Filed 1/30/14 In re Dylan M. 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                                          NOT TO BE PUBLISHED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
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 This opinion has not been certified for publication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
                                     THIRD APPELLATE DISTRICT
                                                        (Lassen)
                                                            ----



In re DYLAN M., a Person Coming Under the                                               C074228
Juvenile Court Law.
                                                                              (Super. Ct. No. J-5946)
LASSEN COUNTY DEPARTMENT OF
HEALTH AND SOCIAL SERVICES,

                   Plaintiff and Respondent,

         v.

SHANNON S.,

                   Defendant and Appellant.




         Shannon S., mother of 12-year-old Dylan M., appeals from the order of the
juvenile court sustaining the petition, adjudging the minor a dependent, and ordering
placement out of the home. (Welf. & Inst. Code, §§ 355, 356, 358, 395.)1 Mother argues
that the jurisdictional finding pursuant to section 300, subdivision (g) (hereafter section


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



                                                             1
300(g)) and the dispositional order are not supported by substantial evidence and that
failure to comply with the notice provisions of the Indian Child Welfare Act (ICWA)
(25 U.S.C. § 1901 et seq.) compels reversal. The Department of Health and Social
Services (Department) has conceded the ICWA notice error and we reverse to permit
compliance with the ICWA. We further conclude the juvenile court did not properly
consider whether the provisions of section 300(g) were satisfied at the time of the
jurisdictional hearing and reverse to permit the juvenile court to apply the proper
standards in evaluating whether the minor comes within the provisions of section 300(g).

                               FACTUAL BACKGROUND

       Mother began serving a sentence in local custody in March 2012 with a release
date in 2015. To provide care for the minor while she was in custody, mother attempted
to create an informal guardianship with the maternal grandmother and left the minor in
her care. Father is in custody in state prison with a possible release date of 2014.

       The minor was diagnosed with Type I diabetes in 2010 and there were ongoing
reports of inadequate care of the minor by mother and the maternal grandmother. The
minor was hospitalized in February 2013 for hyperglycemia and again in March 2013 for
hypoglycemia. The Department placed the minor in foster care due to the maternal
grandmother’s inability to provide adequate care for the minor to maintain consistent
blood levels thereby placing him at risk of serious physical harm.

       The Department filed a petition on March 6, 2013, alleging the minor came within
the provisions of section 300(g) because mother and father were currently incarcerated
and “unable to arrange or provide the [minor] with ongoing care and supervision.”2 In a



2 The petition also alleged the minor came within section 300, subdivision (b) because
mother made an inappropriate plan for the minor’s care in March 2012. However the
court did not sustain this allegation, leaving the sole basis for jurisdiction section 300(g).


                                              2
discussion with the social worker the same day, mother identified Vanessa A. and Glenn
M. as possible placements for the minor but provided no current contact information for
either one. The court ordered the minor temporarily detained.

       The jurisdiction report stated the most recent referrals—when the minor was
hospitalized for wildly fluctuating glucose levels—resulted from the minor being
responsible for monitoring his own glucose levels and for maintaining a proper diet.
Mother had made an informal guardianship plan when she was incarcerated but the
document expired after six months and could not be renewed. The minor told the social
worker he needed someone to monitor his care. The minor was happy in his foster
placement and did not want to move.

       An addendum stated that the minor told mother he did not know Vanessa A. and
refused to visit with her but would consider living with her if things did not work out in
his current placement. On April 29, 2013, mother again identified Vanessa as a person
with whom she could arrange temporary care for the minor while she was incarcerated.
The social worker spoke with Vanessa the next day and Vanessa confirmed her interest in
providing care for the minor. In subsequent discussions, Vanessa told the social worker
she was aware of the minor’s diagnosis but not of the specifics of his medical needs and
care. Vanessa also told the social worker that her sister would provide some supervision
when her work and school schedule required her to be home late. A criminal background
check showed Vanessa’s most recent conviction was in 2008. The Department
concluded that mother could not arrange for a home which would not be detrimental to
the minor based on Vanessa’s criminal history.

       At the contested jurisdictional hearing, mother’s counsel called Vanessa A., who
testified she knew mother and the minor because her mother and the maternal
grandmother were friends and she had seen the minor frequently before she moved to
Sacramento and had some contact with mother and the minor thereafter. Vanessa


                                             3
testified she has two children and her older child remembered the minor. She
acknowledged her past criminal and substance abuse history but testified she had been
drug and alcohol free for the last five years. Vanessa testified she was working and going
to college and had daycare available for her own children and also arranged her schedule
to be able to pick them up from school. She and her sister had discussed the minor’s
special medical needs and she was willing to learn how to monitor him and meet his
needs. She had some familiarity with dealing with diabetes management because her
mother was diabetic.

       Mother testified she had known Vanessa A. since they were teenagers and that her
home would be a good place for the minor because she had her life together, was raising
her own children, and would look out for the minor’s well-being.

       The Department argued any placement arranged by mother had to be adequate and
placement with Vanessa A. did not meet that standard. Mother’s counsel responded that
only appropriate care and supervision was required and a guardianship was not necessary.
The court stated that the objective of dependency proceedings was to return the minor to
the parent but this was currently not possible because both parents were in custody. The
court sustained the section 300(g) allegation stating: “[T]he custodian with whom the
child was left was unable to provide appropriate care for the child and the child’s special
needs, that the child’s mother was unable to provide the child with ongoing care and
supervision as she’s currently incarcerated and by leaving the child with her mother, her
mother was unable to provide adequate care for the child and his special needs, and such
an ability to provide care and supervision for the child on the part of the mother
endangers the child’s physical and emotional health, safety and well-being and places the
child as risk of physical and emotional harm and damage.” The court did not consider
whether mother currently could arrange for the care of the minor.




                                             4
       Following the jurisdictional hearing, mother’s counsel filed points and authorities
regarding whether the section 300(g) allegations could be contested at jurisdiction.
Counsel cited authority for the proposition that all mother had to do at jurisdiction was to
provide a plan for the minor’s care.

       The Department responded that, under the cited authorities, the plan had to be
suitable and adequate and argued that the Department and the minor had to be able to
review the suitability of the plan. The Department, relying on section 361.3, which
governs consideration of relative placement by the Department and the court, argued that
Vanessa A. had not been approved and thus could not be considered an appropriate
caretaker for the minor.

       The disposition report stated that mother identified Vanessa A. as a caretaker for
the minor and Vanessa said she was willing to care for the minor. In his foster
placement, the minor no longer controlled his medical supplies, testing or injections and
no longer had the dramatic blood sugar fluctuations that had led to his detention. His
grades were improving and he felt less stressed. The Department recommended
bypassing services to both parents due to the length of their respective criminal sentences.
The Department was considering guardianship as a permanent plan for the minor and
assessed Vanessa. Vanessa was aware of the minor’s special needs and that she needed
more information to manage his care. The Department needed to complete an assessment
of Vanessa’s home and do background checks on her roommates and sister who lived
there before placement could occur. The report concluded mother was now able to
arrange for the minor’s ongoing care and supervision with a non-related extended family
member who was willing to accept guardianship for the minor. The report suggested
Vanessa was an appropriate caretaker for the minor but that a complete guardianship
assessment was needed before the Department could recommend her appointment and
requested the dispositional hearing be continued.


                                             5
       In an addendum report, the Department changed the recommended disposition to
long-term foster care for the minor. Further investigation of Vanessa A.’s home
disclosed that in addition to Vanessa, her children and her sister, another couple and their
children were living in the three-bedroom, two-bath home. Vanessa said the second
couple was going to move but the moving date was not specified. The home was clean
and sanitary but the sister and the adult male each had convictions in 2011 for driving
under the influence. Because the convictions were recent and nonwaivable, Vanessa
could not be approved for guardianship. Mother had no other care provider alternatives.

       At the dispositional hearing, the court, treating the points and authorities as a
motion for guardianship, denied the motion, bypassed services, and placed the minor in
long-term foster care with the current caretaker.

                                       DISCUSSION

                                     I. Section 300(g)

       Mother contends the juvenile court should not have asserted jurisdiction over the
minor because she was able to arrange for the minor’s ongoing care at the time of the
jurisdictional hearing.

       The juvenile court asserted jurisdiction over the minor pursuant to section 300(g),
which contains four disjunctively stated bases for jurisdiction.3 The provision relevant
here is: “[T]he child’s parent has been incarcerated or institutionalized and cannot
arrange for the care of the child . . . .” The provision requires proof of only those two
elements. No additional proof of risk of harm or inadequacy of a prior custodian is



3 The disjunctive clauses are: The child was left without any provision for support; the
parent has voluntarily surrendered the child and did not return; the parent is incarcerated
and cannot arrange for care of the child; or an adult custodian is unable or unwilling to
care for the child and a parent cannot be located. (§ 300(g).)


                                              6
necessary as the risk to the minor is apparent by the existence of the two elements.
Several cases have construed this provision. We review the cases to distill the relevant
principles to be applied by the juvenile court in ruling on whether jurisdiction has been
established under the relevant clause of section 300(g).

       Soon after the provision was enacted, it was construed in In re Aaron S. (1991)
228 Cal.App.3d 202. In Aaron S., the father was incarcerated and sent a letter to his
counsel stating he wanted the minor cared for by the paternal grandmother. (Id. at
pp. 206-207.) At the jurisdictional hearing, the court found the minor came within the
provisions of section 300(g) “ ‘in that the minor has been left with no provision for
support by reason of the parent’s incarceration or institutionalization,’ ” sustained the
petition, removed the minor and approved placement with the paternal grandmother.
(Aaron S., at p. 207.) Applying the plain language of the statute, the Court of Appeal for
the First Appellate District, Division Two, concluded that “section 300, subdivision (g)
applies when, at the time of the hearing, a parent has been incarcerated and does not
know how to make, or is physically or mentally incapable of making, preparations or
plans for the care of his or her child.” (Id. at p. 208.) The court found that the juvenile
court did not focus on the father’s present ability to arrange care for the child, but on his
past actions. (Ibid.) The court held that the statute required proof that the parent was
unable to arrange for care at the time of the hearing, not that the parent failed to do so at
some prior point in time. The court also concluded that the juvenile court had improperly
combined two of the disjunctive clauses of the statute in making its ruling. (Id. at
pp. 210-211.) The court found that the Legislature did not intend dependencies to be
established under section 300(g) “where the incarcerated parent is able to make suitable
arrangements for his or her [child’s] care.” (Aaron S., at p. 212.)

       A second case, In re Monica C. (1995) 31 Cal.App.4th 296, dealt primarily with
adequacy of reunification services but also discussed section 300(g) as it applied to the


                                              7
Department of Social Services’ (DSS) involvement with the family. The mother was in
custody when she gave birth to Monica C. and entrusted the infant to the maternal great-
aunt. (Monica C., at p. 299.) In two subsequent incarcerations the mother again arranged
for the maternal great-aunt to assume custody while she was in prison. (Ibid.) At some
point, the maternal great-aunt filed a petition for guardianship, which triggered a home
evaluation and DSS concluded the maternal great-aunt and her husband did not have the
physical abilities to provide appropriate long-term care for Monica. (Ibid.) After the
guardianship petition was denied, DSS subsequently filed a dependency petition relying
on “the questionable inference” that, since appellant had made a poor choice in leaving
the child with the great-aunt, she could be found generally to be incapable of arranging
for the care of the child. (Ibid.) DSS did allow the minor to remain with the maternal
great-aunt but ultimately recommended a foster placement with adoption as a permanent
plan, citing the ages of the maternal great-aunt and her husband (57 and 64) as a bar to
long-term placement. (Id. at pp. 300, 301, 302.) Upon learning the court found she could
not arrange for the child’s care, mother gave DSS names of two alternate caretakers. (Id.
at p. 302.) DSS did not investigate either person but told one that unless she was willing
to adopt the child before the mother was released from prison, there was “ ‘no chance’ ”
of being appointed as a guardian. (Id. at p. 302.) The court relied on Aaron S. to
conclude that section 300(g) requires only that an incarcerated parent arrange adequately
for the child during the period of incarceration. “It is irrelevant whether or not the
caretaker is a suitable long-term placement.” (Monica C., at p. 305.) Consequently, an
aging relative who might not qualify for long-term custody might still be able to provide
adequate care during the length of a parent’s prison term. (Ibid.) “Before a child comes
within the jurisdiction of the juvenile court, section 300, subdivision (g), permits an
incarcerated parent to make suitable short-term arrangements for care of the child,
extending only to the expected duration of the sentence; but after the juvenile court



                                              8
intervenes, the court must make a long-term placement, which by its terms will ordinarily
extend well beyond the sentence term.” (Monica C., at p. 308.)

       In In re S. D. (2002) 99 Cal.App.4th 1068, the parents left the two-year-old minor
with a relative when they went out to dinner. (Id. at p. 1071.) The relative was arrested
and police took the minor into custody. (Id. at p. 1072.) The next day the mother was
arrested. (Ibid.) The petition alleged mother was incarcerated and neither parent was
available to care for the minor, but there was no allegation or any evidence that the
mother was unable to arrange for the child’s care during her incarceration. (Id. at
p. 1071.) In fact, mother had several options for the minor’s care. (Ibid.) The minor was
briefly placed with a maternal aunt after the detention hearing and again after the 12-
month review hearing. (Id. at pp. 1072-1073, 1075-1076.) The court dismissed the
section 300, subdivision (b) allegations leaving section 300(g) as the sole basis for
jurisdiction. (In re S. D., at p. 1074.) In assessing mother’s claim of ineffective
assistance of counsel for failing to assert a defense to section 300(g), the court stated that,
if the mother could arrange for care of the minor during the period of her incarceration,
the juvenile court had “no basis to take jurisdiction” and the agency “had no say in the
matter.” (In re S. D., at p. 1077, citing Aaron S., supra, 228 Cal.App.3d 202.) The court
found it was “irrelevant that [the mother] had not already arranged for [the minor]’s care
at the time of her incarceration.” (In re S. D., at p. 1077, citing Aaron S., supra,
228 Cal.App.3d 208.) The court framed the issue as “whether, as of the time of the
jurisdictional hearing, she could arrange for the care.” (Id. at p. 1078.) The court held
that (1) the issue under section 300(g) is whether the parent could arrange for care, not
whether the parent had done so; and (2) the agency had the burden of proof and must
establish that the parent could not arrange for care. (In re S. D., at pp. 1078, 1079.) The
court emphasized that, under the statute, the parent is not required to affirmatively prove
the caretaking arrangements are suitable. (Id. at p. 1079.) The statute requires only that



                                               9
the parent is able to make the arrangements and if the agency wishes to challenge the
suitability of the arrangement it must proceed under another of the clauses in section
300(g), which requires proof of unsuitable placement and that the parent cannot be
located. (In re S. D., at p. 1079.) If the parent is in custody and can be located, however,
the parent has the opportunity to make other arrangements if the first arrangements do not
work out. (Ibid.)

       In re S. D., supra, 99 Cal.App.4th 1068 did not address the particular form that the
arrangement for care should take. Some guidance on that question is found in In re
Athena P. (2002) 103 Cal.App.4th 617, where the mother challenged the sufficiency of
the evidence to support jurisdiction under section 300(g). The parents were arrested.
(Athena P., at p. 621.) While in custody, the mother gave birth to Athena and sent her to
live with the grandparents. (Id. at p. 622.) The mother attempted to create a formal
custody arrangement but the documents were never filed and the specifics of the
arrangement were not known. (Ibid.) In finding substantial evidence supported the
jurisdictional finding, the court observed that the mother had tried and failed to make the
grandparents temporary legal guardians and never made any further effort to complete an
arrangement for care of Athena. (Id. at p. 629.) The failure left the grandparents with no
legal authority to consent to medical treatment, authorize vaccinations, enroll the child in
daycare or prove they were entitled to her custody should that prove necessary, thus the
mother was, and remained, unable to arrange for the minor’s care. (Ibid.)

       Finally, in Maggie S. v. Superior Court (2013) 220 Cal.App.4th 662, the mother
was incarcerated when she gave birth to the minor. (Id. at p. 665.) The mother had
designated, in writing, two relatives who declined to care for the minor and her
godmother who was willing to do so. (Id. at p. 672.) Due to incomplete information
about the designation, the juvenile court took jurisdiction over the minor. (Ibid.) The
court concluded the juvenile court erred because the mother was able to arrange for the


                                             10
care of the child at the time of the jurisdictional hearing. (Ibid.) The court also stated
that the parent was not required to prove the suitability of the placement. (Id. at p. 673.)

        From these cases and the requirements of the statute itself, we discern several
guiding principles when applying the “incarcerated or institutionalized” clause of section
300(g). First, the time to assess whether the parent is able to make arrangements for care
of the minor is as of the time of the jurisdictional hearing. Second, the disjunctive
clauses of section 300(g) cannot be combined with each other or another subdivision of
section 300 as each provides a separate basis for jurisdiction. Third, the agency has the
burden of proving that the parent cannot arrange for the care of the child. Fourth, the
care that is contemplated is short-term, not long-term, and a caretaker who might not be
appropriate to provide long-term care may well be able to provide short-term care. Fifth,
no particular form of arrangement is required so long as the parent is able to make an
arrangement that will either transfer sufficient legal custody to the caretaker or provide
for securing parental consent to deal with such matters as medical care, school enrollment
and the like and gives the caretaker the right to custody of the child while the parent is
incarcerated. Sixth, the parent is not required to prove suitability of the placement under
this clause of section 300(g). The statute does not require that the arrangement be
adequate or suitable although some cases have suggested this is the case. Finally, if the
arrangement fails, the incarcerated parent must be given another opportunity to arrange
care.

        Applying these guidelines to the case before us, it is apparent that the court and the
parties misunderstood what was required to establish jurisdiction under the “incarcerated
or institutionalized” clause of section 300(g). The Department’s focus was on
establishing guardianship or requiring mother to satisfy the criteria for relative placement
in section 361.3. By its terms, this section is applicable only to a placement by the




                                              11
Department, not to a custody arrangement by a parent.4 While mother was asked to
identify another caretaker for the minor when the placement with the maternal
grandmother failed, no one actually asked mother what her arrangement for care by that
caretaker would be. There was confusion over whether the ability to arrange for the
minor’s care was to be assessed at jurisdiction or disposition. The court’s ruling on
jurisdiction dealt with mother’s arrangement for the minor’s past care, not her current
attempts, if any, to arrange for his care with Vanessa A. or another person. The ruling
also appears to conflate the requirements of the incarceration clause of section 300(g)
with the more expansive requirements of section 300, subdivision (b) and the
unwilling/unable adult custodian clause of section 300(g).

       Due to the confusion, the record is unclear whether the Department actually
proved mother was unable to arrange for the care of the minor at the time of the
jurisdictional hearing. Reversal is required for the juvenile court to assess whether to
exercise jurisdiction over the minor pursuant to section 300(g) under current
circumstances.

                               II. The ICWA Compliance

       Mother contends, and the Department concedes, that notices to the identified
Indian tribes were not included in the record. The Department further notes that several
deficiencies were found in the notices which were sent and acknowledges that new
notices must be sent.




4 Section 361.3 provides in relevant part: “In any case in which a child is removed from
the physical custody of his or her parents pursuant to Section 361 . . . .” (§ 361.3, subd.
(a).) Section 361 applies “[i]n all cases in which a minor is adjudged a dependent child
of the court on the ground that the minor is a person described by Section 300 . . . .”
(§ 361, subd. (a)(1).)


                                             12
       The ICWA protects the interests of Indian children and promotes the stability and
security of Indian tribes by establishing minimum standards for, and permitting tribal
participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.)
The juvenile court and the Department have an affirmative duty to inquire at the outset of
the proceedings whether a child who is subject to the proceedings is, or may be, an Indian
child. (Cal. Rules of Court, rule 5.481(a).) If, after the petition is filed, the court “knows
or has reason to know that an Indian child is involved,” notice of the pending proceeding
and the right to intervene must be sent to the tribe or the Bureau of Indian Affairs if the
tribal affiliation is not known. (25 U.S.C. § 1912; § 224.2, subd. (a); see Cal. Rules of
Court, rule 5.481(b).) Proof of notice must be filed with the juvenile court. (Cal. Rules
of Court, rule 5.482(a)(2)(B) & (b).) Failure to comply with the notice provisions and
determine whether the ICWA applies is prejudicial error. (In re Desiree F. (2000)
83 Cal.App.4th 460, 472; In re Kahlen W. (1991) 233 Cal.App.3d. 1414, 1424.)

       At the detention hearing mother claimed she may have Cherokee ancestry and that
father may have “Blackfoot” ancestry.5 Although the Department represented that it had
provided the ICWA notices in both April and May 2013, the record contains no
documentation of notices to or responses from the tribes or any inquiry into father’s
Indian heritage. Based upon this record we accept the concession, reverse the judgment
and remand for further proceedings regarding compliance with the ICWA.

                                 III. Dispositional Orders

       Mother contends that, assuming jurisdiction was established, substantial evidence
did not support the dispositional orders because the evidence did not support removal of
the minor from her custody.



5 The proper name is the Blackfeet Tribe of Montana. (75 Fed.Reg. 28121 (May 19,
2010).)

                                              13
       When the sufficiency of the evidence to support a finding or order is challenged on
appeal, even where the standard of proof in the trial court is clear and convincing, the
reviewing court must determine if there is any substantial evidence—that is, evidence
which is reasonable, credible and of solid value—to support the conclusion of the trier of
fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d
1206, 1214.) In making this determination we recognize that all conflicts are to be
resolved in favor of the prevailing party and that issues of fact and credibility are
questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re
Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the
evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994)
7 Cal.4th 295, 318-319.)

       “A dependent child may not be taken from the physical custody of his or her
parents . . . unless the juvenile court finds clear and convincing evidence of any of the
following circumstances listed in paragraphs (1) to (5), inclusive . . . .” (§ 361, subd. (c).)
In arguing the case, the parties rely on paragraph (1) of this subdivision which states, in
relevant part: “There is or would be a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the minor if the minor were returned
home, and there are no reasonable means by which the minor’s physical health can be
protected without removing the minor from the minor’s parent’s or guardian’s physical
custody.” (§ 361, subd. (c)(1).) However, the paragraph which is applicable here is
paragraph (5), which provides: “The minor has been left without any provision for his or
her support, or a parent who has been incarcerated or institutionalized cannot arrange
for the care of the minor, or a relative or other adult custodian with whom the child has
been left by the parent is unwilling or unable to provide care or support for the child and
the whereabouts of the parent is unknown and reasonable efforts to locate him or her
have been unsuccessful.” (§ 361, subd. (c)(5).)



                                              14
       The finding necessary for removal in this case is identical to that for jurisdiction
except for the increased burden of proof, i.e., clear and convincing rather than a
preponderance. (Cf. §§ 361, subd. (c), 355, subd, (a).) Because of the confusion
surrounding the jurisdictional findings, we are unable to determine whether substantial
evidence would support removal. If, on remand the juvenile court again asserts
jurisdiction over the minor, it can then make appropriate findings and orders for
disposition. We note that should removal become necessary, the Department and the
court will be constrained by the statutes and rules relevant to long-term placement and the
choices will, as we have seen, be more limited than mother’s choices for a short-term
placement.

                                      DISPOSITION

       The judgment is reversed and the matter is remanded to the juvenile court. The
juvenile court is instructed to determine whether, based upon the facts currently in
existence, a jurisdictional petition based upon section 300(g) can be properly pleaded and
proved. If, after that determination, the court retains jurisdiction, the juvenile court must
determine whether the tribes were properly noticed. If notice was proper, and there either
was no response or the tribes determined that the minor is not an Indian child, the
juvenile court shall then proceed to decide upon the appropriate disposition for the minor.
However, if a tribe determines the minor is an Indian child and the court determines the
ICWA applies to this case, the juvenile court is ordered to conduct the dispositional
hearing in conformance with all provisions of the ICWA.

                                                         BUTZ                  , J.

We concur:

      ROBIE                 , Acting P. J.

      MAURO                 , J.


                                             15
