Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court No. CK67850 of Los Angeles County. D. Zeke Zeidler, Judge.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
MANELLA, J.
FACTUAL AND PROCEDURAL BACKGROUND
There is no dispute concerning the essential background facts. In 2005, appellant Elisa G., an El Salvadoran citizen residing in El Salvador, sent her daughter, R.O., to live with her son (R.O.’s brother), Miguel A., in Texas. After a few months, Miguel sent R.O. to live with their biological father, Luis O., in Los Angeles.
Luis is not a party to this appeal.
In April 2007, when R.O. was 16, DCFS intervened and detained her after she reported to her school counselor that Luis had physically and sexually abused her. R.O. was placed with a paternal relative. Counsel was appointed for appellant.
R.O. reported that in the preceding month Luis had tried on numerous occasions to engage in sexual behavior with her, ranging from open mouth kissing to simulating sexual intercourse. In addition, at the time of her interview, R.O. had bruises on her leg from being beaten.
The jurisdiction/disposition report stated that appellant, in a telephone interview, told the caseworker she did not believe the allegations of physical and sexual abuse. Specifically with respect to the physical abuse charge, appellant stated: “‘This is not true. He has never told me that he has hit her. He told me that she wanted to go to parties but we agreed that she was too young to be going to parties and I told her father not to allow her to go out.’” With respect to the sexual abuse charge, appellant stated: “‘I don’t believe this is true. He is her father and she is his daughter. I just don’t believe any of this. My husband has not done this. He has always been respectful of me and has always been respectful of our children. His blood runs through her veins. This did not happen.’” Appellant also told the caseworker she completely depended on Luis and Miguel financially. She asked that R.O. be returned to Miguel’s care. The report recommended reunification services for Luis and counseling for R.O., but said nothing about appellant.
At the contested jurisdictional hearing, the court found true that Luis inappropriately physically disciplined R.O. by striking her with a belt and sexually abused her by, among other things, fondling her breasts, lying on top of her to simulate sex, and forcing her to disrobe in his presence. After the jurisdictional findings were made, counsel for appellant informed the court of appellant’s desire that R.O. be returned to Miguel rather than sent to appellant in El Salvador. Counsel for DCFS stated that as appellant was not seeking physical custody, there was no need for the court to order reunification services for her. Appellant’s counsel protested that appellant did not have notice that DCFS would be seeking a no reunification services order. The court put the matter over for a contested dispositional hearing.
Prior to the dispositional hearing, DCFS contacted Miguel and prepared a supplemental report. In it, DCFS recommended that the court order an “ICPC with Texas” in order to evaluate Miguel’s living situation and ability to provide for R.O.
“ICPC” stand for “Interstate Compact on Placement of Children,” which is set forth in Family Code section 7900, et seq. “The statute requires the juvenile court to be knowledgeable about a minor’s placement regardless of whether the placement is within or without the State of California. Where placement is outside this state, at a minimum the statute envisions compliance with the Compact,” and “the suitability of the placement must be reflected in the record of the proceedings before the juvenile court, so that placement may be contested if warranted and so that the juvenile court’s decision may be subject to meaningful appellate review.” (In re Eli F. (1989) 212 Cal.App.3d 228, 239.)
At the dispositional hearing, counsel for appellant requested that the court release R.O. to appellant’s “custody” pursuant to Welfare and Institutions Code section 361.2. Counsel reiterated that appellant did not want the child returned to her physical custody, but requested that the court send R.O. directly to Miguel in Texas. R.O.’s attorney argued against placing the minor in appellant’s custody, physical or otherwise, because “[t]he jurisdictional report clearly states that [appellant] did not believe the allegations that have been sustained against the father.” Counsel for DCFS contended that the court could not give custody of a dependent minor to a non-custodial parent under section 361.2 if “the court finds that placement with that parent[] would be detrimental to the safety, protection or physical or emotional well-being of the child . . . And as [R.O.’s attorney] pointed out, [appellant] does not believe the girl, that she was sexually abused.” The court expressed its agreement with DCFS and the minor’s attorney: “I think the most telling [fact] is the mother not believing the allegations. I do think that prevents me from [ruling] home of mother at this time.” The court also stated during the hearing: “I do not know if [appellant’s] plan is appropriate because I have to have Texas evaluate [Miguel]. I don’t have criminal clearances on him. I don’t have anyone who has seen his home.”
Statutory references hereafter are to the Welfare and Institutions Code.
In its July 31, 2007 dispositional order, the court ordered DCFS to provide reunification services to both parents. Under the reunification plan, appellant was to undertake parenting education and sexual abuse awareness counseling. The court set a status review hearing for October 2007 and said: “We’ll come back [at that time] for a progress report . . . [which] should also address efforts to identify any programs for the mother [] in El Salvador, [DCFS] to do that . . . .” The court further ordered individual counseling for R.O., and instructed DCFS “to initiate an ICPC on [Miguel].” Placement remained with paternal relatives in California, but DCFS was instructed to “walk the matter on calendar” if “the ICPC is approved prior to [the status hearing].”
Appellant noticed an appeal of the dispositional order. While the appeal was pending, we took judicial notice at appellant’s request of an order dated December 19, 2007, stating that the “ICPC [had been] approved” and that R.O. had been placed with Miguel in Texas. The order indicated that the court also conducted the six-month review required by section 366.21, subdivision (e), and concluded that continued jurisdiction was necessary, return of R.O. to the physical custody of the parents would create a substantial risk of detriment, and that there was a substantial probability that R.O. would be returned to the physical custody of her parents although appellant was “not in compliance with the case plan” and Luis was only “in partial compliance.”
DISCUSSION
1. Finding of Detriment Under Section 361.2
Section 361.2 provides that when a court orders removal of a child from a custodial parent, the court shall 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 [dependency jurisdiction], who desires to assume custody of the child.” (§ 361.2, subd. (a).) If such a 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.” (Ibid.) Subdivision (c) of section 361.2 requires the court to make findings “either in writing or on the record” of its basis for ruling under subdivision (a). Appellant contends the court failed to make required findings under section 361.2 and “made no specific findings relating to [appellant],” and that the matter must, therefore, be reversed and remanded. (See, e.g., In re Marquis D. (1995) 38 Cal.App.4th 1813, 1821-1824 [declining to imply finding of detriment under section 361.2, subdivision (a) and remanding matter where juvenile court failed to make express finding]; In re V.F. (2007) 157 Cal.App.4th 962, 966 [same].)
Appellant’s contention is refuted by the record. At the dispositional hearing, appellant’s counsel asked the court to consider transfer of custody to appellant “pursuant to section 361.2.” Counsel for DCFS, echoing the words of the statute, argued that the court should not give custody of R.O. to appellant if “the court finds that placement with that parent[] would be detrimental to the safety, protection or physical or emotional well being of the child.” Both counsel for DCFS and R.O.’s counsel pointed to the fact that appellant did not believe her daughter, particularly with respect to the charge of sexual abuse, as proof of detriment. After hearing argument from R.O.’s attorney and DCFS, the court concluded that placement with appellant would be detrimental to the minor because appellant did not believe R.O.’s abuse allegations. Accordingly, appellant’s contention that the court did not make the required finding is not true.
It is true that the written order contains no reference to section 361.2, but the statute requires the court to make findings “either in writing or on the record.” (§ 361.2, subd. (c), italics added.)
We turn to whether the court’s finding of detriment was supported by the evidence. The juvenile court’s finding of detriment must be made by clear and convincing evidence. (In re Marquis D., supra, 38 Cal.App.4th at pp. 1827-1829; In re Isayah C., supra, 118 Cal.App.4th at pp. 699-700.) The clear and convincing evidence standard requires evidence so clear “‘as to leave no substantial doubt. [Citation.]’” (In re John M., supra, 141 Cal.App.4th at pp. 1569-1570, quoting In re Luke M., supra, 107 Cal.App.4th at p. 1426.) “In making a finding of detriment, the court may consider any jurisdictional findings that may relate to the noncustodial parent under section 300, as well as any other evidence showing there would be a protective risk to the child if placed with that parent.” (In re V.F., supra, 157 Cal.App.4th at p. 970.) On appeal, “we employ the substantial evidence test, however bearing in mind the heightened burden of proof.” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
By its terms, section 361.2, subdivision (a) comes into play only when the parent “with whom the child was not residing at the time that the events or conditions arose that brought the child within [dependency jurisdiction]” desires to “assume custody of the child.” The parties’ briefs discuss at length whether appellant was seeking “custody” within the meaning of section 361.2, subdivision (a). Appellant relies on In re Isayah C. (2004) 118 Cal.App.4th 684, in which the court of appeal held that “a parent may have custody of a child, in a legal sense, even while delegating the day-to-day care of that child to a third party for a limited period of time.” (Id. at p. 700.) DCFS relies on In re Austin P. (2004) 118 Cal.App.4th 1124, where the court, addressing the meaning of “custody” under section 361.2, subdivision (a) stated: “Custody . . . connotes that the parent has the right to make decisions pertaining to the child, and has legal possession of the child. Accordingly, when section 361.2, subdivision (a) refers to a parent’s request for ‘custody,’ it means the parent is asking for the exclusive right to control decisions about the child and to have possession the child -- i.e., the parent is seeking sole legal and physical custody.” (118 Cal.App.4th at p. 1130.) Here, the juvenile court did not deny appellant’s custody request on the ground that she was not seeking “custody” within the meaning of section 361.2, subdivision (a), but on the ground that transfer of custody to appellant would result in detriment. Therefore, we need not address this issue.
The court did not expressly state on the record that it made the finding of detriment under the clear and convincing evidence standard. But failure to articulate the standard is deemed error only where “either a new standard of proof has been recently announced or the applicable standard is unclear.” (In re Katrina C. (1988) 201 Cal.App.3d 540, 548.) The clear and convincing evidence standard for findings of detriment under section 361.2, subdivision (a) was announced in In re Marquis D. in 1985 and has been uniformly applied since. (See, e.g., In re John M. (2006) 141 Cal.App.4th 1564, 1569-1570; In re Isayah C., supra, 118 Cal.App.4th at pp. 699-700; In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.)
The juvenile court’s finding of detriment was amply supported. There is no dispute that appellant sent R.O. to live thousands of miles away, relinquishing indefinitely the child’s day-to-day care and financial support to others. After R.O. was sent to live with Luis and he began to abuse her, appellant was incapable of protecting or supporting her daughter and was not in sufficiently close contact to be the one in whom R.O. confided. When informed by the caseworker of her child’s mistreatment, appellant expressed disbelief, insisting that “‘[t]his did not happen,’” and that no sexual abuse could have occurred because of the biological connection between Luis and R.O. A nonoffending parent who refuses to understand the nature of pedophilia or to believe her child’s sexual and physical abuse allegations is unlikely to protect the child from similar abuse in the future. (See In re Katrina W. (1994) 31 Cal.App.4th 441, 446-447 [mother’s refusal to believe daughter had been molested by father placed child at risk of future abuse and interfered with minor’s ability to heal from past abuse]; In re Marquis D., supra, 38 Cal.App.4th at pp. 1826-1830 [matter remanded to permit juvenile court to determine whether father’s actions in failing to intervene to protect children from abusive mother and permitting children to have unsupervised contact with mother supported detriment under section 361.2].)
Appellant’s counsel suggests the court had no reason to find Elisa’s plan to send her daughter to Miguel in Texas was inadequate. It compares her situation to that of the incarcerated father in In re Isayah C., supra, 118 Cal.App.4th 684, who had made arrangements for his infant son to stay with relatives during his brief period of incarceration. The case is factually and legally distinguishable. In Isayah, the father was not only non-offending, but had done nothing to cause the court to question his ability to provide a safe environment for his child. In contrast, Elisa not only had permitted her daughter to go to a home in which she was abused, but had refused to acknowledge the abuse. The court was not required to abdicate its responsibility to protect R.O. in deference to Elisa’s demonstrably faulty judgment. Moreover, in Isayah, the appellate court did not disagree with the juvenile court’s finding that placing the child with the father’s relatives would interfere with his reunification with his mother and with his bond with his brother. Rather, because the appellate court found the trial judge had also relied on an impermissible ground for finding detriment -- viz., the father’s brief incarceration -- it could not determine “whether the trial court would have found clear and convincing evidence of detriment based on the harm to the sibling bond alone, or in combination with the harm to reunification with [mother] . . . .” (118 Cal.App.4th at p. 701.) Here, there is no evidence the juvenile court relied upon an impermissible factor in finding detriment. Its finding was based on the wholly permissible ground that Elisa’s refusal to acknowledge the abuse to which her daughter had been subjected made her an unsuitable candidate to assume custody and control of the placement of her child.
Appellant appears to believe that her status as a “nonoffending” parent entitles her to special consideration. As the court explained in In re V.F., it is unnecessary to address whether a parent not named in the jurisdictional petition is properly classified as “‘nonoffending.’” The term “does not appear in section 361.2” and “section 361.2 applies to a noncustodial parent without regard to that parent’s status as an offending or nonoffending parent.” (157 Cal.App.4th at p. 970.) Under the terms of the statute, “[i]f a noncustodial parent requests custody of a child, the trial court must determine whether placement with that parent would be detrimental to the child.” (Ibid.) The juvenile court properly did so here.
2. Reasonableness of Reunification Plan
Appellant contends that the reunification plan devised by the court was not reasonable because “[t]here is no evidence to support any reasonable expectation that [the] programs [ordered] were readily available to [appellant] or that she would be able to afford them financially or even attend such classes.” DCFS contends appellant has waived or forfeited this issue by failing to object to the reunification plan below.
“‘[T]he focus of reunification services is to remedy those problems which led to the removal of the children . . . .’” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362, quoting In re Michael S. (1987) 188 Cal.App.3d 1448, 1464.) “‘[T]he record should show that [DCFS] indentified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the [parent] during the course of the service plan, and made reasonable efforts to assist the [[parent] when] compliance proved difficult. . . . .’” (Ibid., quoting In re Riva M. (1991) 235 Cal.App.3d 403, 414.) “‘[E]ach reunification plan must be appropriate to the particular individual and based on the unique facts of that individual. [Citations.]’” (Ibid., quoting In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
“In reviewing the reasonableness of the services provided, [the Court of Appeal] must view the evidence in a light most favorable to the respondent. We must indulge in all reasonable and legitimate inferences to uphold the judgment.” (In re Ronell A., supra, 44 Cal.App.4th at p. 1361.)
We agree that appellant’s contention in this regard has been forfeited, as DCFS contends. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 502, quoting In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 [“‘Many dependency cases have held that a parent’s failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court.’”]; In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886, and cases cited therein.) The topic of reunification services first arose after jurisdiction was resolved when counsel for DCFS advised the court of DCFS’s position that as appellant was not seeking physical custody, there was no need to provide reunification services to her. At that time, appellant’s counsel protested that appellant did not have notice that DCFS would be seeking a “no reunification services” order, but did not suggest that any reunification services ordered would be unreasonable or unavailable to appellant. At the contested dispositional hearing held at a later date, appellant’s counsel raised no objection when the court ordered a reunification plan under which appellant was to undertake parenting education and sexual abuse awareness counseling. Appellant’s failure to object to the specific programs ordered by the court or to provide evidence concerning whether such services or any alternatives were available in her country precludes consideration of her objection to the plan now. (See In re Riva M., supra, 235 Cal.App.3d at pp. 411-412 [unless error involved “the fundamental jurisdiction of the court to act,” parent is precluded from raising on appeal any point not raised in the juvenile court].)
The court specifically asked appellant’s counsel to address whether appellant wanted reunification services, but counsel was unable to express appellant’s position on the subject.
Moreover, were we to address the issue on the merits, we could not find either the court’s plan or DCFS’s efforts to assist appellant’s compliance unreasonable on the record provided. The reunification plan required appellant to become knowledgeable about parenting and sexual abuse and was clearly designed “‘to remedy those problems which led to the removal of the child[]. . . .’” (In re Ronell A., supra, 44 Cal.App.4th at p. 1362.) Once the general outline of a reunification plan has been formulated by the court, it is up to DCFS to provide details and direction and make the necessary effort to “provide suitable services [to the parent], in spite of the difficulties of doing so or the prospects of success. [Citation.]” (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) This was recognized by the court when it instructed DCFS to “address efforts to identify any programs for the mother [] in El Salvador.” At the time this appeal was filed, DCFS had had no opportunity to implement the plan or provide direction to appellant in addressing any difficulties she might have with compliance based on the resources available. Thus, we cannot assess those efforts.
It should be kept in mind that at the time the appeal was filed, this case was in its early stages. The court had not ordered the reunification period terminated or set a section 366.26 hearing to consider termination of appellant’s parental rights. Appellant will have an opportunity at the scheduled review hearings or through a section 388 petition for modification to explain her situation in greater detail, provide evidence regarding the availability of the specific programs ordered by the court, and suggest alternative methods under which she can establish to the court’s satisfaction that returning R.O. to her custody and control would not be detrimental to the minor. We cannot presume that because appellant is living in El Salvador, it is impossible for her to comply with a reasonable reunification plan geared to addressing the problems that led to the establishment of dependency jurisdiction. Nor can we conclude that to the extent specific services are unavailable, the only alternative is to return R.O. to appellant’s custody and control without addressing the problems that necessitated DCFS intervention.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.