Opinion
Jacob M., father (Father) of Julien H., appeals from a dispositional order relating to Father made pursuant to Welfare and Institutions Code section 361, subdivision (c)(1).
FACTUAL AND PROCEDURAL BACKGROUND
Julien (born in 2010) lived with his mother, Janelle H.,
In February 2015, the Los Angeles County Department of Children and Family Services (DCFS) received an anonymous referral indicating that the mother regularly left Julien for several days a week with his grandmother who smoked cigarettes in the child’s presence, left prescription medicine accessible to him and allowed him to eat candy. The report also indicated that Julien’s mother did not provide him with proper dental or medical care.
When the social worker responded to the mother’s home, she denied the allegations, and she reported problems with Father’s violent and angry behavior, including that he abused drugs and alcohol and suffered from mental health problems. The mother also told the social worker that Father had a pending child abuse referral involving Julien’s half sibling (M.) based
The social worker unsuccessfully attempted to contact Father. In late March 2015, Father called the social worker, stating that he had not returned her phone calls because he had been incarcerated. Father said he was bipolar and had been taking medication for the condition, but was considering discontinuing the medication after consulting with his doctor. Father conceded that he used marijuana, and agreed to drug test.
DCFS discovered that the parents had a family law order that did not contain any express legal or physical custody determination, but nonetheless awarded Father unmonitored visitation with Julien every Saturday from 2:00 p.m. to 7:00 p.m. The mother also reported that she had agreed to allow Father to have unmonitored visits with Julien for the entire weekend every other week.
The social worker expressed concerns about Father’s ongoing unmonitored visits with Julien and requested that the mother obtain an order in the family law court for sole custody of the child and a modification of the visitation order to require monitored visits for Father. Although the mother agreed to seek a modification of the family law order, she failed to do so.
On June 22, 2015, DCFS obtained an order to remove Julien from Father pending the detention hearing. Thereafter, DCFS filed a section 300 petition under subdivisions (b) and (j) alleging Julien was at risk based on Father’s conduct. Among other allegations, the petition alleged that Father abused marijuana, alcohol, and prescription medication and that he had mental and emotional problems that rendered him incapable of providing regular care for the child. It also alleged that the mother knew or should have known of Father’s substance abuse but failed to protect the child.
In its jurisdiction/disposition report, DCFS reported Father’s monitored visits were inconsistent, and the report described the parents as “aggressive” towards each other. Father was participating in a substance abuse program; however, he was not required to test as part of the program unless he appeared to be under the influence. Father was also participating in an individual drug counseling program and domestic violence counseling and had enrolled in alcohol and drug testing, but he had missed all seven drug/alcohol tests.
On September 30, 2015, the juvenile court conducted the combined jurisdiction/disposition hearing. Although the parents requested that the court terminate jurisdiction, the court found by a preponderance of the evidence, that allegations j-1, b-2 and b-3 were true,
Father appealed.
DISCUSSION
On appeal, Father does not challenge the order declaring Julien a dependent of the juvenile court. Rather, Father’s only contention is that the order limiting his access to Julien must be reversed because the court had no authority to “impose restrictions on his parental rights.”
Section 361, subdivision (c) 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).) At the disposition hearing, the court declared Julien a dependent of the court and ordered him removed from Father pursuant to section 361, subdivision (c). Although Julien and Father have had unmonitored weekend visits, Julien did not reside with Father. Consequently, the court could not remove Julien from Father’s physical custody under section 361, subdivision (c)(1) because Julien was not residing with him when the petition was initiated. (In re Dakota J. (2015) 242 Cal.App.4th 619, 628 [195 Cal.Rptr.3d 200] (Dakota J.) [holding 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”]; In re V.F., supra, 157 Cal.App.4th at p. 969 [§ 361, subd. (c) “ ‘ “does not, by its terms, encompass the situation of the noncustodial parent” ’ ”].) Thus, as a matter of law, section 361, subdivision (c) did not apply.
Notwithstanding this conclusion, reversal is unwarranted unless the error resulted in prejudice, 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. (See, e.g., Dakota J., supra, 242 Cal.App.4th at pp. 630-632.)
Father contends that he suffered prejudice because the order denied his fundamental right to parent his child and the order would disadvantage him in future matters. The underlying premise of this argument is that he suffered prejudice because no other authority grants the court the power to limit his
As the court in Dakota J. implicitly acknowledged,
Father does not argue that in order to justify exercise of its power under section 361, subdivision (a) and section 362, subdivision (a), the dependency court must make a different factual finding or apply a higher standard of proof than would be required under section 361, subdivision (c). Nor does he argue that the factual findings made by the dependency court are not supported by substantial evidence. Accordingly, Father has failed to show that the court’s reliance on section 361, subdivision (c) was prejudicial. Therefore, we order the juvenile court to amend the order to reflect that it is made pursuant to section 361, subdivision (a) and section 362, subdivision (a).
DISPOSITION
The order is affirmed, and the matter is remanded for the juvenile court to amend its order to reflect that it is made pursuant to section 361, subdivision (a) and section 362, subdivision (a).
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Janelle H. is not a party to this appeal.
On March 30, 2015, Father tested positive for marijuana.
In allegations b-1 and j-1, the petition alleged Father drove under the influence and collided with a parked vehicle, causing M. to sustain injuries that required emergency medical treatment. The petition further alleged in b-3 that Father had mental and emotional problems and failed to take his prescribed medication and that as a result he was unable to provide care to the minor.
The court dismissed allegation b-1.
The dependency court conducted additional review hearings in January, April and July 2016 but did not change the orders relating to Julien and set the matter for another hearing for September 30, 2016.
To the extent Father challenges the court’s predetention removal and detention orders that challenge is moot because those orders were superseded by the disposition orders and there is no effectual relief that may be provided by this court. (See In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1420 [57 Cal.Rptr.3d 863] [a detention order is by its nature temporary; it lasts only until the court decides placement at the disposition healing].)
To the extent Father suggests that Dakota J. holds that an error in removing a child from a noncustodial parent based on section 361, subdivision (c) is prejudicial per se. Father misreads Dakota J. The appellate court in Dakota J. did not conclude that the error was per se prejudicial. Instead the court found prejudice based on the parent’s showing of actual prejudice in that case—the removal order jeopardized arrangements the mother had made for the children to live with a relative who had provided a stable home for five years. (Dakota J., supra, 242 Cal.App.4th at pp. 630-632.)
This matter has also generated commentary from legal analysts. (See Menetrez, Protect Kids from Abusive Noncustodial Parents, S.F. Daily J. (Sept. 1, 2016) p. 7 [recognizing the dearth of legal guidance on this issue, and urging the Legislature to amend the Welf. & Inst. Code to expressly provide for removal from noncustodial parents and to identify the findings required to support the order].)