Filed 4/6/15 In re D.B. CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)


In re D.B. et al., Persons Coming Under the Juvenile                                         C076161
Court Law.

SACRAMENTO COUNTY DEPARTMENT OF                                                       (Super. Ct. Nos.
HEALTH AND HUMAN SERVICES,                                                         JD233972 & JD233973)

                   Plaintiff and Respondent,

         v.

J.E.,

                   Defendant and Appellant.




         J.E. (mother) appeals from the juvenile court’s dispositional order bypassing
reunification services to her as to minors D.B. and M.B., Jr. (Welf. & Inst. Code,
§ 361.5, subd. (b)(10), hereafter section 361.5(b)(10).)1 Mother contends: (1) the statute
does not apply because she is not the parent from whom custody of the minors’ half
sibling was removed in the prior dependency; (2) the record does not establish the




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

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reasons for the prior dependency, so the juvenile court could not make the requisite
findings by clear and convincing evidence as to whether mother had made the reasonable
efforts required under the statute; (3) the prior services received by mother do not warrant
denial of services in this case; (4) mother’s efforts toward reunification prior to the
disposition hearing are evidence that reunification efforts would not be wasted; (5) the
social worker’s summary of the services provided to mother in a prior proceeding did not
constitute substantial evidence; (6) because reunification services were ordered for the
minors’ presumed father even though he also had a prior failed reunification with the
minors’ half sibling, it was improper not to order services for mother.
       The Sacramento County Department of Health and Human Services (department)
responds that mother has forfeited her statutory claim, but even if properly before us it
lacks merit; furthermore, mother did not meet her burden under section 361.5,
subdivision (c), to prove that granting services to her would be in the minors’ best
interest.
       We conclude that mother’s statutory claim is not forfeited and
section 361.5(b)(10) is facially inapplicable. We shall remand with directions that the
juvenile court vacate its order bypassing services to mother and enter a new order
granting services. We do not address the parties’ remaining contentions.
                  FACTUAL AND PROCEDURAL BACKGROUND
       The Section 300 Petition
       On October 31, 2013, the department filed a petition under section 300,
subdivisions (b) and (j), as to D.B. (born in Mar. 2012) and M.B., Jr. (born in May 2011).
The petition alleged: (1) Mother had more than once left the minors in the care of an
inappropriate care provider with a significant history of Child Protective Services (CPS)
contacts and substance abuse. (2) On April 25, 2013, the minors’ half sibling K.B. was
declared a ward of Yuba County Juvenile Court due to parental substance abuse and
mother’s failure to provide adequate care and supervision for the minors. (3) On

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October 23, 2013, the Yuba County Juvenile Court ordered the termination of mother’s
reunification services as to K.B. (4) The minors’ half siblings M.B. (born in May 2003)
and A.B. (born in Mar. 2002) were made dependents of the Sacramento County Juvenile
Court at an unspecified date; the parental rights of the father M.B. were terminated on
October 27, 2004; and the minors were subsequently adopted.
         The Detention Report
         According to the detention report, mother went out of town, leaving the minors
with an acquaintance from Loaves and Fishes, Joyce G., who had an extensive history of
CPS and juvenile court involvement due to substance abuse. On her return, mother failed
to pick up the minors, then denied knowing anything about Joyce G. The minors were
found safe and sound after the police located an address for Joyce G.
         Mother, who was homeless, was found at a Motel 6 in downtown Sacramento in
the company of an adult male, A.H., before the minors were located. She said she had
been living there with the minors, A.H., and two other people in a single room since
October 20, 2013. She and A.H. had gone to Reno on October 23 to try to find work and
a place to live; before leaving, she left the minors with Joyce G. Joyce G. gave mother a
phone number but not an address. When mother returned to Sacramento on October 26,
she called Joyce G., but the phone had been cut off. Mother looked for her near a
homeless camp, but did not find her.
         Mother and M.B., the minors’ biological father, received informal supervision
services beginning in May 2011, following the birth of M.B., Jr. During the pregnancy,
mother tested positive for methamphetamine, though she claimed she had not used it in
two years. Mother and the minor tested negative for illegal substances at the time of
birth.
         M.B. said he and mother had been together for four years. He denied substance
abuse. However, he was discharged from early intervention family drug court in
December 2011, following two positive tests for methamphetamine. Mother’s case was

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closed in February 2012 after she completed her case plan objectives and moved into
transitional housing with M.B., Jr., but she was soon discharged from the transitional
housing because she had a new boyfriend (K.L.) visiting, in violation of the rules.2
       According to documentation from the Yuba County juvenile dependency case, the
minors’ half sibling, K.B., was removed from the custody of her father, J.B., in January
2013.3 In April 2013, the juvenile court ordered reunification services for mother and
J.B. However, mother failed to contact the social worker for six months or to engage in
her case plan. Mother had also failed to contact the social worker in the present case to
inquire about K.B.’s safety and welfare and “had shown no interest in the child.” On
October 23, 2013, the Yuba County Juvenile Court terminated mother’s reunification
services.
       Initial Hearing
       On November 1, 2013, the juvenile court detained the minors and set a
prejurisdiction status hearing for December 2, 2013.
       Jurisdiction/Disposition Report
       The jurisdiction/disposition report recommended that the juvenile court place the
minors in out-of-home care and deny reunification services to mother.




2 K.L., the minors’ alleged father, was the father of another half sibling of the minors in
the present case. He was not their biological father, but his name was on D.B.’s birth
certificate as the father. He began living with mother when she was pregnant with D.B.,
after mother separated from M.B. At disposition, the juvenile court declared him the
minors’ presumed father and ordered reunification services for him. He is not a party to
this appeal.
3 The detention report does not state that mother was living with J.B. or sharing custody
of K.B. with him when K.B. was removed from J.B.’s home. On the contrary, it states
that when K.B.’s case came to the attention of Yuba County CPS in November 2012,
mother was homeless in Fort Bragg.

                                             4
       The report recommended bypassing reunification services to mother under
section 361.5(b)(10), which provides that a parent is not entitled to services if “the court
ordered termination of reunification services for any siblings or half siblings of the child
because the parent . . . failed to reunify with the sibling or half sibling after the sibling or
half sibling had been removed from that parent . . . pursuant to Section 361 and that
parent . . . is the same parent . . . described in subdivision (a) and that, according to the
findings of the court, this parent . . . has not subsequently made a reasonable effort to
treat the problems that led to removal of the sibling of half sibling of that child from that
parent . . . .”4 (Italics added.) The report stated: “Available Court Minute Orders
indicate the mother was Court-ordered reunification services on April 25, 2013 as to the
half-sibling, [K.B.] The mother’s Court-ordered reunification services included, but were
not limited to, mental health counseling and substance abuse services. However,
according to the Status Review Report written by the mother’s Social Worker, Cheryce
Williams, the mother did not make any contact with her to request visitation or to begin
her case plan services. Social Worker Williams reported the mother was provided with
the Notice of Status Review Hearing on October 3, 2013 but still failed to contact her to
inquire about the welfare and safety of the child. Social Worker Williams indicated the
mother had shown no interest in reunifying with the child. On October 23, 2013, the
mother’s reunification services were terminated by the Yuba County Juvenile Court due
to her non-compliance with her Case Plan, lack of progress, and lack of visitation with
the child. Based on the available evidence, the mother has continued to engage in a




4 Under section 361, the removal of a child from the child’s parent is defined as removal
from the parent’s physical custody (§ 361, subd. (c), (c)(1), (c)(2), (c)(3)) or simply as
removal from the parent (§ 361, subds. (c)(4), (e)(1)). Legal custody, as distinct from
physical custody, is not mentioned in the statute. In any event, as will appear, the Yuba
County Juvenile Court expressly found that K.B.’s father had physical custody of her
when the proceeding began.

                                               5
lifestyle that places the children at substantial risk of physical harm and/or abuse. The
mother not only practices dangerous parenting, but she is unable to care for the children
at this time due to her homelessness and inability to provide adequate shelter for the
children. The mother admitted to law enforcement that she had been using
methamphetamine despite the fact that she denied she has a substance abuse problem
when interviewed by the undersigned. The mother did not test as directed and her
behaviors, both during the half-sibling’s case and the current situation[,] are those of a
person with a substance abuse problem. There is no evidence the mother has participated
in any services or made reasonable efforts to treat the concerns that prompted the Yuba
County Dependency Court to order the mother to complete reunification services.” The
report did not discuss whether mother had custody of K.B. when the Yuba County
proceedings began.
       The report also found that it would not be in the minors’ best interest to reunify
with mother. (§ 361.5, subd. (c).) The probability of reunifying with the one- and two-
year-old minors in the next six months was very low, given mother’s homelessness,
unemployment, and possible substance abuse. In the Yuba County case she had made no
effort to begin services or visit K.B. during the prior six months, leading to the
termination of services. She blamed her social worker in that case for her own failures.
In the present case, she had resisted beginning services and drug testing and had not yet
visited the minors.5




5 The report also recommended that the juvenile court bypass services to presumed
fathers M.B. and K.L. under section 361.5, subdivisions (b)(10) and/or (b)(11), and find
that it would not be in the minors’ best interest under section 361.5, subdivision (c), to
reunify with them. In an addendum report, however, the department recommended
reunification services for K.L., finding there was no evidence section 361.5 applied to
him. At disposition, the juvenile court found M.B. was not the presumed father and
dismissed him from the case.

                                              6
       Attached to the report are photocopies of documentation from the Yuba County
dependency case involving K.B., including selected pages from the minute orders of the
jurisdiction, disposition, and six-month review hearings and the social workers’ reports.
This documentation shows the following:
       At the jurisdiction hearing, mother requested placement or visitation, but the
juvenile court denied the request. There is no finding as to whether mother had physical
custody of K.B. when proceedings began.
       At the disposition hearing, mother received reunification services and visitation.
The juvenile court made the following findings: “By clear and convincing evidence,
there is or would be a substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the child if the child were returned home, and there
are no reasonable means by which the child’s physical health can be protected without
removing the child from the physical custody of the father, [J.B.]”; “Reasonable efforts
were made to prevent or to eliminate the need for the removal of the child from the father
and mother’s home as outlined in the Dispositional Hearing Report”; and “[K.B.] [shall]
be removed from the physical custody of the father. . . .”6 (Italics added.)
       At the six-month review hearing, mother’s reunification services were terminated.
The juvenile court found that “[t]he return of [K.B.] to the physical custody of the father,
[J.B.], would not create a substantial risk of detriment to the safety, protection, or
physical or emotional well-being of the child,” and “[t]he permanent plan of return to the




6 No part of the dispositional hearing report is in the record. Therefore, we cannot
determine the basis for the finding as to “the father and mother’s home.” However, the
home might have been mother’s nominal residence even if she was no longer living there
when K.B. was detained. As noted, the detention report in the present case stated that
mother was homeless in Fort Bragg as of November 2012, when K.B.’s case came to the
notice of Yuba County CPS.

                                              7
home of the parent, [J.B.], is appropriate and is ordered as the permanent plan.” (Italics
added.)
       Addendum Report
       In a report filed March 20, 2014, the department termed mother’s participation in
services and drug testing from November 2013 to the present “minimal.” The department
still recommended denying reunification services to mother because her prognosis for
making substantial progress within the legal time frame was poor.
       Contested Jurisdiction/Disposition Hearing
       At the contested jurisdiction/disposition hearing on March 21, 2014, mother’s
counsel stated: “[M]other . . . would be submitting with a small argument as to services.
She has tried to engage in services since the detention of the children. And she has been
drug testing regularly. She had missed two tests, but the remaining tests have been,
according to her, negative for all substances. And I don’t think there is any indication
that she’s tested positive anywhere. So the information contained in the addendum for
3/20 is accurate according to the mother. And it does say she has completed some
classes. And it does say that she has been a little bit reticent [sic; reluctant] to get
involved in all of her classes. But she has been doing some and would like the Court to
take into consideration what she has done more so than what she’s not done.”
       County counsel stated: “[T]he only issue is services to the mother . . . . So I
didn’t hear her dispute that (b)(10) applies to her. I believe--I would ask [mother’s
counsel] to correct me if I’m wrong--what he was arguing is pursuant to subsection (c)
she should be given services.” (Italics added.) Mother’s counsel replied: “That is
correct.” (Italics added.) The juvenile court added: “That was my understanding.”
       County counsel argued that section 361.5, subdivision (c) did not apply to mother
because her conduct at the outset was “very egregious”; she had not been honest about
her substance abuse or come to terms with it; she had failed to begin services or
substance abuse treatment in K.B.’s very recent case; she had begun services in this case

                                               8
very late and had to be prodded to do everything, repeating that she was “too busy”; she
had a pattern of homelessness; she had used methamphetamine daily until 2011; and she
had not “shown a great concern for her children’s welfare.”
       The juvenile court denied reunification services to mother on the following
grounds:
       “[T]he Department is seeking to deny services pursuant to 361.5(b)(10), which is a
two-prong test followed by analysis under Section 361.5(c). ([B])(10) . . . states that
Reunification services need not be provided to a parent when the Court finds by clear and
convincing evidence that the Court ordered termination of reunification services for any
siblings or half siblings because the parent failed to reunify with those siblings or half
siblings that were removed from that parent, and it is the same parent, and that parent has
not subsequently made a reasonable effort to treat the problems that led to removal.
       “The Department alleges that [mother] received reunification services for a half
sibling and failed to reunify with that child. The evidence is that [mother] was ordered
services in [K.B.]’s case on or about April 25th, 2013. . . . That child was removed from
[mother]. She was ordered services, including mental health counseling and substance
abuse. On or about October 23rd, 2013 Yuba County terminated [mother]’s reunification
services due to lack of progress and visiting.
       “[Mother] is the same parent, and the current petition alleg[es] similar facts as the
prior case. She left her children with an inappropriate caretaker and failed to protect due
to her lengthy substance abuse history. The (j) petitions allege a failure to provide
adequate care and substance abuse as to the sibling. Therefore, we do have the same
parent and the same or similar issues bringing [D.B.] and [M.B., Jr.] to court.
       “Subsequent reasonable efforts since October. We know that the mother left the
children in the care of [Joyce G.], who . . . [mother] did not know her last name, didn’t
have an address or phone number for her. The mother went to Reno. During her arrest in
October of 2013 she admitted being under the influence of methamphetamine[]. The

                                              9
Department actively gave her referrals on a number of occasions for a variety of service
providers after the filing of the petition.
       “And in the ensuing almost five months [mother] has not started general
counseling or done intake, not started domestic violence counseling. She has attended
some parenting classes, began drug testing in January. She’s had approximately six tests
and missed a couple of tests. The Department reminded [mother] several times about the
importance of services and indicated she was not receptive. They concluded from this,
and it influenced their decision . . . not to recommend services as [mother] . . . indicated
she didn’t understand why she should have to do them over. She’s also not followed
through on seeking a shelter or other services. The Department concluded that her
minimal compliance gave her a poor prognosis for reunification.
       “The Court concludes that based on the totality of acts and circumstance, [mother]
has not made a reasonable effort to treat the problems that led to the half siblings’
removal, primarily the long substance abuse history and short period of some compliance
with drug testing but no evidence of drug treatment.” (Italics added.)
       The court then concurred with the department that section 361.5, subdivision (c)
did not justify the provision of services to mother.
       The court subsequently entered the order denying services from which mother
appeals.
                                        DISCUSSION
       Mother contends no substantial evidence supports the juvenile court’s finding that
section 361.5(b)(10) applied because the minor’s half sibling in the prior proceeding was
not removed from her. Mother is correct.
        “Section 361.5 is clearly directed to the custodial parent or parents. The
section comes into play ‘whenever a minor is removed from a parent’s or guardian’s
custody, . . .’ [Citation.] There can be no removal of custody from a parent who does not
have custody in the first place. . . . [The statute] does not, by its terms, encompass the

                                              10
situation of the noncustodial parent.” (In re Terry H. (1994) 27 Cal.App.4th 1847, 1856,
superseded by statute on another point as stated in In re Nolan W. (2009) 45 Cal.4th
1217, 1233, fn. 7.) Thus, sections 361 and 361.5, read together, compel the conclusion
that a parent cannot be denied reunification services under section 361.5(b)(10) unless he
or she was also the parent from whom the minor’s sibling or half sibling was removed in
the prior proceeding, and a child can be “removed” from the parent within the meaning of
section 361.5(b)(10) only if the parent had custody of the child when detained.
       No evidence established that mother had custody of K.B. when the Yuba County
proceeding began. On the contrary, all the evidence in the record (except for the
equivocal phrase “the father and mother’s house,” which is consistent with the evidence
that mother had once lived there but no longer did) shows that only K.B.’s father had
custody of her at that time. Thus, the first prong of section 361.5(b)(10) was not satisfied
because K.B. was not removed from mother’s custody.
       “There is a presumption in dependency cases that parents will receive
reunification services. [Citation.] Section 361.5, subdivision (a) directs the juvenile
court to order services whenever a child is removed from the custody of his or her parent
unless the case is within the enumerated exceptions in section 361.5 subdivision (b).
[Citation.]” (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 95.) Because no
evidence supported the juvenile court’s finding as to the first prong of
section 361.5(b)(10), the only provision cited to deny reunification services to mother,
the order denying services to mother must be vacated.
       The department asserts that mother has forfeited this contention because her trial
counsel conceded the statute applies. We disagree. As the department recognizes,
mother attacks the sufficiency of the evidence to support the judgment. “[A] claim that
there is insufficient evidence to support the judgment is not waived by a failure to




                                             11
object.” (In re M.B. (2010) 182 Cal.App.4th 1496, 1506; see In re Richard K. (1994)
25 Cal.App.4th 580, 588-589; In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237.)7
       On the merits, the department asserts that it does not matter whether mother was
“the same parent” from whom K.B. was removed in the prior proceeding--it is enough
that she is “the same parent” whose services were terminated in that proceeding. This
contention is not properly before us, and lacks merit in any event.
       The department did not assert this legal interpretation of section 361.5(b)(10)
below. Rather, it attempted to prove, as required by the statute’s plain language, that
mother was the parent from whose custody K.B. was removed in the prior proceeding.
The department may not change its theory of the case on appeal. (North Coast Business
Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29.)
       But even if we may consider this new contention, it fails. The department quotes
section 361.5(b)(10) only in part, omitting the crucial language we have highlighted, and
cites only to case law construing other provisions.
       The department relies on Francisco G. v. Superior Court (2001) 91 Cal.App.4th
586 (Francisco G.). Its reliance is misplaced. There, the appellate court upheld the
denial of reunification services to a biological or alleged father under section 361.5,
former subdivision (b)(10)(B), which provided that services could be denied if “ ‘the
parental rights of a parent or guardian over any sibling or half-sibling of the child had
been permanently severed, and that, according to the findings of the court, this parent or
guardian has not subsequently made a reasonable effort to treat the problems that led to
removal of the sibling or half-sibling of that child from that parent or guardian.’ ”
(Francisco G., at pp. 595-601; see now § 361.5, subd. (b)(11).) The father contended the



7 Since the department not only concedes this basic appellate principle but cites In re
M.B., supra, 182 Cal.App.4th at page 1506, to support it, we are puzzled why the
department made its forfeiture argument in the first place.

                                             12
statute did not apply to him because he was not the custodial parent of the sibling or half
sibling in the prior dependency proceedings, but the court held: “[T]he term ‘parent,’ as
used in this bypass provision, should be understood to refer to the father’s status as a
‘parent’ of the child, not the sibling. In addition, the statutory language makes no
mention of the custodial status of the sibling at the time of removal, much less require
previous custody of the sibling. We decline to read such a requirement into the
provision.” (Francisco G., at p. 599, italics added.) But the statute at issue in the present
case does “mention . . . the custodial status of the sibling at the time of removal” and does
“require previous custody of the sibling.” (Ibid.)8 And Francisco G.’s concerns about
the status of a biological or alleged father, as reflected in the statutory language it
construed, have no application to the present case.
       The department also relies on this court’s decision in Mardardo F. v. Superior
Court (2008) 164 Cal.App.4th 481 (Mardardo F.). In Mardardo F., we construed
section 361.5, subdivision (b)(4), which provides that reunification services may be
denied if “the parent or guardian of the child has caused the death of another child
through abuse or neglect.” (Mardardo F., at p. 483, fn. omitted.) We found that under
that provision “the parent or guardian of the child” meant only the parent or guardian of
the child in the current proceeding, not of the other child. (Id. at pp. 487-489.) But
section 361.5, subdivision (b)(4) does not refer to any prior dependency proceeding or
state that the parent must have custody of the child whose death he or she caused. Thus,
Mardardo F. is inapposite.




8 Francisco G. does not cite In re Terry H., supra, 27 Cal.App.4th at page 1856 (holding
that section 361.5 applies only to custodial parents). Because Francisco G. is inapposite,
we need not decide whether it erred on this point.

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       The juvenile court’s order denying reunification services to mother under
section 361.5(b)(10) cannot stand. We remand the matter with directions to the juvenile
court to vacate its order and to enter a new order granting her services.
       In light of this conclusion, we need not address the parties’ other contentions.
                                      DISPOSITION
       The matter is remanded to the juvenile court with directions to vacate its order
denying reunification services to mother and to enter a new order granting her services.


                                             BLEASE                    , Acting P. J.


We concur:


         NICHOLSON                 , J.


         HULL                      , J.




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