Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. SJ11910, Elva R. Soper, Judge. (Retired Judge of the Los Angeles S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
McDONALD, J.
J.W. III (J.W.) appeals an order denying him reunification services in the dependency case of his son, J.W. IV (the minor). He contends the court erred by not making a specific factual finding as to whether he was seeking custody of the minor and therefore erred by denying reunification services to him.
FACTUAL AND PROCEDURAL BACKGROUND
On November 28, 2007, the San Diego County Health and Human Services Agency (the Agency) petitioned under Welfare and Institutions Code section 300, subdivision (b) on behalf of the then one-year-old minor, alleging he was at substantial risk because he was exposed to a violent altercation in the family home between his mother, Melissa O., and the maternal grandmother. The court ordered the minor detained. Melissa submitted to the allegation of the petition, and the court found the allegation true.
Further statutory references are to the Welfare and Institutions Code.
Melissa identified J.W. as the minor's father, and he acknowledged paternity. The court found him to be the presumed father. J.W. had been arrested for assault a few days before the minor was born. The social worker reported his release from prison was scheduled for February 2009.
The social worker reported that on February 21, 2008, she took the minor to the jail for a visit with J.W. She said the minor did not react when he saw J.W. and appeared puzzled when J.W. tried to communicate with him through the glass in the visiting room. J.W. told the social worker he understood that the jail was not an appropriate place for a child and believed it would be better if they did not have further visits. The social worker concluded J.W. and the minor had no bond.
At the disposition hearing on March 5, 2008, the social worker recommended J.W. not be offered reunification services. She said he had been sentenced to four years in prison. She had attempted to learn what services would be available to him, but was told his case first had to be assigned to a counselor. She sent J.W. a prison packet, which he completed and returned. She stated the minor would not benefit from J.W. receiving services because visits at the prison would be difficult for the minor, J.W. would be incarcerated for four years and it would be difficult to assess his progress in services while he was in prison. She noted the minor was only 16 months old, had never lived with J.W., had seen him only twice and they had no bond. She also said J.W. did not ask for further visits because he did not think a jail was an appropriate place for a one-year-old child.
After considering the evidence, testimony and argument, the court found under section 361.2, subdivision (a) that it would be detrimental to place the minor with J.W. The court ordered services for Melissa, but ordered services not be offered to J.W.
DISCUSSION
I
J.W. contends the court prejudicially erred by not expressly determining, as required by section 361.2, subdivision (a), whether he wished custody of the minor before making a further finding. He argues that because the court did not make this threshold finding, it could not properly decide whether he should receive services.
"Section 361.2 addresses the situation of the noncustodial parent and whether reunification services should be provided to that parent." (In re Terry H. (1994) 27 Cal.App.4th 1847, 1856.) Section 361.2, subdivision (a) 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."
The juvenile court must make a finding under this section either in writing or on the record of whether the noncustodial parent wishes custody. (§ 361.2, subd. (c).) "[T]he noncustodial parent is not entitled to reunification services if he or she does not seek custody and, even if that parent does seek custody, the court must determine whether reunification is appropriate." (R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1271 (R.S.).) The court may consider placing the child with a noncustodial incarcerated parent if the parent seeks custody and is able to make appropriate arrangements for the child's care during the parent's incarceration, and placement with the parent is not otherwise detrimental. (In re Isayah C. (2004) 118 Cal.App.4th 684, 700.)
Here, the court erred by not making the threshold finding as to whether J.W. was seeking custody of the minor. However, the error was not prejudicial. In R.S., supra, 154 Cal.App.4th at pages 1265, 1268, the juvenile court apparently assumed a noncustodial father was a custodial parent and denied him services under section 361.5. The reviewing court directed the juvenile court to hold a new hearing to determine whether the father was seeking custody and, if so, to make appropriate findings under section 361.2. (R.S., at p. 1272.) The court ruled the juvenile court could not determine whether the father was entitled to placement or reunification services in the absence of a finding as to whether he was seeking custody. (Id. at p. 1271.)
In In re V.F. (2007) 157 Cal.App.4th 962, 967, the juvenile court offered reunification services to the mother, but denied them to the incarcerated father under section 361.5, subdivisions (b)(12) and (e)(1). This court reversed and remanded for the court to make proper findings under section 361.2, subdivision (a), refusing to imply a finding of detriment because the court had not considered the correct code provision. (In re V.F., at pp. 972, 974.)
Here, although the juvenile court erred by not expressly making a factual finding that J.W. was seeking custody of the minor, it assumed that J.W. did seek custody and, in contrast to R.S. and In re V.F., made an express finding under section 361.2, subdivision (a) that placement with J.W. would be detrimental to the minor.
Further, the Agency also assumed J.W. sought custody of the minor and had considered the paternal grandparents for placement, and the social worker said the Agency would continue to evaluate them. Moreover, if J.W. had not sought custody, he would not have been entitled to reunification services. (R.S., supra, 154 Cal.App.4th at p. 1271.)"Provision of services to a noncustodial parent who does not seek custody will not serve [reunification], and therefore such services are not required to be offered or provided." (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 628.) Because the court assumed J.W. sought custody of the minor and considered the issue of ordering reunification services to him, the error in not making an express finding that J.W. was seeking custody of the minor was not prejudicial.
II
J.W. asserts the evidence is insufficient to support the court order denying him reunification services. He argues the court appeared to base its decision on the length of his prison sentence, and there was evidence in the record that his term of imprisonment would be shorter than the court assumed. He also argues it is error to base a finding of detriment solely on the fact of his incarceration.
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Because the minor was less than three years old at the time of removal, reunification services presumptively would be offered for six months. (§ 361.5, subd. (a)(2).) J.W.'s term of imprisonment was longer than this time period. Therefore, providing services to him could not achieve reunification, but only delay permanency for the minor. Also, it appeared that necessary services were not available at the prison. The social worker explained that because of J.W.'s crime of assault with a deadly weapon, therapy and anger management should be part of a case plan for him, but therapists approved by the dependency court system were not available at the prison, and his progress could not be monitored. Substantial evidence supports the court's order denying services to J.W.
DISPOSITION
The order is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., HALLER, J.