did intend to comply with whatever requirements the court might impose as a condition
of reunifying with Jazmin and Alfonso.
        DCFS reported that father’s prior dependency case file indicated he had failed to
comply with drug testing requirements, resulting in his termination from the drug
program for “lack of compliance.” Father had also failed to demonstrate compliance with
an order requiring individual counseling. DCFS confirmed that the children at issue in
the 2011 petition had reunified with their mother, and that father’s reunification services
were terminated.
        DCFS recommended that Jazmin and Alfonso remain placed with Samuel, and
that both parents continue to receive reunification services. DCFS also recommended
that the court order father to comply with a substance abuse program with random drug
testing.
        At the October 20th hearing, the court informed the parties that it intended to
provide father reunification services. Father’s counsel objected to reunification services,
explaining that father wanted the children “released to his custody and to have family
maintenance services in place.” Counsel argued that placement with father was
appropriate because he was a “non-offending” parent under the current petition, and
because no “new allegations had been brought against him.” Counsel contended that “the
lack of new charges against father after a lengthy investigation by the Department” was
“evidence” that he had resolved all of the issues that gave rise to his dependency case in
2011.
        Counsel for Alfonso and Jazmin opposed father’s custody request, arguing that
returning the children to his care would be improper under section 361.2: “Your honor,
[under] 361.2, even if the father is non-offending, . . . there is a detriment to returning the
children to his care at this time. . . . This father has an unresolved case history. He had
reunification services with two other children for . . . criminal activity and for drugs. He
did not participate in the services. There [i]s no evidence that father has addressed or

                                               8
resolved the issue that brought those children into court. Further, father has not had
contact with the children [in this case] for quite some time. I think it would be premature
to release the children to him.”
       DCFS also opposed father’s request, arguing that “pursuant to 361.2, the
Legislature absolutely envisioned a scenario where a . . . non-offending parent can still
pose a detriment to that child and that is this case.” Counsel for DCFS explained the
agency “could accommodate . . . father and file a petition [against him, but] though[t] he
would want reunification services. . . . I would ask the court to find a detriment under
361.2.”
       In response, the court explained that DCFS “certainly could have filed a petition
and requested no [reunification services] specifically as to [father] because he does have
a prior child who was removed and not returned. So the Department . . . was pretty
generous in recommending that he be given an opportunity for reunification services.
I’m going to deny father’s request. . . . I don’t think it’s appropriate.” The court was then
asked to clarify whether its statements constituted a “find[ing] that there’s detriment. . . .”
The court stated: “I have to make findings. [¶]. . . [¶] The court has considered the
evidence , . . . [and] finds by clear and convincing evidence pursuant to section 361(c)
that there is a substantial danger if the children were returned home to the physical health,
safety, protection, physical or emotional well-being of the children. There are no
reasonable means by which the children’s physical health can be protected without
removing the children from father’s physical custody. The court orders the children are
removed from father’s custody.”
       The court also ordered father “to participate in the following reunification services
case plan . . . A DCFS court-approved program for drug and alcohol services, a full drug
and alcohol program with aftercare, . . . random or on-demand drug and alcohol testing.
Father shall also participate in individual counseling to address all case issues, including
those contributing to father’s lengthy criminal lifestyle and unresolved substance abuse
history, as well as father’s neglect to parent any of his children, including father’s family
reunification services being terminated in 2011 for two older children.”

                                               9
                                       DISCUSSION
       Father appeals the court’s order denying him custody of Alfonso and Jazmin.
Father contends we must reverse the juvenile court’s ruling because it erroneously
assessed his custody request under section 361, subdivision (c), which is a removal
statute applicable to custodial parents, rather than section 361.2, which governs a
noncustodial parent’s request for custody of a child who has been removed from the
custodial parent.

       A. Summary of Relevant Statutes
       “The dependency statutory framework distinguishes between a parent with whom
the child was residing at the time the section 300 petition was initiated (custodial parent),
and a parent with whom the child was not residing at the time the events or conditions
arose that brought the child within the provisions of section 300 (noncustodial parent).
(§§ 361, subd. (c), 361.2, subd. (a).)” (In re V.F. (2007) 157 Cal.App.4th 962, 969
(V.F.).) Section 361, subdivision (c) describes several circumstances under which a child
may be removed from the physical custody of a custodial parent. Subdivision (c)(1)
provides, in relevant part: “A dependent child may not be taken from the physical
custody of his or her [custodial parent or parents] . . . unless the juvenile court finds clear
and convincing evidence of any of the following circumstance . . . [¶] (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.”
       Section 361.2, in contrast, governs the child’s placement following his or her
removal from a custodial parent. Subdivision (a) of the statute requires the court to
initially consider placement with a noncustodial parent: “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


                                              10
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) further requires the court to make “a finding either in writing or on the
record of the basis for its determination under subdivisions (a).” Although the statute
does not specify the burden of proof necessary to deny a noncustodial parent’s custody
request, our courts have held that “[t]o comport with due process, the detriment finding
[under section 361.2, subdivision (a)] must be made under the clear and convincing
evidence standard.” (In re C.M. (2014) 232 Cal.App.4th 1394, 1400; see also In re
D’Anthony D. (2014) 230 Cal.App.4th 292, 302 (D’Anthony D.) [“there [must be] clear
and convincing evidence of detriment before placement with a noncustodial parent can be
denied”].)
       In sum, despite the similar standards set forth in section 361, subdivision (c)(1)
and section 361.2, subdivision (a), the statutes serve separate purposes and apply to
different categories of parents. Section 361, subdivision (c) governs the removal from a
custodial parent and “‘does not, by its terms, encompass the situation of the noncustodial
parent.’” (V.F., supra, 157 Cal.App.4th at p. 969.) Section 361.2, subdivision (a), on the
other hand, “is not a removal statute” (ibid.), but rather governs “placement [of a
removed child] with a noncustodial parent.” (D’Anthony D., supra, 230 Cal.App.4th at
p. 303 [“section 361 applies to a custodial parent, while placement with a noncustodial
parent is to be assessed under section 361.2”]; see also R.S. v. Superior Court (2008) 154
Cal.App.4th 1262, 1270 [§ 361, subd. (c) “does not . . . encompass the situation of the
noncustodial parent.’ [Citation.] . . . . Rather, section 361.2 governs the child’s . . .
placement with the noncustodial parent”].)

       B. Although the Court Erred in Applying Section 361, Subdivision (c), the
          Error Was Harmless

       DCFS does not dispute mother was a custodial parent of Jazmin and Alfonso, and
that father was a noncustodial parent. Nor does it dispute that because father was a


                                               11
noncustodial parent seeking custody of children who had been ordered removed from
their custodial parent, the court should have assessed his custody request under section
361.2, subdivision (a), rather than under section 361, subdivision (c)(1). DCFS contends,
however, that the record demonstrates there is no reasonable probability the court would
have reached a different result had it applied section 361.2, rendering the court’s error
harmless.
       “Before any judgment can be reversed for ordinary error, it must appear that the
error complained of ‘has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)
Reversal is justified ‘only when the court, “after an examination of the entire cause,
including the evidence,” is of the “opinion” that it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the
error.’ [Citations.] A reasonable probability for these purposes does not mean an
absolute probability; the likelihood that the error affected the outcome need not be greater
than the likelihood that it did not. [Citation.]” (In re J.S. (2011) 196 Cal.App.4th 1069,
1078-1079 (J.S.).) Our courts have previously held that this “harmless error” analysis is
applicable to the specific type of error at issue in this case: improperly assessing a
noncustodial parent’s custody request under section 361, subdivision (c)(1), rather than
section 361.2, subdivision (a). (See D’Anthony D., supra, 230 Cal.App.4th at p. 303;
In re Abram L. (2013) 219 Cal.App.4th 452, 463-464 [erroneous decision to apply
section 361 rather than section 361.2 could not be “reverse[d] . . . unless . . . ‘“it [was]
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error”’”]; cf. J.S., supra, 196 Cal.App.4th at pp. 1079-1080
[juvenile court’s failure to make findings required under § 361.2, subd. (c) subject to
harmless error analysis].)
       In D’Anthony D., supra, 230 Cal.App.4th 202, the court found that a juvenile
court’s misapplication of section 361 was harmless under circumstances analogous to
those presented here. DCFS filed a section 300 petition alleging mother had physically
abused her two children, placing them at substantial risk of harm. The father, a
noncustodial parent living in Mexico, requested that the children be released to his

                                              12
custody. During a subsequent DCFS interview, both children stated that father had
previously struck his son with a belt. The son provided similar statements at the
disposition hearing, testifying that father had recently struck him in the face and hit him
with a belt.
       The juvenile court denied father’s custody request, stating that it had found “‘by
clear and convincing evidence there exist[s] a substantial danger to the children’s
health.’” (D’Anthony D., supra, 230 Cal.App.4th at p. 297.) The court explained that
after hearing the child’s testimony, it was “‘not comfortable releasing [the children] to
[father] period.’” (Ibid.) Following the hearing, 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.” (Ibid.) Father appealed the order, arguing “that
the juvenile court erred by failing to consider his request for custody under section
361.2.” (Id. at p. 298.)
       The appellate court agreed that because father was a noncustodial parent, the
juvenile court should have assessed father’s custody request under section 361.2, rather
than section 361, subdivision (c)(1). The court further concluded, however, that the error
was harmless “[i]n 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.”
(D’Anthony D., supra, 230 Cal.App.4th at p. 303.) In its analysis, the court noted the
“similarity between” the “substantial danger” finding necessary to remove a child under
section 361, subdivision (c), and the “detrimental” finding necessary to deny custody to a
noncustodial parent under section 361.2. (Ibid.) The court further explained that the
record demonstrated the juvenile court had made an “unequivocal” finding against father
“under section 361” (id. at p. 304), and that the finding was supported by evidence he had
physically abused his son. The court concluded that “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.”
(Id. at p. 304.)

                                             13
       We agree with D’Anthony D.’s analysis, which applies equally here. As explained
in D’Anthony D., the mandatory finding necessary to remove a child from a custodial
parent under section 361, subdivision (c)(1) is very similar to the finding necessary to
deny a noncustodial parent custody request under section 361.2, subdivision (a). Under
section 361, subdivision (c)(1), the juvenile court must find by clear and convincing
evidence that returning the child to the custodial parent would be a “substantial danger to
the physical health, safety, protection, or physical or emotional well-being of the child.”
Under section 361.2, subdivision (a) the juvenile court must find by clear and convincing
evidence that placing the child with the noncustodial parent “would be detrimental to the
safety, protection, or physical or emotional well-being of the child.” To the extent the
two standards differ, section 361, subdivision (c)(1)’s requirement of a “substantial
danger” findings appears to impose a stricter standard than the finding of “detriment”
required under section 361.2.
       In this particular case, as in D’Anthony D., the trial court made an express finding
that placing the children with father would be a substantial danger to their “physical
health, safety, protection, physical or emotional well-being.” The court’s decision was
based on evidence in the record showing that: (1) father had previously failed to reunify
with two other children who he had neglected; (2) father had an extensive criminal
history that included firearms offenses, drug offenses, violent crimes, parole violations
and several periods of incarceration; and (3) father had previously neglected Alfonso and
Jazmin, and had not seen them for approximately one year.
       In view of this evidence, and the court’s express finding against father under
section 361, subdivision (c)(1), it is not “reasonably probable” the court would have
made a different factual finding had it considered whether the placement would be
detrimental to the children’s well-being under section 361.2.




                                             14
                                    DISPOSITION

      The juvenile court’s orders are affirmed.




                                                  ZELON, J.




We concur:




      PERLUSS, P. J.




      BLUMENFELD, J.




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

                                           15
