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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

In re C amila M.

, a Person Coming Under the Juvenile

Court Law. B 307092

LOS ANGELES COUNTY

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

B RYAN P

. ,

Defendant and Appellant. (Los Angeles County Super. Ct. No. 20CCJP00 692 A )

APPEAL from an order of the Superior Cour t 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 C ode

section 361, subdivision s (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

. FACT UAL AND PROCEDURAL BACKGROUND

This f amily 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, f

ather attempted to remove Camila from her car seat

. M other 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 punch ed her until bystanders

intervened

. According to mother, father was holding Camila as

he struck her , an d 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. Mothe r and Camila lived with mother’s boyfriend

and maternal relati ves. 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. The ir home was

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

floor. Father conf

i rmed 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 y et esta blished a visitation

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

not take medication. He was no longer receiving mental health

serv ices 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, n either father

nor paternal grandmother ever provided paperwork concerning

the family law case to the social worker.

Mother denied that there was a f amily 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 said4

father had not served her with any paperwork pertaining to

custody or visitation.

Father has a history of domestic violenc e. 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 threate ne d 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 entit led to presumed father status unt il the

adjudication hearing. The court detained Camila from father,

and released her to moth er. At the adjudication hearing, the parties submitted on the

Department’s reports, and no oral testimony was taken

. T he

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 non offending.

Father did not argue against removal, or contend removal

was unwa rranted. The court removed Camila from father, and5

ordered father to participate in reunification services

. T he 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, subdivision s (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) present s 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 juvenil e court”].)

S ection 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 I t appears the parties and the court treated him as a presumed father at the jurisdiction and disposition hearing. W e 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 w e 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. (20 13) 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 detriment al

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

. . . r ight 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 .) T his7

section controls removal o f 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

. T he 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. R egardless of the legal custody arrangement, it is

undisputed that father visited with Camila and kept her

overnight. T here 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 cour t’s minutes expressly

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

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

argument against removal, and there was no argument

concerning the legal basis of the removal order. D isposition

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 their8

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 partic ipate in services and that his visitation

be monitored ).

DISPOSITION

The removal order is affirmed.

GRIMES, J.

WE CONCUR:

BIGELOW

, P. J.

STRATTON , J.