91 Cal.App.5th 696
Cal. Ct. App.2023Background
- Minor (born 2021) was detained after mother relapsed, brandished a knife at maternal grandmother, and fought with grandmother while intoxicated; minor was then found intoxicated on public transit. Maternal grandmother initially cared for minor under a safety plan.
- Father lived in New York for months after a May 2021 incident with mother; he sent financial and material support, had regular video visits, and sought presumed-father status after detention. He admitted past cocaine and alcohol abuse but reported ~2 years’ sobriety and completed a recent assessment and a negative drug test.
- The Agency filed a Welf. & Inst. Code § 300(b)(1) petition with counts against father alleging (B4) anger/threatening texts and (B5) past substance abuse; juvenile court sustained those counts, found father not credible on some points, and removed minor from father’s custody.
- The court ordered reunification services for father, including random drug testing and substance abuse assessment/treatment; it checked the box for § 361(c) removal (custodial-parent provision) though father was noncustodial.
- On appeal, father argued the jurisdictional findings and removal/orders lacked substantial evidence (and clear and convincing proof for removal), and that ICWA notice was required. The Court of Appeal reversed the jurisdictional findings and related dispositional orders as to father, held ICWA compliance was adequate, and remanded with directions to dismiss the petition as to father.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of jurisdictional findings under §300(b)(1) (B4: alleged anger/domestic conflict) | Agency: parents’ conflict, prior arrest, and threatening texts show risk to child | Father: conflicts were limited, mostly not in child’s presence, father left household and there is no evidence risk would recur | Reversed — insufficient evidence to find a current substantial risk from parental conflict or alleged texts |
| Sufficiency of jurisdictional findings under §300(b)(1) (B5: past substance abuse) | Agency: father’s history and limited testing raise concern about sobriety and risk | Father: admitted past use but presented assessment finding no treatment need and negative test; no evidence of current use or risk to child | Reversed — no evidence father’s past use posed a current substantial risk to minor |
| Removal from noncustodial parent and dispositional orders (including §361 standard) | Agency: removal warranted because father left child with a parent with substance issues and because of domestic incidents | Father: removal unsupported; lack of housing/poverty not a lawful basis; clear and convincing evidence not met; requested assistance with housing instead | Reversed — removal order not supported under clear and convincing standard; court misapplied §361(c) but error harmless because §361(d) standard is equivalent; removal vacated |
| ICWA inquiry and notice | Agency: initial inquiry and further inquiry were done based on father’s report of Shinnecock ancestry; no reason to know so formal notice not required | Father: ICWA required and placement in foster care without proper notice was error | Held: No error — Agency had only a "reason to believe" and made further inquiry; no "reason to know" triggering formal ICWA notice at that time |
Key Cases Cited
- In re D.P., 14 Cal.5th 266 (Cal. 2023) (mootness and when appeals challenging jurisdiction that support dispositional orders are justiciable)
- In re Cole L., 70 Cal.App.5th 591 (Cal. Ct. App. 2021) (elements for §300(b)(1) jurisdiction and need for nexus to current risk)
- In re I.J., 56 Cal.4th 766 (Cal. 2013) (standard of review for dependency findings and burden on Agency)
- In re Daisy H., 192 Cal.App.4th 713 (Cal. Ct. App. 2011) (past domestic violence alone insufficient to support jurisdiction absent evidence of ongoing risk or child exposure)
- In re David M., 134 Cal.App.4th 822 (Cal. Ct. App. 2005) (requirement that §300(b) show a substantial risk of serious harm)
- In re J.N., 62 Cal.App.5th 767 (Cal. Ct. App. 2021) (agency must show specific hazard and nexus between parent conduct and current risk)
- In re M.V., 78 Cal.App.5th 944 (Cal. Ct. App. 2022) (heightened clear and convincing standard for removal and family-preservation bias)
- In re S.S., 55 Cal.App.5th 355 (Cal. Ct. App. 2020) (poverty or lack of housing alone cannot justify removal; Agency must assist parent)