Filed 7/16/14; pub. order 8/15/14 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                              DIVISION EIGHT


In re CHRISTOPHER M., a Person                          B251097
Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY                                      (Los Angeles County
DEPARTMENT OF CHILDREN AND                              Super. Ct. No. CK85289)
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

CHRISTOPHER M., SR.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court of Los Angeles County.
Stephen Marpet, Juvenile Court Referee. Reversed and remanded.

         Karen B. Stalter, under appointment by the Court of Appeal, for Appellant.

         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Sarah Vesecky, Deputy County Counsel, for Respondent.


                                     __________________________
        Christopher M., Sr., (father) appeals from the order adjudicating his son,
Christopher M., (Christopher) a dependent child pursuant to Welfare and Institutions
Code section 300, subdivisions (b) and (g) and the ensuing disposition order.1 Father
contends there was no substantial evidence to support jurisdiction based on father’s
alleged conduct. We reverse and remand.

                   FACTUAL AND PROCEURAL BACKGROUND

        Christopher is the youngest of five half-siblings: S. (born in 1994), David (born in
1999), Ruben (born in 2000) and Devin (born in 2004).2 Mother and father were married
but father was incarcerated when Christopher was born in December 2006.3 Father is
identified on Christopher’s birth certificate. Mother did not maintain contact with father
after she discovered that he had been intimate with another woman before he went to
prison. Unbeknownst to mother, father obtained a divorce from mother sometime in late
2010 or early 2011 while he was still incarcerated and in 2011 father remarried.
        Meanwhile, father was still incarcerated on November 17, 2010, when Christopher
and his half-siblings came to the attention of DCFS as the result of a referral alleging that
mother physically abused then six-year-old Devin. All five children were detained.
Mother denied knowing father’s whereabouts (or the whereabouts of the half-siblings’
fathers). DCFS filed a petition which, as to father, alleged he failed to provide


1       All future undesignated statutory references are to the Welfare and Institutions
Code.

2      The half-siblings each have a different father. Except for Christopher’s, none of
the other fathers participated in the dependency proceedings. All of the half-siblings
lived with mother, except for Serina, who lived with maternal grandmother.

3      In 1996, father was arrested and later convicted of second degree murder but in
2006, the conviction was reduced to manslaughter and he was sentenced to 10 years time
served. Mother was pregnant with Christopher in June 2006, when father was arrested
for criminal threats and sentenced to 92 months in prison. After violating parole in June
2007, father was incarcerated again.


                                              2
Christopher with the necessities of life (paragraphs b-9, g-5) (§ 300, subds. (b) & (g)).4
All five children were placed with maternal grandmother.
       Paternal grandmother appeared at the adjudication hearing on January 26, 2011,
and informed the juvenile court that father was in prison. The hearing was continued to
March 8, 2011, for father’s appearance. The next day, father signed a form waiving his
right to appear, but checked the box authorizing his attorney to represent him at the
hearing.
       According to the report for the continued adjudication hearing, father expected to
be released from prison in October 2012. While incarcerated, father had seen
Christopher about six times. He had not had any relationship with mother since 2006.
Father wanted paternal grandmother to represent him in the dependency proceedings, and
wanted Christopher placed in a safe place, with family. Father requested visitation at the
prison. Paternal grandmother and a paternal uncle appeared at the March 8, 2011
adjudication hearing. Finding father to be only an alleged father, the juvenile court did
not appoint counsel to represent him. It sustained the failure to provide allegations of the
petition relating to father and ordered no reunification services for him. Paternal
grandmother was given overnight and weekend visits with Christopher.
       In September 2011 letters to the juvenile court judge and the social worker, father
asked for a court-appointed attorney. Father asked to be reunified with Christopher. He
was concerned that mother was not progressing in her case plan and maternal
grandmother’s deteriorating health made Christopher’s placement with her not in his best
interests. Father asked that Christopher be placed with paternal grandmother and that
father receive reunification services. Although his prison did not offer parenting classes,
father described other relevant programs in which he had participated because he
believed they would make him a better parent.

4      Similar allegations were made as to all five fathers. As to mother, the sustained
petition alleged she physically abused Devin (paragraphs b-1 & b-2); mother and her
male companion engaged in a physical altercation in the presence of the children
(paragraph b-4). Father does not challenge jurisdiction based on mother’s conduct and
mother is not a party to the appeal.

                                             3
       Mother stopped visiting the children in March 2012. In mid-April 2012, seven-
year-old half-sibling Devin was hospitalized and placed on a three-week psychiatric hold
after he became so angry when asked to share a toy with Christopher that he bit
Christopher, physically attacked maternal grandmother and attacked both the social
worker and police officers. Diagnosed with Disruptive Behavior Disorder, Mood
Disorder NOS and Impulse Control Disorder NOS, Devin was prescribed medication and
returned to maternal grandmother’s home. On April 22, 2012, mother was arrested for
second degree robbery.
       According to the report for the May 23, 2012 status review hearing, father had
written letters to Christopher, who was then five years five months old. A contested
section 366.22 permanency review hearing was set for July 24, 2012. The report for that
hearing stated that mother was homeless and wanted maternal grandmother appointed the
children’s legal guardian or, alternatively, that maternal grandmother adopt them.
Following the hearing, a section 366.26 permanent plan selection and implementation
hearing was set for November 20, 2012. The juvenile court ordered DCFS to address
visitation for paternal grandmother. The grandmothers subsequently agreed upon bi-
weekly weekend visits for paternal grandmother, and to split holidays.
       Father was released from prison on October 23, 2012. After DCFS learned that
father was seeing Christopher during paternal grandmother’s visits, DCFS arranged
monitored visits for father on November 7 and November 13, 2012. DCFS reported that
father was attentive and patient during these visits. Christopher was becoming receptive
to father’s presence. Father appeared at the .26 hearing and was appointed counsel. The
hearing was continued to March 19, 2013, pending which father was given twice weekly
monitored visits and DCFS was ordered to assess father’s status in the case.
       Over the next five months, father visited Christopher five times. On March 19,
2013 (the day of the .26 hearing), the juvenile court granted father’s section 388 petition
seeking to be found Christopher’s presumed father, and to have the jurisdictional and
dispositional orders vacated on the grounds that father had not received proper notice of
the hearings on November 23, 2010 (detention), January 26, 2011

                                             4
(jurisdiction/disposition), and March 8, 2011 (continued jurisdiction/disposition).
Adjudication of the section 300 petition’s allegations against father was continued to May
21, 2013.
       Father’s visitation became more consistent. Father’s work schedule prevented him
from attending a family meeting to discuss visitation but he told the social worker that he
was happy with the existing visitation schedule and felt paternal grandmother could
adequately represent his interests at the meeting. When the social worker arrived
unannounced at father’s visit on April 25, Christopher was with a paternal uncle and
father was not present. When father arrived 45 minutes later, accompanied by a female
child about the same age as Christopher, father told the social worker that he was delayed
at work. The social worker observed that father interacted more with the female child
than with Christopher. Christopher referred to father as “Big Chris” and did not
recognize him as his father; Christopher was not affectionate toward father and seemed
more comfortable with the paternal uncle. The adjudication hearing was continued so
that father and Christopher could participate in joint counseling.
       On August 2, 2013, father relocated to San Diego to live with paternal
grandmother. By the time of the continued adjudication hearing on August 28, 2013,
father had obtained employment with a construction company and had enrolled in an
anger-management program in San Diego. Father’s Los Angeles therapist, whom father
had been seeing since February 2013, gave father a positive prognosis; father had located
a new therapist in San Diego. Father had been visiting consistently with help from his
mother and brother, who together managed to get Christopher from Los Angeles to San
Diego and back again (because father was on probation in San Diego, he was apparently
not allowed to travel to Los Angeles). Christopher, then six years eight months old, told
the social worker that he did not enjoy spending time with father. DCFS recommended
continued reunification services to give father more time to bond with Christopher.
Father did not testify at the adjudication hearing on August 28, 2013. His counsel argued
that circumstances had changed in the almost two years since the petition had been filed:
“The father is not currently incarcerated. He’s willing to and able to take custody of his

                                             5
child and that will also be his request.” The juvenile court sustained paragraphs b-9 and
g-5 of the petition, which both alleged that father failed to provide Christopher with the
necessities of life including food, clothing, shelter and medical care. Father timely
appealed.

                                        DISCUSSION

A.     Father’s Appeal Is “Justiciable”

       DCFS contends we should decline to address father’s challenge to the
jurisdictional findings based on his conduct, because there is no challenge to the
jurisdictional findings based on mother’s conduct. We elect to exercise our discretion to
consider father’s appeal because the challenged findings will have consequences to father
beyond jurisdiction.
       “An important requirement for justiciability is the availability of ‘effective’
relief—that is, the prospect of a remedy that can have a practical, tangible impact on the
parties’ conduct or legal status.” (In re I.A. (2011) 201 Cal.App.4th 1484, 1490-1491.)
The juvenile court exercises jurisdiction with respect to a child when the child has been
endangered in any manner described by section 300; it acquires personal jurisdiction over
the child’s parents through proper notice. (Id. at p. 1491.) “Parental personal jurisdiction
allows the court to enter binding orders adjudicating the parent’s relationship to the
child.” (Ibid.; see § 361, subd. (a)(1) [“In all cases in which a minor is adjudged . . . a
person described by section 300, the court may limit the control to be exercised over the
dependent child by any parent . . . .”].) Where, as here, a father challenges the
evidentiary support for jurisdictional findings based on his conduct, but does not
challenge the jurisdictional findings based on the mother’s conduct, the appellate court
may decline to address father’s challenge. This is because the juvenile court “will still be
entitled to assert jurisdiction over the minor on the basis of the unchallenged allegations.
Further, the court will still be permitted to exercise personal jurisdiction over Father and
adjudicate his parental rights, if any, since that jurisdiction is derivative of the court’s


                                               6
jurisdiction over the minor and is unrelated to Father’s role in creating the conditions
justifying the court’s assertion of dependency jurisdiction.” (I.A. at p. 1492.) However,
where the jurisdictional finding could have other consequences beyond jurisdiction – e.g.
where the finding may exclude the parent as a placement option – the appellate court has
discretion to consider the question. (In re Drake M. (2012) 211 Cal.App.4th 754, 762-
763.)
        Relevant to this case is section 361.2, subdivision (a), which governs placement of
a dependent child with a noncustodial parent.5 It provides: “When a court orders
removal of a child pursuant to Section 361, the court shall first determine whether there is
a parent of the child, with whom the child was not residing at the time that the events or
conditions arose that brought the child within the provisions of Section 300, who desires
to assume custody of the child. If that parent requests custody, the court shall place the
child with the parent unless it finds that placement with that parent would be detrimental
to the safety, protection, or physical or emotional well-being of the child.” Placement
under section 361.2 is a two-step process. Under subdivision (a) of that section, the
juvenile court first determines whether temporary placement with the non-custodial
parent would be detrimental to the child. Under subdivision (b), the court determines
whether the placement should be permanent and dependency jurisdiction terminated. (In
re John M. (2013) 217 Cal.App.4th 410, 420-421.)
        Although the term “nonoffending” does not appear in the text of section 361.2,
subdivision (a), some courts have recognized “an implicit nonoffending requirement in
section 361.2.” (In re John M., supra, 217 Cal.App.4th at pp. 421 et seq.; see In re
Karla C. (2010) 186 Cal.App.4th 1236, 1245 [under § 361.2, “[i]f there is no showing of
detriment, the court must order the [Department] to temporarily place the child with the
nonoffending noncustodial parent.”].) Other courts have found placement pursuant to
section 361.2, subdivision (a) does not require the noncustodial parent to also be non-

5      Section 361, subdivision (c)(1), which governs placement with a non-offending
custodial parent, is inapplicable because Christopher never lived with father. (In re I.A.,
supra, at p. 1494.)

                                             7
offending. (See, e.g., In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1504 [§ 361.2,
subd. (a) does not exclude from consideration for placement a noncustodial parent with a
history of prior involvement with child dependency proceedings]; In re V.F. (2007)
157 Cal.App.4th 962, 966 [“section 361.2 does not distinguish between an offending and
nonoffending parent”], superseded by statute on other grounds, as stated in In re
Adrianna P. (2008) 166 Cal.App.4th 44, 57–58.). But even assuming that section 361.2,
subdivision (a) does not include an implicit “non-offending” requirement, a jurisdictional
finding based on conduct of a noncustodial parent would unquestionably be a
consideration in assessing detriment under section 361.2, subdivision (a). (Nickolas T., at
p. 1506, fn. 10.)
       Because jurisdictional findings based on father’s conduct could reasonably have
consequences to consideration of father for placement under section 361.2,
subdivision (a), we exercise our discretion to consider father’s challenge to those
jurisdictional findings.

B.     The Jurisdictional Findings Against Father Were Not Supported By Substantial
       Evidence

       Father contends no substantial evidence supports the jurisdictional findings under
section 300, subdivisions (b) and (g) based on his conduct. We agree.
       We begin with the standard of review. “At the jurisdictional hearing, the
dependency court’s finding that a child is a person described in section 300 must be
supported by a preponderance of the evidence. (§ 355, subd. (a); [citation].) We review
the dependency court’s jurisdictional findings for substantial evidence, and review the
evidence in the light most favorable to the dependency court’s findings and draw all
reasonable inferences in support of those findings.” (In re John M., supra,
217 Cal.App.4th at p. 418.) We turn next to the substantial evidence question.

       1.     Section 300, Subdivision (b)




                                             8
       In relevant part, there is a basis for jurisdiction under section 300, subdivision (b)
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 willful or negligent failure of the parent or
guardian to provide the child with adequate food, clothing, shelter, or medical treatment
. . . . The child shall continue to be a dependent child pursuant to this subdivision only so
long as is necessary to protect the child from risk of suffering serious physical harm or
illness.” (§ 300, subd. (b), italics added.)
       To establish jurisdiction under section 300, subdivision (b), the risk of serious
physical harm or illness from failure to support must exist at the time of the adjudication
hearing. (Maggie S. v. Superior Court (2013) 220 Cal.App.4th 662, 673 (Maggie S.).) In
Maggie S., the mother was incarcerated while pregnant with A.C. Before A.C. was born,
mother designated a maternal uncle and a family friend, Mary K., as prospective
caregivers for A.C. Five days after A.C. was born, the maternal uncle told the social
worker that he did not want to be A.C.’s caregiver. But Mary K. said she was willing to
take A.C. (Id. at pp. 666, 672.) The detention and jurisdiction/disposition reports
inaccurately stated that mother named Mary K. only after the maternal relatives declined
to take A.C., and that the social worker was unable to make contact with Mary K. Based
on those inaccurate reports, the juvenile court found A.C. to be a person described by
section 300, subdivisions (b) and (g) because mother “ ‘was incarcerated and “made an
inappropriate plan for the child’s ongoing care and supervision in that the child’s
maternal uncle, and the maternal grandparents, are unwilling to provide care of the
child.” ’ ” (Maggie S., at pp. 672, 667.) The appellate court reversed, reasoning that
jurisdiction under section 300, subdivision (b) was not supported at the time of the
hearing because mother had designated Mary K., Mary K. was willing to care for A.C.
and there was no evidence that A.C. would be at substantial risk of serious physical harm
or illness based on failure to provide care if placed with Mary K. (Id. at p. 673.)
       Here, the juvenile court sustained paragraph b-9 of the petition, which alleged
“[father] has failed to provide the child with the necessities of life including food,
clothing, shelter and medical care. The father’s whereabouts is unknown. Such failure to

                                                9
provide for the child on the part of the father endangers the child’s physical and
emotional health, safety and well being and places the child at risk of physical and
emotional harm and damage.” None of these allegations as to father were supported by
the evidence available to the juvenile court at the time of the jurisdiction/disposition
hearing on August 28, 2013. By that date, father was out of prison, employed, living
with paternal grandmother in San Diego (who had been having unmonitored weekend
visits with Christopher for some time) and was consistently visiting Christopher. In
addition, father was in an anger management program and individual counseling, and was
willing to pay for conjoint counseling with Christopher. Most significantly, father
wanted custody of Christopher. There was no evidence that, at the time of the
jurisdiction/disposition hearing, father was unwilling to provide Christopher with the
necessities of life. As such, there was no evidence to support the finding of jurisdiction
under section 300, subdivision (b) based on father’s alleged failure to support.

       2.     Section 300, Subdivision (g)

       Section 300, subdivision (g) provides a basis for jurisdiction if the child “has been
left without any provision for support; . . . the child’s parent has been incarcerated or
institutionalized and cannot arrange for the care of the child; or a relative or other adult
custodian with whom the child resides or has been left is unwilling or unable to provide
care or support for the child, the whereabouts of the parent are unknown, and reasonable
efforts to locate the parent have been unsuccessful.”6 (§ 300, subd. (g), italics added.)
       Section 300, subdivision (g) applies only when the parent is unable to provide or
arrange for care at the time of the hearing. (In re J.O. (2009) 178 Cal.App.4th 139, 153.)
“The statue requires proof that appellant was unable to arrange for care at the time of the
hearing, not that he had failed to do so at some prior point in time.” (In re Aaron S.


6      Although father was incarcerated when dependency proceedings began, the
petition alleged only a failure to provide support; it did not allege father was incarcerated
and unable to arrange for care, or that mother, with whom father left Christopher, was
unable to provide care or support.

                                              10
(1991) 228 Cal.App.3d 202, 210 [juvenile court erroneously focused on incarcerated
father’s failure to make arrangements for child’s care before DCFS removed child from
mother].) If the child must be removed from the custodial parent, the issue under
section 300, subdivision (g) is whether the noncustodial parent can either take physical
custody, or can arrange for another caregiver. (Id. at p. 212, fn. 10 [“under the proper
construction of [§ 300, subd. (g)], the question is whether appellant was able to arrange
for the child’s care at the time of the hearing].) In Maggie S., supra, 220 Cal.App.4th at
page 667, the appellate court found insufficient evidence to support jurisdiction under
section 300, subdivision (g), reasoning that mother’s designation of Mary K. before
A.C.’s birth, and Mary K.’s willingness to care for A.C., were sufficient to compel a
conclusion that at the time of the jurisdiction/disposition hearing, mother had arranged a
caregiver for A.C.
       Here, the juvenile court sustained paragraph g-5 of the petition, which alleged
jurisdiction under section 300, subdivision (g) based on father’s failure to provide
Christopher with the necessities of life. But the evidence was undisputed that, at the time
of the jurisdiction/disposition hearing, father was out of prison, employed and wanted
custody of Christopher. Even if the juvenile court found giving custody of Christopher to
father was not in Christopher’s best interest, there was no evidence that father could not
make other arrangements for Christopher’s care, including with the paternal grandmother
who already had an established relationship with Christopher, or even with the maternal
grandmother with whom Christopher was already placed. That placing Christopher with
father might not yet (or ever) be in Christopher’s best interests, is not relevant to the only
issue under section 300, subdivision (g) – whether father was able to arrange for
Christopher’s care at the time of the jurisdiction/disposition hearing.

                                      DISPOSITION

       The jurisdictional order as to Christopher based on father’s alleged conduct is
reversed, as is the dispositional order. The matter is remanded to the juvenile court for a
new dispositional hearing as to Christopher at which the court should consider placement

                                              11
with father pursuant to section 361.2, subdivision (a). We express no opinion on a proper
disposition order.




                                                RUBIN, J.
WE CONCUR:



              BIGELOW, P. J.



              FLIER, J.




                                           12
Filed 8/15/14
                          CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION EIGHT


In re CHRISTOPHER M., a Person                    B251097
Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY                                (Los Angeles County
DEPARTMENT OF CHILDREN AND                        Super. Ct. No. CK85289)
FAMILY SERVICES,

        Plaintiff and Respondent,

        v.

CHRISTOPHER M., SR.,

        Defendant and Appellant.




THE COURT:


        IT IS HEREBY ORDERED that the opinion filed in the above matter on July 16,
2014, is certified for publication with no change in judgment.




________________________________________________________________________
_
BIGELOW, P. J.                      RUBIN, J.                      FLIER, J.


                                            13
