Filed 10/16/15 In re Audrey C. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re AUDREY C., a Person Coming Under 

the Juvenile Court Law.

 B259904

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ANA C.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct. No. DK03854)

APPEAL from an order of the Superior Court of Los Angeles County, Tony L. 

Richardson, Judge. Reversed and remanded with directions.

Neale B. Gold, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel, 

and Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.

_________________________
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INTRODUCTION

Ana C. appeals from the disposition order of the juvenile court denying her request 

to place her six-year-old daughter, Audrey C., in her custody and instead placing the 

child in the physical custody of the Department of Children and Family Services (the 

Department). We conclude, although there may be sufficient evidence on this record 

from which the juvenile court could make the necessary finding by clear and convincing 

evidence, the court neither indicated which statute it was following, nor made an express 

finding of detriment as required by the applicable statute, Welfare and Institutions Code 

section 361.2, subdivision (c).

1 Accordingly, we reverse the order and remand the case to 

the juvenile court.

FACTUAL AND PROCEDURAL BACKGROUND

1. The family 

Mother and father, Christopher C., who is not a party to this appeal, are married 

but have not lived together in a while. Audrey has lived with her paternal greatgrandparents since she was born, and in December 2013, when the Department became 

involved in this family, father was living there as well. 

Mother was arrested in July 2013. According to the police report, in 

December 2007, mother stuck her tongue inside father’s nine-year-old cousin’s mouth. 

In April 2013, mother committed lewd acts with the cousin, just after the boy’s 15th

birthday. Mother was arrested for lewd acts against a child and oral copulation of a child. 

(Pen. Code, § 288a.) The Department was unable to interview mother or determine the 

date of her release from jail before the jurisdiction hearing because mother was subject to 

an immigration hold. 

Father has problems with anger and a history of drug abuse. He smokes marijuana 

in front of Audrey, and uses cocaine. Father has a history of arrests for possession of 

drugs, driving under the influence, domestic violence, and he was convicted of marijuana 

 

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

otherwise noted. 
3

possession. He did not visit mother in jail because he had an outstanding warrant and his 

license was suspended. 

Father and mother have a history of domestic violence. The Department reported 

that father cut the inside of mother’s mouth with a box cutter. Audrey witnessed the 

physical and verbal violence. She saw father slam mother against the wall and throw a 

glass picture and cut mother’s ear. Audrey reported hearing father scream “bad words” at 

mother and great-grandmother. The screaming scares her. Mother did not follow 

through with restraining orders but took Audrey to a shelter with her. The paternal greatgrandmother reported that mother “can’t give [father] up.” Mother told the social worker 

that she and father could not live together because they fought too much. 

Mother wanted Audrey placed with the maternal grandmother rather than in foster 

care. The Department obtained a removal order and placed Audrey with the paternal 

great-grandparents where the child felt comfortable and safe and would experience the 

least disruption. 

The Department found that mother’s criminal history, her conviction for orally 

copulating a minor, and her incarceration prevented her from providing the child with 

care and supervision. The Department was also concerned that mother stayed in a 

relationship with father who was abusive to her, at times in front of Audrey. 

By September 2014 mother had been deported to Mexico and could not return to 

the United States for any reason. She asked that Audrey be sent to her in Mexico. 

2. The jurisdiction and disposition hearing

The juvenile court sustained the petition under section 300, subdivision (b) (failure 

to protect) alleging mother’s sexual abuse of a related child on more than one occasion; 

the parents’ history of physical altercations; and father’s drug abuse. The court struck the 

sexual abuse allegation under subdivision (d). 

Turning to the disposition, father testified that he had visited mother three times in 

the past year and a half, i.e., since mother’s arrest. He saw mother in Mexico after her 

deportation. At the close of argument, the juvenile court stated it was following the 

Department’s recommendations. The court found that the “Department has met its 
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burden by clear and convincing evidence that release to the father at this time would not 

be appropriate.” (Italics added.) After completing its ruling and orders concerning 

father’s disposition, the court stated, “With respect to mother - - again the child is to be 

suitably placed. Mother is to participate in the services which are reflected in her courtordered case plan.” At mother’s attorney’s request, the court ordered the Department to 

look into initiating contact with the Department’s counterpart in Mexico to look into 

visitation there. Mother filed her notice of appeal. 

CONTENTION

Mother contends the record contains insufficient evidence to support the order 

removing Audrey from her custody.2

DISCUSSION

Under section 361, subdivision (c), a dependent child cannot be removed from the 

physical custody of a parent with whom the child 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 occurs 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.” (§ Id., subd. (c)(1).) 

The juvenile court here found that the Department carried its burden under section 361, 

subdivision (c)(1) to show substantial danger by clear and convincing evidence with 

respect to father. Father does not appeal the dispositional order and hence that ruling is 

not at issue. 

 

2 Mother filed a supplemental opening brief on appeal challenging the sufficiency of 

the evidence to support the order sustaining the petition’s count b-1 alleging that mother 

sexually abused a child. However, mother does not challenge the other bases for 

jurisdiction, namely the parents’ domestic violence and father’s drug abuse. “As long as 

there is one unassailable jurisdictional finding, it is immaterial that another might be 

inappropriate. [Citations.]” (In re Ashley B. (2011) 202 Cal.App.4th 968, 979.) 

Accordingly, we need not address this contention.
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However, Audrey could not be removed from mother’s custody under section 361, 

subdivision (c) because the child was not residing with mother when the petition was 

initiated. (In re Abram L. (2013) 219 Cal.App.4th 452, 460; In re V.F. (2007) 

157 Cal.App.4th 962, 969; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1816.) 

Although no party addressed the issue and the juvenile court did not indicate under 

which statute it was proceeding with respect to mother, the applicable statute governing 

mother’s request for custody of Audrey is section 361.2. Thereunder, “[w]hen 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.” 

(Id., subd. (a), italics added.) 

As we explained in Abram L., a case directly on point, “ ‘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.’ [Citation.] ‘[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.’ [Citations.]” (In re 

Abram L., supra, 219 Cal.App.4th at p. 461.) Accordingly, section 361.2, subdivision (c) 

specifies that the juvenile “court shall make a finding either in writing or on the record of 

the basis for its determination under subdivisions (a) and (b).”

The record here reflects that the juvenile court did not consider the requirements 

of section 361.2 in denying mother custody of Audrey. The minute order from that 

hearing uses only the language of section 361, subdivision (c). The court’s oral 

statements about removal of Audrey from mother’s custody neither referred to section 

361.2, nor used the relevant, operative language of that statute. (Accord, In re Abram L., 

supra, 219 Cal.App.4th at p. 461.) Moreover, the Department’s Jurisdiction/Disposition 
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Report did not request or recommend that the juvenile court consider section 361.2, 

despite mother’s request that Audrey be placed with her in Mexico. The Department

only used the operative language of section 361, subdivision (c). At the disposition 

hearing, the court stated it was following the Department’s recommendations. Thus, the 

juvenile court did not apply the applicable law to mother’s request for physical custody of 

Audrey.

We will not imply a finding of detriment under section 361.2 in this case because 

to do so “presupposes the [juvenile] court considered the correct code provision.” (In re 

Marquis D., supra, 38 Cal.App.4th at p. 1824.) Although arguably this record supports a 

finding that placement with mother would be detrimental to Audrey, the better practice is 

to remand the matter to the juvenile court because that court has not considered the facts 

within the appropriate statutory provision. (In re V.F., supra, 157 Cal.App.4th at p. 973.) 

Section 361.2 requires that the juvenile court make the finding on the record (id., 

subd. (c)) and the appellate court is not the finder of fact. (In re V.F., supra, at p. 973.) 

Accordingly, we reverse the disposition order as to mother and remand the case to the 

juvenile court to consider and make proper findings under section 361.2, subdivision (a). 

(In re Marquis D., supra, at p. 1830.)
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DISPOSITION

The juvenile court’s order dated October 21, 2014, placing Audrey in the care of 

the Department of Children and Family Services is reversed. The juvenile court is 

directed to hold a hearing to consider and make findings under section 361.2, 

subdivision (a) in writing or on the record. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

EDMON, P. J.

JONES, J.

 



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.