In re S.F.
W.F. (father)1 appeals from the juvenile court‘s jurisdictional findings and dispositional orders adjudicating his son, S.F. (minor), a dependent of the court under
requiring him to engage in substance abuse testing and treatment are not supported by substantial evidence, and (3) the court erred in placing minor in foster care
We agree that neither the jurisdictional findings nor the challenged dispositional orders are supported by substantial evidence, but conclude the juvenile court complied with ICWA.
I. BACKGROUND
The San Francisco County Human Services Agency (Agency) responded to a 10-day “Emergency Response Investigation Referral” regarding mother and minor, then 11 months old, after mother was released from a section 5150 hold. The Agency and mother agreed to a safety plan whereby minor would remain in maternal grandmother‘s care and mother would work with a non-court family maintenance program through the Agency. Two weeks later, mother violated the safety plan when she “brandished a knife at the grandmother, and a physical fight occurred between [mother] and [grandmother] in the presence of [minor],” which resulted in mother taking minor “on public transit, intoxicated.” At the time, father was residing in New York with his sister. He was, however, providing monetary assistance to mother and minor.
Detention
The Agency detained minor and filed a
mother (B1 to B3), the remaining two (B4 and B5), at father. Count B4 alleged “father has anger management issues that require assessment and treatment in that he had been sending the mother threatening text messages. [Father] has also sent the maternal grandmother and the mother messages indicating that he would send someone to hurt them.” (Capitalization omitted.) Count B5 alleged father “reported that he used to abuse crack cocaine and alcohol but that he is about 2 years sober.” (Capitalization omitted.)
In its detention report, the Agency stated it had notified father of minor‘s detention. Father stated he had been at the hospital for minor‘s birth but had not signed the birth certificate due to a disagreement with mother. However, he had taken a DNA test, which confirmed he was minor‘s father. Father identified his two sisters (minor‘s paternal aunts) as potential placements.
The Agency reported father as saying the following: He had abused “crack, cocaine and alcohol” in the past but had “been clean about 2 years.” He had
The Agency reported that when asked about father, mother and grandmother “said that they are receiving threats from him in text messages stating that he will send over a woman . . . to hurt them.” Mother was
“interested in filing a restraining order” against father and “was in the process of applying for one.” Mother stated she and father had “‘tussled’ together when they were dating, but that she wouldn‘t consider it to be domestic violence.” Mother‘s boyfriend stated mother had been “20 days sober” before she “receiv[ed] threatening text messages from [father], and that is when she started using because she was stressed out.”
At the detention hearing, the court found a prima facie case had been made that minor came within
Prior to the hearing, father sought to elevate his status to that of presumed father. In his motion, father stated he was “physically present [for] [minor] . . . until he moved to New York on June 29, 2021,” when minor was three months old. During that time, he had regularly “bathed [minor], burped him, fed him, changed his diapers, and took care of him alone.” He moved to New York “after a domestic violence incident with [mother],” because he “thought taking some space would be good for his relationship with [mother] and he needed the support of his family in New York.” Even though he had moved, he still spoke with minor “by way of FaceTime on a
daily basis,” as did his sister, with whom he lived. Additionally, both he and his family helped to support minor. This support included a six-month supply of diapers sent to minor from paternal uncle, money sent to mother and maternal
Jurisdiction and Disposition
The Agency‘s report stated as follows: Father agreed that the B5 allegation—that he had abused “crack cocaine and alcohol but that he is about 2 years sober“—was true. (Capitalization omitted.) Father said he started drinking at age 175 and began using cocaine in 2018, but he no longer drank alcohol and had “been clean of cocaine use since 2020.” The Agency had made a referral for “drug testing to assess his level of drug use,” but as of the date of the report, father had not tested. Father stated he had focused on “more pressing matters such as securing housing and employment.” The Agency was therefore “unable to determine the degree of [father‘s] abstinence from substance use.”
With respect to the B4 allegation, the Agency reported father and mother had been arrested for a May 2021 domestic violence incident, shortly before father left for New York. Mother stated father had “hit her, grabbed at her and pushed her in the past,” was “verbally abusive,” and “had threatened her and would ‘get in her face’ while they were in a relationship.” She stated father “had hit her with a fan while she was swinging a golf club
at him,” which had led to their joint arrest for infliction of corporal injury on a spouse or cohabitant. Father “denied any domestic violence” toward mother, and maintained it was mother who “had taken a swing at him with a golf club.”
The Agency further reported father had moved back to California “upon receiving the news that the minor was involved” in dependency proceedings but had not yet found “stable housing or income.” The Agency had “encouraged [father] to apply for public assistance if needed,” but had made no referrals in this regard. Father acknowledged he had not “parented the minor since leaving San Francisco” in June 2021 but stated he had financially helped to support minor and was seeking to reestablish his connection with minor through supervised visitation. Father currently had supervised visitation with minor two times per week and had been “consistent” with his visitation.
The Agency‘s case plan objectives for father included securing appropriate housing, substance abuse assessment, random drug testing, individual therapy
Five days before the jurisdiction and disposition hearing, father completed a self-reporting substance use assessment through the San Francisco Health Network Treatment Homeless Prenatal Program. Father reported smoking marijuana once a month and not using alcohol or cocaine. The therapist at the services center concluded that, given father‘s assessment and report of past and current services, father did “not meet medical necessity for . . . Substance Use Disorder Treatment[] at this time. [Father] endorses 2 years of abstinence from alcohol and cocaine and ahs [sic] successfully completed treatment in 2019. [Father] encouraged to continue working with community support resources included NA and HPP to maintain abstinence. [Father] encouraged to reach out if needing additional support or experiencing a relapse.”
At the contested jurisdiction/disposition hearing, the court heard from father, mother, the child welfare worker, and the dependency protective services worker.
Father testified as follows: He had moved to New York in June 2021, and it was after that that he first learned mother was using drugs after minor‘s birth. Mother had not been using drugs while they were together. His sobriety date was December 2019. He was not “actively working” on the 12 steps. He did not have a sponsor but had “acquaintances that [he] obtained [through] Narcotics Anonymous and AA.” His last NA meeting was three months before the hearing. The protective services worker had spoken to him about the drug testing referral. But “[t]here was just so much on my plate” because he was “looking for housing. I didn‘t know where I was going to sleep my head after that point. The hotel room ran out.” He was attending parenting education classes and felt these were of real benefit and also helped him stay focused on sobriety. Prior to the hearing, he completed
a substance abuse assessment and had tested once, with negative results. While completing the assessment, he remembered taking an earlier assessment and completing a 90-day inpatient treatment in 2019. He had not previously mentioned the 2019 assessment and treatment because “[n]o one ever asked for it.”
He had not received any help from the Agency in terms of housing and was “pretty much doing everything on my own.” He was open to other services, like “anger management classes,” but hesitant to have too many services “to get piled up in all these groups that hinder me from getting a roof over my head so you guys can release my son to me.” He wanted services that would assist him in obtaining “low subsidy” housing. He had just obtained employment and was scheduled to start work the week of the hearing.
Mother testified as follows: She had used drugs with father but “way before” she became pregnant or had minor.
She and father “got into an altercation and that led us to the jail,” but it was “not a situation that continuously happened.” They “had gotten into arguments. Again, not only that, there were certain physical situations. But
it‘s nothing like abuse at all.” When she told the social worker she and father had gotten into “tussles,” she meant, “Getting close. Getting loud.” This did “include putting hands on each other” but “not like bruises and stuff like that; so I‘ve never really had an actual fight fight. It may have been just pushing away type of thing.” There were “less than three” incidents, none of which were in the presence of minor; rather, he was with maternal grandmother.
With respect to the text messaging, mother initially stated she and father “had a lot of differences between each other; so I‘m not going to say it was threatening. What I‘m going to say is that I, like, moved on, and I was seeing someone different so there was lots of arguments and things going against both of us.” On cross-examination, she said father‘s text messages “were not always threatening. But at times, you know, they could feel that way.”
The child welfare worker testified as follows: From her “first interactions with [father], he indicated he wanted custody of [minor].” Father “was transparent” about his past alcohol and cocaine use but never indicated “he had completed a substance abuse treatment program.” He also had not provided any documentation that he had engaged in a substance abuse
She discussed the idea of placing minor with father with her supervisor. But they decided against it “because [father] hadn‘t been involved in the child‘s life for a prolonged period of time and there was that distance.” At that time, mother had indicated she “was receiving text messages from dad that seemed threatening, and that was another factor;
however, I do believe that in that decision, it came down to the distance and the lack of involvement of father with the child throughout his life.”
The protective services worker testified as follows: Father did not provide him with “any verification that he attended any treatment program.” Nor could he recall if he had ever asked father to do so. Father did complete a substance abuse assessment. The Agency had referred father to drug testing, but this was not mandatory as the court had not ordered father to “provide urinalysis testing.” Since that referral, father had taken one test, which showed he was “free of cocaine or amphetamine or anything.”
Father denied any domestic violence toward mother and denied making any threats toward mother and maternal grandmother. As to the May 2021 incident, father “indicated that mom was swinging either a golf club or a fan at him or towards him.” There was no evidence minor had been exposed to “any conflict between mother and father” or that “father used substances near [minor] ever.”
Father had video visits with minor when he was in New York and transitioned to in-person visits when he moved back to California, and “[b]y all accounts,” father had been “very appropriate” during visits.
At the beginning of the continued jurisdiction and disposition hearing, father‘s counsel sought a stipulation from Agency‘s counsel that AVATAR “is the official San Francisco City and County medical records system,” and that the system reflects “confirmation that father did, in fact, attend treatment.” The stipulation was based on a line in the self-reporting assessment completed by staff which stated “reporting 2 years of abstinence from cocaine and alcohol (consistent with AVATAR records).” The court pointed out this line made no specific mention of a drug treatment program. Counsel explained AVATAR “records would only reflect involvement in treatment. . . .
You wouldn‘t be able to get into those records were there not some interplay with a public health provider for those services.” Agency counsel did not dispute this statement and stipulated to what was “written in the report.”
Agency counsel then urged the court to sustain the
Minor‘s counsel joined in the Agency‘s arguments, asserting “there has been evidence presented, in addition to what‘s in the report, that the nature of the relationship between the parents has been conflictual, and it appears to be that the parents are minimizing that relationship.” Counsel was “concerned” about father‘s history of substance abuse.
Father‘s counsel pointed out the protective services worker had testified there was no evidence “that father had endangered [minor] or put his child . . . at risk.” As to the B5 count, there was no evidence of any “continued or current risk of harm” to minor, no evidence father had “continued to use drugs. In fact, you have the opposite.” Father acknowledged he had used substances in the past and he would therefore have a “lifelong problem.” But there was “no evidence he used beyond those couple years.” The substance abuse assessment was that he did not “require further treatment,” and his drug test was negative. As to the B4 count, the May 2021 incident “happened a year ago,” and there was “no evidence that anything ever took place in front of the minor.”
Counsel emphasized the question before the court was “Does [father‘s] behavior pose a substantial risk of serious physical harm or illness to his child?” and asserted, “There‘s no evidence of that.” Father was not a custodial parent, but rather was in New York, at the time of the events leading to detention. Father had “felt it was best for him to leave and have some space there, and he did. And he went to New York and had virtual visits with his son. And he sent assistance as he could. Financial assistance.” Visits between father and minor had been “perfect,” with “[n]o evidence of any substance use [or] conflict, [or] anger during those visits.”
The court sustained the amended petition.6 The court found mother to be credible. While mother was “clearly holding back” initially, under cross-examination “the truth came out in the end.” There had been “yelling, arguing, tussling, and basic domestic violence” between mother and father. The court also found father “was quite candid in some aspects,” but found him “not to be credible” in regard to domestic violence. And “[b]ecause of that lack of credibility in that particular area, it does reflect upon his self-reports when it comes to his lack of cocaine and drug use and abuse.”
Without taking any additional evidence, the court moved on to removal and disposition, hearing additional argument by counsel.
Father‘s counsel asserted the “court . . . cannot find by clear and convincing evidence that [father] would pose a risk of harm to his child consistent with [section] 361.D.” Thus, the “only basis” for removing minor
from father‘s custody was father‘s “poverty” and lack of housing, and those are not permissible bases for removal.
Agency counsel denied “seeking to remove the child from the father based on poverty.” Rather, the Agency was “concerned” because father had “knowingly left his child with a parent that he knew or reasonably should have known had a chemical dependency problem that posed a risk.” The Agency was also “concerned” about the “domestic violence incidents.”
Father‘s counsel responded that the fact father “quote/unquote knowingly left the child with mother” was “not an allegation in the case.” Furthermore, “[i]t was likely a smart decision for him to go away to his family at the time.” What father “desperately needs help with [is] housing. That is what we are asking for.” He was also “still requesting” placement with paternal aunts.
The court found by “clear and convincing evidence” that “there is a substantial danger to the physical health, safety, protection, or physical and emotional well-being of the child, and there are no reasonable means by which the child‘s physical and emotional health can be protected without removing the child from both parents.” It then identified the evidence it considered: (1) “the fact that three months after the younger person was born, he may have had a good reason, but [father] did leave for New York“; (2) “the yelling, arguing, tussling, domestic violence, even if it was mutual combat between the parents“; (3) “the recency of his cocaine . . . use for the two years in 2018 and 2020“; (4) even though father had recently started a job—the day of the hearing—he had “no means to . . . support the younger person“; (5) that father “currently does not have any housing“; and (6) that there was “currently no proof . . . to [father‘s] parenting skills or prior skills.” The court also found father‘s progress in alleviating the need for placement
was “minimal” and that the Agency had made reasonable efforts to prevent the need for removal.
When father‘s counsel took issue with the court‘s finding that father‘s progress had been “minimal,” given that father had returned to San Francisco to participate in the dependency proceeding, had completed all the visits, and
The court thereafter imposed several reunification requirements, including that father “submit to random drug testing” noting any missed drug test would be considered “a dirty test,” and that he “undergo substance abuse assessment and follow its recommended treatment.”7
II. DISCUSSION
A. Jurisdictional Findings
Mootness
As a threshold matter, the Agency maintains father‘s appeal is moot. It points out the
father and because the allegations as to mother are unchallenged, “this Court need not reach the merits of father‘s challenge to the B4 and B5 counts in the section 300 petition.”8
“[W]here jurisdictional findings have been made as to both parents but only one parent brings a challenge, the appeal may be rendered moot.” (In re D.P. (2023) 14 Cal.5th 266, 283 (D.P.).)
Father,
Our Supreme Court has recently clarified, “where a jurisdictional finding ‘serves as the basis for dispositional orders that are also challenged on appeal‘“—as is the case here—“the appeal is not moot.” (D.P., supra,
14 Cal.5th at p. 283 [disapproving Drake M., supra, 211 Cal.App.4th 754 to the extent it suggests “where a jurisdictional finding ‘serves as the basis for dispositional orders that are also challenged on appeal” that, alone, is insufficient to avoid mootness and supports only the exercise of discretionary review].)
We therefore address father‘s challenge to the B4 and B5 counts.
Sufficiency of the Evidence
As we have recited, the
Thus, to obtain a jurisdictional determination under
take steps necessary to protect the child.” (Cole L., at p. 602.) And a parent‘s “‘[p]ast conduct may be probative of current conditions’ if there is reason to believe that the
“‘In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. 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.’ [Citation.] ‘We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.‘” (In re I.J. (2013) 56 Cal.4th 766, 773 . . . ; see In re I.C. (2018) 4 Cal.5th 869, 892. . . .) However, ‘[s]ubstantial evidence is not synonymous with any evidence. [Citation.] To be substantial, the evidence must be of ponderable legal significance and must be reasonable in nature, credible, and of solid value.’ (In re M.S. (2019) 41 Cal.App.5th 568, 5809 . . . ; accord, In re J.A. (2020) 47 Cal.App.5th 1036, 1046 [(J.A.)]. . . [while substantial evidence may consist of inferences, any inferences must rest on the evidence; inferences based on speculation or conjecture cannot support a finding].)” (Cole L., supra, 70 Cal.App.5th at pp. 601–602.)
The B4 Count
The B4 count alleged: “The father has anger management issues that require assessment and treatment in that he has been sending the mother threatening text messages. The . . . father has also sent the maternal grandmother and the mother messages indicating that he would [send] someone to hurt them.” (Capitalization omitted.)
We preliminarily observe this count did not allege “domestic violence,” but rather, anger management issues based on alleged text messages. A dependency petition must contain a “concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the petition is being brought is a person within the definition of each of the sections and subdivisions under which the proceedings are being instituted.” (
However, “[p]utting aside whether it would be proper to sustain the petition based on an unalleged history of domestic violence” (Cole L., supra, 70 Cal.App.5th at pp. 604–605), there was insufficient evidence, in any case, to support a
Cases have made it abundantly clear that evidence of prior domestic violence between a mother and father, in and of itself, will not support jurisdiction under
For example, in Daisy H., supra, 192 Cal.App.4th 713, the court concluded there was insufficient evidence to “support a finding that past or present domestic violence between the parents placed the children at a current substantial risk of physical harm” because “[t]he physical violence between the parents happened at least two, and probably seven, years before the [filing of] the petition,” and there was no evidence the children were present when the violence occurred. (Id. at p. 717; see Cole L., supra, 70 Cal.App.5th at pp. 604–605 [insufficient evidence
In re Ma.V. (2021) 64 Cal.App.5th 11, 21–23 [insufficient evidence to support jurisdiction where it had been over 10 months since abuser had “left the family home,” and the mother had “ended her relationship with him“]; In re M.W. (2015) 238 Cal.App.4th 1444, 1454 [insufficient evidence to support jurisdiction where “the record contains evidence that a single incident of domestic violence occurred more than seven years before the hearing” and no other evidence of altercations between the parents]; In re Jonathan B. (2015) 235 Cal.App.4th 115, 120–121 (Jonathan B.) [insufficient evidence to support jurisdiction where the mother had lived apart from the father prior to the domestic violence incident and immediately reported it to the police and only other domestic violence incident occurred five years prior].)
Here, mother testified to three incidents of what she called “tussling,” including the May 2021 incident during which both parents were arrested. While these incidents apparently involved some physical touching, there was no evidence of any physical injury and there was no evidence these arguments (and any pushing) ever occurred in the presence of minor. (See Cole L., supra, 70 Cal.App.5th at p. 606 [physical danger to children was minimal where minor incidents of domestic violence involved, at most, some pushing and grabbing, and no evidence domestic violence took place in the children‘s presence].)
Similarly, there is no evidence minor was present at any time mother received a “threatening” text message from father. The record is devoid of any specifics as to what these messages actually said or even how many were sent. No copies or screen shots of messages were ever shown to any Agency personnel or introduced at the hearing. Nor could mother elucidate at the hearing. The most she could say when asked whether father had sent threatening texts was that they argued by text and “at times, you know, they
could feel that way.” While on an “abstract level” threats certainly are “incompatible with child safety ... such generalities” are not evidence of an “‘identified, specific hazard in the child‘s environment’ that poses a substantial risk of serious physical harm to him.” (In re J.N. (2021) 62 Cal.App.5th 767, 776 (J.N.), italics omitted.)
The Agency does not dispute the state of the record but contends the juvenile court was “entitled to infer” some of the “conflictual relationship took place in front of the child, given [that] the parents had lived together for the first three months of the child‘s life.” However, inferences must rest on evidence, not conjecture or speculation. (In re Emily L. (2021) 73 Cal.App.5th 1, 15; In re J.A., supra, 47 Cal.App.5th at p. 1046.) Here, not only was there no evidence that the squabbling and physical contact between father and mother occurred in the presence of minor, but the evidence was uncontradicted that minor was, in fact, not present and was with his maternal grandmother on these occasions.
After the May 2021 incident, father moved away from mother, in part, because he “felt it was best for him to leave and have some space there, and he did.” While the juvenile court uncharitably accused father of having “ditched” minor, the courts have repeatedly pointed out separation can be a proactive step to assist parents who are unable to reside together peacefully but who have given every indication they can interact appropriately with their children. (See Jonathan B., supra, 235 Cal.App.4th at pp. 119-121 [parental separation can be relevant where it eliminates danger to the children from domestic violence]; Daisy H., supra, 192 Cal.App.4th at p. 717 [past domestic violence is insufficient to support jurisdiction where there was “no evidence of any ongoing violence between the parents who are now separated“].) Indeed, the Agency appears to have been of the latter view—that because father and mother were no longer residing together, there was no substantial risk of physical injury to minor from any earlier altercations between the couple—at the time it prepared its reports, since it did not refer father for any anger management (let alone domestic violence) assessment, or to an anger management (or domestic violence) program. Nor did the Agency include any such assessments and programs in his case plan. Rather, the only “follow up” was a suggestion the parents attend individual therapy “to learn to communicate with each other more effectively” as a “more suitable tool for the parents to co-parent together.”
It is also true father did not deny hope of future reunification, stating “we‘re trying to accomplish things as parents and reunify our family.” But certainly a parent‘s desire to reunify his or her family is a laudable goal and not a basis for “inferring” that there is a “substantial risk” of “serious” physical harm to the minor in the absence of any evidence that reasonably suggests that is the case. Indeed, father displayed awareness that “there‘s issues that we both need to work on before we quote/unquote say that we‘re intimately involved.” And he had attended, and was continuing to attend, the parenting skills program.
”
The B5 Count
The B5 count alleged: Father “reported that he used to abuse crack cocaine and alcohol but that he is about 2 years sober.” (Capitalization omitted.)
As we have recited, father did not dispute this allegation. Nor, of course, did the Agency. Instead, it expressed “concern” about his prior drug use and doubt about his sobriety. The juvenile court, in turn, commended father for being forthright about his prior drug use and addiction, but doubted his credibility as to the state of his sobriety.
Again, the Agency had the burden of proving father‘s substance abuse history presented a substantial risk of serious physical harm to minor. (See In re I.J., supra, 56 Cal.4th at p. 773.) However, it presented no evidence father‘s reported sobriety was false, let alone, that any prior or current drug use presented a substantial risk of serious physical harm to minor.
Rather, the Agency complained father did not complete an assessment and did not test until shortly before the hearing. It acknowledged, however, father was not required to do either before the hearing. It also essentially dismissed the fact that father did complete an assessment—which concluded he did “not meet medical necessity for . . . Substance Use Disorder Treatment“—and did test, with negative results. The Agency also stipulated that a line in the self-reporting assessment completed by staff stated “reporting two years of abstinence from cocaine and alcohol (consistent with A[V]ATAR records).” Nor did it take issue with father‘s counsel‘s representation to the court that AVATAR “is the official San Francisco City and County medical records system,” and AVATAR “records would only reflect involvement in treatment. . . . You wouldn‘t be able to get into those records were there not some interplay with a public health provider for those services.”
In short, the Agency presented no evidence that father had lied about his sobriety or that he had a current substance abuse problem that posed a
B. Dispositional Orders13
Removal from Noncustodial Parent
Applicable Statute
After the hearing, the juvenile court entered a written order and checked the box stating: “Good cause appearing, the court hereby makes the following findings by clear and convincing evidence, pursuant to [
Father contends the court erred in applying
Accordingly, in 2018, the Legislature sought to “clarify the juvenile court‘s authority to remove a child from the physical custody of a noncustodial parent” and establish “a specific standard for such removal.” (Sen. Judiciary Com., Assem. Bill No. 1332 (Reg. Sess. 2017-2018), p. 2; see also Seiser & Kumli, on Cal. Juvenile Courts Practice and Procedure (2022) § 2.126(2)(a), pp. 2-483 to 2-484 [“Effective January 1, 2018, [
The juvenile court therefore erred in removing minor pursuant to
Father maintains this error was prejudicial because
The legislative history reflects that in enacting
Thus, although the juvenile court erred in checking the
Sufficiency of the Evidence
“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,
In any case, any error in applying
Indeed, “[a]
At the hearing, father‘s counsel, citing to In re Serenity S. (2020) 55 Cal.App.5th 355 (S.S.), argued there was no evidence, let alone clear and convincing evidence, of a substantial danger to the child and no reasonable means to protect the child without removal. (
Counsel for the Agency responded, “we are concerned because the father knowingly left his child with a parent that he knew or reasonably should have known had a chemical dependency problem that posed a risk to this child.... [¶] . . . [¶] The father voluntarily elected to leave to go to New York for reasons that are in his own state of mind. But he left right after the tussle incident with the mother. The domestic violence incidents that the mother has detailed, those are the reasons the Agency is concerned.”
Defense counsel continued to emphasize that the court was required “to find clear and convincing evidence that father poses a risk of detriment to the child in order to remove from father. [¶] We are not seeking custody today; therefore, the court does not need to remove from father. The case of In re S.S. discusses this scenario where a parent has no housing. He desperately needs help with housing. That is what we‘re asking for.”
In short, the juvenile court found that the record before it not only supported jurisdiction under a preponderance of the evidence standard, but it also supported removal from custody under the significantly heightened clear and convincing evidence standard.
Given that we have concluded that the court‘s jurisdictional findings are not supported by substantial evidence, we necessarily reach the same conclusion as to the court‘s removal findings, i.e., that the removal order is not supported by substantial evidence, particularly taking into account the higher clear and convincing standard of proof.
We have discussed in detail why the Agency‘s showing fell short of establishing jurisdiction as to father, and we need not repeat that discussion here. We observe, however, that in arguing removal was warranted, the Agency identified two “concerns“—that father “left his child” with “a parent that he knew or reasonably should have known had a chemical dependency problem that posed a risk to this child,” and the “domestic violence incidents that the mother has detailed.”
As to the first concern, there was evidence mother had abused drugs prior to the pregnancy. But there was no evidence she did so during the pregnancy (notably there was no evidence in the record that minor was born with an addiction). There was also evidence the Agency received two referrals after the birth, on June 8 and 9, that alleged “mother‘s drug use is affecting her care of the minor” and in the second referral, the social worker “discovered the mother‘s substance use and her mental health issue might be affecting the mother‘s care of the minor.” The first referral was “evaluated out.” The second was “closed” because mother agreed grandmother would provide care
But awareness mother used, without more, cannot not support jurisdiction as to father (or even mother), let alone a removal order as to father. (See J.A., supra, 47 Cal.App.5th at p. 1046 [“dependency cannot be based on substance abuse alone; jurisdiction requires a substantial risk of harm to the child arising from the substance abuse“].) Furthermore, the Agency “evaluated out” the first referral and it “closed” the second in light of maternal grandmother‘s agreement to care for minor if mother again used and mother‘s access to and use of community services. Given that the Agency was satisfied with this handling of the incidents, father certainly cannot be penalized with loss of custody by failing to perceive mother‘s use created “a substantial danger to” the minor.
Furthermore, there is no evidence whatsoever that “there are no reasonable means by which the child‘s physical and emotional health can be protected” from mother‘s addiction “without removing” minor from father‘s legal custody.
As to the second concern—the incidents of domestic violence to which mother testified—there is, as we have discussed, no evidence the parents’ arguments and any touching occurred in minor‘s presence or presented a “substantial risk” of “serious physical harm” to minor, let alone, evidence sufficient to support a finding on the basis of “clear and convincing” of “a substantial danger to” minor. There is also no evidence, let alone evidence sufficient to support a finding by clear and convincing evidence, that “there are no reasonable means by which the child‘s physical and emotional health can be protected” from this concern “without removing” minor from father‘s legal custody. (See In re I.R. (2021) 61 Cal.App.5th 510, 513, 521-522 [evidence insufficient to support removal from father as record did not contain evidence minor was in substantial danger in the father‘s care nor was there evidence that “there were no ‘reasonable means’ to protect [the minor] other than removing her from Father“]; see also Isayah C. (2004) 118 Cal.App.4th 684, 700 [“[A] parent may have custody of a child, in a legal sense, even while delegating the day-to-day care of that child to a third party for a limited period of time.“].)
To the contrary, by residing apart from mother, father has already taken a step expressly approved in
As for the additional reasons recited by the court—the “recency” of father‘s cocaine abuse, “no proof” of his “current parenting skills or prior skills,” and no means to support minor and no housing to keep minor “safe and protected“—they do not singularly or collectively constitute substantial evidence, let alone taking into account the heightened clear and convincing standard of proof, that there “would be a substantial danger” to the “physical or emotional well-being” of the minor absent removal from father‘s legal custody. We have discussed at some length the absence of any evidence that minor is at substantial risk of serious harm in light of father‘s prior drug abuse. There is also no evidence minor is at risk due to the lack of any parenting skills. To the contrary, the evidence was undisputed that father attended to the infant appropriately, that he provided economic and material support while he lived in New York, and that he was attending parenting classes. Thus, there is also no evidence, let alone evidence sufficient to support a finding by clear and convincing evidence, that “there are no reasonable means by which the child‘s physical and emotional health can be protected” from any concern about parenting “without removing” minor from father‘s legal custody. And finally, as S.S. holds, a child cannot be taken from a parent‘s legal custody solely on the basis of the parent‘s poverty. Rather, the Agency must make every effort to assist the parent in securing employment and housing. The Agency made no such showing here. And father, on his own, had secured employment.
Drug Testing and Treatment Program
Father also challenges dispositional orders requiring drug testing and substance abuse treatment, asserting there was “no evidence of any current substance abuse.”
The Agency maintains father has forfeited this challenge because he did not object to these orders in the juvenile court. And, indeed, as a general rule, failure to object in the juvenile court forfeits a parent‘s right to pursue an issue on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293;15 accord, In re N.O. (2019) 31 Cal.App.5th 899, 935 [“’ “A party forfeits the right to claim error as grounds for
However, a recognized exception to forfeiture is futility. (See People v. Gomez (2018) 6 Cal.5th 243, 286-287 [” ‘Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile . . . .’ “].) As we have recited, father‘s attorney repeatedly argued there was no evidence that could support a jurisdictional finding or a dispositional removal order based on prior drug abuse. Given that the juvenile court rejected these arguments, we conclude any further objection to an additional disposition order requiring testing and treatment would have been futile. We therefore conclude father has not forfeited his challenge to the orders on appeal and turn to the merits.
Under
“The juvenile court has broad discretion to determine what would best serve and protect the child‘s interests and to fashion a dispositional order accordingly.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) Although the court “should be mindful of the burdens their disposition orders impose on parents already grappling with difficult conditions and circumstances,” the “paramount concern always must be the child‘s best interest . . . no matter how burdensome its requirements may seem from the parent‘s perspective.” (In re D.P. (2020) 44 Cal.App.5th 1058, 1071-1072.)
Nevertheless, a juvenile court‘s discretion is “not unfettered.” (In re Nolan W. (2009) 45 Cal.4th 1217, 1229.) The court‘s orders must be “‘reasonable‘” and, as is critical here, “‘designed to eliminate those conditions that led to the [juvenile] court‘s finding that the child is a person described by
Given that no sufficient evidence supported the juvenile court‘s jurisdictional finding based of father‘s alleged substance abuse, the dispositional testing and treatment orders aimed at eliminating that invalidated jurisdictional finding must also be reversed. In other words, in the absence of that jurisdictional finding, there is no nexus between the remaining valid conditions leading to the dependency and the challenged disposition orders. (
C. ICWA
In March 2022, the social worker asked father if he knew of any Native American ancestry in his family, and father reported he did not know “for sure if his family has any registration with a tribe but that he knew that his mother is Shinnecock. He reported remembering that he had went to some events when he was younger [on] a reservation. He said his sisters might have more information.” The Agency stated further inquiry was necessary because there was “reason to believe the child may be an Indian child.”
Three days later, father filed an ICWA-020 form. He marked the box indicating “[o]ne or more of [his] parents, grandparents, or other lineal ancestors is or was a member of a federally recognized tribe.” He stated, “[s]ome cousins lived on reservation (child‘s paternal great grandmother lived on reservation and current family members live on reservation) Shinnecock Tribe South Hampton.” He then listed the name of minor‘s paternal great grandmother.
The Agency‘s jurisdiction and disposition report noted father had completed an ICWA-020 form and indicated he had “Native American/Indian ancestry on his mother‘s side of the family.” The Agency stated despite naming the tribe—Shinnecock—father “has no other information of his Native American/Indian status except to indicate his sister . . . would have more information.” He provided his mother and grandmother‘s name, both of whom were deceased, and stated it was his grandmother “who has the Native American/Indian ancestry.” The social worked contacted one paternal aunt on two separate occasions but did not receive a response, and she contacted another paternal aunt once and also did not receive a response. Father indicated “no immediate family, including himself, has lived on a Native American/Indian reservation;” “attended a Native American/Indian school;” “has registered” with a tribe; or “received services” from a tribe.
The Agency noted further inquiry was required because father had claimed Indian ancestry and there is reason to believe minor “is an Indian child, but there is not sufficient information to determine there is reason to know” minor is an Indian child and further investigation is warranted. The report stated “Pending the response from [the Bureau of Indian Affairs] and Shinnecock Tribe as identified by the father‘s maternal side of the family might have Native American Ancestry.”
Under a section in the report labeled “FORMAL NOTICE,” the Agency checked the box stating, “The following efforts to gather family tree information necessary to complete the ICWA-030 were made: 5/18/2022. Family information gathered, documented above (in Further Inquiry grid), or in the attached family tree form, was included in the ICWA-030 notice.”
The juvenile court did not make any ICWA findings at either the detention hearing or at the jurisdiction and disposition hearing.
Father contends the court “erred in removing the child from father and placing him in foster care where the child was an Indian child and no notice as required by ICWA was provided.”
The Agency maintains there was “no reason to know [minor] is an Indian child,” and ICWA notice was not required. In essence, the Agency contends “[f]ather conflates two separate and distinct provisions of
“[S]ection 224.2 creates three distinct duties regarding ICWA in dependency proceedings. First, from the Agency‘s initial contact with a minor and his family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (
“It is important . . . to recognize the distinction between ‘reason to believe’ and ‘reason to know.’ A reason to believe should trigger further inquiry . . . , while a reason to know is the standard that requires actual notice.” (Seiser & Kumli, on Cal. Juvenile Courts Practice and Procedure, supra, § 2.125(2)(b), p. 2-451, citing
Preliminarily, we note the Agency never marked any box indicating there was a reason “to know;” rather, it only indicated further inquiry was required because there is reason “to believe” minor is an Indian child.
In any event, here there was no reason to know minor was an Indian child.
In contrast,
Here, it is clear the Agency had a reason to believe, but did not have sufficient information to determine there was a reason to know, minor was an Indian child.
Defendant relies on In re N.D. (2020) 46 Cal.App.5th 620, a case he claims is “factually identical,” to support his contention that “the juvenile court is not authorized to proceed with foster placement of an Indian child until ICWA notice has been sent and received.” However, this case was decided before the Legislature provided a definition for “reason to believe.” (See Seiser & Kumli, on Cal. Juvenile Courts Practice and Procedure, supra, § 2.125(2)(b), p. 2-452 [“Previously there was no definition of reason to believe.... This was resolved by the passage of Assembly Bill (AB) 2944 [Stats. 2020, ch. 104],” effective Sept. 18, 2020.].)
Accordingly, as the initial inquiry only established a reason to believe, and not a reason to know, we conclude there was no error in compliance with the ICWA requirements.17
III. DISPOSITION
The jurisdictional findings and orders as to father, as well as the related dispositional orders regarding removal and substance abuse testing and treatment, are reversed. The matter is remanded to the juvenile court with directions to dismiss the petition as to father.
Banke, J.
We concur:
Humes, P.J.
Margulies, J.
A166150, San Francisco Human Services Agency v. WF
Trial Court: Superior Court of San Francisco City and County
Trial Judge: Hon. Braden C. Woods
Counsel:
Linda S. Votaw, under appointment by the Court of Appeal, for Defendant and Appellant.
David Chiu, City Attorney, Kimiko Burton, Lead Attorney and Elizabeth McDonald Muniz, Deputy City Attorney for Plaintiff and Respondent.