L. A. Cnty. Dep't of Children & Family Servs. v. E.S. (In re Roger S.)
242 Cal. Rptr. 3d 791
| Cal. Ct. App. 5th | 2018Background
- DCFS received school-based referrals (2011–2018) about Roger S., age 12, alleging poor hygiene, foul odor, dirty/too-small clothes, and disruptive school behavior; prior dependency arising from Mother's cocaine use at Roger’s birth had been terminated in 2007.
- February–March 2018 investigation: school staff reported ongoing hygiene and behavioral concerns; a caller alleged Mother declined help and may use drugs; Mother repeatedly refused unannounced home access and drug testing; Father had weekend visits and later received Roger after detention.
- Social-worker and school observations were mixed: some contacts described Roger as clean and freshly groomed; others observed dirty clothes, body odor, or poor grooming. Roger reported daily showers when awake, said Mother sometimes did not wash clothes, and expressed a desire to stay with Father.
- DCFS filed a section 300(b) petition alleging Mother’s failure to provide appropriate care (dirty clothing, foul odor) placed Roger at risk of physical harm; juvenile court detained Roger with Father, sustained the petition, and awarded physical custody to Father with monitored visitation for Mother.
- Mother appealed, arguing insufficient evidence supported jurisdiction under section 300(b); the appellate court reviewed whether the record showed a current substantial risk of serious physical harm or illness from Mother’s alleged neglect.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (DCFS/Child) | Held |
|---|---|---|---|
| Sufficiency of evidence to support jurisdiction under Welf. & Inst. Code §300(b) | Evidence (dirty clothes/body odor) does not show substantial risk of serious physical harm or illness; reversible error | Prior referrals, hygiene reports, Mother’s noncooperation, instability, and history support a finding of substantial risk | Reversed: evidence was insufficient; hygiene allegations alone did not show substantial risk of physical harm or illness |
| Consideration of other conduct (drug use, behavioral issues) not pled in petition | Court should not infer or rely on unpled allegations to sustain §300(b) jurisdiction | DCFS relied on broader family history and behavior to justify risk | Court noted petition did not allege drug use or emotional harm; even if raised, record failed to show nexus to substantial physical harm; those matters do not sustain jurisdiction |
| Disposition and custody orders entered upon termination of dependency | Orders should be reversed if jurisdiction is not supported | DCFS sought custody arrangement with Father preserved | Reversed disposition and custody orders; remanded custody/visitation to family court |
| Interim custody pending family-court resolution | Preserve stability for child | DCFS argued current arrangement was appropriate | Appellate court ordered existing arrangement (legal joint custody, physical to Father, monitored visits for Mother) remain until family court hearing |
Key Cases Cited
- In re Alexis E., 171 Cal.App.4th 438 (2009) (standard for review of sufficiency of evidence in dependency jurisdiction)
- In re Rocco M., 1 Cal.App.4th 814 (1991) (section 300 requires evaluation of current risk at time of hearing)
- In re R.T., 3 Cal.5th 622 (2017) (clarifies application of dependency standards)
- In re A.G., 220 Cal.App.4th 675 (2013) (remanding custody matters to family court after termination of dependency jurisdiction)
- In re John W., 41 Cal.App.4th 961 (1996) (discusses interplay between dependency and family court custody proceedings)
- In re Marriage of David & Martha M., 140 Cal.App.4th 96 (2006) (procedural context for post-dependency family court proceedings)