Filed 9/4/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re ABRAM L. et al., Persons Coming 

Under the Juvenile Court Law.

B245706

(Los Angeles County

Super. Ct. No. CK94529)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

ABEL L.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Robert 

Stevenson, Referee. Reversed and remanded.

Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and 

Appellant.

John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and 

Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.

_____________________
2

INTRODUCTION

Appellant Abel L. (father) appeals the juvenile court‟s dispositional order granting 

physical custody of his sons, Abram L. and Jacob L., to respondent Los Angeles County 

Department of Children and Family Services (the Department) for suitable placement.

The court removed the children from their biological mother, Juanita R. (mother), after 

she allegedly threatened them with physical harm. Because father was a noncustodial 

parent, the juvenile court was required to adjudicate his request for physical custody of 

the children pursuant to Welfare and Institutions Code section 361.2.1 Under the statute, 

father was entitled to physical custody of the children unless the juvenile court found that 

placement with father would be detrimental to the safety, protection, or physical or 

emotional well-being of the children. (§ 361.2, subd. (a).) The juvenile court, however, 

did not make an express finding of detriment as the statute requires (§ 361.2, subd. (c)), 

and it is unclear from the record whether the court considered the requirements of the 

statute before denying father‟s request for custody of his children. We thus reverse the 

order and remand the case for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Children’s Family

When this action commenced, Abram L. and Jacob L. were 15 and 13 years old, 

respectively. The two boys lived with mother, mother‟s husband Francisco R. 

(stepfather), and their adult sister Andrea L., who was 19 years old. Pursuant to a family 

court order, mother had physical and legal custody of Abram and Jacob for more than 

10 years.

Father lived with his girlfriend. Abram and Jacob visited father on Saturdays, 

approximately every two weeks.

2. History of Domestic Violence and Physical Abuse

Mother and stepfather had a history of domestic violence in the three years they 

had been together. The couple engaged in verbal confrontations about two times a day, 

 

1 All future statutory references are to the Welfare and Institutions Code.
3

which often involved name-calling. On about two occasions the arguments escalated to 

physical violence. In December 2011, mother pulled out a box cutter knife and 

threatened stepfather with it.

According to Abram, Jacob and Andrea, mother occasionally physically abused 

them by hitting them with objects, such as a broom or belt, and with her fists. Mother 

once beat Abram on his leg, chest and face with a belt because he refused to attend a 

youth church conference. When Abram was 13 years old, mother hit him with a broom, 

injuring his eye. According to Jacob, mother hit him with a belt more than five times. 

Jacob also claimed that mother hit him with a stick when he was seven or eight years old. 

Andrea claimed that mother hit her with a metal pipe on one occasion, and with a broom 

on another.

Underlying mother‟s abuse of her children was her struggle with mental health. 

Father believed that mother had a “problem in her brain.” He claimed that mother would 

say, “I want to kill you” if someone disagreed with her. Jacob described mother as 

“psychotic” and having a “loose screw in there.” Abram described her as a “psycho.” 

According to mother‟s adult daughter, Emily E., mother was “paranoid.” Mother‟s sister 

stated that mother would be happy one day, and “down and sleeping all day, another 

day.” The children‟s maternal grandmother stated that mother “has mood swings, and 

easily goes from being very lovable to being very angry, within a split second.”

Approximately four months before these proceedings began, after mother hit 

Abram with a belt and Andrea with a metal pipe, Abram and Andrea left mother‟s home 

and went to stay with father and his girlfriend. About three months later, however, 

Abram and Andrea returned to live with mother because of conflicts they had with 

father‟s girlfriend.

3. July 6, 2012, Incident

On July 6, 2012, mother and Andrea had a verbal altercation at home. Mother 

broke a mirror, grabbed a piece of broken glass, and threatened to stab Andrea and 

Abram with it. At one point, mother also threatened to stab Abram with a knife. Andrea 

and mother called the police, who arrived at the scene and arrested mother for child 
4

endangerment. The Department temporarily detained Abram and Jacob and placed them 

in foster care.

4. The Juvenile Dependency Petition and Initial Court Hearing and Order

On July 11, 2012, the Department filed a juvenile dependency petition requesting 

the juvenile court to take jurisdiction over Abram and Jacob pursuant to section 300, 

subdivisions (a), (b) and (j). All of the counts in the petition except one concerned 

mother‟s alleged acts or omissions. Count b-6 alleged that father had a history of using 

illicit drugs and was a current abuser of alcohol. This count, however, would later be 

dismissed by the juvenile court.

On the same day the petition was filed, the juvenile court held a hearing on the 

case. Father‟s counsel stated at the hearing that father could not take custody of Jacob 

and Abram because he did not yet have appropriate housing. The court entered an order 

stating that there was a prima facie case for detaining Abram and Jacob. The order also 

granted father unmonitored visits, required father to submit to random alcohol tests, and 

directed the Department to include in its jurisdictional report a discussion about placing 

the children with relatives.

5. The Department’s Investigation into Whether the Children Should Be 

Placed with Father

Between the time the Department became involved in this matter on July 6, 2012, 

and the jurisdictional and dispositional hearing on September 25, 2012, the Department 

considered placing Abram and Jacob with several different relatives, including father. 

At the time the children were initially detained, however, the Department could not locate 

father.

Later, on several occasions, the Department asked Abram and Jacob whether they 

wished to live with father. Both boys stated that they did not wish to live with father if 

father continued to live with his girlfriend.

The children‟s maternal aunt stated she had concerns about the children living 

with father‟s girlfriend because she had heard the girlfriend “talk down” to Abram, tell 

him to look into her eyes when he talked to her, and make inappropriate “innuendos” to 
5

the child. Abram stated that he and Andrea left father‟s home because father‟s girlfriend 

had taken Andrea‟s ring and argued with Andrea. Jacob stated that father‟s girlfriend did 

not “like” Abram and Jacob.

On August 6, 2012—a month after the children were detained—the Department 

interviewed father about being a potential caretaker for the children. Father stated he 

wanted his sons to live with him but he could not take care of them at the time because 

there was no space for the children where he was living. He also stated that he was 

saving money to rent a two-bedroom apartment for himself, Andrea and the two boys. 

At the time, father‟s girlfriend still lived with father, but father said he would be willing 

to live separately from her for the sake of his children.2

On September 5, 2012, father reported to the Department that he had found a 

bigger place to live for himself and the children. Father, however, declined to allow the 

Department to inspect his home because he was in the process of moving. He promised 

to contact the Department the next week to schedule an inspection. But father did not 

call the Department before the September 25, 2012, hearing.

After Abram and Jacob were detained and placed with a foster parent, father only 

visited them one time. Father advised the Department he had difficulty visiting the 

children because they lived in Palmdale and he lived in Los Angeles. In the meantime, 

Abram and Jacob were doing well in foster care.

The Department determined that it was in the best interest of the children to 

remain in foster care. In its report to the juvenile court dated September 25, 2012, the 

Department requested the court to enter an order removing the children from the 

“physical custody of the parents” pursuant to section 361, subdivision (c)(1). The 

Department did not request in this report that the juvenile court make a finding or order 

under section 361.2, subdivisions (a) or (c), which we shall discuss post. 

 

2

Father later told the Department that he was not willing to “avoid contact” 

between his children and girlfriend, and that the children could not “manipulate” his life. 

Nothing in the record indicates, however, that father revoked his offer to live separately 

from his girlfriend in order to obtain custody of his children.
6

6. The Department’s Assessment of Father’s Alleged Alcohol and Drug 

Problem

After the petition was filed, in mid and late July, 2012, the Department 

interviewed Abram, Jacob and mother regarding the allegations in the petition, including 

father‟s alleged drug and alcohol problem. Abram stated that father sometimes drinks 

alcohol and that father attends “AA meetings.” Jacob stated that he did not know 

whether father had a problem with alcohol, and that he had never seen father drink. 

Mother stated that father used to use alcohol and cocaine but does not know if he 

continued to do so.

During a telephone interview by a Department social worker, father denied having 

current alcohol dependence, and expressed a willingness to comply with on-demand 

testing. Father took a drug and alcohol test on August 6, 2012 that was negative. The 

record does not indicate why father did not take additional drug and alcohol tests before 

the jurisdictional and dispositional hearing. Within approximately a month after that 

hearing, father took three additional drug and alcohol tests, all of which were negative.

7. The September 25, 2012, Hearing and Order

On September 25, 2012, the juvenile court held a jurisdictional and dispositional 

hearing. At the hearing, the Department‟s attorney argued that placing the children with 

father was “premature” because father‟s home had not yet been assessed, father had only 

visited the children once since they were detained, the children did not want to live with 

father‟s girlfriend, and father had a history of alcohol abuse. Counsel for Abram and 

Jacob requested that the children not be placed with father because of the “friction” 

between the children and father‟s girlfriend and because the foster parent was “very, very 

good” to the children.

Father‟s counsel requested that the children be placed with father. As to the 

Department‟s concern that father‟s home had not been assessed, counsel stated that father 

did not call the social worker to arrange for an inspection because some required repairs 

were not completed. She further stated that those repairs “have been done.” Counsel 

also stated that father‟s girlfriend was not residing in father‟s new apartment and, in any 
7

case, the fact that the children did not like father‟s girlfriend was not a sufficient basis to 

deny father‟s request for custody. Counsel concluded by stating that “[t]he Department 

has not met its burden by clear and convincing evidence to prove that return [of the 

children] to the father at this time would create a substantial risk of detriment.”

The juvenile court stated it agreed with the Department‟s counsel that placing the 

children with father was “premature.” The court also expressed concerns about 

“inappropriate housing and drug testing.” The court further stated: “Since the children 

are now stable, I‟m disinclined to move them until I know that the placement with 

[father] is going to work out, even though he is non offending. I note . . . he‟s only 

visited once. So there‟s a relationship that needs to be resolved . . . . So, at this time, I‟m 

not going to send them [to father.]” The court did not, however, refer to section 361.2 or 

use the operative language of the statute.

At the end of the hearing, the juvenile court entered an order dated September 25, 

2012. The order sustained some counts in the dependency petition and dismissed other 

counts. The court dismissed the only count against father, count b-6. The order also 

declared the children dependents of the court, removed the children from mother‟s 

physical custody pursuant to section 361, subdivision (c),

3

gave the Department custody 

of the children for suitable placement, and provided father with family reunification 

services. The order further provided that father was to take five random drug and alcohol 

tests. The order did not make any reference to section 361.2.

Father filed a timely notice of appeal of the September 25, 2012, order.

 

3

The minute order erroneously refers to section 361, subdivision (b), but the court 

stated on the record that the children would not be returned to their “parents physical 

custody” under section 361, subdivision (c). We presume the reporter‟s transcript is the 

most accurate statement of the court‟s intent. (In re A.C. (2011) 197 Cal.App.4th 796, 

799-800.) We also note that we have observed this same erroneous reference to section 

361, subdivision (b) in minute orders in many other cases. We urge the juvenile court to 

correct this error.
8

CONTENTIONS

Father argues that the juvenile court failed to make a finding that placing Abram 

and Jacob in his custody would be detrimental to the safety, protection or physical or 

emotional well-being of the children, as required by section 361.2. He further contends 

that there was no substantial evidence to support such a finding.

DISCUSSION

1. The Juvenile Court Erroneously Failed to Apply Section 361.2

Section 361, subdivision (c) provides that a dependent child may not be taken 

from the physical custody of a parent with whom he resided at the time the petition was 

initiated, unless the juvenile court finds by clear and convincing evidence that at least one 

of certain enumerated circumstances exists. One such circumstance is when “[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.” (§ 361, subd. 

(c)(1).)

The juvenile court found that the requirements of section 361, subdivision (c)(1) 

were satisfied in light of mother’s conduct. Mother did not appeal the dispositional order 

and we assume the court‟s finding was supported by substantial evidence. Abram and 

Jacob, however, could not be removed from father’s physical custody under section 361, 

subdivision (c)(1) because they were not residing with him when the petition was 

initiated. (In re V.F. (2007) 157 Cal.App.4th 962, 969 (V.F.) [section 361, 

subdivision (c) “ „ “does not, by its terms, encompass the situation of the noncustodial 

parent” ‟ ”].)

The statute governing father‟s request that the children be placed in his custody 

was section 361.2. Subdivision (a) of the statute 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 
9

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.” (§ 361.2, 

subd. (a), italics added.)

“A parent‟s right to care, custody and management of a child is a fundamental 

liberty interest protected by the federal Constitution that will not be disturbed except in 

extreme cases where a parent acts in a manner incompatible with parenthood.” (In re 

Marquis D. (1995) 38 Cal.App.4th 1813, 1828 (Marquis).) “[T]o 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; accord 

In re Isayah C. (2004) 118 Cal.App.4th 684, 697 [“a nonoffending parent has a 

constitutionally protected interest in assuming physical custody, as well as a statutory 

right to do so, in the absence of clear and convincing evidence that the parent‟s choices 

will be „detrimental to the safety, protection, or physical or emotional well-being of the 

child‟ ”].)

Under the plain terms of the statute, if the juvenile court finds that placing a child 

in the physical custody of a noncustodial parent would not be detrimental to the child 

within the meaning of section 361.2, subdivision (a), it must place the child in the 

physical custody of the noncustodial parent. If the child is placed with the noncustodial 

parent, the juvenile court may (1) order that the parent become legal and physical 

custodian of the child; (2) order that the parent assume custody subject to the jurisdiction 

of the juvenile court and require that a home visit be conducted within three months; or 

(3) order that the parent assume custody subject to the supervision of the juvenile court. 

(§ 361.2, subd. (b).) Section 361.2, subdivision (c) provides that “[t]he court shall make 

a finding either in writing or on the record of the basis for its determination under 

subdivisions (a) and (b).”

Nothing in the record indicates that the juvenile court considered the requirements 

of section 361.2 in determining whether to deny father‟s request for physical custody of 

Abram and Jacob. The order dated September 25, 2012, does not refer to section 361.2 
10

or the standard set forth in subdivision (a) of the statute to deny a noncustodial parent 

physical custody of his or her children. Likewise, in its oral remarks regarding the 

possible placement of the children with father, the juvenile court did not refer to section 

361.2, or use the operative language of the statute. It is also worth noting that the 

Department did not request the court to consider section 361.2 in its September 25, 2012, 

report to the court. Therefore, we find the juvenile court did not apply the applicable law 

to father‟s request for physical custody of the children.

2. Father Did Not Forfeit His Arguments

The Department argues that father forfeited any argument that the juvenile court 

failed to apply or comply with section 361.2 because he did not raise the issue below. As 

a general rule, a party who does not raise an argument below, forfeits the argument on 

appeal. (In re T.G. (2013) 215 Cal.App.4th 1, 14.) Application of the forfeiture rule, 

however, is not automatic. (Ibid.) When an appellant raises a question of law, for 

example, the appellate court can exercise its discretion to address the issue. (V.F., supra, 

157 Cal.App.4th at pp. 967-968 [father did not forfeit his arguments that he was entitled 

to retain custody of his children under section 361, subdivision (c) and that the court was 

required to make findings under section 361.2].)

We conclude that father did not forfeit appellate review of whether the juvenile 

court failed to apply or comply with section 361.2. The arguments raised by father are 

primarily issues of law. Further, at the dispositional hearing, father‟s counsel argued that 

the Department did not meet its showing that placing the children in father‟s custody 

“would create a substantial risk of detriment.” This argument appears to be based on 

section 361.2, subdivision (a). Under these circumstances, we decline to hold that father, 

a nonoffending and noncustodial parent, forfeited his arguments regarding his 

constitutionally protected interest in assuming physical custody over his children.

3. We Decline to Make Implied Findings

The Department argues that although the juvenile court did not make any express 

findings regarding alleged detriment to the safety, protection or physical or emotional 

well-being of the children, we can imply such findings. We reject this argument.
11

The court in Marquis rejected a similar argument. There, the juvenile court denied 

a noncustodial father‟s request for physical custody of his children under former section 

361, subdivision (b), a statute that did not apply to the father because the children did not 

reside with him at the time the petition was initiated.4 (Marquis, supra, 38 Cal.App.4th at 

pp. 1824-1825.) Because it was not clear from the record that the trial court even 

considered the correct statute—section 361.2—the Court of Appeal held that implied 

findings were not “warranted.” (Id. at p. 1825.)

Likewise, in V.F., the father‟s children were not residing with him when the 

petition was initiated because the father was incarcerated. The juvenile court removed 

the children from father‟s custody under section 361, subdivision (c), and did not 

consider section 361.2. The Court of Appeal held that the juvenile court applied the 

wrong statute. (V.F., supra, 157 Cal.App.4th at p. 973.) The court further held: 

“Although this record arguably would support a finding that placement with [father] 

would be detrimental to the children, we believe the better practice is to remand the 

matter to the trial court where that court has not considered the facts within the 

appropriate statutory provision.” (Ibid.; accord In re J.S. (2011) 196 Cal.App.4th 1069, 

1078 [“the doctrine of implied findings may be given limited scope where an express 

finding is required”].)

 

4

In 1995, when the Marquis opinion was issued, former section 361, subdivision 

(b)(1) contained the same key provisions as the current version of section 361, 

subdivision (c)(1). (See Marquis, supra, 38 Cal.App.4th at pp. 1820-1821, fn. 6.)
12

Under Marquis and V.F., it is inappropriate to make implied findings when the 

juvenile court fails to make express findings as required by section 361.2, subdivision (c). 

We thus decline to make implied findings in this case.5

4. There Was a Miscarriage of Justice

The final issue is whether the juvenile court‟s failure to consider or apply section 

361.2 resulted in a miscarriage of justice. We cannot reverse the court‟s judgment unless 

its error was prejudicial, i.e., “it is reasonably probable that a result more favorable to the 

appealing party would have been reached in the absence of the error.” (In re J.S., supra, 

196 Cal.App.4th at p.1078.) We conclude that if the juvenile court applied section 361.2, 

it was reasonably probable that it would have found that placement of the children with 

father would not be detrimental to the safety, protection or physical or emotional wellbeing of the children.

The Department argues there were four factors that supported a finding of 

detriment. The first is that father “appeared to have an unresolved problem with alcohol 

and a history of substance abuse.” The juvenile court, however, dismissed the allegations 

in the petition relating to father‟s alleged drug and alcohol problems. Further, father 

passed the only drug and alcohol test he was given before the dispositional hearing. 

Although mother claimed that father had substance abuse problems, she had not lived 

with father for many years, and there is no evidence in the record that father used illicit 

drugs or drank an inappropriate amount of alcohol at any time after these proceedings 

began.

 

5

The Department argues that there was substantial evidence to support an implied 

finding that placement of the children with father would be detrimental to the safety, 

protection, or physical or emotional well-being of the children. We normally review the 

sufficiency of the evidence to support a finding under the substantial evidence test, which 

requires us to review the entire record in a light most favorable to the order. (Marquis, 

supra, 38 Cal.App.4th at p. 1825.) Where the juvenile court fails to make express 

findings required by statute, however, we imply such findings, if at all, “only where the 

evidence is clear.” (Ibid.) As we explain in Section 4 post, the evidence was far from 

clear in this case.
13

The Department also argues that placement with father was detrimental to the 

children because it had not yet inspected his residence. At the dispositional hearing, 

however, father‟s counsel stated that the repairs to father‟s residence were complete, and 

that the Department could conduct an inspection. Moreover, section 361.2 contemplates 

the Department inspecting a noncustodial parent‟s home after the parent is given physical 

custody of the child. Section 361.2, subdivision (b) states: “If the court places the child 

with that parent it may . . . [¶] . . . [¶] [o]rder that the parent assume custody subject to the 

jurisdiction of the juvenile court and require that a home visit be conducted within three 

months.” (§ 361.2, subd. (b)(2), italics added)

The Department argues that father‟s girlfriend‟s relationship with the children 

“was also cause for concern.” Father and his counsel, however, stated father‟s girlfriend 

was not living with father at the time of the dispositional hearing. In any case, merely 

because Abram and Jacob did not have a good relationship with father‟s girlfriend does 

not necessarily mean placing the children with father would be detrimental to the safety, 

protection, or physical or emotional well-being of the children. At the time of the 

dispositional hearing, Abram and Jacob were 15 and 14 years old, respectively. Although 

they were entitled to have their wishes considered, the boys were not entitled to decide 

where they would be placed. (In re John M. (2006) 141 Cal.App.4th 1564, 1570.)

Finally, the Department argues that placing the children with father would have 

been detrimental to them because “father was totally uninvolved in the children‟s lives.” 

Father, however, was not a stranger to the children. Abram and Jacob had visited father 

every other Saturday for many years. Moreover, an alleged lack of a relationship 

between father and the children is not, by itself, sufficient to support a finding of 

detriment for purposes of section 361.2, subdivision (a). (In re John M., supra, 

141 Cal.App.4th at p. 1570 [child‟s wishes, need for services, lack of a relationship with 

father and other factors were not sufficient to support a finding of detriment].)
14

In light of the evidence in this case, or lack thereof, there is a reasonable 

probability that the juvenile court would have rejected the Department‟s detriment 

argument had it properly considered the standard set forth in section 361.2.6 

Accordingly, the juvenile court‟s failure to consider the applicable statute resulted in a 

miscarriage of justice requiring reversal of the court‟s dispositional order.

DISPOSITION

The juvenile court‟s order dated September 25, 2012, is reversed, and the case is 

remanded for further proceedings consistent with this opinion.

CERTIFIED FOR PUBLICATION

KITCHING, J.

We concur: 

CROSKEY, Acting P. J.

ALDRICH, J.

 

6 We reach this conclusion based on the existing facts at the time of September 25, 

2012 hearing, which we determined from the record on appeal. On remand the juvenile 

court must make a decision based on the facts existing at that time.