Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court . No. CK76728 of Los Angeles County, Deborah Andrews, Judge.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Luis P.
Eva E. Chick, under appointment by the Court of Appeal, for Appellant Jasmin P.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
JOHNSON, J.
A father and his minor daughter appeal from the juvenile court’s jurisdictional and dispositional orders asserting jurisdiction over the daughter. They contend there is insufficient evidence to support the juvenile court’s finding of jurisdiction under Welfare and Institutions Code section 300, subdivisions (b) and (g). We agree, and reverse the jurisdictional order.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Minor appellant Jasmin P., and her younger brother Alejandro P. (who is not a subject of this appeal) are the biological children of appellant Luis P. (Father). Father and the children’s mother (Mother) ceased living together in 1998 and in 2000, Mother began living with Juan V. Mother has four children fathered by Juan V., whom Jasmin regards as, and to whom we shall refer as, her “Stepfather.” At the inception of this action, all six children lived with Mother and Stepfather.
Stepfather and his biological children are not parties to or subjects of this appeal.
On March 26, 2009, then 14-year-old Jasmin told an aunt that Stepfather had been sexually molesting her. The aunt called Father. Father advised the aunt to call the police, and accompanied Jasmin and the aunt to the police station to report the sexual abuse.
Jasmin told the police Stepfather molested her on three occasions. The first time occurred in March 2007 when the then-12-year-old was asleep on a couch. Stepfather was on the floor next to the couch. He reached into Jasmin’s underwear and rubbed her vagina. Jasmin “pretended to wake up, ” which startled Stepfather. He pulled his hand away and went to sleep.
The second incident took place in December 2007. On a visit to a relative’s house, Jasmin shared a bed with Mother and Stepfather, and Mother slept between Jasmin and Stepfather. Stepfather reached over Mother and began rubbing Jasmin’s inner thigh. He stopped when Mother moved in her sleep.
The final incident occurred on March 15, 2009. Stepfather came into Jasmin’s room in the middle of the night; she pretended to be asleep. He closed the door and walked over to the child’s bed. He held Jasmin’s hand with one hand, using his other hand to masturbate. Jasmin pretended to wake up, which startled Stepfather, who quickly went into an adjacent bathroom for a few minutes. Stepfather never mentioned any of the incidents to Jasmin. Before she told her aunt, Jasmin had never told anyone about what Stepfather had done. She did not think she would be believed, and did not want to upset Mother. None of the other children in the household reported having been abused. When the police interviewed him regarding the most recent incident of sexual abuse, Stepfather said, “I was drunk, I don’t remember.” He also professed to have no memory of either of the previous incidents. Stepfather was arrested for child molestation, and the police reported the incident to respondent Department of Children and Family Services (DCFS).
DCFS confirmed that Mother had been unaware of Stepfather’s sexual abuse. Mother believed Jasmin. Stepfather was the family’s sole source of income. Nevertheless, Mother said her family’s safety was of primary importance and they would live without Stepfather, even if it meant financial hardship. The children were left in Mother’s care.
Mother told DCFS she had not been in contact with Father for eight years, and was currently seeking child support from him. She said he had not provided care or support for Jasmin or Alejandro since they were born.
On March 30, 2009, DCFS filed a section 300 petition, under subdivisions (b), (d), (g) and (j) as to all six children in the home. Several counts related to the allegations of sexual abuse against Stepfather, and Mother’s failure to protect. The two counts at issue here (b-2 and g-1), alleged a failure by Father to provide Jasmin and Alejandro with “the necessities of life including food, clothing, shelter and medical care.” Even though it was Father who had urged Jasmin to report the sexual abuse to the police, the petition alleged that Father’s whereabouts were “unknown.” This allegation was later stricken.
Father did not attend the detention hearing on March 30, 2009. The juvenile court found him to be the presumed father of Jasmin and Alejandro, found that DCFS made a prima facie case for detention, and placed the children in Mother’s care. The matter was continued for arraignment of Father and Stepfather on April 10, 2009, and adjudication on April 30, 2009. Father appeared on April 10 and was appointed counsel. He entered a general denial as to the allegations against him. He submitted on the detention issues, so his children could remain with Mother. Father’s attorney informed the court that Father had given child support payments directly to his children. DCFS was ordered to investigate and address the issue of child support in advance of the adjudication hearing.
On April 30, 2009, DCFS reported that, when Jasmin was younger, she saw Father every one to three months. At one point, when the family lived in Mexico, Jasmin did not see Father for years, although he sometimes drove by her house and waved. She saw Father more often now that she was older, because she called him when she wanted to see him. Father never called Jasmin. Sometimes Father gave Jasmin money, usually $10-20, which she used to buy snacks. Twice Father had given Jasmin and Alejandro $100 each. Father never told the children to give the cash he gave them to Mother, and never gave them money specifically for rent, clothing, food or school. He told Jasmin he could not give them money for those things.
Father told DCFS that he had previously made a practice of sending money to Mother through third parties. He stopped doing so in 2000, however, after Mother began living with Stepfather, because he “wasn’t going to send her money for his beers.” He claimed he gave his kids $100–$150 every time he saw them. However, Father backed off that statement when confronted by contrary statements made by his children, saying only that he gave them whatever money he could afford. He tried to explain that he had two other children with his current companion, and a third baby on the way. He has only an elementary school level education, and usually works just three days per week, primarily as a gardener. He could not afford to take care of all five children. Father told DCFS that he could and would pay Mother $250–$300 per month in child support for Jasmin and Alejandro, beginning April 1, 2009. DCFS noted that as of the date if its April 27, 2009 report, Father had not made a payment to Mother.
The jurisdiction hearing began on May 19, 2009. The allegations against Mother were dismissed, and she and Stepfather each submitted to the juvenile court’s jurisdiction pursuant to In re Malinda S. (1990) 51 Cal.3d 368.
Father refused to submit to the court’s jurisdiction, and his attorney and counsel for Jasmin argued the counts alleged against Father should be dismissed. In response, DCFS argued that for many years, Jasmin and Alejandro had not seen their father at all and thereafter, saw him only intermittently and only when they instituted contact. DCFS also observed that Father’s sporadic gifts of cash to the children did not rise to the level of the provision of support, even taking Father’s low income level into account. DCFS argued Father had never provided for his children’s daily needs. Jasmin’s counsel acknowledged Father had an obligation to support his children, but asserted that obligation did not rise to the level of supporting a sustained petition under section 300. She argued the children had not been left without support. Mother (together with Stepfather) had been supporting the children all along and, until recently, never sought Father’s financial assistance. The attorney also argued that family law court, not a dependency proceeding, was the appropriate forum in which to raise the issue of child support, and that section 300, subdivision (g) allegations, were generally restricted to situations involving a parent who was incarcerated and unable to support or arrange care for a child. The court took the matter under submission and continued the hearing to early June 2009.
Jasmin’s had separate counsel from the attorney appointed to represent Alejandro and the other four children.
At the hearing on June 3, 2009, DCFS urged the court to sustain the allegations against Father, on the ground that daily love and nurturing was as much a “necessity of life” as the need for food clothing and shelter, and that a parent’s failure to provide such a necessity placed his child at substantial risk. Accordingly, DCFS argued that Father’s withdrawal of support from his children when Mother became involved with Stepfather placed them at substantial risk of harm. Counsel for Father and Jasmin argued DCFS’s assertion was speculative, and that DCFS had made no showing Jasmin was ever harmed or at risk of harm as a result of any act or failure to act on the part of Father. Father and Mother also informed the court that Father had paid Mother $300 in March and in April 2009, a fact DCFS had not been aware of when it submitted its report. The court accepted the truth of the parents’ representation.
The court sustained the petition as to Father under section 300, subdivisions (b) and (g). Moving on to disposition, the court overruled Father’s objection to the portion of the proposed case plan requiring him to complete a parenting class. This appeal followed.
DISCUSSION
Father and Jasmin maintain the juvenile court erred in sustaining the allegations of the petition, because there is insufficient evidence to support the assertion of dependency court jurisdiction over Father under section 300, subdivisions (b) or (g). Father also contends the court’s dispositional order was not supported by substantial evidence.
1. Jurisdictional findings
In identical language, counts b-2 and g-1, as amended and sustained, allege that Father “failed to provide the children with the necessities of life including food, clothing, shelter and medical care. Such failure to provide for the children by [Father] endangers the children’s physical and emotional health, safety and well being and places the children at risk of physical and emotional harm and damage.”
DCFS has the burden to prove the allegations of the petition are true by a preponderance of the evidence. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; § 355, subd. (a).) Evidence of a parent’s past conduct may be probative on the issue of whether a child falls within the ambit of section 300, but such conduct is relevant only as it bears on present circumstances. (In re Corrigan (1955) 134 Cal.App.2d 751, 757; In re Terry D. (1978) 83 Cal.App.3d 890, 900.) The juvenile court must look at the current situation to determine whether, under circumstances extant at the time of the jurisdictional hearing, the child has suffered, or is at risk of suffering, serious physical harm. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824; see also In re Katrina C. (1988) 201 Cal.App.3d 540, 546.) On appeal, we uphold jurisdictional findings unless, on review of the entire record, we determine there is no substantial evidence to support the juvenile court’s findings. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185; In re Monique T. (1992) 2 Cal.App.4th 1372, 1378.) “‘[W]hile substantial evidence may consist of inferences, such inferences must be “a product of logic and reason” and “must rest on the evidence” [citation];inferences that are the result of mere speculation or conjecture cannot support a finding [citations.]’” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393–1394, italics omitted.) The juvenile court’s rulings must be supported by reasonable, credible evidence of solid value. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Matthew S. (1996) 41 Cal.App.4th 1311, 1319.)
a. Section 300, subdivision (b)
As germane here, dependency court jurisdiction is properly asserted under section 300, if a “child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the... willful or negligent failure of the [child’s] parent... to provide the child with adequate food, clothing, shelter, or medical treatment....” (§ 300, subd. (b).) It is axiomatic that “[s]ubdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.” (In re Rocco M., supra, 1 Cal.App.4th at p. 823; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1137.) “[T]he fact that a child has been left with other caretakers will not warrant a finding of dependency if the child receives good care.” (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) We also bear in mind the principle that while evidence of past events may have probative value as to the court’s jurisdictional determination, such conduct is relevant only to the extent it bears on the circumstances at the time of the hearing. The pivotal question of whether the child has suffered, or is at risk of suffering, serious physical harm. (Ibid.)
Our review of the record reveals insufficient evidentiary support for the juvenile court’s finding that Jasmin had suffered or was likely to suffer serious physical harm as a result of Father’s actions. While it is true that Father failed to provide financial support for his children, and left them in Mother’s care since 1998, there is no evidence Mother provided the children with anything short of attentive, loving care. We flatly reject DCFS’s bold and logically unsupported assertion that Father shares “at least part of the blame for the molestation” of Jasmin by Stepfather, simply because Father “knew his children were being raised by [Stepfather] and he knew [Stepfather] was a drinker.” We are unaware of any support for the fallacious proposition-and DCFS provides none-that the consumption of alcohol necessarily launches one on a trajectory headed for sexual deviance.
Indeed, were there any support for DCFS’s argument, Father’s refusal to give money to Mother to subsidize Stepfather’s drinking would militate in Father’s favor and against the assertion of juvenile court jurisdiction.
The record reveals two bases for the juvenile court’s jurisdictional findings. The first was financial: The court found that Father’s occasional gifts of cash to his children did not constitute support, that Mother was in dire financial straits now that Stepfather was in jail and there was no household income, and that Father had the ability to pay something to support his children, as he was already supporting the children he had with his current companion. And, although Father said he could afford to give Mother $250-300 per month to help support Jasmin and Alejandro, he had not done so as of the time of the jurisdictional hearing. The second was emotional: the court noted there was direct evidence the children had suffered harm, based on a statement by Mother that she saw “how much it hurt [Jasmin and her brother] to not have contact with their father.” With respect to the financial basis for its ruling, the juvenile court learned it was misinformed, and that Father had in fact paid Mother $300 in March and April toward his children’s support. Although the court accepted the truth of that representation, it nevertheless refused to revisit its jurisdictional finding, on the ground that the monetary aspect was only “part of [its] ruling.”
Under subdivision (b), DCFS bears the burden to identify a specific, defined risk of serious physical harm to Jasmin resulting from her father’s failure to provide her the financial or emotional support the court found lacking. (In re David M. (2005) 134 Cal.App.4th 822, 829.) It failed to sustain that burden.
First, there is no evidence that Jasmin suffers or has ever suffered from a lack of food, clothing, shelter or medical care. Although it is true that Father did not provide funds for these necessities once Mother began living with Stepfather, it also appears that the children did receive those things by virtue of Mother’s care, and Stepfather’s financial support of her children and their children. DCFS acknowledged that Mother has always provided and continues to provide good care for the children, and the allegations against her were dismissed.
Second, there is evidence that in March 2009, Father began providing financial support to Mother to help provide for his children after she lost Stepfather’s financial support. Thus, there is no showing that any intentional or negligent act on Father’s part, caused Jasmin to lack for any necessity of life, let alone to suffer or to be at continued risk of suffering any serious physical harm. Moreover, even if Father’s past conduct may be deemed to have been a willful or negligent past failure on his part “to provide [his] child with adequate food, clothing, shelter, or medical treatment, ” by the time of the jurisdictional hearing Father was prepared to provide and was providing Mother with funds for such necessities, and there is no indication in the record that his provision of such support will stop.
In addition, Mother claims to have initiated the process of seeking child support from Father, presumably from the family court, the proper forum for such an endeavor.
Finally, we do not mean to diminish the pain a child invariably suffers when her father fails to contact her for years, or does no more than wave as he drives by. Nevertheless, the juvenile court’s reliance on the “emotional harm” Jasmin suffered to support its jurisdictional findings does not constitute the “serious physical harm” contemplated by section 300, subdivision (b) which is both necessary and sufficient to justify assertion of dependency court jurisdiction. In sum, where, as here, a child is not at risk of physical harm and has not suffered from a lack of food, clothing, shelter or medical care, the juvenile court lacks jurisdiction. (In re Matthew S., supra, 41 Cal.App.4th at pp. 1319–1320.)
b. Section 300, subdivision (g)
To establish juvenile court jurisdiction under section 300, subdivision (g), DCFS must demonstrate that the child “has been left without any provision for support....” This subdivision does not require that the juvenile court make a specific finding of harm or risk of harm. But, no child may be detained from either parent unless the court finds evidence of substantial injury or detriment to the child. (See §§ 361, subd (c) [custodial parent], 361.2, subd. (a) [non-custodial parent].)
Jurisdictional questions under this subdivision arise most commonly in cases involving incarcerated parents, and their ability to arrange for a child’s care during incarceration. (See e.g., In re S.D. (2002) 99 Cal.App.4th 1068, 1078 [issue under subd. (g) was whether incarcerated mother could “arrange for care” with out-of-state relative]; In re Monica C. (1995) 31 Cal.App.4th 296, 305 [jurisdiction lies under subd. (g) only if parent cannot make plans for child’s care].) As with other jurisdictional findings, the issue of an incarcerated parent’s ability to arrange for care is determined at the time of the adjudication hearing. (See In re Nicholas B., supra, 88 Cal.App.4th at p. 1134.)
We conclude Jasmin does not fall within this statutory definition. As discussed above, before she was detained, Jasmin lived with Mother and Stepfather. There is no evidence she suffered any neglect, was not cared for, or that her need for food, shelter, clothing or medical care went unmet. There is no question that Father failed to fulfill his familial responsibilities to help support his children when his relationship with their Mother came to an end. However, there is also no evidence his failure to do so deprived Jasmin of any necessity of life. Moreover, once Stepfather was out of the picture, Father responded positively and informed DCFS that he could and would pay Mother up to $300 per month to support Jasmin and her brother. It is undisputed that Father did in fact provide that financial support in each of the two months during which this action was pending below.
We find In re Matthew S., supra, 41 Cal.App.4th 1311 instructive. In that case, the child’s father was out of the country and the mother had primary custody of the child. The father’s provision of spousal and child support was erratic, but he did occasionally send his required $900 monthly payment. The court found no evidence to support the trial court’s jurisdictional finding that the father had left the child without provision for support. The mother’s financial resources were unquestionably “strained.” Nevertheless, she had supported her children for years, and continued to do so. Most importantly, there was “no evidence” the child suffered from “malnutrition, deprivation of shelter, clothes or medical care.” (Id. at p. 1320.)
The circumstances here are similar. True, prior to March 2009, Father did not make even the occasional support payments made by the father in Matthew S., and Mother has, until now, not worked outside the home or provided financially for the children on her own. Nevertheless, the pivotal question for purposes of a jurisdictional determination under section 300, subdivision (g) is whether the child has been neglected, or deprived of shelter, care, food or other necessities. In this case, there is no evidence Jasmin was neglected, not well-cared for or, in any respect, deprived of any necessity before she came to DCFS’s attention as a result of Stepfather’s sexual molestation. The evidence shows that once that abuse was revealed, Father stepped up to provide emotional support to Jasmin and, most importantly for purposes of the jurisdictional determination, began providing financial support to supplement what his children had lost. Accordingly, the fact that Father failed to provide support in the past, standing alone, may not be used to justify the assertion of jurisdiction over Jasmin, without at least a minimal showing that she also has suffered or is at risk of suffering neglect, or that she lacked or lacks for care, food or shelter. (Cf., In re Janet T. (2001) 93 Cal.App.4th 377, 392 [finding under section 300, subdivision (g) that father, whose whereabouts were unknown, had failed to provide support, was insufficient justification to declare children dependents and detain them from the custodial parent who had provided good care]; In re Matthew S., supra, 41 Cal.App.4th at pp. 1319–1320.)
In sum, DCFS failed to make the requisite evidentiary showing of injury or detriment to Jasmin resulting from Father’s failure to support. While we may postulate as to possible harm Jasmin might suffer as a result of Father’s failure to provide support and the scant attention he has paid her over the years, or the decline in the family’s financial circumstances due to Stepfather’s absence, these are harms that may have been suffered or might come to pass. But, without more evidence than is contained in the record before us, such harm is merely speculative. While historical neglect may indicate future risk of harm, the neglect in this case is not enough to declare Jasmin a juvenile court dependent without evidence of something more current. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.)
The juvenile court’s jurisdictional findings as against Father must be reversed; they lack substantial evidentiary support. Our reversal of the jurisdictional findings renders Father’s appeal from the dispositional order moot. (In re R.M. (2009) 175 Cal.App.4th 986, 991.) We need not address the parties’ remaining contentions.
DISPOSITION
The jurisdictional order of the juvenile court as to Father is reversed. The appeal from the dispositional order is dismissed as moot.
We concur: MALLANO, P. J., ROTHSCHILD, J.