In re E.E. ( 2020 )


Menu:
  • Filed 5/21/20
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FOURTH APPELLATE DISTRICT
    DIVISION TWO
    In re E.E. et al., Persons Coming Under
    the Juvenile Court Law.
    SAN BERNARDINO COUNTY
    CHILDREN AND FAMILY SERVICES,                      E073284
    Plaintiff and Respondent,                 (Super.Ct.Nos. J280083, J280084,
    J280085 & J280086)
    v.
    OPINION
    K.L.,
    Defendant and Appellant.
    APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,
    Judge. Affirmed.
    Dennis Temko, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Michelle D. Blakemore, County Counsel and Jamila Bayati, Deputy County
    Counsel, for Plaintiff and Respondent.
    1
    K.L. (mother) and J.P. (father) have three young children together as well as an
    infant son named E. Mother tested positive for amphetamine at a prenatal visit for E., and
    when the child was born a few months later, he tested positive for amphetamine and
    marijuana. At the jurisdiction and disposition hearing, the juvenile court declared all four
    children dependents (Welf. & Inst. Code, § 300, subd. (b)) and removed them from the
    parents’ care (§ 361, subd. (b)(1); unlabeled statutory citations refer to the Welfare and
    Institutions Code).
    In this appeal, mother challenges the sufficiency of the evidence supporting all of
    the court’s findings and orders, except the jurisdictional finding for E. She argues there
    was insufficient evidence E.’s siblings were at risk of harm, as well as insufficient
    evidence all of the children could not live safely with father, with her out of the home.
    We conclude substantial evidence supports the challenged findings and orders, and
    therefore affirm.
    I
    FACTS
    A.     Detention
    In December 2018, respondent San Bernardino County Children and Family
    Services (CFS) received a referral alleging that mother’s newborn, E., had tested positive
    for amphetamine and marijuana at birth and that mother had tested positive for
    amphetamine during a prenatal visit a few months earlier. Mother and father have three
    other children, J.J. (who was two years old at the time), V. (six), and J. (ten).
    2
    CFS made several unsuccessful attempts to contact the family in person, by phone,
    and by mail. Because the family had a prior history with CFS, the social worker was able
    to determine the elementary school J. and V. attended and made an unannounced visit to
    interview them.1 J. and V. said they felt safe in the home and their basic needs were being
    met. They said they slept on an inflatable mattress in the living room or in their relative’s
    room when he was traveling. They said E. didn’t have a crib and slept on blankets on the
    floor, next to their parents. They were able to give an age-appropriate definition of drugs
    and alcohol and denied their parents used either.
    On February 5, 2019, the social worker interviewed the parents at the apartment in
    Rialto where they then lived. In his separate interview, father said his family had moved
    into the apartment a few months earlier. He said mother hadn’t told him why CFS was
    investigating his family, and he denied she used any drugs. He said she used to smoke
    marijuana but had stopped and had never used the drug while pregnant. He said he had
    also quit smoking marijuana before his oldest child, J., was born. He said he had been
    arrested for DUI in 2013 and had not completed his alcohol abuse classes. The social
    worker searched his criminal history and confirmed the DUI (he had been convicted of
    the charge in 2015), and also found weapons-related charges from 2006 and 2007
    (specifically, carrying a dagger and manufacture or import of an undetectable firearm).
    1 CFS had received a general neglect and physical abuse referral regarding the
    family in 2014 and a general neglect and emotional abuse referral in 2018. Both cases
    were closed as unfounded or inconclusive.
    3
    In her separate interview, mother said father did know E. had tested positive for
    drugs at birth. She said she uses marijuana for pain management because she injured her
    legs in a car accident. She said she had only used marijuana once while she was pregnant
    with E. because the pain had become unbearable. She denied using amphetamines. She
    claimed she had gone to a party a few days before E. was born and accidentally drank
    from a cup that wasn’t hers. The liquid had made her feel “very weird,” but she didn’t go
    to the hospital because she was scared. She became upset when the social worker asked
    her about the other positive amphetamine test from the prenatal visit. She said she had
    been “going through a rough time” back then, and nobody had told her they would be
    drug testing during the visit. She denied having a substance abuse problem. She also
    denied co-sleeping with E., explaining he slept on a mattress on the floor and she slept on
    the floor next to him.
    Both parents agreed to drug test, and the social worker informed them that missed
    tests would be considered positive. Later that day (February 5), mother called the social
    worker “audibly hysterical” and said she hadn’t known it was going to be an observed
    drug test. She said she “could not pee in front of somebody” and complained that the
    testing staff had made her “feel like a bad mother.” The test results reflected she had
    attempted to urinate twice but had a “shy bladder” and refused to try to urinate a third
    time. Father’s February 5 drug test was positive for amphetamine. He told the social
    worker he had taken Sudafed for allergies that day and requested another test. The lab ran
    a confirmation test on the same urine sample and it came back negative. On February 6
    4
    and 7, mother said she could not test because she wasn’t in the facility’s system, but the
    social worker checked and confirmed she was in the system and was able to test.
    In late February, the social worker contacted mother to arrange another drug test.
    Mother said she felt harassed by CFS and said her children were fine and “not being
    abused.” The social worker promised mother she was not trying to open a case against
    her but in fact was hoping to do the opposite, resolve the case without court intervention.
    She explained she couldn’t close the family’s referral, however, without a negative test
    from mother and a formal “Children and Family Team Meeting” (team meeting). She
    explained that, given the positive toxicology results for E., it was crucial and necessary to
    create a safety plan. Mother said she did not want her family to find out about her drug
    use or CFS’s involvement.
    The social worker followed up with mother on this issue, and this time her
    supervisor also participated in the phone call. The supervisor reiterated the social
    worker’s assurances that CFS was not trying to harass mother’s family. The supervisor
    explained that CFS management had decided a team meeting and clean drug test were
    needed before they could close the investigation. Ultimately, mother agreed to drug test
    and attend a team meeting.
    But mother’s decision to cooperate changed over the ensuing weeks. She did not
    respond to the social worker’s attempts to schedule another drug test, and then, on March
    4, father sent the social worker the following text: “There is no reason for a meeting. You
    tried and tried to find something and there wasn’t anything. We’ve complied [with]
    5
    everything that you have asked us to do. At this point I’m feeling like this is personal. I
    feel like my family and my inalienable right to pursuit of happiness is being denied to us.
    You will have to speak to our lawyer from this point on.” Father did not provide the
    lawyer’s name or contact information. Mother then called the social worker to follow up
    on father’s text. She said she would not agree to a team meeting or any more drug tests.
    She also said to contact their lawyer going forward but hung up when the social worker
    asked for the lawyer’s contact information.
    On March 6, CFS decided to file section 300 petitions on behalf of the children,
    due to its unresolved concerns about mother’s drug use and father’s refusal to
    acknowledge that issue or cooperate with CFS. The social worker called the parents and
    informed them of the upcoming detention hearing. They responded that a dependency
    case wasn’t necessary because the children were no longer in their custody. Father said
    they had recently “signed their rights over” and the children had not been in their care for
    a week.
    On March 7, CFS filed petitions alleging the children were dependents under
    section 300, subdivision (b) (failure to protect). The operative allegations against the
    parents were that: mother has a “substance use” problem that impairs her ability to
    provide appropriate care for her children; father reasonably should have known of
    mother’s problem; and father has a “marijuana abuse problem,” placing the children at
    risk.
    6
    The juvenile court held the detention hearing the following day. The parents were
    not present, and both CFS and counsel for the children recommended detention. The
    court found prima facie evidence of a substantial risk to the children’s physical health and
    safety, ordered them detained out of the home, and set the jurisdiction and disposition
    hearing for April 2. On March 25, with the assistance of Rialto police, CFS detained the
    children in foster care.
    B.      Jurisdiction and Disposition
    The social worker interviewed the parents when CFS took the children into
    custody. Mother said it was difficult for her to drug test because of her job. She said they
    had refused a team meeting back in February because they had been misadvised by a
    friend that such a step was not necessary if jurisdiction had not been established. Father
    added that by the time the social worker tried to schedule the meeting, they had already
    given “temporary guardianship” of the children to a family friend, a woman named Carla.
    The parents said they did not attend the detention hearing because, during a free
    consultation, an attorney had told them they didn’t have to go if CFS had not given them
    notice of the hearing by mail. Father told the social worker that his family had gone
    through a rough period when mother was pregnant with E., just before they moved into
    the Rialto apartment. He said they had “lost their home, stayed with friends, been kicked
    out, and moved from motel to motel and were around people who were using
    substances.”
    7
    Mother said she was currently using marijuana for pain management but said she
    only did so at night and never around the children. She maintained that she had
    accidentally ingested amphetamine at a party. She added that her water broke the
    following day and she had “informed the hospital that she did not know what she drank.”
    Father denied mother had a drug problem and said the only substance he had ever seen
    her use was marijuana. Despite his earlier statement to the contrary, father admitted he
    still used marijuana. He said he would use it when he got off work, for work-related pain.
    The social worker also interviewed Carla, the family friend and purported
    guardian of the children. Carla said the parents had signed a notarized document giving
    her guardianship on February 26, 2019, and since that time she had been caring for the
    children “on and off” because they were still “transitioning.” She was not aware she had
    to go to court to become their legal guardian.
    On March 26, 2019, the parents attended a team meeting with the social worker.
    CFS ordered random drug testing for the parents and referred them to individual
    counseling, parenting classes, and substance abuse treatment.
    The following day, CFS filed its jurisdiction and disposition report, recommending
    removal of all four children and provision of family reunification services. The social
    worker was concerned about the parents’ willingness to cooperate with CFS. She was
    also concerned that, despite mother’s and father’s positive amphetamine tests, they
    continued to claim marijuana was the only drug they used.
    8
    At the April 2 hearing, the court continued the jurisdiction and disposition hearing
    to June 17 and ordered the parties to attend mediation. The court gave CFS authority to
    detain the children with father, with mother out of the home, if CFS determined the
    parents were cooperating with the investigation. The court explained that, like the social
    worker, it was also concerned about the parents’ willingness to cooperate with the
    investigation, given their behavior since the referral. The court asked if there was a
    request to drug test the parents that day, and counsel for the minors answered in the
    affirmative. The court then ordered the parents to drug test and advised them that missed
    tests would be considered positive tests.
    We note here that the juvenile court could not order the parents to submit to drug
    testing at this stage in the proceedings. Before jurisdiction is established through a
    finding that a minor is a person described by section 300, a juvenile court’s authority to
    issue orders against a parent is limited and does not include the power to issue an order
    like the one here, compelling a parent to drug test. (See In re Jody R. (1990) 
    218 Cal. App. 3d 1615
    , 1622-1623; §§ 319, 323.) If a juvenile court determines that drug
    testing is warranted before jurisdiction, section 319 gives the court authority to order the
    social services agency to provide testing referrals. (See § 319, subd. (e) [“If a court orders
    a child detained, the court shall . . . order services to be provided as soon as possible to
    reunify the child and his or her family if appropriate”], italics added.) Section 319 does
    not, however, authorize the court to order the parents to make use of those referrals. In
    most cases, the distinction—that is, whether the court orders the agency to provide drug
    9
    testing or the parent to submit to drug testing—will have no practical impact on the case.
    Here, however, the point is not just an academic one. It is relevant to our analysis in
    response to CFS’s contention that we should dismiss mother’s appeal under the
    disentitlement doctrine because (among other things) she violated the court’s order to
    drug test. We discuss this issue more fully, below.
    Turning back to the facts of this case, on May 22, the social worker met with the
    parents. Father was living with a relative who had a “significant criminal history.” He had
    not participated in any services and claimed he had not been referred for services. The
    social worker checked and confirmed that both parents had in fact been referred for
    services two months earlier. Father’s drug testing record was inconsistent. He had missed
    three tests (April 2, May 6, and June 12), had two negative tests (May 17 and June 6), and
    tested positive for marijuana on April 1. Mother’s testing record was also inconsistent.
    She had missed two tests (April 1 and May 14), tested negative on three occasions (May
    24, April 17, and April 10), and tested positive for marijuana on April 2. Father remained
    in denial about mother’s history of drug use and maintained her ingestion of
    amphetamine just before E. was born was accidental.
    On June 5, CFS moved the children from their foster home to the home of a
    relative who had recently been cleared for placement.
    On June 17, the court continued the jurisdiction and disposition hearing one month
    to give CFS the opportunity to assess the parents’ progress in services and consider the
    possibility of letting father move in with the relative caretaker. Mother’s counsel
    10
    informed the court that mother was now living in Los Angeles and had filed a change of
    address. Counsel also lodged exhibits with the court consisting of various character
    references from the parents’ friends and relatives and J.’s school records reflecting he
    was doing very well academically.
    The parents told a CFS social worker that they were fully engaged in all services,
    but this turned out not to be true. The social worker assigned to their case learned that, as
    of July 10, mother had participated in only one session of a drug treatment program. She
    had tested negative three times since the last hearing. Father had been dropped from a
    drug treatment program twice, for failure to attend. He had been called to test only once
    since the last hearing, and the results were still pending. The parents had not participated
    in any parenting classes or individual therapy.
    CFS was unable to recommend letting father move in with the caretaker because it
    was concerned about her ability to protect the children from father’s potential drug
    problem. The caretaker had lived with the family when E. was born and had denied
    noticing any substance issues when CFS began its investigation. She assured the social
    worker that she would be protective now that she was aware of the issue, but the social
    worker doubted her ability to recognize if father was using.
    The jurisdiction and disposition hearing took place on July 18, 2019. Father filed a
    waiver of rights form (JV-190), submitting on CFS’s reports and waiving his right to a
    contested hearing on jurisdiction. He did, however, contest CFS’s disposition
    recommendation, arguing the children could safely live with him while he received
    11
    family maintenance services. Mother contested the jurisdiction allegations against her,
    and the court and parties accepted the following offer of proof from her attorney:
    “Mother would testify that even with the positive drug test [for E.] the three older
    children were well cared for and did well in school and her argument is about nexus.”
    Her counsel argued the positive amphetamine tests were remote and there was currently
    no substantial risk of danger or harm to the children. As to disposition, mother contested
    removal from father and represented she would be willing to “move anywhere” if the
    court allowed the children to live with him.
    The court sustained the jurisdiction allegations against the parents. Addressing
    mother’s nexus argument, it stated: “[T]his was not just a one-time positive test at birth
    . . . the mother also tested positive at a prenatal visit. [¶] After that the agency made
    attempts to alleviate risk by working with the family. The family avoided all contact with
    CFS, minimized all of the risks involved, refused to set up a CFT or a safety plan and
    generally was noncooperative with the agency. [¶] Since that time the parents have had
    over six months in which to engage in services and there likely could have been a return
    at today’s date. [¶] However, they failed to consistently engage in services, continued to
    miss tests . . . [and] failed to recognize why [drug use in the home] presents a risk to
    young children including an infant.”
    Moving to disposition, the court found clear and convincing evidence that the
    children could not safely be returned to either parent’s care. As to father, the court found
    he failed to acknowledge or recognize any issues with mother’s drug use, to cooperate
    12
    with CFS, or to make progress on his case plan. “[W]e’ve given a number of months for
    the parents to show that they’re going to cooperate with the agency. . . . [¶] . . . [¶] At [the
    beginning of the case] the father was largely uncooperative with the agency. . . . [T]he
    parents hid the children by doing a nonbinding guardianship . . . refused to meet or have a
    CFT which led to the original detention. [¶] Since that time the Court has also given
    additional time, indicated a willingness to consider either returning to the father on his
    own or in the home of the relative [but] . . . [¶] [f]ather continues to minimize the
    concerns of [CFS], indicates [he] doesn’t recognize the issues related to the mother’s
    drug use, has his own missed test. And once enrolled in a program, which took almost
    four months to get enrolled in, only showed up twice.” The court ordered the children to
    remain in the care of the relative they were currently living with. It also ordered family
    reunification services for the parents, with two-hour supervised visits at least three times
    a week.
    Mother filed a timely notice of appeal.
    II
    ANALYSIS
    Mother challenges the sufficiency of the evidence supporting all the court’s
    jurisdictional and dispositional findings and orders except for its exercise of jurisdiction
    over E. For the reasons we explain below, we find no error.
    13
    A.      Applicable Law and Standard of Review
    “‘A dependency proceeding under section 300 is essentially a bifurcated
    proceeding.’ [Citation.] First, the court must determine whether the minor is within any
    of the descriptions set out in section 300 and therefore subject to its jurisdiction.” (In re
    Stephen W. (1990) 
    221 Cal. App. 3d 629
    , 645.) Section 300, subdivision (b)(1), authorizes
    a juvenile court to exercise dependency jurisdiction over a child if the “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 . . . to adequately supervise or
    protect the child.” (Italics added.) “A jurisdictional finding under section 300, subdivision
    (b)(1), requires [the agency] to demonstrate the following three elements by a
    preponderance of the evidence: (1) neglectful conduct, failure, or inability by the parent;
    (2) causation; and (3) serious physical harm or illness or a substantial risk of serious
    physical harm or illness.” (In re L.W. (2019) 
    32 Cal. App. 5th 840
    , 848 (L.W.), citing In re
    Joaquin C. (2017) 
    15 Cal. App. 5th 537
    , 561; In re R.T. (2017) 
    3 Cal. 5th 622
    , 624.)
    Second, if the court exercises jurisdiction over the minor, it must decide the
    appropriate disposition. Generally, the court chooses between allowing the child to
    remain in the home with protective services in place and removing the child from the
    home while the parent engages in services to facilitate reunification. “Removal from
    parental custody at disposition may be ordered where a return home would pose a
    substantial danger to the child’s physical health and where there are no reasonable
    alternatives to removal. (§ 361, subd. (b)(1).)” (In re Stephen 
    W., supra
    , 
    221 Cal. App. 3d 14
    at p. 645.) The burden of proof for jurisdictional findings is preponderance of the
    evidence; for removal, it is clear and convincing evidence. (Cynthia D. v. Superior Court
    (1993) 
    5 Cal. 4th 242
    , 248.)
    “‘In reviewing the jurisdictional findings and the disposition, we look to see if
    substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making
    this determination, we draw all reasonable inferences from the evidence to support the
    findings and orders of the dependency court; we review the record in the light most
    favorable to the court’s determinations; and we note that issues of fact and credibility are
    the province of the trial court.’” (In re 
    R.T., supra
    , 3 Cal.5th at p. 633.) The appellant has
    the burden of showing there is no evidence of a sufficiently substantial nature to support
    the findings or orders. (In re L.Y.L. (2002) 
    101 Cal. App. 4th 942
    , 947.)
    B.     The Disentitlement Doctrine Does Not Apply
    Preliminarily, we address CFS’s argument that we should decline to reach the
    merits of mother’s substantial evidence challenge and dismiss her appeal under the
    disentitlement doctrine. CFS argues that if mother had been “honest, cooperated with pre-
    detention services, [and] did not stonewall CFS, [or] play crafty games [like] establishing
    a non-binding guardianship to hide the children pre-detention,” the section 300 petition
    “would have been unnecessary.” According to CFS, we should dismiss mother’s appeal
    because she resisted reform and “defi[ed] . . . court orders” during the six months leading
    up to the jurisdiction and disposition hearing. CFS misunderstands the disentitlement
    doctrine. In the dependency context, the doctrine is not a punishment for failing to
    15
    cooperate with the social services agency but rather for violating court orders in such a
    way that prevents the court from protecting the child.
    The disentitlement doctrine, or appellate disentitlement, refers to a reviewing
    court’s “inherent power to dismiss an appeal by a party who has refused to comply with
    the orders of the trial court.” (People v. Puluc-Sique (2010) 
    182 Cal. App. 4th 894
    , 897.) It
    “is not a jurisdictional doctrine, but a discretionary tool that may be applied when the
    balance of the equitable concerns make it a proper sanction.” (Ibid.) In the criminal
    context, the doctrine applies when the appellant is a fugitive from justice. (Ibid.)
    “Appellate disentitlement is, fundamentally, a doctrine based on forfeiture: a defendant
    who escapes or otherwise flees the authorities gives up the right to challenge a conviction
    or sentence while refusing to abide by its consequences.” (
    Id. at p.
    898.)
    The doctrine has also been applied in the civil context, for example, when a
    party’s violation of a court order frustrates the other party’s ability to protect their legal
    rights. (E.g., TMS, Inc. v. Aihara (1999) 
    71 Cal. App. 4th 377
    , 379-380 [dismissing
    judgment debtors’ appeal because they refused to comply with court order to answer
    postjudgment interrogatories]; Tobin v. Casaus (1954) 
    128 Cal. App. 2d 588
    [conditionally
    dismissing appeal from a money judgment because appellant refused to appear at a
    judgment debtor’s examination and to surrender in response to an arrest warrant].) Courts
    imposing the disentitlement refer to it as the “ultimate sanction” for violating court
    orders. (E.g., Deyo v. Kilbourne (1978) 
    84 Cal. App. 3d 771
    , 787; Guardianship of
    Melissa W. (2002) 
    96 Cal. App. 4th 1293
    , 1299.)
    16
    As the California Supreme Court explained in MacPherson v. MacPherson (1939)
    
    13 Cal. 2d 271
    , the only case where our high court has applied the doctrine in the parent-
    child context, dismissing a party’s appeal is an extreme measure that deprives a party of
    their right to “ask the aid and assistance of [the] court.” (
    Id. at p.
    277.) MacPherson
    involved a divorce proceeding. During the pendency of that proceeding, after the court
    had awarded custody of the children to the mother, the father absconded with the children
    and refused to reveal their whereabouts. The trial court ultimately issued orders requiring
    the father to, among other things, immediately return the children to mother’s custody
    and pay the attorney fees, expenses, and costs she incurred in trying to locate the
    children. (
    Id. at p.
    276.) When the father appealed the fees and costs portion of the
    judgment, the California Supreme Court dismissed his challenge, reasoning that by
    “secluding the children in a foreign country and alienating them, [he] violated not only
    his agreement with [the mother] and the provisions of the interlocutory and final decrees
    of divorce, but he has also wilfully and purposely evaded legal processes and
    contumaciously defied and nullified every attempt to enforce the judgments and orders of
    the California courts, including the very order from which he seeks relief by this appeal.”
    (Ibid., italics added.) The Court concluded the father had “effectually bar[red] him[self]
    from receiving the assistance of an appellate tribunal” by engaging in “[s]uch flagrant
    disobedience and contempt.” (Ibid.)
    In dependency cases, the interest at stake for a parent is “enormous.” (In re Dakota
    H. (2005) 
    132 Cal. App. 4th 212
    , 223; see also In re B.G. (1974) 
    11 Cal. 3d 679
    , 688; In re
    17
    K.C. (2011) 
    52 Cal. 4th 231
    , 236 [the interest of a parent in the “companionship, care,
    custody, and management” of their children is a “compelling one, ranked among the most
    basic of civil rights”].) As a result, appellate courts have rarely applied the disentitlement
    doctrine to dismiss a parent’s appeal. To illustrate, the court applied the doctrine In re
    Kamelia S. (2000) 
    82 Cal. App. 4th 1224
    to a father who, after appealing the order placing
    his daughter in foster care, “abduct[ed]” his daughter and could not be found. (
    Id. at p.
    1227.) Similarly, in In re E.M. (2012) 
    204 Cal. App. 4th 467
    , the court applied the doctrine
    to dismiss the mother’s appeal of the jurisdictional findings because she “willfully left the
    jurisdiction with her children while the petition was pending” and after the court issued
    protective custody warrants for the children. (Id. at pp. 469, 471.) Application of the
    doctrine in those cases was not only fair, but also practical. By fleeing with their children
    to a different jurisdiction while their cases were pending, the parents violated custody or
    placement orders regarding their children, thereby making it impossible for the court to
    safeguard the children’s best interests. When a parent’s violation of a juvenile court’s
    orders makes the most crucial aspect of that court’s job impossible, it stands to reason
    they should not be able to ask a reviewing court to overturn the juvenile court’s orders.
    This is obviously not such a case. All of the conduct CFS cites as grounds for the
    disentitlement doctrine occurred before the court took jurisdiction over the children.
    Indeed, most of the conduct occurred before the court had even detained the children,
    while CFS was investigating the referral. This timing distinction is important when
    determining whether appellate disentitlement is an appropriate sanction.
    18
    As we discussed above, before the juvenile court takes jurisdiction over a child by
    finding them to be a person described by section 300, the court may not order a parent to
    cooperate with the social services agency, engage in services, or submit to alcohol or
    drug testing. “The juvenile court is a special department of the superior court whose
    powers are limited to those granted by the Juvenile Court Law.” (In re Ashley M. (2003)
    
    114 Cal. App. 4th 1
    , 6 (Ashley M.), citing § 200 et seq.) The dependency statutes authorize
    the juvenile court “to make orders pertaining to abused or neglected children who come
    within the court’s jurisdiction. (§§ 361, 362.)” (Ashley M., at p. 7.) “Authorization for the
    juvenile court to order participation in child welfare and reunification services is set forth
    in sections 361.2, 361.5, and 362.” (In re Jody 
    R., supra
    , 218 Cal.App.3d at p. 1625,
    italics added.) Those sections govern the court’s power to make dispositional orders after
    jurisdiction has been established.
    Section 319, which sets forth the juvenile court’s authority during an initial or
    detention hearing, provides that if the court orders a child detained, it “shall . . . order
    services to be provided as soon as possible to reunify the child and his or her family if
    appropriate.” (§ 319, subd. (e), italics added.) Such an order does not compel the parent
    to participate in services, rather it compels the social services agency to make services
    available to the parent. ‘“The juvenile law system envisions a cooperative effort between
    the [social services agency] and the juvenile court.’ [Citation.] The social services agency
    has the initial responsibility to investigate allegations of abuse or neglect and has
    authority to take temporary custody of an abused or neglected child. (§ 306.) But the
    19
    agency must account to the court on the reasons for removing the child from home and on
    the services available to facilitate the child’s return. (§ 319.)” (Ashley 
    M., supra
    , 114
    Cal.App.4th at p. 7.) “In providing child welfare services, the county’s social services
    agency acts as an administrative agency of the executive branch . . . .” (Ibid.)
    In short, before jurisdiction, the court can issue orders detaining the child and
    orders directing the social services agency to provide services, but it cannot order or
    otherwise compel the parent to cooperate with the agency. A parent’s participation in
    services, whether before jurisdiction and disposition or after, is always voluntary. (See In
    re Nolan W. (2009) 
    45 Cal. 4th 1217
    , 1233 [“it is not the court’s role to force a parent to
    participate in services . . . ‘“[r]eunification services are voluntary, and cannot be forced
    on an unwilling or indifferent parent.”’”) The same is true regarding a parent’s
    participation in the social service agency’s investigation to determine whether to file a
    section 300 petition.
    That’s not to say there are no consequences for failing to cooperate in the
    investigation or participate in services. One consequence is that those failures “can be
    used later as evidence in a review hearing or a hearing on a [section 300] petition.”
    (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2017) § 2.44, p. 2-97,
    citing Welf. & Inst. Code, § 16501.1, subd. (g)(12)(B).) Additional consequences include
    the loss of reunification services and the most serious consequence of all, loss of parental
    rights. (In re Nolan 
    W., supra
    , 45 Cal.4th at pp. 1235-1236 [the dependency statutes
    “repeatedly make clear” that “the punishment for noncompliance with reunification
    20
    services [is] . . . loss of those services and, ultimately, loss of parental rights”].) But
    because parents are under no legal obligation to cooperate with the social services
    agency, we see nothing equitable about adding appellate disentitlement to those
    consequences.
    Our colleagues in the Second District concluded similarly in In re Baby Boy M.
    (2006) 
    141 Cal. App. 4th 588
    (Baby Boy M). The mother in that case, “while under the
    jurisdiction of the juvenile court because of the dependency proceedings involving her
    other children, willfully impeded the ability of the court and the Department to protect
    Baby Boy M. by delivering the child to his biological father to take to an unknown
    location, recognizing that, if she kept the baby, the Department would immediately take
    custody of him.” (
    Id. at p.
    597.) The court rejected the department’s request to extend the
    disentitlement doctrine to the mother’s pre-jurisdiction conduct. The court explained that
    while it did not condone her obstructive behavior, she “had no legal obligation” to
    discuss the birth of her newborn with the department. (Ibid.) The court concluded that
    although she “may have impeded the Department’s efforts to help her family and
    frustrated the underlying purpose of the dependency law,” appellate disentitlement was
    unjustified because she had not violated a court order and therefore did not “‘stand[ ] in
    an attitude of contempt to legal orders and processes of the courts of this state.’” (Ibid.)
    Similarly here, and contrary to CFS’s characterization, mother’s conduct of giving
    her children to a family friend during the investigation and failing to consistently drug
    test or engage meaningfully in services violated no court order. At that stage in the
    21
    proceedings, the only order she could have violated was the court’s order placing her
    children in foster care. Had she taken her children from foster care and fled, appellate
    disentitlement would be an appropriate sanction. (Cf. In re Kamelia 
    S., supra
    , 82
    Cal.App.4th at p. 1227; In re E.
    M., supra
    , 204 Cal.App.4th at p. 471.) But she did not.
    Instead, she was uncooperative during the investigation. Thus, like the Baby Boy M.
    court, we also “decline to expand the disentitlement doctrine to preclude the appeal of a
    recalcitrant parent, who, despite her initial lack of cooperation, has violated no court
    order.” (Baby Boy 
    M., supra
    , 141 Cal.App.4th at pp. 597-598, italics added.)
    CFS’s reliance on In re C.C. (2003) 
    111 Cal. App. 4th 76
    (C.C.), a prior opinion
    from this court, is unhelpful. In C.C., the mother avoided participating in a
    prejurisdictional psychological evaluation and, as a result, the juvenile court could not
    determine at the dispositional hearing whether she had a mental disability that rendered
    her “incapable of utilizing reunification services” within the meaning of section 361.5,
    subdivision (b)(2). (C.C., at p. 85.) The juvenile court ordered reunification services for
    mother, believing it had no authority to deny services without such evidence. (Id. at
    pp. 80, 82.) The minor appealed, and we reversed and remanded, directing the juvenile
    court to order the mother to submit to a psychological evaluation (as opposed to merely
    authorizing an evaluation, prejurisdiction). (
    Id. at p.
    92.) Though the issue was not before
    us, we advised that if the mother refused to submit to the court-ordered evaluation, the
    juvenile court would be justified in using the disentitlement doctrine to deny reunification
    services on remand. (
    Id. at p.
    85.) We used broad language, staking out the position that
    22
    where “the parent is not cooperative, a court has the inherent power under the
    disentitlement doctrine to bar that parent from seeking further assistance from the court,
    including the provision of reunification services.” (Ibid.)
    We don’t think C.C. provides a basis for applying the disentitlement doctrine here.
    First, the case did not involve appellate disentitlement, but more fundamentally, our
    discussion of the doctrine was only dicta. 
    (C.C., supra
    , 111 Cal.App.4th at p. 92 [noting
    that “it remains to be seen whether the court will order an evaluation and whether Mother
    will cooperate”].) In addition, we question the appropriateness of C.C.’s broad
    pronouncement regarding the doctrine’s application. The Legislature has created a
    meticulous statutory scheme requiring the provision of reunification services unless
    specific statutorily mandated findings are made based on clear and convincing evidence.
    (§ 361.5, subds. (a) & (b).) We are not aware of any other published case holding that a
    parent may be denied reunification services based solely on the disentitlement doctrine,
    and we doubt the discretionary doctrine creates a sweeping power to deny reunification
    services in view of the Legislature’s clear preference for keeping families together at the
    disposition stage. (See In re Nolan 
    W., supra
    , 45 Cal.4th at p. 1228 [explaining “‘[f]amily
    preservation, with the attendant reunification plan and reunification services, is the first
    priority when child dependency proceedings are commenced’” and “‘[r]eunification
    services implement “the law’s strong preference for maintaining the family relationships
    if at all possible”’”].)
    23
    Although CFS did not rely on this case in its brief, we note that in In re A.K.
    (2016) 
    246 Cal. App. 4th 281
    (A.K.) this court applied the disentitlement doctrine in
    circumstances similar to, though more egregious than, this case. In A.K., the father had
    been extremely defiant toward the social worker during the agency’s investigation and
    failed to submit to court-ordered drug tests before the jurisdiction and disposition
    hearing. (
    Id. at p.
    284; see also
    id. at p.
    286 [concluding the father “possessed ‘an attitude
    of contempt to legal orders’”].) While we share the sentiments of the Baby Boy M. court
    that defiant or obstructive behavior during the investigation stage is not to be condoned,
    we believe the appropriate consequence for such behavior is that it will reflect poorly on
    the parent when the juvenile court and later the appellate court assess the merits of their
    case. The father in A.K. had violated no court order. As in our case, the court ordered
    drug testing after detention, but, as we explained above, that order compelled the social
    services agency to provide testing referrals, it did not compel the father to submit to
    testing. Thus, the father’s failure to drug test under those circumstances cannot serve as a
    basis for applying appellate disentitlement. We therefore decline to follow A.K.’s holding
    that a parent who is defiant towards the social services agency but has not violated a court
    order or prevented the court from protecting the child can be disentitled to their right to
    appeal.
    Appellate disentitlement should not be used as a tool for punishing parents who do
    not fully cooperate with the social services agency during the investigation stage leading
    up to jurisdiction. In our view, the dependency statutes provide appropriate and adequate
    24
    consequences for such behavior. Disentitlement should be reserved for those cases where
    the parent’s violation of court orders makes it impossible for the juvenile court to protect
    the child’s best interests. (E.g., In re Kamelia 
    S., supra
    , 82 Cal.App.4th at p. 1227; In re
    E.
    M., supra
    , 204 Cal.App.4th at p. 471.) The kind of defiant behavior or failure to engage
    in services that might support removal from parental custody at disposition—such as
    failing to cooperate with the social services agency, being less than forthcoming during
    interviews, or missing drug tests—does not also warrant the ultimate sanction of
    appellate disentitlement.
    Because mother’s lack of cooperation and obstructive tactics did not rise to the
    level of absconding with her children or engaging in conduct that would similarly prevent
    the court from protecting her children’s best interests, we will proceed to the merits of her
    appeal.
    C.     Jurisdiction
    Mother argues neither her nor father’s conduct supports a finding that E.’s siblings
    fall within the court’s dependency jurisdiction. As we will explain, we conclude
    substantial evidence supports the juvenile court’s decision to find the siblings dependents
    based on mother’s conduct. As a result of this conclusion, we need not review the
    evidentiary basis for the sustained allegations against father. (See In re I.A. (2011) 
    201 Cal. App. 4th 1484
    , 1491-1492 [minors are dependents “if the actions of either parent
    25
    bring [them] within one of the statutory definitions of a dependent”].) In other words, the
    court properly exercised jurisdiction over E.’s siblings regardless of father’s conduct.2
    Conceding the court has jurisdiction over E. due to the positive drug tests during
    his gestation and birth, mother argues there was no evidence that his older siblings had
    been harmed or were at risk of harm at the time of the hearing. She contends there is no
    evidence she is a substance abuser and argues her past use of drugs is an insufficient
    reason to assert jurisdiction over E.’s siblings. We are not persuaded.
    “[S]ection 300 does not require that a child actually be . . . neglected before the
    juvenile court can assume jurisdiction. The subdivisions at issue here require only a
    ‘substantial risk’ that the child will be . . . neglected. The legislatively declared purpose
    of these provisions ‘is to provide maximum safety and protection for children who are
    currently being physically, sexually, or emotionally abused, being neglected, or being
    exploited, and to ensure the safety, protection, and physical and emotional well-being of
    children who are at risk of that harm.’ (§ 300.2, italics added.) ‘The court need not wait
    until a child is seriously abused or injured to assume jurisdiction and take the steps
    necessary to protect the child.’” (In re I.J. (2013) 
    56 Cal. 4th 766
    , 773.)
    “The Legislature has declared, ‘The provision of a home environment free from
    the negative effects of substance abuse is a necessary condition for the safety, protection
    and physical and emotional well-being of the child.’ (§ 300.2.)” (L.
    W., supra
    , 32
    2 Our conclusion makes it unnecessary to address CFS’s argument that mother
    lacks standing to challenge the evidentiary basis for the sustained jurisdictional
    allegations against father.
    26
    Cal.App.5th at p. 849.) “On the other hand, our case law stands for the proposition that
    drug use or substance abuse, without more, is an insufficient ground to assert jurisdiction
    in dependency proceedings under section 300.” (Ibid., italics added.)
    Emphasizing that E.’s siblings were in good health and doing well in her care,
    mother argues her case falls under the substance use “without more” category. Given our
    standard of review, we reject this argument on the ground the juvenile court could
    reasonably draw a different conclusion from the evidence. First of all, mother’s past use
    of drugs was serious in and of itself. As the court aptly reasoned during the hearing,
    mother’s past drug use was reckless and occurred on more than one occasion—she used
    drugs three times that we know of during her pregnancy. And, while a big part of this
    case is the drug use that we know about, that’s not the only facet of mother’s behavior
    that could give the juvenile court cause for concern over the children’s safety.
    The record reveals that in addition to using drugs while pregnant, she was also
    evasive and resisted investigation and help from CFS. Not long after the agency learned
    of E.’s positive toxicology, mother refused to speak with the social worker and tried to
    hide her children by temporarily giving them to a friend to care for. The record also
    supports a conclusion that she has been dishonest about the extent of her drug use. She
    never actually admitted using amphetamine while pregnant and consistently maintained
    an implausible story of accidental ingestion to explain the second positive amphetamine
    test. In addition, she initially refused a team meeting because she wanted to keep the
    positive toxicology results from her family, which could be interpreted as a sign that
    27
    avoiding detection was more important to her than addressing the issue and developing a
    plan to keep her children safe.
    The record also supports a conclusion that mother has been resistant to treatment
    and monitoring. She avoided or missed several drug tests and, at the time of the hearing,
    had not seriously begun any services to address her issues. Finally, mother’s drug use
    coupled with father’s admission that, while she was pregnant with E., the family had been
    staying with people who were using substances reasonably supports an inference that
    mother minimizes or does not appreciate the potential dangers to children caused by
    being around drug use.
    Mother’s attempt to analogize this case to In re L.C. (2019) 
    38 Cal. App. 5th 646
    is
    unpersuasive. In that case, the legal guardian of L.C. (who by all accounts was healthy
    and doing well) admitted to having used methamphetamine six or seven times. He said
    that on each occasion he had stayed in a hotel and arranged for child care so he would not
    be around L.C. while he was under the influence. (
    Id. at p.
    650.) Initially, the guardian
    had denied using methamphetamine, but once he learned he could lose custody of L.C.,
    he admitted having used, began consistently testing on his own initiative (even before the
    agency enrolled him in random drug testing), and promptly enrolled in substance abuse
    treatment. (Ibid.) The obvious and significant difference between L.C. and this case is
    that mother had the poor judgment to use while she was pregnant and then failed to take
    the proactive monitoring and treatment steps that L.C.’s guardian took.
    28
    We find this case more like In re Christopher R. (2014) 
    225 Cal. App. 4th 1210
    ,
    1217, where the appellate court affirmed the juvenile court’s determination that the
    mother’s four children were persons described by section 300, subdivision (b)(1). At
    birth, the mother’s youngest child tested positive for cocaine, amphetamine, and
    methamphetamine, but she denied having used cocaine while pregnant. (Christopher R.,
    at p. 1213.) She conceded jurisdiction was proper as to her youngest because the child
    “was born with a positive toxicology screen for cocaine and other illicit drugs,” but
    argued that “the evidence of her sporadic drug use was insufficient to support the findings
    she was a current substance abuser and [that her other three children] were at substantial
    risk of serious physical harm justifying the exercise of the juvenile court’s jurisdiction.”
    (
    Id. at p.
    1215.) The appellate court rejected this argument, reasoning the juvenile court
    was free to disbelieve the mother’s claim of sporadic drug use, based on her conduct
    during the case. “[The mother] used cocaine (and, based on the positive toxicology screen
    for [the infant] at birth, amphetamine and methamphetamine) while she was pregnant,
    unquestionably endangering the health and safety of her unborn child. She also admitted
    she had used cocaine in the past although claiming she had stopped using when she was
    17 years old. Given her initial false denial of any cocaine use in the days before [her
    youngest] was born, the juvenile court reasonably disbelieved [her] portrayal of limited,
    sporadic drug use. . . . This evidence, taken together with [her] unstable lifestyle and
    cavalier attitude toward childcare . . . fully supports the juvenile court’s [jurisdictional]
    finding.” (
    Id. at p.
    1217.)
    29
    Similarly here, given mother’s implausible denial of the extent of her drug use
    while pregnant, her evasive behavior, and her resistance to monitoring and services, the
    juvenile court could reasonably disbelieve her offer of proof that she was no longer using.
    We conclude the record contains substantial evidence to support a finding that, at the
    time of the hearing, E.’s siblings were at risk of suffering serious harm as the result of
    neglect on mother’s part.3
    D.     Disposition
    Mother also challenges the evidentiary basis for removing all of the children from
    her and father’s care.
    We start with the order removing the children from mother. At the time of the
    jurisdiction and disposition hearing, she had moved to Los Angeles and was no longer
    living with father. She did not provide any details about her new residence or ask the
    court to place the children with her. Instead, her counsel said he “underst[oo]d the Court
    has a legal basis for removal from [mother] based on the Court’s [jurisdictional]
    findings,” and argued the court could safely place the children with father and provide
    family reunification services for mother. In other words, mother provided the court with
    no basis to conclude it could safely return the children to her custody. She had not made
    any meaningful progress in services and the court knew nothing of her new home
    3 Mother spends much of her brief challenging the idea that her family’s living and
    sleeping arrangements supported jurisdiction. For example, she argues the sole fact that
    E.’s siblings sometimes slept on an inflatable mattress did not make their home unsafe.
    We agree. But as we explained, it is the circumstances surrounding her drug use that have
    created the danger of harm for her children, not the state of her former apartment.
    30
    environment. For those reasons alone, we conclude the court’s decision to remove the
    children from mother was supported by substantial evidence.
    As to the order removing the children from father, mother argues the only
    potentially negative evidence regarding his parenting abilities was his single positive test
    for amphetamine, which he claimed was caused by taking Sudafed the day of the test and
    which came back negative after a confirmation test.4 Again, a reasonable trier of fact
    could interpret the evidence differently.
    During the six months between the referral and the jurisdiction and disposition
    hearing, father denied mother had a drug problem (despite learning of E.’s positive
    toxicology at birth), sent the social worker a recalcitrant text message demanding she
    leave his family alone, attempted to give the children to a family friend during the
    investigation, tested positive for marijuana, missed a number of tests, made no progress
    in services, and moved in with a relative who had a significant criminal history. Based on
    this evidence, the juvenile court could reasonably infer that father lived in an
    environment unsuitable for children, would not cooperate with CFS (to the point of
    willful obstruction), would not protect his children from mother’s drug problem, and
    possibly had a drug problem of his own. These inferences support a conclusion that the
    children could not safely be returned to his custody.
    4 We reject CFS’s contention that mother lacks standing to challenge the
    disposition order as to father. Mother has standing because the children’s placement in
    out-of-home care “has the potential to adversely affect [her] own interests in reunifying
    with [them].” (In re R.V. (2012) 
    208 Cal. App. 4th 837
    , 848-849.)
    31
    Mother argues this case is identical to In re Hailey T. (2012) 
    212 Cal. App. 4th 139
    ,
    146 (Hailey T.), where the appellate court affirmed the jurisdictional findings but
    reversed the removal order as to one of the parents’ children. In that case, the parents had
    a four-month-old son and a three-year-old daughter, Hailey. One day after the maternal
    grandmother had been watching the children, the mother noticed the son was crying and
    one of his eyes was red. (
    Id. at p.
    142.) The parents took the child to a doctor who
    concluded he had a subconjunctival hemorrhage that was inflicted by nonaccidental
    means. (Ibid.) Neither parent was able to explain the child’s injury other than to posit that
    Hailey might have hurt him when she was combing his hair or playing with his toys.
    (Ibid.) The parents had been married for nine years and had no prior child welfare
    history, and the social worker believed they appeared to be good parents. (
    Id. at p.
    143.)
    Hailey said no one fought or yelled in the home. After the agency detained the children,
    the parents started attending weekly parenting courses, individual counseling, and a 52-
    week child abuse class, and they visited the children daily and helped with their basic
    care. (
    Id. at p.
    144.) The court took jurisdiction over both children and ordered removal
    from the parents because the identity of the perpetrator was unknown and the children
    were so young. (
    Id. at p.
    145.)
    The appellate court reversed the removal order as to Hailey, explaining that past
    abuse of a sibling does not, on its own, justify removing a child from their parents. The
    court found that the risk to Hailey of any future abuse was “strikingly less” than the risk
    facing her infant brother. (Hailey 
    T., supra
    , 212 Cal.App.4th at p. 147.) “Hailey was not
    32
    an infant of only a few months old, who would be unable to articulate any abuse to which
    she might be subjected, and who would be completely isolated from the observations of
    mandated reporters of abuse. By the time of the disposition hearing, Hailey was a four-
    year-old child, with good language skills and an outgoing and social nature. She attended
    school where she had regular contact with teachers and other mandated reporters of any
    suspected abuse.” (Ibid.) The court also found significant the fact that there was
    “abundant evidence” that the parents were good parents who enjoyed a healthy
    relationship. “[T]here was no evidence of any physical domestic violence between the
    parents during their nine-year marriage. Neither parent had substance abuse problems,
    and there was no evidence that either suffered from mental health conditions,
    developmental delays or other social issues that often are at the root of dependency cases
    and might place children at continuing risk in the home. [They] were parents who started
    services at the earliest opportunity, showed progress in the services and had meaningful
    and productive visits with the children. Even Agency participants in a team decision
    meeting early on in the case recognized [the mother and the father] were good parents.”
    (Id. at pp. 147-148.)
    We find that case easily distinguishable from this one. Unlike the parents in Hailey
    T., mother and father did not cooperate with the social worker or engage meaningfully in
    services when CFS became involved with their family. To the contrary, they were
    emphatically resistant to the agency’s investigation, demanding the social worker leave
    them alone and trying to avoid further investigation by giving their children to a family
    33
    friend. Over the ensuing six months, they became only slightly more cooperative by
    appearing at hearings and submitting to some drug tests. But on the whole, their resistant
    behavior and lack of progress in services reflect a desire to avoid investigation into the
    extent of their drug use and a lack of insight into the serious problems parental drug use
    poses.
    “The trial court is in the best position to determine the degree to which a child is at
    risk based on an assessment of all the relevant factors in each case.” (In re Drake M.
    (2012) 
    211 Cal. App. 4th 754
    , 766.) On this record, we cannot agree with mother that there
    was an insufficient evidentiary basis to remove the children from her and father.
    As a final point, we address an incorrect argument CFS makes in its briefing that
    appears to have stemmed from a rise in appellate opinions misinterpreting section 361,
    subdivision (c)(1) and the burden of proof required to justify removal from a parent’s
    custody. Citing In re 
    R.V., supra
    , 
    208 Cal. App. 4th 837
    , CFS asserts that the “jurisdiction
    findings constitute prima face evidence supporting a juvenile court’s finding a child
    cannot safely remain in the home.” The Welfare and Institutions Code does contain a
    statutory presumption in favor of removal, but that presumption applies only to a narrow
    class of cases—those where the child has been adjudicated a dependent under section
    300, subdivision (e) (severe physical abuse of a minor under five years old).
    As a general rule, the required burden of proof is clear and convincing evidence.
    Section 361 provides that a juvenile court must not remove a child from parental custody
    “unless [it] finds clear and convincing evidence of any of the following circumstances
    34
    listed in paragraphs (1) to (5),” which include the circumstance 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 from the minor’s parent’s . . . custody.” (§ 361, subds. (c) & (c)(1).)
    “‘The elevated burden of proof for removal from the home . . . reflects the Legislature’s
    recognition of the rights of parents to the care, custody and management of their children,
    and further reflects an effort to keep children in their homes where it is safe to do so.
    [Citations.] By requiring clear and convincing evidence of the risk of substantial harm to
    the child if returned home and the lack of reasonable means short of removal to protect
    the child’s safety, section 361, subdivision (c) demonstrates the ‘bias of the controlling
    statute is on family preservation, not removal.’” (In re A.R. (2015) 
    235 Cal. App. 4th 1102
    ,
    1115.)
    Section 361 provides a single exception to the general rule: “The fact that a minor
    has been adjudicated a dependent child of the court pursuant to subdivision (e) of Section
    300 shall constitute prima facie evidence that the minor cannot be safely left in the
    physical custody of the parent.” (§ 361, subd. (c)(1), italics added.) Section 300,
    subdivision (e) applies when the court has found that “the child is under the age of five
    years and has suffered severe physical abuse by a parent, or by any person known by the
    parent, if the parent knew or reasonably should have known” of the abuse. Thus, the
    Welfare and Institutions Code establishes a rebuttable presumption that removal is
    35
    necessary in a narrow subset of cases—those where a young child has been severely
    physically abused and the parent was either the perpetrator of the abuse or unreasonably
    failed to protect the child from the abuse. In those cases, the fact the court adjudicated the
    child a dependent under section 300, subdivision (e) serves as prima facie evidence that
    the child faces a substantial risk of physical harm in the parent’s custody and there are no
    reasonable means to protect the child short of removal. For all other cases, however, the
    general rule applies and the juvenile court must find clear and convincing evidence to
    justify removal. (§ 361, subd. (c).)
    R.V. is one of the earliest opinions to say the statutory presumption applies in a
    case where the child had not been adjudicated a dependent under a section 300,
    subdivision (e). (See also In re Cole C. (2009) 
    174 Cal. App. 4th 900
    , 917 (Cole C.)
    [presumption applied even though child was adjudicated a dependent under § 300, subd.
    (j) based on the father’s excessive discipline of the child’s older stepsiblings].) The child
    in R.V. had been adjudicated a dependent under section 300, subdivision (j) based on the
    father’s sexual abuse of an older sister. The appellate court stated the jurisdictional
    findings against father were “prima facie evidence the child cannot safely remain in the
    home.” (
    R.V., supra
    , 208 Cal.App.4th at p. 849.) The court’s only citation to support this
    proposition was section 361, subdivision (c)(1), which, as just explained, limits the
    statutory presumption to section 300, subdivision (e). (Ibid.)
    After Cole C. and R.V., other appellate courts followed suit, similarly overlooking
    the limitation on the presumption. (E.g., Hailey 
    T., supra
    , 212 Cal.App.4th at p. 146
    36
    [presumption applied even though child was adjudicated a dependent under § 300, subd.
    (a)]; In re John M. (2012) 
    212 Cal. App. 4th 1117
    , 1126 [same, in a § 300, subd. (b) case];
    In re T.V. (2013) 
    217 Cal. App. 4th 126
    , 135 [same]; In re A.E. (2014) 
    228 Cal. App. 4th 820
    , 825 [same, in a § 300, subds. (a) & (b) case]; In re J.S. (2014) 
    228 Cal. App. 4th 1483
    , 1492 [same, in a § 300, subd. (b) case]; In re A.F. (2016) 
    3 Cal. App. 5th 283
    , 289,
    292 [same].) The recent trend in misreading section 361, subdivision (c)(1) is not without
    real consequences. Applying the presumption to all dependency cases effectively
    “deprives parents of appellate review of removal if there was a sufficient evidentiary
    basis for jurisdiction.” (In re G.C. (Apr. 24, 2020, E072514) __Cal.App.5th __ [2020
    Cal.App.Lexis 336, *42] (dis. opn. of Menetrez, J.) [“If jurisdictional findings always
    constitute prima facie evidence that the children cannot safely remain in the home, then
    whenever there is substantial evidence to support the jurisdictional findings, the removal
    findings and orders must be affirmed as well”].)
    At least one published case, In re K.S. (2016) 
    244 Cal. App. 4th 327
    (K.S.), has
    rejected the argument that the statutory presumption applies at every disposition hearing.
    (See
    Id. at p.
    342 [“The Agency argues that jurisdiction findings are prima facie evidence
    that a child cannot safely remain in a parent’s care under section 361, subdivision (c)(1).
    But that prima facie finding only applies to a jurisdiction finding under section 300,
    subdivision (e) that a child under five years old has been physically abused”].) We agree
    with K.S. The statutory presumption in favor of removal applies only when the child has
    been adjudicated a dependent under section 300, subdivision (e).
    37
    III
    DISPOSITION
    We affirm the juvenile court’s jurisdictional and dispositional findings and orders.
    CERTIFIED FOR PUBLICATION
    SLOUGH
    Acting P. J.
    We concur:
    FIELDS
    J.
    MENETREZ
    J.
    38
    

Document Info

Docket Number: E073284

Filed Date: 5/21/2020

Precedential Status: Precedential

Modified Date: 4/17/2021