Opinion
A153074
05-01-2018
G.D., et al., Petitioners, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J16-00108)
G.D. (Mother) and J.D. (Father; together, Parents), parents of seven-year-old B.D., brought separate writ petitions to try to avert a hearing under Welfare and Institutions Code section 366.26 that had been set for March 21, 2018. B.D. was taken from them in January 2016, at age five, because their home was dirty and unsanitary. Father contends the court's findings were unsupported by substantial evidence, and by conflating a supplemental petition with an 18-month review, the court failed to make a jurisdictional finding on the supplemental petition, improperly proceeded to disposition on the supplemental petition, failed to give required notice of the disposition hearing, and failed to make necessary findings on disposition of the supplemental petition. Mother, too, contends necessary findings for the section 387 petition were omitted, the evidence was insufficient to support implied findings, and the court erred in combining an unnoticed disposition hearing with the jurisdictional findings on the section 387 petition. We agree there were procedural irregularities, but we do not agree they require a remand to juvenile court for reconsideration of the section 387 petition. Having stayed the hearing set for March 21, 2018 under section 366.26, we now lift that stay and deny the writ petitions.
Further unspecified statutory references are to the Welfare and Institutions Code.
We refer to it alternately as a "supplemental" or "section 387" petition.
We stayed the hearing because of briefing delays occasioned by an incomplete record, which had to be augmented.
I. BACKGROUND
B.D. is the youngest of five sons of his parents, with three of the sons now being adults. In January 2016 two of the adult sons lived with their Parents and the two younger children. The family came to the attention of the Contra Costa County Children and Family Services Bureau (Bureau) on January 25, 2016, after the police were called to the home because an adult brother had been threatening to throw A.D., B.D.'s 15-year-old brother, out on the street, having thrown his clothes outside already. When the police arrived they found the home in extremely unsanitary condition and called the Bureau.
The social worker who went to the house noted a strong stench of urine and feces inside from the five indoor cats and two or three dogs. There was little food in the house for the family. Bags of garbage, including perishable waste, were stored inside the home. The beds in the children's rooms were either covered with heavily soiled bedding or had no bedding at all, although the mattresses were very heavily soiled. Dirty water stood in the bathtub, which did not have a functional drain.
A.D. and B.D. were both removed from the home that evening, and were formally detained on January 28, 2016. The siblings were placed separately because Mother reported that A.D. had abused B.D. in the past. We are concerned here only with B.D.'s dependency.
In May 2017, A.D. ran away from his placement in a group home in Turlock. As of the hearing in November 2017, his whereabouts were unknown. It was believed he may have been involved in gang activity in Antioch. He will turn 18 in June 2018. A.D.'s status is not before us on these writ petitions.
On March 2, 2016, both parents pled no contest to mediated allegations that the children, while in their care and custody, had "been residing in unsafe and unsanitary conditions, thereby placing [them] at risk of serious harm." The court assumed dependency jurisdiction over both minors under section 300, subdivision (b). The family had been involved with children's protective services twelve times since 1999, with several of the referrals—which ranged from general neglect, to failing to give one of the children prescribed medication, to an attack on B.D. by one of the family's pit bulls, to physical and emotional abuse—being deemed unfounded or inconclusive. But two times, in 2008 and 2011, the children had been declared dependents based on allegations of physical abuse of an older brother and general neglect of the children. Several of the reports on prior referrals noted the "filthy" and unsanitary condition of the home. B.D. was declared a dependent only once before, in 2011, but there were additional referrals involving him between then and January 2016.
On April 11, 2016, after a contested disposition hearing, the court ordered B.D. and A.D. legally removed from the parental home. It ordered B.D. placed into foster care with family friends in Brentwood and A.D. placed into a group home in Solano County.
At the six-month review on September 21, 2016, the social worker reported that B.D. was engaging in problematic behaviors at his foster home. The foster family reported that he urinated and defecated in random places throughout their house, broke a flat screen television, used markers to write all over their cloth furniture, and had kicked, bitten and yelled at the foster mother many times. Mother and Father were both engaged in individual therapy. Visitation was going well, supervised by the foster parents. Some progress had been made in cleaning up Parents' home. At the Bureau's recommendation, the judge ordered six more months of reunification services for both Parents, ordered Parents to take a parenting class, gave the Bureau authority to grant consecutive overnight visits up to seven days a month, and set a 12-month hearing.
At the 12-month hearing, the court found Parents had made significant progress in resolving the problems that had led to B.D.'s removal from the family home, although the progress had been partial. Family reunification remained the first and desired goal for long-term permanency. Although visits had been somewhat sporadic, and Parents had not yet begun a parenting program (they were on a waiting list), the court ordered six more months of reunification services pending an 18-month review set for July 5, 2017. The court granted the Bureau discretion to authorize overnight visits up to 30 days in duration.
On July 5, 2017, the court continued to authorize the Bureau to approve consecutive overnight visits. The court set a contested 18-month hearing for August 16, 2017. On August 16, the court continued the 18-month review for a contested hearing on October 25, 2017, and authorized overnight visits pending the next review, without specifying a maximum duration.
In light of the approaching 18-month review, the Bureau allowed Mother and Father to take B.D. home for an extended visit. The visit lasted 65 days. On September 28, 2017, Mother drove B.D. to school in an unregistered and uninsured car and dropped him off. While driving afterwards, she was arrested for an outstanding warrant for child endangerment in which she failed to make a court appearance. She spent one or two nights in jail. There was conflicting evidence as to whether this event had a negative impact on B.D.
In mid-October the Bureau learned of troubling statements and behavior by B.D. in his therapy sessions, including that he locked his therapist out of her office, destroyed property in her office, and sometimes hid under a table during sessions and wrapped himself in a blanket, refusing to come out. He used profanity, and most concerning, talked about wanting to commit suicide. In response to these incidents, at the previously scheduled hearing on October 25, 2017, the Bureau sought and received the court's permission to take B.D. into protective custody. The Bureau placed B.D. back into foster care with the same foster family.
The court set a detention hearing for October 30, separate from the 18-month review hearing. At the suggestion of Mother's counsel, the court also directed the Bureau to file a supplemental petition, ordered B.D. detained, and suspended overnight visits. After a supplemental petition was filed that once again sought removal of B.D. from Parents' home, on October 30, 2017, Judge Rebecca Hardie heard a contest on detention. The judge ordered B.D. detained and set a hearing for November 27, 2017 on "jurisdiction" on the section 387 petition and for a contested 18-month review on the original petition.
Father's counsel questioned whether it was necessary to prepare a section 387 petition. We take no position on whether a supplemental petition was required in these circumstances.
Instead of filing a supplemental petition under section 387, on October 26, 2017, the Bureau filed a subsequent petition under section 342. The petition was later amended to make it a section 387 petition.
At the hearing on November 27, 2017, the court received in evidence not only the social worker's report for the 18-month review and updates prepared by the Bureau, but also letters from B.D.'s court-appointed special advocate (CASA) and from B.D.'s therapist. The letter from B.D.'s therapist, dated November 16, 2017, described in detail B.D.'s troubling behavior during the 65-day home visit, but also attested that B.D.'s behavior and mental state began to improve after returning to his foster home.
The court did not formally receive the CASA letter into evidence, but did review the letter in making its decision.
The court found true the factual allegations of the supplemental petition and made findings appropriate to an 18-month review. The court terminated reunification services for Mother and Father and set a hearing under section 366.26 for March 21, 2018. These writ petitions followed.
II. DISCUSSION
Mother and Father both contend the evidence was insufficient to support the factual findings, the court did not make findings required under section 387, failed to bifurcate the hearing on that petition, and failed to give them notice of the disposition hearing on the supplemental petition. They contend the case must be remanded for a new section 387 hearing. Alternatively, they argue B.D. should be returned to their custody immediately. The Bureau responds that Parents' arguments were forfeited by failure to raise them in the juvenile court, any missing findings may be implied, the court did not err in proceeding to disposition on the section 387 petition, and the parties either received or waived notice of the disposition hearing.
A supplemental petition under section 387 is authorized when the Bureau seeks "[a]n order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private or county institution." (§ 387, subd. (a).) Issuance of the removal order depends upon a showing of what is sometimes called the "ultimate 'jurisdictional fact' " required under section 387 (In re A.O. (2010) 185 Cal.App.4th 103, 110 (A.O.)): that "the previous disposition has not been effective in the rehabilitation or protection of the child." (§ 387, subd. (b).) The Bureau had the burden of proving this essential fact by a preponderance of the evidence. (In re J.G. (2018) 20 Cal.App.5th 173, 185; In re Jonique W. (1994) 26 Cal.App.4th 685, 691 (Jonique W.).)
Father, the Bureau, and the participants in juvenile court all referred to the first phase on the supplemental petition as the "jurisdiction" phase, but that terminology is technically incorrect. "[H]earings on a petition pursuant to . . . § 387 are post-dispositional hearings which do not necessarily involve allegations which would provide an additional basis for jurisdiction. As such, they are not jurisdiction or disposition hearings and should not be referred to as such." (Seiser & Kumli, California Juvenile Courts Practice and Procedure (2017) § 2.141[3], p. 2-517.)
Hence, we examine the evidence supporting the factual allegations in the supplemental petition first to determine whether the findings were supported by substantial evidence, and second to determine whether the ultimate adjudicatory finding demanded by section 387 may be implied from the factual findings the court made and the evidence in the record.
A. Sufficiency of the Evidence to Support the Factual Findings
At the hearing on November 27, 2017, the court found true the three factual allegations in the supplemental petition, which included that the 65-day home visit was detrimental for B.D. because: s-1: Mother had failed to protect him historically through prior dependencies and B.D. continued to be at risk because (a) on September 28, 2017, Mother drove him to school in a car with an expired registration and without insurance, and was arrested and spent two days in jail, (b) B.D. continued to be exposed to behaviors by his parents and his adult siblings in the family home that caused B.D. emotional distress, resulting in B.D.'s saying he wanted to commit suicide, and (c) B.D. was exposed to violent video games; s-2: Father historically failed to protect B.D. through prior dependencies and B.D. remained at risk, with the same underlying (a), (b) and (c) factual allegations that appeared under s-1; and s-3: B.D. was suffering emotional damage in that (a) the Parents failed to consistently give B.D. his ADHD medication, (b) B.D. was aggressive and destructive with suicidal ideation, (c) B.D. expressed the desire not to be at his family home anymore because "everyone is mad [at everyone]"; (d) B.D. had begun using profane language, (e) B.D. was distressed about Mother's incarceration and Father was unable to comfort B.D., and (f) B.D. was exposed to violent video games. With the exception of the statement that Mother was arrested and briefly incarcerated in September 2017, Parents contend these allegations were not borne out by the evidence.
1. Mother's arrest
Parents do not substantially disagree that the events surrounding Mother's arrest transpired as reported by the Bureau and found by the court in allegations s-1(a) and s-2(a). They question, however, whether the incident negatively affected B.D. and therefore whether it would support a finding of the inefficacy of the prior placement. Mother testified that B.D. was not with her when she was arrested because he was already at school. After learning of Mother's arrest, Father's sister, Tracy, who testified at the October 30 detention hearing, had to go pick up B.D. from school, as Father does not have a driver's license.
By stipulation, Mother's testimony and Tracy's testimony from October 30, 2017 was considered by the court in its rulings on November 27, 2017.
In the immediate aftermath of Mother's arrest, Father and B.D. spent the first night at Tracy's house. Tracy testified B.D. was not distressed and she saw no negative reaction in B.D. to his Mother's arrest. Tracy's significant other, Christopher Grant, filed a letter of support indicating B.D. had played happily at his ranch after Mother was arrested, and sometime in October B.D. had expressed the desire to return home to his Parents after Grant and Tracy had taken him out to dinner.
Still, there is substantial evidence in the record to support the Bureau's version of the facts. Father initially tried to hide from B.D. the fact that Mother was in jail, but B.D. found out and became more "clingy" after the arrest. Father's own statement to the social worker suggested he had trouble responding to B.D.'s emotional needs because he was too involved in getting Mother released. And finally, driving B.D. in an unregistered and uninsured car was itself a matter of concern, regardless of how B.D. reacted to Mother's arrest and incarceration.
2. B.D.'s emotional distress due to family's behaviors
Factual allegations s-1(b) and s-2(b) regarding B.D.'s emotional distress and threat of suicide were supported by the social worker's report of information received from B.D.'s therapist: "According to his therapist, [B.D.] is angry, destructive, and aggressive in therapy, often knocking things down, tearing things from the walls, punching furniture and yelling. He sometimes hides under a table and refuses to come out for the entire session." On October 18, 2017, Susan Alonso, B.D.'s therapist, contacted the Bureau social worker regarding a statement B.D. had made during the therapy session on October 16, 2017. "Ms. Alonso revealed that during that session [B.D.] stated that he wanted to kill himself. In this same session [B.D.] locked her out of her therapeutic office and made the statement 'This is the first step to suicide!' He then went ahead and knocked over various objects to the floor and stated 'This is the second step to suicide!' Ms. Alonso shared that she was under the impression that one of the older boys living in the home had threatened suicide and that this could have been learned behavior from him. When [B.D.] was asked where he got that statement from he said that he got it from the video games" and television.
Parents do not deny B.D. was suffering emotionally, but they claim there was insufficient evidence that adult behaviors in their household were the cause. While such a link is difficult to prove by direct evidence, Father himself told the social worker B.D. had said, "I don't want to be here anymore because everyone is mad at everyone." Mother, too, reported that B.D. said, "I want everyone to stop being mad at each other."
And there was the expert opinion. Alonso's letter dated November 16, 2017, described B.D.'s out-of-control behavior in therapy. She also wrote and testified about the vast improvement in B.D.'s conduct and mental state after he returned to foster care. Alonso concluded her letter with this summary: "It is my opinion that [B.D.'s] being in the bio[logical] home causes him great anguish which presents as anger. He continues to suffer from PTSD symptoms which became more apparent again after his long visit home. These are gradually beginning to subside. This [extended visit] has been a setback for [B.D.'s] emotional well-being and mental health." Alonso did not think B.D. was immediately at risk of self-harm, but the juvenile court was nonetheless understandably alarmed by the seven-year-old's talk of suicide.
3. Violent video games
Allegations s-1(c), s-2(c) and s-3(f) were supported by the social worker's report that "[e]arly on in the overnight visits, [B.D.] was allowed to play a [f]irst [p]erson [s]hooter [v]ideo [g]ame, 'BioShock.' He described the details of the game including extreme violence/gore." The finding was further supported by B.D.'s own statement to his therapist that he learned about suicide from video games, Mother's testimony that he played video games with an older brother, and by observation of B.D.'s fondness for video games, especially noticeable when he visited his grandparents' home, as noted by B.D.'s CASA.
4. Emotional damage to B.D. from the 65-day home visit
Allegation s-3 was an umbrella factual allegation that listed various factors leading to a conclusion that "[t]he court[-]ordered 65-day visitation has been detrimental for the child and the child is suffering emotional damage[.]" The allegation was supported by Alonso's letter describing how B.D. had regressed during the 65-day home visit and stabilized again after being returned to foster care. Alonso testified consistently at the November 27 hearing.
Factual allegation s-3(a) with respect to B.D.'s medication was supported by Parents' earlier objection to giving B.D. the ADHD medication, the report by B.D.'s older sibling that Parents would not allow him to take his prescribed psychotropic medication, Alonso's suspicion that B.D. was not being given the medicine on a consistent basis judging by his behavior, and the fact that at B.D.'s detention, when the medication was due to be refilled, six pills remained in the medicine bottle that Parents sent on to the foster parents.
Mother testified that the doctor had given her permission to skip the medication occasionally on weekends, that B.D. had missed only two days of medication, and that there were pills left in the bottle because the doctor had prescribed extra pills to carry B.D. through if Mother was unable to renew the prescription on time. Mother also testified B.D. was not allowed to play violent video games in the home. The juvenile court was free to discredit Mother's testimony, and so long as the evidence it relied on was substantial, we are not at liberty to second-guess that credibility assessment.
Allegation s-3(b) was graphically supported by the letter from Alonso reporting B.D.'s out-of-control behaviors and suicidal expressions. Her testimony was equally striking in supporting the allegation. Parents' own statements to the social worker confirmed that B.D. complained about not wanting to be in the family home because "everyone is mad at everyone." Allegation s-3(d) about B.D.'s use of foul language was supported by Alonso's letter and her testimony, in which Alonso described B.D.'s shoving her, throwing things at her, and cursing at her.
Allegation s-3(e) was supported by Father's admission that B.D. was more "clingy" after Mother's arrest. His inability to respond to B.D.'s need for reassurance was recorded in the status review report.
B. Deficiencies in the Supplemental Petition
As a preliminary issue, the Bureau's petition did not contain the language customarily included in a supplemental petition because the Bureau initially filed it as a subsequent petition under section 342. (See fn. 6, ante.) The omitted language was important because the petition did not include an allegation of the ultimate finding the court was called upon to make: that the "previous disposition ha[d] not been effective in the rehabilitation or protection of the child." (§ 387, subd. (b).) Parents knew the purpose of the supplemental petition; Mother's counsel even requested that it be prepared. They cannot complain about deficiencies in the petition that they never challenged below. (In re Javier G. (2006) 137 Cal.App.4th 453, 458-459 (Javier G.) [§ 387 petition]; In re David H. (2008) 165 Cal.App.4th 1626, 1637-1640 [§ 300 petition].) Parents' claims based on insufficiency of the petition were forfeited.
C. Failure to Find the Previous Disposition Was Ineffective in Protecting B.D.
At the November 27 hearing, the attorney for the Bureau asked the court to make a finding that the previous disposition had been ineffective in protecting B.D., but the parties agree the juvenile court never made the required finding. The Bureau contends any challenge to the court's failure to make this finding was forfeited by failure to raise the issue below. (See, e.g., In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.) We agree, but we also find persuasive the Bureau's argument that the alleged error may be remedied by implied findings.
The Bureau contends the missing finding can be implied, so long as the record contains substantial evidence to support such a finding. (See In re G.P. (2014) 227 Cal.App.4th 1180, 1196-1197 [detriment finding]; In re Daniel C. H. (1990) 220 Cal.App.3d 814, 838 (Daniel C. H.) [termination of visitation].) Parents do not disagree about the doctrine of implied findings, but they claim there is no substantial supporting evidence in this case. We find the evidence justifies an implied finding of ineffectiveness of the prior placement, even under the cases requiring "clear" evidence. (Marquis D., supra, 38 Cal.App.4th at p. 1825; see fn. 11, ante.)
Some cases require "clear" evidence before they imply a finding (In re Abram L. (2013) 219 Cal.App.4th 452, 463, fn. 5; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1825 (Marquis D.)), especially where it appears the trial court may have had in mind the wrong statute when making its findings. (Marquis D., at p. 1825.) Under even the most demanding standard, implied findings are warranted in this case.
Our summary of the evidence supporting the factual findings (see part II.A., ante), identifies the substantial evidence supporting an implied finding that the previous placement with Parents had been ineffective in protecting B.D. Based on the trial court's true findings on the underlying factual allegations, which were supported by ample evidence, we may imply a finding on the ultimate issue that the previous disposition or placement with Parents was ineffective in protecting B.D., which needed to be proved only by a preponderance of the evidence. (In re J.G., supra, 20 Cal.App.5th at p. 185.) The failure to make the ultimate finding likewise requires a showing of prejudice (see In re Jason L. (1990) 222 Cal.App.3d 1206, 1218), which is utterly lacking here.
D. Failure to Hold a Separate Dispositional Hearing on the Supplemental Petition
Both Parents contend a bifurcated proceeding was required by section 387 and argue the juvenile court erred in failing to hold a separate and distinct disposition hearing. (Jonique W., supra, 26 Cal.App.4th at p. 691; In re Fred J. (1979) 89 Cal.App.3d 168, 175, 178 [reversible per se]; Cal. Rules of Court, rule 5.565(e).) Over the decades, the courts have moved away from the reversible-per-se rule of Fred J. (e.g., In re Miguel E. (2004) 120 Cal.App.4th 521, 542 (Miguel E.); Daniel C. H., supra, 220 Cal.App.3d at pp. 836-837), and most recently have called the decision whether to bifurcate "discretionary" (In re J.G., supra, 20 Cal.App.5th at p. 185). Although rule 5.565(e) calls for a two-part adjudication, it does not specify that the two hearings must be held on different days.
Further unspecified references to rules are to the California Rules of Court.
Here, the judge first dealt with "jurisdiction" and then proceeded to "disposition." Because the disposition followed immediately after the factual findings on the petition's allegations, Parents argue the hearing was not bifurcated.
Without deciding whether discrete-in-time bifurcation is required, we note that Parents did not object to proceeding with disposition or request bifurcation, so they have forfeited that issue. (In re A.O. (2004) 120 Cal.App.4th 1054, 1061, fn. 4; Miguel E., supra, 120 Cal.App.4th at p. 542.) Even if holding separate hearings is preferred, Parents cannot prevail on appeal because they cannot show prejudice from the procedure employed. (Miguel E., at p. 542; Daniel C. H., supra, 220 Cal.App.3d at pp. 836-837.) Their complaints, in any case, largely overlap those under the notice issue, which we address next.
E. Lack of Notice of Dispositional Hearing on the Supplemental Petition
Parents are correct that when the hearing was set for November 27, the court said only that it would address on that date "juris[diction]" on the section 387 petition and the 18-month review. There was no mention of "disposition" on the section 387 petition. Parents contend they received no notice of the disposition hearing on the supplemental petition, and the Bureau points to nothing in the record suggesting they did. As Parents point out, the decision on disposition is distinct from the simple question whether the previous disposition was ineffective. A separate decision must be made what to do about it. A substantive finding of detriment is required at the section 387 disposition, and the standard of proof is different from that which governs either the finding on the ineffectiveness of the previous disposition or the 18-month review. (Compare § 361, subd. (c)(1) [clear and convincing evidence required] with § 366.22, subd. (a)(1) [preponderance].)
Both Parents point out the notice statutes indicate how and when notice "shall" be given, thereby signifying the notice is "mandatory," not permissive. (§§ 291, 387, subd. (d); rule 5.565(c).) But when we speak of "mandatory" statutes—those invalidating governmental action taken in violation of them—use of mandatory language alone is not determinative. (In re D.P. (2018) 21 Cal.App.5th 154, 161; In re Hannah D. (2017) 9 Cal.App.5th 662, 681.) We are not here concerned with the obligatory/permissive nature of the statute, but with the consequence of finding it was violated. (See In re Katelynn Y. (2012) 209 Cal.App.4th 871, 879-880; In re K.A. (2011) 201 Cal.App.4th 905, 908-909.)
Statutory notice requirements for review proceedings have been held to be directory, not mandatory. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419.) Likewise, we find it difficult to conceive the Legislature would have intended to void section 387 proceedings based upon failure to comply with technical notice requirements, without a showing of prejudice. (Cf. Miguel E., supra, 120 Cal.App.4th at p. 542 [statutory bifurcation requirements are directory].) We hold lack of strict compliance with notice requirements, standing alone, did not render the proceeding void; an aggrieved party must also show prejudice, whether the claimed lack of notice is based on statute or on due process. (Melinda J., at p. 1419; In re A.D. (2011) 196 Cal.App.4th 1319, 1325-1327; In re Larry P. (1988) 201 Cal.App.3d 888, 896-897.)
Parents have failed to show prejudice from the lack of notice. The primary purpose of notice was fulfilled: Parents knew about the hearing, were present with counsel, and presented a defense. Parents have not shown their ability to present their case was impaired in any way by the lack of notice. Parents and their counsel claimed no lack of notice in the trial court, evidenced no surprise the court was moving forward with disposition, and pointed to no additional evidence they could have presented if disposition were postponed.
Parents forfeited any claim based on lack of notice. (See In re P.A. (2007) 155 Cal.App.4th 1197, 1209-1210; In re Wilford J. (2005) 131 Cal.App.4th 742, 754; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1152.) We also conclude it is not reasonably probable a more favorable result would have obtained if they had received explicit notice that the November 27 hearing would include disposition on the section 387 petition. (Cf. In re Jesusa V. (2004) 32 Cal.4th 588, 623-625 [applying prejudice standard of People v. Watson (1956) 46 Cal.2d 818, 836 to violation of right of incarcerated parent to presence at hearing].) Even if the lack of notice must be shown to be harmless beyond a reasonable doubt (In re J.H. (2007) 158 Cal.App.4th 174, 183; see A.D., supra, 196 Cal.App.4th at p. 1326; In re Marcos G. (2010) 182 Cal.App.4th 369, 386-387 [lack of notice of § 366.26 hearing]), the facts here met that standard as well.
F. Alleged Failure to Make the Required Findings on Disposition
1. The Required Detriment Finding Was Made by Clear and Convincing Evidence
A finding of detriment to the child is required both at the 18-month hearing and in a hearing under section 387. (§§ 361, subd. (c)(1); 366.22, subd. (a)(1).) Although such a finding was made in this case, Parents argue the court's finding of detriment for purposes of the 18-month hearing was not sufficient to warrant removal of B.D. under section 387. And Father asserts the court never made the additional required finding of no less drastic alternatives to removal.
It is true the statute governing the 18-month review is not as demanding as section 387 is construed to be. Section 366.22, subdivision (a)(1), which governs the 18-month hearing, provides: "the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment." (Italics added.) This, of course, is a lower standard of proof from the clear and convincing standard arguably required under section 387.
Section 361, subdivision (c)(1) requires the court to find by "clear and convincing evidence" that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody." Section 361, subdivision (c)(3) allows for removal of a child if it is shown by clear and convincing evidence "[t]he minor is suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others, and there are no reasonable means by which the minor's emotional health may be protected without removing the minor from the physical custody of his or her parent or guardian." Though not specified in section 387, most courts have held, in disposing of such a petition, the juvenile court must find reason for removal consistent with section 361, subdivision (c), which means by clear and convincing evidence. (In re C.M. (2017) 15 Cal.App.5th 376, 388; Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1077; In re Paul E. (1995) 39 Cal.App.4th 996, 1000-1003; see rule 5.695(c).)
A.O., supra, 185 Cal.App.4th at pages 109, 111-112, held the finding need only be made by a preponderance of the evidence where a previous finding to the same effect was made by clear and convincing evidence. We need not take a position on which view is correct, as the court in this case complied with the more rigorous requirement.
Parents suggest we cannot imply a finding to the more rigorous standard of proof based on a finding made under a statute requiring a less rigorous standard. On a different record we might be inclined to agree. (Cf. T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1239 [clear and convincing standard is important bulwark against erroneous termination of parental rights].) But on the facts before us we do not need to imply a finding at all, at least with respect to the detriment finding. At the conclusion of the November 27 hearing, Judge Hardie found by clear and convincing evidence "the return of the child to his parents would create a substantial risk of detriment to the safety, protection or physical or emotional well-being of the child."
Because the Bureau's proposed written finding was prepared in connection with the 18-month review, Parents argue we cannot consider it a finding on the supplemental petition. Their contention elevates form over function. We fail to see why this finding did not serve as the section 387 finding, just as it did under section 366.22, subdivision (a)(1), since it was made to the higher standard of proof required under section 387. The need to imply a detriment finding does not arise. But even if it did, we would imply a finding based on more than substantial evidence of detriment, bearing in mind the clear and convincing standard of proof. (T.J. v. Superior Court, supra, 21 Cal.App.5th at pp. 1238-1240.)
Father cites Marquis D. supra, 38 Cal.App.4th at pages 1824-1825 and In re V.F. (2007) 157 Cal.App.4th 962, 973, for the proposition that a remand and rehearing are required if the court made its findings under the wrong statutory framework. Marquis D. involved a court's failure to make any sort of detriment finding when one was required under section 361.2, subdivision (a), where the proper section of the code was not mentioned at all in the reports the court had before it, where the court failed to identify the proper code section, and where the evidence of detriment was decidedly mixed. (Marquis D., at pp. 1824-1827.) In V.F., too, the court clearly applied the wrong statute in making its detriment determination. (V.F., at pp. 969-974.) In both cases the evidence left reason to question whether the juvenile court would have made a detriment finding if squarely presented with the issue under the correct standard.
Here, the trial court was aware of the correct statute and made the finding to the correct level of certainty. The court unquestionably had section 387 in mind, having spent time at the beginning of the hearing modifying the section 342 petition to make it a section 387 petition. The detriment finding was adequate under both section 387 and section 366.22, and it was well supported by the evidence. The judge had "no doubt in [her] mind" about the finding. There was no error.
2. A "No Reasonable Means" Finding May Be Implied
Father makes the additional point that section 361, subdivisions (c)(1) and (c)(3) also require a finding of no lesser alternative to removal. Both subdivisions require the Bureau to prove "there are no reasonable means by which the minor's physical [or emotional] health can [or may] be protected without removing the minor" from the parent's or guardian's physical custody. (§ 361, subd. (c)(1); see § 361, subd. (c)(3) [similar but not identical language].) He cites cases holding a supplemental petition is subject to the same requirement. (Jonique W., supra, 26 Cal.App.4th at p. 691; Javier G., supra, 137 Cal.App.4th at p. 462.) The Bureau addresses Father's argument only obliquely, suggesting this finding, too, may be implied.
Evidently because the Bureau's report and recommended findings were not tailored to section 387, the judge forgot to make a finding of no less drastic alternative to removal. None of the gathered attorneys pointed out to the court the need for such a finding. Again, the question of forfeiture arises, but in the circumstances, we agree with the Bureau that the court impliedly made the necessary finding, in part because that express finding was made by the same judge at the detention hearing.
At the detention hearing on October 30, 2017, the court found "by more than clear and convincing evidence that there is a substantial danger to the physical and emotional health of the child and no reasonable means to protect that without ordering him removed." (Italics added.) No evidence was offered at the November 27 hearing to rebut that preliminary finding, and there is no reason to believe the judge would have changed her mind from the earlier hearing. There is substantial evidence in the record to support a "no reasonable means" finding by clear and convincing evidence, and on this record, such a finding will be implied. (Cf. Daniel C. H., supra, 220 Cal.App.3d at p. 838.) Judge Hardie stressed her strong views about the case repeatedly in the hearings, and we are confident she would have made a "no reasonable means" finding if prompted.
III. DISPOSITION
Parents' petitions for an extraordinary writ are denied on the merits. (§ 366.26, subd. (l)(1)(C); rule 8.452(h); In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) Our previous stay of the hearing under section 366.26 is hereby lifted. Our decision is final as to this court immediately. (Rule 8.490(b)(2)(A).)
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Schulman, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.