Filed 3/23/16 In re Isaiah V. CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE

In re ISAIAH V., a Person Coming Under                               B267581
the Juvenile Court Law.
___________________________________                                  (Los Angeles County
                                                                     Super. Ct. No. DK10590)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

      Plaintiff and Respondent,

         v.

JOSE V.,

      Defendant and Appellant.



         Appeal from an order of the Superior Court of Los Angeles County. Debra
Losnick, Commissioner. Reversed and remanded.
         Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County
Counsel, and Jeanette Cauble, Principal Deputy County Counsel, for Plaintiff and
Respondent.
                                                     __________
       Jose (Father) appeals from the juvenile court’s jurisdictional and dispositional
orders regarding his son, Isaiah. Father argues that substantial evidence does not support
the jurisdictional finding and that, as a noncustodial parent, he was entitled to placement
consideration under Welfare and Institutions Code section 361.2.1 Because the record
contains no evidence that Father placed Isaiah at risk of serious physical harm, the
jurisdictional order is reversed. Because Father is Isaiah’s noncustodial parent, we
remand the case to the juvenile court to hold a disposition hearing regarding Isaiah’s
placement with Father under section 361.2.
                        FACTS AND PROCEEDING BELOW
       On March 19, 2015, the Department of Children and Family Services (DCFS)
received a referral alleging severe neglect and emotional abuse of Isaiah (age 6) by his
mother, Sylvia (Mother).2 At the time, Isaiah lived with Mother, her two adult children
and a family friend.
       Mother reported that Father was in prison. Mother and Father were living together
at the time of Isaiah’s conception and birth, but ended their relationship in 2013. Father
had two older children who lived with their paternal grandmother under legal
guardianship.
       On March 30, 2015, DCFS filed a dependency petition pursuant to section 300,
subdivision (b) alleging that Mother failed to protect Isaiah by creating an unsafe,
dangerous and detrimental home environment. At a detention hearing the same day, the
court ordered the removal of Isaiah from Mother and placed him with his paternal
grandmother.
       On May 5, 2015, the social worker interviewed Father by telephone. Father
reported that all his criminal history involved drug sales but not consumption, and,
although he was not a drug addict or drug user, he was willing to attend a drug treatment
program because he wanted to gain custody of Isaiah. Father admitted a domestic

1
       All statutory references are to the Welfare and Institutions Code.
2
       Isaiah’s mother is not a party to this appeal and will be mentioned only where
relevant to Father’s appeal.

                                             2
violence arrest concerning Mother in 2009, but their relationship ended “ ‘a long time
ago,’ ” and he planned to marry his current girlfriend when he was released from prison
in June 2015.
       On May 12, 2015, DCFS filed a first amended petition, adding an allegation,
under section 300, subdivision (b), that Father failed to protect Isaiah, based on Father’s
criminal history and purported substance abuse.3
       On June 17, 2015, Father was released from custody and, the following week,
contacted the social worker to arrange visits with Isaiah. Father reported that he had
completed a 90-day anger management course and a parenting program while
incarcerated and provided the social worker with the certificates of completion for both.
He also reported that he was on probation for one year and was required to drug test
twice a month and meet with his probation officer regularly.
       On June 29, 2015, Father attended the jurisdiction hearing, and the court appointed
him counsel. He denied the allegations of the first amended petition. The court set trial
for July 21, 2015.
       In preparation for trial, DCFS reported that Father had recently twice tested
negative for drugs. He was working full time and residing with his girlfriend. The social
worker conducted a home visit and found the residence to be clean and organized.
A spare room had two beds, which Father’s older children used when they came for
visits. Father planned to put a third bed in the room for Isaiah. The social worker found
that the home was appropriate for visits and Father’s girlfriend had already been
approved by DCFS as a monitor. Father had been consistently visiting Isaiah.




3
       Specifically, DCFS’s first amended petition alleged that Father failed to
protect Isaiah because he “has a history of substance abuse and a criminal history of
possession/purchase sale of narcotics/controlled substances which renders the father
unable to provide regular care of the child. The father’s substance abuse and criminal
history related to drugs endangers the child’s physical health and safety, creates a
detrimental home environment and places the child at risk of serious physical harm,
damage, danger and failure to protect.”

                                             3
       DCFS also opined that Father’s lifestyle was “unknown” due to his recent release
from prison. In addition, his most recent criminal conviction involved drug related
charges, and he had not yet participated in any drug programs. Therefore, it was
premature to release Isaiah to Father.
       On July 21, 2005, the court conducted both a jurisdictional and dispositional
hearing. DCFS requested that the court sustain the petition as amended, arguing that
Father had only recently been released from custody, where he had been incarcerated on
drug-related charges. Father’s attorney requested that the allegation regarding Father be
dismissed, arguing that DCFS had failed to meet its burden that Father’s criminal history,
which was based on sales/possession of drugs rather than personal use, placed Isaiah at
substantial risk. Moreover, Father’s home was appropriate and Isaiah’s brothers had
stayed there for weekend visits.
       The court sustained the amended petition, noting that even if Father was only
convicted of transporting and selling drugs, Isaiah was still at risk due to Father’s
criminal history. The court declared Isaiah a dependent and removed him from parental
custody under section 361, subdivision (c), and ordered reunification services, random
drug testing of Father, counseling to address criminal behavior, and monitored visitation
for Father.
       Father timely appealed.
                                         DISCUSSION
I.     Jurisdiction
       Father argues that substantial evidence does not support the court asserting
jurisdiction in relation to him. We agree.
       Section 300, subdivision (b) provides a basis for jurisdiction if the child “has
suffered, or there is a substantial risk the child will suffer, serious physical harm or illness
caused by the parent’s inability to provide regular care for the child.” (In re James R.
(2009) 176 Cal.App.4th 129, 135.) A jurisdictional finding under section 300,
subdivision (b) requires “(1) neglectful conduct by the parent in one of the specified
forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a

                                               4
‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th
814, 820.) “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.”
(In re Rocco M., supra, 1 Cal.App.4th at p. 823.)
       The only evidence that the court and respondent relied on to support jurisdiction
was Father’s past drug related history. But a parent’s past conduct does not establish
a risk to the child unless there is reason to believe that the endangering conduct
will continue into the future. (See In re Alysha S. (1996) 51 Cal.App.4th 393, 399;
In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) Here, there was no such evidence.
Indeed, the record demonstrates, and the court found, that rather than returning to past
patterns of behavior, Father “made progress.” While incarcerated, he completed anger
management and parenting classes, and, since his release, had tested negative for drugs,
was working full time, living in a child-appropriate, safe environment, in a stable
relationship and consistently visited Isaiah and his brothers. As a result, there was no
basis to assert jurisdiction over Isaiah based upon Father’s conduct.
II.    Dispositional Order
       Father contends that the court improperly denied him custody of Isaiah. As a
noncustodial parent at the time of the qualifying events, Father argues that he was entitled
to placement consideration under section 361.2. Instead, the court erroneously applied
section 361, subdivision (c).4 We agree.
       Section 361.2, subdivision (a), provides in part that when a court orders removal
of a child pursuant to section 361, it “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.” (Italics added.) If the parent requests custody, the court


4
     It is undisputed that Isaiah resided with Mother and was in her custody when
DCFS filed its petition in this case.

                                              5
should place the child with the parent unless it would be detrimental to do so. (§ 361.2,
subd. (a).)
       Here, the court denied placement with Father, the noncustodial parent, based upon
the identical, insufficient grounds upon which it based its jurisdictional finding: Father’s
criminal history and presumed drug use. Neither criminal history nor presumed drug use,
based upon prior drug convictions, provides the clear and convincing evidence the court
needed to find that Isaiah’s placement with Father would be detrimental.5 Accordingly,
we reverse the dispositional order and remand for a new hearing under section 361.2,
which requires a finding of detriment based on clear and convincing evidence. Father’s
criminal history and presumed drug use cannot alone serve as a basis for the court to deny
placement.
                                      DISPOSITION
       The jurisdictional and dispositional orders are reversed. The case is remanded
to the juvenile court to hold a new dispositional hearing to consider placing Isaiah with
Father under section 361.2.
       NOT TO BE PUBLISHED.



                                                         ROTHSCHILD, P. J.
We concur:



                     JOHNSON, J.



                     LUI, J.




5
      Because we reverse the court’s dispositional order and remand for a new hearing,
we need not consider the court’s order requiring Father to participate in a substance abuse
program and denying his request for unmonitored visitation.

                                             6
