California Court of Appeals, Second District, Seventh Division
In re JONATHAN P., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, JUAN P., Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County No. CK70262, Philip L. Soto, Judge.
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Lori Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
WOODS, Acting P.J.
Appellant Juan P., (“Father”) the father of minor Jonathan P., appeals from an order of the juvenile dependency court denying Father’s Welfare and Institutions Code section 388,  petition seeking custody of Jonathan P., or in the alternative, family reunification services. Before this court, Father argues that the court erred in failing to assess his request for custody pursuant to section 361.2. Father claims that although he was not present at the disposition hearing, he is a non-offending, noncustodial parent and thus he was entitled to have the minor placed with him unless the Los Angeles County Department of Children and Family Services (the “Department”) proved that placement with Father would be detrimental to Jonathan P. Father complains that rather than applying the detriment standard under section 361.2, the court erroneously applied the section 388 best interest standard to his request. In any event, Father asserts that he was entitled to reunification services. As we shall explain, any harm resulting from the failure to apply section 361.2 to Father’s request for custody did not result in prejudice. At the time the court considered Father’s custody request, Jonathan P. had left his placement and his whereabouts was unknown. As a result, the court could not make any accurate determination of detriment because Jonathan P.’s condition was not known. This notwithstanding, we conclude that the court erred in denying Father reunification services. The whereabouts of Jonathan P. did not determine Father’s legal entitlement to reunification services. The court should have required the Department to evaluate whether
there were any available services that could be provided to Father notwithstanding Jonathan P.’s absence from the proceedings. The court’s failure to require that assessment requires reversal of the court’s order denying the section 388 petition. Accordingly, this matter is remanded for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Jonathan P. became the subject of dependency proceedings in mid-August 2012, when it was reported that Jonathan P.’s mother, Maria P. (“Mother”) and her companion, Victor C. had engaged in acts of domestic violence in front of Jonathan P. and his toddler half-sister Destiny C. The Department filed a petition pursuant to section 300, subdivisions (a) and (b) with respect to Jonathan, then 15 years old, and Destiny C. The petition alleged that Victor C. “repeatedly struck the mother’s face” with his fists on February 11, 2012, causing her to be injured, and resulting in his arrest. It was further alleged that Mother had engaged in a violent altercation and slapped another male companion, and the children were at risk of physical harm and danger as a result of the domestic violence between Mother and her male companions.
None of the children’s parents were present at the detention hearing on August 15, 2012. The whereabouts of the children and Mother were unknown at that time. The detention report indicated that Father had been deported to Mexico in 2011 and that his whereabouts was unknown. The court issued
protective custody warrants for the children, along with an arrest warrant for Mother. The court entered detention orders for Jonathan P. with respect to both Mother and Father.
On September 12, 2012, a pre-trial resolution conference was conducted. By September, Mother and the children had been located, and Jonathan P. was present during the proceedings. Jonathan P.’s counsel requested a continuance to investigate the case, and he reported a maternal grandmother might be available to care for the children. The court continued the matter for a contested adjudication, recalled the outstanding warrants for Mother and the children, and ordered a supplemental report from the Department about potential relative placement. Father’s whereabouts remained unknown; the court found notice to Father was proper based on a due diligence search.
Mother informed the Department that from the mid-2000s until 2011, Jonathan P. had been residing with Father under the terms of a family law custody order. The order provided joint legal custody to Mother and Father, with primary physical custody to Father. Under the terms of the custody agreement, Mother was entitled to have custody of Jonathan P. from Monday through Friday during Jonathan’s summer vacation. In 2011, Father sent Jonathan P. to visit Mother during his summer break. During Jonathan P.’s visit with Mother, Father was deported and as a result Jonathan P. had remained in Mother’s care.
According to the jurisdiction/disposition report, the Department had been unable to locate Father. The Department’s due diligence report reflected the social worker had discovered approximately 22 possible addresses for Father, and letters had been sent to all of them on September 4, 2012, the same day the due diligence report was signed. The Department recommended family reunification services for Mother and Victor, but none for Father.
The court conducted the adjudication and disposition hearing on October 9, 2012. None of the parents appeared at the hearing, and Father’s whereabouts remained unknown. The court found the children to be described by section 300, subdivisions (a) and (b). The court declared the children dependents of the juvenile court and removed them from the custody of Mother and Victor C. for suitable placement. Family reunification services and visitation were ordered only for Mother and Victor C. No reunification services were ordered for Father because his whereabouts was unknown at the time. Jonathan P. could not be placed with maternal grandmother because her home
had not been approved for his placement. Therefore, the court ordered the Department to continue to use its best efforts to place the children with any appropriate relative. The court scheduled a six-month review hearing for April 2013.
The Department’s six-month status review report revealed that Jonathan P. had been in several placements since the inception of the dependency case, and had experienced problems following rules in his foster homes. In early February 2013, Jonathan P.’s foster parents gave the Department a seven-day notice to have him moved. In response, on February 11, 2013, the social worker conducted a Team Decision Meeting (TDM). During the meeting, the social worker asked Jonathan P. to provide relative information for his paternal relatives, including Father’s contact information. Jonathan P. reported Father was then living in Chicago, and had previously been deported, but had returned illegally to the United States. Jonathan P. provided Father’s telephone number. A safety plan was developed for Jonathan P.; the social worker agreed to contact Father, but did not immediately do so.
The six-month review report also indicated that Jonathan P. had left school and had been absent from his foster home for 24 hours without permission. Jonathan P. was removed from his foster care placement and Jonathan P. was placed into a group home on March 6.
Thereafter, on March 12, 2013, Jonathan’s group home case manager notified the social worker that Jonathan P. had taken all of his belongings and left the group home with two male companions. Jonathan P. was subsequently involved in a car accident with five other minors. He was admitted to the hospital for treatment. His injuries required surgery on his pelvis. On March 16, 2013, Jonathan left the hospital on crutches while he was waiting to be discharged.
On March 18, 2013, the social worker contacted Father for the first time. Father reported that on March 16, Jonathan P. had called Father from the hospital using a friend’s cell phone. Jonathan P. told Father that he was doing well and his friends were visiting him at the hospital. Jonathan P. apparently told Father he was planning to leave the hospital because he did not want to return to the group home. Father told the social worker that he tried to dissuade Jonathan P. from leaving the hospital. Father said that he had not heard from Jonathan P. since then and told the social worker he would try to call the cell phone number of Jonathan’s friend.
Father also provided the social worker with his background and history. He reported that he had been deported to Mexico ...