Filed 12/14/17 In re A.V. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In re A.V., a Person Coming Under the Juvenile Court Law. H044237
(Santa Clara County
Super. Ct. No. 1-16-JD-024001)

SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES,

Plaintiff and Respondent,

v.

M.L.,

Defendant and Respondent;

A.V.,

Appellant.

A.V., a teenaged, United States citizen, had been living with a nonparental relative in the United States before she voluntarily went to the Bill Wilson Center (BWC), and the Santa Clara County Department of Family and Children’s Services (Department) placed her in protective custody because of caretaker absence. The juvenile court determined that A.V. came within its jurisdiction under Welfare and Institutions Code section 300, subdivision (b) (failure to protect) and subdivision (c) (serious emotional damage). Both parents, E.V. (father) and M.L. (mother), were living apart in Mexico. A.V. had not lived with father since February 2015, and she had not lived with mother since 2012. Mother requested custody of A.V. After a contested disposition hearing, the court declared A.V. to be a dependent child of the court and placed A.V. with mother, whom the court found to be the formerly noncustodial parent, under a family maintenance plan.
A.V.’s wishes conflicted with the court’s disposition. She appeals, arguing that substantial evidence does not support the juvenile court’s finding that she would not suffer detriment in mother’s care and that there was substantial evidence demonstrating that her placement with mother would impair her emotional well-being and, consequently, be detrimental to her.
We affirm the November 7, 2016 disposition order.
I
Procedural History
In approximately mid-July 2016, the Department filed a juvenile dependency petition on behalf of A.V., who was then 14 years of age, under section 300, subdivisions (b)(1) (failure to protect) and (g) (no provision for support). It reflected that both of A.V.’s parents lived in Mexico. On July 15, 2016, the court declared father to be A.V.’s “presumed father.” (See § 361.5, subd. (a) [family reunification services for “statutorily presumed father”].)
A first amended petition, filed on July 29, 2016, sought dependency jurisdiction over A.V. under section 300, subdivisions (b)(1), (c) (serious emotional damage), and (g). A second amended petition, filed in August 2016, also sought dependency jurisdiction over A.V. under section 300, subdivisions (b)(1), (c), and (g).
The jurisdiction hearing was held on September 12, 2016. The second amended petition was amended on its face, and the section 300, subdivision (g), allegations were stricken.
As amended at the jurisdiction hearing, the second amended petition contained the following allegations as to the court’s jurisdiction under section 300, subdivision (b). A.V.’s parents, who resided in Mexico, allowed her to move on her own to the United States in February 2015. The parents had taken “no steps to ensure their plan for [A.V.’s] care was carried out” or to ensure her “safety and wellbeing, resulting in [her] having no consistent caretaker.” A.V. was “afraid to return to either parent’s care because they each have a history of failing to provide the child with safe and consistent care.” The parents had “moved [A.V.] back and forth between Mexico and the U.S., and from relative to relative, all without ensuring the child’s safety and wellbeing.” On July 12, 2016, A.V., then 14 years old, had been placed in protective custody because she had no available caretaker.
As amended at the jurisdiction hearing, the second amended petition contained the following allegations as to the court’s jurisdiction under section 300, subdivision (c). A.V. had “engaged in self-harming behavior by cutting herself on her arms and stomach to cope with depressive symptoms from the loss of parental support, and from being sent to the U.S. from Mexico by her father.” A.V.’s adult female cousin who had been caring for her, E.G., “failed to address [her] mental health and emotional needs, and instead punished [her] by taking away her privileges.” “The parents were aware of [A.V.’s] self harming behaviors” and of E.G.’s failure to properly address “the issues,” and they had “failed to protect the child.” On two occasions, A.V.’s father had “perpetrated domestic violence on [her] mother in the child’s presence” by hitting mother. “One incident occurred when [A.V.] was very young[,] and the other incident occurred in 2012.” Lastly, A.V. had “expressed that she is fearful of [her] mother’s live-in boyfriend, [A.B.].”
The parties submitted the matter for a jurisdiction finding based on the documentary evidence. The juvenile court admitted into evidence the jurisdiction/disposition report, dated August 4, 2016, and four addenda thereto, dated August 12, 2016, August 26, 2016, September 6, 2016, and September 12, 2016, respectively.
The jurisdiction/disposition report recommended that the court assume dependency jurisdiction, adjudge A.V. a dependent child, and offer family reunification services to the parents. A.V. had been placed in protective custody, and at the time of the report, A.V. was residing in a San Jose group home. The report indicated that A.V. had been residing with E.G., a nonparental relative, before she went to the BWC.
According to E.G., A.V. had been oppositional and using marijuana with her boyfriend and, after “an angry shouting match,” E.G. had asked A.V. to leave. A.V. claimed that E.G.’s rules had become “too stringent,” that E.G. had made oppressive and unfair demands that A.V. provide child care for her younger cousins, and that E.G. had unfairly prevented her from attending her eighth-grade graduation dance.
A.V. told the social worker that she had “a history of cutting herself which stems from attempting to cope with the stressors of her living situations.” She “reported that she ran away from [E.G.’s] home in early June when she was disciplined too harshly for a babysitting incident” and not allowed to go to her eighth-grade dance. She reported that, on July 11, 2016, she ran away again because E.G. had “disciplined her too harshly for visiting with her fourteen year-old [sic] boyfriend in the parking lot.” A friend had taken her to the BWC. A.V. did not want to return to E.G.’s care, and she did not want to visit with her.
The jurisdiction/disposition report further indicated that both of A.V.’s parents resided in Mexico. They were both unmarried and 39 years old. They had had four children together, and A.V. was the eldest.
E.G. had told the social worker that A.V. had been “shuffled from relative to relative in the U.S. . . . .” In 2011, A.V.’s parents had placed her with a maternal aunt in Los Angeles. At some point, A.V. had returned to her parents’ care is Tijuana, Mexico, for approximately one year. In 2012, A.V.’s parents had separated. Mother reported to the social worker that there had been “significant conflicts” in their home, to which A.V. had been exposed, and that they had arisen from father’s “infidelity, domestic violence, and substance abuse.” According to mother, father had suffered from a serious drug and alcohol problem that resulted in “dangerously erratic” and violent behavior. Father had hit mother in front of their children on one occasion. According to mother, when the parents broke up, A.V. chose to stay with father. Mother reported that father and she were “not on speaking terms.”
The report indicated that father had gone into a drug and alcohol rehabilitation center for almost one year. During that period, A.V. stayed with a neighbor and close friend in Tijuana. A.V. briefly returned to father’s care in 2014. He sent A.V. to the United States in February 2015. While father and A.V. had periodic contact, he did not ensure that her needs and well-being were appropriately addressed in the United States.
A.V. indicated that father had not taken the initiative to call her while she lived in the United States, and they spoke only when E.G. called him. A.V. had regularly received telephone calls from mother throughout A.V.’s stay in the United States. Mother was requesting that A.V. be placed in her care in Mexico, and mother asserted that she was able and ready to care for her. Mother was willing to work with DIF Nacional in Mexico, to undergo an assessment of her home, and to participate in services to facilitate her daughter’s return to her home.
When interviewed in July 2016, A.V. told the social worker that she did not feel comfortable in mother’s care because of comments made by mother’s boyfriend. He had exclaimed, “Mamacita!,” “while looking at her body when they were alone.” A.V. had “perceived the comments as an attempt to sexualize the relationship and move it forward in that manner,” and she was fearful. A.V. believed that she was “at risk of sexual abuse by her mother’s boyfriend, and she [did] not want to return to her mother’s care.”
When the social worker spoke with mother’s boyfriend, A.B., he denied making comments with sexual overtones to A.V. When the social worker spoke with mother, she reported that she found A.V.’s unruly behavior difficult to manage when A.V had briefly stayed with them.
A.V. also disclosed that when she was a five-year-old child living in Mexico, she had been sexually abused by a nine-year-old child. Mother, who had been recently informed of the incident by E.G., reported that she was previously unware of it.
The social worker had asked the Mexican consulate to “contact DIF Nacional, the National Social Service Agency in Mexico,” to obtain an assessment of “the parents’ ability to safely care for [A.V.]” and “provide for all of her basic needs.” But A.V. did not want to return to parental care in Mexico; she wanted to remain in a group home in the United States.
According to the report, A.V. was “in need of mental health treatment,” and she had been given a referral “to address her mental health and therapeutic needs.” The social worker had concluded that it was in A.V.’s “best interest” “to remain in her temporary emergency placement in a group home . . . until the assessments of her parents’ ability to safely care for [her] [were] completed by DIF Nacional . . . .”
The first addendum report made the same recommendations as had the jurisdiction/disposition report. Mother had provided additional details regarding two domestic violence incidents in which father had struck her with a belt. One incident occurred in front of A.V. when A.V. was “very young.” The other incident also occurred in A.V.’s presence, and it took place “three to four months before [mother] separated from [father] in 2012.”
The addendum reported that mother had sustained two California felony convictions for drug offenses (former Health & Saf. Code, §§ 11351, 11378) in 1998 and that she been sentenced to two years in prison. Mother explained that she had been swept up in a drug raid of a residence, but she maintained that she had not been in possession of any drugs or involved in drug sales.
During the dependency proceedings, the social worker learned that father had been the subject of a violent attack in Mexico, and he was in a coma in the hospital. She had been unable to contact father.
The addendum further reported that the social worker had spoken to someone at the DIF Nacional, and she had learned that, although its services were not as extensive as those available here, it could provide “basic services, such as basic parenting classes, individual assessment and therapy, 12 step programs, and services for domestic violence.” Mother had been contacted by DIF Nacional for an evaluation.
The social worker’s assessment was that A.V. “would certainly be at substantial risk of emotional and physical harm, and it would be a detriment to her well-being if she were returned to her parents’ care at this time.” Mother had not provided “a safety plan” for A.V.’s “safe return to her care without the risk of neglect and sexual abuse.” A.V. still did not want to return to mother because of her “fear of sexual exploitation of her mother’s boyfriend” and her “belief that her mother would not protect her” and “would neglect her needs.”
The second addendum report continued to make the same dispositional recommendations. It was still the social worker’s assessment that A.V.’s return “to her parents’ care would be detrimental to her safety and well-being, as she does not appear to have caretakers who can safely care for her and provide for her basic needs at this time.”
The addendum disclosed that A.V. had confirmed that she had twice witnessed domestic violence between her parents during which her father had whipped mother with a belt. A.V. suspected that there was domestic violence in mother’s current relationship because, when she asked her siblings, they “appear[ed] to be holding back the truth from her.” She did not want to live with either parent.
A.V. had revealed to the social worker that her family had trafficked “crystal” and that she had assisted her paternal grandmother with packaging on about three occasions. A.V. reported that she had stayed with her paternal grandmother for approximately a month when her father was in a substance abuse program. A.V. would not disclose whether her father was involved in narcotics trafficking.
The addendum stated that A.V. had violated the group home house rules by dying her hair. A.V. was scheduled to meet with a therapist for the first time on August 26, 2016.
The addendum indicated that A.V. was “receiving regular telephone calls from her mother in Mexico” and that mother was “supportive of her.” Mother still wished to have A.V. live with her.
The addendum also indicated that A.V. had received no calls from father while at the group home. Father had not responded to the social worker’s telephone calls, and she did not know the condition of his health.
In the third addendum report, the Department’s recommendations remained unchanged. The addendum stated that the social worker had received a “suspected child abuse report” claiming that mother had beaten A.V. “ ‘all the time,’ with a wire, and other objects,” which left “marks and bruises.” The report was deemed a “Non-report,” and it was taken for only informational purposes; there was no child abuse referral. When the social worker spoke with A.V., A.V. acknowledged that “mother had physically disciplined her.” The social worker unsuccessfully attempted to speak to mother regarding the report. The social worker reached mother’s live-in boyfriend, A.B., who told her the telephone lines were down. Father’s telephone “continue[d] to be disconnected,” and the social worker had not spoken with him.
The social worker had spoken with, and sent a letter to, a representative of the Mexican Consulate General. In the letter, the social worker had inquired regarding the status of DIF Nacional’s evaluations. The social worker expressly asked the consulate general to ensure that DIF Nacional evaluated A.V.’s safety in the home because A.V. had reported that in the past mother’s boyfriend, A.B., had sexually harassed her and threatened her with bodily harm when disciplining her, mother had hit her with a wire to discipline her and left marks, and A.V. feared that if she were placed in mother’s care, mother and A.B. would physically abuse her and that A.B. would sexually abuse her. The social worker asked the consulate general to request that DIF Nacional “follow up on the status of [father’s] well-being if at all possible.”
The fourth addendum report continued to make the same recommendations, including recommending that family reunification services be provided to both parents while A.V. resided in the group home placement. A.V. still did not want to return to mother’s care. A.V. had terminated the last two calls from mother.
The addendum updated the information on A.V.’s parents. Father’s telephone was still disconnected. The social worker lacked current information on his well-being. But she had spoken with A.V.’s mother by telephone on September 8, 2016.
Mother had indicated to the social worker that she was “amenable to participating in Family Reunification Services for at least” six months, and she had “consented to allowing [A.V.] to remain in the U.S.” for that time period. Mother reportedly agreed with the social worker’s assessment that A.V. “needed some time to receive mental health treatment before her return home, to address her depressive symptoms and learn more appropriate coping skills than the cutting behavior that she previously engaged in.” Mother also “agreed that she [mother] needed to learn how to more appropriately parent and support her teenage daughter.” Mother indicated that she “understood that DIF Nacional, which ha[d] begun [its] evaluation of her family. . . and home, would be offering the services to her in Mexico for a nominal fee” and that “she would pay for any need[ed] services . . . .” Mother confirmed that “she would engage in her parenting classes, individual counseling services for herself, and joint counseling services with [A.V.] by phone or skype.” Mother also had agreed that it was in A.V.’s “best interest to remain out of [mother’s] care until they have both engaged in their respective services, and both gained the tools they need for [A.V.] to be safe in her care.”
In the fourth addendum report, the social worker concluded that A.V. was in continuing “need of supervision from the Court for substantiated caretaker absence” and general parental neglect. In her opinion, A.V.’s “return home to her parents’ care would be detrimental to her safety and well-being, as she does not appear to have caretakers who can safely care for her and provide for her emotional and psychological needs at this time, or provide her with the supervision that she needs.”
Following the parties’ submission of the matter for a jurisdiction finding, the juvenile court found that the allegations of the second amended petition as amended were true and that A.V. was a child described by section 300, subdivisions (b) and (c).
On October 14, 2016, the court held a contested disposition hearing. The juvenile court admitted into evidence the jurisdiction/disposition report, the four existing addendum reports, and a new fifth addendum report.
The fifth addendum report disclosed that the social worker had been unable to contact either parent. Father’s whereabouts were unknown. Mother’s telephone was “out of order again.”
The addendum provided information regarding the DIF Nacional’s assessment of mother, mother’s home, and mother’s ability to safely care for A.V. It indicated that the DIF Nacional’s social worker had recommended that A.V. be returned home to mother.
DIF Nacional’s written assessment, which was attached to the addendum, evaluated mother’s background, her family structure and dynamics, housing, food and diet, and her financial situation, and found them adequate. The family had lived in its current rental for six months; the house was ordered and hygienic. Mother’s three younger children slept in its one bedroom, and mother and A.B. slept in the living room. Mother had been in the relationship with A.B. for two and a half years, and mother counted on his unconditional support. Mother had an elementary school education, and A.B. had gone to high school. It reported A.B.’s monthly income, which included “selling clothes in different street markets” for the prior four months.
DIF Nacional’s assessment stated that A.B. had assumed the father role in the family. With regard to family dynamics, it stated: “The rules . . . imposed at home [were] complied with and respected, and the limits [were] clear and well established. Communication in the parental system is positive, clear and assertive.” “During the home visit, there were no circumstances detected that would be detrimental to [A.V.], for the short or long term . . . .” The assessment found that the “socioeconomic situation allow[ed] for meeting the needs adequately,” but it noted that mother lacked documentation to support the information provided and made payments in cash. DIF Nacional’s assessment concluded that mother was “aware of the great responsibility and commitment with respect to her daughter [A.V.],” and with respect to A.V.’s “necessary care,” the agency’s social worker opined that both mother and A.B. would “succeed in the positive development of the adolescent.”
At the hearing, counsel for A.V. indicated that she agreed with the Department’s recommendation of family reunification services. Mother’s counsel opposed the recommendations, and she asked for either dismissal of the dependency petition or the grant of family maintenance services, which implied placement of A.V. with mother.
The Department called Rebecca Jimenez, the case social worker, as a witness, and she testified as an expert in risk assessment. Jimenez testified that during the period after the parents separated in 2012 and before father sent A.V. to the United States in 2015, father had been the custodial parent and mother had been the noncustodial parent. Prior to her parents’ separation in 2012, A.V. lived with both her parents. Jimenez’s recommendation was to remove A.V. from her father based on his neglect in allowing her to come to “the U.S. without provisions [and without] following up [on] her safety and care.” Since the Department was unable to contact father and DIF Nacional had not assessed his home, Jimenez could not recommend that A.V. be returned to paternal custody.
As to the prospect of maternal custody, Jimenez testified that A.V. reported not feeling safe with mother. A.V. had not been in mother’s care for years, they had been in conflict, and A.V. did not trust mother to take care of her and provide for her basic needs. Jimenez had concluded that it would not be in A.V.’s best interest or safety to return to mother without intervention. In Jimenez’s opinion, there would be a substantial danger to A.V.’s emotional well-being if she were placed with mother.
According to Jimenez, A.V. had experienced trauma by witnessing domestic violence between her parents, going through their breakup, losing her intact family and siblings, “[b]eing shuffled around to various family members” in Mexico and the United States, and being “without parents to really care for her.” There had been a domestic violence incident when A.V. was “very little,” when she was “around five” years old, and another incident “around the [time of the] 2012 breakup.” Jimenez understood from mother that there had been other domestic violence incidents. A.V. had also suffered trauma from reportedly being sexually abused by an older child when she was five years old.
A.V. had been “passed around” to various persons, including living with her paternal grandmother at one point. She had “lived with a friend in Tijuana while [her] dad was in rehab” due to father’s drugs and alcohol problems. During that period, A.V. did not see much of mother because mother had relocated to Mexico City. Her father arranged for A.V. to go to the United States, and she arrived in the United States on February 4, 2015.
Jimenez testified that A.V. had run away from the relative with whom she had been living in the United States. Subsequently, A.V. had been placed in protective custody.
In recent months, she had been receiving mental health services to address her “significant trauma [of] not having caretakers for many years.” She was receiving therapy once a week. She was currently living in a group home.
Before receiving services, A.V. had coped by cutting herself. She had previously inflicted self-harm by “cutting her arms and stomach.” Jimenez was concerned that, if A.V. were returned to mother without support, intervention, and services, she would cut herself again or she would be so angry that she would run away or hurt someone else.
A.V. had expressed “extreme disappointment, fear, apprehension,” anxiety, and depression at the prospect of being returned to mother’s care. One of the reasons for her “extreme fear” was that she was afraid that mother’s boyfriend would sexually abuse her. An incident in which he called her “mamacita” had frightened her. Jimenez stated that the term can mean that “you look hot or you look sexy.” According to A.V., she had told mother what A.B. had said, but she had not gotten any support from mother and nothing had happened. A.V. did not want to return to mother. Jimenez testified that it was very important to consider A.V.’s perceptions in assessing the risk to her emotional well-being.
It was Jimenez’s opinion that the placement of A.V. with mother would be detrimental to her safety and protection and to her emotional and physical well-being. The potential physical detriment could be renewed self-harming.
Jimenez had spoken with mother, who wanted to have A.V. come home. Nevertheless, Jimenez was recommending against presently placing A.V. with mother. In Jimenez’s opinion, before the court ordered placement with mother, mother needed to “engage in her own services to get some education and awareness about how to parent a teen, a teen that’s been traumatized” and “to engage in her own individual counseling.” Jimenez had suggested that mother participate in joint “counseling sessions via Skype” with A.V. and in individual counseling sessions to “learn to communicate” and create “an understanding between them.” She thought mother should engage in “some parenting classes.” She also believed that it would be “very important” to have A.V. visit mother in Mexico after they had some counseling sessions together and developed some understanding of what was “expected of them.” A.V. had not been in mother’s care since 2012, and they did not have “any real connection” or understanding of one another. They were in conflict at times. When Jimenez spoke with mother, mother blamed A.V.’s cutting on “stressors in . . . the cousin’s care.” Jimenez envisioned approximately six months of regular contact between A.V. and mother while services were provided, followed by a reassessment of the situation. She was concerned that if A.V. were placed in mother’s custody and care before A.V. received further therapy and mother understood A.V.’s emotional needs, the placement would pose a risk of emotional damage to A.V. that could result in further cutting behavior.
Jimenez testified that she had sent the DIF Nacional information, including A.V.’s concerns and fears concerning physical discipline and sexual molestation in mother’s home. The DIF Nacional’s assessment had not specifically addressed those concerns. Jimenez found DIF Nacional’s assessment to be incomplete since it did not clarify or resolve the issues raised. It did not address appropriate boundaries between A.V. and A.B. It did not discuss any safety plans for A.V. It mainly assessed the home’s physical environment and the family’s stability.
The parents and A.V. did not present any evidence at the disposition hearing.
At the end of the contested disposition hearing, the juvenile court asked for written closing arguments, which the parties submitted. Mother argued, among other things, that “there was insufficient evidence produced by DFCS to establish current risk to the child.”
On November 7, 2016, the juvenile court determined that the Department had met its burden as to father under section 361, subdivision (c)(1), and it removed A.V. from father’s custody. But the court also found that, as to mother’s request that A.V. be placed with her, the Department had not met its burden of proof under section 361.2, subdivision (a). The court recognized that the DIF Nacional’s assessment was “a relatively superficial investigation into the home itself and the circumstances of the mother,” but stated that it had “not relied tremendously on the information provided by [the] DIF.” Rather, the court concluded that the Department had not carried its burden of showing, by clear and convincing evidence, that return of A.V. to mother would be detrimental to A.V. It ordered A.V. returned to mother’s care in Mexico under a plan of family maintenance. It granted a temporary stay of execution of that order.
A timely notice of appeal was filed on behalf of A.V.
II
Discussion
A. Legal Background
At the time of disposition, section 361.2, subdivision (a), provided (and does still provide) in pertinent part: “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.” (Stats. 2015, ch. 773, § 47, p. 5799, italics added.) Section 361.2 reflects the strong legislative preference for placement of a dependent child with the noncustodial parent if the child must be removed from the custodial parent. (See In re K.B. (2015) 239 Cal.App.4th 972, 979 (K.B.).)
“To comport with due process, the detriment finding [under section 361.2] must be made under the clear and convincing evidence standard. [Citations.] Clear and convincing evidence requires ‘a high degree of probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.]’ [Citations.]” (In re C.M. (2014) 232 Cal.App.4th 1394, 1401 (C.M.); cf. Santosky v. Kramer (1982) 455 U.S. 745, 769-770 [in parental rights termination proceedings, a standard of proof equal or greater than “clear and convincing evidence” satisfies due process]; cf. also Evid. Code, § 115.) The “clear and convincing evidence” standard is an intermediate evidentiary standard, which lies on the spectrum between the “preponderance of the evidence” and “beyond a reasonable doubt” standards. (People v. Arriaga (2014) 58 Cal.4th 950, 961.) A.V. does not contend that the juvenile court applied a legally incorrect standard of proof.
Under subdivision (a) of section 361.2, the burden is on “the party or parties opposed to such placement [with the formerly noncustodial parent] to prove detriment by ‘clear and convincing evidence.’ [Citation.]” (K.B., supra, 239 Cal.App.4th at p. 979.) Although the juvenile court may consider the nature of the dependent child’s relationship with the noncustodial parent and the child’s feelings and wishes in determining whether such placement “would be detrimental to the safety, protection, or physical or emotional well-being of the child” (§ 361.2, subd. (a)), those considerations are not determinative. (See C.M., supra, 232 Cal.App.4th at p. 1402.) Even the lack of a meaningful relationship between the noncustodial parent and the child, the child’s opposition to placement with the noncustodial parent, or the child’s need for services may not necessarily support a finding of detriment for purposes of section 361.2, subdivision (a), that would preclude placement with the noncustodial parent. (See In re Abram L. (2013) 219 Cal.App.4th 452, 464; In re John M. (2006) 141 Cal.App.4th 1564, 1571.)
B. Substantial Evidence Challenge on Appeal
On appeal, A.V. asserts that substantial evidence does not support an affirmative finding that she would not suffer detriment if she were returned to mother’s care. A.V. maintains that it was in her best interest to continue receiving mental health treatment to prevent self-harm and that placement with mother would impair her emotional well-being and be detrimental to her in that she had experienced significant trauma in and out of mother’s care, mother had failed to protect her, and there was a lack of safety in mother’s home as evidenced by her often-expressed fear and anxiety about returning to that home, especially if A.B. continued living there.
To begin with, under the substantial evidence standard of review, the existence of substantial evidence to support a factual finding contrary to the one actually made by the trier of fact is inconsequential. (See In re V.V. (2011) 51 Cal.4th 1020, 1026; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; see also People v. Perez (1992) 2 Cal.4th 1117, 1126.) More significantly here, the juvenile court made no affirmative finding that placement with mother in Mexico would not be detrimental. Rather, it found a failure of proof as to the issue of detriment under subdivision (a) of section 361.2.
“Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” (Evid. Code, § 500.) “The burden of producing evidence as to a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence.” (Evid. Code, § 550, subd. (a).) “The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact.” (Evid. Code, § 550, subd. (b).)
“As used in [Evidence Code] [s]ection 500, the burden of proof means the obligation of a party to produce a particular state of conviction in the mind of the trier of fact as to the existence or nonexistence of a fact. See Evidence Code §§ 115, 190. If this requisite degree of conviction is not achieved as to the existence of a particular fact, the trier of fact must assume that the fact does not exist. Morgan, Basic Problems of Evidence 19 (1957); 9 Wigmore, Evidence § 2485 (3d ed. 1940).” (Cal. Law Revision Com. com., 29B Pt. 1B West’s Ann. Evid. Code (2011 ed.) foll. § 500, p. 309, italics added.)
“In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528 (I.W.).) “[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; Caron v. Andrew (1955) 133 Cal.App.2d 402, 409.) Specifically, the question becomes whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’ (Roesch v. De Mota, supra, at p. 571, 150 P.2d 422.)” (Ibid.)
Ordinarily, the trier of fact (in this case the juvenile court) “may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.]” (Hicks v. Reis (1943) 21 Cal.2d 654, 659-660.) “This rule is applied equally to expert witnesses. [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890.) But the trier of fact cannot arbitrarily reject uncontradicted expert evidence. (Ibid.)
Here, the case social worker, whom the court deemed an expert on risk assessment of dependent children, was clearly of the opinion that return of A.V. to mother’s care would be detrimental to her safety and well-being if not preceded by the provision of services to ensure A.V.’s well-being, to facilitate the repair of her relationship with mother, and to ready mother to appropriately parent A.V. But the juvenile court was not persuaded that there was clear and convincing proof of detriment. As the reviewing court, we ask whether the weight and character of the evidence of detriment is such that the juvenile court could not reasonably reject the social worker’s opinion. (See I.W., supra, 180 Cal.App.4th at p. 1528; cf. In re R.V. (2015) 61 Cal.4th 181, 211.) We find it was not.
“Detriment is a familiar standard in child welfare determinations; but . . . the notion of detriment is at best a nebulous standard that depends on the context of the inquiry.” (In re C.C. (2009) 172 Cal.App.4th 1481, 1490 (C.C.).) Under section 361.2, subdivision (a), “a court has broad discretion to evaluate not only the child’s physical safety but also his or her emotional well-being.” (C.C., supra, at pp. 1490.)
On the record before us, we cannot conclude that the trial court acted arbitrarily. The DIF Nacional’s assessment reflected that the family unit, consisting of mother, A.V.’s younger siblings, and A.B. in the father role, was intact and stable, that the general conditions of their home were adequate, and that the family’s financial situation was sufficient to meet their needs. The mere fact that they had lived in their current rental for only six months was insufficient in and of itself to prove detriment within the meaning of section 361.2, subdivision (a).
While there was evidence that A.V. had engaged in cutting herself before being placed in protective custody and receiving mental health services, there was no affirmative evidence that her self-harming behavior occurred while she was in mother’s custody or resulted from deficiencies in mother’s care of A.V. while A.V. lived with mother. Insofar as A.V. now asserts that “there was no evidence that she would be able to receive [mental health treatment] services if returned to her mother in Mexico,” we stress that the burden of producing such evidence fell on the parties opposing A.V.’s placement with mother. (See § 361.2, subd. (a); see also Evid. Code, §§ 500, 550.) Regardless, there was in fact evidence that DIF Nacional would be able to provide basic parenting classes, individual therapy, and domestic violence services. Moreover, the court’s placement order was coupled with a family maintenance plan. There was no affirmative evidence that A.V. would not receive needed mental health services if she were placed in mother’s care in Mexico.
A.V. suggests that her fear and anxiety about living in mother’s home, especially with mother’s live-in boyfriend there, supported a finding of detriment. In this case, the social worker spoke to A.B. about the reported “Mamacita!” comment. He denied making any comments with sexual overtones, and he indicated that he only said that A.V. was pretty. There was no concrete evidence that A.B. had acted inappropriately apart from that isolated remark. The court could reasonably conclude that the Department had not proved, by clear and convincing evidence, that a substantial risk existed that A.B. would engage in inappropriate sexual conduct toward A.V. if she were placed in mother’s care.
A.V. claims that the traumatic incidents that occurred while she was in and out of mother’s care demonstrate that placement would be detrimental. But there was no evidence that those incidents were likely to recur if she were placed in mother’s care now. Mother and father’s relationship ended years ago. While A.V. had disclosed an incident of unspecified “sex abuse” by another child when A.V. was five years old, there was no showing that the incident resulted from mother’s neglect or failure or inability to protect her. There was no affirmative evidence that domestic violence or inappropriate physical discipline was presently occurring in mother’s home. Although there was some indication that mother may have used inappropriate physical discipline on A.V. years ago, the juvenile court could reasonably conclude that there was not clear and convincing evidence that there was a substantial risk that domestic violence or physical abuse of A.V. would occur in the future if A.V. were placed with mother.
A.V. also blames mother for failing to protect her by allowing her to live with father in 2012, resulting in her exposure to father’s serious drug and alcohol and mental health problems, and by allowing her to live with various persons, who did not ensure her well-being and stability, between 2012 and 2016. Those problems apparently occurred after A.V. had gone to live with father and when she was out of mother’s custody and care. Neither the Department nor A.V. presented any evidence of what mother should have or could have done, but failed to do, given mother’s alien status, her means, and her responsibilities to her other children. In any case, there was no evidence that mother was likely to leave A.V. with an inappropriate caretaker in the future if the court placed A.V. in mother’s care under a family maintenance plan.
A.V. argues that there was evidence that she “would suffer net harm in mother’s home,” as reflected by the social worker’s testimony that mother and she lacked a “real connection,” that there was a “huge gap” in the continuity of mother’s care of A.V., and that there was a concern whether mother understood A.V.’s needs. But mother consistently indicated to the social worker that she cared about A.V. and wished to assume her care. Mother had maintained contact with A.V. over the years. The mere fact that services and court supervision were impliedly needed, at least initially, to facilitate and ensure A.V.’s well-being in mother’s care was not enough to establish, as a matter of law, that placement with mother would be detrimental within the meaning of section 361.2.
A.V.’s fears and desires regarding her placement, while relevant, did not control whether a showing of detriment had been made under section 361.2, subdivision (a). (See In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1507 (Nickolas T.); see also In re Luke M. (2003) 107 Cal.App.4th 1412, 1426 (Luke M.).) On the record before us, the juvenile court could reasonably conclude that the Department had failed to prove, by clear and convincing evidence, that placing A.V. with mother under a family maintenance plan would be detrimental to A.V.’s “safety, protection, or physical or emotional well-being.” (§ 361.2, subd. (a).)
A.V. also contends that the court’s placement order must be reversed because it was in her best interest to remain in her existing placement and continue her mental health treatment. Some courts have suggested that the “best interest of the child” standard and the detriment standard are essentially two sides of the same coin. (See In re Jacob P. (2007) 157 Cal.App.4th 819, 829; In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1169.) That is not strictly true.
For a juvenile court to decline to place a dependent child with a noncustodial parent at the time of disposition because such placement would be “detrimental” (§ 361.2, subd. (a)), the court must find that such placement would result in harm to the child. (See Luke M., supra, 107 Cal.App.4th at p. 1425 [to find detriment, “the court weigh all relevant factors to determine if the child will suffer net harm”]; cf. In re B.G. (1974) 11 Cal.3d 679, 683 [an award of custody to nonparent under former law required “an express finding that parental custody would be detrimental to the child,” “supported by evidence showing that parental custody would actually harm the child”].) In contrast, when the “best interest of the child” standard applies to placement, the court contemplates what would best serve the child, considering the child’s needs, his or her desires if older, and other relevant circumstances. (Cf. § 361.2, subd. (f)(3) [mandatory factors].)
In this court’s view, the detriment standard of section 361.2, subdivision (a), and the “best interest of the child” standard do not present the same legal question. (Cf. In re Jonathan P. (2014) 226 Cal.App.4th 1240, 1256.) In any case, the placement and the quantum of the burden of proof may be the determinative factor. If the juvenile court finds that detriment was not proved by clear and convincing evidence, the court has no discretion under section 361.2, subdivision (a), to nevertheless place a dependent child with someone other than the noncustodial parent based on the child’s best interest.
In short, the evidence did not compel a finding that, as a matter of law, placement of A.V. with mother would be detrimental to her “safety, protection, or physical or emotional well-being” (§ 361.2, subd. (a)). A.V.’s substantial evidence claim fails.
C. No Additional Requirement to Show Noncustodial Parent was “Nonoffending”
As A.V. recognizes, there is a split in authority as to whether a parent must be a “nonoffending” parent, as well as the formerly noncustodial parent, to obtain placement under section 361.2, subdivision (a). (Compare e.g., In re D’Anthony D. (2014) 230 Cal.App.4th 292, 301; Nickolas T. supra, 217 Cal.App.4th at pp. 1504-1505, and In re V.F. (2007) 157 Cal.App.4th 962, 969, fn. 4, 970, with In re John M. (2013) 217 Cal.App.4th 410, 420, abrogated on another ground in In re R.T. (2017) 3 Cal.5th 622, 624, 629-630, 637, fn. 6, and In re A.A. (2012) 203 Cal.App.4th 597, 608.) A.V. asserts that mother was an offending parent because “[m]other’s actions, in part, led to A.V.’s initial detention,” and “there was no evidence, at the time of the disposition hearing, that mother had addressed the concerns.”
A.V. points to mother’s failure to ensure that she was safe and had an appropriate caretaker when A.V. was not in mother’s care, mother’s failure to address A.V.’s cutting of herself, mother’s failure to complete domestic violence counseling and a parenting class, mother’s failure to demonstrate an understanding of A.V.’s needs and how to meet them, and mother’s failure to demonstrate that her current home was stable. A.V. further argues that mother’s conduct as an “offending parent” provided clear evidence of detriment.
We agree with those courts concluding that whether a noncustodial parent is also an “offending parent” is not a required inquiry under section 361.2, subdivision (a). “Under section 361.2, subdivision (a), the court focuses on the effect placement with the noncustodial parent would have on the child’s safety, protection and physical and emotional well-being. If a noncustodial parent is in some way responsible for the events or conditions that currently bring the child within section 300--in other words, if the parent is an ‘offending’ parent—those facts may constitute clear evidence of detriment under section 361.2, subdivision (a). The statute does not require the court, prior to assessing whether placement with a noncustodial parent would be detrimental to the child, to first determine whether that parent is a ‘nonoffending noncustodial parent’ or ‘offending noncustodial parent,’ and whether that parent retains ‘the right to physical custody’ of the child. According to the plain language of the applicable statutes, there is no need to address or litigate those issues. (§§ 361, subd. (c) [governing removal from custodial parent], 361.2, subd. (a) [governing placement with noncustodial parent].)” (Nickolas T. supra, 217 Cal.App.4th at p. 1505, fn. omitted.)
This conclusion is supported by the statutory scheme as a whole. “Dependency provisions ‘must be construed with reference to [the] whole system of dependency law, so that all parts may be harmonized.’ [Citations.] By examining the dependency scheme as a whole, we can better understand the consequences of a particular interpretation, avoid absurd or unreasonable results, and select the interpretation most consonant with the Legislature’s overarching goals. [Citation.]” (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 844-845.)
“The term ‘nonoffending’ does not appear in the text of section 361.2, subdivision (a). [Citations.]” (Nickolas T., supra, 217 Cal.App.4th at pp. 1504-1505.) In contrast. “[S]ection 361, subdivision (c)(1) states the court may remove the ‘offending parent’ from the home and allow the ‘nonoffending parent’ to retain physical custody on a showing that he or she can protect the child from future harm.” (Id. at p. 1505.) “Thus, the term ‘nonoffending parent’ in section 361 refers to a custodial parent who is not the perpetrator of any child abuse or neglect. It does not refer to a noncustodial parent under section 361.2, subdivision (a).” (Ibid., italics added.)
“Under section 361, subdivision (c)(1), a finding of detriment is required to remove a child from the custody of an offending custodial parent. At each status review hearing, a parent who is the subject of a detriment finding is presumptively entitled to custody unless the agency proves detriment. (§§ 366.21, subds.(e) & (f), 366.22, subd. (a).) A prior detriment finding is not given preclusive effect at subsequent review hearings. (§ 366.22, subd. (a).) The burden of proof to show detriment is on the agency and the fact a home is not ideal is not sufficient to establish detriment. [Citations.] Even if the noncustodial parent was the subject of a prior detriment finding and did not regain custody of the child, that parent is presumptively entitled to custody at each and every subsequent status review hearing. Thus, the presumption for placement with a noncustodial parent at a disposition hearing is consistent with the statutory scheme as a whole, and furthers the legislative goals to maintain or place a child in the care of a parent when safe for the child, strengthen the child’s relationship with siblings and other relatives, and avoid the child’s placement in foster care. (§§ 300.2, 361, 361.2, 361.3, 361.5, 366.21, 366.22.)” (Nickolas T., supra, 217 Cal.App.4th at pp. 1505-1506.)
None of A.V.’s arguments that mother was the “offending” parent demonstrates that the court unreasonably concluded that the Department had not met its burden of proof on the issue of detriment under section 361.2, subdivision (a). Since we cannot say that the evidence compels a finding of detriment as a matter of law, we are without authority to reverse the juvenile court’s disposition order declaring A.V. to be a dependent child of the court and placing her in mother’s care in Mexico under a family maintenance plan.
DISPOSITION
The November 7, 2016 disposition order is affirmed.




_________________________________
ELIA, Acting P. J.

WE CONCUR:



_______________________________
BAMATTRE-MANOUKIAN, J.



_______________________________
MIHARA, J.












In re A. V.; DFCS v. A.V.
H044237