In re Theodore F.

 

 

 

Filed 1/15/14  In re Theodore
F. CA2/1

 

 

 

 

 

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NOT TO BE PUBLISHED IN THE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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

 
>

In re THEODORE F. et al., Persons Coming Under the Juvenile Court Law.	B249871       (Los Angeles County       Super. Ct. No. CK97276)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,               Plaintiff and Respondent,               v.   JAKE F.,               Defendant and Appellant.

 

APPEAL from orders of the href="http://www.fearnotlaw.com/">Superior Court of Los Angeles County.  Timothy R. Saito, Judge.  Affirmed in part and reversed in part.

            John L.
Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

            John F.
Krattli, County Counsel, James M.
Owens, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel, for
Plaintiff and Respondent.

______________________________________

In this dependency matter,
we conclude there is sufficient evidence to support the juvenile court’s orders
adjudging six-year-old Theodore F. and two-year-old Sophia F. dependents of the court pursuant to href="http://www.fearnotlaw.com/">Welfare and Institutions Code section 300,
subdivision (b) (failure to protect).href="#_ftn1"
name="_ftnref1" title="">[1]  But we agree with Jake F. (Father)
that the court erred in applying section 361, subdivision (c)(1).  We reverse the findings and dispositional
order removing the minors from Father’s custody and affirm the jurisdictional
and dispositional findings and orders in all other respects.  Mother is not a party to this appeal.

BACKGROUND

            On December 24, 2012, the minors came to the attention of
the Department of Children and Family
Services (DCFS) when it received a referral that on December 21, 2012, Mother, Father, and maternal
grandmother hit and pushed each other in the presence of the minors.  The caller stated that Mother has a href="http://www.sandiegohealthdirectory.com/">history of alcohol abuse, is
an “angry drunk,” and five years previously had been observed carrying Theodore
while under the influence.

            On January 11, 2013, DCFS filed a section 300 petition on
behalf of the minors.  Paragraph b-1 of
the petition concerned altercations between Father and Mother on December 21, 2012, and earlier.  As sustained, it alleged under section 300,
subdivision (b) that Mother and Father have a history of engaging in physical
altercations in the presence of the minors.  On prior occasions, Father pushed Mother,
causing her to hit her head on a wall.  On
December 21, 2012, Father pushed Mother,
causing her to fall to the floor in Sophia’s presence.  While the original petition alleged that Mother
endangered the minors’ physical health and safety, it was amended to allege
only that Father’s conduct endangered the minors, ultimately stating in
paragraph b-1 of the petition that “Mother was unable to protect the child due
to the physical altercation by . . . Father against . . . Mother.  And Mother’s inability to protect endangers
the children’s physical and emotional health and safety and places the children
at risk of physical harm, damage, and danger.”

Paragraph b-2 of the petition concerned
Father’s altercation with the minors’ maternal grandmother, which occurred
concurrently with the December 21 altercation between Father and Mother.  As sustained, paragraph b-2 alleged under
section 300, subdivision (b) that Mother, Father, and maternal grandmother
engaged in a physical altercation in the presence of the minors.  While holding Sophia, Father pushed maternal
grandmother, who struck her back against the counter, requiring emergency medical
services.  Father kicked maternal
grandmother’s leg.  Maternal grandmother
struck Father with a shoe, pushed Father, and threatened to kill Father.  Such physical conduct on the part of Father
against maternal grandmother endangers the minors’ physical health and safety
and places the minors at risk of physical harm, damage, and danger.  Other allegations made pursuant to section
300, subdivisions (a) and (b) were dismissed.

            Mother’s and
Father’s versions of what had occurred differed substantially.  We summarize Mother’s version and the
testimony of witnesses supporting her version first, since that evidence will
be the basis of our review for substantial evidence supporting the juvenile
court’s order.

Mother reported the
following to DCFS.  Father and Mother
were separated but still married. 
Neither had filed for divorce.  The
minors lived with Mother and maternal grandmother.  On December 21,
2012, Mother, Father, and maternal grandmother engaged in a
physical altercation when Father visited the home without being invited.  Mother saw Father kick maternal
grandmother.  While Father was holding
Sophia, Mother asked Father to leave because she wanted his visits to be conducted
in a public place.  Father yelled and
cursed at Mother and maternal grandmother. 
Father then pushed Mother to the floor while he was still holding Sophia.
 Mother grabbed Sophia, ran outside, and
screamed for help.  Mother called the
police after she went back into the house.  After Mother put the minors into a bedroom,
she asked Father to leave, but when he did not, she hit him on the foot with a
frying pan to get him to leave the house.

Mother also reported that the
following incidents of verbal and physical abuse occurred before the December 21, 2012 incident.  On December 31,
2007, while Theodore was asleep, Father had pushed her hard,
making her hit her head against a wall.  In
the summer of 2011, while the family lived in Peru, Father became
angry and yelled and cursed at her when she confronted him about his drug use
and gambling and asked him to help her care for the minors.  Mother stated that when she attempted to hose
Father’s belongings with water, “‘he shoved me really hard and I fell and hit
my head on the floor.’”  Mother separated
from Father and returned to the United States with the
minors.  Later, Father returned to the United States.  On December 8,
2012, Father cursed at her in the presence of Theodore because
she refused to allow him to take Theodore out of the home.

Maternal grandmother
reported that during the incident on December 21,
2012, Father kicked her in the leg.  When maternal grandmother tried to grab Sophia
from Father’s arms and push him out of the house, Father shoved her, causing
her to fall back onto the edge of the counter.  Maternal grandmother was treated at the
emergency room for her injuries.

Theodore told DCFS that Mother called
the police “‘because they were fighting and daddy almost killed nana.’”  Theodore stated that Father had pushed
maternal grandmother with his feet and hit her in the stomach with his
fist.  He denied seeing Mother or
maternal grandmother hit Father.  He also
reported that maternal grandmother tried to hit Father on the back of the head
with a shoe, but he ducked.  Father
wanted to take Theodore to the park, but Theodore did not want to go because he
was scared “of the fighting.”

Mother testified at the
jurisdictional hearing that she had been unaware that Father intended to visit
on December 21, 2012.  When she asked him to leave he became very
upset and started cursing at her.  He
pushed Mother onto the floor while he was holding Sophia.  When Father began to argue with maternal
grandmother, Mother grabbed Sophia, ran outside, and asked the neighbors to
call police.  Mother testified that she
was seeking a restraining order because she was afraid that Father would take
the minors to South America and that he might
physically harm Mother.  Mother also
testified that Father had pushed her in 2007 and 2011.

Neighbor Theresa Estes
testified at the jurisdictional hearing that around December 8, 2012, she heard Father cursing
at Mother.  When Mother sought Estes’s
help, Estes told her that it would be futile to resolve the matter with Father
because he “was not showing goodwill.” 
On December 21, 2012, after Estes
heard fighting sounds and Mother screaming “‘help me, help me,’” she called 911
and security because she was concerned about the physical well-being of Mother
and the minors.  Estes testified that the
previous dozen visits by Father had been “unremarkable” but the December 8
and December 21, 2012 visits were
“openly contentious.”

As noted above, Father’s
version was quite different.  Father
reported to DCFS that a few days prior to the December 21, 2012 visit, he had visited the
minors and informed Mother that he would return to visit again.  At the beginning of the December 21, 2012 visit, Mother
smiled at him when he was watching television with Theodore in the minor’s
upstairs bedroom room.  After he went
downstairs and picked up Sophia, Mother complained about Father’s presence in
the home and maternal grandmother began yelling at him and grabbing
Sophia.  While he was holding Sophia,
maternal grandmother started hitting him with a shoe and Mother jumped on his
back while he was trying to call the police. 
Father pushed maternal grandmother, who fell on the floor.  Maternal grandmother then hit Father with a
strainer, scratching his neck.  Father
pushed maternal grandmother to the floor. 
Maternal grandmother said to Father, “‘[I]f I had a knife, I’d stab you
in the heart.’”

Father told DCFS that on a
previous occasion Mother had hit and kicked him while she was drunk.  At the time, she was holding Theodore and
staggering around the house.  On another
occasion, he had to kick Mother to protect Theodore, whom he was holding.  Yet another time, Father threw Mother to the
ground after she physically attacked him.

Father testified at the
jurisdictional hearing that he had informed maternal grandmother that he was
going to visit on December 21,
2012.  Theodore let him into
the house and asked Father to take him to the park.  As he was holding Sophia, Mother approached
him and said she wanted his visits to be “somewhere else.”  Maternal grandmother then grabbed Sophia and
Father pushed maternal grandmother. 
Maternal grandmother started hitting him with a shoe while he was
holding Sophia, and he pushed her again, at which point maternal grandmother
fell on the floor.  Mother and maternal
grandmother then began  “jumping” Father,
so he took Sophia into the bedroom, called 911, put Sophia down, and gave
Mother a “light shove” onto the bed.  Maternal
grandmother said to Father, “‘I’m going to kill you, I’ll have you beat
up.’”  Maternal grandmother grabbed a
utensil and struck Father on his throat. 


On March 5, 2013, the juvenile court
sustained the petition as amended and issued a permanent restraining order on
the same terms as a previous temporary restraining requested by Mother,
ordering Father to stay away from Mother and the minors except for supervised
visitation by a DCFS-approved monitor three times per week, three hours per
visit.

With respect to paragraph
b-1 of the section 300, subdivision (b) allegation, the juvenile court stated,
“This count is supported by testimony of the parties, including Mother and Father
and the witness, neighbor Miss Estes. 
Mother and Father engaged in physical tussles when the child was
present.  Mother did take measures to
call the police in this case and the neighbor for help, which does . . .
substantiate some of her claims in this case.  I found Miss Estes to be credible.  [¶] 
. . .  [¶]  Father has admitted to pushing . . .
Mother on several prior occasions, as he did on this occasion as well,
regarding a kitchen utensil.  Although
mother appeared to have such a utensil in her hands during that incident, both Mother
and Father have testified that it was not used in this case.”  With respect to paragraph b-2 of the section
300, subdivision (b) allegation, the court stated, “Court finds this case was
more involved . . . necessitating grandmother to have been taken to
the hospital, supported by the child’s statements, law enforcement accounts,
statements by Father and grandmother, as well as . . . Mother, regarding
the incident.”

            Father testified at the
disposition hearing held on April 14, 2013.  Following argument, the juvenile court declared
the minors dependents of the court under section 300, subdivision (b); removed
the minors from Father’s custody pursuant to section 361, subdivision (c);
ordered the minors to live with Mother; ordered random drug testing, domestic
violence, and individual counseling for Mother and Father; ordered conjoint
counseling with Theodore for Mother and Father; ordered anger management
classes for Father; and ordered monitored visitation by a DCFS-approved monitor
for Father.  Father appealed.

>DISCUSSION

A.  Standard of review

The juvenile court’s jurisdictional finding that the minor is
a person described in section 300 must be supported by a preponderance of the
evidence.  (§ 355; Cal. Rules of
Court, rule 5.684(f).)  â€œâ€˜â€œWhen the sufficiency of the evidence to
support a finding or order is challenged on appeal, the reviewing court must
determine if there is any substantial evidence, that is, evidence which is
reasonable, credible, and of solid value to support the conclusion of the trier
of fact.  [Citation.]  In making this determination, all conflicts
[in the evidence and in reasonable inferences from the evidence] are to be
resolved in favor of the prevailing party, and issues ofname="SDU_533"> fact
and credibility are questions for the trier of fact.  [Citation.]”’  [Citation.]  While substantial evidence may consist of
inferences, such inferences must rest on the evidence; inferences that are the
result of speculation or conjecture cannot support a finding.  [Citation.]”  (In re
Precious D. (2010) 189 Cal.App.4th 1251, 1258–1259.)  “[W]e must accept the evidence most favorable
to the order as true and discard the unfavorable evidence as not having
sufficient verity to be accepted by the trier of fact.  [Citation.]” 
(In re Casey D. (1999) 70
Cal.App.4th 38, 53.)

B.  Substantial evidence
supports the juvenile court’s jurisdictional findings and orders under section
300, subdivision (b)

Father contends
the evidence is insufficient to support the juvenile court’s jurisdictional
findings under section 300, subdivisions (b).  We disagree.

Section 300, subdivision (b) provides
a basis for juvenile court jurisdiction if “[t]he child has suffered, or there
is a substantial risk that the child will suffer, serious physical harm or illness,
as a result of the failure or
inability of his or her parent or guardian to adequately supervise or protect
the child.”

“A jurisdictional finding
under section 300, subdivision (b) requires:  â€˜â€œ(1) neglectful conduct by the parent in
one of the specified forms; (2) causation; and (3) â€˜serious physical
harm or illness’ to the child, or a ‘substantial risk’ of such harm or illness.”
 [Citation.]’  [Citations.]  The third element ‘effectively requires a
showing that at the time of the jurisdictional hearing the child is at
substantial risk of serious physical harm in the future (e.g., evidence showing
a substantial risk that past physical harm will reoccur).’  [Citation.]” 
(In re James R. (2009) 176 Cal.App.4th
129, 135.)  “[T]he use of the disjunctive
‘or’ demonstrates that a showing of prior abuse and harm is sufficient,
standing alone, to establish dependency jurisdiction.”  (href="https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2018849572&pubNum=7047&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite)">In re J.K. (2009) 174 Cal.App.4th 1426,
1434–1435, fn. omitted.)  Thus,
jurisdiction may be exercised “either based on a prior incident of harm or a
current or future risk.”  (>Id. at p. 1435, fn. 5.)

As stated, we “must
accept the evidence most favorable to the order as true and discard the
unfavorable evidence as not having sufficient verity to be accepted by the
trier of fact.”  (In re Casey D., supra, 70
Cal.App.4th at p. 53.)  Thus, viewing all
conflicts in favor of DCFS and drawing all reasonable inferences in support of
the judgment, as we must (In re Veronica
G. (2007) 157 Cal.App.4th
179, 185), we conclude that substantial evidence supports the juvenile court’s
findings that the minors were described by section 300, subdivision (b).

In sustaining paragraph b-1
of the petition, the juvenile court held that its allegations were true.  Thus, our inquiry is whether there was
substantial evidence to support that determination.  There is.  The evidence shows that, according to Mother,
in 2007 Father pushed her hard, making her hit her head against the wall.  In the summer of 2011, Father became angry and
yelled and cursed at her when she confronted him about his drug use and
gambling and asked him to help her care for the minors.  He shoved her, causing her to fall and hit
her head on the floor.  Mother stated
that during the most recent incident on December 21,
2012, Father pushed her to the floor while he was holding Sophia.

Similarly, in sustaining paragraph
b-2 of the petition, the juvenile court held that its allegations were
true.  Thus, the inquiry again is whether
there was substantial evidence to support that determination.  It is undisputed that on that date Mother,
Father, and maternal grandmother engaged in a physical altercation in the
presence of both minors.  While holding
Sophia, Father pushed maternal grandmother, who struck her back against the
counter and required emergency medical treatment; Father kicked maternal
grandmother’s leg; and maternal grandmother struck father with a shoe.  Father agrees that he was holding Sophia when
maternal grandmother struck him with a shoe and tried to pull the two-year-old
away from him while he held on to her.  Father
admitted that he had pushed maternal grandmother several times during the
altercation.  According to Father, maternal
grandmother pushed him and stated that if she had a knife she would kill him.  The evidence was sufficient to constitute
substantial evidence supporting the juvenile court’s order.

Here it also appears the
juvenile court could find the “substantial risk” of “serious physical harm”
required under subdivision (b) of section 300. 
During the December 21 altercation, it appears undisputed that when
maternal grandmother tried to grab Sophia away by pulling on her arm, Father
resisted, risking damage to the two-year-old’s arm or shoulder.  The little girl also was at risk of being hit
in the head or face by grandmother’s shoe or a kitchen implement, or Sophia
could have been jostled to the ground by grandmother’s or Father’s pushing.  Similarly, Theodore was underfoot when Father
was kicking maternal grandmother and Mother and grandmother were falling to the
floor close to him.  Theodore could have
been seriously hurt by a badly aimed kick or a falling adult body.

Because Father failed to protect
the minors from the substantial risk of encountering the violence and suffering
serious physical harm, we conclude the evidence supported the section 300, subdivision
(b) allegations.

Father cites >In re Daisy H. (2011) 192 Cal.App.4th
713 in support of his argument that, because “the parents no longer lived
together, and both had an understanding of [F]ather’s visitation rights
. . . , there was no concern of any further incidents [and] there
was no substantial evidence supporting jurisdiction.”  Father’s reliance on Daisy H. is misplaced.

In In re Daisy H. we reversed the juvenile court’s jurisdictional and
dispositional orders declaring the minors dependents of the court and removing
them from their father’s custody.  (>In re Daisy H., supra, 192 Cal.App.4th at p. 715.)  In re
Daisy H. concerned a single incident of physical abuse of the mother by the
father years before the section 300 petition was filed.  (>Id.
at p. 717)  With respect to
the section 300, subdivision (b) allegations, we concluded that “[t]he evidence
was insufficient to support a finding that past or present domestic violence
between the parents placed the children at a current substantial risk of
physical harm” because the incident had occurred “at least two, and probably
seven, years before the DCFS filed the petition”; the incident occurred out of
the presence of the minors, who were healthy, well groomed, and did not show
any signs of abuse; there was no evidence of ongoing violence between the
parents, who were currently separated; and the minors denied that they had ever
witnessed the father physically abuse the mother.  (>Ibid.)

In re Daisy H. is distinguishable on a variety of grounds, including that
there was only one incident in In re
Daisy H. compared to several here; and the incident in In re Daisy H. occurred years earlier, while in this case there was
a very recent incident in December 2012 and at least one more in 2011.  The minors were present during the altercations
here, whereas the minors in Daisy H.
were not.  Finally, the remoteness of the
incident in Daisy H. did not indicate
a “current substantial risk of physical harm,” while the incident here that
occurred in December 2012 indicates that the relationship among Mother, Father,
and maternal grandmother had become so toxic that it is reasonable to conclude
that they are likely to become violent whenever the three are together again.

In
re Heather A. (1996) 52 Cal.App.4th 183 is more on point.  There, the Court of Appeal concluded there
was sufficient evidence to support the juvenile court’s jurisdictional finding
under section 300, subdivision (b) where there was evidence of continuing
violence between the mother and the father. 
The mother testified she had been physically abused by the father on
eight occasions, four or five of which had occurred when the minors were
present in the home.  (>Id. at p. 188.)  On one occasion in the presence of the
minors, the father had pushed the mother on the floor and hit her.  Another time, after the father smashed a
glass vase, one of the minors cut her foot. 
On yet another occasion, the minors were elsewhere in the house when the
father hit the mother, but the minors came to see what was happening when they
heard noises.  (>Ibid.) 
The Court of Appeal noted that “the children were put in a
position of physical danger from this violence, since, for example, they could
wander into the room where it was occurring and be accidentally hit by a thrown
object, by a fist, arm, foot or leg, or by [the mother] falling against them.”  (Id.
at p. 194.)  The court concluded, “It is
clear to this court that domestic violence in the same household where children
are living is neglect; it is a failure to protect [the
minors] from the substantial risk of encountering the violence and suffering
serious physical harm or illness from it.  Such neglect causes the risk.” 
(Ibid.)  This case is more like In re Heather A. because, as stated, there was evidence of
continuing and escalating violence among Mother, Father, and maternal
grandmother in the presence of the minors, who could have been injured.

We are not persuaded by
Father’s citation to In re Rocco M.
(1991) 1 Cal.App.4th 814, 824, for the proposition there was no substantial
evidence of a “current risk” of harm.  Here,
we perceive a current risk of harm to the children whenever Mother and Father
are together, given their current volatile relationship.

Father also contends that the
juvenile court should have dismissed the petition and sent the matter to family
law court, which “could issue appropriate visitation and custody orders.”  As discussed, the evidence supports the
court’s jurisdictional findings, and we reject Father’s arguments that other
measures—in particular, family law orders where no divorce proceedings have yet
been initiated—are sufficient to protect the minors.

Further,
Father contends that because only physical harm was pleaded in the original
allegations of paragraph b-1 of the petition under section 300, subdivision
(b), the juvenile court’s passing reference to the minors’ emotional health
tainted its jurisdictional findings.  We
disagree.  The original petition alleged in paragraph b-1 under section
300, subdivision (b) that Mother and Father’s violent conduct endangers the
minors’ physical health and safety
and places them at risk of physical
harm, damage, and danger.  As we explain,
we conclude that the juvenile court’s finding that “Mother’s inability to
protect endangers the children’s physical and
emotional health and safety” did not convert the count
into an allegation under section 300, subdivision (c) based on emotional harm.

The juvenile
court did not rely upon subdivision (c) in making it findings.  It referred only to the section 300,
subdivision (b) allegations.  The court
stated that the allegations in paragraph b-1 under section 300, subdivision (b)
were supported by the evidence in the record and the testimony of Mother,
Father, and Estes.  Specifically, it
noted that “Mother and Father engaged in physical
tussles when the child was present.  Mother did take
measures to call the police in this case and the neighbor for help, which does
. . . substantiate some of her claims in this case.  I found Miss Estes to be credible.  [¶] 
. . .  [¶]  Father has admitted to pushing . . .
Mother on several prior occasions, as he did on this occasion as well . . . .”  (Italics added.)

While inclusion of the
phrase “emotional health” may have been inadvertent on the part of the court,
any error was harmless because, as discussed, we
conclude that substantial evidence supports the juvenile court’s
jurisdictional finding with respect to the allegations of “substantial risk” of
“serious physical harm” in paragraph b-1 under section 300, subdivision (b).  (In re
Abram L. (2013) 219 Cal.App.4th 452, 463 [juvenile court’s order cannot be
reversed unless its error was prejudicial].)

In addition, “The reviewing court may affirm a juvenile court judgment if the
evidence supports the decision on any one of several grounds.”  (In re
Jonathan B. (1992) 5 Cal.App.4th 873, 875.) 
In In re Jonathan B., the
appellate court held, “‘Since the trial court had sufficient basis to terminate
appellant’s parental rights under [Civil Code] section 232, subdivision (a)(6),
its findings under subdivision (a)(7) are moot.’  [Citation.]”  (Jonathan
B., at p. 875.)  Here, because sufficient evidence supported
the allegations in paragraph b-2 under section 300, subdivision (b),
jurisdiction over the minors was properly asserted.

We note that the
mix of Father, Mother, and maternal grandmother contributes to a volatile
combination harmful to the minors.  Assertion
of jurisdiction will protect the minors, whereas their parents cannot.  We conclude that substantial evidence
supports the juvenile court’s jurisdictional findings and orders under section
300, subdivision (b).

C.  The juvenile
court erred in removing the minors from Father under section 361, subdivision (c)(1)

            Father
contends that the juvenile court did not have authority under section 361,
subdivision (c)(1) to remove the minors from him.  We agree.

After the
juvenile court adjudges a minor a dependent of the court, “it ‘may limit the
control to be exercised over the dependent child by any parent’ and shall
clearly specify those limitations in its orders.  (href="https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000298&cite=CAWIS361&originatingDoc=I3ea0f557fab911d9bf60c1d57ebc853e&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)">§ 361, subd. (a).)”  (In re
Damonte A. (1997) 57 Cal.App.4th 894, 898.)  But the minor may not be removed from the
physical custody of the parents unless “[t]here
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.”  (§ 361,
subd. (c)(1).)

“The dependency statutory
framework distinguishes between a parent with whom the child was residing at
the time the href="https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000228&cite=CAWIS300&originatingDoc=I562d8bc2a4df11dc8660fe478720b947&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.RelatedInfo)">section 300 petition was initiated
(custodial parent), and a parent with whom the child was not residing at the
time the events or conditions arose that brought the child within the
provisions of href="https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000228&cite=CAWIS300&originatingDoc=I562d8bc2a4df11dc8660fe478720b947&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.RelatedInfo)">section 300 (noncustodial parent).  (href="https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000228&cite=CAWIS361&originatingDoc=I562d8bc2a4df11dc8660fe478720b947&refType=SP&originationContext=document&transitionType=DocumentItem&contextData=(sc.RelatedInfo)#co_pp_4b24000003ba5">§§ 361, subd. (c), href="https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000228&cite=CAWIS361.2&originatingDoc=I562d8bc2a4df11dc8660fe478720b947&refType=SP&originationContext=document&transitionType=DocumentItem&contextData=(sc.RelatedInfo)#co_pp_8b3b0000958a4">361.2, subd. (a).)  href="https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000228&cite=CAWIS361&originatingDoc=I562d8bc2a4df11dc8660fe478720b947&refType=SP&originationContext=document&transitionType=DocumentItem&contextData=(sc.RelatedInfo)#co_pp_4b24000003ba5">Section 361, subdivision (c) governs the
child’s removal from the physical custody of a parent.  ‘“It does not, by its terms, encompass the
situation of the noncustodial parent.”’  [Citation.]”  (In re
V.F. (2007) 157 Cal.App.4th 962, 969, fns. omitted, superseded on other
grounds as stated in href="https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2016792427&pubNum=7047&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite)">In re Adrianna P. (2008) 166 Cal.App.4th 44, 57–58.)

Thus,
the juvenile court could not remove the minors from Father’s custody under
section 361, subdivision (c)(1) because they were not residing with him when
the petition was initiated.  (See >In re Abram L., supra, 219 Cal.App.4th at p. 461 [minors, who did not reside with
the father at the time the petition was initiated, could not be removed from
the father’s physical custody under section 361, subdivision (c)(1)].)  Nor did Father request custody of the minors
under section 361.2, subdivision (a), under which the trial court must
determine whether placement with that parent would be detrimental if a
noncustodial parent requests custody of a child.

“‘[A]
superior court convened as and exercising the special powers of a juvenile
court is vested with jurisdiction to make only those limited determinations
authorized by the legislative grant of those special powers.’  [Citations.]” 
(In re Jody R. (1990) 218
Cal.App.3d 1615, 1622–1623).  Thus, “Even when a court has jurisdiction over the subject
matter and the parties in a fundamental sense, it may have no ‘jurisdiction’ or
power to make orders which are not authorized by statute.”  (Id. at p. 1622
[order joining live-in companion as party to dependency not authorized by
statute, voided and reversed].)

Accordingly,
we conclude that the juvenile court erred in applying section 361, subdivision (c)(1)
to purport to remove the minors from the noncustodial parent.

In
light of our conclusion, we need not determine whether the court’s removal order
was supported by substantial evidence or whether there are reasonable means
that could be employed to protect the minors, such as having the turnover
between the parents occur at a police station. 
Therefore, we reverse the order.   (In re
Damonte A., supra, 57 Cal.App.4th
at p. 900 [where removal order not authorized by statute, appellate court
reversed disposition orders and did not need to address whether substantial evidence
supported
predicate findings for removal].)

DISPOSITION

The juvenile court’s findings and dispositional orders made pursuant
to Welfare and Institutions Code section 361, subdivision (c)(1), removing the
minors from the physical custody of Father are reversed.  In all other respects, the jurisdictional and
dispositional findings and orders are affirmed.

NOT TO BE PUBLISHED.

 

                                                                                    MILLER, J.href="#_ftn2" name="_ftnref2" title="">*

We concur:

 

CHANEY, Acting P. J.

 

JOHNSON, J.