Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. BJP016105. Thomas L. Bender, Judge.
Patrick M. Keene, under appointment by the Court of Appeal, for Defendant and Appellant.
David A. Prentice, County Counsel, Miranda P. Neal, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Gomes, J.
This is a mother’s appeal from the dispositional orders of the juvenile court. The juvenile court adjudged appellant Sarah C.’s minor son, Michael R., a dependent of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (c), and ordered that Michael be removed from his father’s care and custody. Sarah, the noncustodial, nonoffending parent, objects to the juvenile court’s refusal to place Michael with her at disposition. We conclude that the court failed to make the required findings under section 361.2, subdivision (a), and will reverse.
All further references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARIES
Thirteen-year-old Michael was taken into custody and placed in foster care on August 23, 2007, after he reported to police that his father, Dean R., beat him on a number of occasions beginning at age six. The two were at a Carl’s Jr. restaurant when Dean got angry because Michael admitted he had talked to another student about playing football. Dean slammed a cup down onto the table and yelled at Michael to get into the car. When Michael asked if Dean was going to hit him, Dean told Michael if he did not get in the car he would get his “‘ass whipped.’” Michael, afraid, went back into the restaurant and called his paternal grandmother. Dean called the police and reported he had an “out of control” son.
Michael lived with Dean as a result of a custody order issued after his parents separated eight years ago. His two sisters live with Sarah. Although the custody order calls for regular visitation with Michael, according to Sarah, no one followed it. Also according to Sarah, Dean severely restricted her contact with Michael. Sarah and Dean are not divorced. Their relationship remains volatile, with incidents of domestic violence. Sarah had a restraining order against Dean that expired in 2005 and, at the time of hearing, she had an application pending to renew it because of recent harassment and threats by Dean. Despite this history, in August 2007, when Sarah was homeless, Sarah, along with the two girls and Sarah’s fiancé, moved in with Dean for about a month. Sarah also lived with Dean over the winter holiday period in 2006 for the same reason.
Respondent Madera County Department of Social Services (department) filed a petition on August 27 alleging that Michael was a minor within the meaning of section 300, subdivisions (a) and (c), because he was at risk of suffering serious physical and emotional harm inflicted by Dean. At the jurisdictional hearing, Michael testified that Dean would beat him when he was angry at something Michael did. On one occasion, Michael suffered a cut lip. On another, he suffered a black eye and a burst blood vein. On yet another, he was pulled from a bunk bed and hit his head on a dresser, leaving a bump on the back of his head. This incident was confirmed by Michael’s paternal grandmother. Dean denied he ever hit Michael, but admitted threatening him. Michael testified he is frightened of his dad. He told the social worker he has stomach aches and anxiety and is always in fear of his father hitting him. As a result of the evidence, the juvenile court sustained the petition and set the matter for disposition. Sarah does not challenge the jurisdictional findings.
At the dispositional hearing, the recommendation was to leave Michael in foster care, where he was doing well, and to provide reunification services to both Sarah and Dean. Sarah objected, asking that Michael be placed with her. Even though there are no concerns about the interaction between Sarah and Michael, the social worker testified that she did not believe Sarah could protect Michael from Dean. Sarah had reported to the social worker that she was unsure of her ability to stop Dean if he came after Michael. There had been incidents of domestic violence within the last year when Sarah lived with Dean. In addition, the social worker stated that Sarah’s living conditions were unstable. She had been, until recently, essentially homeless. She had only been in her two-bedroom apartment one week and therefore the department was unable to know whether her living condition had stabilized.
After hearing and considering the evidence, the juvenile court followed the department’s recommendations and ordered that Michael remain in foster care and that both parents be provided reunification services. The juvenile court did state that it believed, with some work, Sarah would be able to have Michael in her care. It gave the department the discretion to return Michael to Sarah if it deemed it appropriate to do so.
DISCUSSION
The only issues on appeal are whether the juvenile court made the necessary findings required by section 361.2, when a noncustodial, nonoffending parent wants the child returned to his or her care and whether, if we imply such a finding, there is sufficient evidence to support it.
Section 361.2, subdivision (a), provides as follows: “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.” The finding of detriment must be made under the clear-and-convincing-evidence standard. (In re John M. (2006) 141 Cal.App.4th 1564, 1569; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1827.) Section 361.2, subdivision (a), evidences “the Legislative preference for placement with [the noncustodial, nonoffending] parent .…” (In re Austin P. (2004) 118 Cal.App.4th 1124, 1132.) If a noncustodial parent requests custody of a child, the juvenile court must determine whether placement with that parent would be detrimental to the child. (§ 361.2, subd. (a).) In making a finding of detriment, the juvenile court may consider any jurisdictional findings that may relate to the noncustodial parent, as well as any other evidence, in determining whether there exists a protective risk to the child if placed with the noncustodial parent. In the absence of a finding of detriment, the court must place the child with the noncustodial parent. (§ 361.2, subd. (a); In re V.F. (2007) 157 Cal.App.4th 962, 970.) Section 361.2, subdivision (a), requires the juvenile court to make its finding of detriment “in writing or on the record of the basis for its determination under subdivisions (a) and (b).” (§ 361.2, subd. (c); see In re Marquis D., supra, 38 Cal.App.4th at p. 1824.)
The juvenile court did not make the required finding of detriment. Indeed, we find no evidence in the record that the court made its dispositional order in consideration of the statutory requirements governing a noncustodial, nonoffending parent’s request for custody. At the dispositional hearing, the juvenile court stated it was going to follow the recommendation of the department because Michael had not lived with Sarah for some time and that “[t]his is a new thing for both of them. In my mind, there has been [a] somewhat unstable history regarding Mom’s living arrangements, also with respect to her work.” The court commented that Sarah’s two-bedroom apartment was inadequate for Sarah, her fiancé, two daughters, and Michael. In response, Sarah’s attorney noted for the court that the department had a clear and convincing burden to prove that it would be detrimental to place Michael with Sarah. This is the only reference to the requirements of section 361.2. The dispositional report makes no reference to the governing standards and states only in conclusive terms that the parents have a very volatile relationship, are very invested in their custody battle, and that Michael would be at risk of emotional abuse due to the ongoing fighting between the mother and father if placed with Sarah. The juvenile court, however, makes no reference in its dispositional order to any risk of harm to Michael due to his parents’ relationship.
The department argues that this court should imply a finding of detriment and that there is sufficient evidence to support a detriment finding. “However, where the trial court has failed to make express findings the appellate court generally implies such findings only where the evidence is clear. [Citations.]” (In re Marquis D., supra, 38 Cal.App.4th at p. 1825.) “Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.]” (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) Furthermore, “[i]mplying a finding of detriment under section 361.2 … presupposes the court considered the correct code provision.” (In re Marquis D., supra, 38 Cal.App.4th at p. 1824.)
On this record we do not find clear evidence of detriment and are not confident the juvenile court would reach the same conclusion had it analyzed the case under the proper statutory authority. There are problems with the reasons given by the court for denying Sarah custody of Michael. There is no evidence the newness of living with Sarah would prove harmful to Michael. (See In re John M., supra, 141 Cal.App.4th at p. 1570 [dependent juvenile’s lack of relationship with noncustodial, nonoffending parent or fact that this parent lived in Tennessee insufficient to support finding of detriment].) Moreover, Sarah and Michael lived together in the same house for several months in the prior year and have had regular contact through the extended family. We also question whether the size of the apartment or Sarah’s unstable work history is sufficient proof of detriment to justify rejecting Sarah’s request to have Michael placed with her. A parent’s right to care, custody, and management of a child is a fundamental liberty interest protected by the federal Constitution that will not be disturbed except in extreme cases where a parent acts in a manner incompatible with parenthood. (In re Carmaleta B. (1978) 21 Cal.3d 482, 489.) The issue in dependency cases is not whether the parent is living up to the community’s standard of what is appropriate parenting, but instead, whether the parent’s conduct is harmful to the child in that it will cause serious physical harm or illness or a risk of serious physical harm or illness. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 716.) Under the requirements of section 361.2, subdivision (a), the issue is whether the noncustodial, nonoffending parent’s conduct is harmful to or poses a risk of harm to the removed child. There is no evidence in this record that living in a two-bedroom apartment with a mother who has an unstable job history and has not been the custodial parent would harm Michael. Sarah testified she could get a larger apartment as soon as Michael came to live with her and she had sufficient income.
There is arguably evidentiary support for a finding that Sarah may be unable to protect Michael from Dean. This could support a finding of detriment given the reasons for jurisdiction in the first instance. Sarah admitted to the social worker that she was unsure of her ability to stop Dean if he came to take Michael. She also testified that she did not always feel safe as a result of the animosity between the two of them. And, she has failed to enforce her visitation and child support orders, arguably evidence that she is not in the habit of standing up to Dean. But, had the dispositional report and juvenile court focused on the correct statutory provision, the case may have presented differently. Sarah may have been able to articulate a safety plan. There is certainly nothing in the case plan that addresses the need for Sarah to work on a safety plan for herself or Michael. If this indeed was the reasoning of the department and the juvenile court, there is nothing in the reunification services being offered that would allow Sarah to address the problem and make it possible for Michael to live with her. We cannot say the evidence of detriment on this theory is clear. (In re Luke M., supra, 107 Cal.App.4th at p. 1426.)
Because this risk is one we have identified and one the juvenile court and the department have neither asserted nor addressed in the dispositional orders, we decline to imply a finding of detriment on this ground. Instead, we agree with the court in In re V.F., supra, 157 Cal.App.4th at page 973, that the better practice is to remand the matter for the juvenile court to consider the facts within the framework of the appropriate statutory provision. “Section 361.2, subdivision (c) is directed to the juvenile court, and we do not believe making express findings is an appropriate task for a reviewing court. This view comports with the long-standing rule that the reviewing court is not the finder of fact. [Citation.]” (Ibid.)
Here, the court made findings of detriment limited to Dean but made no finding of detriment as to Sarah. Because Sarah is the noncustodial, nonoffending parent, and she has asked for custody of Michael, section 361.2, subdivision (a), requires that Michael be placed with her unless the court makes an express finding of detriment specific to placement with Sarah. We decline to imply a finding of detriment under these circumstances.
DISPOSITION
The dispositional orders of the juvenile court are reversed and remanded for a determination under section 361.2, subdivision (a).