In re M.C. ( 2023 )

Filed 2/6/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re M.C., a Person Coming Under
the Juvenile Court Law.
SOLANO COUNTY HEALTH AND
SOCIAL SERVICES DEPARTMENT,
Plaintiff and Respondent,
v. A165424
M.A.,
(Solano County
Defendant and Appellant. Super. Ct. No. J45321)
M.A. (Father) appeals from the juvenile court’s detention, jurisdiction,
and disposition orders in this dependency proceeding regarding his four-year-
old son, M.C. (Minor). Father contends that (1) the juvenile court erred in
detaining Minor from Father’s custody; (2) there was insufficient evidence to
support the jurisdictional allegation against Father; (3) there was insufficient
evidence to support the disposition orders removing Minor from Father’s
custody; and (4) the reunification services ordered for Father were
unsupported by the evidence.
We affirm the orders regarding detention and jurisdiction, but we must
reverse the disposition order. California law requires that the Solano County
Health and Social Services Department (the Department) establish by clear
and convincing evidence that placing Minor with Father “would be
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detrimental to the safety, protection, or physical or emotional well-being of
the child.” (Welf. & Inst. Code, § 361.2, subd. (a).) 1 The record here lacked
substantial evidence to support such a finding. The juvenile court also
abused its discretion by ordering Father to engage in reunification services
recommended by the Department—substance abuse testing, completion of a
parenting class, and participation in a parent partner program—without any
factual basis to support such an order. The record lacks any evidence that
Father uses or abuses narcotics or alcohol, and reflects that Father co-
parented three children of his prior marriage, all now adults.
BACKGROUND
A. Petition and Detention
In 2021, Minor’s mother (Mother) gave birth to Minor’s half brother.
Mother tested positive for methamphetamines and marijuana at the hospital
after childbirth, triggering a referral to the Department. According to the
Department’s initial report, Mother abandoned the newborn at the hospital,
purportedly eloping with the newborn’s putative father. Then three-year-old
Minor’s whereabouts were unknown.
The Department contacted Father two days after the delivery of the
newborn. Minor’s birth certificate had identified a different man as Minor’s
parent, but a DNA test had confirmed that Father was indeed Minor’s
biological parent. Father is a professional truck driver, and he was in
Michigan when he received the Department’s call. Father reported he had
left Minor with Mother approximately four days prior. Father explained that
Minor lived with Mother and maternal grandmother, but before going to the
hospital to deliver her newborn, Mother left Minor in the care of a family
1Unless otherwise noted, further statutory references are to the
Welfare and Institutions Code.
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friend. The family friend considered Minor like a “biological grandson,”
though she had learned that Father (and not her own son) is Minor’s
biological father.
The Department confirmed that Minor was safe in the family friend’s
custody. The friend expressed concern that Minor was not safe in Mother’s
custody, and that everyone in Mother’s home “does ‘hard drugs’ such as
methamphetamines.” She stated that Father was “always on the road for
work and does not care for [Minor].” The next day, the family friend reported
that Mother had “snatched” Minor from her house overnight. The friend did
not have Mother’s contact information.
Father reported that Mother “used to do methamphetamines in the
past,” but could not verify whether she was currently using
methamphetamines. The Department had received two prior referrals for
Minor. The Department received the first referral in 2018, when Minor was
born, because Mother tested positive for amphetamines and marijuana. This
referral was deemed “inconclusive” because Mother entered a residential
treatment program. In 2019, the Department received a second referral
based on a report that Mother had threatened to sell Minor for $20,000. This
referral was deemed “inconclusive” because Father took custody of Minor.
Father had cared for Minor for several months in 2019 when Mother
was using methamphetamines and alcohol, but Mother resumed caring for
Minor after she “got sober” in 2020. Father offered to make arrangements for
Minor to be with his paternal grandfather until Father returned to
California.
The Department filed a petition alleging Minor was within the
jurisdiction of the juvenile court because he was at substantial risk of serious
harm due to Mother’s ongoing substance abuse. (§ 300, subd. (b)(1).) The
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Department also alleged Minor was at risk because Father “knew or
reasonably should have known [Mother] was continuing to use
methamphetamines and marijuana during her pregnancy” and left Minor
with her “without a safety plan for [Minor’s] care.” The Department further
alleged that Minor’s older half sibling (not related to Father) was adjudged as
a dependent of the court in 2012. Mother’s parental rights were terminated
in 2014. (Id., subd. (j).)
At the detention hearing in August 2021, Father’s counsel “enter[ed] a
denial on his behalf.” The juvenile court found the Department made a prima
facie case that Minor came within section 300 and that continuance in
parental custody was contrary to his welfare. The court found there was a
substantial danger to Minor’s physical or emotional health, and there were no
reasonable means to protect his health absent removal. The court ordered
Minor detained. The Department placed Minor in an emergency foster home,
and moved him to a resource family home shortly thereafter, with his infant
half brother.
B. Jurisdiction and Disposition
1. Initial Findings Regarding Jurisdiction
In its October 2021 jurisdiction/disposition report, the Department
recommended that the juvenile court sustain the allegations against both
Mother and Father, order the continued detention of Minor, elevate Father
from “alleged” to “presumed” parent status, 2 and offer reunification services
2 Dependency law distinguishes between “alleged,” “biological,” and
“presumed” fathers, which determines the extent to which the father may
participate in the proceedings and be entitled to certain rights. (In re Mia M.
(2022) 75 Cal.App.5th 792, 806.) An “alleged” father has not established
biological paternity or qualification as a “presumed” father under the
Uniform Parentage Act (Fam. Code, § 7600 et seq.). Presumptions of
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to Father. Mother’s whereabouts remained unknown, and she had not been
in contact with the Department.
The Department confirmed that Father’s positive DNA test results
were legitimate and unaltered. Father reported that he had left Minor in
Mother’s care back in August because he “felt he didn’t have another option”
as he regularly traveled for work. Father had adult children from a prior
marriage; there was no child welfare history and no history of personal
substance abuse. If reunified with Minor, Father reported that his aunt and
uncle had agreed to help care for Minor while Father was traveling for work.
The Department nevertheless recommended reunification services for Father
as part of the case plan, including a Department-approved parenting
education course and submission to random substance abuse testing by the
Department.
2. The Contested Jurisdiction and Disposition Hearing
The juvenile court held a contested jurisdiction and disposition hearing
in April 2022. At the beginning of the hearing, Father’s counsel requested
either that the case be closed and Minor returned to Father’s custody, or that
Minor be placed with Father on a “family maintenance” program. The
Department’s counsel then expressed her understanding that Father was
either “submitting or objecting and submitting on jurisdiction with [Father’s]
counsel wanting to make a statement for the record, but that really today’s
contesting hearing is limited to the issue of whether [Father] received family
parenthood are set forth under this statutory framework, and a “presumed
parent” includes a person who “receives the child into their home and openly
holds out the child as their natural child.” (Fam. Code, § 7611, subd. (d).) A
“presumed” father is entitled to reunification services, whereas a “biological”
father may receive such services if the court determines that it will benefit
the child. (In re Mia M. at p. 806; § 361.5, subd. (a).)
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reunification or family maintenance services or whether the court is going to
place the child in his care and close the case.” Father’s counsel responded
that they were “going to submit on jurisdiction, but we are going to be
arguing that he was the noncustodial parent” and that the law was “clear
that the court must place a child with a noncustodial parent, absent finding
of detriment.”
Father testified that he still worked as a professional truck driver and,
with his current rotation schedule, spent five nights away and then three
nights at home. Father had prepared a plan with Minor’s paternal great-
aunt and great-uncle for Minor to live at their home and for them to take care
of Minor while Father was on the road. Father said he had completed a
virtual parenting class identified by the Department, but had not received a
certificate. The social worker told him that she would verify it. Father
testified that, back in August, he had left Minor with Mother because it
seemed to him that she was not using drugs. Further, the maternal
grandmother had told him Mother was not using drugs or drinking alcohol.
Father’s ex-wife also testified on his behalf. She testified that she had
three children with Father, and that Father “has always been on top of
everything in regards to his children since they were born.” She had also
seen Father with Minor, and they had a “[v]ery good” relationship. She
testified that despite “all his defects,” Father “is a good father,” loves Minor,
and is attentive and responsible with him. She also testified that she was
friends with the paternal great-aunt. Father’s former spouse had agreed that
she would be there to help if there was an emergency or the paternal great-
aunt and great-uncle needed help with Minor.
The social services supervisor (who had been the social worker assigned
to the case) testified that the case presented an unusual situation because
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Father was offered weekly visitation but, given the nature of his work and
proposed plan to rely on other family members to help care for Minor, the
Department permitted other paternal relatives to visit even when Father was
unable to attend. In the supervisor’s view, visitation had been inconsistent.
In the past five months, Father had attended five visits, Minor’s paternal
great-uncle had attended six visits, and Minor’s paternal great-aunt had
attended two visits. Father’s 19-year-old daughter (Minor’s adult half sister)
visited the most regularly.
Minor’s paternal great-aunt and great-uncle were going through the
resource family approval process. The required background checks had not
yet occurred, which the Department characterized as a “barrier” to current
placement of Minor in their home. The approval process for the anticipated
home was in progress but the home had not yet passed the Department’s
inspection. The supervisor testified that the paternal great-aunt and great-
uncle were only Spanish-speaking. While Minor knew some common words
in Spanish, he spoke only English and could not converse in Spanish.
The supervisor testified that reunification services were recommended
because the Department had not seen a “behavioral change in [Father’s]
ability to show that he can safely care for [Minor].” In her view, Father
“placed the child in unsafe situations. He’s made unsafe plans and
arrangements for caregivers due to work, and I haven’t seen him demonstrate
his willingness to make sure the child’s needs come first.” When asked what
opportunities Father had been given to demonstrate a positive behavioral
change, the supervisor testified that he was provided a “parent partner”
(someone to provide peer support who had been through the child welfare
system and reunified with their children), but Father was unable to
participate because he could not schedule regular weekly appointments due
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to his rotating work schedule. She also testified that Father had not
completed a parenting education class. When asked how the Department
envisioned the reunification plan for Father, the supervisor testified that she
would like Father to “get back engaged with a parent partner,” complete the
parenting class, and “be able to verbalize on how he plans on meeting his
child’s needs when he is parenting from afar[.]”
3. The Juvenile Court’s Findings
The juvenile court declared Father to be Minor’s presumed parent. The
court found true the allegations under section 300, subdivisions (b)(1) and (j),
including the allegation that Father knew or reasonably should have known
Minor’s mother was continuing to use drugs during her pregnancy, and left
Minor in her care without a safety plan.
The court checked the box on the form order after hearing, finding: “By
clear and convincing evidence, placement with the following parent would be
detrimental to the safety, protection, or physical or emotional well-being of
the child: Presumed father.” The court’s comments on the record at the
conclusion of the hearing, however, did not mention the bases for these
findings nor the burden of proof.
Instead, the juvenile court primarily discussed the court’s future
expectations of Father. The court indicated some concern that Father had
not complied with tasks the Department had set out for him, like completing
parenting classes. The court said, “I’ve heard what I’ve heard today . . . so far
and what I’ve read in the file. But it seems to me we have a father that
wants to be a father. Okay. That’s a good thing, and that’s good from the
Department’s standpoint, from everybody’s standpoint. The problem is [the
Department has] set up these different rules for [Father] after the events
with the mother, and he’s attempted to follow them, but he hasn’t really done
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everything he should. Maybe he has, maybe he’s gone to the parenting, I
don’t know.”
The court next expressed that Father and Father’s family could have
visited Minor more frequently. While the family members had visited Minor,
“it wasn’t really a lot” and “there really hasn’t been a lot of contact in four
years” since Minor was born. The court noted that Father’s adult daughter
was Minor’s most frequent contact with Father’s relatives, but it was unclear
whether she would be a potential caretaker for Minor.
The Department had characterized Father as “historically
unfortunately put[ting] his job over the needs of his child,” because his work
as a truck driver “requires him to be gone for lengthy periods of time.” The
court urged Father to try harder. The court continued, “So, I just think you
make a big effort.” Regarding Father’s job as a truck driver, the court said,
“If you have the power to limit those routes but, if you’re making that kind of
money, I can’t see stopping. You just keep going. You do your routes. You
have five days. You have two great days with your son, and it all works out.”
The court referred again to the fact that Father had left Minor with
Mother so he could work in the days leading up to the Department’s
intervention. The Department speculated that Father might have known
Mother was using methamphetamines. The court said, “But I really think
you need this little investigation. I agree it’s not the strongest case that
we’ve seen in this type of cases, I don’t think it’s the weakest either. I think
he made some mistakes, but placing the child back with her after I heard
about her and what I read about her was not a smart thing.”
The court also expressed some concern about potential uncertainty
regarding the logistics of Minor returning to Father’s care. The Department
had argued Father’s plan was not “viable” because it was unclear which of
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several possible rooms at Father’s aunt and uncle’s house would ultimately
become Minor’s bedroom. The court said, “And the room, if it is the other
room, so be it, I guess. But we don’t know. There’s not enough for me. My
interest is the child right now. My interest is you. Everybody says you’re a
good father, even your ex-wife, notwithstanding . . . in spite of all his faults.
I’ve heard that a lot. So, anyhow, we just need a little time, and my feeling
would be that the recommendations of the Department are well taken at this
time.”
Going forward, the court expected Father “does his job. Make a good
living. Gets a place so he has a rent[al] if that ever ends, but at least he has
a place to go, and the fact that the home that doesn’t concern me too much
other than, you know, this is what people have to do now with the economics
of the situation.” The court wanted Father “to just follow the rules to a tee.”
“And on this you’re putting your son first, your job second, but the thing you
can do with your son now is the visitation and follow up any of the rules that
have to be done. Let the relatives be investigated and hopefully in six
months or calendar it before, if it’s all done everybody recommends it, you can
get what you wanted here today. But that will be the order of the court.” It
found that Minor’s out-of-home placement was appropriate and necessary.
The court ordered reunification services for Father as stated in the
Department’s case plan. It maintained visitation for Father and his family
and permitted video visitation for Father given his work schedule. The court
did not discuss the basis for its order as to reunification services.
This appeal followed.
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DISCUSSION
I. No Error in Detention
Father argues that the juvenile court erred in its original 2021 findings
and orders by detaining Minor from Father’s custody. The Department
initially responds that Father has forfeited this challenge because his notice
of appeal identifies the 2022 jurisdiction and disposition orders, but not the
2021 detention orders.
Father has not forfeited his right to appeal the detention orders. “An
order entered prior to disposition . . . is ‘interlocutory and not appealable, and
thus any issue pertaining to it must be raised in a timely appeal of the
dispositional order.’ ” (In re B.P. (2020) 49 Cal.App.5th 886, 889 [dismissing
appeal from non-appealable detention order, quoting In re Javier G. (2005)
130 Cal.App.4th 1195, 1200].) That is precisely what Father did here,
appealing from the order on disposition and raising arguments regarding
detention and jurisdiction. The California Rules of Court require that a
notice of appeal be liberally construed “ ‘so as to protect the right of appeal if
it is reasonably clear what [the] appellant was trying to appeal from, and
where the respondent could not possibly have been misled or prejudiced.’ ”
(In re Joshua S. (2007) 41 Cal.4th 261, 272; Cal. Rules of Court, rule
8.821(a)(2).) The Department has not argued any prejudice here. Given
these circumstances and that Father had to raise his challenge with an
appeal of the dispositional order, we construe the notice of appeal to include
an appeal of the August 2021 detention findings and orders.
We nonetheless conclude that Father’s argument fails on the merits.
Section 319, subdivision (c)(1) provides that a minor’s detention must be
supported by a prima facie showing that the child falls within section 300.
The Department argues that section 319, subdivision (c)(1) does not apply to
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Father because he had only “alleged” father status at the time of detention
and was not a “parent” within the meaning of section 319. (See, e.g. In re
J.W.-P. (2020) 54 Cal.App.5th 298, 301 [“alleged” fathers have fewer rights
and are not entitled to custody].) Father offers no authority to the contrary.
Section 300 is satisfied where the court finds that remaining in the
parent’s home is contrary to the child’s welfare, there is a “substantial
danger” to the physical health of the child, and there are no “reasonable
means” by which to protect the child’s health unless the child is removed
from the parent’s custody. The juvenile court properly found section 300
satisfied as to Mother, given her ongoing drug abuse and her abandonment of
her newborn, Minor’s half brother, almost immediately after giving birth.
Even if section 319, subdivision (c)(1) did apply to Father, we are not
persuaded that the juvenile court erred. The Department’s evidentiary
burden at the detention hearing is “light.” (Johnny W. v. Superior Court
(2017) 9 Cal.App.5th 559, 567.) The record reflects ample evidence that
Minor was in serious danger. Father reported that he had left Minor with
Mother, despite her history of substance abuse. While Father said he did not
know Mother was using drugs when he left Minor with her to go to work, the
juvenile court knew Mother had tested positive for methamphetamine and
marijuana use and had abandoned her newborn at the hospital shortly after
giving birth to him. She then suddenly reappeared to “snatch” Minor from
the family friend who had been watching him while Mother was preparing to
deliver her baby. The juvenile court can consider Father’s prior parenting
decisions to determine whether Minor needs the court’s protection. (In re
T.V. (2013) 217 Cal.App.4th 126, 133.) The court did not err in finding the
Minor in danger at this early stage.
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Father also argues that the Department failed to make “reasonable
efforts” to prevent Minor’s removal from his custody, suggesting that the
Department should not have detained Minor and instead waited until the
following week when Father returned to California. Again, we disagree. “A
reasonable efforts finding must be based on the particular circumstances of
the case.” (In re Amy M. (1991) 232 Cal.App.3d 849, 856.) The Department
accurately characterizes the situation in this case, at the time of the
detention hearing, as “emergent.” No one knew Minor’s whereabouts at the
time the Department filed the petition, Mother had disappeared after a failed
drug test, and Mother then reappeared to take Minor from the family friend
who had been watching him. Meanwhile, Father was driving a truck over
2,000 miles away and unable to immediately return to take custody of the
Minor. Under the circumstances, waiting a week before detaining the then
three-year-old Minor would have been manifestly unreasonable. The juvenile
court did not err in its “reasonable efforts” finding.
Finally, Father argues that even if detention was proper, the court
erred in failing to consider placement with Minor’s paternal grandfather.
Section 319, subdivision (f)(3) provides that if a child cannot be returned to
the physical custody of their parent, the court “shall determine if there is a
relative who is able and willing to care for the child, and has been assessed
pursuant to Section 361.4.”
Again, at the time of the detention hearing, Father was still an
“alleged” parent; he lacked a putative father’s rights under the Uniform
Parentage Act and section 319, subdivision (f)(3) did not yet apply to him.
Even if it did, the paternal grandfather had not been “assessed” pursuant to
section 361.4, which typically includes an in-home inspection, criminal
records check, and child welfare history check. (§ 361.4, subd. (a)(1)–(3).)
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Under the circumstances, the juvenile court did not err in determining at the
detention hearing there was no relative who satisfied the definition of section
319, subdivision (f)(3).
II. Substantial Evidence for Jurisdictional Allegation
Father argues that the juvenile court’s jurisdictional finding against
him is not supported by substantial evidence. (§ 300, subd. (b)(1).) The
Department initially responds that Father either waived this challenge by
submitting on jurisdiction at the April 2022 hearing, or that the challenge is
nonjusticiable because the jurisdictional finding against Mother was
sufficient to support the order.
We are not persuaded that the record shows an unequivocal waiver of
Father’s challenge. The decision In re Ricardo L. (2003) 109 Cal.App.4th 552is instructive. There, the father’s counsel represented he was “ ‘going to
submit on the jurisdiction.’ ” (Id. at p. 565.) When read in context, however,
it was apparent that counsel “was submitting the matter based on the
jurisdictional/dispositional report, not the recommendations.” (Ibid.) “Such a
submission acted as consent to allow the court to consider the report as the
only evidence in determining whether the allegations in the petition were
true.” (Ibid.) It did not preclude the father from appealing to challenge the
sufficiency of the evidence on the jurisdictional finding. (Id. at pp. 565–566.)
Similarly, here, there is some indication that Father may have been
“objecting and submitting” on jurisdiction. Father’s counsel stated that he
was “going to submit on jurisdiction,” but nonetheless requested that the case
either be closed or, alternatively, proceed with family maintenance services.
On this record, we cannot conclude that Father waived his challenge.
We turn next to the justiciability of this challenge. “Because the
juvenile court assumes jurisdiction of the child, not the parents, jurisdiction
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may exist based on the conduct of one parent only.” (In re A.R. (2014) 228
Cal.App.4th 1146, 1150.) “As a result, we need not consider jurisdictional
findings based on the other parent’s conduct.” (Ibid.) Father requests,
however, that we nonetheless consider the jurisdictional finding against him.
We retain the discretion to consider the merits of a parent’s appeal where, as
here, “the jurisdictional finding serves as the basis for dispositional orders
that are also challenged on appeal.” (Ibid.) We will exercise our discretion to
do so.
We review the juvenile court’s jurisdictional findings for substantial
evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) “In making this
determination, we review the record in the light most favorable to the court’s
determinations and draw all reasonable inferences from the evidence to
support the findings and orders.” (Kevin R. v. Superior Court (2010) 191
Cal.App.4th 676, 688–689.) “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are sufficient facts to
support the findings of the trial court.” (In re Matthew S. (1988) 201
Cal.App.3d 315, 321.) Father bears the burden on appeal to show that the
evidence was not sufficient to support the finding. (In re Geoffrey G. (1979)
98 Cal.App.3d 412, 420.) Substantial evidence “means evidence that is
‘reasonable, credible and of solid value; it must actually be substantial proof
of the essentials that the law requires in a particular case.’ ” (In re E.D.
(2013) 217 Cal.App.4th 960, 966.)
Father argues that there was insufficient evidence to support the
jurisdictional allegation against him here. Section 300, subdivision (b)(1)
allows the juvenile court to take jurisdiction over a child when there is “a
substantial risk that the child will suffer serious physical harm or illness, as
a result of” the parent’s “failure or inability . . . to adequately supervise or
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protect the child,” or “[t]he willful or negligent failure” of the parent “to
adequately supervise or protect the child from the conduct of the custodian
with whom the child has been left.” (§ 300, subd. (b)(1)(A), (B).) Father
contends there was no evidence establishing that he “knew or reasonably
should have known” Mother was continuing to use methamphetamines and
marijuana and that he left Minor in her care without a safety plan. We
disagree.
As detailed above, Father left Minor with Mother despite knowing her
troubled history of substance abuse. Father could not tell the Department
where Minor was, could not say whether Mother was currently using drugs,
and could not immediately return home to take custody of Minor if he could
even find Minor. Father did not know whether the family friend who cared
for Minor, and who apparently considered herself akin to Minor’s biological
grandmother, did so on a regular basis or for long periods of time. There was
also evidence that this ignorance was not limited to the specific incident
triggering the referral: Father reported that when he was away for work, he
would “try” to contact Mother to inquire about Minor, but Mother would often
not answer his calls. It is reasonable to conclude that, had Father been a
more consistent parental presence, he would have known about Mother’s
substance use. For example, the family friend expressed immediate concern
to the Department that Minor was not safe in Mother’s custody because she
believed everyone in Mother’s home “does ‘hard drugs’ such as
methamphetamines.”
Father also argues that, even assuming he should have known about
Mother’s drug use, there was no evidence that he would have failed to protect
Minor from Mother at the time of the jurisdictional hearing. Substantial
evidence remains, however, that Minor was at risk based on Father’s decision
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to leave Minor in the care of someone Father reasonably should have known
was using drugs. (In re T.V., supra, 217 Cal.App.4th at p. 133.) Father
reported that he had previously cared for Minor in 2019 when Mother was
using drugs and alcohol, but then returned Minor to her care when she
achieved sobriety in 2020. As detailed above, Father was not diligent in
ensuring that Minor was not at risk from a relapse by Mother. Father has
not satisfied his burden on appeal to show the juvenile court’s section 300,
subdivision (b)(1) jurisdictional finding against him was not supported by
substantial evidence.
III. No Substantial Evidence for Disposition
We conclude that the juvenile court erred in its dispositional findings.
The court had appropriately found Father a putative parent, triggering an
important set of rights. Before ordering the removal of a child at the
disposition stage, the juvenile court must “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.” (§ 361.2, subd. (a).)
“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.”
(Ibid., italics added.)
California law places a heightened burden of proof on the
Department—not the parent—in connection with the finding of detriment.
“ ‘ “ ‘Parenting is a fundamental right, and accordingly, is disturbed only in
extreme cases of persons acting in a fashion incompatible with parenthood.’
[Citation.] ‘In furtherance of these principles, the courts have imposed a
standard of clear and convincing proof of parental inability to provide proper
17
care for the child and resulting detriment to the child if it remains with the
parent, before custody can be awarded to a nonparent.’ ” ’ ” (In re Isayah C.
(2004) 118 Cal.App.4th 684, 694.) In making a finding of detriment, the
juvenile court weighs all relevant factors to determine if the child will suffer
net harm. (Id. at p. 700.) On appeal, “[w]e review the record in the light
most favorable to the trial court’s order to determine whether there is
substantial evidence from which a reasonable trier of fact could make the
necessary findings based on the clear and convincing evidence standard.” (Id.
at p. 694.)
Father argues that there was insufficient evidence to support the
court’s finding of detriment and removal of Minor from his custody. Father
highlights his remote employment, the proposed living arrangement with
other caregivers, and Father’s lack of personal substance abuse issues, which
the juvenile court rejected as a basis for detriment.
The juvenile court provided very little by way of explanation concerning
how it reached its finding of detriment. To the extent we can discern any
specific findings of fact that might support the required showing, the juvenile
court again mentioned Father’s earlier decision to leave Minor with Mother
before she gave birth to Minor’s half brother. At the April 2022 hearing,
however, Father had repeatedly expressed his desire to take full custody of
Minor and his understanding of the dangers posed by Mother’s addiction.
Given all that had transpired, there is no indication that the juvenile court
believed Father would give Minor back to Mother absent a court order
requiring him to do so.
Rather, the court focused on its expectations for Father’s future
behavior. The court stated that it would “follow the recommendations” of the
Department. Those recommendations included required drug testing and
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completion of a parenting class (if he had not already done so). The
Department also wanted Father to provide a very specific plan for exactly
where Minor would sleep, articulate exactly which family members would
care for Minor while Father was driving, explain how family members who do
not speak English would interact with Minor (who is not conversant in
Spanish), and for Father and his family members to visit more with Minor.
Father must follow the rules “to a tee,” the court urged. “It’s like you got to
stop at the line, you got to stop at the [bus] stations, wherever you have to do
it, you got to do it.”
Father objects that his inability to visit with the Minor as frequently as
the Department would have permitted him is not evidence that placing him
in Father’s care would be detrimental to Minor’s safety, protection, or
physical or emotional well-being. Compliance with rules imposed by the
Department or the juvenile court can certainly support a finding that leaving
a child with a parent would not be detrimental to the child’s well-being.
(Cf. David B. v. Superior Court (2004) 123 Cal.App.4th 768, 772 [granting
writ petition from order setting permanency planning hearing because father
“did virtually everything the [Orange County Social Services Agency]
requested of him” and “has shown consistent dedication to her welfare and
their reunification”].) Father accurately notes, however, that it appears like
the juvenile court flipped the burden of proof. To regain custody, despite the
lack of evidence regarding detriment, the juvenile court effectively required
Father to show he and his family visited with Minor enough to satisfy the
Department’s unwritten standards, and to articulate detailed plans for how
Father will care for Minor while Father is working. The plan could not be to
leave Minor alone or to have Mother care for him, but Father, of course, never
suggested either of those possibilities. Instead, Father presented a credible
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though potentially challenging approach to the work-parenting balance that
would enlist the help of his Spanish-speaking aunt and uncle.
Care plans to address remote working parents are almost always less
than ideal, and a language barrier between a child and his or her caregiver
may present challenges. The law, however, does not take a child away from a
parent based on a less than ideal situation during a parent’s working hours
or because of language barriers. (Cf. In re Isayah C., supra, 118 Cal.App.4th
at p. 697 [determination of detriment should still recognize parent’s general
right to make “reasonable decisions about where and with whom the child
will reside”].) Moreover, the record indicates the Minor may have attachment
issues due to “his history of interruption in caregivers.” The Department
expressed concern about Minor’s transition to preschool. The court did not
discuss this evidence. If anything, it would seem to support a conclusion that
Minor would benefit from a more rapid resolution of the issue of custody,
followed by therapeutic services, rather than have him maintain ongoing ties
to his foster caregivers.
Lost in the juvenile court’s discussion of compliance with the
Department’s rules “to a tee” is the fact that Father is Minor’s father.
California law presumes that a child ought to be with a parent rather than in
the foster system absent clear and convincing evidence that keeping the child
with the parent would be detrimental to the child’s safety, protection, or
physical or emotional well-being. (§ 361.2, subd. (a).) We conclude there was
insufficient evidence to support the juvenile court’s finding of detriment on
disposition.
IV. Abuse of Discretion on Reunification Services
The case plan is “the foundation and central unifying tool in child
welfare services” and is prepared by the Department to ensure that “services
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are provided to the child and parents” to “facilitate the safe return of the
child to a safe home.” (§ 16501.1, subd. (a)(1)–(2).) A reunification case plan
has several components, including the identification of specific goals and the
appropriateness of planned services in meeting those goals. (Id., subd. (g)(2).)
We review the juvenile court’s disposition case plan for abuse of
discretion. (In re D.P. (2020) 44 Cal.App.5th 1058, 1071.) “When the court
orders a parent to participate in a program—such as parent education,
counseling, parenting programs, etc.—the program must be ‘designed to
eliminate those conditions that led to the court’s finding that the child is a
person described by Section 300.’ ” (In re M.R. (2020) 48 Cal.App.5th 412,
424.) “In other words, the court cannot arbitrarily order services that are ‘not
reasonably designed’ to eliminate the behavior or circumstances that led to
the court taking jurisdiction of the child.” (Ibid.)
Father contends that a parenting education class should not have been
included in his case plan because he has already taken the class. It is
entirely unclear why a parenting class would benefit Minor or Father given
that Father had already parented his three now-adult children and his ex-
wife testified that Father “has always been on top of everything in regards to
his children since they were born.” But given Father’s position that he has
already completed the class, we conclude that the error in ordering a
parenting class was harmless. (In re M.R., supra, 48 Cal.App.5th at p. 429
[applying harmless error analysis to claim regarding case plan].) Father does
not suggest that his participation could not be confirmed, only that he did not
yet have written confirmation.
More troubling is the juvenile court’s order that Father submit to
substance abuse testing. There was no evidence that Father had substance
abuse issues. “A ‘mechanical approach’ to a reunification plan is not what the
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Legislature intended: ‘[s]uch a plan must be appropriate for each family and
be based on the unique facts relating to that family.’ ” (In re Dino E. (1992)
6 Cal.App.4th 1768, 1777.) At the hearing, no one testified that Father was
using narcotics or abusing alcohol.
The Department posits that the drug testing order was within the
court’s discretion because “[i]t was clear that [Father] had some sort of
impairment (internal or substance induced) that caused him to be unable
and/or unwilling to see that Mother was using drugs again and/or an unsafe
person for [Minor].” Alternatively, the Department suggests that drug
testing would somehow sensitize Father to Mother’s addiction. These
arguments are unsupported by any evidence. The evidence showed that
Father had no prior or current substance abuse issues and his decision to
leave Minor with Mother was based on the fact that Father drove a truck for
a living. No one explained to the juvenile court (or to us) why subjecting
someone who does not have a substance abuse problem to a drug test would
help that person better understand the perils of substance abuse. The
inclusion of substance abuse testing in Father’s reunification case plan
constituted an abuse of discretion.
Lastly, Father disputes any requirement that he participate in the
parent partner program. While this program was not an explicit item in the
written case plan, Father argues that the Department nonetheless used it
against him at the disposition hearing and indicated that it would be used to
measure his subsequent performance for reunification.
Father’s point is well taken. When asked about how Father had failed
to demonstrate a behavioral change, the social services supervisor testified
that he had not participated in the parent partner program. When asked
how the Department envisioned the reunification plan for Father, the
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supervisor testified that she would like Father to “get back engaged with a
parent partner.” But the program was not appropriately tailored to the
circumstances of this family. (In re Dino E., supra, 6 Cal.App.4th at p. 1777.)
Father himself inquired about whether he could participate in the program
remotely and in a manner that would work with his rotating schedule. The
Department was unable to accommodate such arrangements. We conclude
that any inclusion of participation in the parent partner program in Father’s
reunification case plan also constituted an abuse of discretion.
DISPOSITION
The April 25, 2022 disposition order is reversed to the extent it made
findings under section 361.2 that lacked substantial evidence, and to the
extent it ordered Father to submit to substance abuse testing and participate
in a parent partner program. The orders are affirmed in all other respects.
The matter is remanded to the juvenile court with directions to: (1) vacate its
dispositional findings under section 361.2 as to Father and its order for
Father to participate in the reunification services stated in the case plan;
(2) set a continued dispositional hearing at the earliest appropriate time;
(3) direct the Department to prepare a supplemental disposition report; and
(4) make such further orders as the court deems necessary and appropriate,
consistent with this opinion. At the continued dispositional hearing, in the
absence of new developments that would warrant otherwise or further and
different evidence to support a finding of detriment by clear and convincing
evidence, the juvenile court is directed to order placement of Minor with
Father as required by section 361.2, subdivision (a).
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_________________________
Markman, J.*
We concur:
_________________________
Richman, Acting P.J.
_________________________
Miller, J.
In re M.A. (A165424)
* Judge of the Alameda Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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Trial Court: Solano County Superior Court
Trial Judge: Hon. William C. Harrison
Attorney for Defendant Appointed by Court of Appeal
and Appellant: First District Appellate Project
Danley Law, PLLC
Michelle E. Danley
Attorneys for Plaintiff Office of Solano County Counsel
and Respondent: Bernadette S. Curry
County Counsel
Carrie Blacklock
Assistant County Counsel
Clarisa P. Sudarma
Deputy County Counsel
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