Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD18543
McAdams, J.
In this appeal, the father of a dependent child challenges the juvenile court’s jurisdictional findings and its dispositional order. Concerning jurisdiction, he disputes a specific finding, arguing that the court should not have sustained it. As to disposition, the father contends that the court erred in failing to order reunification services and that his counsel was ineffective in failing to request them. For reasons explained below, we reject the father’s contentions concerning jurisdiction, but we reverse the dispositional order and we remand the matter to the trial court to determine whether the provision of reunification services to the father would be detrimental to the child.
BACKGROUND
The child whose interests are at issue in this proceeding is R.B. (the child). He was born in July 2002. The child’s presumed father is appellant R.B. (the father). The child has an older brother, born in August 1997, and a younger half-sister, born in May 2007; neither sibling is part of this dependency proceeding. All three children have the same mother. The mother is not a party to this appeal.
Detention
In November 2007, the child was placed in protective custody after being severely abused by his maternal aunt and uncle, in whose care the mother had left him. To support the child’s detention, an initial hearing report was filed by the Santa Clara County Department of Family and Children’s Services (Department).
The juvenile court detained the child and placed him with non-relative caretakers, with whom he had stayed for long periods in 2006 and 2007.
At the time of the child’s detention, the father was a federal prisoner facing deportation upon his anticipated 2008 release from prison.
Jurisdiction and Disposition
In November 2007, the Department filed a petition on the child’s behalf under section 300 of the Welfare and Institutions Code. The Department filed several amended petitions thereafter.
Further unspecified statutory references are to the Welfare and Institutions Code.
A hearing on jurisdiction and disposition was scheduled for December 2007. Acting through his attorney, the father requested a continuance to allow him to participate in the hearing by telephone from federal prison; the court granted the request. At the continued hearing in January 2008, a mediation was scheduled for the following month. The case did not settle at the mediation, and a contested hearing on jurisdiction and disposition was set for March 2008. In late February 2008, the father’s attorney advised the court that he was seeking an order placing the child in his care as the noncustodial parent, with the paternal aunt as a possible placement.
The contested hearing was held over four court days in March 2008. The court admitted the Department’s jurisdiction/disposition report, dated December 2007, and its three addendum reports, dated January, February, and March 2008, respectively. The court also admitted a letter from the father, in which he confirmed his requests concerning the child’s placement. In addition to the documentary evidence, the court heard testimony from a number of witnesses, including the mother, the paternal aunt, the child’s current caretakers, and the social worker.
At the conclusion of the contested hearing, the court took jurisdiction over the child. In its oral comments, the court addressed each allegation of the third amended petition. The court sustained most of the allegations without change, but it did amend or reject others. The court found that the maternal relatives had subjected the child to physical and sexual abuse and that the mother had not protected the child from the abuse. The court also found that the father had committed domestic violence against the mother prior to the child’s birth.
Concerning disposition, the court denied a motion made by the child’s attorney for a bypass of reunification services for the mother. The court also denied the father’s request for placement of the child with him. However, the court did make provisions for the father to send cards and letters to the child through the social worker; the court also asked the Department to “do an assessment of the paternal aunt” with authorization for monthly supervised visitation between her and the child. Without comment, the court adopted the Department’s written recommendation that reunification services be provided only to the mother. The court’s dispositional order also included this provision, submitted by the Department: “The previously noncustodial parent … shall not receive Family Reunification Services because he or she has not requested placement of the child.”
This appeal by the father followed. The father contests the jurisdictional finding of domestic violence; he challenges the dispositional order to the extent that it denies him reunification services; and he asserts that his counsel was ineffective in failing to pursue reunification. The Department and the child have filed separate respondent’s briefs on appeal; each disputes the father’s arguments.
DISCUSSION
To establish the proper framework for our analysis of the father’s contentions, we begin by summarizing the applicable legal principles.
I. Principles of Dependency Law
The Legislature has provided for juvenile court jurisdiction over dependent children. (See § 300 et seq.) The primary goal of the dependency statutes is “to ensure the safety, protection, and well-being of children who are at risk of abuse, neglect, or exploitation, while preserving the family whenever possible.” (In re David M. (2005) 134 Cal.App.4th 822, 824; see § 300.2; In re Marilyn H. (1993) 5 Cal.4th 295, 307.)
In dependency proceedings involving the removal of children from their parents, there are generally four phases: jurisdiction, disposition, reunification (unless bypassed), and the selection and implementation of a permanent plan. (In re Matthew C. (1993) 6 Cal.4th 386, 391.) The first three phases are at issue in this appeal.
A. Jurisdiction
To justify the court’s assumption of dependency jurisdiction, there must be evidence that the affected child falls within one or more of the statutory descriptions listed in section 300. (In re Sheila B. (1993) 19 Cal.App.4th 187, 198.) The agency must prove the allegations of the petition by a preponderance of the evidence. (§ 355, subd. (a); In re S.O. (2002) 103 Cal.App.4th 453, 461.)
The juvenile court takes jurisdiction over dependent children, not their parents. (In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) Thus “the court has jurisdiction over the children if the actions of either parent bring the child within one of the statutory definitions in section 300.” (Ibid.)
B. Disposition
The juvenile court “has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order” accordingly. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) Among the permissible dispositional choices is removing the child from the parent’s physical custody. (§ 361.)
When a child is removed from parental custody, the court must “determine whether there is a noncustodial parent that desires to assume custody of the child.” (In re Adrianna P. (2008) 166 Cal.App.4th 44, 59; § 361.2, subd. (a).) “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 … child.” (§ 361.2, subd. (a).) When the parent seeking custody is confined, the factors in assessing detriment include “the noncustodial incarcerated parent’s ability to make appropriate arrangements for the care of the child and the length of that parent’s incarceration.” (In re v.F. (2007) 157 Cal.App.4th 962, 966.)
C. Reunification
“When the child is removed from the home, the court first attempts, for a specified period of time, to reunify the family.” (In re Celine R. (2003) 31 Cal.4th 45, 52.) “Until permanency planning, reunification of parent and child is the law’s paramount concern.” (Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 546.) For that reason, parents of dependent children generally are entitled to reunification services “aimed at assisting the parent in overcoming the problems that led to the child’s removal.” (Ibid.; see Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597 [“a presumed father is generally entitled to reunification services”].) For dependent children over the age of three, the parents typically are “provided 12 months of child welfare services in order to facilitate family reunification, which may be extended to a maximum of 18 months.” (R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1269.) “The reunification phase of dependency proceedings is a critical aspect of the entire dependency system.” (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 755.)
The specific statute that governs the provision of family reunification services is section 361.5. Subdivision (a) of the statute sets forth the general rule that reunification services are required whenever a child is removed from the parent’s custody. But subdivision (b) provides exceptions; it describes a number of circumstances in which reunification services may be bypassed. “These bypass provisions represent the Legislature’s recognition that it may be fruitless to provide reunification services under certain circumstances.” (Francisco G. v. Superior Court, supra, 91 Cal.App.4th at p. 597; see also, e.g., Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744; but see, Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 97 [questioning the “fruitless” standard].) The party seeking denial of reunification services has the burden of proving that bypass is warranted. (In re Angelique C. (2003) 113 Cal.App.4th 509, 521.)
Section 361.5 promotes the provision of family reunification services for incarcerated parents. It provides in part in relevant part as follows: “If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child.” (§ 361.5, subd. (e)(1); see Cal. Rules of Court, Rule 5.695(f)(12).) In the absence of a finding of detriment, reasonable reunification services must be provided during the parent’s incarceration. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011.)
With that overview in mind, we turn to the father’s specific challenges to the jurisdictional findings and the dispositional order.
II. The Jurisdictional Findings
Asserting the lack of sufficient evidence of a current risk to the child, the father challenges the court’s finding that he committed domestic violence against the mother many years before. The Department and the child both defend the finding.
A. Nature and Scope of Appellate Review
1. Appealability
Section 395 permits an appeal from a dependency judgment and subsequent orders. “The term ‘judgment’ in the statute refers to the dispositional order in a dependency proceeding.” (In re Aaron R. (2005) 130 Cal.App.4th 697, 702.) “A jurisdictional finding, while not appealable, may be reviewed in an appeal from the dispositional order.” (In re Megan B. (1991) 235 Cal.App.3d 942, 950; accord, In re Sheila B., supra, 19 Cal.App.4th at p. 196.)
2. Review Standard
In assessing the sufficiency of the evidence to support the juvenile court’s jurisdictional findings, we “review the record to determine whether there is any substantial evidence, contradicted or not, which supports the court’s conclusions.” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) “Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.” (In re Casey D. (1999)70 Cal.App.4th 38, 53; see In re Angelique C., supra, 113 Cal.App.4th at p. 519.)
“The juvenile court’s judgment is presumed to be correct, and it is appellant’s burden to affirmatively show error.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) The appellant thus must demonstrate the lack of sufficient evidence to support the jurisdictional determination. (Id. at p. 414.) As we now explain, the father has failed to do so here.
B. Analysis
In this case, the court sustained jurisdiction under section 300, subdivisions (b) and (d). The father directs his attention to a single subdivision (b) finding, the determination that he engaged in domestic violence against the mother.
1. Factual Predicate for Jurisdiction
To sustain jurisdiction under section 300, subdivision (b), the court must determine whether circumstances in existence at the time of the hearing subject the child to the defined risk of harm. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824; In re Janet T. (2001) 93 Cal.App.4th 377, 388.) There must be evidence of “three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M., at p. 820; accord, In re David M., supra, 134 Cal.App.4th at p. 829.)
Here, the father challenges paragraph b-9 of the third amended petition, which alleged his commission of domestic violence against the mother. As amended, the court found the allegation true. The record contains evidence to support that finding, including the mother’s testimony that the father hit her while she was pregnant with the child. That testimony was corroborated by statements that the child’s older brother witnessed such violence, which appear in the Department’s February 2008 addendum report.
The allegation was amended on its face at the jurisdictional hearing to couch some of the claimed events as reports by the mother. As amended, paragraph b-9 read as follows: “Further, the mother reports that her relationship with the child’s father … was violent. On at least one occasion, [he] struck the mother causing injury. The mother reports that the father physically assaulted the mother while she was pregnant with [the child] after the mother refused to terminate the pregnancy.”
Focusing solely on allegation b-9, the father argues that there is no evidence of continuing risk to the child since his alleged conduct was remote in time and did not occur in the child’s presence. In the father’s view, the sustained allegation does not demonstrate that current circumstances at the time of the hearing subjected the child to the risk of further harm.
In response, the child argues that the father’s past domestic violence supports an inference of current risk to the child from the same abuse. In his reply brief, the father does not explicitly answer the child’s specific argument, but he again urges the lack of evidence that the remote events constitute a continuing risk to the child. As has been said, “the purpose of section 300, subdivision (b) is to protect the child from a substantial risk of future serious physical harm and that risk is determined as of the time of the jurisdictional hearing.” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1397.) Jurisdiction thus may be unwarranted where the facts alleged in the petition represent an isolated instance of past parental neglect not likely to reoccur. (Id. at p. 1398; In re David M., supra, 134 Cal.App.4th at p. 831.) On the other hand, we are bound to “indulge all legitimate inferences to uphold the court’s order.” (In re Albert T. (2006) 144 Cal.App.4th 207, 216.) Here, the juvenile court apparently found the facts concerning the father’s past domestic violence probative of current risk, since it sustained the allegation. It did so despite requests from both the father and the mother to dismiss the allegation on the ground that the alleged conduct did not constitute a risk to the child. Even so, in its detailed oral discussion of the evidence supporting jurisdiction, the court did not mention the domestic violence. In any event, we need not rest our decision on an inference of current risk arising from the past conduct. (In re Rocco M., supra, 1 Cal.App.4th at p. 825.) We may affirm on the grounds offered by the Department.
In its response to the father’s arguments, the Department observes that the father addresses only his own conduct and the risk resulting from it, thereby disregarding the factual basis for jurisdiction arising from the mother’s actions. As explained above, jurisdiction may be based on the acts of either parent. (In re Joshua G., supra, 129 Cal.App.4th at p. 202.) “Contrary to father’s position, a jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent.” (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.)
In his reply brief, the father acknowledges “that the court had enough evidence to take jurisdiction in this case based on the mother’s behavior.” Nevertheless, he contends, the juvenile court “erred in finding that the evidence relating to the b-9 allegation was sufficient within the statutory definition.” We reject the father’s narrow focus on the specific allegation concerning his past domestic violence, for the reasons discussed next.
2. Specific Findings
The relevant statutory provisions do not support the father’s argument for appellate scrutiny of specific sustained allegations in the face of an acknowledged basis for jurisdiction. While the evidence must support the findings, and the findings must support the jurisdictional order, there is no statutory requirement that each individual finding – examined in isolation – must support jurisdiction.
Concerning pleading, section 332 requires only that the petition contain a “concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the petition is being brought is a person within the definition of each of the sections and subdivisions under which the proceedings are being instituted.” (§ 332, subd. (f).) The petition should “state ultimate facts setting forth the factual allegations on which an adjudication of dependency is sought.” (10 Witkin, Summary of Cal. Law (10th ed., 2005) Parent and Child, § 622, p. 751.) “The petition should present essential facts necessary to establish at least one valid ground for asserting juvenile court jurisdiction.” (In re Janet T., supra, 93 Cal.App.4th at p. 389.) “If the parent believes that the allegations, as drafted, do not support a finding that the child is ‘within’ one of the descriptions of section 300, the parent has the right to bring a motion ‘akin to a demurrer.’ ” (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1037.)
As for findings, section 356 provides as follows: “After hearing the evidence, the court shall make a finding, noted in the minutes of the court, whether or not the minor is a person described by Section 300 and the specific subdivisions of Section 300 under which the petition is sustained.” (§ 356; see also, Cal. Rules of Court, rule 5.684.) Thus, “after a hearing on the merits has been held on the petition, the focus must necessarily be on the substance of the allegations found true by the juvenile court ….” (In re Jessica C., supra, 93 Cal.App.4th at pp. 1037-1038.) But that focus does not dictate appellate scrutiny of each specific finding. “A general finding that the allegations of the petition are true is sufficient to declare a child a dependent child of the court.” (10 Witkin, Summary of Cal. Law, supra, Parent and Child, § 622, p. 751.) The existence of “additional findings that were supported by the evidence and that would conceivably support the [decision] reached here does not require the entire proceeding to be reversed so that those unnecessary findings can be removed.” (In re Daniel C. H. (1990) 220 Cal.App.3d 814, 837 [amendment of supplemental petition at review hearing].) Here, taken as a whole, the sustained factual allegations of the petition support jurisdiction.
Moreover, as a matter of appellate procedure, section 395 does not permit “a party to appeal a finding in the absence of an adverse order resulting from that finding.” (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1154; cf. id. at p. 1153 [“the language of section 395, which authorizes an appeal from an ‘order’ after judgment, does not authorize an appeal from the isolated finding in this case that reasonable reunification services had been provided”].)
Here, since the jurisdictional order concededly can be sustained on other grounds, the specific finding challenged by the father is not adverse. (In re Daniel C. H., supra, 220 Cal.App.3d at p. 837.) “If the allegations against [the mother] were true, it was irrelevant whether the allegations against [the father] were also true.” (In re Joshua G., supra, 129 Cal.App.4th at p. 202.)
Nor does the father contend that the sustention of allegation b-9 otherwise harmed him. Although the father observes that specific findings “can greatly impact the course of the dependency,” he does not argue that they did so here. This is not a case in which the particular jurisdictional finding would require a bypass of reunification services. (Cf. In re Jessica C., supra, 93 Cal.App.4th at p. 1042 [by refusing the agency’s proffered petition amendment concerning sexual abuse, “the trial court avoided consideration of a question that directly implicates future services”].) Nor does it appear that the challenged finding affected the court’s placement decision, since the court never mentioned domestic violence in denying placement. (Cf. In re v.F., supra, 157 Cal.App.4th at p. 970 [in considering detriment from placement with the noncustodial parent, the “court may consider any jurisdictional findings” relating to that parent].) In sum, the father offers no basis for overturning the challenged finding, since its reversal would neither relieve the father from the jurisdictional order nor alter the dispositional order’s effect on him.
III. The Trial Court’s Failure to Order Reunification Services
The father challenges the court’s failure to order reunification services, citing two grounds. First, he contends, no substantial evidence supports that order. Second, he asserts, the juvenile court abused its discretion because it applied the wrong legal standard. Both the Department and the child dispute those contentions. But neither respondent squarely raises the question of whether the father forfeited this claim by failing to argue it below, although the child does observe “that no one called the court’s attention to this error.”
A. Nature and Scope of Appellate Review
1. Forfeiture
“In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal.” (In re Christopher B. (1996) 43 Cal.App.4th 551, 558; see also, e.g., In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) On the other hand, misapplication of a statute may present a question of law, which “is not automatically subject to the doctrine of forfeiture.” (In re v.F., supra, 157 Cal.App.4th at p. 968.)
In this case, the father did not specifically contest the denial of services or the basis for the decision. Despite the father’s failure to raise those issues below, we shall address the father’s appellate claims on the merits. For one thing, the claims concern reunification, a critical juncture in the dependency. “It is difficult, if not impossible, to exaggerate the importance of reunification in the dependency system.” (In re Luke L. (1996) 44 Cal.App.4th 670, 678.) The availability of reunification services is among the constitutional safeguards built into the dependency system. (In re Marilyn H., supra, 5 Cal.4th at pp. 307-308.) It is true that “there is no constitutional ‘entitlement’ to these services.” (In re Joshua M. (1998) 66 Cal.App.4th 458, 476.) But given “the primacy accorded reunification in the dependency system, it is incumbent upon the juvenile court … to ensure a parent has a reasonable opportunity to pursue reunification” in a proper case. (In re Luke L., at p. 681.) For another thing, the father claims ineffective assistance of counsel, which brings the issue before us, albeit with a different focus. (In re Dennis H., supra, 88 Cal.App.4th at p. 98.) Moreover, to the extent that the father asserts the application of the wrong legal standard, the case for automatic forfeiture carries less weight. (In re v.F., supra, 157 Cal.App.4th at p. 968.) Finally, neither the Department nor the child treats the claims as forfeited, nor do they ask us to do so.
2. Appealability
A juvenile court’s “order denying reunification services, unaccompanied by a simultaneous order setting a section 366.26 hearing, is immediately appealable.” (Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1394.)
3. Review Standards
In addressing the father’s evidentiary claims, we apply the substantial evidence rule. (In re Brooke C. (2005) 127 Cal.App.4th 377, 382.) “We review the record in the light most favorable to the trial court’s order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard.” (In re Isayah C. (2004) 118 Cal.App.4th 684, 694.) “Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt.” (Id. at p. 695.)
As for his claim that the court employed the wrong legal standard, the father claims an abuse of discretion. (In re Jasmine S. (2007) 153 Cal.App.4th 835, 843 [juvenile court abused its discretion “for two independent reasons[:] (1) it applied the wrong legal standard; and (2) applying the proper legal standard, there is no substantial evidence” to support the order]; cf. In re v.F., supra, 157 Cal.App.4th at p. 968 [appellate court reviews “applicable legal principles de novo”].) Where an abuse of discretion is asserted, we will not disturb the court’s discretionary determination “absent a manifest showing of abuse.” (Alicia B. v. Superior Court of San Diego County (2004) 116 Cal.App.4th 856, 863.) To warrant reversal, the challenged discretionary determination must exceed the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
B. Evidentiary Basis for Denial of Services
As the father correctly observes, the court was required to order reunification services for him unless it found by clear and convincing evidence that services would be detrimental to the child. (§ 361.5, subd. (e)(1).)
1. Contentions
In the father’s view, the record does not support the Department’s recommendation for denial of services, which rested on “inaccurate information” about the father’s desire for custody. As the father points out, the underlying premise for the recommendation no longer existed once the father sought placement. Furthermore, the father observes, the court adopted the Department’s recommendation without making a specific finding of detriment. Under these circumstances, the father contends, “implying a clear and convincing finding of detriment is not supported by substantial evidence.”
The Department’s recommendation to deny the father reunification services dated back to its December 2007 jurisdiction/disposition report. In that report, the Department recommended that the father “not receive services until he presents himself before the Court.” By late February 2008, however, as his attorney announced in open court, the father was formally seeking placement as the noncustodial parent.
The Department acknowledges that the factual basis for its recommendation was “admittedly inappropriate” given the father’s decision to seek custody. The Department further states, “while it is always preferable for the juvenile court to specify its reasons for denying services to an incarcerated parent on the record, the required detriment can nevertheless be implied and supported by substantial evidence in the record.” The child likewise maintains that “this court can properly infer a finding of detriment based on the evidence adduced at trial.”
Although we agree with the respondents that the evidence in this record could support an implied finding of detriment, we nevertheless decline to infer such a finding here. Instead, we will remand the matter to the juvenile court, to allow it to make the necessary determination.
2. The Propriety of Implied Findings
Some provisions of dependency law expressly require the juvenile court to set forth the facts supporting its decision. These include section 361, which concerns removal from parental custody. (§ 361, subd. (d) [“court shall state the facts on which the decision to remove the minor is based”]; see, e.g., In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.) Also among these provisions is section 361.2, which governs placement with a noncustodial parent. (§ 361.2, subd. (c) [“court shall make a finding either in writing or on the record of the basis for its determination”]; see, e.g., In re v.F., supra, 157 Cal.App.4th at p. 973.)
Section 361.5 contains no such express requirement. Where the statute does not mandate explicit findings, and where substantial evidence supports the court’s order, findings may be implied. (In re Corienna G. (1989) 213 Cal.App.3d 73, 83 [permanency planning order; § 366.25, subd. (d)]; In re Andrea G. (1990) 221 Cal.App.3d 547, 554 [same]; In re Daniel C. H., supra, 220 Cal.App.3d at p. 838 [termination of visitation; § 361, subd. (a)]; cf. Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793 [implied finding supported decision in adoption proceeding, but evidence did not support finding].)
Even so, appellate courts often are reluctant to affirm based on implied findings. (See, e.g., In re v.F., supra, 157 Cal.App.4th at p. 973 [observing that “the better practice is to remand”]; In re Kevin N. (2007) 148 Cal.App.4th 1339, 1344-1345 [remanding to juvenile court for determination]; In re Albert T., supra, 144 Cal.App.4th at p. 222 [same]; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1830 [same]; cf. In re Jason L., supra, 222 Cal.App.3d at p. 1218 [concluding that the lack of required findings was harmless].) In some cases, reviewing courts have cited the evidentiary record as a basis for remand. (See, e.g., In re Marquis D., at p. 1824, fn. 11 [“the evidence of detriment is insufficient for us to imply such a finding”]; In re Isayah C., supra, 118 Cal.App.4th at p. 699 [“the state of the evidence [does not] permit us to imply any such findings”]; cf. In re v.F., at p. 973 [remanding even though the “record arguably would support a finding that placement with [father] would be detrimental to the children”].) In other cases, the stated basis for remand is application of the wrong statute or some other violation of a legal standard. (See, e.g., In re v.F. at p. 966 [declining “to make implied findings where the trial court has not considered the appropriate statutory provision”]; In re Marquis D. at p. 1824, fn. 11 [concluding that “the trial court likely applied the wrong standard in reaching its decision”].)
3. Analysis
As this court observed long ago, “the better practice” is for the juvenile court to make the “required determination on the record ….” (In re Corienna G., supra, 213 Cal.App.3d at p. 83.) That was not done in this case. And the court’s failure to do so is particularly troubling here, given the admittedly erroneous factual predicate for the denial of services. For that reason, we believe that remand is in order here, despite the evidence of detriment contained in this record. As we explain next, that evidence apparently was adduced in connection with the court’s placement decision, made under section 361.2, not in connection with its decision to deny reunification services, which must be made under section 361.5, subdivision (e)(1).
C. Legal Standard for Denial of Services
Beyond his evidentiary claims about the denial of services, the father also contends that the juvenile court applied the wrong legal standard, which prejudiced him.
1. Contentions
According to the father, the court erred by adopting the Department’s recommendation to deny services because the father had “not requested placement of the minor.” He asserts: “This is the wrong standard.” The father further asserts: “By denying services based on the wrong standard, the court failed to exercise its discretion and that failure is an abuse of discretion.” On the question of prejudice, the father argues both that the court “may well have ordered reunification services” if it had employed the correct standard and that its failure to exercise its discretion under the correct standard denied him “any opportunity to reunify” with the child.
The Department takes a different view. It contends that adoption of the recommendation “was based on a simple factual error. It was not an application of an incorrect legal standard.” Furthermore, the Department argues, the error was harmless.
2. The Decision Process
In cases such as this, the juvenile court should engage in a two-step process, first applying section 361.2, subdivision (a), and then applying section 361.5, subdivision (e). Proceeding in this fashion, the court will “first determine whether there is a noncustodial parent that desires to assume custody of the child. (§ 361.2, subd. (a).)” (In re Adrianna P., supra, 166 Cal.App.4th at p. 59.) “If the court does not order the noncustodial parent to assume custody under section 361.2, that is, if the court determines that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child, the court then proceeds to section 361.5, which generally governs the grant or denial of family reunification services.” (Ibid.)
3. Analysis
Here, the court undertook the first step in the process, the analysis under section 361.2, subdivision (a). After considering evidence and argument on the father’s request, the court concluded that the placement of the child with the father would be detrimental. The father does not challenge that conclusion here.
As for the second step in the analytic process, the juvenile court in fact made a decision to deny the father reunification services, a decision governed by section 361.5. But the court did so without receiving legal argument on the question, without commenting on its reasons for doing so, and without making an express determination of detriment to the child; moreover, it did so based on the wrong factual predicate. It is this decision that the father posits as the application of an erroneous legal standard and a prejudicial abuse of discretion.
On this record, we cannot tell whether the juvenile court applied the correct statute in reaching its decision to deny reunification services to the father. Consideration of the proper provision is important, as “different issues, evidence and argument may arise at trial depending on the applicable statute.” (In re v.F., supra, 157 Cal.App.4th at p. 973.) Here, the court made a finding of detriment to the child from placement with the father under section 361.2, but it made no such detriment finding concerning reunification services under section 361, subdivision (e)(1). “When the proceedings take place under an inappropriate statute, even one requiring similar findings, the parties are not afforded the opportunity to tailor their case to the correct statute, and the trial court cannot fulfill its responsibility to make findings of fact within the provisions of that statute.” (In re v.F., at p. 973.) For this reason, too, remand is appropriate here.
D. Conclusion
Given the erroneous factual predicate underlying the denial of reunification services to the father, and the lack of certainty that the decision to deny services rested on the correct statute, we shall remand this matter to the juvenile court, with instructions to consider the factors set forth in section 361, section (e)(1).
In March 2008, when the hearing in this case took place, the statutory factors set forth in section 361.5, subdivision (e)(1), were “the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child’s attitude toward the implementation of family reunification services, and any other appropriate factors.” The statute has since been amended. (Stats.2008, c. 482, § 1.7.) As relevant here, the statute now spells out one additional factor that the court may consider in assessing detriment, “the likelihood of the parent’s discharge from incarceration or institutionalization within the reunification time limitations ….” (§ 361.5, subd. (e)(1), as amended effective January 1, 2009.)
However, recognizing that circumstances undoubtedly have changed during the pendency of this appeal, “we leave it to the sound discretion of the trial court to determine what procedural steps, and what result, are appropriate at this juncture in light of our reversal, the grounds on which it was based, and the current state of affairs in [the child’s] family.” (In re Isayah C., supra, 118 Cal.App.4th at p. 701.)
IV. Counsel’s Failure to Request Reunification Services
In his final argument on appeal, the father contends that his counsel was ineffective both in failing to object when the court adopted the Department’s recommendation, which was based on a factual inaccuracy, and in failing to pursue reunification services on his behalf.
In light of our decision to reverse the dispositional order and remand the matter to the juvenile court on this point, we need not and do not reach the father’s ineffective assistance claim.
DISPOSITION
We affirm the juvenile court’s jurisdictional findings. We reverse the dispositional order and we remand this matter to the juvenile court for a determination of detriment from the provision of reunification services to the father under the appropriate statute, Welfare and Institutions Code section 361, subdivision (e)(1).
WE CONCUR, Rushing, P.J., Duffy, J.
The amendment was made at the father’s request, “as an alternative to the entire allegation being stricken.” The father argued below that the allegation “not only is unreliable in terms of evidence presented by the Department, but it doesn’t go towards showing that the child is at substantial risk of serious harm or illness or that the child has suffered any risk or any harm.”