Opinion
E070097
12-12-2018
In re J.Z., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. A.G., Defendant and Appellant.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INJ014688) OPINION APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge. Affirmed. Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
A.G. (Father) is the presumed father of six-year-old J.Z. J.Z. was removed from parental custody due to C.Z.'s (Mother) chronic and unresolved substance abuse history and history with child protective services, and Father's failure to protect him. At the time of J.Z.'s removal, Father lived in Texas. Following extended visits with Father, J.Z. was eventually placed with his half sister in a nonrelative family home. Father appeals from the juvenile court's placement order, arguing the juvenile court failed to consider J.Z.'s placement with Father under Welfare and Institutions Code section 361.2. For the reasons explained below, we affirm the juvenile court's placement order.
Mother is not a party to this appeal.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the Riverside County Department of Public Social Services (DPSS) on September 15, 2017, when a referral was received alleging Mother was using drugs again. The referral also alleged that Mother had physically abused J.Z.'s half brother, E.Z. The maternal grandfather reported that he had smelled " 'rubbery plastic' " burning from Mother's room and that he suspected Mother was using methamphetamine again. J.Z. stated that there were times when he did not go to school or eat because Mother did not wake up. The maternal grandfather also reported that he had observed J.Z.'s mother and her boyfriend hit each other and call each other " 'bad words.' " J.Z.'s half siblings confirmed the allegations.
J.Z. and his half siblings were taken into protective custody. On October 19, 2017, a petition was filed on behalf of J.Z. and his half siblings pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The petition was amended on October 24, 2017.
J.Z.'s half siblings are not parties to this appeal.
The detention hearing was held on October 25, 2017. Father, who lived in Texas, was present by speakerphone and was found to be the presumed father of J.Z. Father requested placement of J.Z. and was amenable to a hair follicle test. The juvenile court formally detained J.Z. and his younger half sibling from parental custody. The court also ordered DPSS to facilitate a hair follicle drug test of Father in Texas, coordinate an evaluation of his home, and provide information to the court on whether placement was appropriate. In addition, the court provided Father with supervised visitation while he was in California, as well as by "Skype, Video Chat, FaceTime, and telephone."
The social worker spoke with Father on November 3, 2017. Father confirmed that he was contacted by a Texas social worker and that he had completed a home assessment. Father was informed about the next steps in completing an interview and complying with the court order for a drug test, but he declined. Father was more concerned about child protective services being involved in his life and commented that he did not want J.Z. in his care. After commenting about giving the paternal grandmother care, Father abruptly ended the phone call. The social worker thereafter attempted to contact Father to complete the interview several times without any success. The paternal grandmother reported that Father was busy with work and expecting a new baby. Father eventually called the social worker and left a voice message stating that he had not done anything wrong and that DPSS should focus on Mother instead of him. The social worker attempted to contact Father numerous times thereafter, and provided him with information to complete the drug test. Father, however, did not make himself available to DPSS.
The maternal grandmother reported that Father had been the only father of her six grandchildren who had no contact with his child and had shown no interest. Mother reported that she had met Father while she was partying and that they had used drugs together. She also stated that Father was the closest person she had to a relationship but that he was a negative influence on her. She noted, "He was always into drugs and criminal activity." Mother admitted to using methamphetamines on a daily basis during her six pregnancies. She also noted that she had tried many programs to remain clean and sober and was doing well but relapsed after Father was released from prison and she began using drugs with Father. She also stated that J.Z. did not know who his father was and that Father had only met J.Z. once in 2015. She further asserted that Father had stopped paying child support when J.Z. was three years old and that he had other children he did not care for either. Father had five other children, three of whom were of adult age, and was expecting another child with his current girlfriend K.M.
A Texas social worker conducted a home evaluation of Father's home and found it to be unsafe for a child. She described the home as old and dirty, and had falling kitchen cabinets and an exposed heater in a window with open cracks to the outside. She had attempted to take photos of the home. However, Father would not allow her to take the photos. Father also declined to take a drug test and adamantly denied ever using drugs or having a history of using them. The Texas social worker was also concerned that Father spoke about not wanting J.Z. to live with him but live instead with the paternal grandmother.
In addition, Father had a history with child protective services. In March 2014, it was reported that Father and K.M. used methamphetamine and alcohol, resulting in domestic violence. K.M. admitted to using methamphetamine and insinuated that Father sold drugs as well. The referral was closed out as "inconclusive." In March 2015, DPSS received another referral alleging general neglect. During the investigation, K.M. admitted to using methamphetamine. It was also noted she had previously completed a treatment program but had a long history of relapsing. The investigation was closed as "inconclusive," because "neglect could not be correlated to neglect of the children."
Father also had a prior dependency case involving his son, J.Z. In that case, on April 6, 2016, the court ordered family maintenance services for Mother and denied services to Father pursuant to section 361.2, subdivision (a). The court also made a finding pursuant to section 361.2 that placement with Father was detrimental to J.Z.'s safety, protection, and emotional well-being. On October 6, 2016, the court terminated the dependency and granted sole physical and legal custody to Mother and joint legal custody to Father.
On June 19, 2018, this court granted CFS's motion filed on June 15, 2018, to augment the record on appeal. --------
On November 3, 2017, the social worker spoke with Father over the telephone. Father again declined to take a drug test and was fixated on DPSS needing to focus on Mother. After he was advised that the drug test was a court order, Father commented that he did not need to take a drug test. Father also noted that he did not want J.Z. to live with him and asked about J.Z. living with the paternal grandmother instead. The Texas social worker thereafter made multiple attempts to contact Father, but received no answer.
On November 6, 2017, the social worker spoke with the paternal grandmother. At that time, the paternal grandmother requested placement of J.Z. with her in Texas.
On November 17, 2017, the Texas Department of Family and Protective Services (Texas DFPS) opened an investigation, reporting Father's girlfriend K.M. had tested positive for opiates at the time of Father's newborn baby's birth. The newborn baby was premature at 33 weeks of gestation and weighed only three pounds.
Father had a long criminal history, dating back to 2001, for numerous drug and theft-related convictions. He also had a 2014 conviction for assault causing bodily injury to a family member, a 2016 conviction for aggravated assault with a deadly weapon and assault causing bodily injury to a family member, and a 2017 conviction for terrorist threat to a family member/household.
DPSS recommended that physical custody of J.Z. be removed from both of his parents pursuant to section 361, subdivision (c)(1), that the Court order family reunification services to Father, and the court deny services to Mother. Father did not make himself available to DPSS to respond to the allegations in the petition.
When asked about living with Father, J.Z. stayed quiet. The maternal grandmother did not want Father to have custody of J.Z. because he had an unresolved drug problem. The paternal grandmother stated that she believed Father had met J.Z. a few times, but Mother did not allow telephone contact. The paternal grandmother employed Father as a construction helper and paid him in cash. Father made on average $2,000 a month.
On January 4, 2018, Father was present in court and requested custody of J.Z. He said the last time he was able to visit his son was two years prior. Father's trial counsel argued that under "In re C.M., a 2015 case, 232 Cal.App.4th 1394, that the court has to make a finding of detriment . . . ," and argued that Father was not the offending parent. After being informed the Texas DFPS had closed its investigation, the juvenile court stated that a closed investigation "doesn't negate the fact that there were issues of premature birth and" a positive drug test. DPSS's counsel argued that Father had yet to make contact with his child despite orders allowing him to have telephonic and in-person visits. Minor's counsel asserted that Father was not very cooperative and refused to drug test, but could not say there was detriment. Mother's attorney argued that separating J.Z. from his siblings would be detrimental. Following argument, the juvenile court ordered DPSS to arrange a special visit for J.Z. with Father in Texas for a few weeks and ordered Father to bring the child back for the next court hearing.
On January 6, 2018, the social worker spoke with the Texas DFPS, and confirmed that the Texas DFPS had closed its investigation. Texas DFPS reported that there was no longer an active investigation in Texas to warrant their involvement.
On January 29, 2018, neither J.Z. nor his father was present at the contested jurisdictional/dispositional hearing. The court was advised that Father could not be present because his girlfriend K.M. was in "pre-op." The court ordered DPSS to pick up J.Z. from Texas, return him to California, and place him in suitable care. The court expressed concern about Father based upon his lengthy criminal history in California and ordered a national or Texas criminal rap sheet for Father, clarification of the Texas child protective services referrals, and any child protective services history for Father and K.M.
On January 31, 2018, J.Z. returned to California and was placed with his half sister in her paternal grandmother's home. J.Z.'s half sister's paternal grandmother reported that J.Z. arrived at her home with head lice. While picking up the child, DPSS's social worker observed that Father "appeared to be under the influence of a drug as his eyes were blood shot and he avoided eye contact." J.Z. stated that he wanted to be with either his mother or his sister's paternal grandmother, and denied feeling scared of anyone in his father's home. J.Z. said that his father was nice to him all the time. Father reported no concerns with J.Z.'s behavior or emotional welfare.
DPSS attempted to reach Father on February 5, 9, and 16, 2018. On February 16, 2018, Father spoke with a DPSS social worker. Father told the social worker that he did not want to deal with DPSS and he refused to speak about his substance abuse history. Father was uncooperative and resistant to providing information about his current situation. The social worker was concerned about his extensive unaddressed substance abuse history and his repeated refusal to comply with the court-ordered hair follicle test.
In accordance with the court's January 29, 2018 order, DPSS provided additional information about Father and K.M. K.M. was a narcotics registrant in California and her last registration date was in March 2011. She had three criminal convictions in 2007 and 2009, including one for possession of controlled substances. K.M. had 11 child protective services referrals from 2007 to 2016 with her former partner, E.G., and one with Father in 2017.
In 2007, K.M. was arrested for commercial burglary and child endangerment, and was referred to drug treatment due to methamphetamine abuse. In 2008, DPSS substantiated a general neglect referral as to K.M. due to her continued abuse of methamphetamine. While K.M. had participated in drug treatment, she had continued to abuse drugs, and her children with E.G. were placed in protective custody.
In 2010, DPSS received a general neglect referral due to K.M.'s drug use. K.M. admitted to a long history of using methamphetamine, an inability to remain clean, last using methamphetamine eight months before, and entering drug treatment due to her recent arrest for drug-related charges. As she appeared stable, the referral was closed.
In 2011, DPSS had an unfounded referral against K.M. K.M. stated she had never cared for her children and was feeling overwhelmed by her recent sobriety.
In 2013, DPSS received a general neglect referral that was closed as inconclusive as to K.M. K.M. admitted relapsing on methamphetamine. The referral was closed because the drug use could not be correlated to the abuse or neglect of her children. The children were left with the paternal grandmother.
In 2014, DPSS received a referral that was deemed inconclusive as to K.M. K.M. admitted being an addict and using methamphetamine and refused to enter treatment. DPSS was unable to determine whether child abuse or neglect occurred.
In 2015, DPSS received a referral for general neglect in which K.M. admitted using methamphetamine along with her previous partner E.G. E.G.'s mother was the primary caregiver for the children and resided with the family.
In November 2017, Texas DFPS received a general neglect referral regarding drug use by both K.M. and Father. Father refused to complete a hair follicle test and denied ever having used methamphetamine. However, a month later, Father provided a negative urine drug test for all controlled substances. As such, Texas DFPS closed its investigation and concluded the referral was unfounded.
The contested jurisdictional/dispositional hearing was held on February 26, 2018. Father was present in court. The juvenile court found true the allegations in the second amended petition, including allegation b-6 concerning Father. Allegation b-6 stated that Father was not a member of the child's household and had failed to provide his child with adequate food, shelter, clothing, medical treatment, support, and/or protection. J.Z. was declared a dependent of the court, and removed from parental custody under section 361, subdivision (c)(1). Reunification services were denied to Mother under section 361.5, but ordered as to Father. The juvenile court ordered an ICPC for the paternal grandmother. The court also authorized liberal visitation for Father in California and ordered at least two lengthy visits for Father in Texas. The court found placement with Father would be detrimental to J.Z.
At the hearing, Father's counsel requested for J.Z. to be placed with Father with custody orders. Mother's counsel recounted a text by Father wherein he stated " 'I never wanted custody. I never wanted anything to do with you or our son.' " Mother expressed concerns about Father's anger issues. In addition, both minor's counsel and Mother's counsel expressed concern about Father being observed under the influence, his past drug use, and his refusal to drug test. The court stated "I really wanted to try to place the child with [Father]. . ." but in light of Father's "extensive history of substance abuse in the past and so forth, and that gave us some concern. But [Father] failed to follow through with any of the requests to help us alleviate those concerns." The court also stated the reasons not to place J.Z. in Father's care included "[F]ather appeared to be under the influence," his criminal history and his girlfriend's issues. The court further explained that it "believes it's detrimental to place the child with the father at this time based upon all these concerns I have. Therefore I am not placing."
Father objected to the court's findings. On February 26, 2018, Father filed a timely notice of appeal.
III
DISCUSSION
Father argues the juvenile court erred when it applied the wrong legal standard in determining J.Z.'s placement. Specifically, he asserts that the court removed J.Z. from both parent's custody pursuant to section 361, subdivision (c), which was error in this case, because Father was not a custodial parent. He therefore argues that the juvenile court should have conducted an analysis under section 361.2 before removing J.Z. from his care. DPSS responds that Father was an offending parent, and therefore section 361.2 was not applicable. In the alternative, DPSS contends assuming section 361.2 applied, the juvenile court made express detriment findings, and substantial evidence supports those findings.
Section 361.2, subdivision (a), provides in part that "[w]hen 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." The section further provides that "[i]f 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." (§ 361.2, subd. (a).) If the parent wants the child placed with him, the court must do so unless there is clear and convincing evidence of detriment. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1829 (Marquis D.).)
Under section 361.2, subdivision (a), the court examines whether it would be detrimental to temporarily place a child with the nonoffending noncustodial parent; under subdivision (b), the court decides whether that placement should be permanent and whether the court's jurisdiction should be terminated. (In re Austin P. (2004) 118 Cal.App.4th 1124, 1131 (Austin P.).) "[T]he Legislature envisioned a two-step process: under [section 361.2,] subdivision (a), the court examines whether it would be detrimental to temporarily place a child with the nonoffending noncustodial parent; under subdivision (b), the court decides whether that placement should be permanent and whether the court's jurisdiction should be terminated." (Austin P., at p. 1131.) In assigning custody of the child to either parent, "the court's focus and primary consideration must always be the best interests of the child." (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.) If the dependency court finds that placement with the noncustodial parent would be detrimental, the court proceeds as to that parent as if it were removing the child from the custodial, offending parent. The court may provide reunification services under section 361.5, or no services if services are not warranted. (See In re Terry H. (1994) 27 Cal.App.4th 1847, 1855, superseded by statute on other grounds as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 53-54, 58, fn. 8 (Adrianna P.).)
" 'Our role in construing a statute is to ascertain the Legislature's intent so [that we may] effectuate the purpose of the law.' " In that regard, "[w]e consider first the words of the statute because they are generally the most reliable indicator of legislative intent." (In re J.W. (2002) 29 Cal.4th 200, 209.) Where, as here, " ' "the statutory language is unambiguous, we presume the Legislature meant what it said, and the plain meaning of the statute controls. [Citation.]" [Citation.] We consider extrinsic aids, such as legislative history, only if the statutory language is reasonably subject to multiple interpretations.' " (In re W.B. (2012) 55 Cal.4th 30, 52.)
The word "nonoffending" is not found in the text of section 361.2. This term first appeared in the case law in Marquis D., supra, 38 Cal.App.4th 1813, where the court used the term to denote a parent who was not involved in the conduct that caused removal of the child from a parental home under section 361. (Marquis D., at p. 1823.)
In several subsequent decisions, courts assumed, without deciding, that section 361.2 applied solely to nonoffending parents, and have not analyzed whether the statute could apply to a noncustodial parent who was also the subject of the current dependency proceeding. Courts have characterized section 361.2, subdivision (a), as permitting placement with a "nonoffending noncustodial parent," as though "nonoffending" is a separate statutory requirement. (See, e.g., In re Joshua G. (2005) 129 Cal.App.4th 189, 202; Austin P., supra, 118 Cal.App.4th at pp. 1129-1132; In re Isayah C. (2004) 118 Cal.App.4th 684, 700.) While none of those decisions specifically discusses the meaning of "nonoffending," it appears that they use "nonoffending noncustodial parent" as shorthand for the statutory requirement of a parent "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." (§ 361.2, subd. (a).)
Our decision in In re A.A. (2012) 203 Cal.App.4th 597 (A.A.) is instructive. In that case, the child was removed from his mother's care due to the mother's drug charges based on section 300, subdivision (b). The court placed the child with the father and dependency jurisdiction was terminated. However, while the mother was incarcerated on the drug charges, a new dependency proceeding was initiated based upon the father's physical abuse of the child. After the father failed to reunify, the court set a selection and implementation hearing. The mother filed a section 388 petition seeking reunification services and argued on appeal that the court erred in failing to consider her for the child's placement under section 361.2. (A.A., at pp. 602-604.) This court in A.A. held that the court was not required to consider the mother for placement because she was neither nonoffending nor noncustodial within the meaning of section 361, subdivision (c) and 361.2. (A.A., at p. 604.) We recognized in A.A. that the court in In re V.F. (2007) 157 Cal.App.4th 962 (V.F.), superseded by statute on other grounds as stated in Adrianna P., supra, 166 Cal.App.4th at pp. 57-58, found that incarceration should not preclude a noncustodial parent from obtaining custody under section 361.2 where the parent can make arrangements for the child's care. However, in A.A., we distinguished the case from V.F. on the basis that the mother was the subject of a section 300, subdivision (b) allegation. In A.A., we concluded that "While an incarcerated parent can avoid jurisdiction under section 300, subdivision (g) by arranging for his or her child's care [citations], the same is not true of a parent whose acts or omissions have led to jurisdictional findings under section 300, subdivision (b)." (A.A., at p. 607.)
Further, in A.A., supra, 203 Cal.App.4th 597, we rejected the core holding of V.F., supra, 157 Cal.App.4th 962, and found that the "juvenile court should not be required to consider placing a child with an incarcerated parent who has previously been the subject of a removal order due to acts or omissions by that parent that brought his or her child within the description of section 300, and whose custody right has not been restored. In other words, if the noncustodial status of the incarcerated parent is due to a prior dependency order removing custody, and there has been no intervening restoration of the parent's right to physical custody of the child, the court need not inquire if that parent desires to have the child placed with him or her." (A.A., at pp. 608-609.) In A.A. we elaborated: "a parent 'with whom the child was not residing at the time' of the initiation of the dependency, whether or not due to a family law custody order, is presumptively entitled to custody because he or she has not been previously found to pose a risk of harm to the child. It is reasonable to assume the Legislature intended to require a juvenile court to first consider placement of a child with this class of parent, to avert the trauma of a foster placement. A parent who is noncustodial because of a prior finding of detriment is not merely a parent 'with whom the child was not residing at the time' of the events that resulted in the dependency." (A.A., at p. 610.)
Here, the record shows that Father was an offending parent. DPSS had previously filed a section 300 petition as to J.Z. on December 24, 2015. On April 6, 2016, the juvenile court ordered family maintenance services for Mother and denied services to Father as a noncustodial parent. At that hearing, the juvenile court made a finding pursuant to section 361.2 that placement with Father was detrimental to J.Z.'s safety, protection, or emotional well-being. On October 6, 2016, the court terminated the dependency and granted sole physical and legal custody to Mother and joint legal custody to Father. DPSS filed a new section 300 petition as to J.Z. on October 24, 2017. The "court's previous removal order upon a finding of detriment in the prior dependency precluded the court from considering placement with [Father]." (A.A., supra, 203 Cal.App.4th at p. 606.) Father had lost physical custody of J.Z. due to removal in the earlier dependency upon a finding of detriment. (Id. at p. 607.) Therefore, in considering J.Z.'s placement with Father, section 361.2 did not apply because Father was an offending parent. (Id. at pp. 607-608.)
As we explained in A.A.: "Section 361.2 comes into play after a child has been removed from the physical custody of his or her parents under section 361, subdivision (c). Subparagraph (1) of section 361, subdivision (c), requires the court to consider allowing a nonoffending parent to 'retain physical custody' so long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm. We interpret the phrase 'retain physical custody' to mean that the parent seeking temporary placement of the child under section 361.2 must not have suffered a previous loss of custody of the child by a juvenile court order of removal after a finding of detriment. [¶] Reading section 361.2 in light of section 361, subdivision (c), the parent must be both a nonoffending and noncustodial parent in order to be entitled for consideration under section 361.2, that is, the parent must retain the right to physical custody, and must not have been the subject of a previous detriment finding and removal." (A.A., supra, 203 Cal.App.4th at p. 608.)
Because Father was the subject of a previous detriment finding, "[i]t is illogical to require a court to consider placing a child with a noncustodial parent who has already been determined to pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor." (A.A., supra, 203 Cal.App.4th at p. 610.) The juvenile court, therefore, properly applied the correct standard in denying J.Z.'s placement with Father.
In any event, assuming section 361.2 applied in this case, substantial evidence supports the juvenile court's finding that placement of J.Z. with Father would be detrimental. Reversal is not warranted if the error is harmless. The error is harmless if "it is not reasonably probable such findings, if made, would have" resulted in the outcome sought by the appellant. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) In other words, Father must demonstrate a reasonable probability that, in the absence of error, the lower court would have reached a decision more favorable to him. Otherwise, any error by the court is harmless. (See, e.g., In re D'Anthony D. (2014) 230 Cal.App.4th 292, 303 (D'Anthony D.) [failure to make detriment finding was harmless].)
In this case, the court removed J.Z. from the physical custody of both parents under section 361, subdivision (c)(1). Section 361, subdivision (c), provides in relevant part: "A dependent child shall not be taken 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, unless the juvenile court finds clear and convincing evidence of . . . . [¶] (1) . . . a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home . . . ." On the other hand, section 361.2, subdivision (a), as previously noted, provides: "When 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."
Despite the similar standards set forth in section 361, subdivision (c)(1), and section 361.2, subdivision (a), the statutes serve separate purposes and apply to different categories of parents. Section 361, subdivision (c), governs the removal from a custodial parent and " ' "does not, by its terms, encompass the situation of the noncustodial parent." ' " (V.F., supra, 157 Cal.App.4th at p. 969.) Section 361.2, subdivision (a), on the other hand, "is not a removal statute" (ibid.), but rather governs "placement [of a removed child] with a noncustodial parent." (D'Anthony D., supra, 230 Cal.App.4th at p. 303; see R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1270 [§ 361, subd. (c) "does not . . . encompass the situation of the noncustodial parent." Rather, section 361.2 governs the child's placement with the noncustodial parent.].)
Here, the juvenile court's purported error was in failing to apply section 361.2. Nonetheless, "Before any judgment can be reversed for ordinary error, it must appear that the error complained of 'has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13.) Reversal is justified 'only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citations.] A reasonable probability for these purposes does not mean an absolute probability; the likelihood that the error affected the outcome need not be greater than the likelihood that it did not. [Citation.]" (In re J.S. (2011) 196 Cal.App.4th 1069, 1078-1079 (J.S.), italics omitted.) Our courts have previously held that this "harmless error" analysis is applicable to the specific type of error at issue in this case: improperly assessing a noncustodial parent's custody request under section 361, subdivision (c)(1), rather than section 361.2, subdivision (a). (See D'Anthony D., supra, 230 Cal.App.4th at p. 303; In re Abram L. (2013) 219 Cal.App.4th 452, 463-464 [erroneous decision to apply section 361 rather than section 361.2 could not be "reverse[d] . . . unless . . . ' "it [was] reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error" ' "]; cf. J.S., at pp. 1079-1080 [juvenile court's failure to make findings required under § 361.2, subd. (c), subject to harmless error analysis].)
In D'Anthony D., supra, 230 Cal.App.4th 292, the court found that a juvenile court's misapplication of section 361 was harmless under circumstances similar to those presented here. In that case, the department filed a section 300 petition alleging the mother had physically abused her two children, placing them at substantial risk of harm. The father, a noncustodial parent living in Mexico, requested that the children be released to his custody. During a subsequent interview, both children stated that the father had previously struck his son with a belt. The son provided similar statements at the disposition hearing, testifying that the father had recently struck him in the face and hit him with a belt. The juvenile court denied the father's custody request, stating that it had found " 'by clear and convincing evidence there exist[s] a substantial danger to the children's health.' " (D'Anthony D., at p. 297.) The court explained that after hearing the child's testimony, it was " 'not comfortable releasing [the children] to [the father] period.' " (Id. at p. 304.) Following the hearing, the juvenile court filed a minute order "reflecting its substantial danger findings pursuant to section 361. The court made no finding with respect to section 361.2." (D'Anthony D., at p. 297.) Father appealed the order, arguing "that the juvenile court erred by failing to consider his request for custody under section 361.2." (Id. at p. 298.)
The appellate court agreed that because the father was a noncustodial parent, the juvenile court should have assessed the father's custody request under section 361.2, rather than section 361, subdivision (c)(1). The court further concluded, however, that the error was harmless "[i]n view of the juvenile court's 'substantial danger' finding under section 361, subdivision (c)(1), and the evidence supporting that finding with respect to [the] father." (D'Anthony D., supra, 230 Cal.App.4th at p. 303.) In its analysis, the court noted the "similarity between" the " 'substantial danger' " finding necessary to remove a child under section 361, subdivision (c), and the "detrimental" finding necessary to deny custody to a noncustodial parent under section 361.2. (D'Anthony D., at p. 303.) The court further explained that the record demonstrated the juvenile court had made an "unequivocal" finding against the father "under section 361" (id. at p. 304), and that the finding was supported by evidence he had physically abused his son. The court concluded that "[i]n view of this evidence, and the court's express finding under section 361, we cannot say it is 'reasonably probable' that the court would have made a different finding had it considered whether the placement would be detrimental to the children's safety or physical well-being under section 361.2." (Id. at p. 304.)
The D'Anthony D.'s analysis applies equally here. As explained in D'Anthony D., the mandatory finding necessary to remove a child from a custodial parent under section 361, subdivision (c)(1), is very similar to the finding necessary to deny a noncustodial parent custody request under section 361.2, subdivision (a). Under section 361, subdivision (c)(1), the juvenile court must find by clear and convincing evidence that returning the child to the custodial parent would be a "substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor." Under section 361.2, subdivision (a), the juvenile court must find by clear and convincing evidence that placing the child with the noncustodial parent "would be detrimental to the safety, protection, or physical or emotional well-being of the child." To the extent the two standards differ, section 361, subdivision (c)(1)'s requirement of a "substantial danger" findings appears to impose a stricter standard than the finding of "detriment" required under section 361.2.
Here, as in D'Anthony D., the juvenile court made an express finding that placing J.Z. with Father would pose a substantial danger to his "physical health, safety, protection, physical or emotional well-being." The court also expressly found that it was "detrimental to place the child with the father at this time based upon" concerns the court had. The court's decision was based on evidence in the record showing that: (1) Father had appeared to be under the influence when J.Z. was returned from Father's care in Texas; (2) Father had an extensive criminal history that included theft offenses, drug offenses and violent crimes; (3) Father had a "quite an extensive history of substance abuse in the past"; (4) Father failed to cooperate with DPSS to alleviate the substance abuse concerns; and (5) concerns with Father's girlfriend K.M. and violence in the home.
In view of this evidence, and the court's express finding against Father under section 361, subdivision (c)(1), it is not "reasonably probable" the court would have made a different factual finding had it considered whether the placement would be detrimental to J.Z.'s well-being under section 361.2.
Father's reliance on In re John M. (2006) 141 Cal.App.4th 1564 (John M.) is misplaced. The reviewing court in John M. held the juvenile court erred when it found that a child's placement with his noncustodial, out-of-state father would cause the 13-year-old boy detriment because of the boy's preference to live with an aunt, lack of contact between the child and his father, and the boy's need for services. (John M., at p. 1568.) Any similarities between John M. and this case are outweighed by the salient differences. Unlike in this case, (1) the father in John M. reestablished a relationship with his son one year prior to the dependency proceedings, (2) the father had no criminal history, and (3) there was no evidence the father was unable to provide for his son's needed services, which were unrelated to the boy's placement with the father. (Id. at pp. 1568, 1570-1571.) The court's decision in John M. was also based on the fact that the social services agency overseeing the boy had been lax in investigating the father as a potential placement and the boy's wishes about placement were "unclear." (Id. at pp. 1568, 1570, 1572-1573.)
Here, on the other hand, Father was uninvolved in J.Z.'s life. Father moved away from J.Z. who was in California and relocated to Texas. Father did not make any effort to call J.Z. and provided no support or care for J.Z. Moreover, despite Father's claims that Mother prevented him from having contact with J.Z., he did not make any effort to visit or call his son during this case. In fact, Father chose not to cooperate with DPSS in its effort to evaluate Father's home. Also, J.Z.'s desire not to live with Father in Texas was explicit. Father had failed to participate in J.Z.'s life and in this dependency case, effectively denying the court an opportunity to assess the safety of his home.
In sum, in light of the evidence in this case and the court's express findings against Father, it is not "reasonably probable" the court would have made a different finding had it considered whether the placement would have been detrimental to J.Z.'s well-being under section 361.2.
IV
DISPOSITION
The juvenile court's order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. I concur: RAMIREZ
P. J.
SLOUGH, J.
I concur in the judgment only.
SLOUGH
J.