Filed 8/17/21 In re J.S. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re J.S. et al., Persons Coming 

Under the Juvenile Court Law.

 B307694

 

 (Los Angeles County

 Super. Ct. No. 20CCJP02885A-B)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

JESSICA B.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los 

Angeles County, Marguerite D. Downing, Judge. Affirmed.

Katie Curtis, under appointment by the Court of Appeal, 

for Defendant and Appellant.
2

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Tracey Dodds, Principal Deputy 

County Counsel, for Plaintiff and Respondent. 

____________________________________

INTRODUCTION

Jessica B., mother of now 10-year-old Joaquin S. and nineyear-old Nevaeh S., appeals from the juvenile court’s jurisdiction 

findings and disposition order declaring the children dependents 

of the court under Welfare and Institutions Code section 3001 and 

removing them from their father’s care. Jessica contends the 

court erroneously removed the children from her. The court, 

however, did not remove the children from Jessica or otherwise 

err in making its disposition order, and any error was harmless. 

Therefore, we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

In 2011 the Los Angeles County Department of Children 

and Family Services filed petitions under section 300 alleging 

Joaquin and Nevaeh were at risk of harm as a result of Jessica’s 

history of mental and emotional problems and substance abuse. 

After sustaining the allegations in those petitions, the juvenile 

court ultimately—at least according to Jessica in this appeal—

1 Statutory references are to the Welfare and Institutions 

Code. 
3

terminated its jurisdiction and awarded the children’s father, 

Joaquin Sr., sole legal and physical custody.2

In April 2020 Joaquin Sr. had Joaquin and Nevaeh in the 

car with him when a California Highway Patrol officer stopped

Joaquin Sr. for speeding and arrested him for driving under the 

influence of alcohol. The officer contacted Jessica, who drove to 

the scene, picked up the children, and took them to the home of 

Joaquin Sr.’s parents. 

The Department filed this case in May 2020, alleging 

Joaquin and Nevaeh came within the jurisdiction of the juvenile 

court under section 300, subdivision (b)(1), as a result of

Joaquin Sr.’s history of alcohol abuse and Jessica’s history of 

substance abuse, and under section 300, subdivision (j), as a 

result of Jessica’s substance abuse.3 The Department alleged the 

children, who had been detained, were residing with Joaquin Sr. 

when the Department intervened. In August 2020 the juvenile 

court sustained the allegations under section 300, 

subdivision (b)(1), relating to Joaquin Sr. and the allegations 

2 The Department does not dispute Jessica’s account of those 

custody orders, and the record confirms the account regarding

Nevaeh. The record is less clear regarding Joaquin, but it does 

reflect Joaquin Sr. and Jessica understood that, following the 

previous dependency proceeding involving Joaquin, Joaquin Sr. 

had “full custody” of him.

3 The count under section 300, subdivision (j), alleged that, 

because of Jessica’s substance abuse, two additional children of 

hers, D.B. and G.B., were declared dependents of the juvenile 

court in earlier proceedings that led to those children receiving 

permanent placement services.
4

under section 300, subdivision (j), and dismissed the allegations 

under section 300, subdivision (b)(1), relating to Jessica. 

At disposition the juvenile court removed the children from 

Joaquin Sr. under section 361, subdivision (c). The court also

stated: “As to [Jessica], the court is denying reunification 

services pursuant to [section 361.5, subdivision (b)(10)]. The 

court notes that [Jessica] is not the previously custodial parent. 

These children were previously removed. She never had them 

returned to her care. So she is a noncustodial parent. [The] court 

has no information she has ever enrolled in . . . and completed the 

programs she needed for the last case. So at this point, 

reunification services are being denied. Placement with her 

would be detrimental.” Jessica timely appealed. 

DISCUSSION

A. Relevant Law

Section 361 “governs removal of the child from his or her 

parent or guardian.” (In re Nickolas T. (2013) 217 Cal.App.4th 

1492, 1496.) In particular, section 361, subdivision (c), describes 

the juvenile court’s authority to remove a dependent child “from 

the physical custody of his or her parents . . . with whom the child 

resides at the time the petition was initiated.” Section 361, 

subdivision (d), describes the court’s authority to remove a 

dependent child “from the physical custody of his or her parents 

. . . with whom the child did not reside at the time the petition 

was initiated.” 

Section 361.2 “governs placement of a child after the court 

issues a valid removal order” under section 361. (In re Dakota J.

(2015) 242 Cal.App.4th 619, 630; see In re V.F. (2007) 
5

157 Cal.App.4th 962, 969 [“section 361.2 is not a removal 

statute”].) Subdivision (a) of the statute provides that, “[i]f 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.”

B. Jessica Has Not Demonstrated the Juvenile Court 

Removed the Children from Her or Otherwise Erred 

Jessica contends the juvenile court “erred by removing the 

children from [her] custody” because no statute authorizing 

removal applied to her. Citing section 300, subdivisions (c) and 

(d), and section 361.2, subdivision (a), she argues that, “[w]here a 

parent does not have legal custody and does not request custody 

of the child, the necessity to protect the child is absent and 

removal is not contemplated in the dependency statute scheme.” 

This argument is without merit, however, for the simple reason 

that the court did not remove the children from Jessica.

Insisting otherwise, Jessica cites the minute orders from

the disposition hearing, which include a recital that “[i]t is 

reasonable and necessary to remove the child from the parents

. . . .” The reporter’s transcript of the hearing, however, 

unambiguously reflects the court removed the children from 

Joaquin Sr. only, pursuant to section 361, subdivision (c). And 

“[w]here there is a conflict between the juvenile court’s 
6

statements in the reporter’s transcript and the recitals in the 

clerk’s transcript, we presume the reporter’s transcript is the 

more accurate.” (In re A.C. (2011) 197 Cal.App.4th 796, 799-800; 

accord, In re Abram L. (2013) 219 Cal.App.4th 452, 459, fn. 3.) 

Though she does not clearly advance it as an additional, 

independent ground for reversal, Jessica also suggests that, in 

finding the children’s placement with her “would be detrimental,”

the juvenile court erroneously applied section 361.2, 

subdivision (a). She argues that provision did not apply because 

she did not, at disposition, ask the court to place the children 

with her. Jessica forfeited this argument, however, by failing to 

raise it in the juvenile court. (See In re S.B. (2004) 32 Cal.4th 

1287, 1293 [“[d]ependency matters are not exempt” from the rule 

that “a reviewing court ordinarily will not consider a challenge to 

a ruling if an objection could have been but was not made in the 

trial court”]; In re A.A. (2012) 203 Cal.App.4th 597, 605 [“Failure 

to object to noncompliance with section 361.2 in the lower court 

results in forfeiture.”].)

The argument is also meritless. The juvenile court did not 

indicate it was making the detriment finding under section 361.2, 

subdivision (a), and Jessica cites no statute or case law 

suggesting the court lacked authority to make the finding.4 The

juvenile court’s “broad discretion to determine what would best 

serve and protect the child’s interest and to fashion a 

dispositional order in accord with this discretion, permits the 

court to formulate disposition orders to address parental 

deficiencies when necessary to protect and promote the child’s 

welfare, even when that parental conduct did not give rise to the 

4 Nor does she challenge the evidentiary basis for the 

finding. 
7

dependency proceedings.” (In re K.T. (2020) 49 Cal.App.5th 20, 

25; see § 362, subd. (a) [where it adjudges a child a dependent of 

the court on the ground the child is a person described by section 

300, “the court may make any and all reasonable orders for the 

care, supervision, custody, conduct, maintenance, and support of 

the child”]; In re K.T., at p. 24 [“The juvenile court has ‘wide 

latitude’ in formulating reasonable disposition orders for the care, 

custody, support, and well being of juvenile dependents.”].) 

Particularly given that Jessica did (unsuccessfully) request 

custody of the children at the detention hearing in this case, and 

that section 361.2, subdivision (e)(1), permits the Department to

place a child under its supervision in “[t]he home of a 

noncustodial parent, as described in subdivision (a),” the juvenile 

court did not abuse its discretion by including a detriment finding 

in its disposition orders. (See In re K.T., at p. 25 [“We review the 

juvenile court’s disposition orders for an abuse of discretion 

[citation], and review for substantial evidence the findings of fact 

on which dispositional orders are based.”].) 

C. Any Error by the Juvenile Court Was Harmless

Finally, even assuming the juvenile court erred—either by 

removing the children from Jessica or by making a detriment 

finding against her—any error was harmless. (See In re Celine R.

(2003) 31 Cal.4th 45, 59-60 [harmless error doctrine applies in 

dependency cases, and a reviewing court should not set aside a

dependency court order unless it is “reasonably probable the

result would have been more favorable to the appealing party but 

for the error”].) Jessica suggests Joaquin Sr. “may fail in services 

and the juvenile court might eventually be required to select a 

permanent plan for the children under section 366.26,” in which 
8

event “termination of [her] parental rights may ultimately be at 

stake.” She argues that, because the “overall dependency scheme

. . . permits the termination of parental rights based on a finding 

of detriment or parental unfitness made by clear and convincing

evidence in conjunction with a removal order,” the removal order 

here could “satisfy the requirement that a finding of detriment or 

unfitness be made against [her].” 

Before the juvenile court may terminate parental rights, 

the court must find by clear and convincing evidence that 

“awarding custody of a dependent child to a parent would be 

detrimental to the child.” (In re G.P. (2014) 227 Cal.App.4th 

1180, 1193; accord, In re D.H. (2017) 14 Cal.App.5th 719, 

730-731.) Jessica is correct that this finding need not occur at the 

section 366.26 hearing, but may occur earlier, including at 

disposition. (In re D.H., at p. 730.) Nothing in the record, 

however, suggests the court made its detriment finding here 

under the clear and convincing evidence standard. The court will 

have to make a detriment finding under that standard before it 

may terminate Jessica’s parental rights under section 366.26. 

(See In re Z.K. (2011) 201 Cal.App.4th 51, 65-66 [where the 

mother “‘was not the custodial parent, the child was not removed 

from her custody[,] and she was not denied placement [at the 

dispositional hearing],’” the juvenile court had to make “a specific 

finding of detriment, supported by clear and convincing 

evidence,” before terminating the mother’s “parental rights at the

section 366.26 hearing over her request for custody”].) 
9

DISPOSITION

The juvenile court’s jurisdiction findings and disposition 

order are affirmed. 

SEGAL, J. 

We concur: 

PERLUSS, P. J.

FEUER, J.