Filed 12/24/18; Certified for Publication 1/23/19 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                 DIVISION ONE


In re ROGER S., a Person                          B290290
Coming Under the Juvenile                         (Los Angeles County
Court Law.                                        Super. Ct. No.
                                                  18CCJP02109)


LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

        Plaintiff and Respondent,

        v.

E.S.,

        Defendant and Appellant.


      APPEAL from orders of the Superior Court of Los Angeles
County, Nichelle Blackwell, Juvenile Court Referee. Reversed
and remanded with directions.
      Melissa A. Chaitin, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Mary C. Wickham, County Counsel, Kristine P. Miles,
Acting Assistant County Counsel, and Sally Son, Deputy County
Counsel, for Plaintiff and Respondent.
               __________________________________
                                                                1
      In this dependency case (Welf. & Inst. Code, § 300 et seq.),
E.S. (Mother) challenges the sufficiency of the evidence
supporting the jurisdiction finding against her. We conclude the
evidence presented at the adjudication hearing was insufficient to
support jurisdiction and therefore reverse the finding as well as
the disposition order and the custody order the juvenile court
issued upon termination of dependency jurisdiction. As explained
below, we remand the matter to the family court for a hearing on
custody and visitation.
                         BACKGROUND
Detention
      Investigation of current referral
      As stated in the April 2, 2018 Detention Report, on
February 7, 2018, the Los Angeles County Department of
Children and Family Services (DCFS) received a telephonic
referral, alleging Mother was neglecting her 12-year-old son,
Roger S., in that he continually came to school “extremely dirty
(body/clothing)” and “with a foul odor.” The caller (who was not
identified in the Detention Report) also noted Roger exhibited




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




                                2
                                2
“disruptive behavior” at school. The caller had tried to address
the hygiene and behavioral issues with Mother in the past but
there had been no improvement, and Mother had declined to
cooperate with an attempt to refer Roger for “school based mental
health services.” According to the caller, Roger had “reported not
having hot water, heat, or other basic necessities in the past.”
The caller did not know Mother and Roger’s current address, and
stated Roger had declined to disclose his address. The caller
visited Mother’s last known address (where she no longer lived),
and stated her former neighbors insinuated Mother was using
          3
cocaine.
       On February 13, 2018, a DCFS social worker visited
Roger’s school to meet with him, but the child was absent. The
assistant principal told the social worker he believed Mother was
neglecting Roger, stating Roger “comes to school every day and he
is dirty as if his clothes haven’t been washed, and has a foul smell
to the point that it ‘stinks up the whole room.’ ” The assistant
principal explained the school was unable to contact Mother, and
Roger refused to provide contact information. The assistant
principal also noted Roger “rarely” went to class (even when he
was present at school) and was “very disruptive” when he did
attend class.



      2
        The caller recounted an incident when Roger threw liquid
(soda) at Mother and Mother yelled at Roger during a meeting at
the school regarding Roger’s behavior.
      3
       Mother’s criminal history transcript indicated she was
arrested for possession of a controlled substance once, on August
17, 2017, but there is no indication formal charges were filed.




                                    3
       On February 14, 2018, one week after DCFS’s receipt of the
referral, the social worker located Mother and went to her home
to interview her and Roger. Mother declined to allow the social
worker to enter her home but spoke briefly with the social worker
on the porch. She told the social worker she did not want to
cooperate with DCFS, explaining “every time [DCFS] comes to
her home she has to move because her roommates do not like
                     4
DCFS in their home.” Regarding the allegations in the referral,
Mother “stated that her child was clean.” The social worker
noted Mother appeared “very tired,” avoided making eye contact,
and became “verbally aggressive” during the interview. She
                                                             5
declined the social worker’s request that she take a drug test.
Before calling Roger out of the home to speak with the social
worker, Mother indicated DCFS could detain Roger, stating in a
“nonchalant” manner, “ ‘you guys can do what you want. If you
want to take him (the child) then take him.’ ”
      The social worker interviewed Roger on the porch, outside
Mother’s presence. The social worker noted in the Detention
Report that Roger appeared to be wearing clean clothes, he was
not dirty, he did not have a foul odor, and he appeared to have a
new haircut. He indicated he took baths in the morning before
school unless he woke up too late. He further stated he went to
school every day, traveling there by bus. He conceded he did not
always attend his classes, describing some of them as “boring.”

      4
       Below we summarize Mother’s history of DCFS referrals
and proceedings.
      5
       Mother’s substance use was the reason for dependency
proceedings that commenced immediately after Roger’s birth, as
explained in more detail below.




                                4
He told the social worker he spent time with friends after school,
                                                       6
sometimes returning home between 7:00 and 9:00 p.m. He
denied Mother used drugs or was involved in domestic violence.
       The following day, on February 15, 2018, the social worker
visited Roger’s school and spoke with him there. The social
worker noted in the Detention Report that Roger was wearing a
“dirty yellowish shirt that was too small” and dirty pants, “and
his finger nails were really dirty.” He had been playing outside
during physical education class when the social worker contacted
him, and he “smell[ed] like sweat.” He also “smell[ed] like
mildew,” according to the social worker. He told the social
worker Mother “washes his clothes when she can and he always
has clean clothes.” He also stated he showered daily so long as he
woke up on time for school.
       Regarding school personnel’s statements that he was
“disrespectful in school,” Roger told the social worker he did “not
act up in class” and did “not disrespect the staff.” He
acknowledged some of his schoolwork was difficult for him, so he
chose not to attend some classes. According to the social worker,
he “stated that his mother gave up on him because she knows he
is not doing well in school and he has not changed, so mother
does not even bother to help him anymore.”
       Roger informed the social worker he shared a room with
Mother, and they each slept on their own twin mattress. He
stated Mother did not discipline him. He visited his father,


      6
       The caller who made the referral informed DCFS that
former neighbors of Mother and Roger told the caller that “Roger
was out in the street alone and unsupervised until late hours of
the night (midnight).”




                                5
Donald J. (Father), every weekend, and Father gave him an
allowance and bought him new clothes and shoes.
       On March 7, 2018, three weeks after the last home visit,
the social worker called Mother “in efforts to engage with [her]
again and obtain a better understanding of the family’s needs.”
Mother stated she refused to drug test or “sign[] any documents
for [DCFS],” but agreed to come into the office the following week
and bring Roger’s medical information. She explained she was
“tired of [DCFS] coming to her home” on repeated occasions “for
the same reasons.” She acknowledged Roger was performing
poorly in school, and stated she could not “hold [his] hand in
school.” Mother told the social worker she had recently visited
the school and provided staff with her new telephone number and
address.
       Mother also told the social worker Roger always had food,
water, and clean clothes, even though they did not have a stable
home. She took him to the laundromat and taught him how to
sort and wash his clothes. She stated she planned to visit an
agency to help her find a stable home. She explained she was “a
victim of domestic violence and that is why [the social worker
                               7
could not] come into the home.” Mother stated she had no
contact with Father, but Roger visited him every weekend.
      About a week later, on March 13, 2018, the social worker
called Mother to set up a meeting. Mother again stated the social
worker was not welcome in her home and she would not drug test
or sign documents for DCFS. She explained she had to move


      7
        The Detention Report contains no further explanation of
this statement or information about any current domestic
violence.




                                   6
again because the social worker visited her home. She provided
Father’s telephone number.
      On or about the same day, the assistant principal called
and stated “Roger was in class throwing rocks and was being
disrespectful to him as well as the staff.” The social worker went
to the school and met with Roger, who denied engaging in the
reported conduct. He told the social worker “he hates to go to
class because they only have three periods a day for an hour
[and] a half and he cannot sit in the class that long.” According
to the social worker, Roger had an “ ‘I don’t care’ ” attitude about
school, but stated he did not want to attend a different school.
      On this day, the social worker expressed concerns about
Roger’s hygiene. As set forth in the Detention Report, she
“observed [him] to have a foul smell like urine and to have a shirt
that appeared dirty and too small for him.” He stated Mother
“needed to wash the clothes,” but insisted the clothes he was
wearing and his body were clean.
      The social worker asked Roger questions about Mother.
Roger stated Mother did not want DCFS to enter the home
because “she [was] trying to move and get stable.” He did not
know why she declined to drug test but denied she was using
drugs. He told the social worker Mother did “not need to be on
the school emergency card” because the school had Father’s
contact information and should call Father about any issues.
      The following day, on March 14, 2018, the social worker
interviewed Father, who stated he ended his relationship with
                                                                  8
Mother soon after Roger was born because of Mother’s drug use.


      8
      The Detention Report does not set forth any additional
statements by Father about Mother’s drug use.




                                 7
He explained he had no contact with Mother but visited Roger
every weekend. He noted Mother moved and changed her phone
number “a lot.” According to Father, Mother had two prior DCFS
referrals for “the same thing” (not specified), but DCFS closed the
referrals without opening a case. He agreed to drug test and
stated he would care for Roger if the child were detained from
Mother. A few days later, DCFS received Father’s positive test
result for marijuana.
      On March 22, 2018, DCFS applied for an order removing
Roger from Mother. A court approved the order the next day. On
March 29, 2018, DCFS removed Roger from Mother and released
him to Father.
      Prior DCFS referrals and proceedings
      The Detention Report contains a summary of prior DCFS
referrals and proceedings involving this family.
      When Roger was born in late 2005, he and Mother tested
positive for cocaine. DCFS filed a dependency petition and the
juvenile court sustained counts about Roger’s positive toxicology
screen, Mother’s 10-year history of substance abuse, and Father’s
conviction for possession of concentrated cannabis. Mother
reunified with Roger and the juvenile court terminated
                                          9
dependency jurisdiction in January 2007.
      Between July 2011 and October 2017, DCFS received eight
referrals about Mother and Roger. The following five referrals
were “closed as unfounded”: a July 2011 referral alleging


      9
        As DCFS later set forth in the May 22, 2018
Jurisdiction/Disposition Report, the juvenile court issued an exit
order in December 2006 awarding Mother sole legal and physical
custody of Roger and granting Father monitored visitation.




                                 8
Mother’s use and sale of drugs (after which Mother tested
negative for drugs); a January 2012 referral alleging domestic
violence between Mother and her boyfriend; a February 2014
referral alleging Mother’s home was “filthy and unhealthy,”
Roger had hygiene issues, Mother failed to ensure the child was
fed, and Mother took Roger with her or left him home alone when
she went to buy and sell drugs; an April 2015 referral alleging
the school called Mother on more than one occasion to pick up
Roger because he smelled like urine and the other students
teased him; and an August 2015 referral alleging Mother was
using drugs and Roger was wondering around the streets by
himself because Mother failed to pick him up from school.
       Three other referrals were “closed as inconclusive.” In
October 2016, DCFS received a referral alleging Roger came to
school with “extreme body odor” and dirty clothes with stains.
The referral also alleged the school nurse had given Roger
deodorant, but it did not improve the situation. The assistant
principal of the school did not express any concerns and told the
social worker who investigated the referral that Roger did not
appear dirty. Roger told the social worker he “forgot to put
deodorant on that day,” he had clean clothes, and he showered
every night. The social worker made an unannounced visit to
Mother’s home and observed her folding clean clothes.
       A December 2016 referral alleging domestic violence
between Mother and her boyfriend was closed as inconclusive
after Mother obtained a restraining order.
       In October 2017, DCFS received a referral similar to the
current referral that led to Roger’s detention from Mother,
alleging Roger’s poor hygiene and behavioral issues and Mother’s
failure to consent to school-based mental health services. The




                                9
reporting party stated the school had provided Roger with
shampoo, pants, and shorts, but the hygiene issues persisted.
The reporting party also represented that the school security
guard believed Mother was using drugs. DCFS closed the
referral as inconclusive.
       Dependency petition and detention hearing in the
current case
       On April 2, 2018, DCFS filed a dependency petition under
section 300, subdivision (b), alleging: “On prior occasions,
[Mother] failed to provide the child with appropriate parental
care of the child [sic], in that the child was continuously found
dirty with a foul body odor of urine and sweat, and the child
repeatedly wore clothes to school that were dirty and too small
for the child. The mother’s failure to provide appropriate
parental care of the child endangers the child’s physical health
and safety, creates a detrimental home environment and places
the child at risk of serious physical harm, damage and danger.”
DCFS recommended the juvenile court detain Roger from Mother
and order him to remain in Father’s care.
       Mother and Father appeared at the April 3, 2018 detention
hearing. Mother’s counsel requested the juvenile court release
Roger to both parents with a safety plan in place, assuring the
court Mother now agreed to cooperate with DCFS by drug testing
and allowing DCFS access to her home during unannounced
visits. Father’s counsel requested the court detain Roger from
Mother and order the child to remain released to Father. Roger’s
counsel joined Father’s request, noting he (counsel) was
concerned about the comment Mother made to the social worker
during her first interview about the current referral (“ ‘you guys
can do what you want. If you want to take him (the child) then




                                10
take him’ ”). The juvenile court noted it also was “struck” by
Mother’s “odd” statement.
       The juvenile court ordered Roger detained from Mother and
released to Father and granted Mother monitored visitation. The
court noted Mother was uncooperative and noncompliant with
DCFS’s requests and that Mother’s “unstable lifestyle” was
“pretty detrimental” to Roger. The court also ordered Mother to
submit to random, on-demand drug and alcohol testing.
Jurisdiction/Disposition
       May 22, 2018 Jurisdiction/Disposition Report
       On May 3, 2018, a dependency investigator called Mother
to set up an in-person interview so she could include Mother’s
statements in the Jurisdiction/Disposition report. Mother
declined to meet with the investigator or provide any additional
statements.
       On May 4, 2018, the investigator interviewed Roger at
Father’s home. She noted in the Jurisdiction/Disposition Report
that Roger “was very guarded” and continued to be “very short
and reserved” when she pressed him for further details in
response to her inquiries. Roger described living with Mother as
“ ‘good’ ” and “ ‘fine.’ ” He understood the reasons he was living
with Father were that Mother “ ‘didn’t want to do a drug test and
was not cooperating and wasn’t taking good care of him.’ ” When
the investigator asked him to describe the ways Mother was not
taking good care of him, Roger responded that she was not
washing his clothes and getting him things he needed, such as
soap and a toothbrush. He indicated he did not know why
Mother could not get him these items. He stated Mother
purchased “ ‘food and groceries’ ” with her “ ‘EBT card,’ ” and she
was trying to find employment.




                                11
        The investigator asked Roger if Mother was using drugs,
and he replied, “ ‘No. I never seen her smoke or drink.’ ” Next,
the investigator asked if he believed Mother needed “any help,”
and Roger responded, “ ‘To fix her life.’ ” As stated in the
Jurisdiction/Disposition Report, the investigator then “informed
[Roger] that from what [the investigator] had read in the report
about mother’s behavior, [the investigator] believed mother may
be using drugs and would like to help mother. [The investigator]
asked [Roger] if he believed mother was using drugs.” Roger
replied, “ ‘Probably.’ ” The investigator asked why he believed
Mother was using drugs, and Roger responded, “ ‘I think she was
using, because she would go with her friends and stuff. I never
seen her smoke or drink.’ ” According to Roger, after Mother
returned from visiting friends, she would lie down on her bed and
go to sleep. He never observed Mother acting “strange, different
or weird,” as the investigator suggested.
        Roger told the investigator he felt “ ‘good’ ” about staying at
Father’s home. When the investigator asked how he would “feel
about the court ordering a Family Law Order where [he] would
now live with [Father] and only have visits with [Mother],” he
responded, “ ‘It’s whatever.’ ” Later in the report, the
investigator attributed the following undated statement to Roger:
“ ‘I do want to stay here with my dad.’ ”
        The investigator also interviewed Father on May 4, 2018.
He stated Mother stopped using drugs sometime after Roger was
born. Over the years, he suspected she was using drugs again,
but he “would give her the benefit of the doubt.” As her housing
situation became unstable, he asked her to let him have custody
of Roger, but she refused. He visited the child on weekends.
Roger always told him everything was fine at Mother’s home.




                                  12
Before Roger was detained from Mother, Father used to go to
Mother’s home and wash Roger’s clothes because Mother was not
doing it. After detention, Roger expressed surprise that Father
washed his clothes so often (once a week) because Mother did not
wash them that frequently. Father stated he would agree to an
order awarding him “ ‘full custody’ ” of Roger with visitation for
Mother.
      On May 8, 2018, the investigator interviewed the assistant
principal at Roger’s school. He stated he noticed improvement in
Roger’s hygiene and in-class attendance since the child started
staying with Father. He noticed only a slight improvement in
Roger’s behavior and believed the child “ ‘would benefit from
mental health services outside of the school setting.’ ”
      As stated in the Jurisdiction/Disposition Report, since
detention, Mother had not visited Roger or attempted to contact
him. Roger reported he wanted to visit Mother, and he texted her
but she did not respond. According to Father, Roger stated he
saw Mother on the bus one day, but the two did not speak to one
another.
      DCFS recommended the juvenile court sustain the petition
and then terminate jurisdiction with an order awarding sole legal
and physical custody of Roger to Father and granting Mother
monitored visitation.
      Jurisdiction/Disposition hearing
      Mother did not appear at the May 22, 2018
adjudication/disposition hearing, which was held in the
afternoon. She was at the courthouse that morning, but left for a
Live Scan appointment for her new job. She authorized her
counsel to proceed in her absence, and the juvenile court waived
her appearance. Father was not present either.




                               13
       DCFS’s counsel, Roger’s counsel, and Father’s counsel
urged the juvenile court to sustain the petition and terminate
jurisdiction with an order awarding legal custody of Roger to both
parents, physical custody to Father, and granting Mother
monitored visitation.
       Mother’s counsel asked the juvenile court to dismiss the
petition, arguing there was insufficient evidence showing Roger
was at substantial risk of suffering physical harm or illness. In
the alternative, counsel requested “joint physical custody or at
least unmonitored visitation for Mother,” arguing there was
“insufficient risk to justify the visits being monitored.”
       The juvenile court sustained the petition (count b-1 quoted
above), declared Roger a dependent of the court, removed him
from Mother’s custody, and placed him with Father. The court
terminated dependency jurisdiction with an order awarding joint
legal custody of Roger to both parents, physical custody to
Father, and granting Mother monitored visitation.
                            DISCUSSION
       Mother challenges the sufficiency of the evidence
supporting the jurisdiction finding against her.
       “In a challenge to the sufficiency of the evidence to support
a jurisdictional finding, the issue is whether there is evidence,
contradicted or uncontradicted, to support the finding. In making
that determination, the reviewing court reviews the record in the
light most favorable to the challenged order, resolving conflicts in
the evidence in favor of that order, and giving the evidence
reasonable inferences. Weighing evidence, assessing credibility,
and resolving conflicts in evidence and in the inferences to be
drawn from evidence are the domain of the trial court, not the




                                14
reviewing court.” (In re Alexis E. (2009) 171 Cal.App.4th 438,
450-451.)
       Jurisdiction under section 300, subdivision (b), requires
proof “[t]he 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 or guardian to
adequately supervise or protect the child . . . .” (§ 300, subd. (b).)
In deciding whether there is a substantial risk of serious physical
harm, within the meaning of section 300, subdivision (b), courts
evaluate the risk that is present at the time of the adjudication
hearing. “While evidence of past conduct may be probative of
current conditions, the question under section 300 is whether
circumstances at the time of the hearing subject the minor to the
defined risk of harm.” (In re Rocco M. (1991) 1 Cal.App.4th 814,
824, abrogated in part on another ground in In re R.T. (2017) 3
Cal.5th 622, 627-629.)
       The juvenile court’s finding Roger was at substantial risk of
suffering serious physical harm or illness as a result of Mother’s
                                                               10
neglectful conduct was not supported by sufficient evidence.
Nothing in the record indicates that having body odor or wearing
clothes that were dirty or too small—the only circumstances
alleged in the petition the juvenile court sustained—placed Roger
at substantial risk of physical harm or illness. There was no
nexus cited between Roger’s hygiene and any medical or dental
           11
condition.

      10
       It is undisputed Roger never actually suffered physical
harm or illness as a result of Mother’s conduct.
      11
        As set forth above, Roger indicated Mother did not
provide him with a toothbrush. However, nowhere in the record




                                 15
      The petition did not include allegations about Mother’s
drug use, Roger’s behavioral and academic issues, or Mother’s
supervision of Roger—all circumstances DCFS referenced in its
respondent’s brief. But even if it did, such allegations would not
have supported dependency jurisdiction because the evidence in
the record does not show a nexus between these circumstances
                                                            12
and a substantial risk of physical harm or illness to Roger.
      We reverse the jurisdiction finding because it was not
supported by sufficient evidence showing Roger was at
substantial risk of suffering serious physical harm or illness as a
result of Mother’s neglectful conduct. Because there was no basis
for dependency jurisdiction, we also reverse the disposition order
and the custody order the juvenile court issued.
      At this juncture, the disputed custody and visitation issues
are matters for the family law court to resolve. Accordingly we
remand the case to the family law court for a hearing on custody
and visitation. (In re A.G. (2013) 220 Cal.App.4th 675, 686; In re
John W. (1996) 41 Cal.App.4th 961, 976, 977, superseded on
other grounds by statute as noted in In re Marriage of David &
Martha M. (2006) 140 Cal.App.4th 96, 102-103 [“While remand to
a court different from the one which issued the judgment
appealed from is, to say the least, unusual, such a result is

is there evidence anyone ever observed Roger to have any dental
problems.
      12
         Nor did the petition include an allegation under section
300, subdivision (c) that Roger was at risk of suffering serious
emotional damage as a result of Mother’s conduct (e.g., her
alleged indifference about his detention and failure to respond to
his text messages after he was detained). Any argument
regarding risk of emotional damage is not before us.




                                16
necessarily inherent in section 362.4, which expressly
contemplates future proceedings in the family courts” after
termination of dependency jurisdiction with a custody order].)
       To avoid undue confusion and disruption in Roger’s life, we
order that the current custody and visitation arrangement (joint
legal custody of Roger to both parents, physical custody to
Father, and monitored visitation for Mother) be preserved until
the family court holds a hearing and determines custody and
visitation in light of current circumstances.
                           DISPOSITION
       The jurisdiction finding, the disposition order, and the
custody order are reversed. The matter is remanded to the
family court for a hearing on custody and visitation. The current
custody and visitation arrangement (joint legal custody of Roger
to both parents, physical custody to Father, and monitored
visitation for Mother) remains in place pending the hearing in
family court.




                                                CHANEY, J.

We concur:



             ROTHSCHILD, P. J.                  CURREY, J.*

      *
       Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




                                17
Filed 1/23/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION ONE

In re ROGER S., a Person              B290290
Coming Under the Juvenile             (Los Angeles County
Court Law.                            Super. Ct. No.
                                      18CCJP02109)

                                      ORDER CERTIFYING
LOS ANGELES COUNTY                    OPINION FOR
DEPARTMENT OF                         PUBLICATION
CHILDREN AND FAMILY
SERVICES,

        Plaintiff and Respondent,

        v.

E.S.,

      Defendant and Appellant.
      THE COURT:
      The opinion filed in the above-entitled matter on December
24, 2018, was not certified for publication in the Official Reports.
Pursuant to California Rules of Court, rule 8.1105(c), this opinion
is now ordered published in the Official Reports.

____________________________________________________________
ROTHSCHILD, P. J.           CHANEY, J.           CURREY, J.
