Filed 1/22/21 In re Camila M. CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re Camila M., a Person

Coming Under the Juvenile 

Court Law.

 B307092

 

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

BRYAN P.,

Defendant and Appellant.

(Los Angeles County

 Super. Ct. No. 20CCJP00692A)

APPEAL from an order of the Superior Court of Los 

Angeles County, Victor G. Viramontes, Judge. Affirmed.

William Hook, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rodrigo A. Castro-Silva, Acting County Counsel, Kim 

Nemoy, Assistant County Counsel, and Navid Nakhjavani, 

Deputy County Counsel, for Plaintiff and Respondent.

* * * * * * * * * *
2

Father Bryan P. appeals from the dispositional order 

removing his then nearly three-year-old daughter, Camila M.

from his custody. Father argues that because he was a 

noncustodial parent, had no right to custody of Camila, and never 

requested custody of her, the court had no legal basis to remove 

her from his care under Welfare and Institutions Code 

section 361, subdivisions (c), (d), or section 361.2, subdivision (a).

1 

Father does not challenge the juvenile court’s jurisdictional 

findings, or any other aspect of the court’s dispositional order. 

Respondent contends father forfeited any challenge to the 

removal order by failing to object, and that removal was 

warranted under section 361, subdivision (d), which applies to 

noncustodial parents. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

This family came to the attention of the Los Angeles 

County Department of Children and Family Services 

(Department) in December 2019, after mother and father were 

involved in a domestic violence incident. (Mother was found to be

nonoffending, and is not a party to this appeal.) As mother was 

driving, father attempted to remove Camila from her car seat. 

Mother told father it was unsafe, and slammed the brakes, not 

realizing the child had already been removed from her seat. 

Camila hit her head on the console as the car abruptly stopped, 

causing a small bump. Father became enraged, dragged mother 

from the car, and repeatedly punched her until bystanders 

intervened. According to mother, father was holding Camila as

he struck her, and Camilla was yelling “Mommy!” Father was 

1 All further statutory references are to the Welfare and 

Institutions Code unless otherwise indicated.
3

arrested and charged with inflicting corporal injury on a spouse. 

Father ultimately pled no contest to a violation of Penal Code 

section 273.5 and was sentenced to nine days in jail and 

probation. The court also issued a criminal protective order 

protecting mother. 

Mother and father were no longer in a romantic 

relationship. Mother and Camila lived with mother’s boyfriend 

and maternal relatives. According to mother, Camila lives 

“primarily with mother” but has overnight visits with father. 

One time, father refused to return Camila to mother, and she left 

Camila in his care after paternal grandmother threatened to call 

police to report that mother was trespassing. According to 

mother, father’s contact with Camila is inconsistent. 

Father lives with paternal grandmother. Their home was 

filthy, with trash, clothes, dishes, and dog feces strewn on the 

floor. Father confirmed that Camila visits him there, but told the 

Department she rarely sleeps over. However, he tries to see her 

daily. According to father, there was a family law case

concerning Camila, but they had not yet established a visitation 

schedule. Father has a diagnosis of severe depression, but does 

not take medication. He was no longer receiving mental health 

services due to insurance issues. 

According to paternal grandmother, father was in the 

process of obtaining a family law order, and there was a 

mediation scheduled for January 2020. However, neither father 

nor paternal grandmother ever provided paperwork concerning 

the family law case to the social worker. 

Mother denied that there was a family law order and said 

she “wants nothing to do with father,” but then told the social 

worker she has “full custody and father only has visits.” She said 
4

father had not served her with any paperwork pertaining to 

custody or visitation. 

Father has a history of domestic violence. In July 2019, 

father repeatedly punched paternal grandmother on her face and 

body, and choked her so hard that she saw white and could not 

breathe. He pushed and kicked paternal aunt when she tried to 

intervene to help their mother. 

In August 2019, father threatened to kill his then girlfriend

after she refused his marriage proposal. He put a knife to her 

throat, choked her and beat her. He also threatened to kill 

himself if she left him. 

At the detention hearing, father’s counsel represented that 

father has daily contact with his daughter and is her “main 

caregiver.” Father also filed a “Statement Regarding Parentage”

stating that Camila lived with him “off and on” since birth, and 

spends time with his family every week. 

Mother’s counsel represented that the child only had 

“sporadic” overnight visits with father, and argued that he had 

not achieved the status of a presumed father. The court found 

father to be a biological father, and deferred addressing whether 

father was entitled to presumed father status until the 

adjudication hearing. The court detained Camila from father, 

and released her to mother. 

At the adjudication hearing, the parties submitted on the 

Department’s reports, and no oral testimony was taken. The 

court sustained allegations in an amended petition against 

father, based on his mental health, domestic violence history, and 

the car seat incident. Mother was found to be nonoffending.

Father did not argue against removal, or contend removal 

was unwarranted. The court removed Camila from father, and 
5

ordered father to participate in reunification services. The court’s

minutes state that removal was warranted under “sections

361(a)(1), 361(c), 361(d) and 362(a).” The court did not further

address father’s paternity status. This timely appeal followed. 

DISCUSSION

Father contends there is no evidence he was a custodial 

parent, or otherwise entitled to custody, and he never requested 

custody of Camila, so there was no statutory basis for the court’s 

removal order under section 361, subdivisions (c), (d) or 

section 361.2, subdivision (a).

2

 

Respondent argues this issue was forfeited because father 

never objected on this basis below. Notwithstanding father’s 

failure to object, we exercise our discretion to reach the merits of 

his claim. (See In re Dakota J. (2015) 242 Cal.App.4th 619, 630 

[whether a juvenile court has statutory authority to order 

removal under § 361, subd. (c) presents a question of law which 

may be reviewed in absence of an objection below]; see also In re 

R.V. (2012) 208 Cal.App.4th 837, 848 [a claim that the evidence is 

insufficient to support a dispositional order “is not forfeited even 

if not raised in the juvenile court”].)

Section 361, subdivision (c) applies only to removal from 

custodial parents with whom the child resided at the time the 

petition was initiated. (In re Abram L. (2013) 219 Cal.App.4th 

2 It appears the parties and the court treated him as a 

presumed father at the jurisdiction and disposition hearing. We 

will assume he is a presumed father for purposes of resolving this 

appeal, without prejudice to the juvenile court making a finding 

in future proceedings that he is not a presumed father, if the 

circumstances warrant such a finding. (In re Zacharia D. (1993) 

6 Cal.4th 435, 454–455.) 
6

452, 460; see also § 361, subd. (c) [“A dependent child shall not be 

taken from the physical custody of his or her parents . . . with 

whom the child resides at the time the petition was 

initiated . . . .”].) The evidence is conflicting, but we will assume 

without deciding that Camila did not reside with father for 

purposes of removal pursuant to section 361, subdivision (c).

A noncustodial parent must request custody for 

section 361.2, subdivision (a) to apply, and section 361.2 applies 

only to nonoffending parents. (In re John M. (2013) 217

Cal.App.4th 410, 425; see also § 361.2, subd. (a) [when parent

with whom the child did not reside when the conditions giving

rise to jurisdiction arose requests custody, the court shall place

the child with that parent unless it finds it would be detrimental

to do so].)

Father did not request custody of Camila, the court never 

made a detriment finding under section 361.2, and father is an 

offending parent. Therefore, section 361.2 does not apply. 

But section 361, subdivision (d) supports removal. 

Section 361, subdivision (d) provides that “[a] dependent child 

shall not be taken from the physical custody of his or her parents

. . . with whom the child did not reside at the time the petition was 

initiated, unless the juvenile court finds clear and convincing 

evidence that there would be a substantial danger to the physical 

health, safety, protection, or physical or emotional well-being of 

the child for the parent . . . to live with the child or otherwise 

exercise the parent’s . . . right to physical custody, and there are 

no reasonable means by which the child’s physical and emotional 

health can be protected without removing the child from the 

child’s parent’s . . . physical custody.” (Italics added.) This 
7

section controls removal of children from noncustodial parents. 

(See In re S.S. (2020) 55 Cal.App.5th 355, 373.)

Father contends he did not have a “right to custody” as

required by section 361, subdivision (d). Whether or not father

had a “right to custody,” section 361, subdivision (d) applies when

there is clear and convincing evidence of a substantial danger for 

the parent either to live with the child or otherwise exercise the 

parent’s right to physical custody. The family law status of the

case was unclear, with mother claiming to have full custody and

father claiming the child consistently lived with him. The record

does not include an order establishing mother’s exclusive custody

of the child. Regardless of the legal custody arrangement, it is

undisputed that father visited with Camila and kept her

overnight. There was ample evidence to support a finding that

there would be a “substantial danger” for father “to live with the 

child or otherwise exercise [his] right to physical custody.” (Ibid.)

Father also contends the Department never attempted to

prove that section 361, subdivision (d) applied, and that the

juvenile court did not apply section 361, subdivision (d) when

making its removal order. But the court’s minutes expressly

state that removal was warranted under “sections 361(a)(1),

361(c), 361(d) and 362(a).” Father did not object or offer any

argument against removal, and there was no argument

concerning the legal basis of the removal order. Disposition

proceeded on the basis of the Department’s reports, which

contained ample evidence, discussed ante, concerning custody

and the danger of Camila living with father.

We see no prejudice to father from the removal order. 

Although an erroneous removal order may prejudice a parent by 

interfering with a parent’s liberty interest in caring for their 
8

child, and by “start[ing] the clock running on reunification 

efforts” leading to the potential termination of parental rights (In 

re Dakota J., supra, 242 Cal.App.4th at pp. 630–632), we find no 

prejudice here, where father has not challenged jurisdiction, or 

any other aspect of the court’s dispositional order (such as the 

requirement that he participate in services and that his visitation 

be monitored). 

DISPOSITION

The removal order is affirmed. 

GRIMES, J.

WE CONCUR:

BIGELOW, P. J. 

STRATTON, J.