Los Angeles County Department of Children & Family Services v. Abel L.
219 Cal. App. 4th 452
| Cal. Ct. App. | 2013Background
- Two boys (Abram, 15; Jacob, 13) were detained after mother threatened them with a knife/glass and had a history of physical abuse and mental-health problems; the juvenile court removed the children from mother and placed them in foster care.
- Father was a noncustodial parent; he had intermittent visitation (about every other Saturday), lived with a girlfriend, and said he was arranging larger housing to take the boys.
- The Department considered placing the children with several relatives, including father; children expressed reluctance to live with father while his girlfriend remained in the home.
- At the jurisdictional/dispositional hearing the court removed the children from mother under Welf. & Inst. Code §361(c), dismissed the only count against father, ordered services for father, and gave custody to the Department for placement. The court denied placement with father as “premature” but did not cite or make findings under §361.2.
- Father appealed, arguing the court failed to apply §361.2 and neglected to make the required clear-and-convincing finding that placement with a noncustodial parent would be detrimental.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the juvenile court was required to consider Welf. & Inst. Code §361.2 before denying physical custody to a noncustodial parent | The Department argued placement with father was premature and supported by concerns (alcohol history, uninspected home, girlfriend conflict, father’s limited involvement) — implying §361(c) removal was appropriate | Father argued the court failed to apply §361.2(a)/(c) and did not make the statutorily required clear-and-convincing finding that placement with him would be detrimental | Reversed and remanded: court erred by not applying §361.2 or making express findings; remand required for proceedings under the correct statutory standard |
| Whether father forfeited appellate review for not raising §361.2 below | Department: father forfeited because issue was not properly preserved | Father: challenged mainly legal issues and counsel argued at hearing that Department failed to show substantial risk of detriment | Court declined to find forfeiture; exercised review because issue raises legal questions and counsel raised detriment argument |
| Whether appellate court may supply implied findings of detriment where trial court failed to make required §361.2 findings | Department: implied findings could be made because record arguably supports detriment | Father: implicit findings inappropriate where court did not apply §361.2 | Court rejected implied findings, following precedent that express findings are required under §361.2 and remand is the better practice |
| Whether error was prejudicial (miscarriage of justice) | Department: various facts supported detriment (alcohol history, uninspected home, girlfriend conflict, father uninvolved) | Father: allegations against him were dismissed, he produced negative drug tests, said repairs were complete and girlfriend not living with him, and limited contact alone is not sufficient to show detriment | Court found reasonable probability a more favorable result for father would have occurred had §361.2 been applied; error was prejudicial and required reversal |
Key Cases Cited
- In re V.F., 157 Cal.App.4th 962 (Cal. Ct. App.) (juvenile court may not remove children from a noncustodial parent under §361(c); §361.2 governs noncustodial placement)
- In re Marquis D., 38 Cal.App.4th 1813 (Cal. Ct. App.) (clear-and-convincing standard required for findings affecting noncustodial parent; implied findings unwarranted where wrong statute applied)
- In re Isayah C., 118 Cal.App.4th 684 (Cal. Ct. App.) (nonoffending noncustodial parent has protected interest; detriment finding must be clear and convincing)
- In re J.S., 196 Cal.App.4th 1069 (Cal. Ct. App.) (prejudice test and remand where required statutory findings were not made)
- In re John M., 141 Cal.App.4th 1564 (Cal. Ct. App.) (child’s wishes and lack of relationship with parent not alone sufficient to show detriment under §361.2)
- In re A.C., 197 Cal.App.4th 796 (Cal. Ct. App.) (transcript controls over minute order; court should correct clerical errors)