In re Tanner B. CA2/7 ( 2015 )

Filed 3/2/15 In re Tanner B. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN
In re TANNER B. et al., Persons Coming B253597/B258789
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK57753)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
KENNETH B.,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles County,
Marguerite Downing, Juvenile Court Referee. Reversed.
John L. Todd, under appointment by the Court of Appeal, for Defendant
and Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
_____________________________
INTRODUCTION
In his first appeal (B253597), Kenneth B. (father) challenges the dependency
court’s November 6, 2013 order placing his four minor children, Tanner B.,1 Chance B.,
Pamela B., and Garrett B.2 with the Department of Children and Family Services (the
Department) for suitable placement. Kenneth, the children’s noncustodial parent at the
time of the November 6, 2013 hearing, argues the court failed to make the requisite
detriment finding under Welfare and Institutions Code section 361.2, subdivision (a)3
before placing his children with the Department. In his second appeal (B258789),
Kenneth challenges the court’s August 19, 2014 jurisdictional order issued under a
subsequent dependency petition (§ 342) filed by the Department on May 22, 2014,
through which his children were adjudged dependents of the court after the court
sustained the petition’s allegation that his history of amphetamine and methamphetamine
use placed his children at risk of harm. Father argues the jurisdictional order is not
supported by substantial evidence. We reverse both orders.
FACTUAL AND PROCEDURAL SUMMARY
1. The Original Dependency Petition (§ 300)
On October 1, 2012, the Department filed a petition alleging that, among other
things, Brigitte experienced mental and emotional problems, including a major depressive
disorder for which she failed to take prescribed medications, placing the children at risk
of physical harm. The petition also alleged that Brigitte left the younger two children
1 The dependency court recently terminated its jurisdiction as to 18-year-old Tanner
(who lived with his mother, Brigitte B., throughout the pendency of these proceedings) so
our discussion regarding Tanner is limited. Likewise, because Brigitte has not appealed,
our discussion of her is similarly limited to facts relevant to Kenneth’s appeals.
2 Sometimes collectively referred to as the children.
3 All statutory references to this code.
2
(Pamela and Garrett) home alone without adult supervision, placing them at risk of
physical harm.4 (§ 300, subd. (b).)
Kenneth B., who was not mentioned in the petition’s allegations, appeared at the
detention hearing that same day. He was found to be the presumed father of the children
and was appointed counsel. The dependency court ordered the children to remain
released to their parents, with Brigitte’s residence as their primary residence; the
Department was ordered to provide family preservation services.
2. The Family’s Prior Child Welfare History
In its report filed in advance of the jurisdiction and disposition hearing, the
Department recounted the family’s prior child welfare history.5
In 2000, in Orange County, a dependency petition and supplemental petition filed
on behalf of Tanner and Chance were sustained, based on findings Brigitte and Kenneth
had a history of engaging in domestic violence in the children’s presence and both had
unresolved substance abuse histories. Kenneth had been arrested during a drug raid (in
Tanner’s presence, causing him undue emotional distress); Brigitte had a positive drug
test and had failed to test; Brigitte had struck both Tanner and Chance, and Chance had
been left home alone. Initially, the dependency court ordered family maintenance
services, but after Brigitte had a positive drug test and failed to test in violation of the
4 There were additional allegations pursuant to subdivisions (a), (b) and (j) of
Welfare and Institutions Code section 300 that Brigitte had allowed Tanner to excessively
discipline his younger siblings and had a 12-year history of drug use, with four
convictions for use of or being under the influence of a controlled substance and one
conviction for possession of a controlled substance, such that Tanner and Chance had
been dependents in the past due to her substance abuse. However, these allegations were
dismissed at the January 3, 2013 hearing.
5 There were other referrals in addition to those described in the text, but we do not
include them here as they were classified as unfounded.
3
court’s orders, the children were detained in December 2000. The dependency court’s
jurisdiction (Orange County) was terminated two years later (in December 2002).
Then, in Los Angeles County in January 2005, Brigitte and Kenneth were arrested
for child neglect, and the children (Tanner, Chance, and Pamela) were taken into
protective custody. The Department filed a petition alleging that, on a number of
occasions, Brigitte and Kenneth left Tanner and Chance home alone for extended periods
of time without adult supervision endangering their safety and placing Pamela at risk; this
petition was sustained as well. (§ 300, subd. (b), (j).) The children were initially
detained in foster care but were apparently returned to their parents’ custody the next
month, with family maintenance services ordered on the condition that Brigitte and
Kenneth would remain living in Kenneth’s parents’ home. A few months later, the
Department filed an amended petition alleging Brigitte had taken the children from the
paternal grandparents’ home in violation of the court’s order, failed to keep the
Department apprised of their whereabouts for three days, and left the children alone at
night without adult supervision. Thereafter, Brigitte complied with court-ordered
programs addressing her parenting, domestic violence, and addiction history. The
children were ordered placed back in Brigitte’s home in January 2006, and the
dependency court terminated its jurisdiction in January 2007.
Two and a half years later, in August 2009, the Department received a referral
alleging general neglect and caretaker absence/incapacity as to both Brigitte and Kenneth
and physical abuse against the children’s maternal grandmother. All allegations were
found to be substantiated, and the children were detained. Brigitte and Kenneth were
living separately at the time, and neither could be located; the maternal grandmother was
reportedly caring for the children. A related petition was reportedly dismissed in
4
December, and the children were released to their parents with no specific custody orders
in place. The Department closed its case in January 2010.6
3. The Jurisdiction and Disposition Hearing on the Original Dependency Petition
In its November 7, 2012 jurisdiction and disposition report, the Department
reported that the dependency investigator was unable to interview Kenneth “as he failed
to avail himself to the Department to be interviewed regarding the allegations.”
At the jurisdiction and disposition hearing on January 3, 2013, Kenneth appeared
and waived reading of the petition as he was noted to be a “non[-]offending” parent. The
dependency court sustained the allegations that Brigitte had left the children home alone
without supervision and that she had unresolved mental health issues.7 The court then
found the children were dependents within the meaning of subdivision (b) of section 300
and ordered the children to remain placed with Brigitte under the Department’s
supervision. The dependency court ordered the Department to provide family
maintenance services to both Brigitte and Kenneth. The matter was continued to July 3,
2013 for a review hearing. (§ 364.)
4. The First Subsequent Dependency Petition (§ 342)
On June 14, 2013, the children were removed from Brigitte’s custody and placed
with Kenneth. On June 26, 2013, the Department filed a petition pursuant to section 342,
adding allegations that an unrelated 13-year-old boy had unlimited access to the children
and had molested Pamela as Brigitte left her and Garrett home alone without supervision
for extended periods of time. The subsequent petition further alleged, Pamela and Garrett
6 In addition to the foregoing child welfare history, the Department reported Brigitte
had six prior drug-related convictions (five for “use/under influence of controlled
substance” (September 1993; April, June, July and September 1994) and one for
“possession of control[led] substance” (February 2000)).
7 Brigitte stipulated to the factual basis for the petition’s allegations.
5
had been dependents in Orange County because Brigitte had left them home alone
unsupervised in the past.
According to the Department’s detention report dated June 25, 2013, when the
social worker asked Kenneth if he would be able to have custody over all of the children,
he said “he could take Chance and Pamela only.” When the social worker (Donna
Jackson) asked why he could not take the other two children, he said, “Garrett is very
active and [Kenneth’s] parent[s] are up in age and would not be able to tolerate
[Garrett’s] active behavior. As for Tanner[,] he is the oldest and could remain with
[Brigitte]. Kenneth . . . stated that he lives with his parent[s] and they do not have the
space for all of the children. But he is willing to let his niece Kendra B[.] have custody
over all four children to keep them together.”
In an “Addendum Report” also dated June 25, 2013, another social worker said
she had spoken with Kenneth that day and confirmed he would appear at the detention
hearing the following day. In the addendum report, the Department recommended that
Kenneth “[p]articipate in [four] consecutive random drug and alcohol tests, if any
positive tests, [Kenneth] to complete a substance abuse rehabilitation program with
random testing” and “[f]urther investigation as to [Brigitte’s] and [Kenneth’s] current
drug use and the physical abuse of the children by sibling Tanner and [Brigitte’s] failure
to protect and the petition amended if needed[.]”
In a last minute information report filed on June 26, 2013, the Department
informed the dependency court that Kenneth had “consented to have all four [c]hildren
detained from his custody because he is unable to care for his [c]hildren. At this time
[they] are placed with [p]aternal [a]unt, Kendra B[.]”8
On June 26, 2013, with Kenneth in attendance, the dependency court ordered
Chance, Pamela and Garrett detained and placed with their paternal aunt pending the next
8 Kendra B. is described as both Kenneth’s niece and the children’s paternal aunt in
the record.
6
hearing, with the further order Kenneth “may reside with paternal aunt.” The Department
was given discretion to place the minors with “any appropriate relative or extended
family member.” The Department was to provide Brigitte and Kenneth with family
reunification services. Notwithstanding the Department’s recommendations in its June
26, 2013 addendum report, there was no mention of drug testing or any other drug-related
investigation as to Kenneth in the dependency court’s orders of that date. Tanner, who
was 17 at the time of the hearing, was released to Brigitte. The dependency court
continued the matter to July 23, 2013 for “receipt of report” and to August 29, 2013 for
adjudication of the contested section 342 petition.
In its status review report for the July 3, 2013 hearing, the Department reported the
three younger children were living with Kendra, their paternal aunt. The Department
recounted the dependency court’s orders of January 3, 3013, but no subsequent orders
were identified. Further, there was no mention of any investigation into Kenneth’s
current drug use or any request that he submit to drug testing. In detailing the
Department’s “contacts” with the family, there was no mention of Kenneth. The hearing
was continued to July 23, 2013 “to follow the hearing regarding the [subsequent] petition
[pursuant to section] 342.”9
According to the Department’s jurisdiction and disposition report for the
August 29, 2013 hearing on the subsequent petition, Brigitte told the social worker she
felt the three younger children’s placement with their paternal aunt “will help [them]
emotionally. They will be able to interact with [Kenneth] who lives close. My children
are happy . . . .” When Kenneth was interviewed on June 7, 2013, he said he had “no
problems with my niece[] Kendra B[.] taking care of my children. She is a very
responsible young lady and I entrust that she will do whatever is needed for my children
9 There is no reporter’s transcript for June 26, July 3 or July 23, 2013.
7
and I will help as much as possible.”10 The children were happy living with their aunt.
There was no mention of any investigation into whether Kenneth was currently using
drugs or any request that he submit to a drug test.
On August 29, 2013, the dependency court noted Kenneth had filed a J.V. 140
form indicating that he had a new address. The court also noted that the Department
intended to assess Kenneth’s home for potential placement. The court ordered the
Department to provide a supplemental report regarding placement with Kenneth; the
court continued the matter to September 11, 2013 for a progress hearing, and it set an
adjudication hearing on November 6, 2013. Both parents were ordered to appear at the
adjudication hearing without further notice.
At the September 11, 2013 progress hearing, the Department informed the court
that on June 7, 2013, Kenneth had said he lived with his parents, who did not have the
space for all four children. According to the social worker, Kenneth was “currently”
living with his parents, and on September 6, 2013, she asked them about Kenneth having
Chance, Pamela and Garrett in their home. Kenneth’s parents reportedly stated that they
did not have the space to accommodate their grandchildren, and that they were unable to
assist Kenneth with caring for the children because of their age and health problems.
Kenneth’s parents did state, however, that they did not have any problem allowing the
children to spend the night at their home.
The social worker also informed the court that she had received an anonymous call
informing her that Kenneth was using drugs. According to the social worker, she then
asked Kenneth to submit to a drug test on June 18, 2013, at which he failed to appear. On
September 6, 2013, the social worker again asked Kenneth to submit to a drug test, but he
stated “‘I’m the non-offending parent and I did not need to drug test and I will talk to my
10 The Department noted Kenneth was receiving Social Security benefits.
8
attorney[.]’” The social worker stated that the Department was concerned that Kenneth
could drive with the children in his car while he was under the influence of drugs. The
social worker recommended that, despite his non-offending status, Kenneth submit to an
on-demand drug test. The social worker also recommended that if Kenneth refused to
submit to a drug test, the court not allow the children to stay with Kenneth overnight,
require Kenneth’s visits with the children be monitored, and preclude Kenneth from
transporting the children.
At the progress hearing, Chance, Pamela, and Garrett were ordered to remain
placed with their paternal aunt. After stating “all prior orders remain in full force and
effect,” the dependency court said: “I’m advising Mr. B[.], through his attorney, that
although he is a non[-]offending party, he has unmonitored visitation, and he is subject to
court orders. [¶] The Department’s request is that he randomly drug test, and if he
refuses to randomly drug test or if his test results are missed or dirty, his visitation, that is
currently unmonitored, is going to revert back to monitored. [¶] The Department has
discretion, once he complies, to liberalize his visits.”11
5. The Jurisdiction and Disposition Hearing on the First Subsequent Petition
At the November 6, 2013 adjudication hearing, the Department informed the
dependency court that Kenneth had yet to submit to any on-demand drug tests.
According to the Department, the assigned social worker had made numerous attempts to
contact Kenneth about scheduling a drug test, but Kenneth had not responded to any of
the social worker’s messages.
Kenneth did not appear at the November 6, 2013 adjudication hearing. Kenneth’s
attorney informed the court that she had contacted Kenneth before the hearing and would
be requesting a continuance of the disposition hearing on his behalf. The dependency
court declined counsel’s request for a continuance, noting that the disposition hearing had
11 According to the record, Kenneth did not attend the progress hearing.
9
already been continued twice, once on August 29, 2013 and again on September 11,
2013.
The court received the Department’s six reports into evidence. Kenneth’s counsel
presented no evidence. When invited to present argument, Kenneth’s counsel responded:
“No argument with regard to the adjudication, Your Honor. My client is non-offending.”
After hearing argument from the attorneys representing Brigitte, the Department, and the
children, the dependency court sustained the following allegations: (1) that on prior
occasions, Brigitte had left Pamela and Garrett home alone without adult supervision for
extended periods of time; (2) Chance and Pamela were prior dependents (in Orange
County) for the same reason; and (3) Brigitte’s failure to provide supervision placed
Chance, Pamela, and Garrett at risk. (§ 300, subds. (b) & (j).) The court dismissed the
remaining allegations. The court then found the previous disposition had not been
effective in protecting the children. When the court asked for the case plan, counsel for
the Department said she thought “dispo[sition] was going over” so she had not prepared
one.
Kenneth’s counsel then requested the opportunity to address the issue of suitable
placement. She requested that the children be released to Kenneth because he was a non-
offending, noncustodial parent under the original and subsequent petitions. She stated
that Kenneth would be able to have some of the children live within him in his parents’
home. Kenneth’s counsel argued that the Department had failed to produce any evidence
demonstrating that Kenneth could not care for his children. She argued that the
Department’s report of the anonymous call alleging that Kenneth had been using drugs
was unsubstantiated, and highlighted the fact that the Department had not filed a petition
against Kenneth due to his alleged drug use. Kenneth’s counsel also addressed Kenneth’s
failure to submit to a drug test, arguing that Kenneth did not believe he was required to
submit to any additional testing in the children’s current case because he had already
tested around the time the original petition was filed.
10
Chance’s counsel joined with Kenneth’s counsel’s argument. Counsel for the
Department argued: “I’m not inclined to release these children to [Kenneth]. One reason
is although he’s non[-]offending, he was ordered to randomly drug test and I don’t have
any information that he is refusing to test and there was an anonymous call that he might
be using. But the test was his opportunity to show me that the anonymous call was not
true. I have told him and the Department has told him, he still refuses to test.” Pamela’s
and Garrett’s counsel joined with the Department.
When Kenneth’s counsel asked to respond, the court interjected: “I gave you the
opportunity to be heard, [counsel]. And as [Pamela’s] counsel indicated, these children
were released to him. We tried to do a [prerelease investigation]. He indicated he
couldn’t keep the children and then we had the issue with respect to drug use. He
currently has monitored visits. So a home of parent father order is not appropriate.”
Kenneth’s counsel then said: “I would just object. I don’t believe the Department
has established [its] burden.”
When the dependency court interrupted her again, she responded: “I am making a
record.”
The dependency court continued: “[Y]ou were asked to be heard. I said[] No. No
is very clear. [Y]ou had your opportunity to be heard.”
The court then found “by clear and convincing evidence pursuant to [section 361,
subdivision (c)], there is a substantial danger if these children were returned to their [sic]
physical health and emotional well[-]being and that there are no reasonable means by
which they may be—these children may be protected without removing them from the
parents’ physical custody. [¶] They are hereby removed from [Brigitte], the parent with
whom they resided at the time this petition was filed. Their care, custody, control and
conduct is placed under the supervision of the Department . . . for suitable placement.”
The dependency court granted the Department’s request for suitable placement of
Chance, Pamela, and Garrett.
11
Kenneth’s counsel inquired: “If the court is ordering that [Kenneth] test, which I
understand the court is, [I request] there at least be a limitation as to the number of tests
that he is required to provide. I would ask [that] the Department have discretion to
liberalize his visits back to unmonitored once they have established that the tests are
clean.”
The dependency court responded: “He didn’t comply.”
Kenneth’s counsel then said: “I would like to point out to the court he was not here
for September 11th. I do believe . . . in fact [it] appears [his counsel at that hearing] sent
him a letter. He indicated to me when I spoke without him he didn’t get the letter.
Didn’t read the letter. [¶] I’m not sure he was present in court when the court made the
order.”
The court: “[H]is attorney was. I don’t know why he was not here, that’s between
him and his attorney. You may know more than I do. He was ordered back for
subsequent days. . . . I cannot tell you why he’s not here now. The court is going to
make a case plan.”
The dependency court then ordered Brigitte to provide five random or on-demand
drug tests, and to complete a drug treatment program if any tests were missed or dirty.
Based on Brigitte’s non-compliance with most of the court’s prior orders (including the
order to drug test) and the sustained petition, the Department argued the children would
be at risk with unmonitored visitation with their mother. The dependency court
responded that although Brigitte had skipped some of her tests and therefore failed to do
six consecutive drug tests as ordered, “I don’t really see drugs as an issue in this case. [¶]
[A]t least I don’t have any evidence [she left the children home—] because she was doing
drugs . . . . [¶] . . . [¶] I’m going to allow her to keep unmonitored day visits, over the
Department’s objection.
“I think the children at this stage are old enough so that if anything inappropriate
happens, that the . . . children are able to communicate.”
12
When Kenneth’s counsel asked if the court would consider allowing Kenneth to
provide a set number of tests, the court responded: “No. My problem with Mr. B[.] is he
won’t comply for various reasons. I’m wondering whether or not he is using drugs, and
he just won’t get on the ban[d]wagon.”
Kenneth’s counsel responded: “The court just made the order September 11th. [¶]
My client advised me he was not aware of it. He tested previously for the Department.”
The dependency court again rejected the request to order a set number of tests. The court
ordered Kenneth to submit to random and on demand consecutive drug testing and, if any
tests were missed or dirty, to complete a drug rehabilitation program with random testing.
The court also ordered monitored visitation for Kenneth two times a week for three
hours, at a minimum, with a monitor approved by the Department. The court added that
the test results were to be part of the progress report prepared for January 8, 2014.
Kenneth filed a notice of appeal from the order of November 6, 2013
(B253597).12
6. Kenneth’s Positive Drug Test
On January 8, 2014, the Department informed the dependency court that Kenneth
had submitted to an on-demand drug test which was positive for amphetamine and
methamphetamine on December 10, 2013.
12 In connection with this first appeal, we requested and received minute orders
subsequent to the November 6, 2013 hearing, and then supplemental letter briefs from the
parties to address what effect, if any, proceedings occurring on August 19, 2014 had on
Kenneth’s appeal. Because Kenneth filed notice of a second appeal and that appeal had
the potential to render moot his first appeal, we vacated submission in the first appeal
(B253597) and deferred our ruling in that matter in order to consider the merits of the
more recent appeal (B258789) and then proceed accordingly. (See In re A.B. (2014) 225
Cal. App. 4th 1358, 1364 [“so long as the jurisdictional finding under the subsequent
petition is supported by substantial evidence, reversal of the jurisdictional finding under
the original petition would be futile”].)
13
On February 20, 2014, the Department said it had learned from Kendra B. that
Kenneth had been arrested on January 13, 2014 for a felony and had a court date set for
March 5.13
According to the Department’s status report, Kenneth told the social worker he
had been arrested for contempt of court on January 13, 2014, and he had no further court
dates. According to the inmate information sheet attached as an exhibit to the report,
Kenneth had had one court date on March 5, 2014, had been released on March 6, 2014,
and had another court date set for September 4, 2014.14
Chance, Pamela, and Garrett continued to live with their paternal aunt Kendra
while Kenneth continued to live with his parents nearby; his parents monitored his visits
with the children, which were held twice a week for three hours.
On May 20, 2014, the Department informed the court that it would be filing a
section 342 petition as to Kenneth, due to his positive drug test in January 2014 and his
failure to comply with court-ordered drug testing.
7. The Second Subsequent Dependency Petition (§ 342)
On May 22, 2014, the Department filed a subsequent petition alleging Kenneth “is
an abuser of illicit drugs including amphetamine and methamphetamine, which render
[him] incapable of providing regular care and supervision of [Chance, Pamela, and
Garrett].” The Department cited Kenneth’s positive drug test on December 10, 2013, and
said he had failed to comply with court orders for random drug testing. The Department
alleged Kenneth’s illicit drug abuse and noncompliance with court orders endangered the
children’s health and safety and placed them at risk of physical harm. (§§ 300, subd. (b)
& 342.)
13 The offense is not identified in the record.
14 We find no further mention of criminal proceedings in the record.
14
The Department reported Kenneth’s visitation was monitored because of his
positive drug test on December 10, 2013, and said he had agreed on April 6, 2014, to
submit to an on-demand test but had failed to do so.15 The report concluded that
Kenneth “appears to have a substance abuse problem.”
On June 25, 2014, the dependency court continued the hearing to July 14, 2014,
ordering the Department to interview Kenneth and to file a supplemental report by July
10, 2014.
In a last minute information report dated July 10, 2014, the social worker indicated
she had spoken with Kenneth the day before regarding the allegations in the recently filed
petition, and he said he did not have a history of abusing drugs; he had been “clean” since
his release from jail; he had not known he was supposed to be drug testing; he had had a
stroke four years earlier and did not “remember things that well”; and if he tested positive
on December 10, 2013, it could have been because of an antihistamine inhalant he was
taking for congestion, stating “[t]hat’s the only thing it could have been.” Kenneth said
he had been in a drug program for the past three months and provided the program name,
address, and phone number as well as the name of his counselor, indicating he would ask
her to prepare a progress letter for him. He said that he attended the program for 90
minutes each week for group counseling, and that he participated in individual counseling
afterward. He said that he had almost completed the 12-session program and was willing
to undergo drug testing through the Department.
On July 14, 2014, the hearing was continued again for “further report [to be filed
by August 15, 2014] and contested hearing.”
15 Although the record contains documentation of Brigitte’s missed tests, we find no
such documentation regarding Kenneth.
15
According to the report dated August 19, 2014, the social worker had contacted
Kenneth by telephone on April 4 and July 9, 2014, and had met with him in person on
April 6, May 8, and June 19, 2014. The report stated that Kenneth had informed the
Department that he would like to have his children in his custody. The report also
contained the same information included in the July 10, 2014 last minute information
report, including Kenneth’s statement that he was willing to submit to drug testing
through the Department (but without mention of any Department-requested or
Department-scheduled testing date(s) or result(s)). The report also stated that, on August
15, 2014, the social worker had contacted Kenneth’s counselor, but she was unable to
discuss Kenneth’s progress without a consent to release of information.
8. The Jurisdiction and Disposition Hearing on the Second Subsequent Petition
At the August 19, 2014 jurisdiction and disposition hearing, the Department
submitted on its reports and presented no live witnesses. The dependency court sustained
the petition as to Kenneth, noting he “had a positive test[,] and he has refused to test for a
variety of reasons, in addition to the fact he was incarcerated.” “His position alternately
had been he was nonoffending so he shouldn’t have to test; or, in the alternative, he’s
happy to test, but, for a variety of reasons, he never makes it to a test; or that he’s not
using and the test was just a mistake and he was probably taking some prescribed
medication. But he’s never shown proof of that medication [or of completion of his drug
program].” By clear and convincing evidence, the court concluded the children’s return
to their father would create a substantial risk of harm and ordered them removed them
Kenneth’s custody, to remain placed with their paternal aunt under the Department’s
supervision. The court ordered reunification services for Kenneth, including individual
counseling and participation in a “full-on” drug treatment program with random drug
testing.16 The court allowed the Department discretion to liberalize Kenneth’s monitored
16 The court noted that it would recognize any drug-treatment programs Kenneth had
enrolled in and completed since the time the section 342 petition was filed.
16
visitation. The matter was continued to October 23, 2014 for a contested 12-month
review hearing on the original section 300 petition.17 (§ 366.21, subd. (f).)
Kenneth filed a notice of appeal from the court’s order of August 19, 2014
(B258789).
DISCUSSION
I. Kenneth’s Second Appeal (B258789)
In appealing from the dependency court’s August 19, 2014 order sustaining the
subsequent petition alleging Kenneth’s substance abuse placed his children at substantial
risk of physical harm (§ 300, subd. (b)), Kenneth argues the Department failed to
demonstrate the required nexus between his conduct and a current risk of substantial
harm to the children. (In re David M. (2005) 134 Cal. App. 4th 822, 829 (David M.).)
Citing In re Destiny S. (2012) 210 Cal. App. 4th 999, 1003, he argues the use of hard
drugs, standing alone, is insufficient to support jurisdiction.
Citing our decision in In re Christopher R. (2014) 225 Cal. App. 4th 1210
(Christopher R.), the Department argues the record supports the inference Kenneth’s drug
use was not a “one-time event” and says “it is clear that [Kenneth] has a substance abuse
problem, or rather a substance use disorder.” Although the Department acknowledges
that the record contains no evidence demonstrating how much time Kenneth spends
17 We requested and have received minute orders reflecting the proceedings in this
matter following the August 19, 2014 hearing. Pursuant to Evidence Code sections 452,
subdivision (d), and 459, subdivision (a), we take judicial notice of the minute orders
dated October 23 and December 15, 2014, and January 20, 2015. (In re C.C. (2009) 172
Cal. App. 4th 1481, 1487, fn. 3.) At the review hearing on October 23 (§ 366.21, subd.
(f)), the dependency court noted Kenneth was in compliance with his case plan but found
continued jurisdiction necessary; the matter was continued to December 15 for a hearing
pursuant to section 366.22. On December 15, the matter was continued to January 20,
2015, and then to March 5 for the contested hearing.
17
getting and using methamphetamine, it asserts that “it is very clear that [Kenneth] places
his need for the drug over his responsibility to his children.”
1. The Governing Statutes and Standard of Review
As relevant, section 342 specifies as follows: “In any case in which a minor has
been found to be a person described by Section 300 and the petitioner alleges new facts
or circumstances, other than those under which the original petition was sustained,
sufficient to state that the minor is a person described in Section 300, the petitioner shall
file a subsequent petition. . . . [¶] All procedures and hearings required for an original
petition are applicable to a subsequent petition filed under this section.”
“Section 300, subdivision (b), allows a child to be adjudged a dependent of the
juvenile court when ‘[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 the failure or inability of his or
her parent or guardian to adequately supervise or protect the child . . . or by 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.’” (Christopher
R., supra, 225 Cal.App.4th at p. 1215.) “In short, there are three elements for jurisdiction
under section 300, subdivision (b), namely, (1) neglectful conduct or substance abuse by
a parent in one of the specified forms; (2) causation; and (3) serious physical harm to the
child, or a substantial risk of such harm. [Citations.]” (In re Rebecca C. (2014) 228
Cal. App. 4th 720, 724-725 (Rebecca C.).) In Kenneth’s case, the issue is whether his use
of amphetamine and methamphetamine has caused harm or poses a substantial risk of
harm to his children.
“We review the juvenile court's jurisdictional findings for sufficiency of the
evidence. [Citations.] We review the record to determine whether there is any
substantial evidence to support the juvenile court's conclusions, and we resolve all
conflicts and make all reasonable inferences from the evidence to uphold the court's
orders, if possible. [Citations.] ‘However, substantial evidence is not synonymous with
18
any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not
be affirmed on appeal. [Citation.] Furthermore, “[w]hile substantial evidence may
consist of inferences, such inferences must be ‘a product of logic and reason’ and ‘must
rest on the evidence’ [citation]; inferences that are the result of mere speculation or
conjecture cannot support a finding [citations].” [Citation.] “The ultimate test is whether
it is reasonable for a trier of fact to make the ruling in question in light of the whole
record.” [Citation.]’ [Citation.]” (David M., supra, 134 Cal.App.4th at p. 828.)
2. The August 19, 2014 Jurisdictional Findings and Dispositional Order Are Not
Supported by Substantial Evidence
In Christopher R., supra, 225 Cal. App. 4th 1215, we considered the court’s
analysis in Drake M., supra, 211 Cal. App. 4th 754. As the Drake M. court had explained,
“when the Legislature rewrote section 300, subdivision (b), in 1987 to include as a basis
for dependency jurisdiction a parent’s inability to provide regular care for his or her child
due to substance abuse, it included no definition of the term ‘substance abuse’ in the
statute. (Drake M., at p. 765.) Similarly, the legislative history revealed no specific
discussion of how the term should be defined in practice. As a result, ‘d]ependency cases
have varied widely in the kinds of parental actions labeled “substance abuse.”’ (Ibid.)”
(Christopher R., supra, 225 Cal.App.4th at p. 1217.)
In an effort to avoid inconsistencies, the Drake M. court had proposed a definition
of substance abuse based on the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders (4th rev. ed. 2000) (DSM-IV-TR), and we
recognized that formulation as a “generally useful and workable definition of substance
abuse for purposes of section 300, subdivision (b).” (Christopher R., supra, 225
Cal.App.4th at p. 1218.) We cautioned, however, that the DSM-IV-TR formulation was
“not a comprehensive, exclusive definition mandated by either the Legislature or the
Supreme Court,” and we rejected the mother’s argument in Christopher R. that only
someone who has been diagnosed by a medical professional or who falls within one of
19
the specific DSM-IV-TR categories can be found to be a current substance abuser.”
(Ibid.)
Moreover, we noted the DSM-IV-TR’s definition of “substance abuse” had
already been replaced in the Diagnostic and Statistical Manual of Mental Disorders, Fifth
Edition (DSM-5), published in May 2013 (after the decision in Drake M.), by a more
broadly defined classification of “substances abuse disorders,” combining substance
abuse and dependence. (Christopher R., supra, 225 Cal.App.4th at p. 1218, fn. 6.)
“DSM-5 identifies 11 relevant criteria, including cravings and urges to use the substance;
spending a lot of time getting, using, or recovering from use of the substance; giving up
important social, occupational or recreational activities because of substance use; and not
managing to do what one should at work, home or school because of substance use. The
presence of two or three of the 11 specified criteria indicates a mild substance use
disorder; four or five indicate a moderate substance use disorder; and six or more a severe
substance use disorder. (American Psychiatric Association, Highlights of Changes from
DSM-IV-TR to DSM-5 [as of Apr. 14, 2014].)” (Christopher R., supra, 225
Cal.App.4th at p. 1218, fn. 6.)
According to the Department, the petition was properly sustained because Kenneth
had a positive drug test on December 10, 2013, and stated he had been “clean” since his
release from jail which occurred on March 6, 2014. If true, the Department says, at the
time of the hearing on the section 342 petition, he had only been drug free for five
months; he said he had completed a 12-week program he attended once a week for 90
minutes at a time, but “[i]t is the nature of addiction that one must be clean for much
longer to show real reform.”18
18 Unlike the determination to be made at a jurisdictional hearing, the cases the
Department cites involve section 388 petitions, where a parent must demonstrate (1) a
genuine change of circumstances or new evidence and (2) that revoking the previous
order would be in the best interests of the children. (In re Marcelo B. (2012) 209
20
Furthermore, the Department asserts—without citation to any supporting evidence
in the record—instead of using his SSI to obtain a place to live where he could care for
his children (as all three could not live with him at his parents’ home), he used it to buy
methamphetamine, knowing all along that his continued drug use could lead to
termination of his parental rights.19
Notably, in its respondent’s brief in connection with Kenneth’s first appeal, the
Department expressly conceded, based on the record through November 2013 (before
Kenneth’s positive drug test in December 2013): “Granted, the evidence of [Kenneth]’s
drug use was nominal and would not have supported jurisdiction or an order removing
the children from father had he been a custodial parent.” Thereafter, Kenneth had one
positive drug test on December 10, 2013. By February 20, 2014, the Department had
learned Kenneth had been arrested for a felony on January 13, 2014 and as of April 2014,
knew he had been released from jail on March 6, 2014. There is no indication in the
Cal.App.4th 635, 642 [father had received extensive treatment for alcoholism and had
achieved a period of sobriety but relapsed four months after reunifying with his son;
although he reentered treatment after losing custody, he continued to deny negative
impact his alcoholism had on his son]; In re C.J. W. (2007) 157 Cal. App. 4th 1075, 1081
[both parents had extensive histories of drug use and failing to reunify with their children,
and their “recent efforts at rehabilitation were only three months old at the time of the
section 366.26 hearing”]; In re Kimberly F. (1997) 56 Cal. App. 4th 519, 531, fn. 9.
[considering a “parent who loses custody of a child because of the consumption of illegal
drugs[,]” the court stated: “It is the nature of addiction that one must be ‘clean’ for a
much longer period than 120 days to show real reform”].)
According to DSM-5, “Early remission from a DSM-5 substance use disorder is
defined as at least 3 but less than 12 months without substance use disorder criteria
(except craving), and sustained remission is defined as at least 12 months without criteria
(except craving).” (American Psychiatric Association, Highlights of Changes from
DSM-IV-TR to DSM-5 [as of Feb. 3, 2015].)
19 According to the record, because he had had a stroke four years earlier, Kenneth
was on disability and received about $600 a month.
21
record that Kenneth’s arrest involved drugs. As stated in the Department’s later report,
he told the social worker he had been “clean” since his release from jail in early March,
2014.
As the Destiny S. court stated, “It is undisputed that a parent’s use of marijuana,
‘without more,’ does not bring a minor within the jurisdiction of the dependency court.”
(Destiny S., at p. 1003, original italics.) “The same is true with respect to the use of hard
drugs. (In re Rocco M. (1991) 1 Cal. App. 4th 814, 817, 825–826, 2 Cal. Rptr. 2d 429
[(Rocco M.)] [mother’s cocaine use standing alone was not sufficient basis or jurisdiction
under § 300, subd. (b)]; see In re Jeannette S. (1979) 94 Cal. App. 3d 52, 59, fn. 2 [156
Cal. Rptr. 262] [father’s alcoholism alone did not support jurisdiction under § 300, subd.
(b)].)” (Destiny S., at p. 1003; see also Drake M., supra, 211 ca 4 at p. 766 [“Although a
finding of substance abuse is necessary under . . . section 300, subdivision (b), it does not
always follow that such a finding means that the parent or guardian at issue is unable to
provide regular care resulting in a substantial risk of harm to the child”].)
To support a jurisdictional finding under section 300, subdivision (b), the
Department had to present “evidence of a specific, nonspeculative and substantial risk to
[Chance, Pamela, and Garrett] of serious physical harm” stemming from Kenneth’s use
of amphetamine and methamphetamine. (Destiny S., supra, 210 Cal.App.4th at p. 1003,
citing David M., supra, 134 Cal.App.4th at p. 830 [jurisdiction under section 300,
subdivision (b), reversed where mother had continuing substance abuse problem but there
was no evidence of a specific, defined risk of harm from her substance abuse].) Here, the
Department produced no evidence demonstrating that Kenneth’s drug use caused any
harm or posed any substantial risk of harm to his children.
At the time of the August 2014 jurisdictional hearing on the section 342 petition in
this case, whether Kenneth had a substance abuse problem was relevant only to the extent
it affected his ability to care for his children. (In re B.T. (2011) 193 Cal. App. 4th 685,
693; In re James R., Jr. (2009) 176 Cal. App. 4th 129, 137 (James R.) [“The mere
22
possibility of alcohol abuse, coupled with the absence of causation, is insufficient to
support a finding the minors are at risk of harm within the meaning of section 300,
subdivision (b)”].) The record contains no evidence demonstrating that Kenneth’s
conduct had caused actual harm to Chance (then 15), Pamela (10) or Garrett (9), nor does
it contain evidence demonstrating that his conduct created a substantial risk of serious
harm to these children. (James R., supra, 176 Cal.App.4th at p. 136; In re Ricardo L.
(2003) 109 Cal. App. 4th 552, 567 [other than parent’s arrests for being under the
influence of methamphetamine six and seven years prior to hearing, there was no
evidence in record of parent’s substance abuse history or history of neglect; “[w]ithout
the history of abuse and neglect, it is nearly impossible to determine whether [the child]
is at risk of suffering from the same abuse and neglect”] .) To the contrary, the children
were happy and doing well living with their paternal aunt and spending time with
Kenneth who lived nearby. (See Rocco M., supra, 1 Cal. App. 4th 814, 824 [“the fact that
a child has been left with other caretakers will not warrant a finding of dependency if the
child receives good care”].)
These children were not of “such tender years that the absence of adequate
supervision and care poses an inherent risk to their physical health and safety.” (Rocco
M., supra, 1 Cal.App.4th at p. 824.) Moreover, there is no indication the children were
ever around Kenneth when he was under the influence of drugs; that Kenneth ever drove
the children while under the influence of any drugs; that the children ever had access to
Kenneth’s drugs; or that Kenneth otherwise placed the children at a current risk of harm
because of his drug use.
Because there is no evidence that Kenneth’s drug use or abuse placed his children
at current risk of serious physical harm as required for dependency jurisdiction pursuant
to section 300, subdivision (b) (David M., supra, 134 Cal.App.4th at p. 831), the order
sustaining the petition is not supported by substantial evidence. (See Rebecca C., supra,
228 Cal.App.4th at pp.727-728.)
23
Given our conclusion that the jurisdictional findings must be reversed, the
dispositional orders must also be reversed.20 (James R., supra, 176 Cal.App.4th at p.
137; David M., supra, 134 Cal.App.4th at p. 833.) We now turn to Kenneth’s first
appeal.
II. Kenneth’s First Appeal (B253597)
Kenneth argues reversal of the November 2013 order is also required because the
dependency court did not make a finding that placing the children in his custody would
be detrimental to their safety, protection or physical or emotional well-being as required
by section 361.2. According to the Department, Kenneth forfeited his right to challenge
the dispositional order for failure to apply section 361.2, the dependency court did not err
as it made appropriate findings required by the statute, and substantial evidence
supported the dependency court’s decision not to place the children with their father.21
Again, we agree with Kenneth.
20 Because our reversal of the jurisdiction order requires us to also reverse the
disposition order, we need not and do not address Kenneth’s argument that the
dependency court erred as a matter of law in ordering the children removed from his
custody under section 361 because the children did not reside with him at the time the
dependency court issued its jurisdiction and disposition orders.
21 We reject the Department’s argument Kenneth forfeited his argument the
dependency court failed to apply or comply with section 361.2. Although, as a general
rule, a party who does not raise an argument in the trial court forfeits that argument on
appeal, application of the forfeiture rule is not automatic, and when, for example, the
appellant raises a question of law, an appellate court has discretion to address the issue.
(In re Abram L. (2013) 219 Cal. App. 4th 452, 462 (Abram L.), citing In re V.F. (2007)
157 Cal. App. 4th 962, 967-968 (V.F.), superseded by statute on other grounds, as
recognized in In re Nickolas T. (2013) 217 Cal. App. 4th 1492, 1503.) As the court
concluded in Abram L., supra, 219 Cal.App.4th at page 462, the arguments raised here
are primarily issues of law. Further, at the disposition hearing, Kenneth’s counsel
repeatedly objected, arguing the Department had failed to meet its burden to show the
children would be at risk if placed with Kenneth, their nonoffending noncustodial parent,
and the dependency court told Kenneth’s counsel she had exhausted her opportunity to be
heard. “Under these circumstances, we decline to hold that [Kenneth], a nonoffending
24
1. The Dependency Court Erroneously Failed to Apply Section 361.2
Pursuant to section 361, subdivision (c)—the statute cited by the dependency court
in entering the orders from which Kenneth appeals, a dependent child may not be taken
from the physical custody of a parent with whom he resided at the time the petition was
initiated, unless the [dependency] court finds by clear and convincing evidence that at
least one of certain enumerated circumstances exists. One such circumstance exists
where “[t]here is or would be a substantial danger to the physical health, safety,
protection or physical or emotional well-being of the minor if the minor were returned
home, and there are no reasonable means by which the minor’s physical health can be
protected without removing the minor form the minor’s parent’s . . . physical custody.”
(§ 361, subd. (c)(1).)
According to the record in this case, the dependency court found the requirements
of section 361, subdivision (c)(1) were satisfied on the basis of the mother’s conduct—
just as the dependency court in Abram L., supra, 219 Cal. App. 4th 452, had done. (Id. at
p. 460 [“Mother did not appeal the dispositional order and we assume the court’s finding
was supported by substantial evidence”].) “[The children], however, could not be
removed from [their] father’s physical custody under section 361, subdivision (c)(1)
because they were not residing with him when the petition was initiated. (V.F., supra,
157 Cal.App.4th at p. 969 [§ 361, subd. (c) ‘“‘does not, by its terms, encompass the
situation of the noncustodial parent’”’].)”22 (Abram L., supra, 219 Cal.App.4th at p. 460,
original italics.)
and noncustodial parent, forfeited his arguments regarding his constitutionally protected
interest in assuming physical custody over his children.” (Abram L., supra, 219
Cal.App.4th at p. 462.)
22 As the Department acknowledges in its respondent’s brief, language in the record
is imprecise in referring to “parent(s)” and “parents” and suggesting both Brigitte and
Kenneth had physical custody of the children, but the Department also concedes: “There
25
Rather, the court should have considered father’s request that his children be
placed in his custody under section 361.2.23 (Abram L., supra, 219 Cal.App.4th at p.
460.) Under subdivision (a) of section 361.2, “When a court orders removal of a child
pursuant to Section 361, the court shall first determine whether there is a parent of the
child, with whom the child was not residing at the time that the events or conditions arose
that brought the child within the provisions of Section 300, who desires to assume
custody of the child. If that parent requests custody, the court shall place the child with
the parent unless it finds that placement with that parent would be detrimental to the
safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).)
To comport with the due process requirements protecting a parent’s fundamental
right to care, custody, and management of his child “‘a finding of detriment pursuant to
section 361.2, subdivision (a) must be made by clear and convincing evidence.’
[Citation.]” (Abram L., supra, 219 Cal.App.4th at p. 461; see also Isayah C., supra, 118
could have been no question in anyone’s mind, including the juvenile court’s, that
[Kenneth] was a noncustodial parent.”
23 At oral argument, the Department argued Kenneth’s request for custody was not
sufficient to trigger application of section 361.2, subdivision (a) because he did not
request to take physical custody of all his children; rather, he requested that only some of
his children reside with him in his parents’ home, with the other children to reside with
their paternal aunt, Kendra. We disagree. Under section 361.2, “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.” (In re Isayah C. (2004) 118
Cal. App. 4th 684, 700 (Isayah C.), fn. omitted; see also V.F., supra, 157 Cal.App.4th at p.
971.) Accordingly, Kenneth’s request for custody of his children was sufficient to trigger
application of section 361.2, subdivision (a). This does not mean, however, that upon
remand, the dependency court may not consider the children’s placement in separate
homes as a factor in determining whether granting Kenneth custody of the children would
be detrimental to their safety, protection, or physical or emotional well-being. (See In re
Luke M. (2003) 107 Cal. App. 4th 1412, 1422-1423 [in evaluating detriment under section
361.2, subdivision (a), the dependency court may consider the impact placement with the
noncustodial parent would have on the dependent children’s relationships with their
siblings].)
26
Cal.App.4th at p. 697 [“a nonoffending parent has a constitutionally protected interest in
assuming physical custody, as well as a statutory right to do so, in the absence of clear
and convincing evidence that the parent’s choices will be ‘detrimental to the safety,
protection, or physical or emotional well-being of the child.’ [Citation.]”].) “Under the
plain terms of the statute, if the juvenile court finds that placing a child in the physical
custody of a noncustodial parent would not be detrimental to the child within the meaning
of section 361.2, subdivision (a), it must place the child in the physical custody of the
noncustodial parent.” (Abram L., supra, 219 Cal.App.4th at p. 461.) “Section 361.2,
subdivision (c) provides that ‘[t]he court shall make a finding either in writing or on the
record of the basis for its determination under subdivisions (a) and (b).’” (Ibid.)
Just as in Abram L., supra, 219 Cal. App. 4th 452, nothing in the record before us
suggests the dependency court considered the requirements of section 361.2 in
determining whether to deny Kenneth’s request for physical custody of Chance, Pamela
and Garrett. As in Abram L., the dispositional order does not refer to section 361.2 or the
standard set forth in subdivision (a) of the statute to deny a noncustodial parent physical
custody of his or her children; to the contrary, the dependency court cited to section 361,
subdivision (c), its statutory language, and the conduct of the children’s mother. (Id. at p.
461.) Also, as in Abram L., in its oral remarks regarding Kenneth’s request for possible
placement of the children with their father, the dependency court did not refer to section
361.2 or use the operative language of the statute. (Ibid.) Furthermore, the Department
did not request the court to consider section 361.2 in its November 6, 2013 jurisdiction
and disposition report.24 (See ibid.) In light of the foregoing, we conclude the
dependency court did not apply the applicable law to Kenneth’s request for physical
custody of the children.
24 Indeed, in this case, the Department’s counsel indicated there was no proposed
case plan in anticipation that the disposition hearing would be continued.
27
2. We Decline to Make Implied Findings
Citing In re S.G. (2003) 112 Cal. App. 4th 1254, the Department asserts “it is clear
from the record the [dependency] court had section 361.2 in mind when it denied
[Kenneth’s] attorney’s request that the children be released to [him].” The Department
argues that, based on the record, we may imply that the dependency court’s statement that
releasing the children to father would not be appropriate supports a finding that the
children’s release to Kenneth would be detrimental. (See In re S.G., supra, 112
Cal.App.4th at p. 1260.) We disagree.
As the court explained in Abram L., “[u]nder Marquis and V.F., it is inappropriate
to make implied findings where the juvenile court fails to make express findings as
required by section 361.2, subdivision (c).” (Abram L., supra, 219 Cal.App.4th at p.
463.) Accordingly, we decline to make implied findings in this case.
3. Father Was Prejudiced By the Court’s Dispositional Order
To warrant reversal of the dependency court’s dispositional order, Kenneth must
have been prejudiced by the court’s error in not applying section 361.2 to his request for
placement of his children in his home. (Abram L., supra, 219 Cal.App.4th at p. 463.)
We will reverse if “‘it is reasonably probable that a result more favorable to [Kenneth]
would have been reached in the absence of the error.’ [Citation.]” (Ibid.)
In light of the lack of evidence supporting a detriment finding before the
dependency court at the time of the November 6, 2013 disposition hearing, we conclude
it was reasonably probable the court would have placed the children in Kenneth’s custody
had it considered Kenneth’s request under section 361.2. The Department argues that
placement with Kenneth would have been detrimental to the children because of “the
issue of [Kenneth’s] possible drug use.” The Department concedes, however, that the
evidence of Kenneth’s drug use at the time of the disposition hearing was “nominal” and
based solely on the unsubstantiated anonymous call the Department’s social worker
received around June 2013. Nevertheless, the Department asserts that it would have been
28
unreasonable for the dependency court to grant Kenneth’s request for placement because
there was a potential harm that Kenneth would drive with the children in his car while
under the influence of drugs. The Department cites no evidence to support this assertion.
(See David M., supra, 134 Cal.App.4th at p. 828 [speculation or conjecture alone does
not constitute substantial evidence].) Accordingly, we conclude there is a reasonable
probability the dependency court would have rejected the Department’s detriment
argument had it considered Kenneth’s request for placement under the standard set forth
in section 361.2. (See In re C.M. (2014) 232 Cal. App. 4th 1394 (C.M.) [182 Cal. Rptr. 3d
206, 213-214] [noncustodial parent’s past substance abuse problems did not support a
detriment finding where the underlying petition contained no substance abuse allegations
against the noncustodial parent and there was no evidence that the noncustodial parent
had recently abused illicit drugs].)
DISPOSITION
The dependency court’s August 19, 2014 jurisdictional order issued under the
subsequent petition filed May 24, 2014 is reversed. All subsequent orders issued under
that petition are vacated as moot. (David M., supra, 134 Cal.App.4th at p. 833.) The
dependency court’s November 6, 2013 dispositional order issued under the subsequent
petition filed June 26, 2013 is also reversed to the extent it denied Kenneth’s request that
the children be placed with him and ordered the children placed with the Department for
suitable placement. The dependency court is directed to conduct a new disposition
hearing under the June 26, 2013 subsequent petition. At the new disposition hearing, the
court should consider under the standards set forth in section 361.2 father’s request for
placement of the children in his home, as well as what services father should be provided
going forward. In making these determinations, the juvenile court may consider events
that have taken place and circumstances that have arisen since the November 6, 2013
29
disposition hearing. (C.M., supra, 232 Cal. App. 4th 1394 [182 Cal. Rptr. 3d 206, 214];
Abram L., supra, 219 Cal.App.4th at p. 464, fn. 6.)25
WOODS, J.
We concur:
PERLUSS, P. J. ZELON, J.
25 Our disposition of Kenneth’s appeals does not affect the dependency court’s
orders issued with respect to the children’s mother, Brigitte. Accordingly, the
dependency court should proceed with the March 5, 2015 section 361.22 hearing as it
pertains to Brigitte.
30