Opinion
F080808
01-11-2021
In re M.R. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. ALFONSO V., Defendant and Appellant.
Danley Law and Michelle E. Danley, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JD139952-00, JD139953-00, JD139954-00, JD139955-00, JD139956-00, JD139957-00, JD139958-00, JD139959-00)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Marcos R. Camacho, Judge. Danley Law and Michelle E. Danley, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
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Dependency jurisdiction under Welfare and Institutions Code section 300 was taken over 14-year-old M.R., 11-year-old E.J., 10-year-old L.A., seven-year-old J.I., five-year-old V.D., four-year-old F.A., four-year-old L.M., and 11-month-old J.M. (collectively "the children") due to circumstances that arose while in their mother A.R.'s custody. Alfonso V. (father), presumed father of the seven youngest children (all but M.R.) requested placement of the children. Following the disposition hearing, the juvenile court denied father's request for placement, finding placement with him would be detrimental to the safety, protection, or physical or emotional well-being of the children due to father's substance abuse and the fact that mother resided in father's home at the time of the disposition hearing.
All further undesignated statutory references are to the Welfare and Institutions Code.
Father requested placement of his children as well as M.R., who recognized him as her stepfather. However, on appeal, father acknowledges his arguments only apply to the seven children to whom he has legal rights.
Father appeals the court's dispositional order denying his request for placement, alleging the order and underlying findings must be reversed because (1) the juvenile court's finding of detriment was not supported by sufficient evidence; (2) the juvenile court failed to consider lesser alternatives to denial of placement; and (3) the Kern County Department of Human Services (department) failed to make reasonable efforts to place the children with father. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 21, 2019, the department received a referral alleging general neglect of the children with A.R. (mother) listed as the perpetrator. After several unsuccessful attempts to make contact with the family, the investigating social worker requested that the sheriff's office perform a welfare check of the residence. When the deputy sheriff arrived at the trailer where mother and the children resided, he observed mother acting in a " 'belligerent' " manner and that the residence did not have food, running water, or utilities. The deputy arrested mother for child abuse and for being under the influence of alcohol and/or drugs. The deputy allowed mother's adult son to take custody of the children.
The social worker visited mother in jail and asked if mother had been under the influence of drugs or alcohol when she was arrested. Mother denied using drugs but stated she had had one beer the morning of the day before. The social worker asked mother if she had a safety plan for herself and the children since her home was deemed to be unsafe. Mother shrugged and said she needed to work on herself before she could care for her children. Mother told the social worker she wanted the children to be taken into protective custody and placed in foster homes. The children were taken into protective custody.
The children appeared to be free from visible marks or bruises. The children reported their home did not have running water or electricity. They reported bathing in the canal and using buckets of water to flush the toilet.
Some of the children reported father had moved out of the home weeks ago. Some reported he lived in the home. L.A. reported father provided them with food but that mother had kicked him out of the house because he "would always be on his phone and he never helped with the children." The children reported father drank beer. V.D. reported " 'my dad gets drunk and he falls over the beds.' "
J.M. and E.J. had coughs upon being taken into protective custody, and E.J. vomited after eating in the cafeteria. J.I.'s clothes were soiled and oversized. E.J. reported he did not feel safe in his mother's care and began to tear up. M.R. reported she "kind of" felt safe in the care of her mother, and explained they "were always going places."
The family had several previous child welfare referrals dating back to 2008, many of which were deemed unfounded or inconclusive, or which were "evaluated out." Of relevance, during an investigation of referrals of severe and general neglect dated September 2013 and November 2013, due to lack of supervision of the children, father tested positive for methamphetamine and amphetamines. Father was encouraged to attend substance abuse counseling. The allegation of general neglect was deemed inconclusive.
In January 2014, allegations of general neglect were substantiated as to mother and father. The home was without electricity for a week. Mother tested positive for methamphetamine and father was unable to test because of his work schedule.
In February 2016, the department substantiated a referral of general neglect. Mother tested positive for methamphetamine while in care of the children. Father denied drug use and declined to drug test and stated he had had two beers before arriving home. Father claimed no knowledge of mother's drug addiction despite mother giving positive drug tests in the past due to previous referrals. The social worker investigating the referral noted father had not done anything to address mother's drug issues despite the previous referrals. The family was referred to "Differential Response" (DR) services and substance abuse counseling.
In July 2018, mother gave birth to a baby who tested positive for amphetamines. Mother did not receive prenatal care, and mother's toxicology screen was positive for amphetamines. Mother admitted to smoking methamphetamine once a day. Father stated he was aware mother used methamphetamine while pregnant and admitted to using drugs three months prior. The allegation of general neglect was substantiated. The family could not be referred to Voluntary Family Maintenance (VFM) because of the heavy VFM case load but were referred to DR for services. The DR case was later closed because mother failed to make herself available and did not enroll in substance abuse classes.
Mother's criminal history included her arrest for willful cruelty to children and drunk and disorderly conduct. Father's criminal history included two convictions for driving under the influence of alcohol: one from 2009, and one from 2010.
On July 1, 2019, dependency petitions were filed on behalf of the children, alleging they came within the juvenile court's jurisdiction under section 300, subdivisions (b) and (g). The petition contained allegations mother was willfully or negligently failing to provide the children with adequate food, clothing, shelter, or medical treatment, was unable to provide regular care for the children due to substance abuse, and was unwilling or unable to provide care or support for the children. The specific allegations included that the children did not have food or running water and bathed in the canal and used buckets of water to flush the toilet. The family had no residence because the owner of the trailer had asked them to move out after June 2019. The petition further alleged that mother had been arrested for disorderly conduct and had failed to previously enroll in substance abuse counseling. The petition further alleged mother indicated she needed to work on herself before she could care for her children. None of the allegations mentioned father. At the detention hearing on July 2, 2019, the court ordered the children detained from the parents.
M.R., E.J., and L.A. were placed together in a resource family home. J.I., J.M., and V.D. were placed together in a resource family home. F.A. and L.M. were placed together in a resource family home.
On the day of the detention hearing, the social worker provided father with the petition and detention report and went over the initial case plan with recommendations that he participate in counseling for parenting/child neglect and submit to random, unannounced drug tests. Father reported he was in a relationship with mother but lived in a separate residence. He told the social worker he was not in a position to have the children in his care as he rented a room and would not have sufficient room for all the children. He indicated he would look for housing and continue to work in agricultural fields. He submitted to a voluntary drug test, and the results were negative.
On July 18, 2019, the social worker spoke with both parents, who reported living together. The social worker again informed father the department was recommending parenting/neglect classes and that he submit to random drug testing. The social worker advised father that upon giving a positive test he would need to enroll in substance abuse classes. Father gave a negative drug test that day. The social worker also discussed concerns over the parents having control over the children at visits because the children had been running up and down the halls at the visit that day. Father said he tried to have them eat quietly but mother "overrides what he says and lets them do whatever."
Father enrolled in parenting and neglect classes. On August 13, 2019, father was again advised that if he gave a positive drug or alcohol test, he would have to enroll in substance abuse counseling. Father tested positive for amphetamine/methamphetamine on August 29, 2019. Mother submitted positive drug tests for amphetamine and methamphetamine on August 13, 2019, and September 21, 2019.
At the jurisdiction hearing on September 24, 2019, mother submitted on the documents, and the court found the petition true.
On November 8, 2019, father tested positive for alcohol with a blood alcohol level of .04 percent. On November 15, 2019, mother informed the social worker she had not enrolled in any voluntary services and that she would not visit the children.
On November 19, 2019, the date scheduled for the disposition hearing, father requested his home be assessed for placement of all the children. The court continued the disposition hearing so father's home could be assessed and because the department had not filed a disposition report.
The department's disposition report indicated father had provided a new home address and requested the department assess his residence for placement of all the children. The department, however, reported it did not assess father's residence because of his positive methamphetamine test from August 2019 and positive alcohol test from November 2019. The department also reported father had not visited the children since September.
The department's recommendation for disposition was removal from mother's physical custody and family reunification services for both her and father. Father's recommended services were counseling for parenting/child neglect and substance abuse, and to submit to random unannounced drug/alcohol testing.
On December 18, 2019, father completed counseling for parenting/child neglect but had not enrolled in substance abuse counseling.
At the continued disposition hearing on January 13, 2020, father requested further continuance because the disposition report had incorrectly indicated father had not visited the children since September, when he had been visiting weekly, and because the department had not yet assessed father's home for placement. The department contended they had not assessed his home because of the positive drug and alcohol tests. The court granted the continuance and ordered the department to assess father's home and provide an updated report regarding the assessment and visitation.
Father's home was assessed on January 27, 2020. Mother was present and pregnant. She did not know how far along she was in pregnancy. Father was residing in a two-bedroom home with two male roommates. One of the roommates slept in one of the bedrooms and the other slept in the kitchen. Father advised he did not have his roommates' birthdates but that if the children were returned to him, his roommates would move out. The living room had no furniture, and the carbon monoxide detector did not have batteries. The home had little food, but it had hot water and electricity.
The social worker observed beer cans inside and outside of the residence. Mother indicated "everybody" in the house consumes alcohol. In father's bedroom, there was a plastic cup at the foot of the bed and a Budweiser tall can. The social worker asked mother who it belonged to, and mother responded, "it's my coffee." The social worker asked father if he had enrolled in substance abuse counseling, and he responded that the social worker told him he could enroll after he got the children back. The social worker told father she did not say that and that he had informed her he would enroll when he was done with parenting and neglect counseling. Father responded he was going to wait until the class was court-ordered and that he did not see the point to enrolling if he just used once and it was a mistake.
The social worker told mother she could not be in the home if the children were returned to father. Mother told the social worker that father had told her she had to leave.
Father reported to the social worker that mother's adult daughter and M.R.'s caregiver would watch the children. M.R.'s caregiver confirmed she told father she would watch the children during the day when he worked. Mother's adult daughter reported she told father she would help. She had not talked to father about it lately but told the social worker she would help him.
In February 2020, mother gave birth to a baby at 24.6 weeks gestation and reported that father was the father. Mother had received no prenatal care. She stated she had not done so because God told her he would protect her and the baby. While at the hospital, she reported she could levitate, had premonitions, and knew when people would die. Mother admitted she had a long history of using methamphetamine and last used a week before the baby was born. She reported her address as father's address. The day after the baby was born, father informed the department the baby had passed away.
Between initial detention and the writing of the department's disposition report, M.R., E.J., and L.A. were moved into separate homes. J.I., J.M., and V.D. remained placed together, as did F.A. and L.M.
In a supplemental disposition report, the social worker reported father had visited with the children weekly from July 2019 through January 2020, in contrast to the earlier inaccurate report. No concerns were noted regarding visits. Mother was not consistent with visits and had not visited since September 28, 2019. In addition to giving a positive test for methamphetamine in August 2019 and a positive test for alcohol in November 2019, father had provided negative tests for drugs and alcohol on September 21, 2019, October 12, 2019, November 27, 2019, and December 9, 2019.
Following its assessment of father's residence, the department continued its recommendation of family reunification services for both parents. They recommended denial of father's request for placement on family maintenance services and deemed placement in father's residence as inappropriate because "mother is residing in his home and continues to use illegal controlled substances." Mother had not made any progress with her voluntary case plan.
The disposition hearing was held on February 20, 2020. Father contested disposition and requested all eight children be placed with him on family maintenance services.
Father testified he had completed parent and child neglect counseling. Father said if the children were to be placed with him, his roommates would move out and there would not be beer cans inside or outside of the house. Father further testified that mother currently resides with him but would move out if the children were returned. Father would not allow her to live with him until she complied with her court ordered services.
Father explained he did not have beds for the children because he was not sure if the children would be placed with him. Father explained there was limited food in the home because there is a store nearby so they just run out and get whatever they need. He would purchase whatever he needed to as soon as the children were ordered to reside with him. Father testified he had help getting the children to and from school and supervising them while he was at work. Father also testified he would be willing to stop drinking alcohol if the court ordered him not to drink. He stated, "I am willing to do everything."
Counsel for the department argued that at the current moment in time, father's home was inappropriate because he had roommates, did not have adequate supplies, provided a positive drug test in August 2019 and a positive alcohol test in November 2019, and allowed mother to reside in the home.
Counsel for the children submitted on the department's recommendation. She argued detriment was shown by the fact that father appeared to have a drinking problem that required treatment and that mother resided in his home.
Father's counsel argued that there was no evidence father abused alcohol and was willing to abide by the court's order not to consume alcohol and that his positive test for methamphetamine was over six months before. Counsel requested conditional return based on father obtaining beds for the children and vacating his roommates.
Counsel for the children added that the children were "very concerned" that the mother resided at father's residence and were "very concerned about that displacement."
The court began its ruling on father's request by stating "all [the court is] looking at is the evidence as it exists now." The court went on to state that father was "promising that he will do all of these things and I take him at his word that he will do those things but I guess the one thing that has not happened which is in his power to do right now is to make sure mother is not present in the home and, two, the substance abuse issue in terms of he hasn't addressed that issue." The court pointed out that father had a substance abuse issue that "continue[d] to occur" and it did not appear that the issue was being addressed. The court added that if father were to address the issues mentioned, he could bring a section 388 petition. The court stated it was following the department's recommendations because it was concerned about the safety of the children.
The court denied father's request, finding there was clear and convincing evidence placement with him would be detrimental to the safety, protection, and physical or emotional well-being of the children. The court found by clear and convincing evidence there was potential danger to the children if not removed from the parents and there were no reasonable means to protect the children without removal from mother. The court found the department had complied with the case plan by making reasonable efforts and providing reasonable services to prevent the need for removal of the children from the home and to make it possible for the children to safely return home. The court ordered the children removed from the physical custody of mother. The parents were ordered to participate in counseling for parenting, child neglect, and substance abuse and to submit to random drug tests. Father was ordered to abstain from the use of alcohol.
DISCUSSION
I. The Court's Denial of Father's Request for Placement of the Children Under Section 361 .2 , Subdivision (a)
Father argues the juvenile court erred by denying his request for placement. We disagree.
Section 361.2, subdivision (a) reads in pertinent part: "If a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." A noncustodial parent also has a "constitutionally protected interest in assuming physical custody." (In re Isayah C. (2004) 118 Cal.App.4th 684, 697.) To comport with due process requirements in dependency proceedings, the party opposing placement has the burden to show by clear and convincing evidence the child will be harmed if the noncustodial parent is given custody. (In re Liam L. (2015) 240 Cal.App.4th 1068, 1084 (Liam L.)
Section 361.2 "evinces [a] legislative preference for placement with the noncustodial parent when safe for the child." (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1262 (Patrick S.).) In assessing whether placing a child with her noncustodial parent would be "detrimental to [her] safety, protection or physical or emotional well-being," the juvenile court must "examin[e] ... the circumstances of the parent and child" (In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1503, 1506), although "the focus in dependency law [is] on the child, not the parent." (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425 (Luke M.).) The court is to "weigh all relevant factors to determine if the child will suffer net harm." (Ibid.) Because "[a] detriment evaluation requires that the court weigh all relevant factors to determine if the child will suffer net harm," no one factor can be dispositive. (Ibid.; see Patrick S., supra, 218 Cal.App.4th at p. 1265.)
Among the factors the juvenile court may consider include any jurisdictional findings against that parent, any criminal history, and any history of substance abuse or mental illness. (See Patrick S., supra, 218 Cal.App.4th at p. 1263, In re Nickolas T., supra, 217 Cal.App.4th at p. 1505.) The juvenile court may also consider several other factors including: the age of the child and any special needs that child may have; the impact of placement on the custodial parent's ability to reunify and on any sibling relationships; the nature of the relationship between the parent and the child; the parent's ability to meet the child's needs; and the child's wishes. (See Patrick S., supra, 218 Cal.App.4th at p. 1265; In re John M. (2006) 141 Cal.App.4th 1564, 1570-1571; Luke M., supra, 107 Cal.App.4th at pp. 1425-1427; In re Isayah C., supra, 118 Cal.App.4th at p. 700.)
We review a court's finding of detriment under section 361.2, subdivision (a) for substantial evidence, bearing in mind the heightened standard of proof. (Liam L., supra, 240 Cal.App.4th at p. 1087; see Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) "We review the record in the light most favorable to the court's order to determine whether there is substantial evidence from which a reasonable trier of fact could find by clear and convincing evidence that the children would suffer such detriment." (Luke M., supra, 107 Cal.App.4th at p. 1426.) "Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt." (Ibid.) " 'We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence.' " (Liam L., supra, 240 Cal.App.4th at p. 1087.)
We conclude substantial evidence supports the juvenile court's finding by clear and convincing evidence that the children would suffer detriment if placed in father's custody.
First, mother was the offending parent and was residing with father. The juvenile court made a finding that there was danger to the physical health, safety, and emotional well-being of the children in mother's physical custody. This finding is not disputed by father and has not to our knowledge been appealed in another proceeding. Clearly, mother's continuing to reside in father's home at the time of the disposition hearing was evidence of detriment to the children.
Though father testified he would have mother move out if the children were placed with him, his failure to do so before the disposition hearing belied his claim that this was feasible. There was no evidence of a plan of where mother would live if not with father; by all indications from the record, mother would have otherwise been homeless and had not been engaging with services. Mother and father were an intact couple, who had only been living apart as of a matter of weeks before the referral that led to these proceedings. We note the record demonstrates that father knew of mother's long-time methamphetamine abuse. Father's leaving the children in mother's custody in the weeks leading to the referral that led to this case does raise a reasonable inference that he has failed to protect them from mother's neglect. We say this with full acknowledgment that no allegations of his failing to protect the children from mother were made nor sustained in the present petition. Rather, we find it to be historical evidence that weakens father's claim that mother would move out if the children were to be placed with him.
Father suggests the court's comment that the court will "take his word he will do these things" was a credibility finding and therefore we must accept father's testimony mother would move out of the home. However, based on the totality of the court's comments, we conclude the court did not find father's claim that mother would move out to be credible. After making the comment referenced by father, the court went on to say father had the power to remove mother from the home but had not done so, and found this to be evidence of detriment. We do not find the court's comments to be a credibility determination regarding father's testimony that mother would move out that we must accept. Mother's living in father's residence without a plan in place of where she would live if the children were to be placed with father supported the court's finding that placement with father at the time of disposition was detrimental to the children. We also note children's counsel's comment that the children were "very concerned" about mother's potential displacement suggests emotional harm to the children even if mother had moved out to facilitate their placement
Detriment to the children's safety was compounded by father's unresolved substance abuse issues. Father argues the evidence regarding his substance use was not evidence of detriment because alcohol is a legal substance and one positive test for methamphetamine is not indicative of a substance abuse problem. Father fails to view his substance use in context of the evidence of his history using substances. Father had two DUI convictions dating back to 2009 and had tested positive or admitted to using drugs during department investigations for previous referrals dating back to 2013. Father's positive tests for methamphetamine and alcohol since the commencement of the dependency proceedings, while if considered in isolation may not be sufficient evidence of a substance abuse problem, when viewed in context, are indicative of one that is ongoing and unresolved. We acknowledge father was able to provide negative tests. Juvenile courts have noted in other contexts, however, that longstanding and chronic abuse is a serious problem not ameliorated in a short time. (See, e.g., In re Amber M. (2002) 103 Cal.App.4th 681, 686-687 [relapse following 300 days of sobriety]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424 [200 days insufficient to convince juvenile court that a relapse would not occur].) Moreover, father's resistance to admitting an issue or going to counseling despite being advised to even when he was otherwise cooperative is further indicative of current substance abuse issues.
Father contends we cannot consider any evidence the department did not raise in argument at the disposition hearing. We disagree. The juvenile court admitted the department's reports into evidence and expressly stated it had read and considered them and made its findings based on the information contained therein. Further, we not only may but shall review the entire record for substantial evidence to support the juvenile court's findings.
Father argues the evidence of his substance use would not be sufficient for the court to take jurisdiction over the children, noting substance abuse alone, without evidence of a resulting non-speculative risk of harm is not generally sufficient to support a jurisdictional finding. He argues, by analogy that the evidence here was not enough to prove detriment by clear and convincing evidence because there was no causation between his substance use and harm to the children. Following father's example in looking to dependency jurisdictional law, we disagree. The appellate court in In re Drake M. (2012) 211 Cal.App.4th 754, created a presumption in jurisdiction cases where, in cases involving children of " 'such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety,' " a finding of substance abuse is prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of harm. (Id. at pp. 766-767.)
Here, the children's ages were 14, 11, 10, seven, five, four, four, and 11 months. Assuming, as father alleges, his roommates and mother would have moved out upon the children's placement with him, he would have been the only adult in the home and would have been the sole caretaker of the children at least some of the time. The "tender years" presumption is persuasive here where at least the youngest four if not all of the children are of "tender years" where the absence of adequate supervision and care poses an inherent risk to their physical health and safety. (See In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219 [children who were six years old or younger were found to be of "tender years" for the purposes of the application of the Drake presumption].) Father's failure to begin to address his substance abuse issues at the time of disposition was evidence of detriment to the children's safety.
Based on the totality of the evidence, we find the juvenile court's finding of detriment based on mother's living in father's home and his substance abuse issues by clear and convincing evidence to be supported by substantial evidence. We conclude the court did not err by denying father's request for placement. II. The Court's Alleged Failure to Consider Options Under Section 361 .2 , Subdivision (b)
In addition to arguing father's substance use and mother's presence in the home were not substantial evidence of detriment, father argues that no allegations were alleged or sustained by the court in the section 300 petition pertaining to him, and the issues raised by the department regarding his housing were not evidence of detriment. We acknowledge, as does respondent, that father was not listed in the allegations in the petition. We also note that our conclusion that the juvenile court's finding was supported by substantial evidence is not based on alleged deficiencies in father's housing, and it appears the juvenile court's findings were similarly not based on this. Father also argues the juvenile court's finding was not supported by substantial evidence because the siblings could be placed together in his home. While we acknowledge this may be evidence supporting an order placing the children with the father; because our task is to look to whether substantial evidence supports the order that the juvenile court made, we view father's raising this issue as requesting we reweigh the evidence, which we are not permitted to do.
Father argues the juvenile court erred by failing to exercise its discretion to place the children with him under the options available in section 361.2, subdivision (b). We disagree.
Under section 361.2, subdivision (b), "If the court places the child with the noncustodial parent [pursuant to section 361.2, subdivision (a)], the court initially has three alternatives. The court may order the noncustodial parent to assume custody of the child, terminate juvenile court jurisdiction and enter a custody order. (§ 361.2, subd. (b)(1).) It may continue juvenile court jurisdiction and require a home visit within three months, after which the court may make orders as provided in subdivision (b)(1), (2) or (3). (§ 361.2, subd. (b)(2).) Or the court may order reunification services to be provided to either or both parents and determine at a later review hearing under section 366.3 which parent, if either, shall have custody of the child. (§ 361.2, subd. (b)(3).)" (In re Adrianna P. (2008) 166 Cal.App.4th 44, 55, first italics added.)
The juvenile court's task when a noncustodial parent requests placement is a "two-step process." (In re Austin P. (2004) 118 Cal.App.4th 1124, 1131.) "The court must first determine whether it would be detrimental to the child to temporarily place the child in that parent's physical custody. If there is no showing of detriment, the court must order the Agency to temporarily place the child with the ... noncustodial parent. The court then decides whether there is a need for ongoing supervision." (Id. at p. 1135, italics added.)
The court, based on the plain language of the statute, as well as cases interpreting it, does not consider the options contemplated in section 361.2, subdivision (b) until it has made the decision to place the children with the noncustodial parent. Father suggests that because he had completed parenting and child neglect counseling, had participated in drug testing, visited with the children, maintained employment, and obtained visits, any other concerns regarding the children's safety could have been alleviated with unannounced visits and conditions of supervision. We acknowledge the efforts father made to obtain placement of the children. Father overlooks, however, that one of the juvenile court's primary concerns was his unresolved substance issue which he had the opportunity to address yet failed to. Because we find no error in the court's finding of detriment, we cannot reach father's argument that the court erred by failing to properly consider its options under section 361.2, subdivision (b). Accordingly, his claim fails. III. The Department's Alleged Failure to Make Reasonable Efforts to Place the Children with Father
Father also argues the department did not make reasonable efforts to place the children with him. He acknowledges section 361.2 contains no such requirement. He points out, however, that section 361, the statute which governs in part removal of children from the custody of custodial parents, includes subdivision (e) which requires the juvenile court to make a determination as to whether reasonable efforts were made to eliminate the need for removal of the minor from his or her home. Father argues due process requires a parallel requirement in cases where a noncustodial parent has requested placement.
To support his due process claim, father cites In re Marquis D. (1995) 38 Cal.App.4th 1813 (Marquis D.). In Marquis D., the appellate court held that a finding of detriment under section 361.2, subdivision (a) must, to comport with the requirements of the due process clause, be made by clear and convincing evidence. (Marquis D., supra, at p. 1829.) The Marquis D. court noted "applying a clear and convincing standard of proof to remove custody from the custodial parent while denying placement with the noncustodial parent based on a preponderance of the evidence would lead to the anomalous result that a parent who had no connection with the circumstances that brought the child within the jurisdiction of the court could have his or her rights terminated upon a lesser showing than the parent who created those circumstances." (Ibid.) By analogy, father contends it would be similarly "anomalous ... to require the department to make reasonable efforts to prevent the removal of minors from an offending parent while requiring no efforts to permit placement with a nonoffending, noncustodial parent." Father goes on to argue the record did not support a finding that the department made reasonable efforts to place the children with father.
Assuming without deciding that the court was required to find the department made "reasonable efforts" to place the children with father despite there being no provision for such in section 361.2, we conclude that on the facts in the present case, any error is harmless. A court's failure to make findings regarding a minor's change or custody or commitment will be deemed harmless where " 'it is not reasonably probable such finding, if made, would have been in favor of continued parental custody.' " (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.)
Here, had the court made findings with regard to the department's efforts to place the children with father, we conclude it is not reasonably probable the court would have found the department had not made reasonable efforts. Among the reasons the department was concerned about placement with father was his unresolved substance abuse. It is uncontroverted that father was advised to participate in substance abuse counseling and expressed that he did not believe it was necessary and would not do so unless ordered by the court. Father contends reasonable efforts the department should have made to ensure placement with him would have been to assess his home earlier and give him guidance on how to make his home more appropriate. These efforts, however, would have not ameliorated the substance abuse issue, which father declined to even begin addressing.
Father has not shown prejudice. Accordingly, we find no reversible error.
DISPOSITION
The juvenile court's order is affirmed.
SMITH, J. WE CONCUR: POOCHIGIAN, Acting P.J. SNAUFFER, J.