Filed 7/31/14 In re Eli B. CA2/3 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION THREE 

In re ELI B., a Person Coming Under the 

Juvenile Court Law. 

 B250429 

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES, 

 Plaintiff and Appellant, 

 v. 

DAVID B., 

 Defendant and Appellant. 

 (Los Angeles County 

 Super. Ct. No. CK83432) 

 APPEAL from orders of the Superior Court of Los Angeles County, 

Debra Losnick, Juvenile Court Referee. Affirmed. 

 John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and 

Sarah Vesecky, Deputy County Counsel, for Plaintiff and Appellant. 

 Christopher R. Booth, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

_________________________
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INTRODUCTION 

 David B. appeals from the disposition order of the juvenile court that removed his 

infant son Eli B. from his custody (Welf. & Inst. Code, § 361, subd. (c)).1 The 

Department of Children and Family Services (the Department) appeals challenging the 

court’s order denying the Department permission to file a first amended petition that 

named father (§ 300). We affirm the orders. 

FACTUAL AND PROCEDURAL BACKGROUND 

 1. The detention report and last minute information for the court dated March 13, 

2013 

 Eli was born in late February 2013, with permanent pulmonary hypertension. The 

hospital placed a hold on the baby because of the failure of his mother, Nora B., to 

reunify with her older two children and possibly because of the inability of both of Eli’s 

parents to properly or safely care for the baby. 

 Father had no permanent address and never knew where he would sleep from one 

night to the next. To care for the baby, father planned to move in with his mother in her 

one bedroom apartment in Calabasas. The paternal grandmother welcomed Eli, but 

without mother or father. 

The Department filed a petition alleging that mother has a history of being beaten 

by the father of Eli’s siblings in the presence of the children, and of allowing that father 

to have access to the older children, and that mother failed to reunify with Eli’s siblings. 

(§ 300, subd. (j).) The petition contains no allegations concerning Eli’s father. 

 At the detention hearing, the juvenile court declared David B. to be Eli’s presumed 

father. The court then detained Eli and released him to father “on condition that father 

resides in the home of paternal grandmother.” (Italics added.) 

 2. The detention report dated April 3, 2013

 The Department received an emergency referral alleging emotional and physical 

abuse of Eli by mother and general neglect of Eli by father. The detention report 

 

1

 All further statutory references are to the Welfare and Institutions Code. 
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contained the following: A Glendale Police officer reported that father had called the 

police on March 28, 2013 requesting that law enforcement pick him and Eli up because 

he had been drinking and did not feel safe having the child with him. Arriving at a 

designated parking lot at midnight, the officer smelled alcohol on father’s breath. Father 

explained that he and mother had argued while riding the bus from Hollywood. Father 

had asked mother to hand the child to him and suggested he was recording mother on his 

cell phone. Mother reportedly took father’s phone and slammed it on the ground. 

Mother refused to return Eli to father because father had been drinking. Father had 

stayed in a “seedy motel with the child the night before.” The police arrested mother 

based on outstanding warrants for theft and a municipal code violation and detained Eli. 

Father gave a similar report of the events. 

 Meanwhile, the paternal grandmother had left for vacation on March 27, 2013, and 

did not know where father was. Asked whether father was living with her as ordered by 

the juvenile court, the paternal grandmother replied that father worked in Hollywood and 

stayed with family friends and others to avoid the long commute west with the baby. 

The maternal grandmother confirmed that father was not living with the paternal 

grandmother as father worked in Hollywood. She believed father was an alcoholic 

because he is “always drunk on the streets with the child.” She reported that father does 

not appear well, and heard from mother that father uses “rock” and marijuana. Father has 

dropped the child off with the maternal grandmother “numerous times.” Days later, the 

maternal grandmother called the Department to report that the child was staying with 

father’s friend. 

 Father told the social worker he did not know he had to stay in his mother’s house 

every night. He leaves the baby with his sister when he has to work, and sometimes Eli 

stayed there overnight. Father also admitted staying at a motel with the baby the prior 

week. He has a medical marijuana card but denied using other illicit drugs. He admitted 

to having been arrested for domestic violence against mother. 

As father was intoxicated while Eli was in his care, failed to comply with the 

court’s order to reside with his mother, and admitted to current marijuana use, the social 
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worker categorized the baby as being at “very high” risk of future neglect, caretaker 

absence, and incapacity. The Department recommended that the child be placed with the 

paternal aunt. 

 3. The April 3, 2013 ex parte application, the last minute information for the court 

dated April 14, 2013, and the request to file a first amended petition 

On April 3, 2013, three weeks before the scheduled adjudication hearing, the 

Department filed a motion to modify (§ 385) the existing order releasing Eli to father. 

The Department explained that father had violated that court order because he and Eli had 

been staying with relatives and friends and not with the paternal grandmother who had 

been on vacation since March 27, 2013. The juvenile court granted the Department’s 

section 385 motion, re-detained Eli, and placed him in the custody of the Department. 

The Department placed Eli in a foster home. 

The Department indicated it planned to file an amended petition to name father. 

On April 10, 2013, the juvenile court granted the Department permission to file the 

amended petition “FORTHWITH, PRIOR TO 4/24/13.” (Capitalization in original.) 

In its last minute information for the court, the Department listed its safety 

concerns about father: he was increasingly argumentative at the hospital and “out of 

control.” Security was called but father left the hospital instead. Father has no stability 

in his life, and no stable residence, and has not demonstrated an ability to care for Eli. Eli 

attends a high-risk medical clinic and father had not demonstrated he would be stable 

enough to arrange for the baby’s attendance, let alone provide for the baby’s general 

needs. Father argues with mother. The paternal grandmother reports that father is her 

eldest child and has never been stable. He was frequently in trouble in school, was 

arrested as a youth for drug use, and has yet to care for himself. 

4. The jurisdiction report and first amended petition dated April 24, 2013 

The Department’s jurisdiction report repeated all of the information in the April 3, 

2013 detention report, and contained accounts of interviews with father and mother. 
5

On April 24, 2013, the Department attempted to file its first amended petition to 

add allegations concerning father. The amended petition alleged domestic violence 

between mother and father (§ 300, subds. (a) & (b)), father’s alcohol and marijuana use in 

the child’s presence, his failure to provide the child with stable housing, and failure to 

comply with the court order to reside at the paternal grandmother’s house (§ 300, subd. 

(b)). The juvenile court refused to allow the filing of the amended petition because it was 

tardy. The court did not believe the social worker was “misinform[ed]” about the due 

date. However, the court stated it had read the reports and found that all the information 

provided in the first amended petition was already contained in those reports. The court 

also reviewed the section 385 motion attached to the April 3rd report, the detention 

reports of April 3 and March 13, 2013, and the addendum report of March 13, 2013. 

Proceeding on the original petition, the juvenile court sustained it under section 

300, subdivision (j) based on mother’s conduct only. The court requested the Department 

obtain a copy of the Glendale police report for the disposition hearing. 

5. The last minute information and disposition report dated June 6, 2013 

The Department complied with the court’s request to assess Eli’s placement and 

provide a copy of the Glendale police report. On June 6, 2013, the parties convened for 

the contested disposition hearing. The juvenile court stated it had read and considered 

the jurisdiction and disposition report and attachments dated April 24, the ex parte 

application, order, detention report of April 3, and the last minute information of June 6, 

2013. There was no objection to these documents. Father’s attorney declined the court’s 

invitation to present witnesses or documents. The Department requested that the court 

order reunification services for father. Recognizing father appeared to be nonoffending 

because the first amended petition was not filed, the Department argued that the court had 

broad discretion to make orders that are appropriate to address the risks, and recited the 

evidence in the record about father’s conduct. Through his attorney, father requested the 

child be returned to his custody because he was nonoffending and disputed specific facts 

the Department raised concerning father. 
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At the close of the hearing, the court found by clear and convincing evidence that 

Eli should be removed from his parents’ custody and control and placed with the 

Department. The court ordered reunification services for father. Father’s appeal and the 

Department’s appeal followed. 

CONTENTION 

 Father contends that the juvenile court unconstitutionally removed Eli from his 

custody. The Department contends the court erred in refusing to allow the filing of the 

first amended petition. 

DISCUSSION 

I. Father’s Appeal

Father believes his due process rights were violated by the juvenile court’s order 

removing Eli from his custody (§ 361, subd. (c)) at the June 6, 2013 disposition hearing 

because he was a nonoffending, presumed father who had not received the safeguards of 

a jurisdiction hearing. Father does not challenge the sufficiency of the evidence to 

support the juvenile court’s removal order. Instead, he argues this case “present[s] a 

purely legal question whether a juvenile court may remove custody at disposition from a 

presumed and custodial father” when that parent is nonoffending. (Italics added.) 

“The fundamental right to the care and custody of one’s child is protected by [the] 

Constitution and statute[s].” (In re Henry V. (2004) 119 Cal.App.4th 522, 525, citing 

§ 361, subd. (c).) “ ‘Santosky [v. Kramer (1982) 455 U.S. 745] establishes minimal due 

process requirements in the context of state dependency proceedings. “Before a State 

may sever completely and irrevocably the rights of parents in their natural child, due 

process requires that the State support its allegations by at least clear and convincing 

evidence.” ’ (Id. at pp. 747-748.)” (In re P.A. (2007) 155 Cal.App.4th 1197, 1211.) 

“California’s dependency system comports with Santosky’s requirements . . . .” 

(In re Gladys L. (2006) 141 Cal.App.4th 845, 848.) For example, to protect the parents’ 

constitutional interest in assuming physical custody of their children, the juvenile court 

may not remove children from the parents “in the absence of clear and convincing 

evidence that the parent’s choices will be ‘detrimental to the safety, protection, or 
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physical or emotional well-being of the child.’ ” (In re Isayah C. (2004) 118 Cal.App.4th 

684, 697.) 

This standard of proof applies to both offending and nonoffending parents. A 

child may be constitutionally removed from a nonoffending parent -- a parent who has not 

been the subject of any allegations in the section 300 petition -- in order to protect the 

child’s physical safety and emotional well-being, provided the juvenile court makes the 

predicate finding of detriment by clear and convincing evidence. (§§ 361, subd. (c) & 

361.2, subd. (a);2 In re P.A., supra, 155 Cal.App.4th at p. 1212; see In re Isayah C., 

supra, 118 Cal.App.4th at p. 697; accord, In re Z.K., supra, 201 Cal.App.4th at p. 70.) 

Once it declares a child a dependent, the juvenile court must follow section 361, 

subdivision (c) to remove that child from offending and nonoffending parents. That 

statute reads: “A dependent child may not be taken from the physical custody of his or 

her parents or guardian or guardians with whom the child resides at the time the petition 

was initiated, unless the juvenile court finds clear and convincing evidence of any of the 

following circumstances listed in paragraphs (1) to (5), inclusive . . . : [¶] (1) There is or 

would be a substantial danger to the physical health, safety, protection, or physical or 

emotional well-being of the minor if the minor were returned home, and there are no 

reasonable means by which the minor’s physical health can be protected without 

removing the minor from the minor’s parent’s or guardian’s physical custody.” (§ 361, 

subd. (c) & (c)(1).) “The high standard of proof by which this finding must be made is an 

essential aspect of the presumptive, constitutional right of parents to care for their 

children” (In re Henry V., supra, 119 Cal.App.4th at p. 529.) “Due process requires the 

 

2

 Section 361.2 governs the procedures the juvenile court must follow to place 

dependent children after removing them from a parent under section 361. (In re Z.K. 

(2011) 201 Cal.App.4th 51, 70.) Subdivision (a) of section 361.2 reads: “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.” 
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findings underlying the initial removal order to be based on clear and convincing 

evidence. [Citations.]” (Id. at p. 530.) 

Here, the juvenile court made the necessary finding by clear and convincing 

evidence. Father does not challenge the factual basis for that finding. 

Instead, father contends that the dispositional order was “structural” error because 

he was denied the right to “defend against the new allegations, including conferring with 

his lawyer, contacting witnesses, obtaining documents, preparing for examination and 

cross-examination . . . to address the specific allegations he faces.” Father is wrong. 

At the June 6, 2013 disposition hearing, the juvenile court stated it had read and 

considered the April 24, 2013 jurisdiction report, the April 3, 2013 ex parte application 

and detention report, and the June 6, 2013 last minute information for the court with the 

Glendale Police Department report attached. Asked whether he had any objections, 

father through his appointed attorney, responded “No.” Father’s attorney also declined 

the court’s invitation to call witnesses or present evidence, and then rebutted the 

Department’s facts of detriment during argument.3

 Therefore, father was given ample 

opportunity to defend his position at the disposition hearing. 

Father also contends that he was denied due process because “disposition hearings, 

unlike jurisdiction hearings, allow [the] wholesale admission of hearsay.” Actually, 

hearsay evidence is admissible at both the jurisdiction and disposition hearings (§ 355, 

subd. (b) [“A social study prepared by the petitioning agency, and hearsay evidence 

contained in it, is admissible and constitutes competent evidence upon which a finding of 

jurisdiction pursuant to Section 300 may be based . . .”]; In re Madison T. (2013) 213 

Cal.App.4th 1506, 1509 [any evidence including hearsay is admissible at disposition 

phase]). Father’s due process rights were protected at the disposition hearing, 

irrespective of the admissibility of hearsay, because the juvenile court could not remove 

 

3

 Father makes no claim that the Department’s status review reports were not made 

available to him in a timely fashion, and so his reliance on Judith P. v. Superior Court

(2002) 102 Cal.App.4th 535 (failure to provide parent with status report at least 10 days 

before § 366.21 hearing is structural error) is unavailing. 
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Eli without first finding detriment by clear and convincing evidence if the child were to 

remain in father’s custody. (In re Henry V., supra, 119 Cal.App.4th at pp. 525 & 529; 

§ 361, subd. (c).) There was no error. 

II. The Department’s Appeal

The Department contends that the juvenile court erred in denying it permission to 

file the first amended petition. As the Department acknowledges, the court was 

“frustrated” by the Department’s failure to comply with its specific order to file the 

amended petition “PRIOR TO” April 24, 2013. 

“The judge of the juvenile court shall control all proceedings during the 

hearings . . . .” (§ 350, subd. (a)(1), italics added.) The court here was understandably 

frustrated by the Department’s tardiness. Had the court allowed the late filing of the first 

amended petition, which was the first document to contain allegations naming father, 

father would have been justified in moving to continue the jurisdiction hearing to enable 

him to prepare a response, further delaying the disposition of the short dependency of an 

infant. (§ 361.5, subd. (a)(1)(B) [six months of court-ordered services for children who 

are younger than three years old at initial removal].) Meanwhile, as the court observed, 

the Department already had all of the facts that formed the basis for the allegations in the 

amended petition and so there was no justification for delaying the filing of the new 

petition for two weeks. The court specifically disbelieved the Department’s excuse that it 

was misinformed. 

The Department emphasizes the juvenile court’s obligation to “maxim[ize] safety 

and protection for children” (§ 300.2), and the goal of “expeditious and effective 

ascertainment of the jurisdictional facts and the ascertainment of all information relative 

to the present condition and future welfare of the person upon whose behalf the petition is 

brought.” (§ 350, subd. (a)(1).) While we agree wholeheartedly with the objective of 

these statutes, the juvenile court’s order fell squarely within their ambit. When rejecting 

the first amended petition, the court noted that all of the facts underpinning the 

allegations against father were contained in the documents already in the record, namely 

the March 13 and April 3 detention reports, the April 3 ex parte application, and the 
10

April 14 last minute information, and the April 24, jurisdiction report. There was no 

error here. 

DISPOSITION 

The orders are affirmed. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

 ALDRICH, J. 

We concur: 

 CROSKEY, Acting P. J. 

 KITCHING, J.