Filed 11/24/14 In re Elyse W. CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re ELYSE W., a Person Coming Under 

the Juvenile Court Law.

 

 B255841 

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

JIMMIE W.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct. No. DK03740)

APPEAL from an order of the Superior Court of Los Angeles County. Philip 

Soto, Judge. Affirmed.

Nicole Williams, under appointment by the Court of Appeal, for Appellant.

Richard D. Weiss, Acting County Counsel, Dawyn R. Harrison, Assistant County 

Counsel, Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.

_____________________________________
2

Father Jimmie W. appeals from a juvenile court order concluding it would be 

detrimental to minor Elyse W. to place her with father pursuant to Welfare and 

Institutions Code section 361.2.1 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2014, five-year-old Elyse W. was living with her mother, Monica O., 

along with her four-month-old half brother, James O.2 The Los Angeles County 

Department of Children and Family Services (DCFS) detained Elyse and James after 

receiving referrals indicating mother was exhibiting paranoid and erratic behavior, and 

she may have been using illegal drugs. Mother told family members she thought people 

were trying to kill her and the children. At one point, while in a two-story building, 

mother “was yelling and asking if the children would die upon impact on the floor if 

pushed.” At times mother left Elyse with the maternal grandmother, but then demanded 

her back. Mother attempted to file a report with law enforcement alleging the maternal 

grandmother was “manipulating [Elyse] to not like the mother.” On February 15, mother 

was taken to a hospital pursuant to a section 5150 hold. At the time of detention, father’s 

whereabouts were unknown. The maternal grandmother reported he was incarcerated. 

Elyse was placed with her maternal aunt. 

In late February, Father was located in Utah. He told DCFS he was unable to 

attend a hearing scheduled for March 4, but would attend the jurisdiction and disposition 

hearing later that month. Father wanted Elyse released to him, and he was willing to 

have his home in Utah assessed for placement. 

A March 2014 jurisdiction and disposition report indicated father was married and 

living with his wife and four children in Utah. Another child of father’s was living in Los 

Angeles with his mother. Father met mother when he was 18 years old. After mother 

became pregnant with Elyse, father and mother moved between the homes of the 

maternal grandmother and the paternal grandfather, until father and mother’s relationship 

 

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

2

James O. is not a subject of this appeal.
3

ended. Father denied any domestic violence with mother. According to father, while he 

lived in California he had telephone contact with mother and Elyse around once a week, 

and he visited Elyse “every couple of days.” After he moved to Utah, father had 

telephone contact with mother and Elyse around twice per month. However, father had 

not had any contact with Elyse and mother for around one month before the dependency 

proceedings were initiated. Father explained that mother changed her telephone number 

a lot; when he heard from mother after a month she had a new telephone number. Mother 

informed father then that Elyse had been taken away. Until the dependency proceedings, 

father was unaware that mother had any mental health issues. 

Father was involved in a dependency matter in December 2010. Allegations of 

emotional abuse of two of father’s children were substantiated. Father admitted to DCFS 

that at one point he had a violent altercation with his wife. Father reported his wife 

stabbed or “cut” him after learning of his infidelity. According to father, their son was 

sleeping during the incident. Father also admitted that when police searched him on the 

day of the incident, cocaine powder was found in his pocket. The case was dismissed 

after father and his wife took domestic violence and parenting classes. 

The jurisdiction and disposition report indicated father had suffered three criminal 

arrests. The first was a 2008 arrest for inflicting corporal injury on a spouse/cohabitant, 

which was dismissed, and a drug possession charge from the same date.3 The jurisdiction 

and disposition report appeared to indicate charges were suspended and father was sent to 

drug court. Father also had a 2009 arrest for possession of a controlled substance, and a 

2012 “fugitive from justice” arrest. Father told DCFS he was not arrested for possession 

of a controlled substance. He explained that he was arrested for receiving stolen 

property—a video game console—and he spent three months in jail. Father said he was 

 

3 The jurisdiction and disposition report provides the same summary details for both 

the 2008 arrest and the 2010 dependency matter. Although this suggests the incident and 

arrest occurred either in 2008 or in 2010, it is not clear which is the correct date, or 

whether there were two separate incidents.
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currently on probation and agreed to provide the social worker with the information for 

his probation officer. 

A social worker interviewed Elyse for the report. With respect to Elyse’s 

relationship with father, the report recounted: “When asked if she has seen her father, 

Elyse stated, ‘Jimmie?’ This investigator then asked the child if she calls her father 

‘Jimmie’ and the child stated, ‘No, Daddy.’ This investigator asked Elyse if she know[s] 

where her Father lives and she stated, ‘Utah.’ When asked if she would like to visit with 

Father or live with Father, Elyse nodded and stated, ‘No. He is far. I want to be close to 

my granny.’ When asked if she misses Father, Elyse stated, ‘I don’t know . . . I haven’t 

seen him.’ When asked if she knows what Father looks like, Elyse stated, ‘I don’t 

know.’ ” 

The maternal aunt told the social worker father had not contacted Elyse since she 

was detained and placed in the aunt’s home. According to the aunt, Elyse did not 

remember father much and knew little about him. The aunt recalled that father only lived 

with mother in the maternal grandmother’s house when Elyse was one year old, and he 

was never “constant” or consistent in contacting Elyse. The aunt told the social worker 

her family really loved Elyse and she was happy in their home. She opined: “ ‘[Elyse] 

has been through a lot and we want to make sure she is a happy kid’ . . . ‘[Father] is a 

stranger to her and Elyse has gone through a lot of changes already . . . I don’t think that 

Elyse will have stability with her dad.’ ” 

The maternal grandmother told a social worker father had no relationship with 

Elyse, he had not seen her since she was three years old, and he had never tried to visit 

her. She also said father was “aggressive,” and he and mother fought a lot when they

both lived with her. The maternal grandmother opined: “ ‘I don’t think [father] can care 

for Elyse. He also has a strong character and he would fight a lot with my daughter so I 

would grab Elyse and take her to the living room so she didn’t see that.’ ” 

DCFS recommended that Elyse “address her relationship with her father in a 

therapeutic setting in order to reunify with father in the event that she does not reunify 

with mother,” but did not recommend immediate placement with father. The report 
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concluded: “In regards to . . . Elyse . . . being released to the father. . . it appears that the 

child has not had consistent contact with the father for about two years. It is important to 

consider that, when asked if she would like to reside with her father, Elyse said no and 

reported she wants to remain close to her maternal grandmother . . . and that she wants to 

continue to reside in the home of her maternal aunt. . . . Due to the Court order dated 

03/04/2014, the Department has initiated an I.C.P.C. to have [father’s] home assessed in 

order to consider the release of the child to the father.” 

At the late March jurisdiction and disposition hearing, the juvenile court declared 

Elyse and her half-brother to be persons described by section 300. At disposition, 

counsel for DCFS argued Elyse did not want to reside with father and had only a minimal 

relationship with him. Although counsel noted DCFS did not blame father for the state of 

the relationship, he argued it was necessary to “deal with where the child is now,” and 

she did not want to leave her placement with the maternal aunt. Counsel suggested 

conjoint counseling between father and Elyse, and argued “the child’s best interests 

including her mental health and well-being must be taken into consideration . . . .” 

The court noted it needed to find “a judgment detrimental to the child being 

returned to father,” and asked Elyse’s counsel for argument. Elyse’s counsel informed 

the court Elyse wished to remain with the maternal aunt. Her counsel further argued: 

“It would be emotionally detrimental to uproot her and send her back now to Utah to a 

different state with a family that she really hasn’t had much contact with in the past so I 

do believe it would be emotionally detrimental to uproot her.” Father argued DCFS had 

not shown detriment to Elyse if placed with father under section 361.2. Father requested 

custody of Elyse and asked that the court either close the case with a custody order to 

him, or, as allowed under section 361.2, subdivision (b)(2), place Elyse with him and 

order a home visit within three months. 

The juvenile court ordered Elyse removed from mother’s custody. The court 

further concluded “it would be detrimental to the child to be returned to the father who is 

living out of state. So briefly have her suitably placed.” The court indicated evaluation 

of father was to continue under an I.C.P.C. in Utah. Father was allowed unmonitored 
6

telephone contact with Elyse, and unmonitored day visits if father was in California. 

The court denied father’s request for family reunification services. 

DISCUSSION

I. The Juvenile Court’s Ruling Under Section 361.2 Was Not Reversible Error

On appeal, father contends: 1) the juvenile court prejudicially erred in failing to 

make required findings under section 361.2, subdivision (c); and 2) there was insufficient 

evidence to support a finding of detriment under section 361.2, subdivision (a). We find 

no basis for reversal.

Under section 361.2, subdivision (a), “[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.” Subdivision (b) of 

the section provides several placement options if the court in fact places the child with 

the previously noncustodial parent. Under subdivision (c), “[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).” The juvenile court must make a detriment finding under 

subdivision (a) by clear and convincing evidence. (In re Patrick S. (2013) 218 

Cal.App.4th 1254, 1262 (Patrick S.).)

Father argues that although the juvenile court expressly found placement with 

father would be detrimental to Elyse, the court did not comply with section 361.2, 

subdivision (c) because it did not explain the factual basis for its decision. However, the 

one case father cites to support his argument concerns a juvenile court failure to make an 

express finding of detriment, not the failure to state a detailed factual basis for an express 

detriment finding. (In re J.S. (2011) 196 Cal.App.4th 1069, 1078.) Father further fails to 

provide any legal argument to support the assertion that such a statement of reasons is 

required.
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However, even assuming the juvenile court erred in this case by failing to explain 

the factual basis for its detriment finding, we would not find the error 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.” ’ [Citation.]” (In re Abram 

L. (2013) 219 Cal.App.4th 452, 463.) 

We cannot conclude that even if the juvenile court had stated the factual basis for 

its determination that placing Elyse with father would be detrimental to her safety, 

protection, or physical or emotional wellbeing, that it is reasonably probable the court 

would have reached a decision more favorable to father. Although the juvenile court did 

not specifically reference section 361.2, it expressly acknowledged the necessary 

detriment finding required by the statute, and it requested specific argument on that issue. 

The court was clearly aware of the appropriate standard and applied it. These facts 

distinguish this case from those in which reviewing courts have found the juvenile court’s

failure to make a section 361.2, subdivision (a) detriment finding was prejudicial. 

(See e.g., In re Abram L., supra, 219 Cal.App.4th at pp. 461, 463-464; In re Marquis D.

(1995) 38 Cal.App.4th 1813, 1821, 1825.) Moreover, as discussed in greater detail 

below, substantial evidence supported the juvenile court’s detriment finding. Thus, even 

if the juvenile court erred in failing to provide a statement of reasons for the detriment 

finding, we would find no prejudice.

II. Substantial Evidence Supported the Detriment Finding

When reviewing a juvenile court detriment finding, “[w]e 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 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.)
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Here, substantial evidence supported the juvenile court’s detriment finding. 

Father admitted a number of criminal arrests and he admitted at least some of the 

conduct leading to the arrests. Father was still on probation. He admitted the violent 

encounter with his wife, arising out of his infidelity, that resulted in her cutting him with 

a knife while at least one of his children was present in the home. He was involved in a 

dependency matter in 2010, in which emotional abuse allegations were substantiated. 

The maternal grandmother reported father was “aggressive” when living with mother in 

the maternal grandmother’s home. Although father said he had regular telephone contact 

with mother and Elyse until shortly before the dependency proceedings were initiated, 

others reported father had not consistently maintained contact with Elyse. The maternal 

grandmother reported father made no effort to visit Elyse in person and he had not seen 

her for two years. Elyse barely knew father, did not want to live with him, and wanted to 

remain with the maternal aunt. She wanted to stay close to the maternal grandmother, 

with whom she had periodically lived while in mother’s custody.

Several courts have concluded that a child’s disinclination to live with a 

previously noncustodial parent is not enough, by itself, to sustain a juvenile court finding 

of detriment. Courts have reached the same conclusion regarding a child’s lack of an 

established relationship with a previously noncustodial parent. (See e.g., Patrick S., 

supra, at pp. 1262, 1265; In re Abram L., supra, 219 Cal.App.4th at p. 464; In re John 

M. (2006) 141 Cal.App.4th 1564, 1570.) However, these were not the only factors in this 

case. In addition to Elyse’s preference not to live with father and her lack of a 

relationship with him, the juvenile court could also consider father’s history of criminal 

arrests, his admitted domestic violence with his current wife, the dependency matter 

involving his other children, and evidence that he had often fought with Elyse’s mother. 

The court could also consider Elyse’s established relationship with maternal relatives, 

which would be disrupted by a placement with father in Utah, and her stated desire to be 

near her maternal grandmother. (In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1507 

[although child’s wishes do not control placement, court could properly consider child’s 

reluctance to live with mother and his desire to remain in San Diego, where he had lived 
9

for over six years]; In re Luke M. (2003) 107 Cal.App.4th 1412, 1423 [when determining 

detriment court could consider sibling relationship that would be disrupted if children 

were placed with father in Ohio].) Considering all of the relevant factors, we conclude 

there was substantial evidence to support the juvenile court finding that placing Elyse 

with father would be detrimental to Elyse’s safety, protection, or physical or emotional 

well-being.

DISPOSITION

The order is affirmed.

BIGELOW, P.J.

We concur:

FLIER, J.

GRIMES, J.