California Court of Appeals, Second District, Third Division
In re D'ANTHONY D. et al., Persons Coming Under the Juvenile Court Law.
CHRISTIAN D., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
APPEAL from an order of the Superior Court of Los Angeles County, No. CK70406 Patricia Spear, Judge.
[Copyrighted Material Omitted]
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
Christian D. (father) appeals from a dispositional order denying his request for custody of his seven-year-old son D’Anthony and five-year-old daughter Dalia, who were removed from their mother’s custody under Welfare and Institutions Code section 361. Father contends the juvenile court erred by failing to consider his custody request under section 361.2, which requires the court to place a dependent child with the noncustodial parent unless the court finds the placement would be detrimental to the child’s safety, protection, or physical or emotional well-being. The Los Angeles County Department of Children and Family Services (the Department) contends section 361.2
applies to a “nonoffending” parent only, and father was precluded from requesting custody under the statute because the juvenile court sustained jurisdictional allegations against him concerning physical abuse of D’Anthony and failure to protect his children.
We conclude the juvenile court erred when it failed to consider father’s request under section 361.2, but the error was harmless in this case. In so concluding, we reject the Department’s contention that a parent is precluded from requesting custody under section 361.2 based on jurisdictional findings made under a preponderance of the evidence standard. As we shall explain, reading this purported “nonoffending” parent requirement into the statute would effectively undermine the constitutional due process mandate that a detriment finding be made by clear and convincing evidence before a noncustodial parent is denied custody under section 361.2. Nevertheless, because the record establishes the juvenile court made a finding under section 361, by clear and convincing evidence, that placing the children with father would pose a substantial danger to their physical health and well-being, we conclude the court’s error was harmless in this case. On this basis, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On February 15, 2013, the Department received a Child Protection Hotline referral alleging general neglect and drug use by mother. At the time, mother and the two children lived in a two bedroom apartment with the paternal grandparents, mother’s friend, and the friend’s three children. A year earlier, father moved to Colima, Mexico, after prepaying the family’s rent for a year. When the year expired, mother reportedly refused to help pay rent, and regularly sold her food stamps, leaving the children without food in the home. The reporting party also alleged that mother used methamphetamine and marijuana, drank alcohol, played loud music late into the night, and frequently left the children unattended to roam outside the apartment.
A Department social worker investigated the report and found the apartment messy, with clothing and toys scattered throughout the living room. There also were approximately six trash bags filled with alcohol bottles and other recyclables in the apartment. The kitchen appeared to have adequate food. Mother claimed she drank alcohol only occasionally and denied smoking methamphetamine or marijuana. D’Anthony, however, reported seeing mother smoke “ ‘weed or cigarettes.’ ” Mother submitted to a drug test, which came back positive for methamphetamine. On February 28, 2013, the Department removed the children from mother’s home.
On March 1, 2013, father telephoned the Department social worker concerning the children’s detention. Father ...