In re Yesenia G.

Filed 5/31/07 In re Yesenia G. CA2/2

OT 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County. Steven Berman, Juvenile Court Referee. Affirmed.

Lori A. Fields for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Owen L. Gallagher, Deputy County Counsel, for Plaintiff and Respondent.

Appellant Maria A. (mother) appeals from orders of the juvenile court sustaining a petition filed by the Los Angeles County Department of Children and Family Services (DCFS) pursuant to Welfare & Institutions Code Section 300^[1]and declaring Yesenia G. a dependent child under section 300, subdivisions (b) and (d). Mother does not dispute the courts finding of jurisdiction but contests the courts sustaining of a count under section 300, subdivision (b), which alleged that mothers mental and emotional problems rendered her incapable of caring for Yesenia. Mother further contests the courts decision not to place Yesenia in mothers custody. We affirm the orders of the juvenile court.

CONTENTIONS

Mother contends that the juvenile court improperly presumed that mother was unable to care for Yesenia because of mothers mental health condition. Mother further contends that substantial evidence does not support the courts decision that Yesenia would be at risk of harm if she was placed with mother. Finally, mother contends that she was deprived of her right to cross-examine the DCFS social worker because of certain evidentiary rulings made by the juvenile court during the cross-examination.

FACTS AND PROCEDURAL HISTORY

1. Family background

Mother and Antonio G. (father) are the parents of seven-year-old Yesenia. Mother and father were married in 1998. After Yesenias birth, mother told father that she considered herself a lesbian, and mother and father agreed to separate in May 2003. Yesenia initially resided with mother and visited father on weekends.

On September 23, 2004, mother was arrested for importing narcotics and was sentenced to eight months in jail. During that time, Yesenia resided with father. After her release from prison, mother became depressed, was referred to a psychiatrist, and began receiving medication for depression. On September 18, 2005, mother attempted to kill herself by overdosing on depression medication, and was hospitalized. Upon her release from the hospital, mother took up residence with her partner.

After mother and fathers divorce in 2004, the family law court awarded father full custody of Yesenia.^[2] When interviewed by DCFS, mother admitted that after her suicide attempt I was not able to care for Yesenia and the Family Law Court gave full custody to [father]. Mother was allowed to visit every Wednesday for two hours and was given temporary custody every other weekend from Friday through Sunday.

2. Sexual abuse allegations

On October 21, 2005, DCFS was notified of allegations that Yesenia had been sexually abused by father. Yesenia was given a medical examination the same day and was diagnosed with vulvovaginitis. While medical personnel indicated that they suspected sexual abuse, they were unable to confirm or negate such abuse. Therefore, DCFS deemed the referral unfounded.

On August 1, 2006, mother brought Yesenia to the police department because Yesenia had informed mother of incidents of sexual abuse by father. Specifically, Yesenia alleged that after father would bathe her, he would carry her to his room, lay her down on the bed, rub her chest and tickle her private part (referring to her groin area) with his mustache. DCFS again received a referral from the Los Angeles Police Department.

Upon receiving the referral, DCFS questioned Yesenia. Yesenia confirmed the statements that she made to the police regarding fathers sexual abuse. She also stated that while she was in mothers care, mother would sleep all day. Yesenia stated that mother was sick and had a bad heart.

DCFS also interviewed mother. Mother informed DCFS that she was currently in treatment for depression, and during the last year had two psychiatric hospitalizations. Mother stated that her last hospitalization was January 2006. Mother also stated that she had attempted suicide. She stated that she was currently compliant with her psychotropic medications and therapy.

Father was also interviewed, by telephone. He admitted that he had kissed Yesenias chest and sometimes her buttocks after her baths as every father does. Father denied placing his mustache near Yesenias vaginal area, and he stated that mother had coached Yesenia to make the allegation. Yesenia was taken into protective custody. DCFS determined that it was unable to place Yesenia with mother because of her mental health issues and criminal history.

3. The section 300 petition and initial detention hearing

On August 4, 2006, DCFS filed a petition to declare Yesenia a dependent child of the juvenile court pursuant to section 300, subdivisions (b) and (d). The count under subdivision (d) was based on fathers sexual abuse of Yesenia. The first count under subdivision (b) was also based on fathers sexual abuse of Yesenia. A second count under subdivision (b) was based on mothers history of mental and emotional problems, including depression and suicidal ideation, which rendered mother unable to provide regular care for Yesenia and placed Yesenia at risk of harm.

A detention hearing took place that same day. Mother and father were both present, and were appointed counsel. The court detained Yesenia in foster care over mothers objection that she posed no risk to her child. Yesenias attorney indicated that the minor wanted to live with mother, but that further investigation was necessary. The court ordered that family reunification services be provided, and gave the parents monitored visits.

Mother was ordered to undergo random drug tests and a psychological evaluation under Evidence Code section 730. In addition, she was ordered to produce her psychiatric records, to disclose the name of her treating therapist, and to sign a release for her medical and psychological records. Both parents were ordered into parenting and individual counseling, and father was ordered into sexual abuse therapy.

4. The September 6, 2006 pretrial resolution conference and jurisdiction/disposition report

A pretrial resolution conference took place on September 6, 2006. Father substituted in retained counsel, who asserted that mothers partner had coached Yesenia to make the allegations against father. Fathers attorney requested that Yesenia, the parents, and the paternal aunt all be re-interviewed. The pretrial conference was continued, and the court ordered the additional interviews and a supplemental report from DCFS.

DCFS filed a jurisdiction/disposition report dated September 6, 2006. It contained detailed reports of interviews with mother, father, mothers partner, Yesenias paternal aunt, and Yesenias paternal grandmother. Mother stated that she was born in Mexico and had been sexually abused by her father starting at the age of 10 and continuing until the age of 17 when she ran away from home and came to the United States. Mother confirmed her arrest for transportation of illegal drugs, her imprisonment, and her suicide attempt in September of 2005. Mother also confirmed that the family law court gave custody of Yesenia to father due to mothers mental health condition. During her interview in August 2006, mother also stated: I am not capable of taking care of Yesenia at this time. I see the [psychiatrist] every two weeks and I see the psychologist once a week. . . . Six months ago I was diagnosed with Schizophrenia.

Father was also interviewed in August 2006. He confirmed that he had been given custody of Yesenia because mother could not care for her due to mothers depression and suicidal ideation. Father stated that mother had been hospitalized twice, first after attempting suicide, and then again because she attempted to choke her partner and was seeing and hearing things.

Mothers partner confirmed that mother was hospitalized once in September 2005 after a suicide attempt and again in January 2006. Mothers partner indicated that the cause of the second incident was that [mother] was depressed and was not taking her medication. Mothers partner indicated that she was the one whom Yesenia had initially informed of the abuse, and that mothers partner then came up with a plan to question Yesenia in the presence of mother in order to relate to mother what father had done.

Interviews with both Yesenias paternal aunt and Yesenias grandmother indicated that both individuals felt that mother needed help and could not care for Yesenia.

5. The contested adjudication and disposition hearing

The case was not settled informally and proceeded to a contested combined hearing which took place on October 18 and 24, 2006. Mother and father were both present and were assisted by a Spanish interpreter throughout the proceedings. The DCFS detention report dated August 4, 2006 and the September 6, 2004 jurisdiction/disposition report were admitted into evidence. In addition, a DCFS interim review report dated September 26, 2006, two information-for-court-officer reports dated October 18, 2006, and counseling progress reports for both parents were admitted into evidence.

The September 26, 2006 interim review report stated that Yesenia confirmed her description of fathers abuse and denied that anyone had told her what to say. However, father again denied the sexual abuse, and Yesenias paternal aunt denied that she had ever seen father doing anything inappropriate.

The first information-for-court-officer report indicated that Yesenia was doing well in counseling and doing fine in her foster home. However, her therapy was in its initial stages and Yesenia was reluctant to discuss her family. The second information-for-court-officer report attached a letter from mothers individual counselor, indicating that mother was attending weekly therapy and was in compliance with her medication requirements and weekly psychiatric appointments. A certificate of attendance from a 52-week parenting program that mother was attending was also attached, showing that she had completed 11 sessions, she was very cooperative and showed great interest in learning new ways to become a better parent.

After DCFS rested, mothers counsel made a motion to dismiss under section 350. Mothers counsel argued that mother was ready, willing and able to care for Yesenia and the current evidence did not establish that she was not able to do that. The court denied the motion on the grounds that mother had tried to hurt herself in the past and also had stated that she had schizophrenia.

The court then heard testimony from the DCFS social worker. She stated that through interviews with mother she was able to confirm mothers diagnosis of depression and suicidal ideations. The social worker had spoken with mothers individual therapist but had not received a return telephone call from mothers psychiatrist. The social worker indicated that mothers three-hour visits with Yesenia on Saturdays were going well, but that based on the current information her opinion remained that Yesenia would be at risk if released to mother.

The court also heard testimony from Yesenia, who was in second grade. Yesenia testified that she remembered telling the social worker that her mother slept all the time. Yesenia confirmed that, Sometimes she sleeps during the day. Yesenia further testified that no one else would take care of her while her mother slept, she would watch television or a movie.

Mother also testified. She confirmed that she had been diagnosed with depression in 2005. In January 2006, she had been diagnosed with schizophrenia. Mother testified that her doctor changed her medication after January 2006 because the previous medication was making her drowsy. After the doctor changed her medication, she was no longer drowsy. Mother testified that she had not heard any voices in her head after January 2006, and had not felt the symptoms of her depression or schizophrenia since that time either.

In closing, mothers counsel admitted that the language in the allegation [involving mother] is true. However, mothers counsel argued that while she had been diagnosed with depression and suicidal ideation, her condition no longer renders her unable to provide regular care for Yesenia.

The juvenile court declared Yesenia a dependent child under section 300, subdivision (b), counts 1 and 2, and under subdivision (d). The court found by clear and convincing evidence that substantial danger existed to her emotional and physical well-being, that there were no other reasonable means to protect her short of removal from her parents custody, and ordered Yesenia into suitable placement.

DISCUSSION

I. Substantial evidence supports the courts jurisdictional findings and dispositional order

Mother argues that substantial evidence did not support the juvenile courts decision in two ways. First, she contests the courts decision sustaining the allegations in the second count under section 300, subdivision (b), on the grounds that the court improperly presumed that mother was unfit to care for Yesenia from the existence of her mental health condition. Second, she contests the juvenile courts disposition order on the grounds that DCFS did not satisfy its burden of showing that placing Yesenia in mothers custody would put her at risk of harm. For the reasons set forth below, we find that substantial evidence supported both of these determinations.

A. Standard of review

In reviewing the juvenile courts jurisdictional findings and dispositional orders, we apply the substantial evidence standard. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649; In re Henry V. (2004) 119 Cal.App.4th 522, 529.) Substantial evidence is evidence that is reasonable, credible, and of solid value, and which allows a reasonable trier of fact to reach the conclusion the juvenile court reached. (In re Jasmin C. (2003) 106 Cal.App.4th 177, 180.) Where there is any substantial evidence to support the order, contradicted or not, we must affirm the decision. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) We review the entire record in a light most favorable to the findings of the juvenile court. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) We resolve all conflicts in support of the juvenile courts order and uphold all legitimate inferences in support of the order. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.)

B. The allegations under section 300, count b-2

Count b-2 of the petition filed by DCFS under section 300 alleged that mother has a history of, and is currently being treated for, mental and emotional problems including a diagnosis of depression and suicidal ideation, which renders her unable to provide regular care for Yesenia. Count b-2 further alleged that in January 2006, and on a prior occasion, mother was hospitalized for the evaluation and treatment of this condition. This mental and emotional condition was alleged to endanger Yesenias physical and emotional health and safety and to place her at risk of physical and emotional harm.

Mother does not dispute her diagnoses. However, mother cites case law indicating that the fact that she suffers from a mental health condition, including schizophrenia, does not automatically bring Yesenia within section 300, subdivision (b). In support of this argument, mother cites In re David M. (2005) 134 Cal.App.4th 822, 829, and In re Jamie M. (1982) 134 Cal.App.3d 530, 542. In both cases, the appellate court determined that DCFS failed to show that the parents mental problems caused, or created a substantial risk of causing, serious harm to the child. (See In re David M., at pp. 829-830 [evidence of mothers mental and substance abuse problems and fathers mental problems was never tied to actual harm or risk of harm, in fact evidence showed that children were healthy, well cared for, and loved, and that mother and father were raising them in a clean, tidy home]; In re Jamie M., at pp. 541-542 [mothers longstanding paranoid schizophrenic illness was not necessarily detrimental to the mental and physical well-being of her offspring, and evidence showed she had always been a good mother and childrens pediatrician found them to be well taken care of].)

However, the record reveals that in this case, the juvenile courts decision was not based on mothers mental health diagnosis alone. DCFS presented sufficient evidence that Yesenia would be at risk of harm if placed in mothers custody. This evidence consisted of statements, confirmed by mother, that she had attempted to kill herself in September 2005; that she was hospitalized again in January 2006 because she was hearing and seeing things; and, according to father, had at that time also engaged in an act of domestic violence against her partner. In addition, the trial court received statements and heard testimony from Yesenia, who indicated that mother often slept during the day while Yesenia was in mothers care. Finally, the court had before it mothers own statement to a DCFS social worker in August 2006 that, I am not capable of taking care of Yesenia at this time.^[3]

Thus, the juvenile court did not merely presume that mother was incapable of parenting based on her mental health condition. In contrast to the facts present in David M., the risk of harm to Yesenia was more than merely speculative. (In re David M., supra, 134 Cal.App.4th at p. 830.) Mothers mental health condition has caused her to attempt to harm herself, harm her partner, and possibly harm Yesenia, who was left to watch television while mother slept. While these episodes may be symptoms of mothers depression and schizophrenia, they are sufficient evidence that in this particular case, mothers mental health conditions have led to circumstances which create a risk of harm to Yesenia. We therefore find that substantial evidence supported the juvenile courts decision sustaining count b-2.^[4]

C. The dispositional order

Mothers position that the juvenile courts decision not to place Yesenia in mothers custody was error is also premised on her argument that a mental health diagnosis alone does not automatically render a parent incapable of taking care of her child. In support of her position, mother relies heavily on In re Jamie M., supra, 134 Cal.App.3d 530, in which it was held that mothers longstanding diagnosis of paranoid schizophrenic illness alone was insufficient to support a finding of risk of harm to her children without further evidence of how the illness would adversely affect them. (Id. at pp. 541-542.)

As set forth above, the juvenile court had evidence that mothers illness could adversely affect Yesenia. The same evidence which supported the juvenile courts decision sustaining count b-2 provides substantial evidence supporting the juvenile courts determination that placing Yesenia in mothers custody would put her at risk of harm.

Further, we note that in Jamie M., it was uncontested that [the mother] had always been a good mother to Jamie and that the childrens pediatrician found them to be well taken care of. (In re Jamie M., supra, 134 Cal.App.3d at p. 542; see also In re David M., supra, 134 Cal.App.4th at p. 830 [the evidence was uncontradicted that David was well cared for and that mother and father were raising him in a clean, tidy home].) In contrast, mother has not been a custodial parent of Yesenia since 2005. At that time, the family law court determined and mother agreed that mother was not in a position to care for Yesenia due to her mental illness. Mother therefore has not shown, as the parents in Jamie M. and David M. were able to show, that she has consistently provided a stable home for Yesenia.^[5]

II. The juvenile courts evidentiary rulings were not an abuse of discretion

Mother argues that the juvenile court abused its discretion by sustaining objections to several key questions during mothers cross-examination of the DCFS social worker. She also argues that the courts evidentiary rulings deprived her of her due process right to a fair hearing by denying her a meaningful opportunity to cross-examine the social worker involved in the relevant social studies.

In support of her due process argument, mother cites case law holding that a complete deprivation of the right to cross-examine a particular witness violates the appellants due process rights. (See In re Amy M. (1991) 232 Cal.App.3d 849, 864 [courts refusal to allow parents counsel to call child as a witness was a denial of their right to due process]; In re Dolly D. (1995) 41 Cal.App.4th 440, 445 [courts refusal to set default prove-up hearing because father was not present on the day of trial denied father the right to confront and cross-examine the social worker who prepared the DCFS report]; Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1512-1513 [courts permitting of witness testimony to be presented by way of a statement read by counsel compromised the ability of the father to observe the words and demeanor of the witness and cross-examine the witness].) These cases are not relevant as mother was permitted to cross-examine the social worker. Her due process right to cross-examination was not violated.

A court may exercise reasonable control over witness interrogation to make it as rapid, as distinct, and as effective for the ascertainment of truth, as may be. (Evid. Code, 765, subd. (a).) For the reasons set forth below, we find that the juvenile court did not err in making the specific evidentiary rulings to which mother objects.

A. Standard of review

The scope of cross-examination is within the sound discretion of the trial court. (People v. Adan (2000) 77 Cal.App.4th 390, 394.) A juvenile courtsevidentiary rulings will not be overturned on appeal unless there is clear abuse of the courts discretion. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385.) Such abuse may only be found upon a showing that the trial courts decision was palpably arbitrary, capricious, or patently absurd, and resulted in injury sufficiently grave as to amount to a miscarriage of justice. [Citations.] (Ibid.) Even where an abuse of discretion is found, reversal is not warranted unless it is reasonably probable that a different result would have been reached absent the error. [Citations.] (Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, 948.)

B. The evidentiary rulings

We address individually each evidentiary ruling contested by mother.

Mothers counsel asked the social worker whether the social worker inquired of mothers therapist if, in her opinion as a therapist, mother posed a risk to the child if the child was released to mother. Counsel for DCFS objected on the grounds of hearsay, and the juvenile court sustained the objection.^[6] Mother objects that the question did not call for hearsayinstead, it asked only whether the social worker had posed a certain question to the therapist. Mother further objects because the question was relevant to the issue of whether any nexus existed between mothers condition and her parenting capabilities.

At the time that mothers counsel asked this question, mothers counsel was interrogating the social worker about the substance of a conversation that the social worker had with mothers therapist. This line of questioning did call for hearsay. For example, the previous question to the social worker was whether the therapist had informed the social worker that mother was in compliance with her counseling. Thus, while the specific question did not call for hearsay, the juvenile court did not abuse its discretion in cutting off a line of questioning which called for further hearsay evidence. In addition, we note that immediately after DCFSs hearsay objection was sustained, the social worker responded, No, I did not. Therefore, even if the juvenile court had erred in sustaining the objection, such error was harmless beyond a reasonable doubt as the social workers answer was no. Further, mother was free to put on direct evidence of the therapists opinions, which she did not do.

Mothers next contention of error involves an inquiry as to whether the social worker knew if mothers medication had changed between January 2006 and the present. DCFS objected on the grounds of relevance, and the juvenile court sustained the objection. Mother contends that this question was relevant because the petition alleged that mother had been hospitalized in January 2006 and DCFS still claimed that mothers mental health condition precluded her from taking care of her child. Thus, mother argues, investigation of mothers medication changes, and the extent to which her condition had improved or stabilized since January 2006, was directly relevant to whether the petition should be sustained as of October 2006.

We decline to find an abuse of discretion as to the courts relevance determination. Mother had provided no evidence that the social worker had knowledge of the effects of mothers medication or how any changes in mothers medication might affect the social workers conclusions. It was therefore not relevant in the context of mothers interrogation of the social worker. Further, as DCFS points out, only mother and mothers physician had personal knowledge of mothers medication, and mother was not precluded from testifying on the issue herself or producing her physician to testify on the issue. Thus, even if the juvenile court had erred in sustaining DCFSs relevance objection, any such error was harmless.

Mothers counsel then posed several questions which, according to mother, directly related to the nexus between mothers mental health condition and Yesenias well-being and safety. First, mothers counsel asked the social worker, Are you aware that prior to DCFS involvement, my client had every Wednesday night visits, unmonitored, and every other weekend overnight visits, unmonitored? The court sustained a relevancy objection. Mothers counsel then asked the social worker, Do you have any information that your investigation uncovered that my client was inappropriate or abusive or negligent to the child during her visitation period between September 2005, up until . . . the Department filed a petition in August of 06? Again, the court sustained a relevancy objection, stating, Im not sure that the social worker can diagnose either schizophrenia or suicidal ideation or depression or anything else like that.

The courts comment indicates that the court agreed that the social workers awareness of mothers prior visitation, or of whether mother was inappropriate, negligent, or abusive during that visitation, was irrelevant to the issue of whether mothers mental illness led to symptoms that put Yesenia at risk of harm. We decline to find this decision to be an abuse of discretion under the circumstances, as mother was not accused of abusive behavior towards the child.

In addition, any error that the trial court may have made in sustaining the relevancy objections was harmless. The social workers knowledge that mother had unmonitored visits with Yesenia prior to DCFS involvement is apparent from the initial DCFS jurisdiction/disposition report, dated September 6, 2006, which contains mothers statements describing her visitation schedule with Yesenia and which was signed by the testifying social worker. In addition, the same jurisdiction/disposition report contained statements from Yesenia regarding prior unmonitored visits during which mother spent time sleeping during daytime hours. At the hearing, mothers counsel had previously inquired of the social worker whether Yesenias foster mother indicated that mother had done anything inappropriate during her recent visits with Yesenia. The social worker replied that the foster mother had provided no indication of any inappropriate behavior in those visits. Therefore, evidence regarding mothers behavior during her visits from September 2005 through the present was already contained in the record. And finally, as respondent points out, mother was entitled to produce evidence of her previous unmonitored visits and the appropriate nature of her more recent visits in her case-in-chief, which she did not do.

Finally, mothers counsel asked the social worker to articulate with specificity all the social workers reasons for believing that the child would be at a substantial risk of harm if released to mother. DCFS objected under Evidence Code section 352, and the trial court sustained the objection.

Evidence Code section 352 provides a trial court with discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will result in undue consumption of time, or create a danger of undue prejudice. The basis for the juvenile courts decision appeared to be undue consumption of time and undue repetition of evidence. In sustaining the objection, the court stated, Its all in [the] detention report on page 4. Its in the P.R.C. report. The court was well within its discretion in limiting the cross-examination by declining to require the social worker to state with specificity what was already detailed in an admitted report.

DISPOSITION

The juvenile courts orders sustaining count b-2 under section 300 and ordering DCFS to find suitable placement for Yesenia are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

CHAVEZ

We concur:

_______________________, Acting P. J.

DOI TODD

_______________________, J.

ASHMANN-GERST

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^[1] All further statutory references are to the Welfare & Institutions Code unless otherwise indicated.

^[2] It is unclear from the record exactly when the family law court made this custody order. However, mothers counsel admitted that father had obtained custody of Yesenia in 2005 after mothers depression and suicide attempt, which would place the custody order sometime after September 18, 2005.

^[3] At oral argument, mothers counsel suggested that this statement should not be considered in support the trial courts findings. We disagree. Contrary to counsels arguments, mothers request for custody of Yesenia does not render the statement meaningless, and mother points to no specific instances where mothers counsel was prevented from examining the social worker about the context of the statement.

^[4] At oral argument, mothers counsel strongly opposed DCFSs position that mother failed to protect Yesenia from her fathers sexual abuse. In its section 300 petition, DCFS did not allege that mother failed to protect Yesenia from fathers abuse, and mother did not have the opportunity to defend such an allegation before the juvenile court. Therefore, we have not considered this argument in analyzing whether the trial courts decision is supported by substantial evidence. Regardless of any allegations involving fathers behavior, substantial evidence supported the trial courts decision that mothers mental health condition rendered her incapable of caring for Yesenia.

^[5] Mother points out that while the juvenile court appeared to have proceeded under section 361, the statute applicable to removal of a child from a custodial parent, mothers request that Yesenia be placed with her should have been evaluated pursuant to section 361.2, which requires a juvenile court to determine whether there is a noncustodial parent who desires custody of the child. However, mother does not contend that this was prejudicial error. Under section 361.2, 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. Thus, both statutes involve a similar analysis of the risk of harm to the child.

^[6] Evidence Code section 1200 defines hearsay evidence as evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.