Filed 11/21/18; Certified for Publication 12/13/18 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                       SECOND APPELLATE DISTRICT

                                    DIVISION FOUR

In re ISRAEL T. et al., Persons
Coming Under the Juvenile Court
Law.

LOS ANGELES COUNTY                                                B286821
DEPARTMENT OF CHILDREN                                            (Los Angeles County
AND FAMILY SERVICES,                                              Super. Ct. Nos. DK23385,
                                                                  DK23385A, DK23385B)
         Plaintiff and Respondent,

         v.

VICENTE T.,

         Defendant and Appellant.

     APPEAL from an order of the Superior Court of Los
Angeles County, Stanley Gensler, Judge. Reversed.
     Keiter Appellate Law and Mitchell Keiter, under
appointment by the Court of Appeal, for Defendant and
Appellant.
     Mary Wickham, County Counsel, Kristine P. Miles,
Acting Assistant County Counsel and Veronica Randazzo,
Deputy County Counsel, for Plaintiff and Respondent.

           ____________________________________

      Appellant Vicente T. (Father), the father of Israel and
Isabel T., appeals the juvenile court’s jurisdictional order.
The court asserted that the children fell under Welfare and
Institutions Code section 300, subdivision (b), but found no
substantial risk of serious harm to the children from the
parents’ actions, and at the dispositional phase, returned the
children to the custody of the parents, finding that the
parents did not constitute “any kind of risk to the children.”1
Father contends the court’s findings do not support the
assertion of jurisdiction. We agree and reverse the
jurisdictional order.

       FACTUAL AND PROCEDURAL BACKGROUND
      The family came to the attention of the Department of
Children and Family Services (DCFS) on June 17, 2017.
Officers from the Bell Gardens Police Department observed
Father exchanging money for a Styrofoam cup at a fast food
restaurant. Suspecting a drug transaction and observing

1     Undesignated statutory references are to the Welfare and
Institutions Code.




                               2
Father commit several traffic violations as he drove away,
police stopped him. Father exited his car and ran to his
home. Mother came out of the home, took a cup from
Father’s car, and ingested something contained inside it.
Father and Mother were arrested. Officers conducted a
search of the family home, finding baggies with trace
amounts of a substance believed to be cocaine on the floor, a
small baggie containing an off-white crystal substance
resembling cocaine or methamphetamine on a closet shelf,
and a large zip-lock bag containing marijuana.2 They
informed DCFS, who detained Israel and Isabel, then five
and three, and placed them with paternal relatives.
      Interviewed by the caseworker, Father and Mother
denied using or selling drugs. They claimed that any hard
drugs found in the home were planted by the police officers,
and that the marijuana belonged to Father’s adult son, who
had a medical marijuana card. The caseworker said they
were cooperative and found them to be dedicated and
consistent with respect to visitation. Father and Mother saw
the children and assisted with their care every day, and
continued to participate in their activities and school

2     One of the baggies was tested and found to contain .06
grams of methamphetamine. The DCFS detention report stated
that the police recovered “a pound of cocaine and marijuana
inside the child[ren]’s home.” Nothing in the police report
supports that contention. Neither Mother nor Father were
charged with drug-related offenses.




                              3
programs. Their involvement was particularly important to
Israel, who suffered from autism and required structure and
a regular daily routine. In addition, Father and Mother
volunteered to enroll in services, including parenting classes
and drug testing.3
       At the jurisdictional hearing, Father’s adult son
testified the marijuana found in the home was his. He said
that he stored it in a box above his closet, out of the reach of
his younger siblings, and that he generally locked his room
when he left it. He further testified he did not use
marijuana in the family’s home or in the presence of his
siblings. He denied observing Father or Mother use drugs of
any kind.
       Counsel for DCFS asked the court to find jurisdiction
based on drugs being left within access to the children.
Counsel for the children agreed that the presence of two
baggies containing drug residue on the floor was sufficient to
support jurisdiction. Counsel for Mother contended that the
matter should be dismissed because DCFS failed to meet its
burden of proof. Counsel for Father also argued that the
matter should be dismissed for lack of sufficient evidence.
Counsel began to argue that the court should consider
Father’s negative drug test and willingness to test further in



3    Father tested negative for all substances in July 2017;
Mother missed her scheduled test.




                                4
making its jurisdictional finding. The court interrupted her,
saying: “[t]hose are dispo issues.”
      The court found true under section 300, subdivision (b)
that there was “a . . . risk that the child[ren] will suffer . . .
physical harm,” and that Father and Mother “created an
endangering home environment for the children in that trace
amounts of methamphetamine were found in the children’s
home within access of the children.” In making its findings,
the court struck the word “substantial” before the word
“risk,” and struck the word “serious” before the word
“physical harm.” In doing so, the court stated: “I am
amending [the petition] so it will invite reversal at the Court
of Appeal.”
      Turning to disposition, the court noted that Father and
Mother continued to care for the children and to meet their
special needs, that there was “no evidence of abuse or
neglect,” and that Father and Mother had not been charged
with any drug offenses. The court stated: “I don’t believe
these parents constitute any kind of risk to the children.”
The court proceeded under section 360, subdivision (b).4 It

4     Section 360, subdivision (b) provides: “If the court finds
that the child is a person described by Section 300, it may,
without adjudicating the child a dependent child of the court,
order that services be provided to keep the family together and
place the child and the child’s parent or guardian under the
supervision of the social worker for a time period consistent with
Section 301 . . . .” As explained in In re Adam D. (2010) 183
Cal.App.4th 1250, 1260: “‘If the court agrees to or orders a

(Fn. is continued on the next page.)


                                       5
ordered Father and Mother to participate in random drug
testing for the next six months, to complete a parenting
class, and to permit no illegal drugs or substances in their
home.5 DCFS was authorized to make unannounced home
calls to monitor the family and assist the parents. The court
released Israel and Isabel to the care of Father and Mother.
This appeal followed.

                       DISCUSSION
     A child may be adjudged a dependent of the court
under subdivision (b) of section 300 if the “child has suffered,


program of informal supervision [under section 360, subdivision
(b)], it does not dismiss the dependency petition or otherwise set
it aside. The true finding of jurisdiction remains. It is only the
dispositional alternative of declaring the child a dependent that
is not made.’” (Quoting Seiser & Kumli, Cal. Juvenile Courts
Practices and Procedure (2009) § 2.124[2], pp. 2-283-2-284.) A
court’s decision to proceed with informal supervision under
section 360, subdivision (b) thus represents “a final judgment”
and “an appealable order,” permitting the parents to contest the
underlying jurisdictional finding on appeal. (In re Adam D.,
supra, at p. 1261.)
5      Under section 360, subdivision (c), if during that time, the
family is “unable or unwilling to cooperate with the services
being provided [under subdivision (b)],” DCFS may file a new
petition “alleging that a previous petition has been sustained and
that disposition pursuant to subdivision (b) has been ineffective
in ameliorating the situation requiring the child welfare
services,” and the court may hold a new disposition hearing.




                                 6
or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or
inability of his or her parent or guardian to adequately
supervise or protect the child from the conduct of the
custodian with whom the child has been left, or . . . by the
inability of the parent or guardian to provide regular care for
the child due to the parent’s or guardian’s mental illness
. . . .” (§ 300, subd. (b)(1).) A true finding under this
subdivision requires evidence of “‘“‘“serious physical harm or
illness”’”’” to the child, or “‘“‘a “substantial risk” of such harm
or illness.’” [Citations.]’” (In re D.L. (2018) 22 Cal.App.5th
1142, 1146.) Proof of this element “‘“effectively requires a
showing that at the time of the jurisdictional hearing the
child is at substantial risk of serious physical harm in the
future . . . .”’” (Ibid., italics omitted, quoting In re B.T.
(2011) 193 Cal.App.4th 685, 692.) Evidence of past conduct
may be probative of current conditions. (In re D.L., supra, at
p. 1146; accord, In re James R. (2009) 176 Cal.App.4th 129,
135-136, abrogated in part on another ground in In re R.T.
(2017) 3 Cal.5th 622.)
        DCFS bears the burden of proving that the minor
comes under the juvenile court’s jurisdiction by a
preponderance of the evidence. (In re M.R. (2017) 7
Cal.App.5th 886, 896; see § 355, subd. (a).) On appeal, “‘we
must uphold the court’s [jurisdictional] findings unless, after
reviewing the entire record and resolving all conflicts in
favor of the respondent and drawing all reasonable
inferences in support of the judgment, we determine there is



                                7
no substantial evidence to support the findings.’” (In re J.N.
(2010) 181 Cal.App.4th 1010, 1022.)
      Father contends that the court rejected the statutorily
required elements in finding that any risk of harm was not
serious or substantial, and that its failure to make the
requisite findings requires reversal. We agree.
      Respondent contends the issue has been forfeited
because of the general rule that a parent may not challenge
the sufficiency of the factual allegations in a dependency
petition on appeal if he or she did not raise the issue in the
court below. (See, e.g., In re John M. (2012) 212 Cal.App.4th
1117, 1123; In re Christopher C. (2010) 182 Cal.App.4th 73,
82.) Here, Father is not challenging the sufficiency of the
petition, but the court’s failure to make the findings required
by statute. In finding jurisdiction warranted under section
300, subdivision (b), the court struck the language stating
that the children were at “substantial” risk of “serious”
physical harm. Section 300, subdivision (b), requires the
court to find that “the child has suffered, or there is
substantial risk that the child will suffer, serious physical
harm or illness . . . .” As numerous courts have said, “section
300, subdivision (b) . . . ‘“means what it says. Before courts
and agencies can exert jurisdiction under section 300,
subdivision (b), there must be evidence indicating that the
child is exposed to a substantial risk of serious physical
harm or illness.” [Citations.]’ [Citation.]” (Maggie S. v.
Superior Court (2013) 220 Cal.App.4th 662, 673, italics
omitted, quoting In re Noe F. (2013) 213 Cal.App.4th 358,



                               8
366; accord, In re Alysha S. (1996) 51 Cal.App.4th 393, 399.)
By striking the language that stated the children were at
substantial risk of serious harm, the court made clear that it
did not believe the parents posed the level of risk to the
children that must be found to warrant assertion of
jurisdiction under subdivision (b) of section 300. This was
confirmed by the court’s comment moments later, when it
stated it did not believe Father and Mother posed “any . . .
risk” to the children.6 Accordingly, its finding that
jurisdiction was warranted must be reversed.
      Respondent cites In re Alexzander C. (2017) 18
Cal.App.5th 438 (Alexander C.), where the juvenile court
similarly excised the words “‘serious’” and “‘physical’” from
the petition, finding only a “‘risk of harm’” to the child. The
Court of Appeal concluded the father forfeited any issue
pertaining to the language of the petition or the court’s
findings by failing to object at the jurisdictional hearing. (Id.
at p. 446, fn. 3.) There, however, the juvenile court’s
dispositional order found by clear and convincing evidence
that substantial danger existed to the physical health of the
children, and that there were no reasonable means to protect
them without removal from their parents’ custody. (Id. at
p. 451.) Thus, regardless of the words used by the juvenile

6     The court’s admittedly cryptic comment that by amending
the petition, it was “invit[ing] reversal” by the Court of Appeal
also suggests some awareness of the shortcomings in its
jurisdictional findings.




                                9
court in its jurisdictional finding, there could be no question
that the court had concluded the parents’ actions posed a
significant risk to the physical safety of their children.
      Here, in contrast, the court’s own comments in issuing
the order under section 360, subdivision (b) and returning
the children to their parents refute any inference that it
found the parents posed a serious risk to their children’s
physical wellbeing. The court’s statement -- “I don’t believe
these parents constitute any kind of risk to the children” --
could not have been clearer. Thus, while the Alexander C.
court could confidently rely on the record before it to
conclude the court had, despite its interlineations, concluded
that the parents posed a significant risk to their children’s
physical health (the predicate for both its jurisdictional and
dispositional orders), the record here supports only a
contrary conclusion.
      Respondent contends that the record supports the
finding that the children were at substantial risk of serious
harm due to the evidence that baggies containing
methamphetamine residue were on the floor of the family
home. If the record does not show that the court did, in fact,
make the requisite findings, it is immaterial whether the
evidence might have supported such findings. The test for
substantial evidence is applied to the court’s actual finding.
(See In re Abram L. (2013) 219 Cal.App.4th 452, 463
[inappropriate for appellate court to imply findings where
juvenile court failed to make express findings required by
statute]; Kemp Bros. Construction, Inc. v. Titan Electric



                              10
Corp. (2007) 146 Cal.App.4th 1474, 1478 [where respondent
argues for affirmance based on substantial evidence, record
must show the court actually performed its factfinding
function].) On this record, we cannot confidently say the
court made the findings required by statute.




                             11
                      DISPOSITION
     The jurisdictional finding is reversed.




                                        MANELLA, P. J.

We concur:




COLLINS, J.




MICON, J.*


*Judge of the Los Angeles County Superior Court assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.




                              12
Filed 12/13/18
                      CERTIFIED FOR PUBLICATION


       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                       SECOND APPELLATE DISTRICT

                                 DIVISION FOUR

In re ISRAEL T. et al., Persons
Coming Under the Juvenile Court
Law.

LOS ANGELES COUNTY                              B286821
DEPARTMENT OF CHILDREN                          (Los Angeles County
AND FAMILY SERVICES,                            Super. Ct. Nos. DK23385,
                                                DK23385A, DK23385B)
       Plaintiff and Respondent,
                                                ORDER CERTIFYING
       v.                                       OPINION FOR
                                                PUBLICATION
VICENTE T.,

       Defendant and Appellant.


THE COURT:*
       The opinion in the above-entitled matter, filed on November 21,
2018, was not certified for publication in the Official Reports. For good
cause it now appears that the opinion should be certified for publication
in its entirety in the Official Reports and it is so ordered.




MANELLA, P. J.,                  COLLINS, J.                      MICON, J.**
______________________________________
**Judge of the Los Angeles County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution

                                          1
