In re S.F. ( 2023 )

Filed 6/8/23 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re S.F., a Person Coming Under
the Juvenile Court Law.
A166150
SAN FRANCISCO COUNTY
HUMAN SERVICES AGENCY, (San Francisco City
& County
Plaintiff and Respondent, Super. Ct.
v. No. JD22-3083)
W.F.,
ORDER MODIFYING
Defendant and Appellant. OPINION AND
DENYING
REHEARING
[CHANGE IN
JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on May 17, 2023, be modified
as follows:
On page 42, the Disposition should be modified to read as follows: “The
jurisdictional findings and orders as to father, as well as the related
dispositional orders regarding removal and substance abuse testing and
treatment, are reversed. The matter is remanded for further proceedings
consistent with this opinion to the juvenile court with directions to issue new
1
or modified orders of jurisdiction and disposition consistent with the findings
in the opinion.”
There is a change in the judgment.
The petition for rehearing is denied.
Dated: ________________________________
Humes, P. J.
2
Filed 5/17/23 (unmodified opinion)
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re S.F., a Person Coming Under
the Juvenile Court Law.
SAN FRANCISCO COUNTY
HUMAN SERVICES AGENCY, A166150
Plaintiff and Respondent, (San Francisco City &
v. County Super. Ct.
No. JD22-3083)
W.F.,
Defendant and Appellant.
W.F. (father) 1 appeals from the juvenile court’s jurisdictional findings
and dispositional orders adjudicating his son, S.F. (minor), a dependent of the
court under Welfare and Institutions Code section 300, subdivision (b)(1) 2
and removing minor from father’s custody. Father asserts (1) the
jurisdictional findings are not supported by substantial evidence, (2) the
dispositional order removing minor from father’s custody is not supported by
substantial evidence of a clear and convincing nature and the orders
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of part II. C.
1 Mother is not a party to this appeal.
All further statutory references are to the Welfare and Institutions
2
Code unless otherwise indicated.
1
requiring him to engage in substance abuse testing and treatment are not
supported by substantial evidence, and (3) the court erred in placing minor in
foster care without first complying with the provisions of the Indian Child
Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).
We agree that neither the jurisdictional findings nor the challenged
dispositional orders are supported by substantial evidence, but conclude the
juvenile court complied with ICWA.
I. BACKGROUND
The San Francisco County Human Services Agency (Agency) responded
to a 10-day “Emergency Response Investigation Referral” regarding mother
and minor, then 11 months old, after mother was released from a
section 5150 hold. The Agency and mother agreed to a safety plan whereby
minor would remain in maternal grandmother’s care and mother would work
with a non-court family maintenance program through the Agency. Two
weeks later, mother violated the safety plan when she “brandished a knife at
the grandmother, and a physical fight occurred between [mother] and
[grandmother] in the presence of [minor],” which resulted in mother taking
minor “on public transit, intoxicated.” At the time, father was residing in
New York with his sister. He was, however, providing monetary assistance
to mother and minor.
Detention
The Agency detained minor and filed a section 300 petition alleging
failure to protect under section 300, subdivision (b)(1) 3 and supported by five
factual allegations (counts B1 to B5). Three of the counts were directed at
3 Section 300, subdivision (b)(1) authorizes juvenile court jurisdiction
where “[t]he child has suffered, or there is a substantial risk that the child
will suffer, serious physical harm or illness, as a result of” any of four
specified circumstances. (§ 300, subd. (b)(1)(A)–(D).)
2
mother (B1 to B3), the remaining two (B4 and B5), at father. Count B4
alleged “father has anger management issues that require assessment and
treatment in that he had been sending the mother threatening text messages.
[Father] has also sent the maternal grandmother and the mother messages
indicating that he would send someone to hurt them.” (Capitalization
omitted.) Count B5 alleged father “reported that he used to abuse crack
cocaine and alcohol but that he is about 2 years sober.” (Capitalization
omitted.)
In its detention report, the Agency stated it had notified father of
minor’s detention. Father stated he had been at the hospital for minor’s birth
but had not signed the birth certificate due to a disagreement with mother.
However, he had taken a DNA test, which confirmed he was minor’s father.
Father identified his two sisters (minor’s paternal aunts) as potential
placements.
The Agency reported father as saying the following: He had abused
“crack, cocaine and alcohol” in the past but had “been clean about 2 years.”
He had previous arrests, one being domestic violence related and the other
“with [mother] when they were still together.” He had been with mother
“during her pregnancy and she was clean for 9 months.” He “moved back to
New York where he is from to get away from the drug environment in [the]
San Francisco Bay Area.” He desired “to take full custody of [minor] and
would be willing to move to California to do so or take him to New York if he
could.” He maintained “mother’s new boyfriend is the reason why she
relapsed.”
The Agency reported that when asked about father, mother and
grandmother “said that they are receiving threats from him in text messages
stating that he will send over a woman . . . to hurt them.” Mother was
3
“interested in filing a restraining order” against father and “was in the
process of applying for one.” Mother stated she and father had “ ‘tussled’
together when they were dating, but that she wouldn’t consider it to be
domestic violence.” Mother’s boyfriend stated mother had been “20 days
sober” before she “receiv[ed] threatening text messages from [father], and
that is when she started using because she was stressed out.”
At the detention hearing, the court found a prima facie case had been
made that minor came within section 300 and removal was necessary to
protect minor’s physical and emotional health. 4 The court ordered minor
detained, placed in foster care, and set the matter for a jurisdiction and
disposition hearing.
Prior to the hearing, father sought to elevate his status to that of
presumed father. In his motion, father stated he was “physically present [for]
[minor] . . . until he moved to New York on June 29, 2021,” when minor was
three months old. During that time, he had regularly “bathed [minor],
burped him, fed him, changed his diapers, and took care of him alone.” He
moved to New York “after a domestic violence incident with [mother],”
because he “thought taking some space would be good for his relationship
with [mother] and he needed the support of his family in New York.” Even
though he had moved, he still spoke with minor “by way of FaceTime on a
4 At the detention hearing, the juvenile court must order the child’s
release from custody unless a prima facie showing is made that the child
comes within a section 300 ground for dependency (here subd. (b)) and the
court finds, under section 319, subdivision (c), that continuation in the home
would be contrary to the child’s welfare, which includes “substantial danger
to the physical health of the child or the child is suffering severe emotional
damage, and there are no reasonable means by which the child’s physical or
emotional health may be protected without removing the child from the
parent’s or guardian’s physical custody.” (§ 319, subd. (c)(1).)
4
daily basis,” as did his sister, with whom he lived. Additionally, both he and
his family helped to support minor. This support included a six-month
supply of diapers sent to minor from paternal uncle, money sent to mother
and maternal grandmother by father, and many “baby items,” including
formula, a stroller, clothes, shoes, toys, diapers, teething supports and a
walker, all for which father provided receipts. While he was in New York, he
had become concerned about mother and minor and had called the San
Francisco Police Department on two occasions “to ask them to conduct a well-
child check” on mother’s home.
Jurisdiction and Disposition
The Agency’s report stated as follows: Father agreed that the B5
allegation—that he had abused “crack cocaine and alcohol but that he is
about 2 years sober”—was true. (Capitalization omitted.) Father said he
started drinking at age 17 5 and began using cocaine in 2018, but he no longer
drank alcohol and had “been clean of cocaine use since 2020.” The Agency
had made a referral for “drug testing to assess his level of drug use,” but as of
the date of the report, father had not tested. Father stated he had focused on
“more pressing matters such as securing housing and employment.” The
Agency was therefore “unable to determine the degree of [father’s] abstinence
from substance use.”
With respect to the B4 allegation, the Agency reported father and
mother had been arrested for a May 2021 domestic violence incident, shortly
before father left for New York. Mother stated father had “hit her, grabbed
at her and pushed her in the past,” was “verbally abusive,” and “had
threatened her and would ‘get in her face’ while they were in a relationship.”
She stated father “had hit her with a fan while she was swinging a golf club
5 Father was 56 years old at the time of the report.
5
at him,” which had led to their joint arrest for infliction of corporal injury on
a spouse or cohabitant. Father “denied any domestic violence” toward
mother, and maintained it was mother who “had taken a swing at him with a
golf club.”
The Agency further reported father had moved back to California “upon
receiving the news that the minor was involved” in dependency proceedings
but had not yet found “stable housing or income.” The Agency had
“encouraged [father] to apply for public assistance if needed,” but had made
no referrals in this regard. Father acknowledged he had not “parented the
minor since leaving San Francisco” in June 2021 but stated he had
financially helped to support minor and was seeking to reestablish his
connection with minor through supervised visitation. Father currently had
supervised visitation with minor two times per week and had been
“consistent” with his visitation.
The Agency’s case plan objectives for father included securing
appropriate housing, substance abuse assessment, random drug testing,
individual therapy to focus on “better communication with mother as a co-
parent,” and completing parenting education. The Agency provided referrals
for a substance abuse assessment, drug testing, parenting education classes,
and a “supportive letter to Compass Family Services.” The Agency did not
provide a referral for any kind of domestic violence services, instead stating
in the domestic violence “follow-up needed for parent(s)” section of its report,
mother and father “are not in a relationship with each other and they only
plan to co-parent the child together. Perhaps, individual therapy for each
parent to learn to communicate with each other more effectively would be a
more suitable tool for the parents to co-parent together.” (Capitalization &
boldface omitted.)
6
Five days before the jurisdiction and disposition hearing, father
completed a self-reporting substance use assessment through the San
Francisco Health Network Treatment Homeless Prenatal Program. Father
reported smoking marijuana once a month and not using alcohol or cocaine.
The therapist at the services center concluded that, given father’s assessment
and report of past and current services, father did “not meet medical
necessity for . . . Substance Use Disorder Treatment[] at this time. [Father]
endorses 2 years of abstinence from alcohol and cocaine and ahs [sic]
successfully completed treatment in 2019. [Father] encouraged to continue
working with community support resources included NA and HPP to
maintain abstinence. [Father] encouraged to reach out if needing additional
support or experiencing a relapse.”
At the contested jurisdiction/disposition hearing, the court heard from
father, mother, the child welfare worker, and the dependency protective
services worker.
Father testified as follows: He had moved to New York in June 2021,
and it was after that that he first learned mother was using drugs after
minor’s birth. Mother had not been using drugs while they were together.
His sobriety date was December 2019. He was not “actively working” on the
12 steps. He did not have a sponsor but had “acquaintances that [he]
obtained [through] Narcotics Anonymous and AA.” His last NA meeting was
three months before the hearing. The protective services worker had spoken
to him about the drug testing referral. But “[t]here was just so much on my
plate” because he was “looking for housing. I didn’t know where I was going
to sleep my head after that point. The hotel room ran out.” He was
attending parenting education classes and felt these were of real benefit and
also helped him stay focused on sobriety. Prior to the hearing, he completed
7
a substance abuse assessment and had tested once, with negative results.
While completing the assessment, he remembered taking an earlier
assessment and completing a 90-day inpatient treatment in 2019. He had
not previously mentioned the 2019 assessment and treatment because “[n]o
one ever asked for it.”
Father denied incidents of domestic violence but acknowledged the May
2021 incident, stating it “was a misunderstanding that . . . led to somewhere
where it shouldn’t have.” The minor was not present and was with maternal
grandmother at the time. Nor was minor present during other arguments he
and mother had gotten into. He did not confirm one way or the other
whether he and mother were going to continue their relationship, but said,
“we’re trying to accomplish things as parents and reunify our family. And
there’s issues that we both need to work on before we quote/unquote say that
we’re intimately involved.”
He had not received any help from the Agency in terms of housing and
was “pretty much doing everything on my own.” He was open to other
services, like “anger management classes,” but hesitant to have too many
services “to get piled up in all these groups that hinder me from getting a roof
over my head so you guys can release my son to me.” He wanted services
that would assist him in obtaining “low subsidy” housing. He had just
obtained employment and was scheduled to start work the week of the
hearing.
Mother testified as follows: She had used drugs with father but “way
before” she became pregnant or had minor.
She and father “got into an altercation and that led us to the jail,” but
it was “not a situation that continuously happened.” They “had gotten into
arguments. Again, not only that, there were certain physical situations. But
8
it’s nothing like abuse at all.” When she told the social worker she and father
had gotten into “tussles,” she meant, “Getting close. Getting loud.” This did
“include putting hands on each other” but “not like bruises and stuff like
that; so—I’ve never really had an actual fight fight. It may have been just
pushing away type of thing.” There were “less than three” incidents, none of
which were in the presence of minor; rather, he was with maternal
grandmother.
With respect to the text messaging, mother initially stated she and
father “had a lot of differences between each other; so I’m not going to say it
was threatening. What I’m going to say is that I, like, moved on, and I was
seeing someone different so there was lots of arguments and things going
against both of us.” On cross-examination, she said father’s text messages
“were not always threatening. But at times, you know, they could feel that
way.”
The child welfare worker testified as follows: From her “first
interactions with [father], he indicated he wanted custody of [minor].” Father
“was transparent” about his past alcohol and cocaine use but never indicated
“he had completed a substance abuse treatment program.” He also had not
provided any documentation that he had engaged in a substance abuse
treatment program. She could not recall if she had ever asked father about
any prior treatment programs or if he had documentation.
She discussed the idea of placing minor with father with her
supervisor. But they decided against it “because [father] hadn’t been
involved in the child’s life for a prolonged period of time and there was that
distance.” At that time, mother had indicated she “was receiving text
messages from dad that seemed threatening, and that was another factor;
9
however, I do believe that in that decision, it came down to the distance and
the lack of involvement of father with the child throughout his life.”
The protective services worker testified as follows: Father did not
provide him with “any verification that he attended any treatment program.”
Nor could he recall if he had ever asked father to do so. Father did complete
a substance abuse assessment. The Agency had referred father to drug
testing, but this was not mandatory as the court had not ordered father to
“provide urinalysis testing.” Since that referral, father had taken one test,
which showed he was “free of cocaine or amphetamine or anything.”
Father denied any domestic violence toward mother and denied making
any threats toward mother and maternal grandmother. As to the May 2021
incident, father “indicated that mom was swinging either a golf club or a fan
at him or towards him.” There was no evidence minor had been exposed to
“any conflict between mother and father” or that “father used substances
near [minor] ever.”
Father had video visits with minor when he was in New York and
transitioned to in-person visits when he moved back to California, and “[b]y
all accounts,” father had been “very appropriate” during visits.
At the beginning of the continued jurisdiction and disposition hearing,
father’s counsel sought a stipulation from Agency’s counsel that AVATAR “is
the official San Francisco City and County medical records system,” and that
the system reflects “confirmation that father did, in fact, attend treatment.”
The stipulation was based on a line in the self-reporting assessment
completed by staff which stated “reporting 2 years of abstinence from cocaine
and alcohol (consistent with AVATAR records).” The court pointed out this
line made no specific mention of a drug treatment program. Counsel
explained AVATAR “records would only reflect involvement in treatment. . . .
10
You wouldn’t be able to get into those records were there not some interplay
with a public health provider for those services.” Agency counsel did not
dispute this statement and stipulated to what was “written in the report.”
Agency counsel then urged the court to sustain the section 300,
subdivision (b)(1) counts against father. Counsel asserted father had “used
drugs with the mother,” “left [minor] with a mother that has an ongoing
substance abuse problem,” and “failed to protect his child.” Counsel further
maintained “mother agreed with the allegations that there has been violence,
anger management issues involving father,” but “just didn’t want to say the
magic words that they had ‘domestic violence’ issues.”
Minor’s counsel joined in the Agency’s arguments, asserting “there has
been evidence presented, in addition to what’s in the report, that the nature
of the relationship between the parents has been conflictual, and it appears
to be that the parents are minimizing that relationship.” Counsel was
“concerned” about father’s history of substance abuse.
Father’s counsel pointed out the protective services worker had
testified there was no evidence “that father had endangered [minor] or put
his child . . . at risk.” As to the B5 count, there was no evidence of any
“continued or current risk of harm” to minor, no evidence father had
“continued to use drugs. In fact, you have the opposite.” Father
acknowledged he had used substances in the past and he would therefore
have a “lifelong problem.” But there was “no evidence he used beyond those
couple years.” The substance abuse assessment was that he did not “require
further treatment,” and his drug test was negative. As to the B4 count, the
May 2021 incident “happened a year ago,” and there was “no evidence that
anything ever took place in front of the minor.”
11
Counsel emphasized the question before the court was “Does [father’s]
behavior pose a substantial risk of serious physical harm or illness to his
child?” and asserted, “There’s no evidence of that.” Father was not a
custodial parent, but rather was in New York, at the time of the events
leading to detention. Father had “felt it was best for him to leave and have
some space there, and he did. And he went to New York and had virtual
visits with his son. And he sent assistance as he could. Financial
assistance.” Visits between father and minor had been “perfect,” with “[n]o
evidence of any substance use [or] conflict, [or] anger during those visits.”
The court sustained the amended petition. 6 The court found mother to
be credible. While mother was “clearly holding back” initially, under cross-
examination “the truth came out in the end.” There had been “yelling,
arguing, tussling, and basic domestic violence” between mother and father.
The court also found father “was quite candid in some aspects,” but found
him “not to be credible” in regard to domestic violence. And “[b]ecause of that
lack of credibility in that particular area, it does reflect upon his self-reports
when it comes to his lack of cocaine and drug use and abuse.” Stating it was
taking all of the evidence into account, the court found the B4 and B5 factual
allegations true.
Without taking any additional evidence, the court moved on to removal
and disposition, hearing additional argument by counsel.
Father’s counsel asserted the “court . . . cannot find by clear and
convincing evidence that [father] would pose a risk of harm to his child
consistent with [section] 361.D.” Thus, the “only basis” for removing minor
The only amendment pertaining to father was adding his status as
6
presumed father.
12
from father’s custody was father’s “poverty” and lack of housing, and those
are not permissible bases for removal.
Agency counsel denied “seeking to remove the child from the father
based on poverty.” Rather, the Agency was “concerned” because father had
“knowingly left his child with a parent that he knew or reasonably should
have known had a chemical dependency problem that posed a risk.” The
Agency was also “concerned” about the “domestic violence incidents.”
Father’s counsel responded that the fact father “quote/unquote
knowingly left the child with mother” was “not an allegation in the case.”
Furthermore, “[i]t was likely a smart decision for him to go away to his family
at the time.” What father “desperately needs help with [is] housing. That is
what we are asking for.” He was also “still requesting” placement with
paternal aunts.
The court found by “clear and convincing evidence” that “there is a
substantial danger to the physical health, safety, protection, or physical and
emotional well-being of the child, and there are no reasonable means by
which the child’s physical and emotional health can be protected without
removing the child from both parents.” It then identified the evidence it
considered: (1) “the fact that three months after the younger person was
born, he may have had a good reason, but [father] did leave for New York”;
(2) “the yelling, arguing, tussling, domestic violence, even if it was mutual
combat between the parents”; (3) “the recency of his cocaine . . . use for the
two years in 2018 and 2020”; (4) even though father had recently started a
job—the day of the hearing—he had “no means to . . . support the younger
person”; (5) that father “currently does not have any housing”; and (6) that
there was “currently no proof . . . to [father’s] parenting skills or prior skills.”
The court also found father’s progress in alleviating the need for placement
13
was “minimal” and that the Agency had made reasonable efforts to prevent
the need for removal.
When father’s counsel took issue with the court’s finding that father’s
progress had been “minimal,” given that father had returned to San
Francisco to participate in the dependency proceeding, had completed all the
visits, and had engaged in parenting classes, the court responded, “Flying out
here to reunite with his son after leaving him, ditching him after three
months . . . [¶] . . . I don’t find that to be a factor.” Counsel then took issue
with the court’s characterization of father as having “ ‘ditched’ ” minor,
pointing out father had been helping to support mother and minor—because
there are “custodial and noncustodial parents . . . doesn’t mean the
noncustodial parent ‘ditched’ their child.” The court then revised its finding
to state father’s progress in alleviating the causes of the dependency had
been “adequate.”
The court thereafter imposed several reunification requirements,
including that father “submit to random drug testing” noting any missed
drug test would be considered “a dirty test,” and that he “undergo substance
abuse assessment and follow its recommended treatment.” 7
II. DISCUSSION
A. Jurisdictional Findings
Mootness
As a threshold matter, the Agency maintains father’s appeal is moot. It
points out the section 300 petition includes allegations as to both mother and
7 The court imposed several additional requirements father does not
challenge. These include, that he “secure appropriate housing for himself,”
“participate in individual therapy focusing on better communication with
mother as a co-parent,” and “participate in parenting education focusing on
the care, provision and supervision of a toddler.”
14
father and because the allegations as to mother are unchallenged, “this Court
need not reach the merits of father’s challenge to the B4 and B5 counts in the
section 300 petition.” 8
“[W]here jurisdictional findings have been made as to both parents but
only one parent brings a challenge, the appeal may be rendered moot.” (In re
D.P. (2023) 14 Cal.5th 266, 283 (D.P.).)
Father, relying on In re Drake M. (2012) 211 Cal.App.4th 754 (Drake
M.), asks that we exercise our discretion to decide his appeal because the
“jurisdictional orders . . . are . . . the basis for the dispositional orders
removing the child that father challenges” and because the “jurisdictional
orders . . . will undoubtedly prejudice him when he seeks to gain custody of
his son.”
Our Supreme Court has recently clarified, “where a jurisdictional
finding ‘serves as the basis for dispositional orders that are also challenged
on appeal’ ”—as is the case here—“the appeal is not moot.” (D.P., supra,
8 In its respondent’s brief, the Agency suggests the B2 count was
directed at both mother and father. It never advanced this contention in the
juvenile court. It is also an inaccurate characterization of that count which
was plainly directed at mother and stated, “The mother has substance abuse
issues that requires assessment and treatment as evidenced by the following:
[¶] . . . (A) It was reported that the mother abuses alcohol, ecstasy, cocaine,
and methamphetamines. The Agency received referrals regarding recent
incidents which involved mother being intoxicated from substances and
needing family members to care for minor. [¶] . . . (B) The mother confirmed
that she has used crystal meth and cocaine but that she does not do it
regularly. [¶] . . . (C) The maternal grandmother reported that the mother
needs to be in an in-patient. [¶] . . . (D) The night before [mother] was out
drinking alcohol with her sister and [mother’s boyfriend] believes that is
what influenced her behavior. [Mother’s boyfriend] stated prior to this, both
had been sober for 20 days but she began to get threatening text messages
from the alleged father and that is when she started using again.”
(Capitalization omitted.)
15
14 Cal.5th at p. 283 [disapproving Drake M., supra, 211 Cal.App.4th 754 to
the extent it suggests “where a jurisdictional finding ‘serves as the basis for
dispositional orders that are also challenged on appeal” that, alone, is
insufficient to avoid mootness and supports only the exercise of discretionary
review].)
We therefore address father’s challenge to the B4 and B5 counts.
Sufficiency of the Evidence
As we have recited, the section 300 petition alleged dependency
jurisdiction on the basis of subdivision (b)(1). Under this provision, a juvenile
court may assume jurisdiction where the “child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm or illness, as
a result of any of the following: (A) The failure or inability of the child’s
parent or guardian to adequately supervise or protect the child. (B) The
willful or negligent failure of the child’s parent or guardian to adequately
supervise or protect the child from the conduct of the custodian with whom
the child has been left. (C) The willful or negligent failure of the parent or
guardian to provide the child with adequate food, clothing, shelter, or medical
treatment. (D) The inability of the parent or guardian to provide regular care
for the child due to the parent’s or guardian’s mental illness, developmental
disability, or substance abuse.” (§ 300, subd. (b)(1)(A)–(D).)
Thus, to obtain a jurisdictional determination under section 300,
subdivision (b)(1), an agency must “prove three elements: (1) the parent’s or
guardian’s neglectful conduct or failure or inability to protect the child; (2)
causation; and (3) serious physical harm or illness or a substantial risk of
serious physical harm or illness.” (In re Cole L. (2021) 70 Cal.App.5th 591,
601 (Cole L.); In re D.L. (2018) 22 Cal.App.5th 1142, 1146.) A court “need not
wait until a child is seriously abused or injured to assume jurisdiction and
16
take steps necessary to protect the child.” (Cole L., at p. 602.) And a parent’s
“ ‘ “[p]ast conduct may be probative of current conditions” if there is reason to
believe that the conduct will continue.’ ” (Ibid.) However, “ ‘[t]o establish a
defined risk of harm at the time of the hearing, there “must be some reason
beyond mere speculation to believe the alleged conduct will recur.” ’ ” (Ibid.;
D.L., at p. 1146.)
“ ‘ “In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we determine if
substantial evidence, contradicted or uncontradicted, supports them. ‘In
making this determination, we draw all reasonable inferences from the
evidence to support the findings and orders of the dependency court; we
review the record in the light most favorable to the court’s determinations;
and we note that issues of fact and credibility are the province of the trial
court.’ [Citation.] ‘We do not reweigh the evidence or exercise independent
judgment, but merely determine if there are sufficient facts to support the
findings of the trial court.’ ” ’ (In re I.J. (2013) 56 Cal.4th 766, 773 . . . ; see In
re I.C. (2018) 4 Cal.5th 869, 892. . . .) However, ‘[s]ubstantial evidence is not
synonymous with any evidence. [Citation.] To be substantial, the evidence
must be of ponderable legal significance and must be reasonable in nature,
credible, and of solid value.’ (In re M.S. (2019) 41 Cal.App.5th 568, 580[9] . . .
; accord, In re J.A. (2020) 47 Cal.App.5th 1036, 1046 [(J.A.)]. . . [while
substantial evidence may consist of inferences, any inferences must rest on
the evidence; inferences based on speculation or conjecture cannot support a
finding].)” (Cole L., supra, 70 Cal.App.5th at pp. 601–602.)
9 Disapproved on another ground as stated in Michael G. v. Superior
Court (2023) 14 Cal.5th 609, 631, footnote 8.
17
The B4 Count
The B4 count alleged: “The father has anger management issues that
require assessment and treatment in that he has been sending the mother
threatening text messages. The . . . father has also sent the maternal
grandmother and the mother messages indicating that he would [send]
someone to hurt them.” (Capitalization omitted.)
We preliminarily observe this count did not allege “domestic violence,”
but rather, anger management issues based on alleged text messages. A
dependency petition must contain a “concise statement of facts, separately
stated, to support the conclusion that the child upon whose behalf the
petition is being brought is a person within the definition of each of the
sections and subdivisions under which the proceedings are being instituted.”
(§ 332, subd. (f).) While there is no requirement that an agency “regurgitate
the contents of the social worker’s report into a petition,” (In re Alysha S.
(1996) 51 Cal.App.4th 393, 399–400), “[n]otice of the specific facts on which
the petition is based is fundamental to due process because it enables the
parties to properly meet the charges.” (In re T.V. (2013) 217 Cal.App.4th 126,
131; see In re Andrew S. (2016) 2 Cal.App.5th 536, 544; 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, as well as the allegations upon which
the deprivation of custody is predicated”].)
However, “[p]utting aside whether it would be proper to sustain the
petition based on an unalleged history of domestic violence” (Cole L., supra,
70 Cal.App.5th at pp. 604–605), there was insufficient evidence, in any case,
to support a section 300, subdivision (b)(1) jurisdiction determination on the
basis of “domestic violence.”
18
Cases have made it abundantly clear that evidence of prior domestic
violence between a mother and father, in and of itself, will not support
jurisdiction under section 300, subdivision (b)(1). (In re Daisy H. (2011)
192 Cal.App.4th 713, 717 (Daisy H.) 10 [existence of past domestic violence
alone not enough to support jurisdiction, rather the Agency must prove
domestic violence is “ongoing or likely to continue” and that it “directly
harmed the child physically or placed the child at risk of physical harm”]; see
In re Rocco M. (1991) 1 Cal.App.4th 814, 824 11 [“While evidence of past
conduct may be probative of current conditions, the question under
section 300 is whether circumstances at the time of the hearing subject the
minor to the defined risk of harm. [Citations.] Thus the past infliction of
physical harm by a caretaker, standing alone, does not establish a
substantial risk of physical harm; ‘[t]here must be some reason to believe the
acts may continue in the future.’ ”].)
For example, in Daisy H., supra, 192 Cal.App.4th 713, the court
concluded there was insufficient evidence to “support a finding that past or
present domestic violence between the parents placed the children at a
current substantial risk of physical harm” because “[t]he physical violence
between the parents happened at least two, and probably seven, years before
the [filing of] the petition,” and there was no evidence the children were
present when the violence occurred. (Id. at p. 717; see Cole L., supra,
70 Cal.App.5th at pp. 604–605 [insufficient evidence to support jurisdiction
where incident of pushing and shoving occurred outside presence of children];
10 Disapproved of on another ground in D.P., supra, 14 Cal.5th at page
278.
Abrogated in part on another ground by In re R.T. (2017) 3 Cal.5th
11622, 626–630 (R.T.).
19
In re Ma.V. (2021) 64 Cal.App.5th 11, 21–23 [insufficient evidence to support
jurisdiction where it had been over 10 months since abuser had “left the
family home,” and the mother had “ended her relationship with him”]; In re
M.W. (2015) 238 Cal.App.4th 1444, 1454 [insufficient evidence to support
jurisdiction where “the record contains evidence that a single incident of
domestic violence occurred more than seven years before the hearing” and no
other evidence of altercations between the parents]; In re Jonathan B. (2015)
235 Cal.App.4th 115, 120–121 (Jonathan B.) [insufficient evidence to support
jurisdiction where the mother had lived apart from the father prior to the
domestic violence incident and immediately reported it to the police and only
other domestic violence incident occurred five years prior].)
Here, mother testified to three incidents of what she called “tussling,”
including the May 2021 incident during which both parents were arrested.
While these incidents apparently involved some physical touching, there was
no evidence of any physical injury and there was no evidence these
arguments (and any pushing) ever occurred in the presence of minor. (See
Cole L., supra, 70 Cal.App.5th at p. 606 [physical danger to children was
minimal where minor incidents of domestic violence involved, at most, some
pushing and grabbing, and no evidence domestic violence took place in the
children’s presence].)
Similarly, there is no evidence minor was present at any time mother
received a “threatening” text message from father. The record is devoid of
any specifics as to what these messages actually said or even how many were
sent. No copies or screen shots of messages were ever shown to any Agency
personnel or introduced at the hearing. Nor could mother elucidate at the
hearing. The most she could say when asked whether father had sent
threatening texts was that they argued by text and “at times, you know, they
20
could feel that way.” While on an “abstract level” threats certainly are
“incompatible with child safety . . . such generalities” are not evidence of an
“ ‘identified, specific hazard in the child’s environment’ that poses a
substantial risk of serious physical harm to him.” (In re J.N. (2021)
62 Cal.App.5th 767, 776 (J.N.), italics omitted.)
The Agency does not dispute the state of the record but contends the
juvenile court was “entitled to infer” some of the “conflictual relationship took
place in front of the child, given [that] the parents had lived together for the
first three months of the child’s life.” However, inferences must rest on
evidence, not conjecture or speculation. (In re Emily L. (2021) 73 Cal.App.5th
1, 15; In re J.A., supra, 47 Cal.App.5th at p. 1046.) Here, not only was there
no evidence that the squabbling and physical contact between father and
mother occurred in the presence of minor, but the evidence was
uncontradicted that minor was, in fact, not present and was with his
maternal grandmother on these occasions.
Moreover, there was no evidence any squabbling and shoving by
mother and father, or any text “threats,” was likely to continue and place
minor at substantial risk of serious physical harm.
After the May 2021 incident, father moved away from mother, in part,
because he “felt it was best for him to leave and have some space there, and
he did.” While the juvenile court uncharitably accused father of having
“ditched” minor, the courts have repeatedly pointed out separation can be a
proactive step to assist parents who are unable to reside together peacefully
but who have given every indication they can interact appropriately with
their children. (See Jonathan B., supra, 235 Cal.App.4th at pp. 119–121
[parental separation can be relevant where it eliminates danger to the
children from domestic violence]; Daisy H., supra, 192 Cal.App.4th at p. 717
21
[past domestic violence is insufficient to support jurisdiction where there was
“no evidence of any ongoing violence between the parents who are now
separated”].) Indeed, the Agency appears to have been of the latter view—
that because father and mother were no longer residing together, there was
no substantial risk of physical injury to minor from any earlier altercations
between the couple—at the time it prepared its reports, since it did not refer
father for any anger management (let alone domestic violence) assessment, or
to an anger management (or domestic violence) program. Nor did the Agency
include any such assessments and programs in his case plan. Rather, the
only “follow up” was a suggestion the parents attend individual therapy “to
learn to communicate with each other more effectively” as a “more suitable
tool for the parents to co-parent together.”
It is also true father did not deny hope of future reunification, stating
“we’re trying to accomplish things as parents and reunify our family.” But
certainly a parent’s desire to reunify his or her family is a laudable goal and
not a basis for “inferring” that there is a “substantial risk” of “serious”
physical harm to the minor in the absence of any evidence that reasonably
suggests that is the case. Indeed, father displayed awareness that “there’s
issues that we both need to work on before we quote/unquote say that we’re
intimately involved.” And he had attended, and was continuing to attend,
the parenting skills program.
“Section 300, ‘subdivision (b) means what it says. Before courts and
agencies can exert jurisdiction under section 300, subdivision (b), there must
be evidence indicating that the child is exposed to a substantial risk of
serious physical harm or illness.’ ” (In re David M. (2005) 134 Cal.App.4th
22822, 829 (David M.), italics omitted.) 12 Here, there is no substantial evidence
of any “nexus” between the parents’ prior arguments, shoving, and texting,
and substantial risk of serious physical injury to minor. (See Cole L, supra,
70 Cal.App.5th at pp. 604–608 [insufficient evidence to support finding that
parents’ domestic violence placed children at substantial risk of harm where
“incident involved, at most, some pushing and grabbing for [father’s] cell
phone and took place outside presence of children,” and no evidence
threatening conduct would reoccur]; Daisy H., supra, 192 Cal.App.4th at
p. 717 [insufficient evidence to support finding that past or present domestic
violence placed children at substantial risk of harm when the domestic
violence happened at least two years ago, and no evidence children were
present and no evidence of ongoing violence between parents]; see also J.N.,
supra, 62 Cal.App.5th at p. 775 [“DCFS must establish a nexus between the
parent’s past conduct and the current risk of harm.”].)
The B5 Count
The B5 count alleged: Father “reported that he used to abuse crack
cocaine and alcohol but that he is about 2 years sober.” (Capitalization
omitted.)
As we have recited, father did not dispute this allegation. Nor, of
course, did the Agency. Instead, it expressed “concern” about his prior drug
use and doubt about his sobriety. The juvenile court, in turn, commended
father for being forthright about his prior drug use and addiction, but
doubted his credibility as to the state of his sobriety.
Again, the Agency had the burden of proving father’s substance abuse
history presented a substantial risk of serious physical harm to minor. (See
12Abrogated in part on another ground by R.T., supra, 3 Cal.5th at
pages 628–629.
23
In re I.J., supra, 56 Cal.4th at p. 773.) However, it presented no evidence
father’s reported sobriety was false, let alone, that any prior or current drug
use presented a substantial risk of serious physical harm to minor.
Rather, the Agency complained father did not complete an assessment
and did not test until shortly before the hearing. It acknowledged, however,
father was not required to do either before the hearing. It also essentially
dismissed the fact that father did complete an assessment—which concluded
he did “not meet medical necessity for . . . Substance Use Disorder
Treatment”—and did test, with negative results. The Agency also stipulated
that a line in the self-reporting assessment completed by staff stated
“reporting two years of abstinence from cocaine and alcohol (consistent with
A[V]ATAR records).” Nor did it take issue with father’s counsel’s
representation to the court that AVATAR “is the official San Francisco City
and County medical records system,” and AVATAR “records would only
reflect involvement in treatment. . . . You wouldn’t be able to get into those
records were there not some interplay with a public health provider for those
services.”
In short, the Agency presented no evidence that father had lied about
his sobriety or that he had a current substance abuse problem that posed a
substantial risk of serious physical harm to minor. Indeed, not a single
witness testified father had abused drugs during the time he claimed to be
sober. While “concern” that an addict will relapse is understandable, such
“concern” untethered to any evidence that this is more than a theoretical
possibility (as it is in the case of every addict) does not establish a substantial
risk of serious physical injury to a minor. (See J.N., supra, 62 Cal.App.5th at
p. 775 [no nexus between father’s past substance abuse and any current risk
of harm to minor]; In re Destiny S. (2012) 210 Cal.App.4th 999, 1003
24
[substance abuse “standing alone” and “without more,” is insufficient to
support a section 300, subdivision (b) finding], italics omitted.)
B. Dispositional Orders 13
Removal from Noncustodial Parent
Applicable Statute
After the hearing, the juvenile court entered a written order and
checked the box stating: “Good cause appearing, the court hereby makes the
following findings by clear and convincing evidence, pursuant to
[section] 361(c): [¶] There is substantial danger to the physical safety,
protection or physical or emotional well[-]being of the child[] or would be if
the child[] were returned home, and there are no reasonable means by which
the child’s[] physical health can be protected without removing the child[]
from the parents’ . . . custody.” (Capitalization omitted.)
Father contends the court erred in applying subdivision (c) of
section 361, which applies to a custodial parent. The Agency agrees and
13 Our conclusion that the jurisdictional findings as to father are
unsupported does not automatically mandate reversal of dispositional orders
pertaining to him since jurisdiction over the minor remains valid by virtue of
the unchallenged findings against mother. (Cf. In re Isabella F. (2014)
226 Cal.App.4th 128, 138, 141 [vacating dispositional order when all findings
supporting jurisdiction over child are vacated]; In re James R. (2009)
176 Cal.App.4th 129, 131, 137 [same], abrogated on another ground by R.T.,
supra, 3 Cal.5th at pp. 628–629; David M., supra, 134 Cal.App.4th at p. 833
[same].) Where jurisdiction still exists over the child, the juvenile court has
discretion to require both parents—whether they are offending or
nonoffending—to participate in educational and counseling programs that
“the court deems necessary and proper.” (§ 362, subd. (d); In re I.A. (2011)
201 Cal.App.4th 1484, 1492 (I.A.) [“A jurisdictional finding involving the
conduct of a particular parent is not necessary for the court to enter orders
binding on that parent, once dependency jurisdiction has been established.”].)
25
maintains the “operative section was section 361, subdivision (d),” which
applies to a noncustodial parent.
Prior to 2018, the statutory framework was “silent on the factual
findings necessary to order [the removal of] a child from the custody of a
noncustodial parent.” (Assem. Com. on Human Services (Reg. Sess. 2017–
2018) as amended Mar. 28, 2017, p. 2, italics added.) Indeed, there was no
specific statutory provision allowing juvenile courts to remove children from
noncustodial parents. (Sen. Com. on Judiciary, Assem. Bill No. 1332 (Reg.
Sess. 2017–2018), pp. 2, 5 [“situations where parents do not cohabitate and
one parent has primary physical custody do not seem to be clearly provided
for under existing law”].) Rather, the juvenile court’s authority to remove
children from noncustodial parents was implied or inferred from other
statutory provisions. (See In re Dakota J. (2015) 242 Cal.App.4th 619, 628–
629, 632–633 [juvenile courts may remove children from noncustodial parents
under § 361, subd. (a), which authorizes courts to “ ‘limit the control to be
exercised over the dependent child by any parent or guardian,’ ” and § 362,
subd. (a), which authorizes courts to “ ‘make any and all reasonable orders for
the care, supervision, custody, conduct, maintenance, and support’ ” of a
dependent child].)
Accordingly, in 2018, the Legislature sought to “clarify the juvenile
court’s authority to remove a child from the physical custody of a
noncustodial parent” and establish “a specific standard for such removal.”
(Sen. Judiciary Com., Assem. Bill No. 1332 (Reg. Sess. 2017–2018), p. 2; see
also Seiser & Kumli, on Cal. Juvenile Courts Practice and Procedure (2022)
§ 2.126(2)(a), pp. 2-483 to 2-484 [“Effective January 1, 2018, [section 361] has
been amended to address removal from the physical custody of the parents
. . . , with whom the child did not reside at the time the petition was
26
initiated.”].) The Legislature did so by amending section 361 and adding
subdivision (d).
The juvenile court therefore erred in removing minor pursuant to
section 361, subdivision (c), rather than subdivision (d).
Father maintains this error was prejudicial because subdivision (d)
assertedly “applies a different standard” for removal than subdivision (c).
Father is mistaken in this regard.
The legislative history reflects that in enacting subdivision (d), the
Legislature adopted “the same standard used for removal of a child from the
custody of a custodial parent” for “the removal of a child from the custody of a
noncustodial parent.” (Sen. Judiciary Com., Assem. Bill No. 1332 (Reg. Sess.
2017–2018), p. 5; Assem. Com. on Judiciary, Assem. Bill No. 1332 (2017–2018
Reg. Sess.) as amended Mar. 28, 2017, p. 3 [“This bill . . . allow[s] removal
from a parent with whom the child did not reside on the same basis as
removal of a child from the custodial parent.”]; see also Seiser & Kumli, on
Cal. Juvenile Courts Practice and Procedure, supra, § 2.126(2)(a), pp. 2-483 to
2-484 [“the same standard applies to a removal from the physical custody of a
parent with whom the child did not reside as the removal of physical custody
from a parent with whom the child did reside”].)
Thus, although the juvenile court erred in checking the section 361,
subdivision (c) box on the dispositional order, any error was harmless, given
that both subdivision (c) and subdivision (d) impose the same fact-finding
requirements and heightened clear and convincing burden of proof for
removal. 14
14 We therefore need not, and do not, address father’s assertion that
removal also was improper under section 361.2, since that section pertains to
a noncustodial parent who is requesting custody, and he was not
affirmatively doing so. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1820.)
27
Sufficiency of the Evidence
Section 361, subdivision (d) states as follows: “A dependent child shall
not be taken from the physical custody of his or her parents, guardian, or
Indian custodian with whom the child did not reside at the time the petition
was initiated, unless the juvenile court finds clear and convincing evidence
that there would be a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the child for the parent,
guardian, or Indian custodian to live with the child or otherwise exercise the
parent’s, guardian’s, or Indian custodian’s right to physical custody, and
there are no reasonable means by which the child’s physical and emotional
health can be protected without removing the child from the child’s parent’s,
guardian’s, or Indian custodian’s physical custody.”
“ ‘The elevated burden of proof for removal from the home . . . reflects
the Legislature’s recognition of the rights of parents to the care, custody and
management of their children, and further reflects an effort to keep children
in their homes where it is safe to do so. [Citations.] By requiring clear and
convincing evidence of the risk of substantial harm to the child if returned
home and the lack of reasonable means short of removal to protect the child’s
safety, section 361, subdivision (c) demonstrates the “bias of the controlling
statute is on family preservation, not removal.” ’ ” (In re M.V. (2022)
78 Cal.App.5th 944, 959, quoting In re A.R. (2015) 235 Cal.App.4th 1102,
1115 (A.R.).)
In any case, any error in applying section 361.2 also would have been
harmless. (See In re D’Anthony D. (2014) 230 Cal.App.4th 292, 303–304
[error in applying section 361.2, rather than section 361 subdivision (c)
(which applies the same standard as subdivision (d)), was harmless given
similarity of the standards set forth in the statutes].)
28
Indeed, “[a] dispositional order removing a child from a parent’s
custody is ‘a critical firebreak in California’s juvenile dependency system’ [(In
re Paul E. (1995) 39 Cal.App.4th 996, 1003 . . . )], after which a series of
findings by a preponderance of the evidence may result in termination of
parental rights.” [Citation.] Thus, California dependency laws “establish
that out-of-home placement is not a proper means of hedging against the
possibility of failed reunification efforts, or of securing parental cooperation
with those efforts. It is a last resort, to be considered only when the child
would be in danger if allowed to reside with the parent. The law requires
that a child remain in parental custody pending the resolution of dependency
proceedings, despite the problems that led the court to take jurisdiction over
the child, unless the court is clearly convinced that such a disposition would
harm the child. The high standard of proof by which this finding must be
made is an essential aspect of the presumptive, constitutional right of
parents to care for their children.” (In re M.V., supra, 78 Cal.App.5th at
p. 959, quoting In re Henry V. (2004) 119 Cal.App.4th 522, 525, italics added.)
At the hearing, father’s counsel, citing to In re Serenity S. (2020)
55 Cal.App.5th 355 (S.S.), argued there was no evidence, let alone clear and
convincing evidence, of a substantial danger to the child and no reasonable
means to protect the child without removal. (§ 361, subd. (d).) Rather, the
only concern that could have any traction, said counsel, “would be based on
the fact he has no housing. . . . [¶] . . . [¶] The only thing stopping him from
being able to provide a home for his son is that he does not presently have
housing. He is not asking for custody right here today because he doesn’t
have housing.” But the fact he did not yet have suitable housing could not,
under S.S., be the basis for a removal order.
29
Counsel for the Agency responded, “we are concerned because the
father knowingly left his child with a parent that he knew or reasonably
should have known had a chemical dependency problem that posed a risk to
this child. . . . [¶] . . . [¶] The father voluntarily elected to leave to go to New
York for reasons that are in his own state of mind. But he left right after the
tussle incident with the mother. The domestic violence incidents that the
mother has detailed, those are the reasons the Agency is concerned.”
Defense counsel continued to emphasize that the court was required “to
find clear and convincing evidence that father poses a risk of detriment to the
child in order to remove from father. [¶] We are not seeking custody today;
therefore, the court does not need to remove from father. The case of In re
S.S. discusses this scenario where a parent has no housing. He desperately
needs help with housing. That is what we’re asking for.”
The juvenile court ruled that on the basis of “clear and convincing”
evidence “there is substantial danger to the physical health, safety,
protection, or physical and emotional well-being of the child, and there are no
reasonable means by which the child’s physical and emotional health can be
protected without removing the child from both the parents.” The court
identified the following as the basis for its ruling: “The facts . . . included in
the petition that the court did sustain, and the allegations under
[section] 300(b);” and the “the issues and concerns” raised about father in the
Agency’s reports—that father left for New York three months after minor was
born, the domestic violence between mother and father, the “recency of his
cocaine” abuse, that there was “no proof” of his “current parenting skills or
prior skills,” and that father had no means to support minor and no housing
to keep minor “safe and protected.” The court went on to comment that
30
“While I understand you’re not asking for [custody] today, the court is
making the decision about it today.”
In short, the juvenile court found that the record before it not only
supported jurisdiction under a preponderance of the evidence standard, but it
also supported removal from custody under the significantly heightened clear
and convincing evidence standard.
Given that we have concluded that the court’s jurisdictional findings
are not supported by substantial evidence, we necessarily reach the same
conclusion as to the court’s removal findings, i.e., that the removal order is
not supported by substantial evidence, particularly taking into account the
higher clear and convincing standard of proof.
We have discussed in detail why the Agency’s showing fell short of
establishing jurisdiction as to father, and we need not repeat that discussion
here. We observe, however, that in arguing removal was warranted, the
Agency identified two “concerns”—that father “left his child” with “a parent
that he knew or reasonably should have known had a chemical dependency
problem that posed a risk to this child,” and the “domestic violence incidents
that the mother has detailed.”
As to the first concern, there was evidence mother had abused drugs
prior to the pregnancy. But there was no evidence she did so during the
pregnancy (notably there was no evidence in the record that minor was born
with an addiction). There was also evidence the Agency received two
referrals after the birth, on June 8 and 9, that alleged “mother’s drug use is
affecting her care of the minor” and in the second referral, the social worker
“discovered the mother’s substance use and her mental health issue might be
affecting the mother’s care of the minor.” The first referral was “evaluated
out.” The second was “closed” because mother agreed grandmother would
31
provide care and supervision of minor in the event mother was under the
influence and because mother was connected to and using various community
services. When father left for New York is unclear. He testified he left June
9; in his motion for presumed father status, he said he left June 29. He also
testified he was not aware of mother’s drug use until after he moved out. So
the evidence arguably supports an inference he knew or should have known
of mother’s resumed use.
But awareness mother used, without more, cannot not support
jurisdiction as to father (or even mother), let alone a removal order as to
father. (See J.A., supra, 47 Cal.App.5th at p. 1046 [“dependency cannot be
based on substance abuse alone; jurisdiction requires a substantial risk of
harm to the child arising from the substance abuse”].) Furthermore, the
Agency “evaluated out” the first referral and it “closed” the second in light of
maternal grandmother’s agreement to care for minor if mother again used
and mother’s access to and use of community services. Given that the Agency
was satisfied with this handling of the incidents, father certainly cannot be
penalized with loss of custody by failing to perceive mother’s use created “a
substantial danger to” the minor.
Furthermore, there is no evidence whatsoever that “there are no
reasonable means by which the child’s physical and emotional health can be
protected” from mother’s addiction “without removing” minor from father’s
legal custody.
As to the second concern—the incidents of domestic violence to which
mother testified—there is, as we have discussed, no evidence the parents’
arguments and any touching occurred in minor’s presence or presented a
“substantial risk” of “serious physical harm” to minor, let alone, evidence
sufficient to support a finding on the basis of “clear and convincing” of “a
32
substantial danger to” minor. There is also no evidence, let alone evidence
sufficient to support a finding by clear and convincing evidence, that “there
are no reasonable means by which the child’s physical and emotional health
can be protected” from this concern “without removing” minor from father’s
legal custody. (See In re I.R. (2021) 61 Cal.App.5th 510, 513, 521–522
[evidence insufficient to support removal from father as record did not
contain evidence minor was in substantial danger in the father’s care nor was
there evidence that “there were no ‘reasonable means’ to protect [the minor]
other than removing her from Father”]; see also Isayah C. (2004)
118 Cal.App.4th 684, 700 [“[A] parent may have custody of a child, in a legal
sense, even while delegating the day-to-day care of that child to a third party
for a limited period of time.”].)
To the contrary, by residing apart from mother, father has already
taken a step expressly approved in section 361, subdivision (c) as a
“reasonable means to protect the minor.” (§ 361, subd. (c)(1); see A.R., supra,
235 Cal.App.4th at p. 1118 [evidence insufficient “to establish existence of a
‘substantial danger’ within meaning of section 361, subdivision (c),” where
the “father had already removed himself from the home,” and there was “no
evidence that father intended to move back into the home”].)
As for the additional reasons recited by the court—the “recency” of
father’s cocaine abuse, “no proof” of his “current parenting skills or prior
skills,” and no means to support minor and no housing to keep minor “safe
and protected”—they do not singularly or collectively constitute substantial
evidence, let alone taking into account the heightened clear and convincing
standard of proof, that there “would be a substantial danger” to the “physical
or emotional well-being” of the minor absent removal from father’s legal
custody. We have discussed at some length the absence of any evidence that
33
minor is at substantial risk of serious harm in light of father’s prior drug
abuse. There is also no evidence minor is at risk due to the lack of any
parenting skills. To the contrary, the evidence was undisputed that father
attended to the infant appropriately, that he provided economic and material
support while he lived in New York, and that he was attending parenting
classes. Thus, there is also no evidence, let alone evidence sufficient to
support a finding by clear and convincing evidence, that “there are no
reasonable means by which the child’s physical and emotional health can be
protected” from any concern about parenting “without removing” minor from
father’s legal custody. And finally, as S.S. holds, a child cannot be taken
from a parent’s legal custody solely on the basis of the parent’s poverty.
Rather, the Agency must make every effort to assist the parent in securing
employment and housing. The Agency made no such showing here. And
father, on his own, had secured employment.
Drug Testing and Treatment Program
Father also challenges dispositional orders requiring drug testing and
substance abuse treatment, asserting there was “no evidence of any current
substance abuse.”
The Agency maintains father has forfeited this challenge because he
did not object to these orders in the juvenile court. And, indeed, as a general
rule, failure to object in the juvenile court forfeits a parent’s right to pursue
an issue on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293; 15 accord, In re
N.O. (2019) 31 Cal.App.5th 899, 935 [“ ‘A party forfeits the right to claim
error as grounds for reversal on appeal when he or she fails to raise the
objection in the trial court. [Citations.] Forfeiture . . . applies in juvenile
15Superseded by statute on another ground as stated in In re S.J.
(2008) 167 Cal.4th 953, 962.
34
dependency litigation and is intended to prevent a party from standing by
silently until the conclusion of the proceedings.’ ”].)
However, a recognized exception to forfeiture is futility. (See People v.
Gomez (2018) 6 Cal.5th 243, 286–287 [“ ‘Reviewing courts have traditionally
excused parties for failing to raise an issue at trial where an objection would
have been futile . . . .’ ”].) As we have recited, father’s attorney repeatedly
argued there was no evidence that could support a jurisdictional finding or a
dispositional removal order based on prior drug abuse. Given that the
juvenile court rejected these arguments, we conclude any further objection to
an additional disposition order requiring testing and treatment would have
been futile. We therefore conclude father has not forfeited his challenge to
the orders on appeal and turn to the merits.
Under section 362, subdivision (a), a juvenile court can “make any and
all reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the child.” (§ 362, subd. (a).) The problem the
court seeks to address need not be described in the sustained section 300
petition. (See In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006–
1008.) “In fact, there need not be a jurisdictional finding as to the particular
parent upon whom the court imposes a dispositional order.” (In re Briana V.
(2015) 236 Cal.App.4th 297, 311; see also I.A., supra, 201 Cal.App.4th at
p. 1492 [“A jurisdictional finding involving the conduct of a particular parent
is not necessary for the court to enter orders binding on that parent, once
dependency jurisdiction has been established.”].)
“The juvenile court has broad discretion to determine what would best
serve and protect the child’s interests and to fashion a dispositional order
accordingly.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) Although
the court “should be mindful of the burdens their disposition orders impose
35
on parents already grappling with difficult conditions and circumstances,”
the “paramount concern always must be the child’s best interest . . . no
matter how burdensome its requirements may seem from the parent’s
perspective.” (In re D.P. (2020) 44 Cal.App.5th 1058, 1071–1072.)
Nevertheless, a juvenile court’s discretion is “not unfettered.” (In re
Nolan W. (2009) 45 Cal.4th 1217, 1229.) The court’s orders must be
“ ‘reasonable’ ” and, as is critical here, “ ‘designed to eliminate those
conditions that led to the [juvenile] court’s finding that the child is a person
described by Section 300.’ ” (In re D.M. (2015) 242 Cal.App.4th 634, 639,
quoting § 362, subd. (d).) Thus, while the juvenile court “may direct any
reasonable orders to the parents” of a dependent child, which may include
participating in a counseling or education program,” this is “provided the
program shall be designed to eliminate those conditions that led to the court’s
finding that the child is a person described by Section 300.” (§ 362, subd. (d).)
Given that no sufficient evidence supported the juvenile court’s
jurisdictional finding based of father’s alleged substance abuse, the
dispositional testing and treatment orders aimed at eliminating that
invalidated jurisdictional finding must also be reversed. In other words, in
the absence of that jurisdictional finding, there is no nexus between the
remaining valid conditions leading to the dependency and the challenged
disposition orders. (§ 362, subd. (d) [dispositional order requiring
participation in programs “shall be designed to eliminate those conditions
that led to the court’s finding that the child is a person described by
Section 300”]; see In re R.M. (2009) 175 Cal.App.4th 986, 991 [in light of
court’s “determination that the jurisdictional order must be reversed,”
dispositional order placing children outside the mother’s home “and all
subsequent dispositional orders” as to the mother “must be reversed as well”];
36
cf. D.P., supra, 14 Cal.5th at p. 277 [“reversal of the jurisdictional finding
calls into question the validity of orders based on the finding”].)
C. ICWA
In March 2022, the social worker asked father if he knew of any Native
American ancestry in his family, and father reported he did not know “for
sure if his family has any registration with a tribe but that he knew that his
mother is Shinnecock. He reported remembering that he had went to some
events when he was younger [on] a reservation. He said his sisters might
have more information.” The Agency stated further inquiry was necessary
because there was “reason to believe the child may be an Indian child.”
(Boldface omitted.)
Three days later, father filed an ICWA-020 form. He marked the box
indicating “[o]ne or more of [his] parents, grandparents, or other lineal
ancestors is or was a member of a federally recognized tribe.” He stated,
“[s]ome cousins lived on reservation (child’s paternal great grandmother lived
on reservation and current family members live on reservation) Shinnecock
Tribe South Hampton.” He then listed the name of minor’s paternal great
grandmother.
The Agency’s jurisdiction and disposition report noted father had
completed an ICWA-020 form and indicated he had “Native American/Indian
ancestry on his mother’s side of the family.” The Agency stated despite
naming the tribe—Shinnecock—father “has no other information of his
Native American/Indian status except to indicate his sister . . . , would have
more information.” He provided his mother and grandmother’s name, both of
whom were deceased, and stated it was his grandmother “who has the Native
American/Indian ancestry.” The social worked contacted one paternal aunt
on two separate occasions but did not receive a response, and she contacted
37
another paternal aunt once and also did not receive a response. Father
indicated “no immediate family, including himself, has lived on a Native
American/Indian reservation;” “attended a Native American/Indian school;”
“has registered” with a tribe; or “received services” from a tribe.
The Agency noted further inquiry was required because father had
claimed Indian ancestry and there is reason to believe minor “is an Indian
child, but there is not sufficient information to determine there is reason to
know” minor is an Indian child and further investigation is warranted. The
report stated “Pending the response from [the Bureau of Indian Affairs] and
Shinnecock Tribe as identified by the father’s maternal side of the family
might have Native American Ancestry.”
Under a section in the report labeled “Formal Notice,” (capitalization &
boldface omitted) the Agency checked the box stating, “The following efforts
to gather family tree information necessary to complete the ICWA-030 were
made: 5/18/2022. Family information gathered, documented above (in
Further Inquiry grid), or in the attached family tree form, was included in
the ICWA-030 notice.”
The juvenile court did not make any ICWA findings at either the
detention hearing or at the jurisdiction and disposition hearing.
Father contends the court “erred in removing the child from father and
placing him in foster care where the child was an Indian child and no notice
as required by ICWA was provided.”
The Agency maintains there was “no reason to know [minor] is an
Indian child,” and ICWA notice was not required. In essence, the Agency
contends “[f]ather conflates two separate and distinct provisions of
section 224.2, namely the ‘reason to know’ provisions . . . and the ‘reason to
believe’ provision.” We agree.
38
“[S]ection 224.2 creates three distinct duties regarding ICWA in
dependency proceedings. First, from the Agency’s initial contact with a
minor and his family, the statute imposes a duty of inquiry to ask all involved
persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).)
Second, if that initial inquiry creates a ‘reason to believe’ the child is an
Indian child, then the Agency ‘shall make further inquiry regarding the
possible Indian status of the child, and shall make that inquiry as soon as
practicable.’ (Id., subd. (e), italics added.) Third, if that further inquiry
results in a reason to know the child is an Indian child, then the formal notice
requirements of section 224.3 apply. (§ 224.2, subd. (c) [court is obligated to
inquire at the first appearance whether anyone ‘knows or has reason to know
that the child is an Indian child’]; id., subd. (d) [defining circumstances that
establish a ‘reason to know’ a child is an Indian child]; § 224.3 [ICWA notice
is required if there is a ‘reason to know’ a child is an Indian child as defined
under § 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.)
“It is important . . . to recognize the distinction between ‘reason to
believe’ and ‘reason to know.’ A reason to believe should trigger further
inquiry . . . , while a reason to know is the standard that requires actual
notice.” (Seiser & Kumli, on Cal. Juvenile Courts Practice and Procedure,
supra, § 2.125(2)(b), p. 2-451, citing §§ 224.2, 224.3, subd. (b); Cal. Rules of
Court, rule 5.481(b).)
Preliminarily, we note the Agency never marked any box indicating
there was a reason “to know;” rather, it only indicated further inquiry was
required because there is reason “to believe” minor is an Indian child.
In any event, here there was no reason to know minor was an Indian
child. Section 224.2, subdivision (d) “specifically delineates when there is
reason to know a child involved in a proceeding is an Indian child.” (Seiser &
39
Kumli, on Cal. Juvenile Courts Practice and Procedure, supra, § 2.125(2)(b),
p. 2-452.) 16 None of those criteria are met in this case, nor does father
contend they are.
In contrast, subdivision (e) of section 224.2 provides, “If the court, social
worker, or probation officer has reason to believe that an Indian child is
involved in a proceeding, but does not have sufficient information to
determine that there is reason to know that the child is an Indian child, the
. . . social worker . . . shall make further inquiry regarding the possible Indian
status of the child, and shall make that inquiry as soon as practicable.
[¶] (1) There is reason to believe a child involved in a proceeding is an Indian
child whenever the court, social worker, or probation officer has information
suggesting that either the parent of the child or the child is a member or may
be eligible for membership in an Indian tribe. Information suggesting
membership or eligibility for membership includes, but is not limited to,
information that indicates, but does not establish, the existence of one or
more of the grounds for reason to know enumerated in paragraphs (1) to (6),
inclusive of subdivision (d).” (§ 224.2, subd. (e)(1).)
16 Section 224.2, subdivision (d)(1)–(6) provides, “There is reason to
know a child involved in a proceeding is an Indian child under any of the
following circumstances: [¶] (1) A person having an interest in the child . . .
informs the court that the child is an Indian child. [¶] (2) The residence or
domicile of the child, the child’s parents, or Indian custodian is on a
reservation or in an Alaska Native village. [¶] (3) Any participant in the
proceeding . . . informs the court that it has discovered information indicating
that the child is an Indian child. [¶] (4) The child who is the subject of the
proceeding gives the court reason to know that the child is an Indian child.
[¶] (5) The court is informed that the child is or has been a ward of a tribal
court. [¶] (6) The court is informed that either parent or the child possess an
identification card indicating membership or citizenship in an Indian tribe.”
40
Here, it is clear the Agency had a reason to believe, but did not have
sufficient information to determine there was a reason to know, minor was an
Indian child.
Defendant relies on In re N.D. (2020) 46 Cal.App.5th 620, a case he
claims is “factually identical,” to support his contention that “the juvenile
court is not authorized to proceed with foster placement of an Indian child
until ICWA notice has been sent and received.” However, this case was
decided before the Legislature provided a definition for “reason to believe.”
(See Seiser & Kumli, on Cal. Juvenile Courts Practice and Procedure, supra,
§ 2.125(2)(b), p. 2-452 [“Previously there was no definition of reason to
believe. . . . This was resolved by the passage of Assembly Bill (AB) 2944
[Stats. 2020, ch. 104],” effective Sept. 18, 2020.].)
Accordingly, as the initial inquiry only established a reason to believe,
and not a reason to know, we conclude there was no error in compliance with
the ICWA requirements. 17
17 In his reply brief, father suggests that “[w]ith no ICWA findings . . .
and nothing in the oral record, it cannot be assumed that the Agency met its
duty of further inquiry.” To the extent father challenges the Agency’s duty of
inquiry, we hold his claim is premature. (J.J. v. Superior Court (2022)
81 Cal.App.5th 447, 461 [“because the juvenile court made no final ICWA
ruling at or before the challenged dispositional hearing as to whether ICWA
applied to the proceedings, mother’s claim is premature”].) “That is, ICWA
issues are not ripe for review. ‘ “Ripeness” refers to the requirements of a
current controversy.’ [Citation.] An issue is not ripe for review unless and
until it is ‘sufficiently concrete to allow judicial resolution even in the absence
of a precise factual context.’ [Citations.] Because the dependency case is still
ongoing, any perceived deficiencies with ICWA inquiry and noticing may still
be resolved during the normal course of ongoing dependency proceedings.”
(Id. at p. 461, citing In re M.R. (2017) 7 Cal.App.5th 886, 904 [determining
ICWA claim premature where no final ICWA ruling made at dispositional
hearing]; see In re S.H. (2022) 82 Cal.App.5th 166, 171 [holding reversal of an
early dependency order not warranted where parent has shown Agency’s
41
III. DISPOSITION
The jurisdictional findings and orders as to father, as well as the
related dispositional orders regarding removal and substance abuse testing
and treatment, are reversed. The matter is remanded to the juvenile court
with directions to dismiss the petition as to father.
ongoing inquiry obligations have not yet been satisfied by the time of the
parent’s appeal].)
42
_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Margulies, J.
A166150, San Francisco Human Services Agency v. WF
43
Trial Court: Superior Court of San Francisco City and County
Trial Judge: Hon. Braden C. Woods
Counsel:
Linda S. Votaw, under appointment by the Court of Appeal, for Defendant
and Appellant.
David Chiu, City Attorney, Kimiko Burton, Lead Attorney and Elizabeth
McDonald Muniz, Deputy City Attorney for Plaintiff and Respondent.
44