Filed 12/26/14 In re C.M. CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re C.M., a Person Coming Under the 

Juvenile Court Law.

 B255629

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

ROBERT M.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct. No. DK03329)

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

Losnick, Juvenile Court Referee. Reversed in part, affirmed in part and remanded with 

directions.

Eva E. Chick, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

Counsel and Sharah Vesecky, for Plaintiff and Respondent Los Angeles County 

Department of Children and Family Services.

Cristina Gabrielidis for Minor C.M.

__________________________
2

Robert M. (father), the noncustodial and nonoffending father of C.M., appeals 

from the juvenile court’s dispositional order granting physical custody of C.M. to the Los 

Angeles County Department of Children and Family Services (DCFS) for placement with 

maternal grandparents. Both C.M. and DCFS filed respondents’ briefs in support of the 

order. We agree with father that there was insufficient evidence that placement with 

father would be detrimental to C.M. Therefore, under Welfare and Institutions Code 

section 361.2, subdivision (a), we reverse and remand for further proceedings.

1

FACTUAL AND PROCEDURAL BACKGROUND

Mother and father were living together but not married when C.M. was born in 

August 2000. According to the Paternity Questionnaire completed by mother in these 

dependency proceedings, father provided financial support and maintained a relationship 

with C.M. C.M.’s half sibling, S., was born in November 2005. At all relevant times, 

C.M. and S. (collectively, the children) lived with mother in the maternal grandparents’ 

home. Other maternal family members lived in the same apartment complex. 

From 2004 until 2013, the children were the subject of six referrals, all of which 

DCFS concluded as unfounded or inconclusive. In a March 2013 interview, then 12-

year-old C.M. told a social worker that mother hit her occasionally, but she could not 

recall any resulting marks or bruises; mother called S. fat and told her she would not get 

married or have babies; mother also called C.M. names, told C.M. mother never liked her

and that father left them because C.M. was horrible; mother had threatened suicide; 

mother slept a lot when she took her medication but mother believed she did not need 

medication because there was nothing wrong with her. C.M. told the social worker that 

she saw father on weekends and things were better there, but she did not want to live with 

him. Mother and the maternal grandparents denied that mother had any mental health 

issues.

 

1 All future undesignated statutory references are to the Welfare and Institutions 

Code. Section 361.2, subdivision (a) is hereafter referred to as section 361.2(a).
3

S.’s absence from school for 50 days prompted another referral in May 2013, 

which resulted in mother agreeing to a voluntary maintenance plan in July 2013. C.M.

continued to have regular contact with father and his wife (stepmother), including 

frequent telephone calls and unmonitored overnight visits for Thanksgiving and 

Christmas, which C.M. said she enjoyed. C.M.’s therapist encouraged these contacts. 

On January 9, 2014, mother was arrested following an incident in which she 

pushed maternal grandmother to the ground causing her to lose consciousness; mother 

next threw a vase at a cousin; the vase hit that cousin’s mother (maternal aunt) causing 

injuries which required surgery to repair severed tendons. DCFS did not learn about the 

incident until two weeks later, after a family maintenance worker was unable to make 

contact with mother. When asked about what happened, maternal grandmother was 

evasive. Various family members gave different versions of what occurred. C.M. denied 

she was present during the altercation. 

DCFS filed a petition which alleged the children were persons described by 

section 300, subdivisions (a) and (b) as the result of the January 9 altercation which C.M.

witnessed (paragraphs a-1 and b-1). There were no allegations against father. Following 

a Team Decision Meeting on January 30, it was agreed that the children would be 

detained from mother (who was still incarcerated) and temporarily placed with maternal 

grandparents, notwithstanding DCFS’s concerns that the maternal grandparents were in 

denial about mother’s problems.

2

According to the detention report, a “teary-eyed” C.M. told the social worker that 

she was not home when the altercation occurred, but was home by the time mother was 

being taken to jail. C.M. said, “Now that she’s in jail, hopefully she can get the help she 

needs. I don’t know how to explain this. But my mom can get very nervous. Sometimes 

she’ll pull out her hair. There’s a bunch of hair in a shoe box under her bed. Or when 

she takes me and [S.] to the mall, she’ll start picking her face . . . .” When told of the 

altercation, father said: “I knew something like this would happen. That’s why when I 

 

2 Father was not present at the meeting because he had to work, but stepmother was 

there. 
4

go over there to pick up [C.M.], I don’t want any dealing with [mother]. She needs a lot 

of help. I’ve wanted custody of [C.M.] for a long time.” Father said he and stepmother 

were also willing to have S. live with them. Father had noticed a recent negative change 

in C.M.’s attitude, which he attributed to the influence of the maternal relatives. 

Father appeared at the detention hearing on February 4, 2014, and requested that 

C.M. be released to him. C.M. wanted to continue living with maternal grandparents, but 

was not opposed to overnight visits with father. DCFS opposed releasing C.M. to father. 

Observing that DCFS’s report focused on mother, the juvenile court concluded that it did 

not have enough information about father to give him custody of C.M. It vested 

temporary custody and placement of the children in DCFS, pending further orders. 

Father was given reasonable unmonitored visits with C.M. and DCFS was given 

discretion to allow father overnight visits with C.M.’s consent. The matter was continued 

to March 21, 2014, for adjudication and disposition. 

On March 3, 2014, the children’s counsel filed a Walk On Request seeking an 

order that C.M. “not be released to father without court hearing with full report from 

DCFS and notice to parties in advance.” The request states that C.M. “is terrified of 

being released to her father . . . (‘nonoffending’ under the petition). [C.M.] informed the 

court at the detention hearing on 2-4-14, that her father ‘missed 11 years’ of her life. 

There is no order for CSW discretion to release, but CSW is to evaluate placement with 

[father.]” The juvenile granted the request and ordered: “[C.M.] is not to be released to 

father without prior court order, and a full report is to be filed to the court in advance.” 

According to the Jurisdiction/Disposition Report, the maternal grandparents 

continued to deny that mother pushed maternal grandmother on January 9th. They did 

not “acknowledge their daughter has mental health issues and how they impact the 

children’s well being.” The social worker had been unable to make contact with father. 

C.M. wanted unmonitored bi-monthly weekend visits with father, but did not want to live 

with him: “I don’t want to live at a new home, I have never lived with him before and I 

don’t want to change schools. I have only lived here [with maternal grandparents] and 

my grandma has always taken good care of me.” Noting that both fathers were 
5

nonoffending, the report states: “[T]the fact remains there have been issues of domestic 

violence in the past between mother and each father. [C.M.’s father] has been reported to 

be an alcoholic and in fact has been arrested on 2 occasions for inflicting corporal injury 

on spouse.[

3

] . . . Furthermore, while the father has an ‘odd’ work schedule and travels 

for days at a time, if [C.M.] was released to him, [she] would hardly spend time with 

[him].” The report concludes: “releasing the children to their respective fathers would 

create more emotional harm to the children and the siblings would be separated. 

Furthermore, the children have never lived in a different home and have been raised 

primarily by the maternal grandparents. Therefore, it is respectfully recommended that 

the children remain placed with the maternal grandparents since it is not in their best 

interest to be released to their respective fathers. It is recommended the fathers have 

unmonitored overnight visits with their children and that a visitation schedule be made in 

order not to interfere with the children’s school and weekend extra-curricular activities.” 

At the March 21, 2014 hearing, father submitted on the petition, which included 

no allegations against him. The children’s counsel stated: “[The children] indicate in the 

jurisdiction report that they denied ever seeing their mother use drugs, act bizarre, and 

they do not know about the incidents that occurred resulting in the police report that the 

court has before it [of the January 9 altercation]. [¶] My clients are supportive of the 

mom, find themselves in a very difficult position today and would prefer that I do not 

argue anything against the mother. So at this point I am going to submit to the court and 

ask the court to carefully review all of the evidence. . . .” The juvenile court sustained the 

section 300 petition. 

Following adjudication, the juvenile court proceeded immediately to disposition. 

C.M. remained “adamant that she does not wish to reside with her father. She is beyond 

uncomfortable.” Even so, father wanted custody of C.M. Father “has attempted 

throughout [C.M.]’s life to see her and to be a part of her life but has been prevented from 

doing so by mother and also by maternal grandmother. [¶] . . . Father’s main concern for 

 

3 Father had a 1994 conviction for a domestic violence-related offense and a 

misdemeanor domestic violence arrest which was dismissed.
6

[C.M.] remaining with maternal grandmother is that she will continue to act to protect 

mother and not protect the children.” Although no one at the hearing referred specifically 

to section 361.2(a), father argued that C.M.’s reluctance to change schools and leave the 

maternal grandmother’s home did not “rise to the level of clear and convincing evidence 

required or for the court to make a finding of detriment . . . .” If the juvenile court was 

not inclined to give father immediate custody of C.M., the alternative father requested 

was a “home of parent – father” order, conditioned on C.M. remaining in the maternal 

grandparents’ home. Father expressed concern that, if C.M. remained suitably placed 

with maternal grandparents and mother failed to reunify, father would be disadvantaged 

at any future permanent placement plan hearing. 

The juvenile court found it would be detrimental to place C.M. with father, in a 

home in which she had never lived. The court explained: “I don’t think [C.M.] is 

comfortable with her father because he’s not been in her life for whatever reason. The 

reason doesn’t matter. But the more time she spends with him, the more acclimated she 

gets, the more comfortable she gets, the more time that she will want to spend with her 

father is my belief, and the court is going to make a visitation schedule to allow that to 

happen. [¶] . . . [T]o just move her from everything she has ever known is not going to 

work, and it is going to detrimentally impact the child. So I am not prepared to do that.” 

The juvenile court did not state that it was making the detriment finding under 

section 361.2(a), or under the clear and convincing standard required by that statute, nor 

does the minute order so state. The juvenile court took custody of both children from 

mother and both fathers and placed them with DCFS for suitable placement. Father was 

given unmonitored visits with C.M., including overnight and weekends; DCFS was given 

discretion to liberalize those visits. Father was not ordered to participate in any services. 

Father timely appealed.

DISCUSSION

Father’s challenge to the disposition order is two-fold: (1) the detriment finding 

was not expressly made pursuant to section 361.2(a) or under the clear and convincing 
7

standard; and (2) there was insufficient evidence of detriment. We begin with a brief 

discussion of the governing statute, section 361.2(a). We next turn to the sufficiency of 

the evidence to support the juvenile court’s finding of detriment. Finding insufficient

evidence to support the detriment finding, we reverse the dispositional order and remand 

for a new dispositional hearing. 

A. Section 361.2(a)

“ ‘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.]” (In re Abram L. (2013) 219 Cal.App.4th 452, 460-461 (Abram L.).) A 

nonoffending parent has a constitutionally protected interest in assuming physical 

custody of his or her dependent child which may not be disturbed “in the absence of clear 

and convincing evidence that the parent’s choices will be ‘detrimental to the safety, 

protection, or physical or emotional well-being of the child’ ” (Ibid.)

The rights of a noncustodial and nonoffending parent to custody of a dependent 

child are governed by section 361.2(a), which provides:

“When a court orders removal of a child pursuant to Section 361, the 

court shall first determine whether there is a parent of the child, with whom 

the child was not residing at the time that the events or conditions arose that 

brought the child within the provisions of Section 300, who desires 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.” (Italics added.)

The statute “evinces the legislative preference for placement with the noncustodial parent 

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

(Patrick S.).) It requires placement with a noncustodial, nonoffending parent who 

requests custody “unless the placement would be detrimental to the child.” (In re 

Luke M. (2003) 107 Cal.App.4th 1412, 1422 (Luke M.).) 
8

To comport with due process, the detriment finding must be made under the clear 

and convincing evidence standard. (Abram L., supra, 219 Cal.App.4th at p. 461; 

Patrick S., supra, 218 Cal.App.4th at p. 1262; In re John M. (2006) 141 Cal.App.4th 

1564, 1569 (John M.); In re Marquis D. (1995) 38 Cal.App.4th 1813, 1828-1829

(Marquis D.).) Clear and convincing evidence requires “a high degree of probability, 

such that the evidence is so clear as to leave no substantial doubt. [Citation.]” (Patrick 

S., at p. 262; Luke M., supra, 107 Cal.App.4th at p. 1426.) The court in Marquis D., 

supra, explained the higher standard of proof as follows:

“[T]he trial court’s decision at the dispositional stage is critical to all 

further proceedings. Should the court fail to place the child with the 

noncustodial parent, the stage is set for the court to ultimately terminate 

parental rights. At all later review hearings, the court may deny return of 

the child to the parent’s physical custody based on a finding supported only 

by a preponderance of the evidence that return would create a substantial 

risk of detriment to the child’s physical or emotional well-being. 

(§§ 366.21, subds. (e) & (f), 366.22, subd. (a).) [¶] If a preponderance of 

the evidence standard of proof is applied to deny initial placement with the 

noncustodial parent, that parent may have his or her parental rights 

terminated without the question of possible detriment engendered by that 

parent ever being subjected to a heightened level of scrutiny. Moreover, 

applying a clear and convincing standard of proof to remove custody from 

the custodial parent while denying placement with the noncustodial parent 

based on a preponderance of the evidence would lead to the anomalous 

result that a parent who had no connection with the circumstances that 

brought the child within the jurisdiction of the court could have his or her 

rights terminated upon a lesser showing than the parent who created those 

circumstances.” (Marquis, D., supra, 38 Cal.App.4th at p. 1829.)

The nonoffending parent does not have to prove lack of detriment. Rather, the 

party opposing placement with a nonoffending parent has the burden to show by clear 

and convincing evidence that the child will be harmed if the nonoffending parent is given 

custody. (In re Jonathan P. (2014) 226 Cal.App.4th 1240, 1256.) 
9

B. There Was Insufficient Evidence that Placement With Father Would be 

Detrimental to C.M.’s Physical or Emotional Well-Being

Father contends the disposition order is not supported by substantial evidence that 

placing C.M. with him would be detrimental to her safety, protection or physical or 

emotional well-being. DCFS (joined by C.M.) counters that the following evidence was 

sufficient to support a finding of detriment under the clear and convincing evidence 

standard: C.M. wanted to remain with maternal grandparents; she wanted to visit but did 

not want to live with father; she did not want to be separated from S. or change schools; 

father worked long hours and was often away from home, as a result of which C.M.

would often be in the care of her stepmother; although he was nonoffending, father had a 

history of alcohol abuse (as reported by mother) and domestic violence (one 1994 

conviction and a dismissed misdemeanor arrest). Viewing the evidence under the 

substantial evidence standard of review (John M., 141 Cal.App.4th at pp. 1569-1570;

Patrick S., supra, 218 Cal.App.4th at p. 262), we conclude the order was not supported 

by substantial evidence of detriment.

While the child’s wishes, sibling bonds and the child’s relationship with the 

noncustodial parent may be considered by the juvenile court in determining whether 

placement of a dependent child with a noncustodial, nonoffending parent would be 

detrimental to the child’s physical or emotional well-being, none of these factors is 

determinative. (Abram L., supra, 219 Cal.App.4th at pp. 460-461 [wishes of 14- and 15-

year-old brothers and alleged lack of relationship between children and noncustodial 

parent not sufficient]; John M., supra, 141 Cal.App.4th at p. 1570 [14-year-old child’s 

wishes not sufficient]; In re Isayah C. (2004) 118 Cal.App.4th 684, 700 [sibling 

relationships not sufficient]; but see Luke M., supra, 107 Cal.App.4th at pp. 1425-1426 

[wishes of 10 and eight-year-old and unusual bond with half siblings sufficient to support 

detriment finding].) Expert opinion is helpful, but not essential. (Luke M., at p. 1427.)

For example, in John M., supra, 141 Cal.App.4th 1564, John (13 years old) and 

his 10-month-old half sister, were detained and placed with the maternal grandmother 

after the mother physically abused John. John’s father, who lived in Tennessee, wanted 
10

custody of John, with whom he had been in telephone contact for a year after a four-year 

hiatus; John wanted to live with a maternal aunt. The juvenile court declined to place 

John with the father because there had been little contact between them, John did not 

want to move to Tennessee, the father’s out-of-state location made him “an unknown 

entity,” there was a reunification plan for the mother, and services would be necessary to 

ensure John’s safety and the success of a placement with father. The appellate court 

reversed, finding these factors were not sufficient to support a finding of detriment under 

section 361.2(a). (Id. at pp. 1570-1571.)

In Patrick S., supra, 218 Cal.App.4th at page 1262, the court stated that John M. 

“stands for the principle that where a child has a fit parent who is willing to assume 

custody, there is no need for state involvement unless placement with that parent would 

create a substantial risk of detriment to the child. (§ 361.2, subd. (a).) When the parent is 

competent, the standard of detriment is very high. [Citation.]” In Patrick S., the juvenile 

court’s finding that placement of the 13-year-old child with his father in Washington 

State would create a substantial risk of detriment was based on “the totality of 

circumstances, including [the child’s] wishes, anxiety about moving to his father’s home, 

need for continued therapeutic services, the lack of an established relationship with his 

father and stepmother, father’s scheduled [military] deployments and his plan to home 

school [the child], and the lack of available child welfare services in father’s home state.” 

The Patrick S. court found these factors did not constitute substantial evidence of 

detriment. (Ibid.) Regarding the long military deployments, the court found no detriment 

because the stepmother was available to care for the child. (Ibid.) 

Under John M. and Patrick S., neither C.M.’s understandable wish to remain with 

the maternal grandparents in the only home she had ever known, nor the alleged lack of 

an established relationship with father, were sufficient to constitute substantial evidence 

of the high level of detriment required under section 361.2(a). Likewise, the bond 

between C.M. and S., and the fact that C.M. would be in stepmother’s care much of the 

time because of father’s work schedule, were equally insufficient.
11

Father’s 1994 conviction for domestic violence and mother’s unsubstantiated 

claim that father abused alcohol do not change our analysis, especially since neither 

formed the basis of jurisdiction. (Abram L., supra, 219 Cal.App.4th at p. 464 [finding of 

detriment was not supported by allegations of father’s unresolved alcohol problem and 

history of substance abuse where the juvenile court dismissed those allegations from the 

petition and there was no evidence the father used illicit drugs or drank an inappropriate 

amount of alcohol at any time after the dependency proceedings commenced].) Not only 

did the petition in this case not include any allegations of substance abuse or domestic 

violence against father, there was no evidence of any recent, much less current, domestic 

violence by father, and mother’s mental health issues made her a questionable reporter on 

the issue of father’s alcohol use.

DCFS’s reliance on Luke M., supra, 107 Cal.App.4th 1412, for a contrary result is 

misplaced. In that case, a noncustodial, nonoffending father challenged the order placing 

his 10-year-old and eight-year-old children with maternal relatives, rather than with him 

in Ohio. The appellate court affirmed the order based on a finding that moving the 

children to Ohio would be detrimental to their well-being because of the unusually strong 

bond they had with their half siblings. (Id. at pp. 1418-1419.) The appellate court found 

substantial evidence that moving to Ohio would have a devastating emotional impact on 

the children, including the emotional testimony of one of the children. (Id. at pp. 1426-

1428.) Here, the evidence of detriment from separating C.M. and S. was nowhere near as 

strong as that in Luke M. First, C.M. was not being moved half way across the country, 

as were the children in Luke M. Second, there was no evidence that the bond between 

C.M. and S. was any greater than the normal sibling bond, in contrast to Luke M. where 

the relationship among the siblings “was much closer than in normal sibling 

relationships.” (Id. at p. 1427.) Finally we observe that father offered to have S. live in 

his home, and there was nothing to suggest he would not foster an ongoing relationship 

between siblings.

In light of our conclusion that there was insufficient evidence of detriment to 

support the order placing C.M. with maternal grandmother rather than father, we need not 
12

consider father’s second contention, that the juvenile court prejudicially erred by not 

expressly stating that it was making the detriment finding under the clear and convincing 

standard set forth in section 361.2.

Our conclusion that the March 21, 2014 disposition order was not supported by 

substantial evidence is based on the facts extant on the day of the hearing, which we have 

determined from the record on appeal. At the dispositional hearing following our 

remand, the juvenile court may, of course, take into account circumstances and events 

that have taken place subsequent to the March 21 hearing.

DISPOSITION

The detriment finding is reversed and the matter is remanded to the juvenile court 

with directions to hold a new dispositional hearing on the issue of placement of C.M.

with father under section 361.2(a). On remand, the court may consider new evidence or 

changed circumstances that may have occurred during the pendency of this appeal. In all 

other respects, the jurisdictional and dispositional findings and orders are affirmed.

RUBIN, J.

WE CONCUR:

BIGELOW, P. J.

FLIER, J.