Filed 5/21/20
                           CERTIFIED FOR PUBLICATION


          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                      DIVISION TWO



 In re E.E. et al., Persons Coming Under
 the Juvenile Court Law.

 SAN BERNARDINO COUNTY
 CHILDREN AND FAMILY SERVICES,                      E073284

          Plaintiff and Respondent,                 (Super.Ct.Nos. J280083, J280084,
                                                    J280085 & J280086)
 v.
                                                    OPINION
 K.L.,

          Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,

Judge. Affirmed.

         Dennis Temko, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Michelle D. Blakemore, County Counsel and Jamila Bayati, Deputy County

Counsel, for Plaintiff and Respondent.




                                            1
       K.L. (mother) and J.P. (father) have three young children together as well as an

infant son named E. Mother tested positive for amphetamine at a prenatal visit for E., and

when the child was born a few months later, he tested positive for amphetamine and

marijuana. At the jurisdiction and disposition hearing, the juvenile court declared all four

children dependents (Welf. & Inst. Code, § 300, subd. (b)) and removed them from the

parents’ care (§ 361, subd. (b)(1); unlabeled statutory citations refer to the Welfare and

Institutions Code).

       In this appeal, mother challenges the sufficiency of the evidence supporting all of

the court’s findings and orders, except the jurisdictional finding for E. She argues there

was insufficient evidence E.’s siblings were at risk of harm, as well as insufficient

evidence all of the children could not live safely with father, with her out of the home.

We conclude substantial evidence supports the challenged findings and orders, and

therefore affirm.

                                               I

                                           FACTS

       A.     Detention

       In December 2018, respondent San Bernardino County Children and Family

Services (CFS) received a referral alleging that mother’s newborn, E., had tested positive

for amphetamine and marijuana at birth and that mother had tested positive for

amphetamine during a prenatal visit a few months earlier. Mother and father have three

other children, J.J. (who was two years old at the time), V. (six), and J. (ten).


                                              2
       CFS made several unsuccessful attempts to contact the family in person, by phone,

and by mail. Because the family had a prior history with CFS, the social worker was able

to determine the elementary school J. and V. attended and made an unannounced visit to

interview them.1 J. and V. said they felt safe in the home and their basic needs were being

met. They said they slept on an inflatable mattress in the living room or in their relative’s

room when he was traveling. They said E. didn’t have a crib and slept on blankets on the

floor, next to their parents. They were able to give an age-appropriate definition of drugs

and alcohol and denied their parents used either.

       On February 5, 2019, the social worker interviewed the parents at the apartment in

Rialto where they then lived. In his separate interview, father said his family had moved

into the apartment a few months earlier. He said mother hadn’t told him why CFS was

investigating his family, and he denied she used any drugs. He said she used to smoke

marijuana but had stopped and had never used the drug while pregnant. He said he had

also quit smoking marijuana before his oldest child, J., was born. He said he had been

arrested for DUI in 2013 and had not completed his alcohol abuse classes. The social

worker searched his criminal history and confirmed the DUI (he had been convicted of

the charge in 2015), and also found weapons-related charges from 2006 and 2007

(specifically, carrying a dagger and manufacture or import of an undetectable firearm).




       1 CFS had received a general neglect and physical abuse referral regarding the
family in 2014 and a general neglect and emotional abuse referral in 2018. Both cases
were closed as unfounded or inconclusive.
                                              3
       In her separate interview, mother said father did know E. had tested positive for

drugs at birth. She said she uses marijuana for pain management because she injured her

legs in a car accident. She said she had only used marijuana once while she was pregnant

with E. because the pain had become unbearable. She denied using amphetamines. She

claimed she had gone to a party a few days before E. was born and accidentally drank

from a cup that wasn’t hers. The liquid had made her feel “very weird,” but she didn’t go

to the hospital because she was scared. She became upset when the social worker asked

her about the other positive amphetamine test from the prenatal visit. She said she had

been “going through a rough time” back then, and nobody had told her they would be

drug testing during the visit. She denied having a substance abuse problem. She also

denied co-sleeping with E., explaining he slept on a mattress on the floor and she slept on

the floor next to him.

       Both parents agreed to drug test, and the social worker informed them that missed

tests would be considered positive. Later that day (February 5), mother called the social

worker “audibly hysterical” and said she hadn’t known it was going to be an observed

drug test. She said she “could not pee in front of somebody” and complained that the

testing staff had made her “feel like a bad mother.” The test results reflected she had

attempted to urinate twice but had a “shy bladder” and refused to try to urinate a third

time. Father’s February 5 drug test was positive for amphetamine. He told the social

worker he had taken Sudafed for allergies that day and requested another test. The lab ran

a confirmation test on the same urine sample and it came back negative. On February 6


                                             4
and 7, mother said she could not test because she wasn’t in the facility’s system, but the

social worker checked and confirmed she was in the system and was able to test.

       In late February, the social worker contacted mother to arrange another drug test.

Mother said she felt harassed by CFS and said her children were fine and “not being

abused.” The social worker promised mother she was not trying to open a case against

her but in fact was hoping to do the opposite, resolve the case without court intervention.

She explained she couldn’t close the family’s referral, however, without a negative test

from mother and a formal “Children and Family Team Meeting” (team meeting). She

explained that, given the positive toxicology results for E., it was crucial and necessary to

create a safety plan. Mother said she did not want her family to find out about her drug

use or CFS’s involvement.

       The social worker followed up with mother on this issue, and this time her

supervisor also participated in the phone call. The supervisor reiterated the social

worker’s assurances that CFS was not trying to harass mother’s family. The supervisor

explained that CFS management had decided a team meeting and clean drug test were

needed before they could close the investigation. Ultimately, mother agreed to drug test

and attend a team meeting.

       But mother’s decision to cooperate changed over the ensuing weeks. She did not

respond to the social worker’s attempts to schedule another drug test, and then, on March

4, father sent the social worker the following text: “There is no reason for a meeting. You

tried and tried to find something and there wasn’t anything. We’ve complied [with]


                                              5
everything that you have asked us to do. At this point I’m feeling like this is personal. I

feel like my family and my inalienable right to pursuit of happiness is being denied to us.

You will have to speak to our lawyer from this point on.” Father did not provide the

lawyer’s name or contact information. Mother then called the social worker to follow up

on father’s text. She said she would not agree to a team meeting or any more drug tests.

She also said to contact their lawyer going forward but hung up when the social worker

asked for the lawyer’s contact information.

        On March 6, CFS decided to file section 300 petitions on behalf of the children,

due to its unresolved concerns about mother’s drug use and father’s refusal to

acknowledge that issue or cooperate with CFS. The social worker called the parents and

informed them of the upcoming detention hearing. They responded that a dependency

case wasn’t necessary because the children were no longer in their custody. Father said

they had recently “signed their rights over” and the children had not been in their care for

a week.

        On March 7, CFS filed petitions alleging the children were dependents under

section 300, subdivision (b) (failure to protect). The operative allegations against the

parents were that: mother has a “substance use” problem that impairs her ability to

provide appropriate care for her children; father reasonably should have known of

mother’s problem; and father has a “marijuana abuse problem,” placing the children at

risk.




                                              6
       The juvenile court held the detention hearing the following day. The parents were

not present, and both CFS and counsel for the children recommended detention. The

court found prima facie evidence of a substantial risk to the children’s physical health and

safety, ordered them detained out of the home, and set the jurisdiction and disposition

hearing for April 2. On March 25, with the assistance of Rialto police, CFS detained the

children in foster care.

       B.      Jurisdiction and Disposition

       The social worker interviewed the parents when CFS took the children into

custody. Mother said it was difficult for her to drug test because of her job. She said they

had refused a team meeting back in February because they had been misadvised by a

friend that such a step was not necessary if jurisdiction had not been established. Father

added that by the time the social worker tried to schedule the meeting, they had already

given “temporary guardianship” of the children to a family friend, a woman named Carla.

The parents said they did not attend the detention hearing because, during a free

consultation, an attorney had told them they didn’t have to go if CFS had not given them

notice of the hearing by mail. Father told the social worker that his family had gone

through a rough period when mother was pregnant with E., just before they moved into

the Rialto apartment. He said they had “lost their home, stayed with friends, been kicked

out, and moved from motel to motel and were around people who were using

substances.”




                                              7
       Mother said she was currently using marijuana for pain management but said she

only did so at night and never around the children. She maintained that she had

accidentally ingested amphetamine at a party. She added that her water broke the

following day and she had “informed the hospital that she did not know what she drank.”

Father denied mother had a drug problem and said the only substance he had ever seen

her use was marijuana. Despite his earlier statement to the contrary, father admitted he

still used marijuana. He said he would use it when he got off work, for work-related pain.

       The social worker also interviewed Carla, the family friend and purported

guardian of the children. Carla said the parents had signed a notarized document giving

her guardianship on February 26, 2019, and since that time she had been caring for the

children “on and off” because they were still “transitioning.” She was not aware she had

to go to court to become their legal guardian.

       On March 26, 2019, the parents attended a team meeting with the social worker.

CFS ordered random drug testing for the parents and referred them to individual

counseling, parenting classes, and substance abuse treatment.

       The following day, CFS filed its jurisdiction and disposition report, recommending

removal of all four children and provision of family reunification services. The social

worker was concerned about the parents’ willingness to cooperate with CFS. She was

also concerned that, despite mother’s and father’s positive amphetamine tests, they

continued to claim marijuana was the only drug they used.




                                             8
       At the April 2 hearing, the court continued the jurisdiction and disposition hearing

to June 17 and ordered the parties to attend mediation. The court gave CFS authority to

detain the children with father, with mother out of the home, if CFS determined the

parents were cooperating with the investigation. The court explained that, like the social

worker, it was also concerned about the parents’ willingness to cooperate with the

investigation, given their behavior since the referral. The court asked if there was a

request to drug test the parents that day, and counsel for the minors answered in the

affirmative. The court then ordered the parents to drug test and advised them that missed

tests would be considered positive tests.

       We note here that the juvenile court could not order the parents to submit to drug

testing at this stage in the proceedings. Before jurisdiction is established through a

finding that a minor is a person described by section 300, a juvenile court’s authority to

issue orders against a parent is limited and does not include the power to issue an order

like the one here, compelling a parent to drug test. (See In re Jody R. (1990) 218

Cal.App.3d 1615, 1622-1623; §§ 319, 323.) If a juvenile court determines that drug

testing is warranted before jurisdiction, section 319 gives the court authority to order the

social services agency to provide testing referrals. (See § 319, subd. (e) [“If a court orders

a child detained, the court shall . . . order services to be provided as soon as possible to

reunify the child and his or her family if appropriate”], italics added.) Section 319 does

not, however, authorize the court to order the parents to make use of those referrals. In

most cases, the distinction—that is, whether the court orders the agency to provide drug


                                               9
testing or the parent to submit to drug testing—will have no practical impact on the case.

Here, however, the point is not just an academic one. It is relevant to our analysis in

response to CFS’s contention that we should dismiss mother’s appeal under the

disentitlement doctrine because (among other things) she violated the court’s order to

drug test. We discuss this issue more fully, below.

       Turning back to the facts of this case, on May 22, the social worker met with the

parents. Father was living with a relative who had a “significant criminal history.” He had

not participated in any services and claimed he had not been referred for services. The

social worker checked and confirmed that both parents had in fact been referred for

services two months earlier. Father’s drug testing record was inconsistent. He had missed

three tests (April 2, May 6, and June 12), had two negative tests (May 17 and June 6), and

tested positive for marijuana on April 1. Mother’s testing record was also inconsistent.

She had missed two tests (April 1 and May 14), tested negative on three occasions (May

24, April 17, and April 10), and tested positive for marijuana on April 2. Father remained

in denial about mother’s history of drug use and maintained her ingestion of

amphetamine just before E. was born was accidental.

       On June 5, CFS moved the children from their foster home to the home of a

relative who had recently been cleared for placement.

       On June 17, the court continued the jurisdiction and disposition hearing one month

to give CFS the opportunity to assess the parents’ progress in services and consider the

possibility of letting father move in with the relative caretaker. Mother’s counsel


                                             10
informed the court that mother was now living in Los Angeles and had filed a change of

address. Counsel also lodged exhibits with the court consisting of various character

references from the parents’ friends and relatives and J.’s school records reflecting he

was doing very well academically.

       The parents told a CFS social worker that they were fully engaged in all services,

but this turned out not to be true. The social worker assigned to their case learned that, as

of July 10, mother had participated in only one session of a drug treatment program. She

had tested negative three times since the last hearing. Father had been dropped from a

drug treatment program twice, for failure to attend. He had been called to test only once

since the last hearing, and the results were still pending. The parents had not participated

in any parenting classes or individual therapy.

       CFS was unable to recommend letting father move in with the caretaker because it

was concerned about her ability to protect the children from father’s potential drug

problem. The caretaker had lived with the family when E. was born and had denied

noticing any substance issues when CFS began its investigation. She assured the social

worker that she would be protective now that she was aware of the issue, but the social

worker doubted her ability to recognize if father was using.

       The jurisdiction and disposition hearing took place on July 18, 2019. Father filed a

waiver of rights form (JV-190), submitting on CFS’s reports and waiving his right to a

contested hearing on jurisdiction. He did, however, contest CFS’s disposition

recommendation, arguing the children could safely live with him while he received


                                             11
family maintenance services. Mother contested the jurisdiction allegations against her,

and the court and parties accepted the following offer of proof from her attorney:

“Mother would testify that even with the positive drug test [for E.] the three older

children were well cared for and did well in school and her argument is about nexus.”

Her counsel argued the positive amphetamine tests were remote and there was currently

no substantial risk of danger or harm to the children. As to disposition, mother contested

removal from father and represented she would be willing to “move anywhere” if the

court allowed the children to live with him.

       The court sustained the jurisdiction allegations against the parents. Addressing

mother’s nexus argument, it stated: “[T]his was not just a one-time positive test at birth

. . . the mother also tested positive at a prenatal visit. [¶] After that the agency made

attempts to alleviate risk by working with the family. The family avoided all contact with

CFS, minimized all of the risks involved, refused to set up a CFT or a safety plan and

generally was noncooperative with the agency. [¶] Since that time the parents have had

over six months in which to engage in services and there likely could have been a return

at today’s date. [¶] However, they failed to consistently engage in services, continued to

miss tests . . . [and] failed to recognize why [drug use in the home] presents a risk to

young children including an infant.”

       Moving to disposition, the court found clear and convincing evidence that the

children could not safely be returned to either parent’s care. As to father, the court found

he failed to acknowledge or recognize any issues with mother’s drug use, to cooperate


                                               12
with CFS, or to make progress on his case plan. “[W]e’ve given a number of months for

the parents to show that they’re going to cooperate with the agency. . . . [¶] . . . [¶] At [the

beginning of the case] the father was largely uncooperative with the agency. . . . [T]he

parents hid the children by doing a nonbinding guardianship . . . refused to meet or have a

CFT which led to the original detention. [¶] Since that time the Court has also given

additional time, indicated a willingness to consider either returning to the father on his

own or in the home of the relative [but] . . . [¶] [f]ather continues to minimize the

concerns of [CFS], indicates [he] doesn’t recognize the issues related to the mother’s

drug use, has his own missed test. And once enrolled in a program, which took almost

four months to get enrolled in, only showed up twice.” The court ordered the children to

remain in the care of the relative they were currently living with. It also ordered family

reunification services for the parents, with two-hour supervised visits at least three times

a week.

       Mother filed a timely notice of appeal.

                                               II

                                         ANALYSIS

       Mother challenges the sufficiency of the evidence supporting all the court’s

jurisdictional and dispositional findings and orders except for its exercise of jurisdiction

over E. For the reasons we explain below, we find no error.




                                              13
       A.      Applicable Law and Standard of Review

       “‘A dependency proceeding under section 300 is essentially a bifurcated

proceeding.’ [Citation.] First, the court must determine whether the minor is within any

of the descriptions set out in section 300 and therefore subject to its jurisdiction.” (In re

Stephen W. (1990) 221 Cal.App.3d 629, 645.) Section 300, subdivision (b)(1), authorizes

a juvenile court to exercise dependency jurisdiction over a child if the “child has suffered,

or there is a substantial risk that the child will suffer, serious physical harm or illness, as

a result of the failure or inability of his or her parent . . . to adequately supervise or

protect the child.” (Italics added.) “A jurisdictional finding under section 300, subdivision

(b)(1), requires [the agency] to demonstrate the following three elements by a

preponderance of the evidence: (1) neglectful conduct, failure, or inability by the parent;

(2) causation; and (3) serious physical harm or illness or a substantial risk of serious

physical harm or illness.” (In re L.W. (2019) 32 Cal.App.5th 840, 848 (L.W.), citing In re

Joaquin C. (2017) 15 Cal.App.5th 537, 561; In re R.T. (2017) 3 Cal.5th 622, 624.)

       Second, if the court exercises jurisdiction over the minor, it must decide the

appropriate disposition. Generally, the court chooses between allowing the child to

remain in the home with protective services in place and removing the child from the

home while the parent engages in services to facilitate reunification. “Removal from

parental custody at disposition may be ordered where a return home would pose a

substantial danger to the child’s physical health and where there are no reasonable

alternatives to removal. (§ 361, subd. (b)(1).)” (In re Stephen W., supra, 221 Cal.App.3d


                                               14
at p. 645.) The burden of proof for jurisdictional findings is preponderance of the

evidence; for removal, it is clear and convincing evidence. (Cynthia D. v. Superior Court

(1993) 5 Cal.4th 242, 248.)

       “‘In reviewing the jurisdictional findings and the disposition, we look to see if

substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making

this determination, we draw all reasonable inferences from the evidence to support the

findings and orders of the dependency court; we review the record in the light most

favorable to the court’s determinations; and we note that issues of fact and credibility are

the province of the trial court.’” (In re R.T., supra, 3 Cal.5th at p. 633.) The appellant has

the burden of showing there is no evidence of a sufficiently substantial nature to support

the findings or orders. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

       B.     The Disentitlement Doctrine Does Not Apply

       Preliminarily, we address CFS’s argument that we should decline to reach the

merits of mother’s substantial evidence challenge and dismiss her appeal under the

disentitlement doctrine. CFS argues that if mother had been “honest, cooperated with pre-

detention services, [and] did not stonewall CFS, [or] play crafty games [like] establishing

a non-binding guardianship to hide the children pre-detention,” the section 300 petition

“would have been unnecessary.” According to CFS, we should dismiss mother’s appeal

because she resisted reform and “defi[ed] . . . court orders” during the six months leading

up to the jurisdiction and disposition hearing. CFS misunderstands the disentitlement

doctrine. In the dependency context, the doctrine is not a punishment for failing to


                                              15
cooperate with the social services agency but rather for violating court orders in such a

way that prevents the court from protecting the child.

       The disentitlement doctrine, or appellate disentitlement, refers to a reviewing

court’s “inherent power to dismiss an appeal by a party who has refused to comply with

the orders of the trial court.” (People v. Puluc-Sique (2010) 182 Cal.App.4th 894, 897.) It

“is not a jurisdictional doctrine, but a discretionary tool that may be applied when the

balance of the equitable concerns make it a proper sanction.” (Ibid.) In the criminal

context, the doctrine applies when the appellant is a fugitive from justice. (Ibid.)

“Appellate disentitlement is, fundamentally, a doctrine based on forfeiture: a defendant

who escapes or otherwise flees the authorities gives up the right to challenge a conviction

or sentence while refusing to abide by its consequences.” (Id. at p. 898.)

       The doctrine has also been applied in the civil context, for example, when a

party’s violation of a court order frustrates the other party’s ability to protect their legal

rights. (E.g., TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377, 379-380 [dismissing

judgment debtors’ appeal because they refused to comply with court order to answer

postjudgment interrogatories]; Tobin v. Casaus (1954) 128 Cal.App.2d 588 [conditionally

dismissing appeal from a money judgment because appellant refused to appear at a

judgment debtor’s examination and to surrender in response to an arrest warrant].) Courts

imposing the disentitlement refer to it as the “ultimate sanction” for violating court

orders. (E.g., Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787; Guardianship of

Melissa W. (2002) 96 Cal.App.4th 1293, 1299.)


                                               16
       As the California Supreme Court explained in MacPherson v. MacPherson (1939)

13 Cal.2d 271, the only case where our high court has applied the doctrine in the parent-

child context, dismissing a party’s appeal is an extreme measure that deprives a party of

their right to “ask the aid and assistance of [the] court.” (Id. at p. 277.) MacPherson

involved a divorce proceeding. During the pendency of that proceeding, after the court

had awarded custody of the children to the mother, the father absconded with the children

and refused to reveal their whereabouts. The trial court ultimately issued orders requiring

the father to, among other things, immediately return the children to mother’s custody

and pay the attorney fees, expenses, and costs she incurred in trying to locate the

children. (Id. at p. 276.) When the father appealed the fees and costs portion of the

judgment, the California Supreme Court dismissed his challenge, reasoning that by

“secluding the children in a foreign country and alienating them, [he] violated not only

his agreement with [the mother] and the provisions of the interlocutory and final decrees

of divorce, but he has also wilfully and purposely evaded legal processes and

contumaciously defied and nullified every attempt to enforce the judgments and orders of

the California courts, including the very order from which he seeks relief by this appeal.”

(Ibid., italics added.) The Court concluded the father had “effectually bar[red] him[self]

from receiving the assistance of an appellate tribunal” by engaging in “[s]uch flagrant

disobedience and contempt.” (Ibid.)

       In dependency cases, the interest at stake for a parent is “enormous.” (In re Dakota

H. (2005) 132 Cal.App.4th 212, 223; see also In re B.G. (1974) 11 Cal.3d 679, 688; In re


                                             17
K.C. (2011) 52 Cal.4th 231, 236 [the interest of a parent in the “companionship, care,

custody, and management” of their children is a “compelling one, ranked among the most

basic of civil rights”].) As a result, appellate courts have rarely applied the disentitlement

doctrine to dismiss a parent’s appeal. To illustrate, the court applied the doctrine In re

Kamelia S. (2000) 82 Cal.App.4th 1224 to a father who, after appealing the order placing

his daughter in foster care, “abduct[ed]” his daughter and could not be found. (Id. at p.

1227.) Similarly, in In re E.M. (2012) 204 Cal.App.4th 467, the court applied the doctrine

to dismiss the mother’s appeal of the jurisdictional findings because she “willfully left the

jurisdiction with her children while the petition was pending” and after the court issued

protective custody warrants for the children. (Id. at pp. 469, 471.) Application of the

doctrine in those cases was not only fair, but also practical. By fleeing with their children

to a different jurisdiction while their cases were pending, the parents violated custody or

placement orders regarding their children, thereby making it impossible for the court to

safeguard the children’s best interests. When a parent’s violation of a juvenile court’s

orders makes the most crucial aspect of that court’s job impossible, it stands to reason

they should not be able to ask a reviewing court to overturn the juvenile court’s orders.

       This is obviously not such a case. All of the conduct CFS cites as grounds for the

disentitlement doctrine occurred before the court took jurisdiction over the children.

Indeed, most of the conduct occurred before the court had even detained the children,

while CFS was investigating the referral. This timing distinction is important when

determining whether appellate disentitlement is an appropriate sanction.


                                              18
       As we discussed above, before the juvenile court takes jurisdiction over a child by

finding them to be a person described by section 300, the court may not order a parent to

cooperate with the social services agency, engage in services, or submit to alcohol or

drug testing. “The juvenile court is a special department of the superior court whose

powers are limited to those granted by the Juvenile Court Law.” (In re Ashley M. (2003)

114 Cal.App.4th 1, 6 (Ashley M.), citing § 200 et seq.) The dependency statutes authorize

the juvenile court “to make orders pertaining to abused or neglected children who come

within the court’s jurisdiction. (§§ 361, 362.)” (Ashley M., at p. 7.) “Authorization for the

juvenile court to order participation in child welfare and reunification services is set forth

in sections 361.2, 361.5, and 362.” (In re Jody R., supra, 218 Cal.App.3d at p. 1625,

italics added.) Those sections govern the court’s power to make dispositional orders after

jurisdiction has been established.

       Section 319, which sets forth the juvenile court’s authority during an initial or

detention hearing, provides that if the court orders a child detained, it “shall . . . order

services to be provided as soon as possible to reunify the child and his or her family if

appropriate.” (§ 319, subd. (e), italics added.) Such an order does not compel the parent

to participate in services, rather it compels the social services agency to make services

available to the parent. ‘“The juvenile law system envisions a cooperative effort between

the [social services agency] and the juvenile court.’ [Citation.] The social services agency

has the initial responsibility to investigate allegations of abuse or neglect and has

authority to take temporary custody of an abused or neglected child. (§ 306.) But the


                                               19
agency must account to the court on the reasons for removing the child from home and on

the services available to facilitate the child’s return. (§ 319.)” (Ashley M., supra, 114

Cal.App.4th at p. 7.) “In providing child welfare services, the county’s social services

agency acts as an administrative agency of the executive branch . . . .” (Ibid.)

       In short, before jurisdiction, the court can issue orders detaining the child and

orders directing the social services agency to provide services, but it cannot order or

otherwise compel the parent to cooperate with the agency. A parent’s participation in

services, whether before jurisdiction and disposition or after, is always voluntary. (See In

re Nolan W. (2009) 45 Cal.4th 1217, 1233 [“it is not the court’s role to force a parent to

participate in services . . . ‘“[r]eunification services are voluntary, and cannot be forced

on an unwilling or indifferent parent.”’”) The same is true regarding a parent’s

participation in the social service agency’s investigation to determine whether to file a

section 300 petition.

       That’s not to say there are no consequences for failing to cooperate in the

investigation or participate in services. One consequence is that those failures “can be

used later as evidence in a review hearing or a hearing on a [section 300] petition.”

(Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2017) § 2.44, p. 2-97,

citing Welf. & Inst. Code, § 16501.1, subd. (g)(12)(B).) Additional consequences include

the loss of reunification services and the most serious consequence of all, loss of parental

rights. (In re Nolan W., supra, 45 Cal.4th at pp. 1235-1236 [the dependency statutes

“repeatedly make clear” that “the punishment for noncompliance with reunification


                                              20
services [is] . . . loss of those services and, ultimately, loss of parental rights”].) But

because parents are under no legal obligation to cooperate with the social services

agency, we see nothing equitable about adding appellate disentitlement to those

consequences.

       Our colleagues in the Second District concluded similarly in In re Baby Boy M.

(2006) 141 Cal.App.4th 588 (Baby Boy M). The mother in that case, “while under the

jurisdiction of the juvenile court because of the dependency proceedings involving her

other children, willfully impeded the ability of the court and the Department to protect

Baby Boy M. by delivering the child to his biological father to take to an unknown

location, recognizing that, if she kept the baby, the Department would immediately take

custody of him.” (Id. at p. 597.) The court rejected the department’s request to extend the

disentitlement doctrine to the mother’s pre-jurisdiction conduct. The court explained that

while it did not condone her obstructive behavior, she “had no legal obligation” to

discuss the birth of her newborn with the department. (Ibid.) The court concluded that

although she “may have impeded the Department’s efforts to help her family and

frustrated the underlying purpose of the dependency law,” appellate disentitlement was

unjustified because she had not violated a court order and therefore did not “‘stand[ ] in

an attitude of contempt to legal orders and processes of the courts of this state.’” (Ibid.)

       Similarly here, and contrary to CFS’s characterization, mother’s conduct of giving

her children to a family friend during the investigation and failing to consistently drug

test or engage meaningfully in services violated no court order. At that stage in the


                                               21
proceedings, the only order she could have violated was the court’s order placing her

children in foster care. Had she taken her children from foster care and fled, appellate

disentitlement would be an appropriate sanction. (Cf. In re Kamelia S., supra, 82

Cal.App.4th at p. 1227; In re E.M., supra, 204 Cal.App.4th at p. 471.) But she did not.

Instead, she was uncooperative during the investigation. Thus, like the Baby Boy M.

court, we also “decline to expand the disentitlement doctrine to preclude the appeal of a

recalcitrant parent, who, despite her initial lack of cooperation, has violated no court

order.” (Baby Boy M., supra, 141 Cal.App.4th at pp. 597-598, italics added.)

       CFS’s reliance on In re C.C. (2003) 111 Cal.App.4th 76 (C.C.), a prior opinion

from this court, is unhelpful. In C.C., the mother avoided participating in a

prejurisdictional psychological evaluation and, as a result, the juvenile court could not

determine at the dispositional hearing whether she had a mental disability that rendered

her “incapable of utilizing reunification services” within the meaning of section 361.5,

subdivision (b)(2). (C.C., at p. 85.) The juvenile court ordered reunification services for

mother, believing it had no authority to deny services without such evidence. (Id. at

pp. 80, 82.) The minor appealed, and we reversed and remanded, directing the juvenile

court to order the mother to submit to a psychological evaluation (as opposed to merely

authorizing an evaluation, prejurisdiction). (Id. at p. 92.) Though the issue was not before

us, we advised that if the mother refused to submit to the court-ordered evaluation, the

juvenile court would be justified in using the disentitlement doctrine to deny reunification

services on remand. (Id. at p. 85.) We used broad language, staking out the position that


                                             22
where “the parent is not cooperative, a court has the inherent power under the

disentitlement doctrine to bar that parent from seeking further assistance from the court,

including the provision of reunification services.” (Ibid.)

       We don’t think C.C. provides a basis for applying the disentitlement doctrine here.

First, the case did not involve appellate disentitlement, but more fundamentally, our

discussion of the doctrine was only dicta. (C.C., supra, 111 Cal.App.4th at p. 92 [noting

that “it remains to be seen whether the court will order an evaluation and whether Mother

will cooperate”].) In addition, we question the appropriateness of C.C.’s broad

pronouncement regarding the doctrine’s application. The Legislature has created a

meticulous statutory scheme requiring the provision of reunification services unless

specific statutorily mandated findings are made based on clear and convincing evidence.

(§ 361.5, subds. (a) & (b).) We are not aware of any other published case holding that a

parent may be denied reunification services based solely on the disentitlement doctrine,

and we doubt the discretionary doctrine creates a sweeping power to deny reunification

services in view of the Legislature’s clear preference for keeping families together at the

disposition stage. (See In re Nolan W., supra, 45 Cal.4th at p. 1228 [explaining “‘[f]amily

preservation, with the attendant reunification plan and reunification services, is the first

priority when child dependency proceedings are commenced’” and “‘[r]eunification

services implement “the law’s strong preference for maintaining the family relationships

if at all possible”’”].)




                                              23
       Although CFS did not rely on this case in its brief, we note that in In re A.K.

(2016) 246 Cal.App.4th 281 (A.K.) this court applied the disentitlement doctrine in

circumstances similar to, though more egregious than, this case. In A.K., the father had

been extremely defiant toward the social worker during the agency’s investigation and

failed to submit to court-ordered drug tests before the jurisdiction and disposition

hearing. (Id. at p. 284; see also id. at p. 286 [concluding the father “possessed ‘an attitude

of contempt to legal orders’”].) While we share the sentiments of the Baby Boy M. court

that defiant or obstructive behavior during the investigation stage is not to be condoned,

we believe the appropriate consequence for such behavior is that it will reflect poorly on

the parent when the juvenile court and later the appellate court assess the merits of their

case. The father in A.K. had violated no court order. As in our case, the court ordered

drug testing after detention, but, as we explained above, that order compelled the social

services agency to provide testing referrals, it did not compel the father to submit to

testing. Thus, the father’s failure to drug test under those circumstances cannot serve as a

basis for applying appellate disentitlement. We therefore decline to follow A.K.’s holding

that a parent who is defiant towards the social services agency but has not violated a court

order or prevented the court from protecting the child can be disentitled to their right to

appeal.

       Appellate disentitlement should not be used as a tool for punishing parents who do

not fully cooperate with the social services agency during the investigation stage leading

up to jurisdiction. In our view, the dependency statutes provide appropriate and adequate


                                             24
consequences for such behavior. Disentitlement should be reserved for those cases where

the parent’s violation of court orders makes it impossible for the juvenile court to protect

the child’s best interests. (E.g., In re Kamelia S., supra, 82 Cal.App.4th at p. 1227; In re

E.M., supra, 204 Cal.App.4th at p. 471.) The kind of defiant behavior or failure to engage

in services that might support removal from parental custody at disposition—such as

failing to cooperate with the social services agency, being less than forthcoming during

interviews, or missing drug tests—does not also warrant the ultimate sanction of

appellate disentitlement.

       Because mother’s lack of cooperation and obstructive tactics did not rise to the

level of absconding with her children or engaging in conduct that would similarly prevent

the court from protecting her children’s best interests, we will proceed to the merits of her

appeal.

       C.     Jurisdiction

       Mother argues neither her nor father’s conduct supports a finding that E.’s siblings

fall within the court’s dependency jurisdiction. As we will explain, we conclude

substantial evidence supports the juvenile court’s decision to find the siblings dependents

based on mother’s conduct. As a result of this conclusion, we need not review the

evidentiary basis for the sustained allegations against father. (See In re I.A. (2011) 201

Cal.App.4th 1484, 1491-1492 [minors are dependents “if the actions of either parent




                                             25
bring [them] within one of the statutory definitions of a dependent”].) In other words, the

court properly exercised jurisdiction over E.’s siblings regardless of father’s conduct.2

       Conceding the court has jurisdiction over E. due to the positive drug tests during

his gestation and birth, mother argues there was no evidence that his older siblings had

been harmed or were at risk of harm at the time of the hearing. She contends there is no

evidence she is a substance abuser and argues her past use of drugs is an insufficient

reason to assert jurisdiction over E.’s siblings. We are not persuaded.

       “[S]ection 300 does not require that a child actually be . . . neglected before the

juvenile court can assume jurisdiction. The subdivisions at issue here require only a

‘substantial risk’ that the child will be . . . neglected. The legislatively declared purpose

of these provisions ‘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, italics added.) ‘The court need not wait

until a child is seriously abused or injured to assume jurisdiction and take the steps

necessary to protect the child.’” (In re I.J. (2013) 56 Cal.4th 766, 773.)

       “The Legislature has declared, ‘The provision of a home environment free from

the negative effects of substance abuse is a necessary condition for the safety, protection

and physical and emotional well-being of the child.’ (§ 300.2.)” (L.W., supra, 32


       2 Our conclusion makes it unnecessary to address CFS’s argument that mother
lacks standing to challenge the evidentiary basis for the sustained jurisdictional
allegations against father.
                                              26
Cal.App.5th at p. 849.) “On the other hand, our case law stands for the proposition that

drug use or substance abuse, without more, is an insufficient ground to assert jurisdiction

in dependency proceedings under section 300.” (Ibid., italics added.)

       Emphasizing that E.’s siblings were in good health and doing well in her care,

mother argues her case falls under the substance use “without more” category. Given our

standard of review, we reject this argument on the ground the juvenile court could

reasonably draw a different conclusion from the evidence. First of all, mother’s past use

of drugs was serious in and of itself. As the court aptly reasoned during the hearing,

mother’s past drug use was reckless and occurred on more than one occasion—she used

drugs three times that we know of during her pregnancy. And, while a big part of this

case is the drug use that we know about, that’s not the only facet of mother’s behavior

that could give the juvenile court cause for concern over the children’s safety.

       The record reveals that in addition to using drugs while pregnant, she was also

evasive and resisted investigation and help from CFS. Not long after the agency learned

of E.’s positive toxicology, mother refused to speak with the social worker and tried to

hide her children by temporarily giving them to a friend to care for. The record also

supports a conclusion that she has been dishonest about the extent of her drug use. She

never actually admitted using amphetamine while pregnant and consistently maintained

an implausible story of accidental ingestion to explain the second positive amphetamine

test. In addition, she initially refused a team meeting because she wanted to keep the

positive toxicology results from her family, which could be interpreted as a sign that


                                            27
avoiding detection was more important to her than addressing the issue and developing a

plan to keep her children safe.

       The record also supports a conclusion that mother has been resistant to treatment

and monitoring. She avoided or missed several drug tests and, at the time of the hearing,

had not seriously begun any services to address her issues. Finally, mother’s drug use

coupled with father’s admission that, while she was pregnant with E., the family had been

staying with people who were using substances reasonably supports an inference that

mother minimizes or does not appreciate the potential dangers to children caused by

being around drug use.

       Mother’s attempt to analogize this case to In re L.C. (2019) 38 Cal.App.5th 646 is

unpersuasive. In that case, the legal guardian of L.C. (who by all accounts was healthy

and doing well) admitted to having used methamphetamine six or seven times. He said

that on each occasion he had stayed in a hotel and arranged for child care so he would not

be around L.C. while he was under the influence. (Id. at p. 650.) Initially, the guardian

had denied using methamphetamine, but once he learned he could lose custody of L.C.,

he admitted having used, began consistently testing on his own initiative (even before the

agency enrolled him in random drug testing), and promptly enrolled in substance abuse

treatment. (Ibid.) The obvious and significant difference between L.C. and this case is

that mother had the poor judgment to use while she was pregnant and then failed to take

the proactive monitoring and treatment steps that L.C.’s guardian took.




                                             28
       We find this case more like In re Christopher R. (2014) 225 Cal.App.4th 1210,

1217, where the appellate court affirmed the juvenile court’s determination that the

mother’s four children were persons described by section 300, subdivision (b)(1). At

birth, the mother’s youngest child tested positive for cocaine, amphetamine, and

methamphetamine, but she denied having used cocaine while pregnant. (Christopher R.,

at p. 1213.) She conceded jurisdiction was proper as to her youngest because the child

“was born with a positive toxicology screen for cocaine and other illicit drugs,” but

argued that “the evidence of her sporadic drug use was insufficient to support the findings

she was a current substance abuser and [that her other three children] were at substantial

risk of serious physical harm justifying the exercise of the juvenile court’s jurisdiction.”

(Id. at p. 1215.) The appellate court rejected this argument, reasoning the juvenile court

was free to disbelieve the mother’s claim of sporadic drug use, based on her conduct

during the case. “[The mother] used cocaine (and, based on the positive toxicology screen

for [the infant] at birth, amphetamine and methamphetamine) while she was pregnant,

unquestionably endangering the health and safety of her unborn child. She also admitted

she had used cocaine in the past although claiming she had stopped using when she was

17 years old. Given her initial false denial of any cocaine use in the days before [her

youngest] was born, the juvenile court reasonably disbelieved [her] portrayal of limited,

sporadic drug use. . . . This evidence, taken together with [her] unstable lifestyle and

cavalier attitude toward childcare . . . fully supports the juvenile court’s [jurisdictional]

finding.” (Id. at p. 1217.)


                                              29
       Similarly here, given mother’s implausible denial of the extent of her drug use

while pregnant, her evasive behavior, and her resistance to monitoring and services, the

juvenile court could reasonably disbelieve her offer of proof that she was no longer using.

We conclude the record contains substantial evidence to support a finding that, at the

time of the hearing, E.’s siblings were at risk of suffering serious harm as the result of

neglect on mother’s part.3

       D.     Disposition

       Mother also challenges the evidentiary basis for removing all of the children from

her and father’s care.

       We start with the order removing the children from mother. At the time of the

jurisdiction and disposition hearing, she had moved to Los Angeles and was no longer

living with father. She did not provide any details about her new residence or ask the

court to place the children with her. Instead, her counsel said he “underst[oo]d the Court

has a legal basis for removal from [mother] based on the Court’s [jurisdictional]

findings,” and argued the court could safely place the children with father and provide

family reunification services for mother. In other words, mother provided the court with

no basis to conclude it could safely return the children to her custody. She had not made

any meaningful progress in services and the court knew nothing of her new home


       3 Mother spends much of her brief challenging the idea that her family’s living and
sleeping arrangements supported jurisdiction. For example, she argues the sole fact that
E.’s siblings sometimes slept on an inflatable mattress did not make their home unsafe.
We agree. But as we explained, it is the circumstances surrounding her drug use that have
created the danger of harm for her children, not the state of her former apartment.
                                             30
environment. For those reasons alone, we conclude the court’s decision to remove the

children from mother was supported by substantial evidence.

       As to the order removing the children from father, mother argues the only

potentially negative evidence regarding his parenting abilities was his single positive test

for amphetamine, which he claimed was caused by taking Sudafed the day of the test and

which came back negative after a confirmation test.4 Again, a reasonable trier of fact

could interpret the evidence differently.

       During the six months between the referral and the jurisdiction and disposition

hearing, father denied mother had a drug problem (despite learning of E.’s positive

toxicology at birth), sent the social worker a recalcitrant text message demanding she

leave his family alone, attempted to give the children to a family friend during the

investigation, tested positive for marijuana, missed a number of tests, made no progress

in services, and moved in with a relative who had a significant criminal history. Based on

this evidence, the juvenile court could reasonably infer that father lived in an

environment unsuitable for children, would not cooperate with CFS (to the point of

willful obstruction), would not protect his children from mother’s drug problem, and

possibly had a drug problem of his own. These inferences support a conclusion that the

children could not safely be returned to his custody.



       4 We reject CFS’s contention that mother lacks standing to challenge the
disposition order as to father. Mother has standing because the children’s placement in
out-of-home care “has the potential to adversely affect [her] own interests in reunifying
with [them].” (In re R.V. (2012) 208 Cal.App.4th 837, 848-849.)
                                             31
       Mother argues this case is identical to In re Hailey T. (2012) 212 Cal.App.4th 139,

146 (Hailey T.), where the appellate court affirmed the jurisdictional findings but

reversed the removal order as to one of the parents’ children. In that case, the parents had

a four-month-old son and a three-year-old daughter, Hailey. One day after the maternal

grandmother had been watching the children, the mother noticed the son was crying and

one of his eyes was red. (Id. at p. 142.) The parents took the child to a doctor who

concluded he had a subconjunctival hemorrhage that was inflicted by nonaccidental

means. (Ibid.) Neither parent was able to explain the child’s injury other than to posit that

Hailey might have hurt him when she was combing his hair or playing with his toys.

(Ibid.) The parents had been married for nine years and had no prior child welfare

history, and the social worker believed they appeared to be good parents. (Id. at p. 143.)

Hailey said no one fought or yelled in the home. After the agency detained the children,

the parents started attending weekly parenting courses, individual counseling, and a 52-

week child abuse class, and they visited the children daily and helped with their basic

care. (Id. at p. 144.) The court took jurisdiction over both children and ordered removal

from the parents because the identity of the perpetrator was unknown and the children

were so young. (Id. at p. 145.)

       The appellate court reversed the removal order as to Hailey, explaining that past

abuse of a sibling does not, on its own, justify removing a child from their parents. The

court found that the risk to Hailey of any future abuse was “strikingly less” than the risk

facing her infant brother. (Hailey T., supra, 212 Cal.App.4th at p. 147.) “Hailey was not


                                             32
an infant of only a few months old, who would be unable to articulate any abuse to which

she might be subjected, and who would be completely isolated from the observations of

mandated reporters of abuse. By the time of the disposition hearing, Hailey was a four-

year-old child, with good language skills and an outgoing and social nature. She attended

school where she had regular contact with teachers and other mandated reporters of any

suspected abuse.” (Ibid.) The court also found significant the fact that there was

“abundant evidence” that the parents were good parents who enjoyed a healthy

relationship. “[T]here was no evidence of any physical domestic violence between the

parents during their nine-year marriage. Neither parent had substance abuse problems,

and there was no evidence that either suffered from mental health conditions,

developmental delays or other social issues that often are at the root of dependency cases

and might place children at continuing risk in the home. [They] were parents who started

services at the earliest opportunity, showed progress in the services and had meaningful

and productive visits with the children. Even Agency participants in a team decision

meeting early on in the case recognized [the mother and the father] were good parents.”

(Id. at pp. 147-148.)

       We find that case easily distinguishable from this one. Unlike the parents in Hailey

T., mother and father did not cooperate with the social worker or engage meaningfully in

services when CFS became involved with their family. To the contrary, they were

emphatically resistant to the agency’s investigation, demanding the social worker leave

them alone and trying to avoid further investigation by giving their children to a family


                                            33
friend. Over the ensuing six months, they became only slightly more cooperative by

appearing at hearings and submitting to some drug tests. But on the whole, their resistant

behavior and lack of progress in services reflect a desire to avoid investigation into the

extent of their drug use and a lack of insight into the serious problems parental drug use

poses.

         “The trial court is in the best position to determine the degree to which a child is at

risk based on an assessment of all the relevant factors in each case.” (In re Drake M.

(2012) 211 Cal.App.4th 754, 766.) On this record, we cannot agree with mother that there

was an insufficient evidentiary basis to remove the children from her and father.

         As a final point, we address an incorrect argument CFS makes in its briefing that

appears to have stemmed from a rise in appellate opinions misinterpreting section 361,

subdivision (c)(1) and the burden of proof required to justify removal from a parent’s

custody. Citing In re R.V., supra, 208 Cal.App.4th 837, CFS asserts that the “jurisdiction

findings constitute prima face evidence supporting a juvenile court’s finding a child

cannot safely remain in the home.” The Welfare and Institutions Code does contain a

statutory presumption in favor of removal, but that presumption applies only to a narrow

class of cases—those where the child has been adjudicated a dependent under section

300, subdivision (e) (severe physical abuse of a minor under five years old).

         As a general rule, the required burden of proof is clear and convincing evidence.

Section 361 provides that a juvenile court must not remove a child from parental custody

“unless [it] finds clear and convincing evidence of any of the following circumstances


                                               34
listed in paragraphs (1) to (5),” which include the circumstance where “[t]here 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 . . . custody.” (§ 361, subds. (c) & (c)(1).)

“‘The elevated burden of proof for removal from the home . . . reflects the Legislature’s

recognition of the rights of parents to the care, custody and management of their children,

and further reflects an effort to keep children in their homes where it is safe to do so.

[Citations.] By requiring clear and convincing evidence of the risk of substantial harm to

the child if returned home and the lack of reasonable means short of removal to protect

the child’s safety, section 361, subdivision (c) demonstrates the ‘bias of the controlling

statute is on family preservation, not removal.’” (In re A.R. (2015) 235 Cal.App.4th 1102,

1115.)

         Section 361 provides a single exception to the general rule: “The fact that a minor

has been adjudicated a dependent child of the court pursuant to subdivision (e) of Section

300 shall constitute prima facie evidence that the minor cannot be safely left in the

physical custody of the parent.” (§ 361, subd. (c)(1), italics added.) Section 300,

subdivision (e) applies when the court has found that “the child is under the age of five

years and has suffered severe physical abuse by a parent, or by any person known by the

parent, if the parent knew or reasonably should have known” of the abuse. Thus, the

Welfare and Institutions Code establishes a rebuttable presumption that removal is


                                              35
necessary in a narrow subset of cases—those where a young child has been severely

physically abused and the parent was either the perpetrator of the abuse or unreasonably

failed to protect the child from the abuse. In those cases, the fact the court adjudicated the

child a dependent under section 300, subdivision (e) serves as prima facie evidence that

the child faces a substantial risk of physical harm in the parent’s custody and there are no

reasonable means to protect the child short of removal. For all other cases, however, the

general rule applies and the juvenile court must find clear and convincing evidence to

justify removal. (§ 361, subd. (c).)

       R.V. is one of the earliest opinions to say the statutory presumption applies in a

case where the child had not been adjudicated a dependent under a section 300,

subdivision (e). (See also In re Cole C. (2009) 174 Cal.App.4th 900, 917 (Cole C.)

[presumption applied even though child was adjudicated a dependent under § 300, subd.

(j) based on the father’s excessive discipline of the child’s older stepsiblings].) The child

in R.V. had been adjudicated a dependent under section 300, subdivision (j) based on the

father’s sexual abuse of an older sister. The appellate court stated the jurisdictional

findings against father were “prima facie evidence the child cannot safely remain in the

home.” (R.V., supra, 208 Cal.App.4th at p. 849.) The court’s only citation to support this

proposition was section 361, subdivision (c)(1), which, as just explained, limits the

statutory presumption to section 300, subdivision (e). (Ibid.)

       After Cole C. and R.V., other appellate courts followed suit, similarly overlooking

the limitation on the presumption. (E.g., Hailey T., supra, 212 Cal.App.4th at p. 146


                                             36
[presumption applied even though child was adjudicated a dependent under § 300, subd.

(a)]; In re John M. (2012) 212 Cal.App.4th 1117, 1126 [same, in a § 300, subd. (b) case];

In re T.V. (2013) 217 Cal.App.4th 126, 135 [same]; In re A.E. (2014) 228 Cal.App.4th

820, 825 [same, in a § 300, subds. (a) & (b) case]; In re J.S. (2014) 228 Cal.App.4th

1483, 1492 [same, in a § 300, subd. (b) case]; In re A.F. (2016) 3 Cal.App.5th 283, 289,

292 [same].) The recent trend in misreading section 361, subdivision (c)(1) is not without

real consequences. Applying the presumption to all dependency cases effectively

“deprives parents of appellate review of removal if there was a sufficient evidentiary

basis for jurisdiction.” (In re G.C. (Apr. 24, 2020, E072514) __Cal.App.5th __ [2020

Cal.App.Lexis 336, *42] (dis. opn. of Menetrez, J.) [“If jurisdictional findings always

constitute prima facie evidence that the children cannot safely remain in the home, then

whenever there is substantial evidence to support the jurisdictional findings, the removal

findings and orders must be affirmed as well”].)

       At least one published case, In re K.S. (2016) 244 Cal.App.4th 327 (K.S.), has

rejected the argument that the statutory presumption applies at every disposition hearing.

(See Id. at p. 342 [“The Agency argues that jurisdiction findings are prima facie evidence

that a child cannot safely remain in a parent’s care under section 361, subdivision (c)(1).

But that prima facie finding only applies to a jurisdiction finding under section 300,

subdivision (e) that a child under five years old has been physically abused”].) We agree

with K.S. The statutory presumption in favor of removal applies only when the child has

been adjudicated a dependent under section 300, subdivision (e).


                                             37
                                          III

                                   DISPOSITION

     We affirm the juvenile court’s jurisdictional and dispositional findings and orders.

     CERTIFIED FOR PUBLICATION


                                                             SLOUGH
                                                                             Acting P. J.

We concur:


FIELDS
                        J.


MENETREZ
                        J.




                                          38
