In re Tanner B. CA2/7 ( 2015 )


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  • 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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
    

Document Info

Docket Number: B253597

Filed Date: 3/2/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021