Filed 6/10/14
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN In re JONATHAN P., a Person Coming Under the Juvenile Court Law. B249605 (Los Angeles County Super. Ct. No. CK70262)

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,

v. JUAN P., Defendant and Appellant.

APPEAL from orders of the Superior Court of Lo s Angeles County, Philip L. Soto, Judge. Reversed and remanded. Lori Fields, under appointment by th e Court of Appeal, for Defendant and Appellant. John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Principal De puty County Counsel, for Plaintiff and Respondent.

________________ _____________2 Appellant Juan P., (“Father ”) the father of minor Jo nathan P., appeals from an order of the juvenile depend ency court denying Father’s Welfare and Institutions Code section 388, 1 petition seeking custody of Jonathan P., or in the alternative, family
reunification services. Before this court, Father argues that the court erred in failing to assess his request for custody pursuant to secti on 361.2. Father claims that although he was not present at the dispositi on hearing, he is a non-offendi ng, noncustodial parent and thus he was entitled to have the minor placed with him unless the De partment of Children and Family Services (the “D epartment”) proved that pla cement with Father would be detrimental to Jonathan P. Father complain s that rather than a pplying the detriment standard under section 361.2, the court erroneously applied th e section 388 best interest standard to his request. In any event, Father asserts that he was entitled to reunification services. As we shall explai n, any harm resulting from the failure to apply section 361.2 to Father’s request for custody did not re sult in prejudice. At the time the court considered Father’s custody request, Jona than P. had left his placement and his whereabouts was unknown. As a result, the court could not make any accurate
determination of detriment because Jonath an P.’s condition was not known. This notwithstanding, we conclude that the c ourt erred in denying Father reunification
services. The whereabouts of the Jonathan P. did not determine Father’s legal
entitlement to reunification services. The cour t should have required to Department to evaluate whether there were any available se rvices that could be provided to Father notwithstanding Jonathan P.’s absence from the proceedings. The court’s failure to require that assessment requires reversal of the court’s order denying the section 388 petition. Accordingly, this matter is remanded for further proceedings.

1 All further code references, unless indi cated otherwise, are to the Welfare and Institutions Code.3 FACTUAL AND PROCEDURAL BACKGROUND Jonathan P. became the subject of depe ndency proceedings in mid-August 2012, when it was reported that Jonathan P.’s moth er, Maria P. (“Mother”) and her companion, Victor C. had engaged in acts of domestic viol ence in front of Jonathan P. and his toddler half-sister Destiny C. 2 The Department filed a petiti on pursuant to section 300, subdivisions (a) and (b) with respect to Jonathan, then 15 years old, and Destiny C. 3 The petition alleged that Victor C. “repeatedly st ruck the mother’s fa ce” with his fists on February 11, 2012, causing her to be injured, and resulting in his arrest. It was further alleged that Mother had enga ged in a violent altercati on and slapped another male companion, and the children were at risk of physical harm and danger as a result of the
domestic violence between Mother and her male companions. 4

2 Mother and Victor C. are Destiny C.’s pa rents. Destiny C., Mother, and Victor C. are not parties to this appeal. The Departme nt had been involved with Mother on prior occasions; Mother and four of her other child ren were the subjects of another dependency proceeding. Mother failed to reunify with her four other children and they are in permanent placements.

3 The second to the last lines of counts a-1 and b-1 contains a typographical error in that they state Father, not Victor, was arrested on February 11, 2012 for spousal abuse. The record reflects, however, that it was Vict or who was arrested on February 11, 2012 for spousal abuse. It is undisputed that Father is a non-offending parent and is not the subject of the allegations in the dependency petition.

4 In June 2011 after Destiny C.’s birth, Mother agreed with the Department to engage in voluntary family maintenance serv ices based on her histor y of substance abuse and domestic violence, as well as her inability to reunify with her other children. Thereafter, Victor C. battered Mother. Ho wever, Mother failed to obtain a permanent restraining order against Victor C. and in stead permitted Victor to have unmonitored contact with Destiny C. In June 2012, the Department investigated additional referrals concerning Mother’s drinking, suspected drug use and her continued contact with Victor C. In August 2012, Mother had been invo lved in a number of additional domestic violence incidents with Victor C., another ma le companion and as well as her roommate. It was also reported Mother used drugs, and failed to properly care for Destiny C. After investigating Mother’s circumstances, the Department concluded Mother was no longer in compliance with the volunta ry services contract, and c ourt intervention was necessary to protect both Jonathan P. and Destiny C.4 None of the children’s parents were presen t at the detention hearing on August 15,
2012. The whereabouts of th e children and Mother were u nknown at that time. The detention report indicated that Father had been deported to Mexico in 2011 and that his
whereabouts was unknown. The court issu ed protective custody warrants for the children, along with an arrest warrant for Mo ther. The court entered detention orders for Jonathan P. with respect to both Mother and Father. On September 12, 2012, a pre-trial reso lution conference was conducted. By September, Mother and the children had been lo cated, and Jonathan P. was present during the proceedings. 5 Jonathan P.’s counsel requested a continuance to investigate the case, and he reported a maternal grandmother might be available to care for the children. The
court continued the matter for a contested ad judication, recalled the outstanding warrants for Mother and the children, and ordered a supplemental report from the Department about potential relative placemen t. Father’s whereabouts re mained unknown; the court found notice to Father was proper based on a due diligence search. Mother informed the Depart ment that from the mid-2000 s until 2011, Jonathan P. had been residing with Father under the terms of a family law custody order. The order provided joint legal custody to Mother and Father parents, with primary physical custody
to Father. Under the terms of the custod y agreement, Mother was entitled to have custody of Jonathan P. from Monday through Friday during Jonathan’s summer vacation. In 2011, Father sent Jonath an P. to visit Mother during his summer break. During Jonathan P.’s visit with Mother, Father was deported and that as a result Jonathan P. had
remained in Mother’s care. According to the jurisdiction/disposition report, the Department had been unable to locate Father. The Department’s due dilig ence report reflected the social worker had discovered approximately 22 possible addresses for Father, and letters had been sent to all of them on September 4, 201 2, the same day the due dilig ence report was signed. The

5 At the time of the hearing Jonathan P. wa s residing with one of Mother’s friends.5 Department recommended family reunification services for Mother and Victor, but none
for Father. Jurisdiction/Disposition The court conducted the adjudication and disposition hearing on October 9, 2012. None of the parents appeared at the hear ing, and Father’s wh ereabouts remained
unknown. The court found the children to be described by section 300, subdivisions (a) and (b). The court declared the children depe ndents of the juvenile court and removed them from the custody of Mo ther and Victor C. for suitable placement. Family
reunification services and vis itation were ordered only for Mother and Victor C. No
reunification services were ordered for Fath er because his whereabouts was unknown at
the time. Jonathan P. could not be placed with maternal grandmother because her home had not been approved for his placement. Therefore, the cour t ordered the Department to continue to use its best efforts to place th e children with any appropriate relative. The
court scheduled a six-month revi ew hearing for April 2013. The Department’s six-month status review report revealed that Jonathan P. had been in several placements since the inception of the dependency case, and had experienced problems following rules in his foster homes. In early February 2013, Jonathan P.’s foster parents gave the Depart ment a seven-day notice to have him moved. In response, on February 11 , 2013, the social worker conducted a Team Decision Meeting (TDM). During the meeting, the soci al worker asked Jona than P. to provide relative information for his paternal relative s, including Father’s contact information. Jonathan P. reported Father was then livi ng in Chicago, and ha d previously been deported, but had returned illega lly to the United States. Jona than P. provided Father’s telephone number. A safety plan was deve loped for Jonathan P.; the social worker agreed to contact Father, but did not immediately do so. The six-month review report also indicated that Jonathan P. had left school and
had been absent from his foster home for 24 ho urs without permission. Jonathan P. was removed from his foster care placement and J onathan P. was placed into a group home on
March 6.6 Thereafter, on March 12, 2013, Jonathan’s group home case manager notified the
social worker that Jonathan P. had taken all of his belong ings and left the group home with two male companions. J onathan P. was subsequently in volved in a car accident with
five other minors. He was admitted to the hospital for treatment. His injuries required surgery on his pelvis. On Marc h 16, 2013, Jonathan left the hospital on crutches while he was waiting to be discharged. 6 On March 18, 2013, the social worker contacted Father fo r the first time. Father reported that on March 16, Jonathan P. ha d called Father from the hospital using a friend’s cell phone. Jonathan P. told Father that he was doing well and his friends were visiting him at the hospital. Jonathan P. appa rently told Father he was planning to leave the hospital because he did not wa nt to return to the group ho me. Father told the social
worker that he tried to dissuad e Jonathan P. from leaving the hos pital. Father said that he
had not heard from Jonathan P. since then and told the social worker he would try to call the cell phone number of Jonathan’s friend. Father also provided the social worker with his b ackground and history. He reported that he had been deported to Mexico over a year earlier, but returned to the U.S. illegally about three months late r, and was residing in Chica go with his partner and their two young children. Father had kept in contact with Mother by telephone after his deportation. Mother told Fath er Jonathan P. was well. Duri ng this time, Jonathan also reported to Father he was doing well, and Fa ther had no idea about what was transpiring
in Mother’s home or that Mo ther was involved in depend ency proceedings with the
children. Father told the soci al worker he was willing to re turn to California to care for
Jonathan P. and he was con cerned about his well-being. Although Father was concerned about traveling to California in light of his immigration status and work obligations, he
told the social worker he would attend th e hearing scheduled for a six-month review hearing on April 9.

6 It is unclear whether the Department le arned that Jonathan had left the hospital on March 16 and 18, 2013.7 In the report, the Department recomme nded that the court terminate family
reunification services for Mother. No recomm endation was made with respect to Father and Jonathan P., and no propos ed case plan was provided. On March 27, 2013, the Department notifie d the dependency court that Jonathan
P.’s whereabouts was unknown and he had le ft his placement. The court issued a protective custody warrant, a nd ordered the Department to provide a full report about Jonathan’s whereabouts during his “awol” period, once he was located. Six-Month Review Proceedings On April 9, 2013, the cour t conducted the six-month review hearing. Father appeared at the hearing. The court appointed Father le gal counsel. Father filed a “Statement Regarding Parentag e,” reflecting he was married to Mother in 1995; he signed a voluntary declarati on of paternity when Jonathan was born; and a court judgment of parentage had been entered in Orange County Supe rior Court (case No. 02FL001735). The dependen cy court declared Father the pr esumed father of Jonathan. Father orally requested that Jonathan P. be placed with him based on the prior custody arrangement. The court initially indicated its intent to order reunification services for Father “since it was previously no services because of whereabouts unknown, and we know where he is now, I don’t see grounds for no t giving him services for reunification with Jonathan.” The Department’s lawyer respon ded that providing services to Father was only required “if he, basically , shows up or is found with in those six months." In Department’s counsel’s opinion, the six-mo nth time period had pa ssed and therefore, Father would be required to file a secti on 388 petition to obtain services. The court instructed Father’s attorney to file a section 388 petition. Th e court also told Father, “I can’t give Jonathan back to you. He is not in our care anymore. He was in the hospital for an operation, and he left without anybod y’s permission. So if you don’t know where he is, we don’t know where he is . We are trying to find him. ” Mother requested that the proceedings be set for a contes ted hearing; the court scheduled a hearing on the matter for May 7, 2013.8 Section 388 Proceedings. On April 19, 2013, Fa ther filed a section 388 petition, requesting a change in the court’s prior order of October 9, 2012 that he receive no reunification services. The petition further stated the Father “only re cently received notice of the juvenile dependency case concerning his child” and he had previously been given primary physical custody of Jonathan by the Orange County Superior Cour t. Father’s petition requested “care and custody of his child (upon the child being located as he is currently awol from placement) with fam ily maintenance services and other appropriate services. Alternatively, family reunification services .” Father alleged he and Jonathan had maintained telephone contact and had a strong parent-child bond; therefore, granting the request would be in Jonathan’s best interests and ensure he was placed with a “stable parent” in a safe and nurturing home. The Department prepared a report on Fath er’s section 388 petition. The report
indicated that Jonathan P.’s whereabouts rema ined unknown. Father met with the social worker after the hearing on April 9 and repo rted he did not know where Jonathan was located, but Jonathan called him periodically from private numbers. Father requested custody of Jonathan when he was located. Fath er stated he could care for Jonathan since he had never had a problem in the past with Jonathan listening to him. The report stated
that Mother had informed the social worker she had no obje ction to Jonathan residing
with Father. On May 2, 2013, Father spoke again to the social worker. He again requested custody. Father reported he had sent Jonathan to visit Mother in the summer of 2011, and was deported shortly thereafter. Father denied being deported as a result of any criminal activity and reported he had neve r done anything bad in his life. His only failure was that he was undocumented, but he had a home in Ch icago and wanted to ca re for Jonathan. The report included further information about Father’s c ontact with Jonathan P. on March 14, 2013 when Jonathan was in the hospital. Jona than was upset and told the
social worker that he did not want to return to foster care. The soci al worker told him she would “look into the possibility” of returning him to Father. Jonathan reported he would9 like to return to Father’s care, but he did not want to move to Chicago, and would rather stay in California. The social worker allo wed Jonathan P. to use her cell phone to call Father. Father was “appropriate” during the ca ll. The report also clarified that Father requested custody of Jonathan P. when the soci al worker called him again on March 18,
2013. 7 The social worker confirmed Jonathan had provided Father’s phone number in mid-February, but no contact with Father occurred before mid-March, at which time Father express his desire to have J onathan P. placed in his care.
The social worker noted: “It is unclear why neither mother nor child informed the
father of child’s detention from mother in August 2012 or why mo ther and child kept
father’s information from DCFS until mid February. It is clea r, however, that upon father learning of his son’s situation father immediately requested the child be released to his
care. Father has demonstrated his commitmen t and desire to provide Jonathan with a stable home environment by maintaining contac t with DCFS and attending the last court hearing on 4/09/13 even though it was a hard ship for him to trav el from Chicago to
California.” The Department indicated that it had been “unable to live scan” Father in order to verify he had no criminal r ecord, and the Department was una ble to verify he had a safe and stable home. Attachments to the report, however, reflect the social worker performed
a criminal records sear ch on Father (based on his name) through the Division of Criminal
Justice Information Service in Sacramento, and the results reflected Father had “no criminal record.” The Depart ment recommended that the cour t deny Father’s section 388 petition but order an evaluatio n under the Interstate Compact on the Placement of

7 The Department’s records indicate that the March 18, 2013 phone call to Father by the social worker was the first official cont act the Department made to Father about the proceedings. The March 14, 2013 phone call between Jona than and Father was not logged into the Depa rtment service logs.10 Children (ICPC) to assess his home so when Jonathan P. was found, a recommendation
could be made to release him to Father. On May 7, 2013, the court conducted the hearing on Father's section 388 petition, along with Mother’s contested six-m onth review hearing, were conducted. 8 Father remained in Chicago; he was represented by his appointed counsel. The court advised Father’s counsel it was inclined to “go al ong with the recommendation to deny the 388” and do the requested evaluation under the ICPC on Father’s home in Chicago. The court stated, “I don’t have Jonathan. I’m not in a position to hand Jonathan P. over to a nonoffending father. And I can’t make a best in terest finding if I don’ t have him in custody
so I can find best interest.” Father’s counsel argued the court could make an order that as
soon as Jonathan P. was locat ed he could be placed with Father because Father was nonoffending, presumed, father and previously ha d custody of Jonathan under the terms of a family law order. The court stated it could either deny the 388 pe tition without prejudice
and let Father refile it when Jonathan P. was located, or “just trail it until we find Jonathan.” Father’s counsel resp onded, “We could do that.” The Department’s counsel argued that neith er prong of the se ction 388 test had been met because in his view, Father was a “federal fugitive” who had entered the country illegally, and that was the “only chang e” in his circumstances. The Department’s counsel further argued that no ICPC could be conducted, since that would “basically, be having the court perpetuate Father’s violati on of federal law being in this country by helping somebody who is currently in this count ry illegally with this I.C.P.C.” He urged the court to “flat out deny this 388 as neither prong is met.” Jonathan P.’s attorney reque sted that the court “at leas t grant this father [family [reunification [services],” stating, “I don’t th ink the court has power not to offer father

8 The Department presented a “last minute information” report to the court in which the Department changed its recommendation, and now urged the court to continue Mother’s family reunification services.11 FR at this point. He’s a presumed father. He’s non-offending. And he showed up within the initial six-month period. The reason . . . he was denied family reunification services to begin with was because he was whereabouts unknown. So I think the court must offer
him FR. I think he is entitled under the law to FR, because he did sh ow up during the six months, first initial six-month review period between the di sposition and the .21(e).” Department’s counsel again objected on th e basis that Father was in the country illegally and also claimed that Father did not show up within six months from the date of detention, which would have been February 15, 2013. Jonathan P.’s lawyer responded that Father’s immigration status was irreleva nt to the question of Father’s entitlement to
reunification services. He further argued that he was legally entitled to services irrespective of whether it is in the best interest of Jonathan P. The court concluded, “I don’t see that th ere’s grounds for offering FR to a father who is non-offending. I don’t see that th ere’s grounds for trying to reunify somebody with a child that I have no custody over. [ ¶ ] The April 19th 388 of [Father] is denied without prejudice. When we fi nd Jonathan, we’ll talk about reunifying with [Father] if that's appropriate. [ ¶ ] I’m not going to order an I.C.P.C. on [Father] at this time.”
The court then addressed the six-month review hearing unde r section 366.21, subdivision (e) for Jonathan and Destiny with respect to Mother, and continued family reunification services for her, based on th e Department’s revi sed recommendation. Father filed a timely notice of appeal. 9

9 This court has taken judicial notice of the orders of the dependency court from hearings that have occurred in the dependency court during the pendency of this appeal. (See In re Josiah Z. (2005) 36 Cal.4th 664, 676 [concluding that post-judgment evidence in dependency proceedings may be consid ered by the appellate courts reviewing dependency court orders].) From these orders it appears that, at some point after the court denied Father’s request for custody and/or reunification services in May 2013, Jonathan P. was located and placed with rela tives. In late April 2014, the dependency court ordered the Department to initiate an e xpedited Interstate Compact of the Placement of Children (“ICPC”) evaluation of Father’s home in Illinois, which is currently in progress.12 DISCUSSION Before this court Father argues that the dependency court committed a number of errors in denying his request fo r custody of Jonathan P. a nd his alternative request for
reunification services. We a ddress these matters in turn.
A. Father’s Custody Request
Father asserts that the court erred in fa iling to review his custody request under section 361.2, rather than section 388. Fa ther complains th at when he appeared for the
first time at the six-month re view hearing and requested cust ody of Jonathan P., the court should have considered that request under se ction 361.2 [custody request by noncustodial parent], and immediately placed Jonathan P. in his custody unless the Department proved by clear and convincing evidence that placement with Father would be detrimental to the safety, protection or physical or em otional well-being of Jonathan P. Father claims that rather than apply sec tion 361.2, the court erroneously required Father to file his request for custody pursua nt to section 388. In addition, Father complains that in considering his subseque ntly filed 388 petition, the court erred in focusing solely on the “best in terest” standard under section 388. Father contends that his use of a section 388 petition did not excu se the court from evaluating Father’s custody request under the section 361.2. legal standard. He points out that no “detriment finding” has ever been made against him in this cas e to justify depriving him – a non-offending, presumed father – of custody of his child. Preliminarily, the Department argues that Father forfeited his complaint that the court erred in failing to appl y section 361.2 to his custod y request. The Department highlights the fact that at th e section 388 hearing, when th e court suggested that it could deny the section 388 petition without prejudice (a nd Father could re-file it when Jonathan P. was located) or it could “trail” the matter until Jonathan was found, Father’s counsel responded “We could do that.” Thus, the De partment argues that Father’s counsel’s response to the court warrants the app lication of the forfeiture rule. We do not agree. Father’s argument on appe al is that section 361.2 applied to his request for custody as a matter of law. Th us, the issue of whether section 361.2 applies13 when a non-custodial, non-offending parent reque sts custody of a minor is, on this record, a legal question, which we exercise our discretion to address. (See In re Abram M. (2013) 219 Cal.App.4th 452, 4 62 [finding father did not fo rfeit appellate review of whether the juvenile court failed to apply or comply with section 361.2 because the arguments raised by father were primarily issues of law].) In addition, it appears that Father filed the section 388 petition because, following the Department counsel’s suggestion, that was the only means through which the court indicated that it would consider the request for custody; Father did not file the petition based on any acknowledgement that secti on 388 actually governed the request for custody. Finally, the comments of Father’s co unsel reflect that he was acquiescing to the court’s suggestion as two different ways th e court could resolve the section 388 petition in light of Jonathan’s abse nce from the proceedings. Hi s comments do not reflect an agreement that section 361.2 wa s inapplicable to his request. In fact, no one – not the parties nor the court – addressed the possible application of section 361.2 at any of the hearings. In our view, Father’s vague respon se cannot be fairly interpreted as forfeiting any error with respect to the court’s failure to apply section 361.2. We, thus, turn our attention to the applica tion of section 361.2.
Section 361.2 establishes the procedures a court must follow for placing a dependent child following removal from the cust odial parent pursuant to section 361. ( In re Z.K (2011) 201 Cal.App.4th 51, 70; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1820.) When a juvenile dependency court or ders removal of a minor under section 361,
the court first must determine whether there is a parent who wants to assume custody who was not residing with the minor at the tim e the events that brou ght the minor within the provisions of section 300 occurred. (§ 361.2, subd. (a ).) “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 safe ty, protection, or physical or emotional wellbeing of the child.” (§ 361.2, subd. (a).) The juvenile court must make the detriment finding by clear and co nvincing evidence. ( In re Isayah C. (2004) 118 Cal.App.4th 684, 700.) Subdivision (c) of section 361.2 requ ires the juvenile court to “make a finding14 either in writing or on the record of the basis for its determination. . . .” (§ 361.2, subd. (c).) This appeal presents the question of whet her section 361.2 applies to a request for custody by a non-offending, non-custodial parent made after the dispositional phase of the dependency proceedings. More specifi cally we are asked to decide whether the Department has the burden unde r section 361.2 to prove that it would be detrimental to place the child with the non-custodial parent who appears for the first time within six months after the disposition hearing and requests custody of the minor. On its face, the language of section 361.2 , subdivision (a) implies that the “finding of detriment” standard (and the Department ’s attendant burden to prove detriment) only apply when the court initially orders removal from the custodial parent at the disposition hearing: “ 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 conditio ns arose that brought the child within the provisions of Section 300, who desires to as sume custody of the child . . . .” (§ 361.2, subd. (a).) In In re Zacharia D. (1993) 6 Cal.4th 435, the Su preme Court examined the language of section 361.2, s ubdivision (a), and concluded: “Nothing in this statute suggests that custody must be immediately awar ded to a noncustodial parent regardless of when in the dependency process the parent co mes forward. Rather, its language suggests that the statute is applicable only at the tim e the child is first re moved from the custodial parent or guardian's home. Our interpretati on is reinforced by th e absence of a similar provision requiring return of the child to a noncust odial parent in the statutes governing the 6-, 12-, and 18-month review hearings.” ( Id. at p. 453; 10 see also In re. Z.K. (2011)

10 In Zacharia D. the biological father, JavanW., l earned of the minor’s existence (and the pending dependency proceedings) af ter the disposition hearing but well prior to the 12-month review hearing. Nonetheless, Javan W. waited until the 18-month status review hearing to come forward to establish paternity and request cu stody of the minor. When questioned about why he had suddenly appeared in the proceedings, Javan W., who had reunited with the moth er shortly before the 18-mont h status review hearing, stated he was afraid that the mother wa s going to lose custody of the minor. ( In re15 201 Cal.App.4th 51, 70 [“Section 361.2 is de signed to apply at th e disposition phase of the dependency proceeding, when the court fi rst elects to remove the child from the custody of the custodial parent.”].) This notwithstanding, a few courts have applied the “detriment” standard in section 361.2 to requests for cust ody made by a non-custodial parent after the disposition phase of the dependency proceedings. For ex ample, Division Three of this court, in In re Suhey (2013) 221 Cal.App. 4th 732, acknowledged In re Zacharia D. as articulating the general rule, but nonetheless concluded that at the six-month review hearing when the father first appeared in the proceedings the DCFS had the burden under sec tion 361.2 to prove that placing the child in the custody of her non- custodial father would be detrimental. The appellate court grounded its decision on the DCFS’s admission that it had failed to give adequate notice of th e proceedings to the child’s father. ( Id. at p. 743.)
Likewise in In re Janee W . (2006) 140 Cal.App.4th 1444, 1450, our colleagues in Division Eight of this district concluded that “[e]ven though section 361.2, by its terms, applies when the court first takes jurisdiction of a child, its procedures can be invoked at
the six-month and 12-month review hearings as occurred here. (Cal. Rules of Court, rule 1460(c)(2)(h).” 11 Finally, in In re Z.K., the court also recognized that section 361.2

Zacharia D., supra, 6 Cal.4th 435 439-442.) The Suprem e Court reversed the judgment of the appellate court, concluding that the C ourt of Appeal had erred in holding that the minor should have immediately been placed with Javan W. under section 361.2. The Court determined that section 3 61.2 did not apply at that late stage in the proceedings. The Zacharia D. Court observed Javan W.’s paternity was not judicially determined until 20 months after the minor had been removed from the custody of his mother and another man, Lee D., who was named on the birth ce rtificate as the father, had welcomed the minor into his home and had acknowledged the minor as his son, and thus was the minor’s presumed father. ( Id. at pp. 453-454.) In addition, the Zacharia D. Court noted that Javan W. did not contend that the Depa rtment had failed to ascertain his existence and give him notice of the de pendency proceedings prior to the 18-month hearing. ( Ibid. )

11 California Rules of Court, rule 1460 (c)(2)(h), was subseque ntly renumbered as rule 5.710(b)(2). The California Rules of C ourt, rules 5.708(k) and 5.710(b)(2), which govern dependency review hear ings, provide that if the c ourt places the child with a noncustodial parent at the re view hearing then the court mu st apply the “procedures” in16 would not in the course of an ordinary dependency proceeding apply at a section 366.26 hearing, but concluded that the dependency court could not terminate the rights of a noncustodial parent without making a finding of detriment—that plac ing the child in the mother’s custody would be de trimental to the child. ( In re Z.K., supra, 201 Cal.App.4th at pp. 70-71.)
Father’s case is distinct from the decisions in Suhey
, Janee W. and Z.K. Unlike in Suhey, the Department did not concede that it fa iled to provide notice to Father of the dependency proceedings. Also, unlike the Z.K. decision, the dependency court here did not terminate his parental rights to Jonathan P. Finally, we note that in Janee W. , the legal issue was distinct from the matter before this court. In Janee W. the court was asked to decide the application of the procedures in section 361.2, subdivision (b) to a review hearing, not, as here, whether the detr iment standard in sect ion 361.2, subdivision (a) applied at a review heari ng. Thus, Father’s case is not factually similar to those published cases that represent exceptions to the general rule articulated in Zacharia D.
, that section 361.2, subdivision (a) applies only when the child is first removed from the custodial parent’s home. This notwithstanding, this matter is also distinguishable from Zacharia D. Unlike
the father in Zacharia D. , here, Father established his parentage during the family law

section 361.2. (See California Rules of Co urt, rule 5.710(b)(2) [“If the court has previously placed or at this hearing places th e child with a noncustodial parent, the court must follow the procedures in rule 5.708(k) and section 361.2.”]; California Rules of Court, rule 5.708(k) [“If at any review hearing the court places the child with a noncustodial parent, or if the court has previo usly made such a placement, the court may, after stating on the record or in writing the factual basis fo r the order: [¶] (1) Continue supervision and reunification services; [¶] (2 ) Order custody to the noncustodial parent, continue supervision, and order family maintenance servic es; or [¶] (3) Order custody to the noncustodial parent, terminate jurisdic tion and direct that [custody order final judgment] be prepared and filed . . . .”].) Thus, although section 3 61.2 “procedures” may apply at a dependency review hearing subseq uent to the disposition phase of the case, rules 5.708(k) and 5.710(b)(2) do not prescribe the legal sta ndard that should be applied to the placement determination, that is, the th reshold question of whether the court should place the child with the non-custodial parent.17 case that preceded the depe ndency proceedin gs, had primary phys ical custody of
Jonathan P. and resided with Jonathan P. fo r a number of years prior to the filing of the dependency petitio n. In addition, Father had contac t with the Department and requested custody of Jonathan P. when he first learne d of the proceedings within six months after the disposition hearing. Thereafter, Father a ppeared at the six-month review hearing and sought custody and reques ted services. We acknowledge that section 361.2, subd ivision (a) appears to have limited application beyond the dispositi on phase of the proceedings. Yet it is of great concern that a non-offending parent who has coope rated with the court and the Department throughout the proceedings, who immediatel y and repeatedly requested custody, who appeared in the proceedings as soon as he learned of them, and ha s been deprived of custody without any court ever finding that placement with him would be detrimental to the minor. Here, Father’s only failing was that he did not appear (apparently through no fault of his own) earlier in the proceedings. Indeed, we are concerned about the adequacy of the Department’s efforts to find Father and provide him w ith notice of the proceedings earlier in the case. The Department’s due diligence declaration for the disposition proceedings, signed September 4, 2012, indicated that Fath er was mailed notice of the proceedings at a number addresses on September 4, 2014, and concluded that no response
had been received by September 4, 2012. Furthermore, although Jonathan P. provided
the social worker with co ntact information for Father on February11, 2013, the Department did not make any effort to contact Father until mid-March 2013—after Jonathan P. had left his placement. The po ssibility that the Department’s unsatisfactory efforts to locate Father and apprise him of th e dependency case earlier in the proceedings resulted in Father’s delayed appearance in the matter cannot be ignored. Equally troubling is the Department trial c ounsel’s repeated references to Father’s immigration status during the pro ceedings in the dependency cour t. It is not clear on this record the degree to which the juvenile cour t was influenced by Department counsel’s argument on this issue, or whether Father’s legal status played any role in the court’s decision-making process. The law is clear, ho wever, that Father’s citizenship status is18 not a legally relevant consideration in these ma tters. (See § 361.2, subd. (e)(1) [providing that the parent’s immigration status is not co nsidered in determinat ion of whether to place a child with a non-custodial parent under secti on 361.2, subdivision (a)] .) It is also clear that the Department counsel’s improper co mments infected the proceedings, distracting the court and parties from the relevant matte rs at hand, namely, Father’s request for custody and/or reunification services.
If Father had attended the di sposition hearing a nd had Father requested custody at that time, he would have been entitled to it absent a showing by the Department of
detriment to Jonathan P. A “nonoffending parent has a cons titutionally protected interest in assuming physical custody, as well as a stat utory right to do so, in the absence of clear and convincing evidence that the parent’s ch oices will be ‘detrimental to the safety, protection, or physical or emotio nal well-being of the child.’” ( In re Isayah C., supra, 118 Cal.App.4th at p. 697.) Here, howeve r, Father was required to demonstrate that placing Jonathan P. with him served Jonath an P.’s best interest. The “detriment
standard” and the “best interest standard” are not legal equivalents. In general, under the “detriment standard,” it is not the non-offe nding parent’s burden to show that she is capable of caring for her child . Instead, the party who is opposing placement has the burden to show by clear and convincing evidence that the child will be harmed if the nonoffending parent is given custody. In c ontrast, under the section 388 “best interest standard,” the parent seeking to modify the placement order shoulders the burden to prove both a change in circumstances and th at the modification would be in the best
interest of the minor. In view of the totality circumstances of th is case, in our view the dependency court should not have required Fath er to prove his entitlement to custody pursuant to section 388. Instead, the court should have analyzed the request un der section 361.2, subdivision (a). In any event, although the dependency court in this ca se applied the wrong legal standard, we also conclude the error was ha rmless. Jonathan P. was absent from his placement in April and May 2013 and his wh ereabouts was unknown at the time. His19 condition and his well-being could not be fully and properly assessed in his absence. In our view, neither an assessment of “best in terest” or “detriment” can be made based solely on Father’s circumstance s. It was not possible to co nduct an evaluation of whether
it would be detrimental to Jona than P. to place him with Fa ther without Jonathan P.’s participation in the process. Thus, even had the court applied section 361.2, the court
could not have resolved the issue of detrimen t and could not have pl aced Jonathan P. with
Father at that time. In view of the foregoing, the juvenile dependency court did not commit prejudicial error in denying Father’s request for custody. 12

B. Father’s Request for Reunification Services On appeal Father also argues that the dependency court erred in denying his alternative request for reunification services. He claims that he had a right to such services pursuant to statut e. Father is correct.
Section 361.5 and its various subdivisio ns govern the provision of reunification services. As a general rule, the juvenile co urt must provide reunification services when it removes a child from parental custody. (§ 361.5, subd. (a).) However, there are exceptions namely, the circumstances descri bed in section 361.5, subdivisions (b)(1) through (16). In this case, the juvenile c ourt denied father reunification services under subdivision (b)(1) which provides that “reunifi cation services need not be provided to a parent . . . when the court finds, by clear and convincing evidence . . . . [¶] [t]hat the whereabouts of the pare nt . . . is unknown.” If the juvenile court denies a parent re unification services un der section 361.5, subdivisions (b)(2) thro ugh (16), the juvenile court is authorized under section 361.5, subdivision (f) to set a section 366.26 hearing. (§ 361.5, su bd. (f).) However, if the sole
basis of denial of services is the unknown whereabouts of the parent under section 361.5,

12 Nonetheless, as discussed elsewhere he re, this matter will be remanded to the dependency court for further proceedings in connection with Fa ther’s request for reunification services. On re mand, if Father again seeks custody of Jonathan P., the dependency court must consider any such re quest under the standards articulated in section 361.2, subdivision (a).20 subdivision (b)(1), the j uvenile court must set a six-month review hearing. (Cal. Rules of Court, rule 5.695(h)(9).) The underlying intent is to provide a parent whose whereabouts are initially unknown but who desires reunifi cation an opportunity to reunify if the parent’s whereabouts become known within a reasonable period. Th is intent is made apparent in section 361.5, subdivision (d) which provides: “If reunification services are not ordered pursuant to paragr aph (1) of subdivision (b) and the whereabouts of a parent
become known within six months of the out-of-home placem ent of the child,[ 13 ] the court shall order the social worker to provid e family reunification se rvices in accordance
with this subdivision.” (§ 361.5, subd. (d).)
If the whereabouts of the parent becomes known prior to the six-month review hearing and the parent requests services , the Department has a duty to seek a
modification of the dis positional order. (Cal. Rules of C ourt, rule 5.695(h)(9) [“If the parent or guardian is located prior to th e 6-month review and requests reunification services, the welfare department must seek a modification of the disposition orders.”].) Here in October 2012 when the dispos ition hearing was conducted, the court did not order family reunification services for Fa ther because his whereabouts was unknown. Thereafter in February 2013, w ithin the six-month period that required the court to offer
Father reunification services under section 361.5, subdivisi on (d), Jonathan P. gave the Department’s social worker contact informati on for Father in Chicago. The Department did not bring this information to the juvenile court’s attentio n, and it appears the social
worker did not contact Father at that time. Father was apparently not contacted until midMarch 2013. Once Father was contacted, he informed the social worker he wanted custody of Jonathan. The Depa rtment’s contact with Father during the six-month period

13 The “six month” period in section 36 1.5, subdivision (d) commences when the minor is removed from the custodial parent and placed out of the custodial home. (§ 361.5, subd. (d).) Removal determinati ons and placement orders are made by the dependency court at the disposition phase of proceedings. (See In re T.W. (2013) 214 Cal.App.4th 1154, 1165 [recogn izing that the period for re unification services under section 361.5 begins at the time of the disposition].)21 after the disposition triggered Father’s right to family reunification services under section 361.5, subdivision (d) as well as the Department’s obligati on to seek a modification of the prior order. However, the matter was not brought to th e dependency court’ s attention until the six-month review hearing on April 9, 2013 , by which time Jonathan P. had left his placement. As a result, the court denied Fath er’s request for services. The court stated
its view that there were no services to offe r to a non-offending pa rent who could not, for all practical purposes, be reunified with a missing minor over whom the court lacked jurisdiction. We disagree with the court’s assessment.
Neither Jonathan P.’s absence from the proceedings or Father’s status as “nonoffending” necessarily disposes of this issue. This is not like the other cases cited by the Department in which the parents and children were absent from the court’s jurisdiction at the time the court entered various dependency orders. Here the court had jurisdiction over Father and properly exercised section 3 00 jurisdiction over Jonathan P. early in the proceedings. Given Father’s appearance and willingness to participate in services, at the very least, the court should have ordered the Department to evaluate whether there were any services that could be offered that were no t dependent on the presence of Jonathan P. Granted, most of the typical reunification se rvices available such as conjoint counseling or visitation would require the participation of the child. However, perhaps there were
other services that would serve the Father in the interim; maybe there were services Father could have used to prepare himself a nd/or make his home ready to regain custody of Jonathan P. The court’s failure to require such an assessment re quires reversal of the order denying the section 3 88 petition insofar as Father’s request for reunification
services is concerned.
DISPOSITION The order denying the Father’s request in the section 388 petition for reunification
services is reversed and the matter is re manded to the dependency court for further proceedings. On remand the court is directed to determine, in light of the current conditions and living circumstances of the Fa ther and Jonathan P., whether there are22 family reunification services that are availabl e and that can be provided to Father and Jonathan P., and to order those services as appropriate to facilitate reunification.

WOODS, Acting P. J.

We concur:

ZELON, J.

SEGAL, J. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.