In re Mary Jane G. CA2/4 ( 2020 )

Filed 12/23/20 In re Mary Jane G. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
In the Matter of MARY JANE G. et B305464
al., Persons Coming Under Juvenile
Court Law. (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 19LJJP00877A-E)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
RICHARD G.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los
Angeles County, Stephanie M. Davis, Judge Pro Tempore.
Reversed in part, affirmed in part, and remanded with
directions.
Marsha F. Levine, under appointment by the Court of
Appeal, for Defendant and Appellant.
Office of the County Counsel, Mary C. Wickham,
County Counsel, Kim Nemoy, Assistant County Counsel,
and Stephanie Jo Reagan, Deputy County Counsel, for
Plaintiff and Respondent.
_______________________________
INTRODUCTION
Maria M. (Mother) has eight children: five with
appellant Richard G. (Father) and three with Jesse A. In
February 2020, the juvenile court sustained two counts of a
petition filed by the Los Angeles County Department of
Children and Family Services (DCFS) on behalf of all eight
children: count b-3 (alleging that Father and Mother “have a
history of engaging in violent altercations” which
endangered their five children) and count b-1 (alleging
Mother and Jesse endangered all eight children by exposing
them to domestic violence). The court ordered Father’s
children to remain in his and Mother’s custody and, as part
of his case plan, required him to submit to seven random
drug tests, attend Alanon/Alateen meetings, and receive
individual counseling to address issues of anger
2
management, domestic violence, protective parenting, and
past trauma.1
Father challenges the court’s finding of jurisdiction
over his children based on count b-3, as well as the portions
of the court’s dispositional order relating to him.
Specifically, Father contends that: (a) though Mother’s
failure to appeal ensures the juvenile court will retain
jurisdiction over the children regardless of how we
adjudicate his jurisdictional appeal, we should nevertheless
consider its merits; (b) substantial evidence does not support
the court’s finding of jurisdiction based on the b-3 count; and
(c) the court abused its discretion by ordering Father to
undergo drug tests, attend Alanon/Alateen meetings, and
receive individual counseling.
We agree with Father. Specifically, we elect to
consider Father’s appeal on the merits, both because some
portions of the appealed dispositional order arose from the
jurisdictional finding, and because his appeal could change
his status as an “offending” parent to a “non-offending”
parent. Additionally, we conclude substantial evidence does
not support the court’s jurisdictional finding based on count
b-3, because it is undisputed that the last incident of
domestic violence between Father and Mother, though
extremely severe, occurred in 2012, and there was no
indication there would be any future violence. Finally, we
1 Neither Mother nor Jesse appealed any of the court’s
orders, and they are not parties to this appeal.
3
conclude the court abused its discretion in ordering Father to
submit to drug testing, attend Alanon/Alateen meetings, and
receive individual counseling because there was no evidence
any of these programs was necessary. We therefore reverse
these portions of the court’s jurisdictional and dispositional
orders, affirm the remaining portions, and remand for the
juvenile court to exercise its discretion to determine
whether, in light of the views expressed herein, it is
necessary to order Father to participate in any programs or
services.
STATEMENT OF RELEVANT FACTS
A. The Family
Father’s and Mother’s children are Mary Jane G. (who
was 17 years old at the disposition hearing), Samara G. (who
was 16), Richard G., Jr. (who was 15), Gabriel G. (who was
13), and Raymond G. (who was 11) (the G. children). Also
named in the petition were the three children of Mother and
Jesse A. (the A. children, who were four, three, and one at
the disposition hearing).
B. Background
In 2006, Father was observed selling marijuana out of
his car with his children in the back seat. A subsequent
search of the family home disclosed 30 grams of marijuana,
packaged to sell. Though the house was dirty and smelled of
marijuana, an allegation of general neglect was deemed
unfounded. Father was convicted of possession of
4
marijuana, and sentenced to 35 months of probation and five
days in jail.
In December 2010, Father was arrested for battery of a
spouse or ex-spouse, but “released due to furtherance of
justice.” In January 2012, Father was again detained for
battery of a spouse or ex-spouse, but the charge was again
dismissed “due to furtherance of justice.” In February 2012,
Father assaulted, kidnapped, and raped Mother; while the
children were not present during the incident, an allegation
of emotional abuse against Father was substantiated.
Father was convicted and sentenced to three years in
prison.2
In March 2013, Mother was incarcerated for selling
methamphetamine, and Father’s parents became the
children’s legal guardians. Mother was released in April
2014. By 2016, it was reported that Mother and Father had
separated; after Father’s release from custody, he lived with
his parents and the children, who visited Mother every other
weekend.
In March 2017, DCFS learned that Richard Jr. had
participated in a “contest on youth violence,” where he
shared his own experience with violence, stating that three
to five years earlier, he had witnessed domestic violence
between Mother and Father. Father would “‘get high’” and
2 Father self-reported that he received a four-year sentence.
5
argue with Mother, and he could hear Father “being
physical” with her. This referral was “Evaluated Out.”3
In September 2017, an incident occurred in which,
after Father walked Mary Jane, Samara, and Richard Jr. to
Mother’s car, Richard Jr. punched Samara; Father reacted
by “smack[ing]” him, then choking him and punching him in
the stomach. Mother, who was sitting in the driver’s seat,
tried unsuccessfully to intervene; Mary Jane was able to
push Father off Richard Jr. When Mother drove away, Mary
Jane called law enforcement (despite an admonition from
her paternal grandmother that doing so would result in the
children being placed in foster care). Richard Jr. stated that
his lip hurt, and he had a bruise on his hip, but he did not
complain of any other pain. This was reportedly the first
and only time Father had hit any of the children. After this
incident, the children began living with Mother, with visits
from Father occurring only at public places near Mother’s
home (Mother lived in Palmdale, Father in Los Angeles).
The children reported they were safe and happy, and wanted
to maintain a relationship with Father. Father was
remorseful, and all the children denied being afraid of him.
Father admitted he “may have overreacted to the situation”
but reported he had spoken with Richard Jr. and they were
3 “[T]he term ‘evaluated out’ means the child protective
services screener did not find sufficient evidence of physical
abuse or child abuse and neglect to assign the referral to an
investigation.” (In re Aurora P. (2015) 241 Cal.App.4th 1142,
1149, fn. 4.)
6
on good terms. Allegations of emotional abuse, risk of
sibling abuse, and physical abuse by Father were all deemed
inconclusive.
In August 2019, DCFS received a referral of emotional
abuse by Mother’s partner Jesse. Mother reported that
Jesse was intoxicated and kicking and damaging doors.
Jesse admitted to a history of drinking, but claimed to have
reduced his alcohol intake. He tested positive for marijuana.
Over the course of its investigation, DCFS also spoke with
Father, who stated that Mary Jane, Samara, and Richard
Jr., who were now living with him, were doing well
behaviorally and academically. Father confirmed that he
and Mother had a “history of domestic violence” but stated
they were “currently doing well communicating and co-
parenting,” and had a “‘really good relationship.’” He opined
it was “‘important for the kids, they shouldn’t see us having
issues like that.’” The emotional abuse allegation against
Jesse was deemed inconclusive.
C. The Current Petition
In October 2019, DCFS received a referral alleging that
Jesse had come home drunk, argued with Mother, and
shoved her, causing her to fall. Jesse was arrested. When
DCFS investigated, Mother reported that Jesse “‘got drunk
again’” and broke a lot of his stuff, but denied he physically
hurt her. Mother confirmed Jesse was throwing things
around during the argument, and said that while this was
occurring, she was thinking back to a time when Father
7
“‘would throw things and hit me.’” Mother also stated that
after Jesse had left, he returned later that night to kick the
front door and slash the tires to her car.
DCFS spoke individually with Mary Jane, Samara, and
Richard Jr., who were still living with Father. Each
reported things were going well at Father’s home, and
denied all forms of abuse, neglect, or substance use by
anyone around them.
DCFS was unable to speak with Jesse until December
3, 2019. Jesse denied drinking, pushing Mother, or kicking
the door, but admitted to “‘pop[ping] one tire’” because he
was “‘angry and frustrated.’” DCFS obtained a removal
order that same day, and removed the A. children from Jesse
on December 6. When Father was informed that there
would be a detention hearing on December 11, he stated the
children had never reported any domestic violence in
Mother’s home, but Father “‘kind of knew in a sense’, that
something was going on . . . based on the way his son
Richard was behaving at home.” Father specified that
Richard Jr. was “‘really quiet’” and noted “‘he’s not doing
good in school,’” so “‘maybe he’s seen something.’” Father
also stated that while he and Mother had “‘disputes in the
past,’” “‘she doesn’t have to go through this, no one should.’”
In its Detention Report, DCFS listed one of the family’s
strengths as that Father was “[e]mployed, [provided] family
support, [and] maintain[ed] a strong relationship [with] and
[wa]s an active parent to his children.” Additionally, all the
G. children were “appropriately developed, [were] doing well
8
in school, [and had a] strong relationship with parents and
siblings.”
In December 2019, DCFS filed a petition under Welfare
and Institutions Code section 300, subdivisions (a) and (b)(1)
(Sections 300(a) and 300(b)(1)) alleging two counts under
Section 300(a), and three counts under Section 300(b)(1).
Father was named only in counts a-2 and b-3, which
identically alleged that: “The [G.] children[’s] . . . mother,
Maria M[.] and father, Richard G[.] Sr. have a history of
engaging in violent altercations. On prior occasions, the
father struck the mother and threw items at the mother.
The father has a history of two criminal convictions for
Inflict[ion of] Corporal Injury on a Spouse/Cohabitant and
one conviction for Kidnapping. Such violent conduct on the
part of the father against the mother endangers the
children’s physical health and safety and places the children
at risk of serious physical harm[,] damage[,] and danger.”
Counts a-1 and b-1 alleged that Mother and Jesse
exposed all the children to a domestic violence incident in
which Jesse pushed Mother, threw and broke household
items, kicked a door, and slashed the tires to Mother’s car,
resulting in his arrest for domestic violence. Count b-2
alleged that Jesse had a history of substance abuse, was a
current abuser of alcohol and marijuana, and used drugs
while caring for the children, and that Mother knew of
Jesse’s drug problem but failed to protect the children. On
December 11, 2019, the court found a prima facie case to
9
detain the children, and released the G. children to both
Mother and Father.
D. Statements from the Parents and the G.
Children
1. Domestic Violence Between Father and
Mother
Regarding the allegations of domestic violence between
Father and Mother, no one reported any recent incidents.
Mary Jane, Samara, and Richard Jr. all described past
incidents of domestic abuse by Father against Mother, but
Samara stated, “We now live as if it didn’t happen and
everyone moved on.” Gabriel said he remembered only the
night his dad went to jail, and Raymond stated he was too
young to remember, but that he felt safe, comfortable, and
loved by both Mother and Father.
Mother stated that Father would give her black eyes,
and would break things. Father admitted to the domestic
violence. He reported that he had been incarcerated “about
five times for domestic violence, possession of marijuana[,]
and burglary,” and clarified that he was in “jail about 2-3
times for domestic violence.” The third time, he claimed he
was sentenced to four years in prison, which was “‘one of the
best thing[s] that occurred, [because] while I was
incarcerated[,] I was reading the bible, being part of
Christian groups and the whole term I did it at peace. I
participated in conflict resolution classes, obtained my GED
and [learned] vocational computer programs.’” He stated,
10
“‘Regardless of the issues of drugs and domestic violence[,] I
was a good father. Right now[,] I am 1000 times better. My
portrait in the past is my past.’” Father urged DCFS to
“[t]alk to my kids [about] how they feel about me. They are
good, I don’t []pose any threats to my kids. The last domestic
violence incident that I had was in 2012 with their
mother. . . . This did happen in the past, I didn’t say it
didn’t[,] but that’s not who I am.” Father provided DCFS
with documentation showing that he had successfully
completed a 52-week domestic violence program in 2016,
along with certificates for other classes.
2. Striking Richard Jr.
Regarding the 2017 incident when Father struck
Richard Jr., Mary Jane reported that Samara was teasing
Richard Jr., or had pinched him, and he responded by
punching her. Father reacted by “strangl[ing Richard Jr.] a
little.” After the incident, they stopped speaking with
Father for two months, and Father apologized to both Mary
Jane and Richard Jr. Mary Jane elaborated, “‘We’re not
afraid of my dad. With Richard [Jr.], it was a onetime thing
and my dad was angry at that moment. He doesn’t act like
that.’”
Richard Jr. admitted that he hit his sister Samara
because she was “‘talking crap,’” and that Father then “‘hit
me on my face a couple of times and my older sister was
hitting him back. . . . It was the first and only time he hit
me like that.’” When asked about his relationship with
11
Father, Richard Jr. responded, “‘I feel safe, I just lost a lot of
respect for him. My relationship did change but I love my
dad.’”
3. Substance Abuse
None of the children reported that Father abused
drugs. Several children stated that Jesse both drank and
smoked marijuana.
E. Adjudication and Disposition
In February 2020, the court held both the adjudication
and disposition hearings. No witnesses testified. Father’s
counsel asked the court to dismiss the a-2 and b-3 counts
because the domestic violence incidents with Mother had
occurred in 2012 or before, the incident with Richard Jr. in
2017 was an isolated one, and given that Father had
completed relevant programs and was currently parenting
all his children successfully, there was no current risk of
harm to the children. He added that if the court were
inclined to sustain the petition, he would “ask the court to
conform to proof and consider striking the a-2” count.
Mother’s counsel asked only that the a-2 count be dismissed
due to insufficient evidence of a risk to the children, noting
that the court had released the children to both Mother and
Father.4 Mother’s counsel stated that Mother was prepared
4 Counsel stated that as to the identical count b-3, “because
of our agreement with the Department, I will submit the issue of
that count to the court.”
12
to plead “no contest” to the remainder of the petition. The
children’s counsel asked the court to sustain the a-2 and b-3
counts because the G. children had witnessed consistent and
frequent domestic violence between Mother and Father, and
were “at risk of continuing emotional harm.”5 DCFS’s
counsel joined the arguments of the children’s counsel, and
noted that although Father completed a 52-week domestic
violence program in 2016, he still struck Richard Jr. in 2017.
The court sustained the b-3 count “based on the
evidence presented, and significantly the fact that after the
G[.] Father completed the domestic violence classes, he had
what this court would view as a second and significant
domestic violence incident involving one of the minors, which
does present prima facie evidence to this court that these
children are at risk of serious physical harm, damage or
danger.” The court dismissed the a-2 count for “insufficiency
of the evidence.” After confirming that Mother and Jesse
were pleading no contest to the b-1 count (alleging Mother
and Jesse endangered the children by exposing them to
domestic violence), the court dismissed the remaining counts
and proceeded to disposition, stating it would be “considering
5 The petition contained no counts under Welfare and
Institutions Code section 300, subdivision (c), which permits
jurisdiction to be found if a minor “is suffering serious emotional
damage, or is at substantial risk of suffering serious emotional
damage . . . as a result of the conduct of the parent or guardian
. . . .” (Welf. & Inst. Code, § 300, subd. (c).)
13
the evidence previously presented as well as the sustained
petition.”
Again, no witnesses testified. Without hearing
argument, the court ordered the G. children to remain in
Mother’s and Father’s physical custody, and ordered Father
to submit to seven random or on-demand drug tests, attend
Alanon/Alateen meetings, and undergo individual counseling
to address issues of domestic violence, anger management,
protective parenting, and past trauma.6 Father’s counsel
objected, stating that Father was “asking the court to order
family counseling [and] family preservation” but would “ask
the court [to] narrowly tailor the case plan to this sustained
petition” and was “especially objecting to the 12-step
programs and the drug testing as there were no substance
abuse counts sustained against [Father].” The court noted
the objections, agreed to order family preservation services,
but did not otherwise modify its order. Father timely
appealed.
6 “Al‑Anon is a mutual support program for people whose
lives have been affected by someone else’s drinking” and
“Alateen, a part of the Al-Anon Family Groups, is a fellowship of
young people (mostly teenagers) whose lives have been affected
by someone else’s drinking whether they are in your life drinking
or not.” (Al-Anon Family Groups, What Is Al-Anon and Alateen?
[as
of December 22, 2020].)
14
DISCUSSION
A. We Will Consider Father’s Jurisdictional
Challenge
Father recognizes that Mother’s failure to appeal the
court’s finding of jurisdiction will leave the juvenile court
with jurisdiction over the G. children regardless of the
merits of his jurisdictional challenge. He nonetheless urges
us to consider his appeal because he also challenges the
court’s dispositional order, and because the outcome of the
challenge could alter his status from “offending” parent to
“non-offending” parent.
In In re Drake M. (2012) 211 Cal.App.4th 754 (Drake
M.), our colleagues in Division Three held that “we generally
will exercise our discretion and reach the merits of a
challenge to any jurisdictional finding when the finding (1)
serves as the basis for dispositional orders that are also
challenged on appeal [citation]; (2) could be prejudicial to the
appellant or could potentially impact the current or future
dependency proceedings [citations]; or (3) ‘could have other
consequences for [the appellant], beyond jurisdiction’
[citation].” (Id. at 762-763.) Because the outcome of the
appeal in Drake M. was “the difference between father’s
being an ‘offending’ parent versus a ‘non-offending’ parent”
which “distinction may have far-reaching implications with
respect to future dependency proceedings in this case and
father’s parental rights,” the court reviewed father’s appeal
15
on the merits, despite the fact that dependency jurisdiction
over the minor would remain in place. (Id. at 763.)
At the beginning of the dispositional hearing below, the
court explicitly stated it would be “considering the evidence
previously presented as well as the sustained petition.”
Moreover, the jurisdictional finding was based on Father’s
past violence toward Mother, and as part of his case plan,
Father was ordered to receive individual counseling to
address issues of domestic violence, anger management, and
protective parenting. Therefore, the jurisdictional finding
served in part as the basis for the dispositional order, which
Father also challenges on appeal.
Additionally, reversing the court’s jurisdictional order
as to Father would make the difference between Father’s
being an offending parent and a non-offending parent.
(Drake M., supra, 211 Cal.App.4th at 763; see also In re
Daisy H. (2011) 192 Cal.App.4th 713, 716 (Daisy H.) [though
juvenile court awarded parents joint custody and terminated
jurisdiction during pendency of appeal, court considered
father’s challenge to jurisdictional findings because “[t]he
court’s jurisdictional findings as to Father [regarding
physical abuse of Mother], if erroneous, could have severe
and unfair consequences to Father in future family law or
dependency proceedings”]; cf. In re I.A. (2011) 201
Cal.App.4th 1484, 1493 [not reaching merits of appeal of
jurisdictional finding where father “has not suggested a
single specific legal or practical consequence from this
16
finding, either within or outside the dependency
proceedings”]).
DCFS argues Drake M. is inapposite because Father
challenges only the drug-related and protective-parenting
portions of the disposition order, which did not arise from
the jurisdictional finding. DCFS misinterprets Father’s
appeal. Father challenges the entirety of the court’s
dispositional order as it applies to him; he simply singles out
as particularly troublesome the portions relating to his
participation in drug-related programs and requiring him to
receive individual counseling to address protective
parenting. Indeed, he concludes his brief by requesting that
“the court’s dispositional orders directed at father be
reversed in their entirety” and only asks “in the alternative,”
that the orders requiring Father to participate in drug-
related services and protective parenting services be
reversed.7
B. The Court Erred in Sustaining Count B-3 as
to Father
We review a court’s finding of jurisdiction for
substantial evidence. (In re A.M. (2010) 187 Cal.App.4th
1380, 1387.) Substantial evidence is “evidence that is
7 DCFS also attempts to distinguish Drake M. by arguing
that the behavior that led to the sustained petition challenged in
Drake M. was a “benign” activity (marijuana use) whereas the
behavior here is not. If anything, the distinction militates in
favor of our exercise of jurisdiction, as the finding below is more
likely to adversely affect Father in the future.
17
‘reasonable, credible and of solid value; it must actually be
substantial proof of the essentials that the law requires in a
particular case.’” (In re E.D. (2013) 217 Cal.App.4th 960,
966.)
Count b-3 of the petition alleged that Mother and
Father “have a history of engaging in violent altercations.
On prior occasions, the father struck the mother and threw
items at the mother. The father has a history of two
criminal convictions for Infliction [of] Corporal Injury on a
Spouse/Cohabitant and one conviction for Kidnapping. Such
violent conduct on the part of the father against the mother
endangers the children’s physical health and safety and
places the children at risk of serious physical harm[,]
damage[,] and danger.” It is undisputed that when this
petition was filed, Mother and Father had been separated for
over three years, Mother was living with Jesse and their
three children, and there were no allegations of any recent
domestic violence between Mother and Father.
We find instructive our opinion in In re Jesus M. (2015)
235 Cal.App.4th 104. There, the juvenile court sustained a
petition under Section 300(b) where “Father and Mother had
a history of engaging in violent altercations in the children’s
presence” and “Father violated the restraining order put in
place to protect Mother.” (Id. at 110.) In response to DCFS’s
argument that the jurisdictional finding was “supported by
the evidence of domestic violence,” this court noted that “the
parents had long been separated, the two incidents Mother
could recall had occurred more than three years earlier, and
18
there was no evidence of current violent behavior.” (Id. at
113.) Thus, despite Father’s “history of physical violence
against Mother and a current pattern of harassing her in
flagrant disregard of the restraining order,” we reversed the
jurisdictional finding, because the evidence “did not
demonstrate a risk of physical harm to the children
justifying the assertion of jurisdiction under subdivision (b)
of section 300.” (Ibid.; see also Daisy H., supra, 192
Cal.App.4th at 717 [reversing jurisdictional finding where
“physical violence between the parents happened at least
two, and probably seven, years before the DCFS filed the
petition,” and “[t]here was no evidence that any of the
children were physically exposed to the past violence
between their parents and no evidence of any ongoing
violence between the parents who are now separated”].)
Here, it is undisputed that Father committed no acts of
domestic violence toward Mother after 2012. While Father
admits to striking Richard Jr. in 2017, nothing in the record
suggests this behavior ever reoccurred, and all five of the G.
children reported having no fear of Father and feeling safe
with him. Additionally, DCFS was informed of and
investigated the 2017 incident when it occurred, and found
the allegations of abuse by Father to be inconclusive. When
DCFS filed its petition in this case, this incident was not
alleged as a basis for jurisdiction. Even assuming conduct
DCFS found insufficient to demonstrate abuse when it
occurred could be substantial evidence supporting
jurisdiction, a juvenile court cannot sustain a petition based
19
on an incident unrelated to the petition’s allegations. (In re
Andrew S. (2016) 2 Cal.App.5th 536, 544 [reversing
jurisdictional finding and noting that “[t]o the extent the
juvenile court [found jurisdiction because it] interpreted the
petition to charge that [father] had failed to protect the
children from [mother]’s physical abuse, the Department
never made any such allegation; and [father] had no notice
or opportunity to defend against it”].) The allegations in the
petition relating to Father cited only his past domestic abuse
against Mother, not any conduct directed toward his
children. (See In re Wilford J. (2005) 131 Cal.App.4th 742,
751 [“a parent whose child may be found subject to the
dependency jurisdiction of the court enjoys a due process
right to be informed of the nature of the hearing . . . in order
that he or she may make an informed decision whether to
appear and contest the allegations”]; In re Justice P. (2004)
123 Cal.App.4th 181, 188 [same].)
DCFS argues that substantial evidence supports the
court’s jurisdictional finding because: (1) Father’s violence
towards Mother was constant, not a one-time event, and the
G. children were present for at least some of it; (2) though
Father had not been violent toward Mother for eight years,
he lacked the opportunity because he was incarcerated for
four of those years, and they had separated; (3) there was no
evidence Father’s “‘violent, abusive tendencies [were] only
limited to “domestic partners,” and not to other women to
whom the minors might be exposed, such as Father’s dates
20
and acquaintances’”; and (4) in 2017, he struck Richard Jr.
We disagree that this constitutes substantial evidence.
Whether Father’s violence towards Mother happened
once or several times, it is undisputed it ceased eight years
prior to the court’s finding of jurisdiction. In Jesus M., we
held that a juvenile court’s finding of jurisdiction could not
be sustained based on the parents’ “history of engaging in
violent altercations” (i.e., more than one incident of violence)
because the incidents occurred “years ago.” (Jesus M., supra,
235 Cal.App.4th at 110, 112.) Similarly, while a child’s
presence during the occurrence of domestic violence may be
a factor for a court to consider, the G. children’s presence
during the past domestic violence also occurred eight years
earlier.
Additionally, while it is true that Father had no
opportunity to behave violently toward Mother while in
prison, there is no evidence he was violent toward her in the
years following his release. While DCFS speculates that
Father might be violent toward others, the burden of proving
jurisdiction falls to DCFS, and there was no evidence Father
was or would be violent with other women in his life. (See,
e.g., In re Isabella F. (2014) 226 Cal.App.4th 128, 137 [“In
dependency proceedings, the social services agency has the
burden to prove by a preponderance of the evidence that the
21
minor who is the subject of the dependency petition comes
under the juvenile court’s jurisdiction”].)8
Finally, as discussed above, the incident between
Father and Richard Jr. occurred in 2017, and as Father
notes, nothing in the record suggests this was more than “a
one-time occurrence during which father, in an effort to
protect his daughter, got angry with his son and took
unwarranted action which he later regretted and which
never happened again.” All children reported feeling safe
with Father, and Richard Jr. himself stated, “‘I feel safe, I
just lost a lot of respect for him. My relationship [with
8 DCFS’s citation to In re Heather A. (1996) 52 Cal.App.4th
183 is therefore unhelpful. In Heather A., there was evidence
that the father had abused both his previous and current wife,
and the abuse that precipitated the petition occurred three
months before it was filed. (Id. at 187, 194.) An expert profile of
the father showed he was “prone to hostility and violence in his
relationships with others, including his relationships with
women” and that he had a “‘long history of disruptive emotional
relationships with women.’” (Id. at 194-195.) Thus, in response
to the father’s suggestion that the juvenile court could have
protected his children short of removal by returning them to him
on condition that he not invite a domestic partner into his home,
the appellate court held this insufficient, as there was no
indication the father’s anger and hostility “are only manifest
when Father is interacting with a domestic partner,” nor that
“Father’s violent, abusive tendencies are only limited to ‘domestic
partners,’ and not to other women to whom the minors might be
exposed, such as Father’s dates and acquaintances.” (Id. at 196.)
Here, by contrast, there is no evidence Father had engaged in
domestic violence against anyone but Mother, or that he had
committed domestic violence against anyone after 2012.
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Father] did change but I love my dad.’” Moreover, as noted,
DCFS did not plead this incident as a basis for jurisdiction in
the petition, and a petition cannot be sustained based on
unrelated incidents. (In re Andrew S., supra, 2 Cal.App.5th
at 544.) On this record, substantial evidence does not
support the court’s finding of jurisdiction based on count b-3,
the only sustained count naming Father.
C. The Court Abused Its Discretion on
Disposition
Father admits that even if he is non-offending, the
court was within its power to order him to participate in
programs. “The court’s broad discretion to determine what
would best serve and protect the child’s interest and to
fashion a dispositional order in accord with this discretion,
permits the court to formulate disposition orders to address
parental deficiencies when necessary to protect and promote
the child’s welfare, even when that parental conduct did not
give rise to the dependency proceedings.” (In re K.T. (2020)
49 Cal.App.5th 20, 25). We review the juvenile court’s
disposition orders for an abuse of discretion, and review for
substantial evidence the findings of fact on which
dispositional orders are based. (Ibid.) Here, the court
ordered Father to undergo seven random drug tests, attend
Alanon/Alateen meetings, and receive individual counseling
to address issues of domestic violence, anger management,
protective parenting, and past trauma.
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The court expressed no basis for its order that Father
submit to drug testing. The petition contained no allegation
that Father abused substances, and nothing in the record
suggests Father had any current substance abuse issues. On
appeal, DCFS argues the order was justified because
evidence showed Father had a prior drug possession charge,
because Richard Jr. claimed that Father’s past arguments
with Mother were associated at least in part with Father’s
“‘getting high,’” and because Father had five children in his
care. We are not persuaded. Father’s charge for drug
possession occurred in 2006, 14 years before drug testing
was ordered. Because the domestic violence between Father
and Mother occurred eight years before the disposition
hearing, any exacerbating effects of drug use necessarily also
occurred eight years prior. Both these events are too remote
to be the basis for an order for drug testing. And the mere
fact that Father would be caring for children is also
insufficient. On this record, we discern no basis for ordering
Father to submit to drug testing.
Similarly, there was no basis to order Father to attend
Alanon or Alateen meetings. The only person alleged to
have potential substance abuse problems in this case was
Jesse. But there is no evidence Father was affected by
Jesse’s substance abuse issues. DCFS argues it was proper
to order Father to participate in Alanon/Alateen “for the
support of his children,” but, because the court removed the
A. children from Jesse (likely resulting in Jesse’s moving out
of the home he shared with Mother), it is unclear whether
24
the G. children would even encounter Jesse in the near
future.
DCFS makes no attempt to justify the court’s order for
individual counseling on the subjects of anger management,
domestic violence, or past trauma and, in light of our
discussion above, we find the court also abused its discretion
in ordering individual counseling on those issues. On the
subject of protective parenting, DCFS argues the court’s
order is justified based on Father’s “ignor[ing] his suspicions
that the children were being exposed to domestic violence.”
We take issue with DCFS’s characterization of Father’s
“suspicions.” When informed of the allegations against
Jesse, Father first “stated that his children have never
reported any domestic violence in mother’s home.” He then
said, he “‘kind of knew in a sense’, that something was going
on . . . based on the way his son Richard was behaving at
home.” Father specified that Richard Jr. was “‘really quiet’”
and noted “‘he’s not doing good in school,’” so “‘maybe he’s
seen something.’” In December 2019, Richard Jr. was one
month shy of turning 15 years old. Any inference that
Father needed counseling to address protective parenting
because he did not immediately discern that domestic
violence was occurring in Mother’s and Jesse’s home based
on his teenage son’s being “really quiet” and not doing well
in school was unwarranted.
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DISPOSITION
The portion of the court’s jurisdictional order
sustaining count b-3 is reversed as to Father. The portion of
the court’s dispositional order requiring Father to submit to
drug testing, attend Alanon/Alateen meetings, and undergo
individual counseling is reversed. The remaining portions of
the jurisdictional and dispositional orders are affirmed. On
remand, the juvenile court shall exercise its discretion to
consider whether it is necessary to require Father to
participate in any programs or receive any services in light
of the views expressed herein, and shall make any
appropriate orders based on that determination.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
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