Opinion
F085090
06-13-2023
In re E.P., a Person Coming Under the Juvenile Court Law. v. P.P., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Alexandria M. Ottoman, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County. No. JD143184-00 Christie Canales Norris, Judge.
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
Margo A. Raison, County Counsel, and Alexandria M. Ottoman, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
In this juvenile dependency case, P.P. (father) appeals from the juvenile court's dispositional order removing his then four-year-old daughter, E.P., from his physical custody under Welfare and Institutions Code section 361. Father, the noncustodial parent at the time of removal, contends the court erred by applying the removal statute, section 361, rather than analyzing his request for placement of E.P. under section 361.2, subdivision (a), which provides that the court must place a dependent child with a noncustodial parent who requests custody unless it makes a finding doing so would be detrimental to the child. The Kern County Department of Human Services (department) concedes error but contends it was harmless.
All further undesignated statutory references are to the Welfare and Institutions Code.
Both parties fail to acknowledge section 361, subdivision (d), which applies to removal of a child from a noncustodial parent. Because the record indicates the juvenile court was proceeding under section 361, subdivision (d), we do not accept the department's concession that the court erred by applying a removal statute. We do, however, conclude the court's factual findings underlying its removal order are unsupported by the evidence, and therefore, it erred by ordering E.P. removed from father's custody. We reverse the portion of the court's order removing E.P. from father's custody under section 361 and remand for further proceedings for father to request custody under section 361.2.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2022, the department received a referral alleging general neglect, emotional abuse, and caretaker absence incapacity against E.P. The referral alleged there was a domestic violence incident between the maternal grandparents, with whom E.P. was living. W.M. (mother) was in a conservatorship and was residing in a psychiatric care home, where she was receiving treatment for schizophrenia. The investigating social worker was unable to contact father at the time the referral was received. Mother reported to the social worker she had not had contact with father for a long time, and the last time she saw him was when she babysat for children he had with his current wife. She could not provide a time frame but said his children were "small" and now "grown." She further reported father's family was "dirty" and "smoke weed." She did not want father or his family around E.P. E.P. was placed into protective custody on April 1, 2022.
Mother had been the subject of investigation of several previous child welfare referrals due to erratic behavior from her mental illness, but most were evaluated out or deemed inconclusive. On two previous occasions, child welfare investigations were concluded when it was determined E.P. appeared safe in father's care. In September 2018, a referral was made alleging father had climbed through mother's open window, grabbed E.P., and fled with her. Law enforcement contacted father and did not believe E.P. was in any immediate danger. It was reported she "was in good care, and had adequate food, water, and electricity." Father reported he had not entered the residence through the window; rather, mother had let him in, and he had taken E.P. because he was concerned by mother saying she was hearing voices. The referral was evaluated out due to "no specific allegations of abuse or neglect." In October 2018, a referral was received alleging caretaker absence/incapacity by mother due to her mental illness; it was reported she shared care of E.P. with father, and E.P. was "back and forth" with each parent. At the time the referral was investigated, E.P. was in father's care; the investigation found "no report of the child being harmed or having unmet needs for food, clothing, shelter, etc." and "[t]he referral was evaluated out with an unspecified reason."
Father had a child welfare referral from September 2018, alleging that E.P. was left unattended on a sofa, but the referral was evaluated out "due to not meeting criteria for an in-person response." He had another referral from July 2021, alleging sexual abuse; it was reported "the child was molested and raped multiple times by [father] last year" and that the grandparents still allowed visits. The allegations of sexual abuse, as well as allegations of general neglect by the grandparents, were deemed unfounded. Father had no criminal history.
On April 1, 2022, the department filed a juvenile dependency petition on behalf of E.P. alleging she came within the court's jurisdiction under section 300, subdivision (b) [failure to protect]. The petition alleged that mother failed to adequately supervise or protect E.P. from the conduct of the grandparents with whom she had left E.P. and that mother was unable to provide care due to her mental illness in that she was in the care of a psychiatric facility under conservatorship.
On April 5, 2022, during the initial detention hearing, mother was examined in open court regarding paternity. She testified father was E.P.'s father and he was living with her and her parents at the time she became pregnant. Father was present at the hospital when E.P. was born and signed the birth certificate. He held E.P. out as his child, and she had never heard him deny that E.P. was his child. Father lived with E.P. for about a year. There was a child support judgment but father had not paid. Mother stated she and father "didn't get along because he was ... mean to me and my child." She further testified father's family did not like her and she did not like to bring E.P. around them because they were "negative" and "smoke[d] weed at the house." Based on mother's testimony, the court elevated father to presumed father status and appointed him counsel.
On April 11, 2022, at the continued detention hearing, the court ordered E.P. detained from mother and set a date for mediation and a jurisdiction/disposition hearing.
The department's jurisdictional report dated May 24, 2022, indicated E.P. had been placed in a resource family home. Mother reported to the social worker she did not get along with father and did not want him to have visits with E.P. She again stated she did not want his family near E.P. and that his family was "dirty" and "smoke[d] weed all day." Mother also reported father lived with his sister and she believed there was something "weird" going on between them; specifically, mother thought they were not related and were a couple.
In May 2022, the social worker made telephone contact with father. He reported he used to visit E.P. but the last time was "a while ago" and her mother had "ghosted" him. He further reported that E.P. knew him but not "that well." He had provided primary care for E.P. when she was six months old for a few months but had not had contact with her for the past two years and had not attempted to visit her. He explained he lived close to the maternal grandparents' home and would see E.P. out walking with her grandparents and he would say hello. He stated he and E.P. had not been able to bond and he "did not want to add to it by trying to talk to [E.P.]," as she "was good with her mother." Father reported he lived with his sister and was unemployed. He supported himself by doing small jobs and donating plasma. He denied drug and alcohol use. He agreed to complete a parenting class as he had no other children and only provided primary care to E.P. for a short time.
The jurisdictional hearing was conducted on May 31, 2022. Father was present for his first appearance and had requested visitation prior to the hearing. Mother waived her right to a hearing; father submitted on the issue of jurisdiction as there were no allegations against him and restated his request for visitation.
The court found both jurisdictional allegations pertaining to mother true but amended the petition so that the second section 300, subdivision (b) allegation regarding mother's mental health was true under section 300, subdivision (g) [no provision for support]. Accordingly, the court found E.P. came within its jurisdiction under section 300, subdivisions (b) and (g). The court ordered a mental health evaluation of mother to determine whether she would benefit from reunification services. The court ordered supervised visitation between father and E.P. twice per week for two hours. Father requested to be considered for placement.
The jurisdictional allegations pertaining to mother as amended on the record were as follows:
As b-1, "The child, [E.P.] has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness by the willful or negligent failure of [mother] to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left. On or around June 30, 2021, the mother was admitted to [a psychiatric care facility] under conservatorship. The child was left with the maternal grandparents .... On March 23, 2022, the grandparents engaged in a domestic violence incident with the child present. [Maternal grandfather] punched [maternal grandmother] in the nose, causing it to bleed. The grandparents have a history of domestic violence. The grandfather was arrested on February 11, 2017, for assaulting the grandmother. He was ordered to complete a 52 week domestic violence class and a no-contact order was issued. The grandfather has not yet completed that course, and continues to reside in the home with the grandmother and the child. The grandfather has admitted there is ongoing domestic violence in the home, and that it is not a safe environment for the child. The ongoing domestic violence places the child at risk." As g-1, "The child, [E.P.], has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness by the willful or negligent failure of [mother] to provide regular care to the child due to the mother's mental illness. On or around June 30, 2021, [mother] was placed on a 5150 Psychiatric Hold. [M]other was then admitted to [a psychiatric care facility] and is under conservatorship. [M]other's conservatorship will be evaluated in September 2022, and she will remain admitted to the locked facility until at least that date. The mother is unable to leave the facility or care for her child."
The department's disposition report dated September 1, 2022, indicated father had never been married and had one child, E.P.
Several supervised visits between father and E.P. from July and August 2022 were summarized in the report. During the first visit, father greeted E.P. with a playdough set. E.P. did not want to say hello to father at first but smiled as she opened the gift and did not display any negative behavior. E.P. played, and father took pictures of her as she played. E.P. asked to see the pictures, and when he showed her, she laughed. The two played together outside, and father pushed E.P. on a swing. Father showed E.P. funny videos on his phone, and she laughed. They went back inside and colored. With about a half-hour left in the visit, E.P. began to show signs that she wanted to leave and did not want to play with father anymore. E.P. showed no outward emotion at the end of the visit.
At another visit, father attempted to play with E.P., but E.P. was not interested. She requested to go outside, where she played with the social worker and father. When they went back inside, E.P. repeatedly told father not to touch her or talk to her. She ran around the visitation room and asked for mother. At the end of the visit, E.P. waved goodbye, and father told her he loved her. The social worker noted, "Overall, there was progress made during this visit between interactions with [E.P.] and ... father and the overall visit was okay."
At another visit, E.P. was initially apprehensive to play with father but eventually became comfortable, and they played together. At one point, E.P. got restless and left the visitation room; father did not attempt to help her stay in the visitation room, and E.P. displayed defiance. Later in the visit, E.P. refused help from father and did not want him to touch her toys. The social worker noted the two "bonded" in the first hour of the visit, but in the second hour, father made no attempt to help E.P. when she began displaying defiance and anger toward him.
The caregivers told the social worker that prior to the next visit, E.P. did not really want to visit with father, as she thought she was going to the pool. When she learned she was going to visit with her parents, she started to cry and said, "I don't want daddy." E.P. visited with mother first that day; E.P. played with her but grew restless in the second hour of the visit and wanted to leave the visitation room. E.P. began to cry because she did not want to visit with father after her visit with mother was over. Mother was able to comfort E.P., but E.P. sobbed as mother attempted to leave the center. E.P. was emotional after mother left, but when her visit with father began, he picked her up in his arms and was able to calm her. Father distracted E.P. by playing with her and attempting to make her smile. They played outside. When back inside, father provided snacks and drinks and was attentive and loving towards her. They played together, and when E.P. tried to leave the room, father would attempt to redirect her. Father hugged E.P. at the end of the visit.
At the beginning of the next visit, E.P. hid behind the social worker and did not want to interact with father initially. She slowly warmed up to him, and they played games together. E.P. grew restless in the last hour of the visit. At the end of the visit, father said goodbye and told E.P. he loved her. E.P. waved goodbye but declined a hug. The social worker noted there appeared to be progress between father and E.P. but she continued to become agitated when she was at the visit for too long.
At the beginning of a visit in August, E.P. laughed and hid behind staff as father entered the visitation center. E.P. then gave father a hug. Father gave E.P. a dollhouse kitchen set, and they assembled it together. E.P. was smiling and laughing as she engaged with father. They hugged goodbye but E.P. wanted to leave quickly once she saw her care provider's vehicle.
Father missed two visits in August due to work obligations. He advised the social worker he missed the visits because he had begun working the night shift at a buffet restaurant. Father further reported he had begun taking a parenting class on August 9, 2022. He declined to voluntarily drug test. The social worker conducted a home visit of father's home that he shared with his sister and two nieces and observed the room that E.P. would share with one of her cousins. The social worker observed the room appeared to have enough room for the two girls. The bathroom and kitchen were functional, and the refrigerator had plenty of food. The social worker observed no visible safety hazards. Father advised that his sister would watch E.P. while he was at work.
The disposition report contained a section entitled "NON-CUSTODIAL PARENT ANALYSIS." The department recommended father be provided with family reunification services. The report noted that father had "consciously not involved himself in his child's life" and "knew or reasonably knew the mother had serious mental and intellectual deficits but declined to ensure his child's safety and well-being." The report further indicated father was not participating in comfort calls and had missed visits in August. It further noted E.P. had "on at least one occasion ... declined to hug" father at the end of a visit. The department recommended "father put forth more effort to build[] a connection with his daughter to ensure she is comfortable with him, including comfort calls and quality visitation" and noted E.P. did not look to father as a parental figure who met her daily needs. Finally, the report stated that the department was concerned about drug use, noting that "[h]e is only recently employed, living with his sister, has been donating plasma for a living" and "knew he had a daughter down the street from him and declined to put forth any effort to establish a bond for the last [four] years."
At the dispositional hearing on September 8, 2022, father requested the court release E.P. to him. He asserted he was a nonoffending parent and had a place for her in his home. E.P.'s counsel expressed concern that father was not "fully vetted." Counsel for the department requested the court consider the department's analysis in its disposition report and noted father "doesn't even really know his daughter ... [a]nd there's just been some other issues with father." Counsel for the department explained father "knew or reasonably should have known about the mother's situation and issues and he didn't do anything to help his daughter, protect his daughter," was "not participating in comfort calls," had "missed visits," and E.P. "reported not wanting to visit" father. Counsel for the department concluded, "It doesn't seem like placement at this time would be appropriate. It looks like it's a situation where this child needs to build a relationship with her father."
The court stated it agreed with the department's assessment and denied father's request for placement. The court stated "[t]here is sufficient evidence to show that it would be a substantial danger to place the child with her father, substantial physical risk to her physical health, safety, protection and physical or emotional well-being of the child. They've not had a very strong relationship. The visiting is minimal at best. And the father's situation does not seem to be stable."
In making its final findings and orders, the court stated, "[t]here is clear and convincing evidence that there's substantial danger to the physical health, safety, protection or physical or emotional well-being of the child or there would be if the physical custody of the child is not removed from the parents, and there are no reasonable means to protect the child's physical health without removal of the child from the physical custody of the mother and father." The court ordered E.P. "removed from the physical custody of the parents based upon the facts set forth in the sustained petition, the report of the social worker and the evidence presented." Both parents were ordered to participate in family reunification services, with father being ordered to participate in parenting/neglect counseling and a mental health assessment.
DISCUSSION
Father argues the juvenile court erred by removing E.P. from his physical custody under section 361 rather than assessing his request for placement under section 361.2, subdivision (a). The department concedes the court erred by applying section 361, and that, as father was a noncustodial parent, the correct analysis was under section 361.2, subdivision (a) but argues any error was harmless.
As a threshold matter, we must reframe the parties' arguments slightly. Both parties appear to be relying on the premise that the court acted improperly by removing E.P. from father's physical custody under section 361 based solely on the fact he was a noncustodial parent. We decline to accept this premise.
Section 361, subdivision (c)(1), the statute cited by the parties, is a removal statute that applies to custodial parents and provides, in pertinent part: "A dependent child shall not be taken from the physical custody of [the] parents ... with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence," that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's ... physical custody."
Section 361.2, subdivision (a), on the other hand, is not a removal statute but a placement statute that applies to noncustodial parents when a child is removed under section 361; it provides in pertinent part that if a "parent . with whom the child was not residing at the time that the events or conditions arose that brought the child within" the court's jurisdiction 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." If the court places the child with the noncustodial parent, it can choose from a number of options, such as terminating jurisdiction and making a custody order or ordering services for one or both parents with custody to be determined later. (§ 316.2, subd. (b).)
Section 361, subdivision (d), however, which the parties do not acknowledge, became effective in 2018, and is a removal statute that applies to noncustodial parents and currently (as well at the time of disposition in the present case) reads in its entirety:
"A dependent child shall not be taken from the physical custody of his or her parents, guardian, or Indian custodian with whom the child did not reside at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child for the parent, guardian, or Indian custodian to live with the child or otherwise exercise the parent's, guardian's, or Indian custodian's right to physical custody, and there are no reasonable means by which the child's physical and emotional health can be protected without removing the child from the child's parent's, guardian's, or Indian custodian's physical custody."
The language of section 361, subdivision (d) is almost identical to section 361, subdivision (c)(1), and does not apply a different standard for removal. (See In re S.F. (2023) 91 Cal.App.5th 696, 719-720 [holding express findings under section 361, subdivision (c) instead of section 361, subdivision (d) was harmless error].)
In the present case, the juvenile court did not specify the statute under which it was making its findings, but the record appears to indicate the juvenile court proceeded under section 361, subdivision (d), in that, in our view, it clearly meant to remove E.P. from father's custody as it used that statutory language in evaluating father's request for placement and in making its final findings and orders. This was among the dispositional options available to the court. Thus, we decline to accept the department's concession that the juvenile court applied the wrong statute based only on the fact that father was a noncustodial parent. Rather, in our view, the better framing of our task is simply to resolve a sufficiency of the evidence claim; that is, whether the evidence is sufficient to support the juvenile court's factual findings that: (1) there is a "substantial danger to the physical health, safety, protection, or physical or emotional well-being" of the child if she were to live with father and (2) "there are no reasonable means by which the child's physical and emotional health can be protected without" removal from father.
The issue of whether the evidence was sufficient to support the juvenile court's substantial danger finding was fully briefed by the parties.
We conclude the juvenile court's finding of substantial danger was not supported by sufficient evidence and thus the removal order must be reversed. We note that even if we were to find it was improper for the court to apply section 361, our conclusion would be no different. The findings required under section 361, subdivision (c) and section 361, subdivision (d) are substantively similar to findings required under section 361.2, subdivision (a). (See In re D Anthony D. (2014) 230 Cal.App.4th 292, 303-304; accord, In re Andrew S. (2016) 2 Cal.App.5th 536, 545, fn. 5.) Thus, because we find the evidence is insufficient to support the court's finding of substantial danger, we also find it is insufficient to support a finding of detriment under section 361.2, subdivision (a), and our disposition would be the same.
In reviewing the juvenile court's findings," 'we determine if substantial evidence, contradicted or uncontradicted, supports them.'" (In re I.J. (2013) 56 Cal.4th 766, 773.)"' "[W]e draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." '" (Ibid.)"' "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court." '" (Ibid.) In evaluating the record for substantial evidence, we must account for the clear and convincing standard of proof. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) Thus, the ultimate question before us is "whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true." (Ibid.)
When determining whether a child will be in substantial danger if permitted to remain in the parent's physical custody, the juvenile court must consider, "not only the parent's past conduct, but also current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention." (In re I.R. (2021) 61 Cal.App.5th 510, 520.)
The department asserts the section 361 finding was supported by substantial evidence, primarily that father had no relationship with E.P. for two years and "was almost a stranger to her" and because father knew of mother's mental health issues and allowed her to care for E.P. The juvenile court's stated justification for its substantial danger finding was that father and E.P. had "not had a very strong relationship"; that visitation was "minimal at best"; and that "father's situation does not seem to be stable." The court added that it was relying on the sustained petition, department report, and other evidence.
The juvenile court's emphasis on the lack of a strong relationship and "minimal" visitation suggests the court was focused on E.P.'s emotional well-being; however, the evidence of substantial danger to E.P.'s emotional well-being was weak. We first note that the removal statute for noncustodial parents is relatively recent, and there are not many published cases addressing it specifically; while we acknowledge the court did not err by failing to apply section 361.2, subdivision (a), we find cases analyzing "detriment" under that provision persuasive in determining whether the evidence supported a finding of "substantial danger" under section 361, subdivision (d). Several courts analyzing sufficiency of the evidence under section 361.2, subdivision (a) have concluded lack of contact or a relationship is a factor a court may consider in determining detriment under section 361.2, subdivision (a) but it is not determinative. (In re Adam H. (2019) 43 Cal.App.5th 27, 33; In re John M. (2006) 141 Cal.App.4th 1564, 1571 [father's absence for four years did not support a detriment finding].) The focus must be on the risk of harm to the child.
Here, while there was evidence on the record that E.P. did not want to visit with father on one occasion and was reserved toward him at times, in context, this behavior did not seem particularly limited to only E.P.'s interactions with father. For example, the record also contained instances in which E.P. grew restless after visiting with mother for an hour and participating in comfort calls with her, and she was on one occasion observed as getting an "attitude" toward mother similar to a switch in behavior observed where she started showing anger toward father. Moreover, while father had missed two visits as well as comfort calls, it did not appear to be an indication that father was not committed to reunifying with E.P. from which to infer potential harm. The record indicates father missed the visits due to obtaining employment and otherwise visited consistently. Moreover, the visits appeared to go reasonably well, and father and E.P.'s relationship appeared to be progressing. There are numerous instances in the visitation reports where father and E.P. enjoyed playing and spending time with one another, and father was observed to be sensitive to E.P.'s emotional and physical needs.
Further, the record does not indicate placement with father would interfere with or deprive E.P. of any support she derived from any other relationships in her life; she was not placed with relatives or, to our knowledge, anyone she knew prior being removed from her grandparents' home. Father lived close by, and if placed with him, E.P. would be able to continue visiting regularly and working toward potential reunification with mother. (Cf. In re A.C. (2020) 54 Cal.App.5th 38, 43-46 [affirming the juvenile court's finding of detriment in placing a 12-year old minor with her out-of-state noncustodial parent where the minor had expressed the parent was "a stranger who could have reached out to her over the years but did not," was thriving in the care of her maternal grandparents, and a therapist opined moving her and placing her with father would be "detrimental to her ... mental health and stability"].)
Moreover, the juvenile court made no direct mention of concern for E.P.'s physical safety or protection in father's care in making its substantial danger finding, and the record does not support a conclusion E.P. would be physically unsafe or not properly cared for in father's care. While the court made a vague comment that father's "situation" was unstable, it is unclear what danger the court was suggesting father posed to E.P. There was no evidence father previously posed a risk to E.P. when she was in his care. To the contrary, when previous referrals were made against mother, they were evaluated out when it was determined E.P. was in father's care and appeared safe. Father was not the subject of any substantiated prior referrals and had no criminal history. Father was employed, albeit recently, and had housing, which the department had assessed and determined had no safety concerns. He asserted his sister could provide childcare when he was at work. The court did not seem to credit the department's concerns of possible drug use, as it did not order any drug related services as part of father's reunification plan. Father had been generally engaged in the process, cooperative with the department, and had begun parenting classes.
Though the juvenile court did not specifically address it, the department's assertion below and on appeal that father failed to protect E.P. from mother is also unconvincing evidence of substantial danger. First, the department alleged no jurisdictional allegations pertaining to him, depriving father the chance to contest or fully litigate this particular aspect of his protective capacity. Further, the jurisdictional allegations pertaining to mother had to do with her failure to protect by leaving E.P. with the maternal grandparents. While the court found there was evidence to support mother's mental illness was involved in her decision, and father likely knew of mother's mental illness as evidenced by prior child welfare referrals, there is no evidence father knew of the maternal grandparents' domestic violence issues or that in the event mother's mental illness rendered her unable to care for E.P., the maternal grandparents were not a safe option. While father's disappearance from E.P.'s life showed he was not an ideal parent, that is not enough to support a substantial danger finding. (See David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789-790 [the juvenile court should focus on "the essential question of whether [the child's] safety, protection, [or] physical or emotional well-being would be placed at substantial risk in [her father's] care" because "[i]deal parents are a rare-if not imaginary-breed"].)
In sum, we cannot say the reasons given by the juvenile court nor the state of the evidence at the time of the dispositional hearing, supported its findings of substantial danger. Therefore, we reverse the order removing E.P. from father's custody and remand the matter for father to have the opportunity again to request custody. Should he request custody, the court shall analyze his request under section 361.2, subdivision (a), in light of the facts and circumstances at the time of the hearing for placement, including any evidence that has come to light while this appeal was pending that may or may not support a detriment finding. We express no opinion on what the result of that hearing should be, so long as it is not inconsistent with the views expressed in this opinion.
DISPOSITION
The portion of the juvenile court's disposition order removing E.P. from father's physical custody is reversed. The matter is remanded to give father the opportunity to again request custody. If father requests custody, the court shall consider father's request under section 361.2, subdivision (a), in light of his and E.P.'s then-current circumstances.
[*] Before Detjen, Acting P. J., Meehan, J. and DeSantos, J.