Filed 4/2/15
                          CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION TWO


In re R.T., a Person Coming Under the           B256411
Juvenile Court Law.
                                                (Los Angeles County
                                                Super. Ct. No. DK03719)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

        Plaintiff and Respondent,

        v.

LISA E.,

        Defendant and Appellant.



        APPEAL from orders of the Superior Court of Los Angeles County.
Marguerite D. Downing, Judge. Affirmed.
        Nancy Rabin Brucker, under appointment by the Court of Appeal, for Defendant
and Appellant.
        Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
        No appearance for Minor.


                                        ******
       A “rebellious” and “incorrigible” teen repeatedly runs away from home, placing
herself and her infant daughter at “substantial risk [of] . . . serious physical harm.” (Welf.
                                    1
& Inst. Code, § 300, subd. (b)(1).) Can the juvenile court assert dependency jurisdiction
over the teen on the ground that her mother, who tried everything she could, was still
unable “to adequately supervise or protect” the teen? (Ibid.) In re Precious D. (2010)
189 Cal.App.4th 1251 (Precious D.) said “no,” reasoning that the first clause of section
300, subdivision (b)(1), requires proof of parental culpability. We respectfully disagree,
and hold that the language, structure, and purpose of the dependency statutes counsel
against Precious D’s conclusion that this provision turns on a finding of parental
blameworthiness. When a child thereby faces a substantial risk of serious physical harm,
a parent’s inability to supervise or protect a child is enough by itself to invoke the
juvenile court’s dependency jurisdiction.
                       FACTS AND PROCEDURAL HISTORY
       Lisa E. (mother) gave birth to R.T. in 1996. When R.T. was 14, she began
running away from home for days at a time, not attending school, falsely reporting that
her mother abused her, and at least on one occasion throwing furniture. At least one of
her absences necessitated a visit to the hospital. R.T. also began having children—one
when she was 15 (who became a dependent of the court) and another a few years later.
Mother made efforts to supervise and safeguard R.T.: She went looking for R.T.
whenever she left home; she arranged for R.T. to live with mother’s parents because
R.T.’s grandfather used to work with troubled juveniles and because R.T.’s false reports
were made when R.T. and mother were alone; she called the police for help; and she
asked the Los Angeles County Department of Children and Family Services
(Department) for assistance, although she declined to voluntarily submit R.T. to the
Department’s jurisdiction. Notwithstanding these efforts, R.T. remained “rebellious,”
“incorrigible,” and “out of control.”


1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.

                                              2
       The Department filed a petition to declare then-17-year-old R.T. a dependent of
the juvenile court on the ground that she faced “a substantial risk [of] . . . serious physical
harm or illness, as a result of the failure or inability of [mother] to adequately supervise
or protect” her. (§ 300, subd. (b)(1).) The juvenile court asserted jurisdiction over R.T.,
denying mother’s motion to dismiss the petition. The court reasoned that “the mother
can’t control [R.T.], so she has given her off to grandparents and they can’t control her
either.” The court then issued a dispositional order authorizing the Department to place
R.T. elsewhere while reunification services were provided, and the Department placed
her back with her grandparents.
                                2
       Mother timely appeals.
                                       DISCUSSION
       Mother argues that the juvenile court erred in asserting dependency jurisdiction
over R.T. (and, by extension, erred in making its dispositional order premised on that
jurisdiction) because (1) the first clause of section 300, subdivision (b)(1), as interpreted
in Precious D., supra, 189 Cal.App.4th 1251, requires proof that the parent’s inability to
supervise or protect her child stems from being “unfit or neglectful” (id. at p. 1254; see
also In re James R. (2009) 176 Cal.App.4th 129, 135, quoting In re Rocco M. (1991)
1 Cal.App.4th 814, 820), and (2) there was insufficient evidence that she was unfit or
neglectful because she did her best to control R.T.
                                                                                    3
       It is critical to clarify what Precious D. meant by “unfit or neglectful.”
Precious D. involved facts strikingly similar to this case—namely, an incorrigible teen



2      While this appeal has been pending, R.T. turned 18. We grant mother’s request to
judicially notice the court documents so indicating. R.T.’s majority does not moot this
appeal because the juvenile court’s assertion of jurisdiction over R.T. may reflect
adversely on mother’s suitability to act as a caregiver to R.T.’s two children in any future
dependency proceedings involving those children (for whom mother has cared in the
past). (Accord, In re Daisy H. (2011) 192 Cal.App.4th 713, 716.)

3      In re James R. and In re Rocco M. add nothing to the analysis because they refer
to “neglectful conduct by the parent in one of the specified forms” and thus do no more

                                               3
who repeatedly endangered herself by running away from home, and a mother who “tried
everything” to no avail. (Precious D., supra, 189 Cal.App.4th at p. 1257.) Thus, the
mother in Precious D. was in no way neglectful, but was “unfit” insofar as she was
unable to supervise or protect her daughter. Thus, by “unfit,” the Precious D. court was
looking not only to the reason for the parent’s unfitness, but also for some proof that the
parent be blameworthy or otherwise at fault. (Id. at p. 1259 [concluding there was no
basis to be “critical of Mother’s parenting skills or conduct”].)
       Like the mother in Precious D., mother in this case was neither neglectful nor
blameworthy in being unable to supervise or protect her daughter. The Department
argues that mother “abdicated” her parental role by placing R.T. with her grandparents
and by declining the Department’s invitation to voluntarily consent to jurisdiction. But
mother’s decision to put R.T. with her more experienced grandparents—the very same
placement the Department later made—was not neglectful or blameworthy. Her decision
not to voluntarily accede to jurisdiction was also not evidence of neglect or culpability.
       Because there was no neglect or blameworthy conduct, and because it is
undisputed that R.T’s behavior placed her at substantial risk of serious physical harm or
illness, the propriety of the juvenile court’s assertion of dependency jurisdiction turns on
a single question: Must a parent be somehow to blame for her “failure or inability” to
adequately supervise or protect her child, when that inability creates a substantial risk of
serious physical harm or illness, before a juvenile court may assert dependency
jurisdiction pursuant to the first clause of section 300, subdivision (b)(1)?
       This is a question of statutory interpretation we review de novo. (Nguyen v.
Western Digital Corp. (2014) 229 Cal.App.4th 1522, 1543.) Our review is informed, but
not controlled, by the decision of our sister Court of Appeal on this question. (The
MEGA Life & Health Ins. Co. v. Superior Court (2009) 172 Cal.App.4th 1522, 1529.)




than recharacterize the statutory grounds as “neglect.” (In re James R., supra, 176
Cal.App.4th at p. 135; In re Rocco M., supra, 1 Cal.App.4th at p. 820.)

                                              4
I.     Statutory construction
       In answering the question presented by this case, we start with the statutory
language. (Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624, 630
(Stiglitz).) The first clause of section 300, subdivision (b)(1), confers dependency
jurisdiction over a child who “has suffered, 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.” (§ 300, subd. (b)(1).)
The text itself does not speak to whether the parent must also be to blame for this “failure
                 4
or inability.”
       We must interpret this silence in the manner most consonant with the legislative
intent behind this provision. (Stiglitz, supra, 60 Cal.4th at p. 630.) Two indicia—one
implicit and one explicit—point to the conclusion that this clause of section 300,
subdivision (b)(1) has no culpability requirement.
       The language we are interpreting is just one of many provisions setting forth
various grounds for dependency jurisdiction. Some of these provisions require a showing
that the parent acted intentionally. (See § 300, subds. (a) [parent’s “nonaccidental”
“inflict[ion]” of physical harm on child], (c) [child suffered, or is at substantial risk of
suffering, serious emotional damage “as a result of” the parent’s conduct], (d) [parent’s
sexual abuse of child], (e) [parent’s infliction of severe physical abuse on a child under
five years old], (g) [parent incarcerated or voluntarily surrendered child at safe surrender
site], (i) [parent subjected child to acts of cruelty].) Under other provisions, negligent
conduct by the parent will suffice. (See § 300, subd. (b)(1) [second clause; parent’s
“willful or negligent failure” to supervise or protect child when leaving child with
another person]; ibid. [third clause; parent’s “willful or negligent failure” to provide
“adequate food, clothing, shelter, or medical treatment”]; id., subd. (d) [parent did not
protect child from sexual abuse, when parent knew or should have known of risk]; id.,


4     For clarity’s sake, we will refer to “parents,” but our discussion applies equally to
“guardians.”

                                                5
subd. (e) [same, as to severe physical abuse of child under five years old]; id., (i) [same,
as to acts of cruelty]; id., (j) [parent’s “abuse or neglect” caused death of another child];
id., (g) [parent’s whereabouts are unknown].) And for still others, dependency
jurisdiction is appropriate when the parent is not to blame. (See § 300, subd. (c) [child is
suffering, or at substantial risk of suffering, serious emotional damage, and “has no
parent or guardian capable of providing appropriate care”]; In re Alexander K. (1993) 14
Cal.App.4th 549, 557 [this clause of section 300, subdivision (c), requires “no parental
fault or neglect”]; In re Roxanne B. (2015) 234 Cal.App.4th 916, 921 [same]; § 300,
subd. (g) [when child “has been left without any provision for support”]; D.M. v.
Superior Court (2009) 173 Cal.App.4th 1117, 1128-1129 (D.M.) [this clause of section
300, subdivision (g), need not be willful]; § 300, subd. (b)(1) [fourth clause; parent’s
“inability . . . to provide regular care for the child” due to parent’s “mental illness” or
“developmental disability”].)
       Where, as here, the Legislature has expressly made parental culpability an element
of some grounds for dependency jurisdiction but not an element of others, we generally
infer that the omission of a culpability requirement from a particular ground was
intentional. (In re Ethan C. (2012) 54 Cal.4th 610, 638 [“When language is included in
one portion of a statute, its omission from a different portion addressing a similar subject
suggests that the omission was purposeful.”] (Ethan C.).) This inference is even stronger
when the differential treatment appears in the same section and, indeed, the very same
subdivision—subdivision (b)(1)—we are interpreting.
       This inference becomes compelling when read in conjunction with the
Legislature’s explicit declaration that dependency jurisdiction is to be read broadly:
“[T]he purpose of the provisions of this chapter relating to dependent children is to
provide maximum safety and protection for children who are currently being physically,
sexually, or emotionally abused, being neglected, or being exploited, and to ensure the
safety, protection, and physical and emotional well-being of children who are at risk of
that harm.” (§ 300.2.)



                                               6
       Construing the first clause of section 300, subdivision (b)(1) to require a showing
of parental fault, as mother urges, not only ignores these indicia of legislative intent, but
also tasks the judiciary with drawing lines better drawn by the Legislature. Mother
argues that her inability to supervise or protect R.T. is not blameworthy, but that a
parent’s inability to supervise or protect a younger child might be. “At some point,”
mother reasons, “the order of human growth and development” shifts the blame from
parent to child. If we were to recognize a culpability element, we would have to fix that
point. But where would we place it, and what criteria would we use in doing so? This
blameworthiness line, if it is to be drawn at all, is a policy decision within the special
competence of the legislative branch, not the judicial branch.
       When read in light of these considerations, the text and purpose of the first clause
of section 300, subdivision (b)(1) point to the conclusion that a showing of parental
                         5
blame is not required.
II.    Countervailing arguments
       Mother offers two arguments that, in her view, compel us to reject the statutory
analysis set forth above.
       A.     Constitutional avoidance
       Mother asserts that the interpretation of the first clause of section 300, subdivision
(b)(1) is governed by a different and weightier canon of statutory construction—namely,
the “cardinal” rule that a statute should, where possible, be construed in a manner that
avoids doubts about its constitutionality. (People v. Gutierrez (2014) 58 Cal.4th 1354,
1373.) This canon was the basis for Precious D.’s ruling. (Precious D., supra, 189
Cal.App.4th at pp. 1260-1261.)
       Natural parents have a “fundamental liberty interest . . . in the care, custody, and
management of their child[ren].” (Santosky v. Kramer (1982) 455 U.S. 745, 753
(Santosky).) Consequently, due process guarantees that the state may not terminate a

5      Of course, the assertion of jurisdiction on this basis is specific to R.T., and is not a
global finding that mother is unfit as to other children. (In re Cody W. (1994) 31
Cal.App.4th 221, 225-226 (Cody W.).)

                                               7
parent’s rights with respect to her child without first making (1) a showing of parental
unfitness, (2) by clear and convincing evidence. (Id. at pp. 747-748, 758, 760, fn. 10;
Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1130 (Ann S.); Cynthia D. v. Superior
Court (1993) 5 Cal.4th 242, 254 (Cynthia D.).) Precious D. reasoned that the assertion of
dependency jurisdiction based on parent’s blameless inability to control her daughter
made it possible for that parent’s right over that child to be terminated without any
finding of parental unfitness. (Precious D., supra, 189 Cal.App.4th at pp. 1260-1261.)
We are unpersuaded by this argument for two reasons.
       First, this argument conflates parental “unfitness” with parental culpability. But
they are not the same. “Unfitness” is concerned whether a parent is able to protect the
welfare of her child; culpability is concerned with why. As noted above, unfitness can
stem from a parent’s willful acts, her negligence, or acts entirely beyond her control and
for which she is not culpable (such as suffering from a developmental disability). The
decisions governing the constitutional constraints on the termination of parental rights
define “unfitness” with reference to the child’s welfare, not the culpability of the child’s
parents. (See Santosky, supra, 455 U.S. at p. 766 [noting “state’s parens patriae interest
in preserving and promoting the welfare of the child”]; accord, In re Vonda M. (1987)
190 Cal.App.3d 753, 757 [“the imposition of juvenile dependency jurisdiction must
depend upon the welfare of the child, not the fault of or lack of fault of the parents”].)
Indeed, if unfitness were synonymous with fault, all of the grounds for dependency
jurisdiction having no element of parental blame would be constitutionally suspect. (See
§ 300, subds. (b)(1) [fourth clause], (c), (g).)
       Second, when “unfitness” is properly defined, there is no danger that allowing a
juvenile court to assert jurisdiction over a child based on the parent’s “failure or
inability . . . to adequately supervise or protect the child” from a substantial risk of
physical harm or illness will result in the termination of parental rights without a finding,
by clear and convincing evidence, of parental unfitness. Precious D. correctly noted that
a court’s assertion of dependency jurisdiction over a child is made only by a
preponderance of the evidence. (§§ 300, 355.) But the assertion of jurisdiction is

                                               8
“merely a first step” (Ethan C., supra, 54 Cal.4th at p. 617) in a multi-step process that
may or may not lead to the termination of parental rights (Cynthia D., supra, 5 Cal.4th at
pp. 247-250 [detailing steps]), and due process requires only that a finding of parental
unfitness be made “‘at some point in the proceedings . . . before parental rights are
terminated’” (Ann S., supra, 45 Cal.4th at p. 1134, italics omitted; In re Z.K. (2011) 201
Cal.App.4th 51, 66). Under California law, there is no danger that dependency
proceedings will reach the stage where parental rights are terminated without a finding of
parental unfitness.
       The parental rights of mothers and “presumed” fathers not having custody of their
children may be terminated only upon a finding, by clear and convincing evidence, of
their unfitness made at the permanency planning hearing conducted pursuant to section
366.26. (In re T.G. (2013) 215 Cal.App.4th 1, 20 [“[A] court may not terminate a
nonoffending, noncustodial mother’s or presumed father’s parental rights without
finding, by clear and convincing evidence, that awarding custody to the parent would be
detrimental.”]; Cody W., supra, 31 Cal.App.4th at p. 225 [finding of “detriment” is
“‘equivalent [to] a finding of unfitness’”], citing In re Jasmon O. (1994) 8 Cal. 4th 398,
423; In re G.P. (2014) 227 Cal.App.4th 1180, 1193 [same].)
       The parental rights of parents having custody of their children, like mother in this
case, may also only be terminated at a permanency planning hearing. (§ 366.26,
subd. (c).) Although no finding of unfitness need be made at that hearing for custodial
parents (In re Amanda D. (1997) 55 Cal.App.4th 813, 819; In re Jason J. (2009) 175
Cal.App.4th 922, 931, fn. 3), there are only four procedural paths to that hearing for
custodial parents and each them of requires a finding, by clear and convincing evidence,
of parental unfitness. A section 366.26 hearing may be convened (1) after a child (a) is
removed from her parent upon a finding, by clear and convincing evidence, on one of six
grounds of unfitness (§ 361, subds. (c)) and (b) is not returned to her parent’s custody for
at least 12 months (§§ 366.26, subd. (c)(1), 366.21, subd. (g), 366.22, subd. (a), 366.25,
subd. (a)(3)), (2) after a child is removed due to the parent’s incarceration or
abandonment without support and upon a finding, by clear and convincing evidence, that

                                              9
(a) the parent’s whereabouts are unknown and (b) the parent has not contacted or visited
the child for at least six months (§§ 366.26, subd. (c)(1), 366.21(e)), (3) after a finding,
by clear and convincing evidence, that services to reunify the parent and child are
unwarranted for one of 16 different reasons all involving parental unfitness (§ 361.5,
subd. (b)) or that reunification services with an incarcerated or institutionalized parent
would be detrimental to the child (§ 361.5, subd. (e)(1); see generally §§ 366.26,
subd. (c)(1), 361.5, subd. (f)), or (4) after finding that the parent has been convicted
(beyond a reasonable doubt) of a felony indicating parental unfitness (§ 366.26,
subd. (c)(1)). More than twenty years ago, our Supreme Court observed that “[b]y the
time dependency proceedings have reached the stage of a section 366.26 hearing, there
have been multiple specific findings of parental unfitness.” (Cynthia D., supra, 5 Cal.4th
at p. 253.) As outlined above, today there will still be at least one such finding of
parental unfitness. This satisfies due process.
       We accordingly conclude there is no constitutional imperative for engrafting a
blameworthiness element to the first clause of section 300, subdivision (b)(1).
       B.     Blurring of delinquency and dependency jurisdiction
       Mother next argues that her daughter’s intransigence is better viewed as an issue
of truancy under section 601 that falls under the juvenile court’s delinquency jurisdiction,
rather than an issue of dependency. (See § 601, subd. (a) [delinquency jurisdiction may
be asserted over minor “who persistently or habitually refuses to obey the reasonable and
proper orders of his or her parents . . . or who is beyond the control of [his or her
parents]”]; People v. Rice (1970) 10 Cal.App.3d 730, 736 [runaways qualify under
section 601].) To construe section 300 to apply in this situation, mother fears, will
empower the Department to choose which jurisdiction—dependency or delinquency—to
invoke, and will thereby empower the Department to nullify section 601 through disuse.
       However, the power to decide which jurisdictional basis to invoke has long
resided with the executive branch. To be sure, the courts have a say in choosing which
jurisdictional basis—dependency or delinquency—to exert once the executive branch has
invoked both. (§ 241.1; D.M., supra, 173 Cal.App.4th at p. 1127.) But the courts have

                                              10
no say in which jurisdiction the executive chooses to invoke in the first place. To the
contrary, “it rests in the discretion of the executive branch employees—social workers,
probation officers, and the district attorney—whether to file such petitions, not the
juvenile court.” (D.M., at p. 1127; §§ 290.1 [invocation of dependency jurisdiction
entrusted to probation officers and social workers], 650 [invocation of delinquency
jurisdiction entrusted to probation officers or district attorneys].)
       What our interpretation of the first clause of section 300, subdivision (b)(1) does is
recognize a bigger galaxy of cases in which the executive will get to decide between
invoking truancy and delinquency jurisdiction (under sections 601 and 602, respectively)
on the one hand, and dependency jurisdiction on the other. But this larger galaxy is
entirely consistent with the Legislature’s expressed intent that dependency jurisdiction be
broadly construed (§ 300.2), and in no way nullifies section 601.
       For these reasons, we respectfully disagree with the decision in Precious D., and
hold instead that no showing of parental blame is required before a juvenile court may
assert dependency jurisdiction over a child at substantial risk of physical harm or illness
due to her parent’s “failure or inability . . . to adequately supervise or protect” her.
(§ 300, subd. (b)(1).)
                                       DISPOSITION
       The jurisdictional and dispositional orders of the juvenile court are affirmed.
       CERTIFIED FOR PUBLICATION.


                                                   _______________________, J.
                                                         HOFFSTADT
We concur:
____________________________, Acting P. J.
        ASHMANN-GERST


____________________________, J.
           CHAVEZ

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