62 Cal.App.5th 767
Cal. Ct. App.2021Background
- J.N., born June 2013, is the son of Mother (C.D.) and Father (V.N.). Father has been incarcerated since August 2019 and is not parole-eligible until February 2023.
- April 2020 DCFS referral arose after Mother and a newborn half‑sibling tested positive for marijuana and reports of in‑home marijuana use and domestic violence involving Mother and others; the initial section 300 petition alleged risk from Mother’s substance use and violence and did not allege against Father.
- A 2015 referral describing an alleged domestic violence incident by Father was characterized in the record as inconclusive; no verified restraining order or conviction for domestic violence in that incident was shown.
- In November 2020 DCFS amended the petition to allege J.N. was at risk because of Father’s violent criminal history and attached Father’s conviction and arrest records (convictions in 2014, 2016, 2019 for violent offenses and arson). The amended petition’s allegations relied on Father’s criminal record and incarceration alone.
- At the combined jurisdiction/disposition hearing Father appeared by phone and was found to be J.N.’s presumed father. The juvenile court sustained the petition as to Father, found placement with Father would be detrimental, removed J.N. from Father, placed J.N. with Mother, and denied Father reunification services under Welf. & Inst. Code § 361.5(e)(1).
- Father appealed; the Court of Appeal vacated the jurisdictional finding as to Father, reversed the removal from Father, and vacated the § 361.5(e)(1) detriment finding (while affirming other orders).
Issues
| Issue | DCFS's Argument | Father’s Argument | Held |
|---|---|---|---|
| Whether substantial evidence supported jurisdiction as to Father under § 300(b) based on his criminal history/incarceration | Father’s violent convictions and incarceration show a present risk to child safety | Criminal record and incarceration alone do not establish nexus to a current substantial risk to J.N. | Vacated jurisdictional finding as to Father — criminal history/incarceration alone insufficient without nexus to child risk |
| Whether removal from Father’s custody was supported under § 361(d) | Placement with Father would be detrimental given his violent convictions and incarceration | Removal requires clear and convincing evidence of substantial danger if Father were to exercise custody; record lacks such evidence or realistic risk while incarcerated | Reversed removal — insufficient evidence that Father exercising custody (or arrangements while incarcerated) created substantial danger |
| Whether denial of reunification services under § 361.5(e)(1) was proper | § 361.5 permits bypass of services for an incarcerated parent where reunification would be detrimental | § 361.5 inapplicable because the child was placed with a previously custodial parent (Mother); court had no basis to deny services under that bypass; the detriment finding is prejudicial | § 361.5 denial was erroneous and the § 361.5(e)(1) detriment finding vacated (could prejudice future proceedings) |
Key Cases Cited
- In re Alexis E., 171 Cal.App.4th 438 (2009) (appellate courts may nonetheless reach merits of a challenged jurisdictional finding that also supports dispositional orders)
- In re Noe F., 213 Cal.App.4th 358 (2013) (standard of review: substantial evidence tested in light most favorable to the juvenile court)
- In re David M., 134 Cal.App.4th 822 (2005) (risk must exist at the time of the jurisdictional hearing)
- In re Rocco M., 1 Cal.App.4th 814 (1991) (jurisdiction requires an identified, specific hazard posing substantial risk)
- In re Matthew S., 41 Cal.App.4th 1311 (1996) (DCFS must show specifically how the minor has been or will be harmed; past conduct probative only with nexus)
- In re Isayah C., 118 Cal.App.4th 684 (2004) (rejects a ‘‘go to jail, lose your child’’ rule; incarceration alone is not grounds for dependency/removal without other proof)
- In re V.F., 157 Cal.App.4th 962 (2007) (incarceration by itself cannot support a detriment finding for removal)
- In re T.W., 214 Cal.App.4th 1154 (2013) (§ 361.5 bypass provisions do not apply when, at disposition, the child is placed with a previously custodial parent)