In re Abrama M.






Filed 10/3/11 In re Abrama M. CA2/2





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re ABRAMA M., a Person Coming Under the Juvenile Court Law.	B229236 (Los Angeles County Super. Ct. No. CK75650)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ABRA M., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Anthony Trendacosta, Temporary Judge. Affirmed.
Law Office of Lisa A. Raneri and Lisa A. Raneri, under appointment by the Court of Appeal, for Defendant and Appellant Abra M.
Amir Pichvai for Plaintiff and Respondent.

* * * * * *
Abra M. (mother) appeals from the juvenile court’s disposition order made on October 18, 2010 regarding her oldest daughter, Abrama M. (age 7).^[1] Mother contends the juvenile court applied the wrong statute to determine whether Abrama should have been placed with her as a noncustodial parent, and erred in failing to make findings under the applicable statute, Welfare and Institutions Code section 361.2, subdivision (a).^[2] We affirm. The juvenile court’s error in failing to reference the applicable statute at disposition was harmless in light of the evidence.

FACTUAL AND PROCEDURAL BACKGROUND
This appeal follows numerous appeals filed by mother, her parents, and mother’s siblings. On February 1, 2011, we issued our most recent opinion in this case, In re Abrama M., et al. (nonpub. opn. B216673), which addressed ten consolidated appeals, including six appeals by mother regarding her daughters Abrama and Abigail M.^[3] The factual background of this family’s dependency cases is so well known to the parties and this court that we will not repeat it here, with one exception. We note that on July 8, 2009 the juvenile court granted Abrama’s father, James S., legal and physical custody of Abrama and terminated dependency jurisdiction over her. Jurisdiction was based in large part on mother’s physical abuse of Abrama.
On May 6, 2010, the Los Angeles County Department of Children and Family Services (the Department) filed a new section 300 petition on behalf of Abrama. The petition pertained almost exclusively to abusive behavior by James, and contained a single allegation of substance abuse against mother. At the August 16, 2010 jurisdictional hearing, the court sustained allegations of inappropriate discipline by James, and struck the drug abuse allegation against mother at the parties’ requests.
Prior to the October 18, 2010 disposition hearing, the Department submitted two reports. The October 4, 2010 report indicated that Abrama and her sisters were removed from their respective foster homes and replaced due to mother’s repeated calls to the child abuse hotline “making false allegations against the caregivers.” Abrama was defecating on herself and smearing her feces on walls and floors, partially as a result of her understanding that she was going to be moved once again from her placement. Mother told the social worker that she called the hotline because she felt her children were in danger and needed to be returned to her. When the social worker explained to mother the negative impact her calls were having on her children, mother responded: “[The children] are in danger and they need to be returned to me. As long as my children are in danger I will continue to call the hotline and make complaints because that is my right.” The report stated: “It is of immediate concern that mother fails to recognize that her abuse of her children continues with her ongoing compunction to erroneously make child abuse referrals against her children’s caregivers. [Mother’s] inability to recognize that her children are now being traumatized by her actions remains the Department’s concern . . . . [Mother’s] actions continue to victimize her children in that they are forced to be moved on a regular basis resulting in instability, chaotic home life and lack of consistent care so needed by children of this age.”
Following mother’s latest call to the abuse hotline, the social worker was unable to find a placement for Abrama and Abigail together, and they had to be separated. The report also noted that it was “clear” from mother’s visits with her children that she “has less than adequate parenting skills,” and the Department was concerned about how mother would act “on her growing instances of frustration towards the children.”
The Department’s second report, dated October 18, 2010, noted that mother had made ten referrals to the child abuse hotline, all of which were “concluded as unfounded,” and that Abrama had been placed in four different homes as a result of mother’s calls. A letter attached to the report from Abrama’s therapist stated: “I have a number of serious concerns about this child. In my clinical experience, it is rare to see a 6-year-old child who is so emotionally dysregulated, and can barely articulate thoughts or feelings of any kind . . . . [¶] . . . [¶] Abrama appeared to also indicate fear and a great deal of confusion about her bio mother, but could not articulate reasons for this. [¶] I was informed that Abrama has now been placed in yet another foster home. I am alarmed by the fact that this appears to be a pattern in this young child’s life. Abrama already has symptoms consistent with trauma such as flat affect, dissociation, hypervigilance, extreme startle response, agitation, inability to recall/articulate events/memories, sleep disturbances and poor concentration, as well as encopresis, and these symptoms cause severe impairment at home or school. If this trend continues, I am extremely concerned that this little girl’s already serious symptoms will inevitably worsen.”
At the October 18, 2010 disposition hearing, the juvenile court declared Abrama a dependent of the court. The court found by clear and convincing evidence, pursuant to section 361, subdivision (c), that Abrama’s “continuance in the home of the parents is contrary to the child’s welfare and that a substantial danger exists to [Abrama’s] physical health, safety, protection, and physical or emotional well-being. There are no reasonable means [by] which the child may be protected without removal.” The court therefore ordered that Abrama be placed under the department’s care, custody and control. The court ordered reunification services for mother, including monitored visits and individual counseling with a licensed therapist to address anger management and other case issues. This appeal followed.

DISCUSSION
Mother contends the juvenile court’s disposition order must be reversed because the court improperly proceeded under section 361, subdivision (c) to order that Abrama not be returned to mother’s custody. Mother argues that because she was a noncustodial parent at the time of Abrama’s detention and had requested that Abrama be returned to her,^[4] the correct statute to be applied was section 361.2, subdivision (a).
Section 361, subdivision (c) provides that “[a] dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive, . . . [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody. . . .”
Section 361.2, subdivision (a) 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.” A juvenile court’s determination under section 361.2, subdivision (a) that a child should not be placed with a noncustodial parent requires a finding of detriment by clear and convincing evidence. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1827; In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) Additionally, section 361.2, subdivision (c) requires the juvenile court to “make a finding either in writing or on the record of the basis for its determination under subdivisions (a) and (b).”
Mother is correct that the juvenile court should have proceeded under section 361.2, subdivision (a), rather than section 361, subdivision (c), because Abrama was not residing with mother at the time the section 300 petition was filed on May 6, 2010. (See In re Marquis D., supra, 38 Cal.App.4th at pp. 1825–1827; In re V.F. (2007) 157 Cal.App.4th 962, 969.) She maintains that the juvenile court’s failure to make specific findings under section 361.2, subdivision (a) was reversible error, while the Department asserts that we may imply such findings from the record. Mother correctly observes that some appellate courts have refused to imply findings of detriment when the juvenile court failed to properly consider placement under section 361.2. (In re V.F., supra, at p. 973 [“Although this record arguably would support a finding that placement with [the noncustodial, incarcerated father] would be detrimental to the children, we believe the better practice is to remand the matter to the trial court where that court has not considered the facts within the appropriate statutory provision”].) In In re Marquis D., the reviewing court also declined to imply findings of detriment. The court stated that it could not determine from the record whether the juvenile court considered that placing the children with the father would be detrimental to them within the meaning of section 361.2, subdivision (a), and questioned whether the evidence supported a finding of detriment since the children were doing well in the care of their noncustodial father. (In re Marquis D., supra, at pp. 1824–1827.) The court concluded “this is certainly not the clear-cut case in which an appellate court may imply such a finding.” (Id. at p. 1827.)
But here the juvenile court did explore whether Abrama’s placement with mother would be detrimental to Abrama. The Department’s October 18, 2010 report recommended that placement and care of Abrama be vested with the Department, and that she be placed in a “suitable approved foster home, relative’s home, private institution, or other approved placement,” while mother be provided monitored visits. Unlike the juvenile courts in In re Marquis D. and In re V.F., which failed to make any express findings of detriment or articulate the basis for not placing the children with their respective fathers, the juvenile court here expressly found on the record that Abrama’s “continuance in the home of the parents is contrary to the child’s welfare and that a substantial danger exists to [Abrama’s] physical health, safety, protection, and physical or emotional well-being. There are no reasonable means [by] which the child may be protected without removal.” (See In re P.A. (2007) 155 Cal.App.4th 1197, 1212 [juvenile court finding by “‘clear and convincing evidence there exist[ed] a substantial danger to the children and [there was] no reasonable means to protect them without removal from the parents’ custody’” amounted to a finding that returning the child to her parents would be detrimental to her].)
We are satisfied substantial evidence supports the finding that placement with mother would be detrimental to Abrama. (See In re Marquis D., supra, 38 Cal.App.4th at p. 1825 [“[W]here the trial court has failed to make express findings the appellate court generally implies such findings only where the evidence is clear”].) In determining whether placement with a noncustodial parent would be detrimental under section 361.2, subdivision (a), the juvenile court has “broad discretion to evaluate not only the child’s physical safety but also his or her emotional well-being. In an appropriate case, all that might be required is a finding such a placement would impair the emotional security of the child.” (In re C.C. (2009) 172 Cal.App.4th 1481, 1490.)
At the time of disposition, Abrama had been removed from four foster placements due to mother’s aggressive and harmful interruptions to Abrama’s life. Mother had made ten calls with false allegations to the child abuse hotline against Abrama’s caregivers. Mother’s actions were traumatizing Abrama, who was exhibiting severely dysfunctional emotional and physical behavior, including spreading her feces on walls and floors. Abrama’s therapist was greatly concerned and “alarmed” by the pattern of repeated changes in Abrama’s living situation. She feared that the symptoms Abrama exhibited as a result of mother’s inappropriate behavior would only continue to worsen and cause even more impairment. Even after the social worker explained the negative impact that mother’s referrals were having on Abrama, mother responded that she would continue to make such calls because Abrama belonged with her. Mother’s response indicates that she failed to understand that her own actions were the very reason Abrama could not be returned to her.
Mother points out that she had completed a parenting program, an anger management program and individual counseling, and that she was regularly visiting her children. But as the Department notes, “More significantly, however, is the fact that it was not the completion of the programs that mattered so much as the substantive progress made in those programs in addressing the issues that caused dependency court intervention.” At Abrama’s disposition hearing, the court took judicial notice of a written order issued three weeks earlier on September 23, 2010. In that order, the court found that “mother ha[d] not participated regularly or made substantive progress in her court-ordered programs.” The court noted that mother’s therapists believed mother had “a way to go” in controlling her anger, and that mother “needed to continue to work on this issue before reunification could be considered.” At the time of disposition, the Department was still concerned that mother could not control her frustrations with her children, and her visits showed that she had “less than adequate parenting skills.”
Mother argues that the disposition order was “based, in part, on incorrect factual information that [mother] had a substance abuse problem and that a maternal uncle sexually abused Abrama.” She notes these “facts” are stated in the court’s prior September 23, 2010 order. But the court had already stricken the substance abuse allegation against mother in the latest section 300 petition pertaining to Abrama, and the court did not order mother to participate in any drug program in its disposition order. Nor did the court or the parties raise any issues at the disposition hearing that Abrama had been sexually abused by a maternal uncle. The court and the Department were still largely concerned with mother’s inability to control her anger. Indeed, the only “program” in which mother was ordered to participate at the disposition hearing was individual “counseling to address case issues, to include addressing her anger management.”
We are satisfied the juvenile court fully considered and addressed detriment to Abrama within the meaning of section 361.2, subdivision (a). On this record, any error in failing to specify findings under that particular provision was harmless.

DISPOSITION
The October 18, 2010 disposition order regarding Abrama is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.
DOI TODD
We concur:

____________________________, P. J.
BOREN

____________________________, J.
ASHMANN-GERST



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