Los Angeles County Department of Children & Family Services v. Christian D.
230 Cal. App. 4th 292
| Cal. Ct. App. | 2014Background
- Dependency petition filed for two children after mother’s drug use and neglect allegations; father living in Mexico with new family; children removed from mother due to unsafe home conditions and mother’s drug use.
- Jurisdictional allegations against father included physical abuse of D’Anthony and failure to protect; initial detention ordered with supervised visits for mother.
- Children interviewed; D’Anthony and Dalia alleged father’s physical discipline in Mexico; father denied hitting them.
- DIF report in Mexico found father solvent and home adequate, but lacking criminal background check and full safety assessment; Department concerned about safety before releasing children to father.
- August 14, 2013 the juvenile court sustained jurisdictional allegations and denied father’s request for custody, finding substantial danger to the children’s health under section 361, with no section 361.2 custody finding.
- Appellant argues the court should have considered custody under section 361.2 despite jurisdictional findings; Court of Appeal holds error was harmless given substantial danger finding under section 361 and clear and convincing standard for detriment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether section 361.2 applies to nonoffending noncustodial parents | Department: no, applies only to nonoffending noncustodial parents | Father: should be eligible for 361.2 consideration so long as detriment is assessed | No implicit nonoffending requirement; but error harmless here |
| Whether failure to apply section 361.2 was prejudicial | Denial of 361.2 placement justified by sustained jurisdictional findings | Placement would not be detrimental; 361.2 should apply | Harmless error given clear and convincing detriment finding under section 361 for placement with father |
| Whether due process requires clear and convincing evidence before denying noncustodial placement | Precluded by lower standard due to jurisdiction | Due process requires clear and convincing detriment for removal | Court confirms due process requires clear and convincing detriment, but record supports detriment finding; error not reversible |
Key Cases Cited
- In re Christian P., 208 Cal.App.4th 437 (Cal. App. 2d Dist. 2012) (statutory interpretation of section 361.2 and intent to safeguard due process)
- In re J. W., 29 Cal.4th 200 (Cal. 2002) (statutory construction principles, plain meaning governs unless ambiguity)
- In re John M., 217 Cal.App.4th 410 (Cal. App. 2d Dist. 2013) (discusses nonoffending vs noncustodial considerations under 361.2)
- In re Nickolas T., 217 Cal.App.4th 1492 (Cal. App. 2d Dist. 2013) (rejects implicit nonoffending requirement for section 361.2; supports due process standards)
- In re A.A., 203 Cal.App.4th 597 (Cal. App. 2d Dist. 2012) (recognizes nonoffending/noncustodial requirements under 361.2 where appropriate)
- In re Marquis D., 38 Cal.App.4th 1813 (Cal. App. 1995) (due process requiring clear and convincing evidence for detriment)
- In re Abram L., 219 Cal.App.4th 452 (Cal. App. 2d Dist. 2013) (forfeiture rule and due process in 361.2 context; discretionary review on law)
- In re V.F., 157 Cal.App.4th 962 (Cal. App. 2d Dist. 2007) (discussion of 361.2; nonoffending concept discussed)
- In re Henry V., 119 Cal.App.4th 522 (Cal. App. 4th Dist. 2004) (due process and heightened proof in removal and detriment)