Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. JD19494, JD19495
McAdams, J.
This appeal is brought by the father of two dependent children. He seeks reversal of the juvenile court’s order dismissing the dependency proceeding, arguing (1) the court failed to make the requisite statutory findings, and (2) the record lacks sufficient evidence to support the order. For reasons explained below, we affirm.
BACKGROUND
The children whose interests are at issue here are C.A.V., a girl born in 1999, and C.V., a girl born in 2003. Both children were born in Mexico. The children’s parents are appellant G.V., the father, and A.R., the mother, who resides in Mexico. The father brought the children to the United States in February 2007, without the mother’s knowledge.
Detention; Petitions
This dependency proceeding was initiated in March 2009, following the father’s arrest for driving under the influence of alcohol. The father was involved in a car accident in which both children sustained injuries. After their release from the hospital, the children were placed in protective custody with the Santa Clara County Department of Family and Children’s Services (Department).
On March 4, 2009, the Department filed a petition on each child’s behalf under section 300 of the Welfare and Institutions Code. (Unspecified statutory references are to that code.) The petitions were based on section 300, subdivision (b), failure to protect, and subdivision (g), no provision for support. The petitions alleged that the father’s “choice to drive while intoxicated placed the health and safety of the children at severe risk of harm.” The petitions also alleged that the children had “not been allowed” to see the mother since leaving Mexico and that the children were afraid of the father “due to ongoing physical abuse.”
At the initial hearing held on March 5, 2009, the court ordered the children removed from the father’s physical custody. The mother’s whereabouts were then unknown to the Department. A first amended petition for each child was filed shortly thereafter. A jurisdictional hearing was set.
Jurisdiction
A contested jurisdictional hearing was held on May 11, 2009.
In reports prepared for that hearing, the Department recommended that the court sustain the petitions and consider returning the children to the mother in Mexico. According to the Department, the children were in need of the juvenile court’s protection because of the father’s alcohol use and his resulting incarceration, his ongoing physical abuse of the children, his domestic violence against the mother in the children’s presence while the family resided together in Mexico, and the circumstances surrounding his removal of the children from Mexico. Through its reports, the Department also advised the court that it was working with the Mexican consulate to coordinate an evaluation of the mother’s home by Mexico’s social services agency, Desarrollo Integral de la Familia (DIF).
The court received the Department’s reports into evidence. It also heard testimony from the father and from the social worker. At the conclusion of the hearing, the court sustained the petitions with further amendments, and it assumed jurisdiction over the children.
Disposition
A contested disposition hearing was conducted on July 13, 2009.
The Department prepared several addendum reports for the hearing. In a report dated June 3, 2009, the Department recommended placement with the mother and dismissal of the dependency. As stated in the report, the Mexican agency (DIF) had completed its investigation of the mother’s home, which it found to be “appropriate.” Summarizing the DIF home study, the Department described the mother’s home as “in an urban zone, close to all public services, and transit. The home is in good hygienic condition and well maintained. The only issue identified was the need for more light and ventilation.” In another addendum report dated July 13, 2009, the Department reiterated its recommendations “that the children be returned to their mother, the non-custodial parent, who resides in Mexico and that the case be dismissed upon the children’s return to Mexico.”
At the hearing on July 13, 2009, the court admitted the Department’s reports as well as documentary evidence offered by the father. The court also heard testimony from the father and from the Department’s social worker.
After the submission of the evidence, the court entertained oral argument. The Department’s counsel asked the court to return the children to the mother’s custody. The mother’s counsel also sought placement with her, as well as dismissal of the dependency. The father’s counsel urged the court to keep the children in the United States and to offer him reunification services. The children’s counsel argued that they should be returned to the father either immediately, with family maintenance services, or within a short time period, with family reunification services. She expressed concern over the request to terminate jurisdiction, saying: “And when the case is dismissed, this court has no jurisdiction over these kids anymore and the children go to Mexico with their mom and that’s the end of the case. DIF is not going to open a case for them and supervise it.”
At the conclusion of the hearing, the court adopted the Department’s recommendations. Citing clear and convincing evidence, the court removed the children from the father’s custody and placed them with the mother. The court dismissed the dependency proceeding.
Appeal
The father brought this timely appeal. On appeal, the father challenges only the order dismissing the dependency, asserting two grounds: (1) the court’s failure to make the required findings and (2) insufficiency of the evidence to support the order.
DISCUSSION
As a framework for our analysis of the father’s contentions, we begin by summarizing the governing statute and describing the applicable appellate review standards.
I. The Statute
As provided in section 361.2, subdivision (a), the juvenile court must place a dependent child with a previously noncustodial parent who requests custody, unless the placement would be detrimental to the child’s safety, protection, or physical or emotional well-being. Because the noncustodial parent has a constitutionally protected interest in custody, case law requires clear and convincing evidence of detriment to the child before the court can deny the noncustodial parent’s request for custody. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1828.) With its heightened standard of proof, this provision effectuates the legislative preference for placement with the previously noncustodial parent. (In re Austin P. (2004) 118 Cal.App.4th 1124, 1132.)
Under section 361.2, subdivision (b), when the court places a dependent child with a previously noncustodial parent, it has discretion either to continue or to terminate its jurisdiction over the child. (In re Janee W. (2006) 140 Cal.App.4th 1444, 1451; In re Austin P., supra, 118 Cal.App.4th at p. 1131.) “The discretion afforded the juvenile court in this area appears very broad.” (In re Sarah M. (1991) 233 Cal.App.3d 1486, 1496, disapproved on another point in In re Chantal S. (1996) 13 Cal.4th 196, 204.) “The section does not, however, expressly state under what circumstances the court may decide to terminate or continue its jurisdiction.” (In re Sarah M., at p. 1496.) But as case law establishes, the decision turns on “whether there is a need for ongoing supervision. If there is no such need, the court terminates jurisdiction and grants that parent sole legal and physical custody. If there is a need for ongoing supervision, the court is to continue its jurisdiction.” (In re Austin P., at p. 1135; see also, e.g., In re Janee W., at p. 1451; In re Sarah M., at p. 1496.) In making this determination, “concern for the child’s immediate welfare and care is paramount.” (In re Phoenix B. (1990) 218 Cal.App.3d 787, 793-794.)
Section 361.2, subdivision (c), sets forth the requirement of explicit findings. It provides: “The court shall make a finding either in writing or on the record of the basis for its determination under subdivisions (a) and (b).”
II. Appellate Review Standards
The decision to terminate dependency jurisdiction is reviewed for an abuse of discretion. (See In re Austin P., supra, 118 Cal.App.4th at p. 1135; In re Phoenix B., supra, 218 Cal.App.3d at pp. 792-794.) When a decision is “committed to the sound discretion of the juvenile court, [its] ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.” (In re Stephanie M. (1994) 7 Cal.4th 295, 318 [change of placement].) To warrant reversal, the challenged determination must exceed the bounds of reason. (Id. at pp. 318-319.)
“Where insufficiency of the evidence is an issue, an appellate court reviews the entire record in the light most favorable to the order and determines whether any substantial evidence supports the conclusion of the trier of fact.” (In re Marquis D., supra, 38 Cal.App.4th at p. 1825.) “Under the substantial evidence rule, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies.” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another point in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; see also, e.g., In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.) “The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.” (In re Diamond H., at p. 1135.)
III. Analysis
For reasons explained below, we reject both of the father’s challenges to the order terminating dependency jurisdiction. We conclude (a) the lack of explicit findings does not compel reversal, and (b) the record contains substantial evidence supporting termination.
A. Lack of Explicit Findings
1. Legal Principles
Some provisions of dependency law expressly require the juvenile court to set forth the facts supporting its decision. One such provision is 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.) Another is section 361.2, the statute at issue here, 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. (2007) 157 Cal.App.4th 962, 973.)
“Failure to make the required findings [is] error.” (In re Jason L., supra, 222 Cal.App.3d at p. 1218.) But reversal is not warranted if the error is harmless. (See id. at p. 1219.) 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., supra, 82 Cal.App.4th at p. 1137.)
Moreover, as case law recognizes, the requisite findings may be implied in a proper case. (In re Corienna G. (1989) 213 Cal.App.3d 73, 83 [permanency planning order; former § 366.25, subd. (d)]; In re Andrea G. (1990) 221 Cal.App.3d 547, 554 [same]; In re Daniel C. H. (1990) 220 Cal.App.3d 814, 838 [termination of visitation; former § 361, subd. (a)].) Conversely, there are circumstances in which appellate courts decline to imply required findings. (See, e.g., In re V.F., supra, 157 Cal.App.4th at p. 973 [observing that “the better practice is to remand” for a detriment determination under § 361.2, subd. (a)]; In re Marquis D., supra, 38 Cal.App.4th at p. 1830 [remanding for a detriment determination under § 361.2, subd. (a)]; In re Kevin N. (2007) 148 Cal.App.4th 1339, 1344-1345 [remanding for a detriment determination under § 361.5, subd. (e)(1)].)
2. Application
In this case, the written orders adopted by the court include this finding: “The previously noncustodial parent, the mother, [A.R.], requests custody of the children and placement of the children with the previously noncustodial parent would not be detrimental to the safety, protection or physical or emotional well being of the children.” The order continues: “Legal and physical custody... is awarded to the mother, [A.R.], the previously noncustodial parent.” (See (§ 361.2, subd. (b)(1).) The court did not make a separate “finding either in writing or on the record of the basis for its determination” to also dismiss the dependency. (Id., subd. (c).)
For purposes of our analysis, we shall assume (without deciding) that the court was required to make an explicit finding specifically addressing its decision to terminate the dependency. Even so, we conclude that the court’s failure to do so here constitutes harmless error since “it is not reasonably probable such findings, if made, would have been in favor of” retaining jurisdiction. (In re Diamond H., supra, 82 Cal.App.4th at p. 1137.) Though “the better practice would have been for the trial court to have made a required determination on the record, we perceive no practical purpose which would be achieved by” remanding for such findings. (In re Corienna G., supra, 213 Cal.App.3d at p. 83; see also, In re Andrea G., supra, 221 Cal.App.3d at p. 554.) The father was “not prejudiced by the lack of an express determination.” (In re Corienna G.,at pp. 84-85; In re Andrea G., at p. 554.) He “knew that the purpose of the hearing was to” consider the mother’s custody request and dismissal of the dependency. (In re Andrea G., at p. 555.)
In urging a contrary result, the father relies on In re Marquis D., supra, 38 Cal.App.4th 1813. That case does not assist him. There, the reviewing court offered two reasons for declining to imply findings: the possibility of legal error and an evidentiary record that lacked sufficient clarity. (Id. at pp. 1824-1825; see also, e.g., In re V.F., supra, 157 Cal.App.4th at p. 973.)
First, the court in Marquis D. declined to imply “a finding of detriment under section 361.2” in the absence of evidence that the juvenile court “considered the correct code provision.” (In re Marquis D., supra, 38 Cal.App.4th at p. 1824.) As the court explained, it was “not clear on the record that the trial court even considered the statutory provision applicable to [the father’s] request that the children be placed with him.” (Id. at p. 1825.) On the record before it, the court was “not satisfied... that the trial court adequately explored whether placing the children with [the father] would be detrimental to them within the meaning of section 361.2, subdivision (a) or that implied findings [were] warranted.” (Ibid.)
“Moreover,” the court in Marquis D. said, “even if we were to conclude the court considered the correct code provision, we would be reluctant to imply the court made a finding of detriment based on the evidence presented.” (In re Marquis D., supra, 38 Cal.App.4th at p. 1825.) As the court noted, “where the trial court has failed to make express findings the appellate court generally implies such findings only where the evidence is clear.” (Ibid.) On the facts before it, the court concluded that “this is certainly not the clear-cut case in which an appellate court may imply such a finding.” (Id. at p. 1827.)
Neither of the concerns expressed in Marquis D. is present here.
First, there is no suggestion in this record that the juvenile court misunderstood the law in deciding to terminate dependency jurisdiction. The record reflects that the court considered the applicable statutory provision. (Compare, In re Marquis D., supra, 38 Cal.App.4th at pp. 1824-1825.) Section 361.2 was cited in oral argument, both by the Department’s counsel and by the mother’s counsel, albeit in the context of detriment from placement with the mother. From the court’s questions during the social worker’s testimony, it is apparent that the court weighed the implications of dismissal. The court’s formal orders specifically cite section 361.2, subdivision (b)(1). The absence of citation to case law at the hearing is not persuasive, since there is at least “an implicit acknowledgement in section 361.2, subdivision (a) that the juvenile court must assess whether there is a need for its supervision.” (In re Sarah M., supra, 233 Cal.App.3d at p. 1496.) Thus, in contrast to Marquis D., this case presents no legal error requiring remand for express findings.
The evidentiary issues also distinguish this case from Marquis D. At the threshold, the two cases involve different types of statutory findings, with different standards of proof. This case is governed by section 361.2, subdivision (b)(1). Under that provision, the relevant finding is that continuing supervision is unnecessary, which must be shown by a preponderance of the evidence. (Cf. § 355 [preponderance standard applies to assumption of dependency jurisdiction].) “Generally, where no specific burden of proof is specified, preponderance of the evidence applies. (Evid. Code, § 115.)” (In re Marquis D., supra, 38 Cal.App.4th at p. 1827.) By contrast, “to comport with the requirements of the due process clause, a finding of detriment pursuant to section 361.2, subdivision (a) must be made by clear and convincing evidence.” (Id. at p. 1829.) The standard of proof informs the question of evidentiary support for the implication of findings. (See In re Isayah C. (2004) 118 Cal.App.4th 684, 699; cf. In re Nathaniel P. (1989) 211 Cal.App.3d 660, 670-672.)
Given the lower standard of proof that applies here, we find the evidentiary record sufficiently clear and substantial to imply findings. We discuss the sufficiency of the evidence in more detail below.
B. Sufficiency of the Evidence
Assessing the father’s evidentiary challenge under the deferential substantial evidence rule, we decide only “whether any substantial evidence supports the conclusion of the trier of fact.” (In re Marquis D., supra, 38 Cal.App.4th at p. 1825.) Applying that standard, we conclude that the record in this case supports an implied finding that the children were not in need of continuing dependency court supervision. (See In re Janee W., supra, 140 Cal.App.4th at p. 1453 [“all the evidence before the court showed that continuing supervision of the minors was no longer required”]; cf. In re Austin P., supra, 118 Cal.App.4th at p. 1134 [affirming denial of termination request where “substantial evidence showed a need for continuing supervision”].)
As longstanding case law recognizes, “supervision may be appropriate in lieu of or before terminating jurisdiction.” (In re Sarah M., supra, 233 Cal.App.3d at p. 1497.) That would be the case, for example, if there were concerns that the new custodial parent would “turn around and relinquish the child to the other parent after the termination order; or this new custodial parent may need services. Also, the formerly noncustodial parent may not want long-term custody.” (Id. at p. 1496.) No factual basis for any such concern appears on this record.
Given the animosity between the parents, and the circumstances surrounding the children’s removal from Mexico, there was no concern that the mother would relinquish the children to the father after termination of the dependency. (See In re Sarah M., supra, 233 Cal.App.3d at p. 1496.) Nor does this record suggest that the mother does “not want long-term custody.” (Ibid.) To the contrary, the mother consistently stated that she wanted “to care for her children.” In the words of one Department report: “The mother is eager to have her children return to her care and the children are excited at the prospect of reuniting with their mother.”
With respect to the need for services, both children were described in the Department’s reports as developmentally on target and healthy. At the disposition hearing, the social worker was asked about the younger girl’s exposure to tuberculosis and her need for medication; she responded that the medication “could be” provided through DIF. The social worker also testified that there was no “reason to think that the medication would be discontinued” if the child were returned to her mother. The children had not yet received counseling services because their undocumented status had created delays in approval, but the social worker stated that she could request DIF to “make referrals for counseling.” The social worker also testified that DIF could “provide counseling as a service if they warrant it necessary” in this case. (Cf. In re Sarah M., supra, 233 Cal.App.3d at p. 1500 [concern over “who would pay for continued conjoint therapy if the juvenile court terminated its jurisdiction” was “not a cry for continued supervision, but rather a plea for financial aid”].) The social worker stated that the Department’s “intention is not to just simply drop the children off. It is to setup services for them” through DIF “and make sure they get the help that they need.”
The foregoing evidence supports the determination that continuing juvenile court supervision was unnecessary. That conclusion is also supported by case law. (In re Phoenix B., supra, 218 Cal.App.3d 787; In re Janee W., supra, 140 Cal.App.4th 1444.) As the court in Phoenix B. said: “In the present case the juvenile court did not indicate any concern about [the father’s] ability to care for Phoenix, nor do we, from the record, uncover any evidence which leads us to think Phoenix’s welfare was endangered by placing her with her father.” (Id. at p. 793; see also In re Janee W., at p. 1452 [evidence that the father had “ ‘provided the children with adequate care and supervision’ ” was sufficient to support “the finding that continued supervision of the minors was no longer necessary”].) The Phoenix B. court also observed: “When the Department, through investigation, satisfies itself that conditions no longer warrant continued detention, it must relinquish custody of the child to his or her parent, guardian, or other responsible relative. This the Department did when it located Phoenix’s father, determined he was able and willing to care for her, and then moved to terminate the dependency action.” (In re Phoenix B., at p. 794.) The same is true here.
On this record, “the court properly exercised its discretion to dismiss the petition.” (In re Phoenix B., supra, 218 Cal.App.3d at p. 794.)
DISPOSITION
The order dismissing the dependency proceedings is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.