Filed 12/6/23 In re Samantha H. CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re SAMANTHA H., a Person 

Coming Under the Juvenile 

Court Law.

 B324288

 (Los Angeles County

 Super. Ct. No. 22CCJP03221)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

SANDRA O. et al.,

Defendants and 

Appellants.

APPEAL from an order of the Superior Court of Los 

Angeles County, Pete R. Navarro, Juvenile Court Referee. 

Affirmed.

Leslie A. Barry, under appointment by the Court of Appeal, 

for Defendant and Appellant Sandra O.
2

Joseph T. Tavano, under appointment by the Court of 

Appeal, for Defendant and Appellant Danny H.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Avedis Koutoujian, Deputy 

County Counsel, for Plaintiff and Respondent.

* * * * * *

Sandra O. (mother) and Danny H. (father) separately 

appeal from a dispositional order entered under Welfare and 

Institutions Code section 300 on behalf of their daughter, 17-

year-old Samantha H. (born August 2006).1 Mother, who resides 

in Argentina, contends that the juvenile court erred in denying 

mother’s request for custody of Samantha. Father joins in 

mother’s arguments. We find no error and affirm the order.

COMBINED FACTUAL AND PROCEDURAL 

BACKGROUND

Initial referral and investigation

The Los Angeles County Department of Children and 

Family Services (DCFS) received a referral in July 2022 alleging 

father physically abused Samantha and that her older brother, 

Matthew H. (born November 2004), was at risk. The reporting 

party claimed father looked through Samantha’s phone and 

found pictures of her smoking with friends and performing sexual 

acts. Father tried to get a confession from Samantha, as father

believed she was not being honest, which led to an argument. 

1 All further statutory references are to the Welfare and 

Institutions Code.
3

Father hit Samantha with an open hand causing a visible injury. 

Samantha’s brother was not present during the incident as he 

was reported to be staying with the paternal grandmother 

(PGM).

The DCFS social worker had telephonic contact with PGM 

on July 26, 2022. Samantha too was staying with PGM. PGM 

stated father was “very violent” and has physically hit Matthew 

in the past. PGM reported both children were scared of father. 

PGM had observed marks and bruises on Samantha in the past 

and was concerned Samantha would be physically abused if she 

returned to father’s home. PGM stated father physically abuses 

the children to the point of bruising and then keeps them home 

until the bruising subsides. Samantha had disclosed to PGM 

that she found a bag of marijuana in father’s home. The social 

worker suggested the children meet her at the DCFS office so the 

children could be interviewed. PGM agreed.

PGM reported that the children barely remembered their 

mother. The parents were divorced, and father had sole legal and 

physical custody of the children.

The social worker spoke with father by telephone on 

July 26, 2022. Father said he found videos of Samantha doing 

explicit acts and drugs. Father confiscated Samantha’s phone 

and changed all the passwords to her social media and e-mail. 

Father reported the behavior to the other children’s parents. 

Father said Samantha asked to go to PGM’s home and he 

consented. Father wanted to be present during Samantha’s 

interview so he could show her the videos he found. Father 

wanted to teach Samantha a lesson and preferred she go to foster 

care rather than PGM’s home.
4

On July 27, 2022, the social worker met with Samantha in 

person at the DCFS office. Samantha informed the social worker 

that she did not want to see father because she was afraid of him. 

Samantha believed if she were to go home, father would hit her. 

Samantha had not disclosed past abuse because father told her 

not to say anything. Samantha felt safe with PGM and wanted to 

stay in PGM’s home.

Samantha said father found pictures of her friends using 

inappropriate substances. Samantha denied using such 

substances. Her mother used in the past, and Samantha did not 

want to end up like her. Samantha disclosed that father uses 

marijuana, and she recently found a bag of marijuana in the 

home. Samantha denied sexual abuse and denied having explicit 

videos on her phone. She stated there was one picture of her with 

her head on her boyfriend’s shoulder, and when father saw the 

picture he called her a whore, a slut, and a prostitute. Father 

slapped Samantha on the face approximately three times. She 

had a cut on her inner lip and a bruise under her left eye for 

about three days. Father put her in a choke hold and started 

pulling her hair while she yelled for him to stop. Samantha did 

not know who called the police, but they took an injury report 

and pictures of her bruise. Samantha confirmed that Matthew 

was not home during the incident as he was staying with PGM. 

Samantha said she never wants to return to father’s home.

The social worker interviewed father in person with mother 

present on Facetime. The social worker informed father that 

interviews were normally done privately but father insisted 

mother be present via Facetime. Father stated when he 

confronted Samantha with the videos and photos, she started 

insulting him, hit him, and pushed him away. Father lifted his 
5

shirt and pointed to two marks on his stomach. Father admitted 

to slapping the child with an open hand on the left side of her 

face. He did not know if she sustained bruising because her hair 

was covering her face. Father was of the opinion that Samantha 

was not safe with PGM because PGM would take Samantha to 

the homes of friends he does not know.

DCFS had received multiple prior referrals alleging 

physical abuse by father over several years. The children and 

PGM would recant or minimize the abuse once interviewed by 

DCFS. In 2012, mother and father engaged in mutual violence. 

In 2011, mother was hospitalized on a section 5150 hold when 

she believed there were people watching her in her home. 

Mother reported running out of the home after being scared the 

people in her home were coming after her. Mother was diagnosed 

with schizophrenia, depression, and psychosis. Both PGM and 

Samantha reported that mother did not follow through with her 

prescriptions. 

Petition and initial detention

On August 15, 2022, DCFS obtained a removal order 

authorizing detention of Samantha from father’s custody.2 On 

August 17, 2022, DCFS filed a petition on behalf of Samantha 

pursuant to section 300, subdivisions (a) and (b). The petition 

alleged that father physically abused Samantha and created a 

dangerous home environment by keeping accessible marijuana in 

the home.

When DCFS filed the petition, mother’s whereabouts were 

unknown. Mother was not named in the petition. Mother 

2 A removal order was not requested for Matthew because he 

refused to be involved in the investigation and was going to 

Argentina to be with mother. 
6

appeared telephonically from Argentina at the detention hearing 

with the assistance of an interpreter. At the detention hearing, 

mother did not request Samantha be released to her custody. 

Instead, she requested telephone visits and video visits.

Subsequent reports

In a last minute information for the court filed on 

August 18, 2022, DCFS reported that Samantha had provided a 

video in which Samantha was crying and telling father that she 

will never forget witnessing father beat Matthew and make his 

nose bleed, pull his hair, and punch him. Father stated, “You 

better not forget that because some day it can totally happen to 

you.” Father threatened to take Samantha to Las Vegas and do 

the same thing to her because it was “totally legal” to beat her up 

there. Matthew reported he did not remember the details of the 

incident because it happened so fast. Father denied hitting or 

punching Matthew. Samantha said Matthew was unlikely to 

disclose abuse because Matthew does not really talk, and father 

was sending Matthew to Argentina. PGM told the social worker

she overheard father talking to mother on speakerphone and 

mother said the best way for Samantha to learn her lesson would 

be to send her to Argentina.

When the social worker interviewed father, she found 

father continuously tried to intimidate her, stating he owned a 

photo journalist investigative company and knew people of 

influence. Father claimed he contacted the FBI and other 

agencies to investigate DCFS and its social workers. Father 

reiterated that he saw a video on Samantha’s phone of her 

engaging in sexual activity and admitted his reaction was to slap 

her. He denied seeing a bruise, stating that Samantha went with 

him to T.V. sets and knew how to create fake bruises and marks.
7

An anonymous witness reported Samantha told the witness 

that father would hit Samantha. Two of Samantha’s friends had 

received phone calls from father telling them to stay away from 

her. Samantha sent a picture of herself with a raised mark on 

her face and shared a video of father in which he told Samantha 

he was going to “kick her ass” like Matthew.

In a conversation with mother in September 2022, mother 

reported to a social worker that Samantha had visited her two 

years earlier and they are close despite the distance. Mother 

described Samantha as “very aggressive.” Mother said she had a 

good relationship with father, and father keeps her informed of 

everything going on with the children. Father called her after 

the incident with Samantha and said he defended himself against 

Samantha. Mother denied ever hearing of father hitting 

Samantha prior to this incident. Father admitted to mother that 

he hit Matthew in Las Vegas. Mother said father is a good 

father; if he has been strict with Samantha, it is because of the 

things Samantha is doing. Mother acknowledged that father 

uses marijuana, but denied knowing the frequency.

As to her mental health, mother denied use of alcohol or 

drugs. She admitted there was a time when she was very 

depressed due to her divorce and losing her children. Mother 

reported she is currently stable and no longer suffers from 

depression. Mother has been taking anti-depressants for about 

10 years. Mother acknowledged that in the United States she 

was diagnosed with schizophrenia, but in Argentina she was 

diagnosed with depression.

Jurisdiction/disposition

The combined jurisdiction and disposition hearing took 

place on September 29, 2022. Father testified. He referred to 
8

mother as his “best friend.” He claimed the accusations in the 

petition were all false. Father explained that his form of 

discipline involved withholding privileges and spanking on the 

butt. He testified that during the recent situation, Samantha 

assaulted him, and he reflexively slapped her on the neck. 

Father clarified that he did not hit her on the face. Father 

testified that mother supported his form of discipline “100 

percent.” Father admitted he wanted to send Samantha to 

Argentina so she could “learn[] [a] lesson.”

Father’s counsel argued that the juvenile court should 

dismiss the allegation of physical abuse because father only hit 

Samantha one time and denied physically abusing her 

previously. He argued heightened punishment was necessary 

due to Samantha’s disrespect and the inappropriate content on 

her phone. Mother’s counsel did not oppose father’s position. 

Mother’s counsel added that mother believed father had been a 

good parent to Samantha and did his best with the difficulties he 

faced with her. Regarding disposition, mother’s counsel 

requested that Samantha be released to home of mother, as 

mother was nonoffending.

Counsel for Samantha argued that the court should sustain 

the physical abuse allegation due to the abundance of evidence 

before the court that father had been physically abusing 

Samantha and Matthew for years, father’s attempts to intimidate 

the social worker, and his clear coaching of mother in the 

presence of social workers.

The court declared Samantha a dependent of the court 

under section 300. It found by clear and convincing evidence that 

there would be a “substantial danger” to Samantha’s “physical 

health, safety, protection, or physical and emotional well-being” if 
9

returned home, and there were no reasonable means to protect 

her without removal from the parent’s custody. Reasonable 

efforts to prevent removal were made. The court ordered the care 

and custody of Samantha to be placed with DCFS.

Following the court’s placement order, DCFS requested the 

court make a “detriment finding against allowing the child to be 

released to mother.” The court responded, “I made a suitable 

placement order.” The court explained, “The court declines to 

place the child with the mom. That is almost like placing the 

child back in the home of the father.”

In its written order, the court wrote:

“The court finds by clear and convincing evidence, pursuant 

to Welfare and Institutions Code sections 361(a)(1), 361(c), 361(d) 

and 362(a), and additionally applying to noncustodial 

parent(s)/legal guardian(s) the constitutional and statutory 

safeguards available to custodial parents.

“It is reasonable and necessary to remove the child from the 

parents, as such removal is defined in 45 CFR 1356.21(k)(1)(ii), 

and the care, custody, and control of the parent(s)/legal 

guardian(s) from whom the child is are [sic] being removed 

because there is a substantial danger to the physical health, 

safety, protection, or physical or emotional well-being, and special 

needs, if applicable, of the child, and there are no reasonable 

means by which the child’s physical health can be protected, 

without removing the child from the home and the care, custody, 

and control of that or those parent(s)/legal guardian(s).

“The Court further finds that it would be detrimental to the 

safety, protection, or physical or emotional well-being, and special 

needs, if applicable, of the child to be returned to or placed in the 
10

home or the care, custody, and control of that or those 

parent(s)/legal guardian(s).” (Boldface omitted.) 

On September 30, 2022, the court called the parties to court 

because it reconsidered its no-visit order as to father, and instead 

allowed father to visit Samantha in a therapeutic setting.

DISCUSSION

I. Applicable law and standard of review

Mother argues the juvenile court erred as a matter of law 

in failing to apply section 361.2 in connection with mother’s 

request that Samantha be placed in her custody. Mother seeks 

remand with directions to the juvenile court.

When a child is adjudged a dependent of the court on the 

ground that he or she is a child described by section 300, the 

juvenile court is authorized to limit the control over the child by 

any parent or guardian. (§ 361, subd. (a)(1).)

Section 361, subdivision (c) permits the juvenile court to 

remove physical custody of the child from the parent “with whom 

the child resides at the time the petition was initiated” where it 

finds by clear and convincing evidence that there is a substantial 

danger to the physical health, safety, protection, or emotional 

well-being of the child or would be if the child were returned 

home, and there are no reasonable means to protect the child 

without removal from the parent’s physical custody.

Section 361, subdivision (d) requires that the dependent 

child “shall not” be taken from the physical custody of a parent 

with whom the child “did not reside” at the time the petition was 

initiated, unless the juvenile court finds clear and convincing 

evidence of substantial danger to the physical health, safety, 

protection, or emotional well-being of the child if the child were to 
11

live with that parent, and there are no reasonable means to 

protect the child without removal from that parent’s physical 

custody.

Section 361.2, subdivision (a) applies when “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 such a noncustodial parent requests 

custody, the juvenile 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.” (Ibid.)

Because mother contends that the juvenile court applied 

the wrong statute, we review her contention as a matter of law. 

“When the issue on appeal involves the interpretation and proper 

application of the dependency statutes, . . . our review is de novo.” 

(In re Anthony Q. (2016) 5 Cal.App.5th 336, 344.)

II. Forfeiture

We first address the issue of forfeiture. Mother contends 

on appeal that the juvenile court failed to apply section 361.2. 

However, mother provides no citation to the record showing that 

she requested the juvenile court to apply this statute.

Section 361.2 applies where there is a noncustodial parent 

who “desires to assume custody of the child.” At no time prior to 

the jurisdiction/disposition hearing did mother make it known 

that she desired to assume custody of Samantha. Therefore, the 

statute was inapplicable throughout the preliminary 

investigation and decisionmaking regarding Samantha’s 

placement.
12

During oral argument at the jurisdiction/disposition 

hearing, mother’s attorney addressed “additional information 

today with mother’s statement.” Among other things, it was 

“further apparent that the mother is asking that the child live in 

Argentina with her. So at this point for the mother, I would ask 

that the child be released to home of mother.” Mother’s counsel 

made no mention of section 361.2 and did not ask the juvenile 

court to make an analysis under this statute. Nor did mother’s 

counsel request a continuance for the parties to explore the 

possibility of placement with mother or the issue of detriment. 

Mother’s counsel did not object to or seek clarification regarding 

the court’s reasoning for declining to place Samantha with 

mother. By never having requested the juvenile court make a 

finding under section 361.2, mother has forfeited the issue. (See, 

e.g., In re E.A. (2012) 209 Cal.App.4th 787, 791 [finding failure to 

request a detriment finding forfeits the issue on appeal because 

the “alleged defect . . . could have been easily cured, if raised in a 

timely fashion”].)

Mother argues that because she raises an issue of law, the 

forfeiture rule is inapplicable. Mother cites Ward v. Taggart 

(1959) 51 Cal.2d 736, 742 (Ward), which held that “a change in 

theory is permitted on appeal when ‘a question of law only is 

presented on the facts appearing in the record. . . .’” Ward 

permits, but does not require, consideration of a new theory on 

appeal where the theory advanced on appeal “does not 

contemplate any factual situation different from that established 

by the evidence in the trial court.” (Ibid.; see In re V.F. (2007) 

157 Cal.App.4th 962, 968 [“A question of law is not automatically 

subject to the doctrine of forfeiture.”], superseded by statute as 

stated in In re Isabella G. (2016) 246 Cal.App.4th 708, 724) 
13

While these authorities allow this court to consider issues of law 

raised for the first time on appeal, we decline to do so here. 

Mother’s last minute request for custody, without further factual 

or legal development and without a request for continuance to 

further address the issue, was insufficient to avoid forfeiture in 

this case.3

III. Harmless error

Because mother failed to timely alert the court that she 

desired custody and failed to direct the court’s attention to 

section 361.2, she forfeited the issue of whether the court should 

have applied the statute. However, we note that even if mother 

had raised the issue, the juvenile court made findings that 

placement with mother would be detrimental to Samantha. 

Thus, any error is harmless.

The court made it clear that placing the child in the home 

of mother would be detrimental. The court explained that there 

was “clear and convincing evidence there is substantial danger if 

3 Mother points out that it was DCFS’s burden to prove that 

placement with mother would be detrimental to Samantha. 

Mother cites In re Brian P. (2002) 99 Cal.App.4th 616, 623, as 

support for her position that even if the issue was not a question 

of law and was a substantial evidence argument, the issue would 

still not be forfeited because DCFS bore the burden of proving 

that placement with mother would be detrimental to Samantha. 

By failing to raise the issue until the disposition hearing, mother 

deprived DCFS of an opportunity to formally address the issue of 

detriment. Nevertheless, as the record shows, the juvenile court 

found that there was sufficient evidence in the record to prove 

that it would be detrimental to Samantha to be placed with 

mother. Since mother has not raised a sufficiency of the evidence 

challenge, we decline to address this point further.
14

she were to be returned home to her physical health, safety, 

protection, or physical and emotional well-being.” In making this 

finding, the juvenile court did not differentiate between 

Samantha returning to father’s home or to mother’s home, 

commenting that placing the child with mother “is almost like 

placing the child back in the home of the father.” In making this 

comparison, the juvenile court was justifiably relying on the 

testimony of father that he and mother were best friends, as well 

as mother’s repeated admissions that she approved of father’s 

form of discipline and felt that he was a good father even while 

acknowledging that she was aware father hit both Samantha and 

Matthew. Given mother’s alliance with father and agreement as 

to his means of discipline, the juvenile court acted reasonably in 

treating the two homes as similarly detrimental to Samantha’s 

well-being.

In its written order, the juvenile court also did not 

differentiate between the two homes, noting that it was necessary 

to remove Samantha from the “parents” and that “it would be 

detrimental to the safety, protection, or physical or emotional 

well-being . . . of the child to be returned to or placed in the home 

or the care, custody, and control of that or those parent(s) . . . .”

Even if, as mother argues, the juvenile court erred in 

relying on section 361, subdivision (d) instead of section 361.2, 

subdivision (a), mother has failed to demonstrate how such error 

has prejudiced her. We cannot reverse a judgment unless the 

error was prejudicial, meaning “‘“‘it is reasonably probable that a 

result more favorable to the appealing party would have been 

reached in the absence of the error.’”’” (In re D’Anthony D. (2014) 

230 Cal.App.4th 292, 303.) In light of the juvenile court’s finding 

that it would be detrimental to Samantha if placed in mother’s 
15

custody, and that placing Samantha in mother’s custody would 

subject her to the same harm as if placed in father’s custody, we 

conclude that any error with respect to application of the wrong 

statute did not result in a miscarriage of justice. (Id. at pp. 303-

304 [concluding the juvenile court’s application of § 361 instead of 

§ 361.2 to a noncustodial parent was harmless error].)

In re V.F., supra, 157 Cal.App.4th 962, 968, is 

distinguishable. In V.F., an incarcerated father argued on appeal 

that the juvenile court erred when it removed the children from 

his custody under section 361, subdivision (c). He argued that 

because jurisdiction was based solely on the conduct of the 

children’s mother, he should have been treated as a nonoffending 

parent and allowed to retain custody of the children under 

section 361, subdivision (c)(1). (V.F., at pp. 967-968.) 

Significantly, there was no detriment finding in the record, 

although the V.F. court acknowledged that the record arguably 

would support a finding that placement with the father would be 

detrimental to the children. (Id. at p. 973.) The court declined to 

make an implied finding of detriment, instead holding that the 

juvenile court was required to make a finding of detriment “‘in 

writing or on the record.’” (Ibid.) In contrast, the juvenile court 

in this case made both oral and written findings of detriment to 

the child if placed with mother. While the court never cited 

section 361.2, we need not speculate as to the juvenile court’s 

position on whether placement with mother would be detrimental 

to Samantha. The court was clear that it would be. Thus, V.F. 

does not convince us that forfeiture is not warranted in this case.

Mother also cites In re Adam H. (2019) 43 Cal.App.5th 27, 

32-33, as support for her position that the error in this case was 

not harmless. In Adam H., like in In re V.F., the appellate court 
16

declined to imply a finding that placement with the child with 

father would be detrimental to the child where no such finding 

was made on the record. The court explained, “minor was doing 

very well under the care of father during unmonitored visits. In 

addition, there was evidence father was receptive to services and 

cooperative with the Department. The only concern cited at the 

disposition hearing was that Adam did not yet know father very 

well.” (Adam H., at p. 33.) Under those circumstances, the court 

declined to imply a finding of detriment. As set forth above, we 

need not make an implied finding in this case. The juvenile court 

stated both orally and in writing its finding that placement of 

Samantha with mother would be detrimental to the child.

Any error of the juvenile court in failing to specifically 

reference section 361.2 was harmless.

DISPOSITION

The dispositional order denying mother custody is affirmed.

___________________________

CHAVEZ, J.

We concur:

_______________________________

ASHMANN-GERST, Acting P. J.

_______________________________

HOFFSTADT, J.