In re A.J.Annotate this Case
Appellant L.M. was the biological father of A.J. (child). Father appealed a juvenile court order from the Welfare and Institutions Code, section 366.261 permanency planning hearing that denied him supervised visitation with the child based on a finding of detriment. “Detriment is a familiar standard in child welfare determinations; but, as several courts have acknowledged, the notion of detriment is at best a nebulous standard that depends on the context of the inquiry . . . . It cannot mean merely that the parent in question is less than ideal . . . . Rather, the risk of detriment must be substantial, such that [the proposed action] represents some danger to the child’s physical or emotional well-being.” The Court of Appeal concluded that while substantial evidence did support the court’s finding of detriment, it wished to clarify that the trial court was not required to make such a finding because, as a mere biological father, father was not considered a “parent” for purposes of section 366.26, subdivision (c)(4)(C) and thus was not presumptively entitled to visits during guardianship. As the juvenile court pointed out at the section 366.26 hearing, it would be an “anomaly or quirk in that throughout the length of the case, it was perfectly appropriate to deny [father] visitation based on [the child’s] best interest or the court’s discretion” but now that a permanent plan had been established the court could only deny visitation if it could make a finding of detriment. The Court of Appeal concluded that the Legislature did not intend to create such an anomaly or quirk, and that it fully intended the term “parents” in section 366.26, subdivision (c)(4)(C), to include only mothers and presumed fathers. For this reason, the juvenile court here did not have to make a finding of detriment before denying father visits with the child during the guardianship.