Filed 6/7/22 In re E.E. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re E.E., a Person Coming Under the Juvenile 

Court Law.

FRESNO COUNTY DEPARTMENT OF 

SOCIAL SERVICES,

Plaintiff and Respondent,

v.

ISAAC Y.,

Defendant and Appellant.

F083503

(Super. Ct. No. 17CEJ300349-3)

OPINION

THE COURT*

APPEAL from orders of the Superior Court of Fresno County. Gary L. Green, 

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County 

Counsel, for Plaintiff and Respondent.

* Before Peña, Acting P. J., Smith, J. and DeSantos, J.
2.

-ooOooIsaac Y. (father) and Esmeralda E. (mother) are the parents of E.E. (born 

December 2015). Father appeals the juvenile court’s dispositional order denying his 

request for placement of E.E. pursuant to Welfare and Institutions Code section 361.2, 

subdivision (a),1 after the court removed her from mother’s custody. He contends there 

was insufficient evidence to support the court’s detriment finding, and that the court 

abused its discretion in ordering him to participate in a domestic violence assessment 

with recommended treatment, a mental health assessment with recommended treatment, 

and parenting classes as part of his reunification plan. 

We conclude that substantial evidence did not support the court’s detriment 

finding under section 361.2, subdivision (a), and that the court abused its discretion in 

ordering father to participate in a domestic violence assessment. Therefore, we reverse 

the court’s order under section 361.2, subdivision (a) and the order requiring father to 

participate in a domestic violence assessment, but affirm in all other respects.

FACTUAL AND PROCEDURAL HISTORY

Petition and Detention

On July 7, 2021, the Fresno County Department of Social Services (department) 

filed a petition on behalf of E.E. and her two half siblings pursuant to section 300, 

subdivisions (b)(1) and (j), alleging mother had a substance abuse problem that 

negatively affected her ability to care for, supervise, and protect the children.2 E.E. and 

her two half siblings were detained and placed in a licensed foster care. The petition 

identified Isaac Y. as E.E.’s presumed father. 

The detention report stated father’s whereabouts were unknown and that the 

department submitted a “Parent Search” form and “Family Finding” request on his 

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

2 E.E.’s two half siblings have a different father and are not part of this appeal.
3.

behalf. The department recommended detaining E.E. from mother and presenting the 

case to the family reunification panel to determine if services could be provided to her as 

she had an extensive history with the department. 

On July 8, 2021, at the detention hearing, the juvenile court ordered E.E. removed 

from mother’s custody and ordered reasonable supervised visitation and reunification 

services for mother. 

Jurisdiction and Disposition

Report

The jurisdiction and disposition report detailed mother’s child welfare history. 

Only one incident mentioned father. The report stated that in February 2016 the 

department received an allegation of emotional abuse for E.E. and three of her half

siblings by mother.3 The reporting party stated mother “was 5150’d” and had threatened 

to hurt herself and father (who was her boyfriend at the time) with a knife. Allegedly, 

E.E. and her half siblings were present during the altercation. Further investigation 

revealed the altercation was between mother and her sister, not father. Mother did not 

have a knife and did not threaten harm, but she was very upset and was crying. She could 

not catch her breath and an ambulance was called. E.E.’s half siblings reported they were 

not present for the altercation and that they felt safe at home. The referral was 

unfounded. Additionally, in October 2017, E.E. was removed from mother’s custody due 

to her domestic violence and substance abuse problems. Dependency was terminated in 

July 2019. 

As far as father’s criminal history, his California Law Enforcement 

Telecommunications (CLETS) report came back as “No Record in the State of 

California.” A second CLETS was submitted, but again no record was found. 

3 Mother had a total of six children. E.E. is the fourth child.
4.

The report contained an analysis of the department’s consideration of placing E.E. 

with father. According to the report, father resided in Oregon with his wife, their 

three-year-old son in common, his teenage stepdaughter, and his adult stepdaughter. He 

reported he was in a relationship with mother for approximately one year and left their 

home when E.E. was approximately five months old due to mother “drinking a lot and 

being involved in a lot of problems.” He had not visited E.E. since she was five months 

old because mother did not allow him to have contact even though he attempted to make 

contact multiple times. He also said he sent money for E.E.’s care for two years, but did 

not have proof. Currently, he was employed and had adequate housing. His family knew 

about E.E. and saw her as his child. He wanted the opportunity to meet her and wanted 

his family to have a relationship with her. He and his wife wanted to raise her. He 

denied any drug or alcohol use. A social worker contacted the father’s local sheriff’s 

department to conduct a criminal check for father, his wife, and his adult stepdaughter. 

The sheriff’s department did not find anything of concern relating to child safety. The 

department concluded father did not have a criminal history. Father did not feel he 

needed reunification services, but was willing to do what was asked of him. 

E.E. reported she wanted to visit father and get to know him. She said she wanted 

“to go with him if given an opportunity.” Although she stated she had not met him, she 

knew who he was because mother had shown her pictures of him. E.E. even knew he had 

a new spouse. 

The department concluded there would be a substantial risk to E.E.’s physical 

health, safety, and protection if placed with father at that time, and there was no 

reasonable means to protect her physical health and well-being. The department 

recommended father be provided reunification services, including a mental health 

assessment with recommended treatment and parenting classes. 

The report attached the initial case plan, which stated father had failed to provide 

E.E. with adequate care, supervision, and protection because he left her in mother’s care, 
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knowing she had substance abuse issues. As a result, the department wanted father to 

work with them so that he could demonstrate his ability to care for her. Father’s plan 

included participating in a mental health assessment and a parenting program. 

Hearings

On August 10, 2021, at the jurisdiction and disposition hearing, father made his 

first appearance. The juvenile court confirmed there were no allegations against him. 

Father requested he be assessed for placement. He acknowledged he had not seen E.E. in 

a “very long time,” and wanted to get visits established as soon as possible to reestablish 

their relationship. The juvenile court informed him there was a recommendation for him 

to participle in reunification services. Father’s counsel stated “[father] would be in favor 

of that.” The hearing was continued. 

On October 28, 2021, at the continued jurisdiction and disposition hearing, the 

juvenile court found true the allegations set forth in the petition. The disposition hearing 

was continued. 

On November 2, 2021, at the continued disposition hearing, the department 

recommended father receive reunification services. Father’s counsel argued father 

should have placement of E.E. pursuant to section 361.2, subdivision (a). The 

department disagreed, stating there was a lack of relationship between father and E.E. 

The department argued it would be detrimental to E.E. to move her to another state with 

father who left her with mother, knowing she had substance abuse issues. In ruling, the 

juvenile court stated as follows:

“With regards to the placement with [father], [father’s counsel] touched on 

some of the factors, but my reading of the case is there are many factors. 

And one of them, which ... is a very important factor, is whether a 

noncustodial parent has maintained a relationship with the child and the 

nature of that relationship. And I think we all have to agree that [father] 

has not maintained a relationship with his child. He left the home and has 

not had contact with the child.

“Another issue is whether the noncustodial parent has remedied conditions 

which led to the prior dependency. It appears that the prior dependency 
6.

was based on—in part on mother’s alcohol abuse. And [father’s] child 

remained with mother. He didn’t, as far as I can tell, seek any attempts to 

place the child in his own custody. He seemed content to leave the child in 

that situation knowing what the situation was with the mother.

“There is an issue whether he can maintain the safety for this child as well 

as the child’s physical, emotional, social, and educational needs. All 

factors for the Court to review.

“Another concern is whether the father, ... has the ability to obtain and 

follow through for services for himself and the child. We don’t know that 

apparently at this point. That needs to be explored, whether the minor 

desires to live with him. It appears from the report that the minor is at least 

curious about him, maybe open to living with him. I don’t know that we 

have a certainty as to that. I think [child’s counsel’s] point about suitable 

housing and whatnot can’t be ignored.

“When you look at everything, I don’t believe that [father] would be a good 

fit at this point. He might be with completing, you know, services or 

working on services. But at this point in time, I don’t feel that I can simply 

place a child who has had no relationship with him and place, you know, 

and place— [¶] ... [¶]

“With that said, the Court is not going to be making placement with the 

father, ....” 

The juvenile court found by clear and convincing evidence that placement with 

father would be detrimental. E.E. was found to be a person described by section 300, 

subdivisions (b)(1) and (j), and made a dependent pursuant to section 360, 

subdivision (d). The court ordered reasonable supervised visitation and reunification 

services for father, including a domestic violence assessment with recommended 

treatment, a mental health assessment with recommended treatment, and parenting 

classes. Father’s counsel objected to the domestic violence assessment, arguing there 

was no evidence supporting such an order. The court then set a six-month review 

hearing. 

On November 5, 2021, father filed a notice of appeal. 
7.

DISCUSSION

I. Substantial Evidence Does Not Support the Juvenile Court’s Order Denying 

Father’s Request for Placement Under Section 361.2, Subdivision (a)

Father contends there was insufficient evidence showing that placing E.E. in his 

care would be detrimental to her. We agree.

A. Applicable Law

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 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).) “Section 361.2, subdivision (a)

evinces [a] legislative preference for placement with the noncustodial parent when safe 

for the child.” (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1262 (Patrick S.).)

“A detriment evaluation requires that the court weigh all relevant factors to 

determine if the child will suffer net harm.” (In re Luke M. (2003) 107 Cal.App.4th 

1412, 1425.) Factors to consider include the parent’s criminal history, substance abuse, 

or mental illness, any referrals to child welfare services, the age of the child, the child’s 

wishes for placement, any special needs the child may have, and the ability of the parent 

to meet the child’s needs. (Patrick S., supra, 218 Cal.App.4th at pp. 1263–1265.) The 

juvenile court may also consider the nature of the relationship between the parent and 

child. (In re C.M. (2014) 232 Cal.App.4th 1394, 1403.)

“The juvenile court must make the detriment finding by clear and convincing 

evidence. [Citations.] We review the record in the light most favorable to the court’s 

order to determine whether there is substantial evidence from which a reasonable trier of 
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fact could find clear and convincing evidence that placement would be detrimental to the

child. Clear and convincing evidence requires a high probability, such that the evidence 

is so clear as to leave no substantial doubt.” (Patrick S., supra, 218 Cal.App.4th at 

p. 1262.) On review, “ ‘[w]e do not evaluate the credibility of witnesses, reweigh the 

evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in 

support of the findings, consider the record most favorably to the juvenile court’s order, 

and affirm the order if supported by substantial evidence even if other evidence supports 

a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or 

order is not supported by substantial evidence.’ ” (In re Liam L. (2015) 240 Cal.App.4th 

1068, 1087.)

B. Analysis

In finding that placing E.E. with father would be detrimental to her safety, 

protection, or physical or emotional well-being, the juvenile court considered father’s 

lack of relationship with her, the child’s wishes, and father’s inability to remedy the 

conditions leading to the prior dependency. 

“An ‘alleged lack of relationship between father and [a child] is not, by itself, 

sufficient to support a finding of detriment for purposes of section 361.2, subdivision (a). 

[Citation.]’ ” (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].) At the time of the disposition hearing, E.E. was almost six years old and father 

had not had contact with her since she was five months old. However, father reported he 

sent money for E.E.’s care for two years and attempted to make contact multiple times, 

but mother would not allow it. Nonetheless, E.E. knew who father was because mother 

had shown her pictures of him, and she stated she wanted to get to know him. 

Although the juvenile court acknowledged E.E. was “maybe” open to living with 

father, it stated that it did not “have a certainty as to that.” The record reflects E.E. told 

the social worker she wanted “to go with [father] if given an opportunity.” (See In re 
9.

Luke M., supra, 107 Cal.App.4th at p. 1426 [a child’s preference for placement may be 

considered.]) However, even where a child prefers not to be placed with a noncustodial 

parent, that preference is outweighed by “the long-term benefits [minor] would gain from 

becoming an integrated member of a family.” (Patrick S., supra, 218 Cal.App.4th at 

p. 1265.) And here, father expressed a strong desire to integrate E.E. into his family. Not 

only did E.E. express a desire to live with father, but there was no indication placement 

would be detrimental to her emotional well-being. (In re A.C. (2020) 54 Cal.App.5th 38, 

43–44, 46 [“[a] court properly may decline placement with a safe and nonoffending 

parent if that placement would be detrimental to the child’s emotional well-being” as 

evidenced by the child’s anxiety, inability to sleep over the prospect of moving, and the 

child’s therapist’s recommendation against moving].) Although the court noted there was 

uncertainty about the suitability of father’s home for placement, a juvenile court that 

places a child with a noncustodial parent has the authority to order that a home visit occur 

within three months. (§ 361.2, subd. (b)(2).) The court could have done so here.

Additionally, the juvenile court improperly considered whether father had 

remedied the conditions leading to the prior dependency, noting that prior dependency 

was partly based upon mother’s substance abuse and that father had not taken steps to 

resolve those issues. While the court may consider prior referrals to child welfare 

services and “may assign ... weight to a prior removal order or detriment finding against 

a noncustodial parent” (In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1506; see also 

Patrick S., supra, 218 Cal.App.4th at p. 1263), father was never a part of any prior 

dependency proceeding and there was no evidence showing he knew of E.E.’s prior 

removal.

Father’s disappearance from E.E.’s life showed he was not an ideal parent, 

especially since he left her in mother’s care when he knew about her substance abuse 

problems, but that is not enough to support a detriment finding. (See David B. v. 

Superior Court (2004) 123 Cal.App.4th 768, 789–790 [the juvenile court should focus on 
10.

“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”].) Father wanted to reunify with 

E.E. and was willing to do what the department asked of him. He had a stable job and 

housing, with no criminal history. He had a son close in age to E.E. and no one else in 

his home had a criminal history relating to child safety. E.E. wanted to go with father 

and expressed no anxiety about doing so. Overall, there was no indication her safety, 

protection, or physical or emotional well-being would be placed at substantial risk. Thus, 

we conclude substantial evidence does not support the juvenile court’s detriment finding.

II. The Juvenile Court Abused Its Discretion When It Ordered Father to 

Participate In a Domestic Violence Assessment

Father further contends the juvenile court abused its discretion by ordering him to 

participate in a domestic violence assessment with recommended treatment, a mental 

health assessment with recommended treatment, and parenting classes as part of his 

reunification plan. We agree the court abused its discretion in ordering father to 

participate in a domestic violence assessment; however, he forfeited his right to challenge 

the remaining orders.

A. Applicable Law

Section 362, subdivision (a) provides that “[i]f a child is adjudged a dependent 

child of the court on the ground that 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.” Such orders may be directed to the parents or 

guardians of the dependent child and “may include a direction to participate in a 

counseling or education program.” (§ 362, subd. (d).) “The program in which a parent or 

guardian is required to participate shall be designed to eliminate those conditions that led 

to the court’s finding that the child is a person described by Section 300.” (Ibid.) 

However, “[t]he problem that the juvenile court seeks to address need not be described in 
11.

the sustained section 300 petition. [Citation.] In fact, there need not be a jurisdictional 

finding as to the particular parent upon whom the court imposes a dispositional order.” 

(In re Briana V. (2015) 236 Cal.App.4th 297, 311.) Nonetheless, the orders must be 

reasonable. (See § 362, subd. (d).) 

“We review the juvenile court’s disposition case plan for an abuse of discretion.” 

(In re I.R. (2021) 61 Cal.App.5th 510, 522.) “The juvenile court has broad discretion to 

determine what would best serve and protect the child’s interests and to fashion a 

dispositional order accordingly. On appeal, this determination cannot be reversed absent 

a clear abuse of discretion.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.)

B. Analysis

At the disposition hearing, father’s counsel objected to the domestic violence 

assessment stating, “Regarding [father], I want to object to ... domestic violence as part 

of his services. I don’t think there is anything in there to support that order.” Indeed, 

nothing in the record indicated or even suggested father had a history of domestic 

violence. (See In re Drake M. (2012) 211 Cal.App.4th 754, 770–771 [reversing order 

requiring the father to participate in drug counseling because nothing in record indicated 

father had a substance abuse problem]; In re Basilio T. (1992) 4 Cal.App.4th 155, 172–

173 [reunification plan improperly required parents to undergo drug testing and substance 

abuse therapy in absence of evidence that parents had substance abuse problem].) There 

was only one incident in the child welfare history that mentioned father. During that 

incident, mother allegedly threatened to hurt him with a knife. However, further 

investigation revealed the altercation was actually between mother and her sister. 

Additionally, we note that although the department recommended father participate in a 

mental health assessment and parenting classes, it never recommended he participate in a 

domestic violence assessment.4 

4 Respondent’s brief argues the juvenile court ordered father to participate in 

services “after reviewing the social worker’s reports and hearing testimony from father 
12.

As far as the mental health assessment and parenting classes, father forfeited his 

right to appeal. “[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. [Citation.] The 

purpose of this rule is to encourage parties to bring errors to the attention of the trial 

court, so that they may be corrected. [Citation.] [¶] Dependency matters are not exempt 

from this rule.” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) When father 

objected to the domestic violence assessment, he could have lodged objections as to the 

mental health assessment and parenting classes as well, but he failed to do so. An 

objection as to all three services would have preserved the point for appeal and would 

have put on record the precise reasons for the orders directing father to participate in such 

services.

DISPOSITION

The juvenile court’s finding that it would be detrimental to place E.E. with father 

under section 361.2, subdivision (a), is reversed. The court’s disposition order requiring 

father to participate in a domestic violence assessment is reversed, but the dispositional 

orders are affirmed in all other respects.

and social worker,” and that father had a history of “possession charges and court-ordered 

substance abuse treatment programs.” This information is incorrect as the court did not 

hear testimony from the social worker and father did not have a criminal history, nor was 

he ever ordered to participate in substance abuse programs. Respondent cites to pages in 

the record that do not exist and arguments in the opening brief that were not made.