In re H.B. ( 2024 )

Filed 10/8/24; certified for publication 10/29/24 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re H.B. et al., Persons Coming
Under the Juvenile Court Law.
A169493
SAN FRANCISCO HUMAN
SERVICES AGENCY, (San Francisco City & County
Plaintiff and Respondent, Super. Ct. Nos. JD23-3241. JD23-
v. 3241A)
H.B.,
Defendant and Appellant.
H.B. (father) appeals from a disposition order declaring his two sons
dependents of the juvenile court, vesting the continued custody of the
children with their mother, and granting family maintenance services to
mother and supportive services to father. Father argues the disposition
findings must be reversed as to him because the juvenile court applied an
incorrect legal standard and insufficient evidence supports its findings.
Finding merit to some of his contentions, we reverse the disposition order and
remand.
1
BACKGROUND
Original Petition and Detention
On August 1, 2023,1 the San Francisco Human Services Agency
(Agency) filed a petition on behalf of H.B. (then age 15) and D.B. (then age
12), alleging the minors were at substantial risk of suffering physical and
emotional harm, that their parents, father and G.B. (mother), failed to
protect the minors, and that the minors were at risk of suffering serious
emotional damage. (Welf. & Inst. Code, § 300, subds. (a), (b) & (c).)2 The
petition alleged father had purchased for and given H.B. Xanax, psilocybin
mushrooms, and marijuana, which in turn had the potential to exacerbate
H.B.’s anxiety and depression. The petition further alleged that father had
his own substance abuse issues.
According to the detention report, the Agency received a referral on
July 6 based on mother’s report that father had given H.B. Xanax, psilocybin
mushrooms, and marijuana. On other occasions, H.B. allegedly stole drugs
from father. The police were called to the home while both father and H.B.
were intoxicated. The police advised father to obtain a medical marijuana
card.
On July 24, the Agency went to the family home and interviewed H.B.,
D.B., and mother. H.B. reported he used marijuana for his anxiety, even
though his parents were against it and his psychiatrist recommended
antidepressants and not marijuana. H.B. said he obtained the marijuana
from “random people” at school and denied that father had given him or
helped him buy it.
1 All further dates refer to the year 2023 unless otherwise stated.
2 Further undesignated statutory references are to the Welfare and
Institutions Code.
2
D.B. told the social worker he did not use drugs, but his brother used
marijuana. Father wanted H.B. to “ ‘go slow’ ” in using marijuana, while
mother wanted H.B. to stop. When H.B. was under the influence, he did not
rest or sleep and had mood swings. When he was not under the influence, he
was sad. D.B. said he was the one who had called the police during the
earlier incident, because H.B. threw a tantrum and tried to hit mother.
Father intervened and pinned H.B. down until the police arrived. D.B. said
this felt “ ‘normal because [his] brother is always throwing tantrums like
this.’ ”
Mother reported she had confiscated H.B.’s phone because he regularly
missed curfew, appeared under the influence, and smelled like marijuana.
Mother had the passcode to his phone and saw messages indicating father
was the one giving H.B. drugs. She showed and sent screenshots of those
messages to the Agency. Father bought H.B. a new phone after mother
confiscated his other one.
According to mother, H.B. did not listen to her. Father and H.B. did
not include her in conversations or give her information about how H.B. was
doing in therapy or whether he was taking his medication. Father called
mother “ ‘crazy’ ” or threatened to call the police and report that she was
having a mental crisis when she pleaded with father to keep her “ ‘in the
loop’ ” about H.B.
The social worker found in H.B.’s bedroom a pocketknife, smoking
paraphernalia, an empty prescription bottle, small pieces of foil-like paper,
and a half-full pack of a sleep sedative.
On July 28, the Agency obtained a removal warrant. When social
workers went to the family home to execute the warrant, the parents agreed
3
that father would leave the home and that mother would remain in the home
with the children.
In the detention report, the Agency listed its “reasonable efforts [¶] . . .
made to prevent or eliminate the need for the child’s removal from the home,”
which included two upcoming child and family team meetings and a referral
for father to submit to drug testing and a substance use assessment.
The Agency recommended that the children be removed from the
custody of father and placed temporarily with mother.
At the detention hearing on August 2, the juvenile court adopted the
Agency’s recommendations and ordered supervised visitation and phone calls
for father, but granted the Agency the discretion to move the visits to
unsupervised with 48 hours’ notice.
Jurisdiction and Disposition
Disposition Report
On September 15, the Agency filed its disposition report in advance of
the combined jurisdiction and disposition hearing set for November 2.
Although entitled “Disposition Report,” it included recommendations
concerning jurisdiction. Protective Social Worker (PSW) Jessica Navidad
wrote the report.
The report discussed the facts supporting jurisdiction, quoting at length
various conversations between H.B. and father indicating father had
purchased for or given H.B. marijuana and psilocybin mushrooms.3
3 For example, on July 20, H.B. texted father, “ ‘Can I get some shroom
capsules[?]’ ” Father replied, “ ‘Hey, dude, I think I actually have some of
those. How much? $5/pill. They’re like 0.2 each.’ ” Father also texted H.B.,
“ ‘Ugh. Ok. So that’s what . . . $180? Ok. On 19th at Lincoln is gas station.
In men’s room under sink is an obviously loose tile. Move that and is a space.
Put $180 there then text. Then I’ll text after ive [sic] counted it. Thanks.’ ”
4
The report then discussed the family’s history and current dynamics.
Mother stated that after being together with father for about 19 years,
mother wanted to end their marriage. She had filed for divorce the year
prior, which case was pending. Father reported past domestic violence
incidents with mother, who had hit him, thrown objects towards him and
H.B., called him names, whipped him with cords, threatened to stab him,
made sexually explicit comments, and damaged his property. Mother
admitted she had “ ‘exploded’ ” in her reactions toward father.
Father reported he fed the children, cleaned the home, supported the
children with homework, and contacted H.B. when he was late for curfew.
Mother said she was the primary caregiver. She was not working, and father
paid for the rent and bills.
According to mother, D.B. listened to her, while H.B. did not. H.B. was
aggressive towards mother and D.B. D.B. told mother he wanted to leave the
home because of H.B.’s behavior.
Mother felt unsupported by father when he was living with them
because he disregarded her parenting style, which she described as a form of
emotional abuse. She did not agree with father’s parenting style, because he
“just [went] along with what [H.B.] sa[id],” including allowing him to attend
concerts, hang out with his friends, and miss school. Father acknowledged he
was undermining mother and that both he and H.B. needed to be mindful of
how they made mother feel.
The report went on to describe father’s struggles with substance abuse
and recent efforts to address it. Father drank alcohol and used Xanax. He
was enrolled in an outpatient treatment program with Kaiser Permanente
(Kaiser) at the time. He was also engaged in treatment with the Homeless
Prenatal Program, as well as the San Francisco County Family Treatment
5
Court. During the past year, father had been seeing a psychiatrist
specializing in addiction. Additionally, father reported his support system
included members of the Narcotics Anonymous (NA) community. Father
submitted to drug tests in August. His results all showed he had tested
positive for marijuana and benzodiazepines.
The report turned to the children’s health. H.B. had been diagnosed
with anxiety and depression. Father admitted he knew that H.B. had been
actively using drugs since late 2022. Father took H.B. to Kaiser for
substance use, as well as to NA meetings, but H.B. did not seem to connect
with the program.
Mother first realized H.B. was using drugs in February when he came
home “high.” Father had no reaction to H.B. being high and stated to mother
that H.B. “ ‘has to learn to be a man and that he’s “living his culture.” ’ ”
Mother would tell father that she wanted to find the person giving H.B.
drugs, and father would respond, “ ‘The world gives him drugs.’ ”
Mother and the staff at H.B.’s high school expressed concerns about
H.B.’s health and behaviors. For example, on September 5, H.B. appeared
under the influence at school. When mother picked him up and took him to
the hospital, he tested positive for opioids. Mother reported that she had
hidden her pills from H.B., who managed to find and steal them. Also,
according to the school’s social worker, Sophie Wasacz, H.B. was part of a
group of students who bought and sold drugs. H.B. was missing class, too.
There were also incidents involving H.B. at home. On September 13,
mother contacted PSW Navidad and the police regarding an altercation
between mother and H.B. after he looked through mother’s phone and saw
screenshots of his conversations with others about his substance use.
6
Mother brought H.B.’s cell phone to a meeting with PSW Navidad. The
phone contained various texts, audio messages, pictures, and videos
indicating that H.B. was smoking marijuana, using a vape pen, taking pills,
asking for “molly,” smoking an unknown substance from tin foil, and using a
portable vaporizer for consuming cannabis concentrates.
The Agency referred H.B. to individual therapy. It also consulted with
a substance abuse manager, who advised that H.B.’s substance abuse was
secondary to his mental health needs and recommended that he stabilize his
mental health. H.B. also had an individualized education plan (IEP).
Mother took H.B. to NA meetings and attempted to connect him to
multiple substance abuse programs but was unsuccessful. Father was also
concerned about H.B.’s substance use, but he continued to deny providing
him with illicit drugs. Father claimed H.B. had stolen drugs from him.
Father stated he wanted to support his children and was working on his own
sobriety.
The Agency scheduled visits between father and the children starting
on September 6 for two hours per week under the supervision of PSW Keyla
Cordero. D.B. attended the visit that day; H.B. missed it because he did not
want to attend. PSW Navidad encouraged H.B. to attend his next visit. H.B.
replied that he did want to attend visits, but that he had made plans to see
friends. On September 13, D.B. and father had a visit, which went well.
The Agency listed its “reasonable efforts” during the reporting period,
which included conducting a meeting with father on September 6 and
requesting that he provide a release of records from Kaiser.
The report concluded with this assessment: “This family has a lot of
issues that have been building over the years and have contributed to [H.B.]
being in the current state he is. . . . It is going to take an immense amount of
7
work for [H.B.] to stabilize his mental health and substance abuse.
Unfortunately, this work is not going to happen overnight as it took years to
get here. . . . The parents are going to need to stop pointing fingers at whose
fault it is that [H.B.] is in the condition that he is and present a united front
in getting him the needed support.” The Agency added that father “should
take this time to work on his sobriety and improve his parenting skills to be
able to meet his children’s needs in an appropriate manner.”
The Agency recommended that the juvenile court sustain the petition
allegations; declare the children as dependents, to reside in the home with
mother under the Agency’s supervision; grant mother family maintenance
services; and grant father supportive services only. 4 It recommended the
following supportive services for father: individual therapy, drug testing,
parenting classes for adolescents, and an outpatient recovery program, plus
follow-up on any additional referrals from the program or the Agency for
aftercare.
Addendum Report
On October 20, the Agency filed an addendum to the disposition report,
also authored by PSW Navidad. Mother shared that H.B.’s behaviors had
improved since the week prior, as he was less aggressive. Also, H.B. was
scheduled to start therapy to address his anxiety and depression. His
school’s social worker, Wasacz, said she recently had not seen H.B. engage in
drug dealings, found any drugs in his backpack, or noticed any physical signs
4 “[F]amily maintenance services are activities designed to provide in-
home protective services to prevent or remedy neglect, abuse, or exploitation,
for the purposes of preventing separation of children from their families.”
(§ 16501, subd. (g).) “Supportive” or “[e]nhancement” services “are child
welfare services offered to the parent not retaining custody, designed to
enhance the child’s relationship with that parent.” (Earl L. v. Superior Court
(2011) 199 Cal.App.4th 1490, 1497, fn. 1.)
8
that he may be under the influence. H.B. shared that his relationship with
his mother was getting better.
The report also provided updates on father’s substance use assessment.
Father was taking Xanax and benzodiazepines daily from sometime in
February to August 4; drinking zero to four beers daily, with his last drink in
mid-July; taking Adderall two to three days per week, with his last use in
June or July; smoking marijuana daily, with his last use in June or July; and
ingesting psilocybin mushrooms two to three times per month, with his last
use in June. Father shared he had a significant history of substance abuse,
relapse, and treatment. Father was connected to NA between 2001 and 2005.
He relapsed and checked himself into rehabilitation after abusing cocaine in
2007. He had sporadic use and abstinence since then. He went to
rehabilitation in 2012 for abusing OxyContin. In November 2022, father
relapsed on what he believed was cocaine but turned out to contain fentanyl,
on which he ended up overdosing. Father also reported that he had woken up
from a blackout a few weeks prior to the Agency intervening in this case.
Father expressed his relationship with mother was difficult and that he used
substances to “ ‘ “check out,” ’ ” but that he felt solely responsible for his
substance abuse. He also had a history of experiencing panic and anxiety
and used substances to cope.
Father provided PSW Navidad with his records from Kaiser. The
records verified his participation in its outpatient treatment program and
contained his drug test results. Father’s physician noted father had been
testing since August for cannabis, sedative, and opioid use disorder. Father’s
test results were positive for benzodiazepines, but this did not reflect “ ‘new
use’ ”; rather, it reflected “ ‘metabolites’ ” of the drug he had prior to starting
treatment. His results were positive for THC, which was “ ‘expected given
9
the high concentration of THC in [his] initial test,’ ” and did “ ‘not indicate
ongoing THC use since early August.’ ” PSW Navidad added that father
“continue[d] to test positive for Buprenorphine and Norbuprenorphine but his
levels continue to decrease.”
Father’s outpatient program with Kaiser was scheduled to finish in
November. According to his records, his treatment goals included identifying
his triggers for relapse, identifying and developing coping skills, building a
social support system, and improving his self-respect and self-esteem.
As for visitation, the report noted that on October 4, neither minor
attended; D.B. did not want to attend and H.B. wanted to spend time with
friends instead. Both attended a visit on October 11. Father engaged with
them and attempted to give each of them an equal amount of attention. On
October 18, H.B. reportedly did not want to attend his visit with father that
day.
The Agency “acknowledge[d] [father’s] hard work in maintaining his
sobriety thus far.” It reported, however, that father had not identified what
his plans were upon completing the Kaiser program. The Agency noted that
in light of father’s past history of sobriety and relapse, he needed “intensive
support around to achieve longer term sobriety,” which was “imperative in
helping [H.B.] . . . with his own recovery.” The Agency “need[ed] additional
time, [more] than three months, to assess how [father] does with his
sobriety.” The Agency wished “to work with [father] through his sobriety
journey through supportive services and rebuild a healthy and respectful
relationship between him and his sons.” The Agency continued to
recommend family maintenance services for mother and supportive services
for father.
10
Trial Briefs
On October 27, father filed a “trial brief” for the upcoming jurisdiction
and disposition hearing, along with his supporting declaration. Father
contested the Agency’s recommendations, which he characterized as seeking
the removal of the children from his care, their continued placement with
mother, and the provision of supportive services to father. Therefore, father
argued that at disposition, the juvenile court must make removal findings
under section 361, subdivision (c)(1).
Father contended the Agency could not meet its burden. Father
maintained the Agency presented no “evidence of current risk” he posed to
the children, and that its recommendations were based on its “subjective
belief that [father] ha[d] not been sober long enough.”
Father claimed the evidence instead established he had “taken full
responsibility for the harm he caused his children and ha[d] done everything
possible to mitigate that harm.” In his declaration, father stated he started
attending NA meetings on July 24; enrolled in Family Treatment Court on
August 16; graduated from Kaiser’s full-time, three-week outpatient program
on August 30; and at the time, was participating in Kaiser’s Addiction
Medicine and Recovery Services Intensive Recovery Program, an eight-week
program consisting of outpatient therapy and educational services at least
four days per week, two to three hours per day. Father also stated he had
become aware of the stressors that had triggered his prior relapses over the
past 23 years. Father was “much more confident” in his recovery this time,
because he had “more and better tools to manage [his] emotional triggers and
questionable situations before they bec[a]me overwhelming,” including
building a supportive network. And he believed that having moved away
11
from mother had “allowed [him] to reevaluate [his] life” and engage with
mother in a “more healthy and productive way.”
Father also complained about the Agency’s failure to expand visits from
supervised to unsupervised, asserting it failed to accommodate a request
made by H.B. at a settlement conference hearing the month prior to separate
his visits with father from father’s visits with D.B.
Father asked the juvenile court to return the children to his care and
grant him the same family maintenance services recommended for mother.
Alternatively, should the court remove the children from his care, father
asked that he be given family reunification services.
On November 1, the Agency filed a response, asserting that “the
children have not been removed from all parental care, and are not entering
foster care,” and thus father was not entitled to family reunification services.
The Agency also suggested that father would receive no benefit if given
family maintenance services instead of supportive services, since the
supportive services being recommended were “the same services that would
be offered if he were eligible for family reunification services.”
Assumption of Jurisdiction
The combined jurisdiction and disposition hearing began on
November 2. During the morning session, the parties submitted on the
allegations of an amended petition. Pursuant to section 300,
subdivision (b)(1), the amended petition alleged the parents failed to protect
H.B. and D.B. because (1) father provided or left unsecure substances
including Xanax, psilocybin mushrooms, and marijuana, to H.B., and (2)
father had a history of substance abuse. It also alleged father “stopped using
illicit substances in July 2023” and that “he has not used illicit substances
since ending his medically supervised taper of benzodiazepines on August 4,
12
2023.” The amended petition further alleged H.B. was at risk of suffering
from emotional damage under section 300, subdivision (c), as his “parents
have been unable to provide appropriate mental health and substance abuse
treatment” for him.
The juvenile court sustained the allegations and assumed jurisdiction
over H.B. and D.B.
Contested Disposition Hearing
The juvenile court held the contested disposition hearing on the
afternoon of November 2, and then on November 13 and 30 and December 18
and 20. It admitted into evidence the Agency’s detention, disposition, and
addendum reports, as well as exhibits presented by father. The court also
heard testimony from various witnesses.
On November 2, PSW Cordero testified she supervised the visits
between father and the children. Of the nine scheduled visits, H.B. attended
only three. Overall, the visits with the children were “really good.” Father
confirmed his visits and showed up on time. He brought food, puzzles, and
toys to the visits. He also engaged with the children and listened to what
they had to say. At the first visit, H.B. seemed shy or anxious and less
engaged, but he improved during the third visit.
Cordero testified that while the visits were good overall, she had “one
concern,” which was that father was “very willing to say yes to his kids” to
their requests for material things or to do certain activities such as see a
movie. She explained that “even though you expect parents to provide for
their kids, to me that is a bit concerning, you know, because there’s times in
which you do need to say no to your kids.”
PSW Navidad also testified on November 2. She stated the Agency was
not open to a dual family maintenance case or a case where the children
13
would be in-home with both mother and father. The Agency was concerned
about father’s sobriety, H.B.’s own substance abuse, and how the two of them
being in the same house would affect them both. Navidad testified that the
supportive services recommended to father in the disposition report had been
referred to him “as of today.”
Navidad testified father was living with a friend. Father had not asked
the Agency to assess his home as a possible placement for the children. Since
father left the family home, H.B.’s substance use apparently decreased and
he had improved academically.
Navidad understood that father had recently completed a treatment
program with Kaiser. However, she had not explored a safety plan or some
way of mitigating her concerns about father and his sobriety. Nor had she
asked father about his future plans for recovery, stating she and father did
not yet have their monthly meeting.
Navidad acknowledged father’s “hard work” but stated “three months
isn’t enough time for the [A]gency to assess long-term sobriety.” She based
her opinion in part on father’s history of substance abuse and his various
relapses over the years. Navidad had not spoken to anyone at Kaiser or any
of father’s providers.
When asked if she thought father over the last three months had been
using illicit drugs that he had not been prescribed, Navidad responded, “He
has been testing presumptive positive but his levels have been decreasing.”
Navidad did not know the specific drugs he had been testing positive for,
including Suboxone. And she could not recall if she previously had looked up
any of the drugs.
Navidad recently had referred father to Mission Council, a substance
abuse treatment program. Navidad testified that she could not provide a
14
specific timeframe about how long was long enough for assessing father’s
ability to maintain long-term sobriety. She said that it “[h]as to be assessed
as it goes.”
As far as visitation, Navidad testified that the Agency “would like
[H.B.] to participate more in his visitation to get a better assessment of his
and his father’s relationship to see how they interact and how they engage.”
Navidad’s examination continued through the hearing on November 13.
According to a recent visit on the Friday prior, H.B. expressed that moving
visits from Wednesdays to Thursdays would encourage him to attend. She
told him that she “could inquire about that” but could not promise she could
move the visits. She said that the Agency would submit a referral with the
request to the family resource center, which would then place the family on a
waitlist. Navidad testified, “I can inquire about changing visits to encourage
[H.B.] to attend visits, but the other part is that [he] has to attend them
himself. I can’t force him to go to those visits.” Navidad also testified that
the Agency could not expand visits from the current schedule of two hours
per week to three hours per week, due to a lack of staff. Further, Navidad
explained the Agency lacked resources to separate visits between H.B. and
D.B.
On November 30, Jennifer Pasinosky, a program coordinator with the
San Francisco County Family Treatment Court for the past 16 years, testified
on father’s behalf. Family Treatment Court is a court-supervised treatment
and parenting program for people with children who are involved in the
juvenile dependency system. It focuses on child safety with the primary goal
of reunifying the family.
Father began participating in Family Treatment Court on August 16.
Pasinosky was aware that father had participated in the Kaiser intensive
15
treatment program. Father shared with her his “individual aftercare plan,”
which was to work with a sponsor doing “step work.” That involved him
working on assignments, reading materials, speaking with his sponsor daily,
and attending meetings numerous times per week. Father was also working
with a substance use disorder counselor with the Homeless Prenatal
Program.
According to Pasinosky, father demonstrated “a willingness and
openness to examine his triggers.” He was working on addressing those
triggers, including by not allowing himself to be isolated and by creating a
strong network of people in recovery group meetings. Father also appeared
to have a strong support system.
When asked about father’s drug tests results, Pasinosky pushed back
on PSW Navidad’s testimony insofar as she suggested father’s drug test
results indicated “problematic substance use.” Pasinosky clarified that while
father continued to test positive for buprenorphine (a different name for
Suboxone), such results did not indicate “problematic substance use.”
Instead, they indicated father was “testing positive for a prescription
medication . . . for treatment of his substance use disorder.”
Pasinosky testified that the typical length of a parent’s participation in
Family Treatment Court is from 10 to 18 months. She considered father to
be in the “orientation phase” of the program. Based on her experience, the
longer an individual has used substances, the higher the risk of relapse. In
father’s case, “It is hard to say exactly in this moment if [he] is going to
return to use. We don’t know exactly, but I think the indications right now
are that he has shown a lot of openness and willingness to engage in a plan
that creates a foundation for long term recovery.” Pasinosky also said, “Once
you get to the 90-day mark and you are really, like, proactively engaged, we
16
like that. . . . [¶] So I guess if you wanted a number, I would say 90 days
where I would start to say this person is more serious . . . .”
In Pasinosky’s experience, parents have relapsed while participating in
Family Treatment Court. But she never had a case where a parent had
provided illegal substances to a child.
On December 18 and 20, father testified. He admitted giving H.B.
marijuana and mushrooms, but not Xanax; he believed H.B. stole it from him
or obtained it outside of the home. Father deeply regretted giving his son
drugs. He acknowledged “[i]t was extremely poor judgment.” Father was
using drugs at that time and his addiction caused him to have poor
decisionmaking and boundaries.
Father testified he was “very clean now and very active in [his]
recovery program.” Consistent with his declaration in support of his trial
brief, father testified about the various treatment programs he completed or
was participating in. Father also was attending individual therapy. Father
stated he was learning how to address his stressors with the help of his
sponsor and regular meetings with other people in recovery. After
completing the second treatment program with Kaiser in early November, he
returned to his employment.
Father spoke with PSW Navidad once per month. Shortly after the
first day of the disposition hearing on November 2, they met in person for no
more than 10 minutes. Separately, Navidad e-mailed father with a referral
to Mission Council, a recovery program. However, father replied to her,
stating the program was not a good fit, because it conflicted with his work
schedule and, in any event, he was then presently attending more meetings,
classes, and counseling sessions that would be offered at Mission Council.
17
Father testified that Navidad did not ask him about his long-term recovery
plans in their recent communications.
Father expressed that if he were to reunify with H.B., he would parent
him differently by establishing healthier boundaries. Father stated, “My role
is to be a father for him, and I think previously in my mind I had been trying
to be a doctor, trying to be his therapist and psychiatrist. I have been trying
to be a friend . . . .”
Father also testified that mother recently had contacted him to discuss
H.B. and his problematic behavior. On one occasion, mother called father
about H.B. bringing a knife to school in an effort to defend himself. Father
then called H.B., who disposed of the knife. In another instance, mother told
father H.B. did not come home. Father called H.B. an Uber, and H.B. came
home. On another occasion, H.B. posted on social media about a party on a
street in a warehouse neighborhood. H.B.’s phone was off, but father went to
the area and found him.
Father explained that his and mother’s parenting styles were very
different and often undermined each other. Father also explained that H.B.
had tried to pit his parents against each other for his own benefit, another
issue that he learned about in his parenting classes and wanted to work on.
Father stated that while he disagreed at times with mother’s way of
punishing the children, he wanted to find an approach that he and mother
could both feel good about and that would be helpful for H.B. Father felt that
in recent contacts with mother they were mostly in agreement about how to
take care of H.B.
Father said that he and H.B. “have always had a very good and close
relationship.” Father, however, acknowledged that H.B. had not been coming
to visits with him. In father’s view, H.B. likely did not want to attend the
18
visits due “to the mandated nature of it, having a third party analyze and
focus on him.” H.B. called father frequently, but father did not pick up the
phone.
Father was living in a “basement apartment” that was a room with a
bathroom. Father stated that his children could not live there. Father could
not secure his own apartment because he was paying the rent and bills for
the apartment where mother and the children were living, as well as the
household expenses.
Wasacz testified she met H.B. in September 2022. H.B. frequently
visited the school’s wellness center, where students are referred when dealing
with mental health challenges. Wasacz also met father around September
2022. Father “seemed like a very caring father.” He worried about H.B. and
“was very involved, . . . perceptive and responsive.”
H.B. continued to struggle with mental health challenges and
substance use. Mother had been trying to implement boundaries and set
limits with H.B., who had difficulty adjusting because he enjoyed a lot of
freedom previously. Wasacz noticed H.B.’s relationship with mother had
improved in the last few months.
Wasacz believed it would be helpful for H.B. to have father in his life
regularly, so long as father kept his own substance use issues in line. Wasacz
testified the relationship between father and H.B. was strong, and H.B.
responded to father. She believed that recent, infrequent communication
with father was detrimental to H.B. She also thought that since father had
left the home, H.B.’s struggles at school worsened. In the last month, H.B.
had not been at school at all.
There was a recent IEP meeting in which mother and father worked
together to make sure H.B. was receiving the help he needed. Wasacz
19
observed that mother and father were supporting each other and ensuring
each was a part of the decisionmaking. Wasacz thought it was important for
mother and father to work together to support H.B.
It was “confusing” to Wasacz when she learned that H.B. was not
attending visits with father. H.B. said that he loved father and wanted to see
him. However, H.B. told Wasacz he felt uncomfortable at the visits.
According to Wasacz, H.B. struggled with strangers around. He also said
that Wednesdays are short school days and that he wanted to hang out with
his friends.
Following this testimony, the parties presented closing arguments.
Counsel for the Agency reiterated its recommendation for the children to
remain in the home of mother, that mother receive family maintenance
services, and that father receive supportive services. Counsel acknowledged
and praised father for his recent work towards sobriety, but argued that he
was still very early in his recovery. Mother’s counsel joined the Agency’s
recommendation.
Counsel for the minors believed that father was continuing to work on
his sobriety in a way that mitigated the risk to himself in terms of relapsing
and the safety of the children. Counsel also questioned the basis of the
Agency’s opinions regarding father’s sobriety, criticizing how the Agency
misunderstood father’s drug tests and did not acknowledge the information
that father had given the Agency regarding his future recovery plans. Thus,
counsel argued the Agency’s recommendation was “misinformed” and not
entitled to credence. Counsel also criticized the Agency’s inability to find
three-hour slots for visitation or moving visits to another day as requested by
H.B. Counsel argued it was in the children’s best interests to give father
either reunification services or family maintenance services. Counsel
20
“plead[ed] with the Court to reconsider the visitation order and the contact
that they have.”
Father’s counsel acknowledged that “family reunification services
aren’t available under the law.” So, counsel instead proposed that the
juvenile court “could order family maintenance services to Father, and then
Father as a custodial parent can make arrangements for his children to stay
or be under the care of Mother so that their sleeping arrangements are that
they stay in the family apartment but the Father has full and free access to
his children.”
According to father’s counsel, the question before the court was
whether the Agency had met its burden under section 361, subdivision (c)(1)
to show, by clear and convincing evidence, there would be a substantial
danger to the children’s physical health, safety, protection, or physical or
emotional well-being and there was no reasonable way to protect the children
from these dangers without removal. Counsel argued the Agency did not
meet this burden. Counsel highlighted that father was regretful for his past
decisions and had taken significant action in his recovery. Counsel also
argued that the Agency “made little to no effort to assess whether [father]
had mitigated the issues that brought this case in to the point of whether or
not the children would be safe in his care.” Counsel went on, “It is hard to
believe that up until this point that has been the [A]gency’s approach in
trying to keep a family together.” Counsel stressed, “[H.B.] needs his father.”
The juvenile court then announced its decision. It stated it appreciated
all the work that father had made towards his sobriety, “but there is a
missing component.” “[T]he missing component in this particular case, which
objectively is shocking to the conscious, is that [this] particular vulnerable
young person at 15 with all of his issues and concerns and mental health
21
disorders, that [father] uses drugs with him, and what is particularly
disturbing is that he knew it was wrong.” The court commented, “The
gentleman’s judgment is so poor that the agency has sustained their burden
of proof.”
The court went on: “The fact that [father]literally ODed on the street
in San Francisco in 2022 you would think would scare the bejesus out of him
or anybody else, yet four months later he completely relapses and is doing
drugs with his young [son]. [¶] Now people may pooh-pooh marijuana in some
ways. It is legal now, but it is legal for somebody who is 21 years of age, not a
15 year old, and not a 15 year old with all of [H.B.’s] mental health disorders.
[¶] That is a concept that has not really been addressed by [father] and
through his counsel. I don’t know frankly how to address it per se except
talking to his therapist, counselor about it. It is not just about him and his
self-care, it is also about his parenting ability. [¶] And just saying, ‘I have bad
judgment and it was because of my addiction and it is because of my relapse’
is insufficient.”
The court stated it was proceeding under section 362, subdivision (c),
not section 361, subdivision (c), because it was not ordering the removal of
the children from the home and “[t]hey have remained with a custodial
parent the entire time.” The court declared H.B. and D.B. as dependents and
ordered the placement of the children with mother and the provision of family
maintenance services to mother and supportive services to father.
The court, however, stated that “[a]ssuming arguendo [it] is incorrect”
in applying section 362, subdivision (c), it would find “that the [A]gency has
sustained their burden of proof by clear and convincing evidence under
[section] 361[, subdivision] (c)(1).” “There is a substantial danger to the
young person due to the father’s substance abuse issues and addiction[,]
22
coupled with . . . his willingness to use narcotics with a 15 year old coupled
with, in addition to the special needs of [H.B.]” The court also found by clear
and convincing evidence that reasonable efforts were made to prevent or
eliminate the need for removal from the home and there were no reasonable
means by which the children’s health may be protected without removing
them from the physical care and custody of father.
Finally, the court ordered that father have monitored visits with the
children, subject to the Agency’s discretion to allow unsupervised visits with
48 hours’ notice. It also permitted father to have unsupervised phone calls
and texts with the children.
This appeal followed.
DISCUSSION
Father challenges the disposition findings and orders as to him. 5 He
argues the juvenile court erred when it proceeded under section 362,
subdivision (c) (section 362(c))—which applies to the situation in which a
child is declared a dependent, but is retained in parental custody as part of a
disposition order—rather than section 361, subdivision (c) (section 361(c))—
which applies when a dependent child is removed from the physical custody
of a parent.
Father, however, acknowledges the juvenile court found, in the
alternative, that even if it was incorrect in concluding section 362(c)
governed, it would conclude the Agency met its burden under section 361(c)
to warrant the removal of the children from father’s custody. He then argues
that substantial evidence did not support this and other related findings
under section 361.
5 Father does not challenge the jurisdiction order and findings.
23
The Agency responds that the juvenile court correctly proceeded under
section 362(c), but that in any event, substantial evidence supports the
removal findings under section 361(c).
We resolve the parties’ disagreement regarding which statutory
provision governed at disposition. We then address the sufficiency of the
evidence arguments.
The Governing Statutory Provisions
The proper interpretation of a statute, and its application to
undisputed facts, presents a question of law that is subject to de novo review.
(See In re Michael S. (2016) 3 Cal.App.5th 977, 983 (Michael S.); Bitner v.
Department of Corrections & Rehabilitation (2023) 87 Cal.App.5th 1048,
1058.)
Section 362(c) provides: “If a child is adjudged a dependent child of the
court . . . and the court orders that a parent or guardian shall retain custody
of the child subject to the supervision of the social worker, the parents or
guardians shall be required to participate in child welfare services or services
provided by an appropriate agency designated by the court.”
On the other hand, section 361(c) applies when a juvenile court is
considering removing a dependent child from the physical custody of his or
her parent. Section 361(c), states in relevant part: “A dependent child shall
not be taken from the physical custody of his or her parents . . . with whom
the child resides at the time the petition was initiated, unless the juvenile
court finds clear and convincing evidence [that]: [¶] (1) There 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 . . . physical
24
custody.” Subdivision (c)(1) identifies two alternatives for the juvenile court
to consider “as a reasonable means to protect the minor,” one of which, as
relevant here, is “[t]he option of removing an offending parent from the
home.” (§ 361, subd. (c)(1)(A).)
Father argues (and the Agency does not dispute) that for purposes of
section 361, subdivision (c)(1), he had physical custody of the children and
that they resided with him at the time the original petition was initiated.
However, the parties disagree on whether the juvenile court ordered the
children removed from father’s physical custody, such that it was required to
make removal findings under section 361, subdivision (c)(1).
The Agency argued below that section 361(c) did not apply because it
was not recommending the removal of the children from all parental
custody—i.e., it was recommending that the children remain in the custody of
mother in the family home. The juvenile court apparently agreed, stating:
“Because the Court is not ordering a removal from the home, the young
people will remain in the home the entire time. . . . The Court is not removing
[H.B. and D.B.] from a custodial parent, so that is why under section 362(c),
which I find is the appropriate statute to follow, the Court is going to order
in-home with Mom, family maintenance with Mom, and supportive services
for the father.”
On appeal, the Agency argues this finding was correct. It contends
“[t]he rigorous requirements of section 361 apply at disposition only when the
court is considering removing a dependent child from the physical custody of
a parent and ordering an out of home placement.” And the Agency argues
that neither occurred here. It adds that the juvenile court “avoided the
necessity of removal by permitting [H.B.] and [D.B.] to remain in mother’s
25
home and removing the offending parent—father” pursuant to section 361,
subdivision (c)(1)(A).
The Agency and the juvenile court apparently relied on two premises.
One is that section 361(c) precludes the possibility of removal from only one
parent. Another premise is that the juvenile court could not order both the
removal of father from the family residence and the removal of the children
from father’s custody pursuant to section 361, subdivision (c)(1). Father
disagrees with these premises, as do we.
As cited in father’s reply brief, Michael S., supra, 3 Cal.App.5th at
page 984 explains, section 361 “does refer in places to the possibility of
removal from only one parent. For example, subdivision (c)(1) uses the
singular possessive in stating that the court must determine that there are
no reasonable means to protect the minor ‘without removing the minor from
the minor’s parent’s or guardian’s physical custody.’ (§ 361, subd. (c)(1),
italics added.)” Further, while section 361, subdivision (c)(1)(A) “requires the
court to consider the ‘option’ of removing an offending parent from the home
as a possible alternative to removal of the child from the parent[,] . . . [i]t does
not, by its terms, preclude the possibility of ordering both removal of the
parent from the home and removal of the child from the parent.” (Michael S.,
at p. 984.)
Michael S. continued: “Flexibility in ordering removal from only one
custodial parent makes sense in light of the many different custody
arrangements that a juvenile court might need to address. For example, two
parents might live apart and share custody of a child. In such situations, if
only one parent engages in the conduct underlying a dependency petition, the
juvenile court might conclude that it is appropriate to remove the child only
from the offending parent and allow the child to remain in the other parent’s
26
custody.” (Michael S., supra, 3 Cal.App.5th at pp. 984–985.) “Indeed, the
facts here illustrate the different living arrangements that a juvenile court
can confront. While Mother and Father lived with Michael in an apartment
in Los Angeles at the time the relevant events occurred, they were not
married and Father apparently had a separate residence in Apple Valley that
the children had previously visited. Father left his family, initially on his
own volition, after learning that law enforcement and social workers had
made a visit. By the time the initial petition was filed, he was no longer at
the home. While the juvenile court ordered Father to stay away from the
family’s residence and from the children, under the circumstances the
juvenile court could also reasonably consider the option of removing Michael
from Father’s custody to confirm that, absent a further court order, Father
was not permitted physical custody of Michael at any location.” (Id. at p. 985,
italics added.)6
Michael S.’s reasoning is persuasive. To the extent the juvenile court
interpreted section 361(c) as foreclosing the possibility of ordering both the
removal of one parent from the home and removal of the child from the
parent, it was mistaken.
The question, then, is whether the juvenile court ordered both the
removal of father from the home and, at the same time, the removal of the
6 It is not uncommon for the juvenile court to remove a child from only
one parent’s custody when the parents do not live together. (See, e.g., In re
E.B. (2010) 184 Cal.App.4th 568, 574 [children declared dependent based on
the actions of both parents; appellate court upheld a dispositional order
removing children from father and releasing them to mother], disapproved on
another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7;
In re Alexis E. (2009) 171 Cal.App.4th 438, 450 [children ordered removed
from the custody of father and placed in the home of mother]; In re Jason L.
(1990) 222 Cal.App.3d 1206, 1210, 1213–1219 [child of divorced parents
properly removed only from father’s home].)
27
children from father’s custody. According to father, “[t]hat is precisely what
the juvenile court did here.” He says that “[a]lthough the juvenile court
stated it was not removing the children from a custodial parent, that is not
accurate and does not reflect the outcome of its orders with respect to father’s
custodial rights.” Father explains: “[W]hile the juvenile court placed the
children with mother, the juvenile court also made orders removing the
children from father’s custody by restricting father from the family home and
ordering supervised visitation. The juvenile court both denied father’s
request to allow the children in the home with father able to visit them in the
home pursuant to a timeshare agreement, and further ordered father’s
visitation with the children must be supervised, effectively removing the
children from father’s custody.”
We agree with father’s interpretation of the juvenile court’s orders. It
not only restricted father from the family’s residence but also did not permit
physical custody of the children at any location. (See Michael S., supra,
3 Cal.App.5th at p. 985.) It limited father’s access to the children to
visitation at a designated location under the supervision of the Agency.
Thus, although the juvenile court stated it was “not removing [the children]
from a custodial parent,” its orders effected a removal of the children from
father’s custody. Indeed, the court repeated at the hearing that “[father]
cannot have [the children] in his care and custody” and “there is no nexus
that he would be safe to have [H.B.] or [D.B.] in his physical care and
custody.”
We therefore conclude the juvenile court’s principal finding that
section 362(c) applied was error, but that its alternative finding that section
361(c) applied was correct.
28
Accordingly, the juvenile court was required to make findings under
section 361(c), as well as section 361, subdivision (e), which states that the
court “shall make a determination as to whether reasonable efforts were
made to prevent or to eliminate the need for removal” and “state the facts on
which the decision to remove the minor is based.” (§ 361, subd. (e).) Here,
the juvenile court made the requisite findings and factual recitations. It
found by clear and convincing evidence there was or would be a substantial
danger to the physical health, safety, protection, or physical or emotional
well-being of the children if they were returned to father’s custody, and that
there were no reasonable means by which the children’s physical health can
be protected without removing them from father’s physical custody. (§ 361,
subd. (c)(1).) It then stated the facts upon which removal was based. (§ 361,
subd. (e).) The court also found that reasonable efforts were made to prevent
or eliminate removal. (Ibid.)7
We turn to father’s arguments that insufficient evidence supported the
juvenile court’s findings under section 361, subdivisions (c)(1) and (e).
7 Father argues in passing that the juvenile court did not state the facts
supporting the bases of its findings that there were no reasonable means of
protecting the children without removal and that reasonable efforts were
made to prevent or eliminate the need for removal. Father’s failure to raise
below the adequacy of the juvenile court’s factual recitations precludes him
from raising the issue on appeal. (See In re Dakota H. (2005) 132
Cal.App.4th 212, 221–222.) The contention also lacks merit. As noted,
section 361, subdivision (e) by its terms requires the court to state the facts
on which its decision to remove is based and to make a determination as to
whether reasonable efforts were made to prevent or eliminate the need for
removal; it does not specify the court must state facts supporting the latter
determination. The juvenile court’s findings here complied with section 361,
subdivision (e) for the reasons stated in the text.
29
Sufficiency of the Evidence to Support the Disposition Findings
We review the juvenile court’s findings under section 361,
subdivision (c)(1) for substantial evidence, “ ‘keeping in mind that the
[juvenile] court was required to make its [findings] based on the higher
standard of clear and convincing evidence.’ ” (In re I.R. (2021) 61 Cal.App.5th
510, 520; see Conservatorship of O.B., supra, 9 Cal.5th at p. 1005.) Likewise,
the substantial evidence standard of review applies to a finding under
section 361, subdivision (e) that reasonable efforts were made to prevent or
eliminate the need to remove a child from his or her parent. (See In re T.W.
(2013) 214 Cal.App.4th 1154, 1163.) Substantial evidence is evidence that is
reasonable, credible, and of solid value. (In re Angelia P. (1981) 28 Cal.3d
908, 924, superseded by statute on other grounds as stated in In re Cody W.
(1994) 31 Cal.App.4th 221, 229–230.) In applying this standard, we “must
view the record in the light most favorable to the prevailing party below and
give due deference to how the trier of fact may have evaluated the credibility
of witnesses, resolved conflicts in the evidence, and drawn reasonable
inferences from the evidence.” (Conservatorship of O.B., supra, 9 Cal.5th at
p. 996; see In re V.L. (2020) 54 Cal.App.5th 147, 154.)
Substantial Evidence Supports the Removal Findings
Father argues substantial evidence does not support the finding, by
clear and convincing evidence, that there would be a substantial danger to
the children if returned to father’s custody. (§ 361, subd. (c)(1).) 8 In father’s
8 The Agency argues, in a footnote, that substantial evidence supports
the findings under section 361, subdivision (c)(1). The footnote does not
include a discussion to support the argument. The text of the Agency’s
respondent’s brief does contain a substantial evidence argument, but that
argument appears to be directed at the juvenile court’s determination under
section 362. Thus, it is unclear whether that argument also applies to the
removal findings under section 361, subdivision (c)(1).
30
view, “[t]he evidence did not demonstrate it was ‘highly probable’ that [he]
would use illicit substances again or provide illicit substances to the
children.” Father points to evidence showing that by the time of the
disposition hearing, he had been sober for four and a half months, had
completed and was participating in several recovery programs and meetings,
and had accepted responsibility for his poor decision to give his son illicit
drugs.
Father’s recent period of sobriety of four and a half months, while
commendable, was apparently not enough to reassure the juvenile court that
father’s drug abuse was in the past. Father struggled with drug addiction
since about 2000, meaning he had a history of substance abuse of over 23
years. He had “ ‘checked himself into rebab’ ” at least twice and had been
connected to the NA community at various times. But he failed to benefit
from substance abuse treatment programs or communities, as his periods of
sobriety alternated with recurring drug use. Additionally, while father made
promising recent developments in his recovery, the fact remains he was still
in the early stages of recovery. Indeed, father’s own witness, Pasinosky of the
Family Treatment Court, considered father to be in the “orientation phase” of
that court’s program, which he had started in mid-August. Given father’s
decades-long history of substance abuse, and the fact he was in the early
stages of recovery, the juvenile court could reasonably find it highly probable
that father’s four or so months of sobriety did not mean he was no longer at
risk of relapsing.
Aside from father’s substance abuse issues, the juvenile court noted the
risk in this case was father’s poor parenting ability. The record demonstrates
father did not recognize the boundaries between a parent and a child, as
clearly evidenced by his decision to give illicit drugs to his son, a teenager
31
struggling with anxiety, depression, and his own substance use. Although
father points out he was engaged in parenting classes, the evidence supports
a reasonable inference that he was in the early stages of improving his
parenting skills. For example, father testified that one of H.B.’s behaviors
that he had come to recognize was how H.B. manipulated his parents “for his
benefit.” In essence, H.B. was able to exploit the conflict between his parents
and form an alliance with his father against mother, resulting in father
allowing H.B. to get his way. Father testified that he learned about such
behaviors through parenting classes, and that being able to coparent with
mother was “something among the many other things that [he] would like to
see worked on if possible.”
Additionally, the evidence showed that father continued to struggle
with setting boundaries with his children. As PSW Cordero testified, during
visits father was “very willing to say yes to his kids” whenever they asked
him to buy things or do activities. Cordero explained that “even though you
expect parents to provide for their kids, to me that is a bit concerning . . .
because there’s times in which you do need to say no to your kids.”
On this record, the juvenile court could reasonably conclude that
despite father’s participation in parenting classes, he had not yet
demonstrated sufficient progress in eliminating the conditions that led to the
dependency.
For these reasons, we conclude substantial evidence supports the
juvenile court’s finding by clear and convincing evidence that there was or
would be a substantial danger to the children if they were returned to
father’s care.
Father next asserts insufficient evidence supports the juvenile court’s
finding that there were no reasonable means by which the children’s physical
32
health could be protected without removal. (§ 361, subd. (c)(1).) He argues:
“Since [he] had already left the family home, the juvenile court could have
issued an order that father could not reside in the family home as a
‘reasonable means’ to protect the children without removing them from
father’s custody. The juvenile court could then have issued orders allowing
[him] to have access to the children under a specific timeshare even though
he was residing in a different location. . . . At the same time, the Agency
could make unannounced visits during father’s timeshare, interviewed the
parents and children on a regular basis, arranged weekly random drug
testing for father and kept in regular contact with father’s service providers
and H.B.’s service providers.” In father’s view, “[a] disposition order allowing
H.B. to have the greatest amount of unfettered access to father was in H.B.’s
best interests.” We are unpersuaded.
Consistent with section 361, subdivision (c)(1)(A), the juvenile court
considered the option of ordering, and did order, the continued removal of
father from the family home. And contrary to father’s arguments, there was
substantial evidence from which the court could reasonably conclude that
granting father “unfettered access” to the children, even with unannounced
home visits by the Agency and the provision of services, was not a viable
alternative to removal.
H.B. had attended only three visits with father between the first
scheduled visit on September 6 and the first day of the disposition hearing on
November 2, mainly because H.B. wanted to hang out with his friends
instead.9 H.B. told his school’s social worker that he felt uncomfortable with
9 To the extent father faults the Agency for the lack of visits, such
contention is misplaced. It is true that H.B. gave a couple of suggestions on
how the Agency could help encourage him to attend visits, including
separating his visits with father from father’s visits with D.B., as well as
33
the visits. This was apparent to PSW Cordero, who observed H.B. seemed
anxious or nervous and not very engaged during the first visit, though this
improved during the third visit. In addition, as noted above, father’s
“willing[ness] to say yes” to his children’s various requests at visits continued
to raise concerns about his ability to set appropriate boundaries with his
children. Further, father had only been sober for a brief period of about four
and a half months while in a treatment environment. As a result, his ability
to maintain his—as well as his son’s—sobriety outside a treatment program
was untested. Under these circumstances, the juvenile court could
reasonably conclude by clear and convincing evidence that granting father
“unfettered access” to the children, even with unannounced Agency visits and
the provision of services, was not a sufficiently reliable means to protect the
children.
Insufficient Evidence Supports the Reasonable Efforts
Finding
We next address father’s challenge to the sufficiency of the evidence to
support the finding that reasonable efforts were made to prevent or eliminate
the need for removal, a challenge with which we agree.
“The Agency has a duty to ensure that ‘reasonable efforts [are] made to
prevent or eliminate removal’ of the [c]hildren.” (In re M.V. (2022)
78 Cal.App.5th 944, 964.) “[R]easonable efforts, like reasonable services,
need only be reasonable under the circumstances, not perfect.” (In re H.E.
(2008) 169 Cal.App.4th 710, 725.) Here, we cannot say that the record, even
when viewed in the light most favorable to the Agency, contains substantial
moving the day of the visits. However, the record shows the Agency could not
grant these requests due to circumstances beyond the Agency’s control,
specifically the unavailability of staff and resources, as father acknowledges.
34
evidence that it made reasonable efforts to prevent or eliminate the need for
removal.
As noted, the record demonstrates that the sources of danger to the
well-being of the children while in father’s care were father’s substance abuse
and his poor parenting skills. The Agency’s detention report listed as
“reasonable efforts” to prevent removal its referral for father to submit to
drug testing and a substance use assessment. The reasonable efforts noted in
the disposition report included a meeting with father on September 6 and a
request for release of records from Kaiser, where father was enrolled in his
second treatment program at the time. The Agency did not expressly list its
reasonable efforts in the addendum report for the reporting period, but the
report summarized the results of father’s substance use assessment and drug
test results from Kaiser.
Notwithstanding the above, father argues that reasonable efforts were
not made to prevent removal, primarily stemming from concerns about his
substance abuse. Father contends that the assigned social worker, PSW
Navidad, (1) did not ask him about his future substance abuse recovery
plans; (2) relied on “her own very limited experience” and did not speak to her
supervisor or otherwise “obtain[] a professional opinion” to corroborate her
opinion that she needed more than three months to assess father’s ability to
maintain long-term sobriety; and (3) did not do enough to understand his
drug test results.
We are not persuaded by the second argument. It essentially asks us to
reweigh the evidence and make credibility findings, which we may not do
under the substantial evidence standard of review. (See Conservatorship of
O.B., supra, 9 Cal.5th at p. 996.)
35
Father’s first and third arguments, however, are well taken. We
address his third argument first, which is that the Agency failed to make
reasonable efforts to understand father’s drug test results in the three
months leading up to the disposition hearing. Father points to PSW
Navidad’s testimony where she was asked if she thought father was “using
illegal illicit drugs that he [was] not prescribed.” She replied that father
tested “presumptive positive but his levels were decreasing,” and “that his
substance use levels [were] going down.” Navidad added, “[S]o we see that he
is getting sober.” In so testifying, Navidad apparently understood that father
was merely decreasing his use of illicit substances, rather than stopped his
use altogether.
However, according to father’s physician, although father tested
positive for benzodiazepines and THC, this did not indicate “ ‘new use.’ ”
Also, although father tested positive for buprenorphine, Pasinosky explained
that buprenorphine (which also goes by the name Suboxone) is medication
father had been prescribed to treat his substance use disorder. Thus, to the
extent Navidad believed father continued to use illicit drugs in the three or so
months before the disposition hearing, she was “misinformed” about father’s
then-current progress in recovery, as minors’ counsel argued. Indeed,
Navidad testified she did not know what the drugs being tested were and
could not recall if she had previously looked them up.
We turn to father’s first argument, which is that Navidad failed to ask
him about his plans to maintain sobriety after completing the second Kaiser
treatment program. The Agency’s addendum report stated father had “not
identified what his plans are . . . after he completes his outpatient program to
the Agency” and that his “plans for support around recovery past
November [were] unknown.” Father asserts that “his plans were only
36
‘unknown’ because the social worker failed to ask him about them.” This is
not in dispute. PSW Navidad testified she did not ask father about his plans
for recovery after completing the second Kaiser program. She explained she
had not done so because she and father had not yet had their monthly
meeting as of November 2. But father later testified on December 20 that
they recently had communicated, but that Navidad still had not asked him
about his recovery plans.
Therefore, the record reflects that although the Agency asked father to
provide information about his recovery (i.e., his medical records and
substance use assessment), it did not take meaningful steps to follow up on
the information given to it. Consequently, the Agency was both misinformed
about father’s progress in sobriety in the months leading up to the disposition
hearing, and uninformed about his plans to maintain sobriety in the long
run—facts that were significant to a judgment about whether the children
could be safely returned to father.
But assuming the evidence was sufficient to show the Agency made
reasonable efforts to mitigate concerns about father’s substance abuse, we do
not reach the same conclusion with respect to its efforts to mitigate concerns
about father’s deficient parenting ability. In its September 15 disposition
report, the Agency opined that father needed to “improve his parenting skills
to be able to meet his children’s needs in an appropriate manner.” Father
argues that he received no referral to parenting classes. It is true that the
Agency did not mention in any of its reports that it had referred father to
parenting classes. However, PSW Navidad testified at the disposition
hearing on November 2 that the supportive services recommended to father
in the disposition report, including parenting classes for adolescents, had
been referred to father “as of today.” To the extent there is a conflict
37
regarding whether the Agency referred father to parenting classes, it must be
resolved in favor of the Agency. (See Conservatorship of O.B., supra,
9 Cal.5th at p. 996.)
But even if the Agency did refer father to parenting classes, there is no
indication it ever followed up on the referral by verifying father’s enrollment
or discussing with him his progress in those classes. It is difficult to
comprehend the purpose of referring a parent for classes with no
investigation into the parent’s progress or lack thereof, particularly in a case
where the juvenile court was concerned about father’s parenting ability just
as much as, if not more than, his substance abuse issues.
Further, neither the Agency’s reports nor testimony from its social
workers specified when the referral to parenting classes was made. The
earliest reference in the record to father’s enrollment in parenting classes is
in his trial brief filed on October 27, days before the disposition hearing. In
any event, it is safe to say there is no evidence that the referral to parenting
education was made promptly after the children were detained, thereby
providing father with sufficient time and opportunity to make meaningful
progress before the disposition hearing. Indeed, as discussed above, we may
infer that father was not too far into his parenting classes as of the
disposition hearing, considering his testimony that he was still enrolled in
classes as of December 18 and that he was still learning to recognize some
areas in his parenting that he had yet to work on. Had the parenting
education referral been made earlier, father could well have made further
progress in improving his parenting skills.
Moreover, and relatedly, it was unreasonable for the Agency not to
follow up with father regarding his progress in individual therapy and
38
counseling, services that the court posited could have helped father address
his poor decisionmaking.
In sum, although the Agency may have referred father to various
services, it does not appear on this record that it assisted him in any
meaningful way to avoid the children’s removal from his custody. We find no
substantial evidence to support the juvenile court’s finding that reasonable
efforts were made to prevent or eliminate the need for removal.
As stated above, under section 361, subdivision (e), the juvenile court
may not order a child removed from parental custody without finding that
reasonable efforts were made to prevent or eliminate the need for removal.
Because we conclude the juvenile court’s finding in this regard is not
supported by substantial evidence, we reverse the disposition order and
remand the matter for a new disposition hearing. On remand, the juvenile
court is to make its decision based on the facts existing at the time of the new
disposition hearing. (See In re Ashly F. (2014) 225 Cal.App.4th 803, 811.)
DISPOSITION
The jurisdiction findings are affirmed. The disposition order is
reversed and remanded for a new disposition hearing in compliance with
section 361 and the views expressed in this opinion.
RICHMAN, J.
WE CONCUR:
STEWART, P. J.
DESAUTELS, J.
39
Filed 10/29/2024; after nonpublished opinion filed 10/8/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re H.B. et al., a Person
Coming Under the Juvenile
Court Law.
SAN FRANCISCO HUMAN A169493
SERVICES AGENCY,
(San Francisco City &
Plaintiff and County Super. Ct. Nos.
Respondent, JD23-3241, JD23-3241A)
v.
ORDER CERTIFYING
H.B.,
OPINION FOR
Defendant and PUBLICATION
Appellant.
[NO CHANGE IN
JUDGMENT]
THE COURT:
The opinion in the above-entitled matter, filed on October
8, 2024, was not certified for publication in the Official Reports.
After the court’s review of a request under California Rules of
Court, rule 8.1120, and good cause established under rule 8.1105,
1
it is hereby ordered that the opinion should be published in the
Official Reports.
Dated: _______________________________
Stewart, P. J.
2
San Francisco City & County
Trial Judge: Hon. Braden C. Woods
Patricia K. Saucier, under appointment by the Court of Appeal
for Defendant and Appellant.
David Chiu, City Attorney; Kimiko Burton and Elizabeth
McDonald Muniz for Plaintiff and Respondent.
3