Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. JV080193
SIMONS, J.
In this juvenile appeal in a dependency proceeding, James L. (Father) contends the juvenile court erred in finding jurisdiction based on allegations regarding his conduct and in refusing to place the minor, J.L. (Minor), in his custody. He does not challenge the court’s jurisdiction over Minor based on conduct of the mother, Tamiko B. (Mother). We reverse the court’s jurisdictional order to the extent it sustains the allegations regarding Father, reverse the court’s dispositional order, and remand for reconsideration of the disposition. We affirm the court’s Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) finding.
FACTUAL AND PROCEDURAL BACKGROUND
On June 12, 2008, the Humboldt County Department of Health & Human Services (Department) filed a petition alleging 16-month-old Minor was within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivision (b). The petition alleged there was a substantial risk Minor will suffer serious physical harm or illness as a result of inadequate supervision and the inability of a parent to provide regular care due to substance abuse.
All undesignated section references are to the Welfare and Institutions Code.
The petition included two separately numbered paragraphs of supporting factual allegations, b-1 and b-2. Paragraph b-1 alleged Mother was arrested for drug charges on June 10, 2008, and the physical conditions of Mother’s home threatened the safety of Minor. A subsequent jurisdictional report alleged the police went to Mother’s home on June 10; the house was filthy and there were drugs and knives within reaching distance of Minor and her three-year-old sister. The children were taken into protective custody and Mother was arrested for operating a drug house, possession of a controlled substance, and cruelty to a child. The next day, Mother admitted to the Department she had been using methamphetamine for the past four months and had started selling it four days before.
Minor’s older sister is not Father’s biological child and is not involved in this appeal.
Paragraph b-2 of the petition included factual allegations as to Father, who did not reside with Mother and Minor. It alleged Mother obtained a restraining order against Father in June 2007 due to domestic violence and the order is still in effect. It also alleged “Father knew or should have known that [Minor] was exposed to [M]other’s drug use and the hazardous living conditions of the home.” The jurisdictional report and its attachments detailed that, in May 2007, Mother reported to the police an incident of domestic violence. She told the police Father was angry at her for having friends over and he grabbed her by the neck and dragged her out of the apartment. He subsequently threw rocks and swore at her; the rocks did not hit her. Father told the police he was very drunk during the incident and angry at Mother for “partying around his child.” Mother told the Department that during the incident Father waved a knife in front of her and slammed her into a railing. She also said it was the first time anything like that had happened.
In June 2007, Mother obtained a restraining order prohibiting Father from contacting Mother, Minor, and Minor’s sister. At the same time, the superior court awarded legal and physical custody of Minor to Mother. In September 2007, the court entered an order pursuant to Mother’s and Father’s mediated agreement, whereby Father would have supervised visits with Minor. At Mother’s discretion, visitation could be increased and supervision lifted after Father completed an anger management program. Father was directed to obtain an alcohol and drug assessment and to follow any treatment recommendations. Father told the Department he did not take the anger management class, and there is no indication he participated in the drug and alcohol assessment. Although the restraining order was still in place in June 2008, Father had been in Mother’s home and was permitted unsupervised contact with the children. Mother had lied to Father by telling him the restraining order had been lifted.
On June 13, 2008, the juvenile court detained Minor and placed her in foster care. In July, the court sustained the petition and found jurisdiction over Minor pursuant to section 300, subdivision (b).
The June 2008 petition indicated Mother told the Department that Minor has no known Indian ancestry. At the detention hearing, Father told the juvenile court he was aware of no Indian ancestry; the disposition report states “Father has indicated that he has no Native American heritage.” The court found the ICWA does not apply.
On February 18, 2009, Father filed with the juvenile court a “Parental Notification of Indian Status” form indicating he was aware of no Indian ancestry. We grant the Department’s March 12, 2009 request for judicial notice of the form. (Evid. Code, § 452, subd. (d).)
At the August 12, 2008, dispositional hearing, the juvenile court acknowledged that Father was in a “favorable position” to receive custody of Minor and observed that the Department had put little effort into determining whether placement of Minor with Father would be appropriate. Nevertheless, the court found there would be substantial risk to Minor’s well-being if placed with Mother or Father and ordered that Minor be placed in a foster care home. The court ordered family reunification services for Mother and Father and scheduled a six-month review hearing.
The results of the six-month review hearing are not in the record.
DISCUSSION
I. Insufficient Evidence Supports a Jurisdictional Finding Based on Paragraph b-2
Father contends the evidence was insufficient to support a finding Minor came within the statutory definition of a dependent child based on the factual allegations in paragraph b-2. Section 300, subdivision (b), provides that a minor is within the jurisdiction of the juvenile court and may be adjudged a dependent child if the child “has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child....” The Department has the burden of proving by a preponderance of the evidence that Minor is a person described in section 300. (§ 355, subd. (a).) On appeal, this court’s authority to assess the sufficiency of the evidence “ ‘begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.’ [Citation.]” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) Substantial evidence is “ ‘evidence which is reasonable, credible, and of solid value.’ ” (In re Angelia P. (1981) 28 Cal.3d 908, 924.)
Father does not dispute that the juvenile court has jurisdiction over Minor based on the sustained factual allegations in paragraph b-1. (See In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [“a jurisdictional finding good against one parent is good against both[;]... the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent”].) However, Father contends the court’s finding regarding paragraph b-2 affected the disposition. The Department does not dispute that Father can challenge the paragraph b-2 jurisdictional finding on appeal.
In this case, the evidence showed there was a restraining order against Father based on an incident of domestic violence and Father failed to complete the anger management program and drug and alcohol assessment described in the visitation order associated with the restraining order. The juvenile court allowed the jurisdictional determination to be dictated by those facts without any consideration of whether any evidence showed Father presented a current risk to Minor. “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.]” (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) The existence of a restraining order based on past conduct does not necessarily show a current risk of harm. “An act or acts of abuse do not in themselves provide a basis for juvenile court jurisdiction. There must be some reason to believe the acts may continue in the future.” (In re Jennifer P. (1985) 174 Cal.App.3d 322, 326.) A parent’s failure to complete classes may be a significant factor where there is evidence of a pattern of violence, but Mother told the Department that the May 2007 incident, which occurred more than a year prior to the jurisdictional hearing, was the only time Father was violent. There is no evidence that Father has been abusive toward his current girlfriend or that he has been abusive toward or in front of Minor. Mother apparently was no longer in fear of Father, as she permitted unsupervised visits between Father and Minor and told the Father the restraining order had been lifted. At the jurisdictional hearing, the social worker admitted he had no reason to believe Father had committed acts of domestic violence since the May 2007 incident.
Although the visitation order did direct Father to obtain an alcohol and drug assessment, it did not actually direct him to complete the anger management class. Instead, completion of the class was a prerequisite to obtaining increased and unsupervised visitation.
The Department’s disposition report does state that Mother told the Department that Father spanked Minor’s older sister “so hard that he left bruises on her.” But the report contains no information regarding when that incident occurred.
This case is comparable to In re Alysha S., supra, in which the court held the allegations sustained at the jurisdictional hearing did not support the finding of jurisdiction. (51 Cal.App.4th at p. 399.) The court rejected as insufficient allegations that the father was physically abusive toward the mother, that he was incarcerated for domestic violence against the mother, and that the mother obtained and later dropped a restraining order. (Id. at p. 398.) The court observed that, even assuming there was more than one instance of violence against the mother, there were no allegations that “the violence was perceived by or affected the child.” (Ibid.) Also insufficient were allegations of an instance of sexual misconduct toward the minor: “All that is alleged is that the father, over one year ago, touched the minor’s privates in a manner the mother felt was inappropriate. That alone does not now establish a reason for state interference with the family.” (Id. at p. 399.) In this case, the evidence supporting jurisdiction under paragraph b-2 is even weaker because Father was never convicted of a domestic violence offense and there is no evidence of harmful conduct directed toward Minor.
The juvenile court’s interpretation of section 300, subdivision (b), would permit assumption of jurisdiction over a child wherever there is an episode of domestic violence in the past and where the responsible party has not completed treatment, without an individualized risk assessment. That is not the law. “Subdivision (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.) There was no substantial evidence before the juvenile court that Father presented a current “substantial risk of serious physical harm” to Minor. We will reverse the juvenile court’s jurisdictional finding regarding paragraph b-2.
In fact, the juvenile court declined to consider the specific alleged details of the May 2007 incident. Thus, the court’s ruling was based on a “generic” past incident of domestic violence and Father’s failure to obtain treatment.
Paragraph b-2 also alleges Father knew or should have known of the hazards at Mother’s home. However, there was no evidence before the juvenile court that Father had ever seen Mother’s home in a hazardous state. The social worker admitted during his testimony that he did not know how many times Father had been to the house or what he saw and that it was speculation that Father knew Minor was exposed to Mother’s drug use. Neither was there evidence of “ ‘solid value’ ” (In re Angelia P., supra, 28 Cal.3d at p. 924) that Father knew Mother was selling narcotics. The jurisdictional report states that, at a June 2008 Family Team Decision Making meeting in which Father and Mother participated, “Father indicated that he was aware that a number of men were coming to the house and [M]other admitted she was selling drugs to them.” It is unclear whether that means Father previously was aware of both of those facts, or whether Mother admitted the second fact at the meeting. Moreover, even assuming Father was aware of both of those facts, there is no indication of when Father became aware. Mother told the Department she had started selling methamphetamine only four days before the meeting.
II. Insufficient Evidence Supports the Decision not to Place Minor with Father
In its dispositional order, the juvenile court removed Minor from the custody of Mother and Father under section 361, subdivision (c). That section was inapplicable to Father because he was not a custodial parent. (In re V.F. (2007) 157 Cal.App.4th 962, 973.) Instead, after removing Minor from the custody of Mother, the court should have proceeded under section 361.2 to “ ‘determine whether there is a parent... with whom the child was not residing... who desires to assume custody of the child.’ ” (In re V.F., at p. 971.) Section 361.2, subdivision (a), provides: “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” Section 361.2 reflects a legislative preference for placement with a noncustodial parent. (In re John M. (2006) 141 Cal.App.4th 1567, 1569.) Any finding of detriment must be supported by clear and convincing evidence. (Ibid.)
In this case, although the juvenile court expressly proceeded under section 361, subdivision (c), it did make the factual finding required by section 361.2, subdivision (a). The dispositional order states: “The court finds by clear and convincing evidence that the return of the child to either parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of [Minor].” “ ‘We review the record in the light most favorable to the court’s order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that the child[] would suffer such detriment. [Citations.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.]’ [Citation.]” (In re John M., supra, 141 Cal.App.4th at pp. 1569-1570.)
We previously concluded that insufficient evidence supports the juvenile court’s finding that Father’s conduct provides a basis for jurisdiction over Minor. Similarly, there was no clear and convincing evidence before the juvenile court that placement of Minor with Father would be detrimental to her well-being. The court’s order states that the decision to remove Minor was based on Father’s failure to complete an anger management course and drug and alcohol assessment. However, as explained above, Father’s failure to do so is not enough to show a probability of harm to Minor, especially in the absence of a pattern of abusive behavior. As the court itself observed, the Department largely failed to even consider placement of Minor with Father. The social worker admitted the Department had not even visited Father’s home to assess whether it presented any risks. We will reverse the juvenile court’s dispositional order and direct the court to reconsider placement of Minor with Father under section 361.2, subdivision (a), in light of current information regarding Father’s ability to care for Minor. If placement of Minor with Father is required under section 361.2, subdivision (a), the court will need to modify the current restraining order to permit such a placement.
Remand for reconsideration is also appropriate because the juvenile court erred in applying a presumption in Family Code section 3044 against awarding custody to a person who has committed domestic violence. That section is inapplicable to this proceeding under section 300, subdivision (b). (See Family Code, § 3021.) On remand, the court should proceed under section 361.2, subdivision (a), without regard to Family Code section 3044.
III. The Juvenile Court’s ICWA Finding Was Proper
Both Mother and Father have notified the court they have no knowledge of any Indian ancestry. The juvenile court properly found the ICWA inapplicable to Minor.
DISPOSITION
The juvenile court’s July 15, 2008 jurisdictional order is reversed to the extent it sustains the allegations in paragraph b-2 of the petition. The court’s August 13, 2008 dispositional order is reversed to the extent it denies Father’s request for custody of Minor. The court’s orders are otherwise affirmed. The matter is remanded for reconsideration of whether Minor should be placed with Father under section 361.2, subdivision (a).
We concur: JONES, P.J., NEEDHAM, J.