Filed 7/16/14 In re Christopher M. CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

In re CHRISTOP HER M., a Person Coming Under the Juvenile Court Law. B251097

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

CHRISTOPHER M., SR.,

Defendant and Appellant. (Los Angeles County Super. Ct. No. CK85289)

APPEAL from orders of the Superior Court of Los Angeles County. Stephen Marpet, Juvenile Court Re feree. Reversed and remanded.

Karen B. Stalter, under appointment by the Court of Appeal, for Appellant.

John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, Sarah Vesecky, Deputy County Counsel, fo r Respondent.

_____________ _____________2 Christopher M., Sr., (father) appeals from the order adjudicating his son, Christopher M., (Christopher) a dependent ch ild pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g) and the ensuing disposition order. 1 Father

contends there was no substantial evidence to support jurisdiction based on father’s alleged conduct. We reverse and remand.

FACTUAL AND PROC EURAL BACKGROUND

Christopher is the youngest of five half-s iblings: S. (born in 1994), David (born in 1999), Ruben (born in 2000 ) and Devin (born in 2004). 2 Mother and father were married

but father was incarcerated when Ch ristopher was born in December 2006. 3 Father is identified on Christopher’s birth certificate. Mother did not maintain contact with father

after she discovered that he had been intimat e with another woman before he went to prison. Unbeknownst to mother, father obtai ned a divorce from mother sometime in late 2010 or early 2011 while he was still incarcerated and in 2011 father remarried. Meanwhile, father was still in carcerated on November 17 , 2010, when Christopher and his half-siblings came to the attention of DCFS as the result of a referral alleging that mother physically abused then six-year-old Devin. All fi ve children were detained. Mother denied knowing fathe r’s whereabouts (or the wherea bouts of the half-siblings’ fathers). DCFS filed a petition which, as to father, alleged he failed to provide

1 All future undesignated statutory refe rences are to the Welfare and Institutions Code.

2 The half-siblings each have a differen t father. Except for Christopher’s, none of the other fathers participated in the depend ency proceedings. All of the half-siblings lived with mother, except for Serina, who lived with maternal grandmother.

3 In 1996, father was arrested and later convicted of second degree murder but in 2006, the conviction was reduced to manslaught er and he was sentenced to 10 years time served. Mother was pregnant with Christopher in June 2006 , when father was arrested for criminal threats and sentenced to 92 months in prison. After violating parole in June 2007, father was incarcerated again.3 Christopher with the necessities of life (par agraphs b-9, g-5) (§ 300, subds. (b) & (g)). 4 All five children were placed with maternal grandmother. Paternal grandmother appeared at the ad judication hearing on January 26, 2011, and informed the juvenile court that father was in prison. The he aring was continued to March 8, 2011, for father’s appearance. The next day, father signed a form waiving his right to appear, but checked the box authoriz ing his attorney to represent him at the hearing. According to the report for th e continued adjudication hearing, father expected to be released from prison in October 2012 . While incarcerated, father had seen Christopher about six times. He had not had any relationship with mother since 2006. Father wanted paternal grandmother to repres ent him in the dependency proceedings, and wanted Christopher placed in a safe place, with family. Father requested visitation at the prison. Paternal grandmother and a patern al uncle appeared at the March 8, 2011 adjudication hearing. Finding father to be on ly an alleged father, the juvenile court did not appoint counsel to represent him. It sustained the failure to provide allegations of the petition relating to father and ordered no reunification serv ices for him. Paternal grandmother was given overnight and weekend visits with Christopher. In September 2011 letters to the juvenile court judge and the social worker, father asked for a court-appointed attorney. Father as ked to be reunified w ith Christopher. He was concerned that mother was not prog ressing in her case plan and maternal grandmother’s deteriorating health made Chri stopher’s placement with her not in his best interests. Father asked that Christopher be placed with paternal grandmother and that father receive reunification services. Although his prison did not offer parenting classes, father described other relevant programs in which he had participated because he believed they would make him a better parent.

4 Similar allegations were made as to all five fathers. As to mother, the sustained petition alleged she physically abused Devin (paragraphs b-1 & b-2); mother and her male companion engaged in a physical a ltercation in the presence of the children (paragraph b-4). Father doe s not challenge jurisdiction ba sed on mother’s conduct and mother is not a party to the appeal.4 Mother stopped visiting the children in March 2012. In mid-April 2012, sevenyear-old half-sibling Devin wa s hospitalized and placed on a three-week psychiatric hold after he became so angry when asked to sh are a toy with Christopher that he bit Christopher, physically attacked maternal grandmother and attacked both the social worker and police officers. Diagnosed with Disruptive Behavior Disorder, Mood Disorder NOS and Impulse Control Disorder NOS, Devin was prescribed medication and returned to maternal grandmother’s home. On April 22, 2012, moth er was arrested for second degree robbery. According to the report for the May 23, 2012 status review hearing, father had written letters to Christopher, who was then fi ve years five months old. A contested section 366.22 permanency review hearing was set for July 24, 2012. The report for that hearing stated that mother was homeless a nd wanted maternal grandmother appointed the children’s legal guardian or, alternatively, that maternal grandmother adopt them. Following the hearing, a section 366.26 pe rmanent plan selection and implementation hearing was set for November 20, 2012. The juvenile court ordered DCFS to address visitation for paternal grandmother. The gr andmothers subsequent ly agreed upon biweekly weekend visits for paternal grandmother, and to split holidays. Father was released from prison on Octo ber 23, 2012. After DCFS learned that father was seeing Christopher during patern al grandmother’s visits, DCFS arranged

monitored visits for father on November 7 and November 13, 2012. DCFS reported that father was attentive and patient during these visits. Christopher was becoming receptive to father’s presence. Father appeared at th e .26 hearing and was a ppointed counsel. The hearing was continued to March 19, 2013, pe nding which father was given twice weekly

monitored visits and DCFS was ordered to assess father’s status in the case. Over the next five months, father vis ited Christopher five times. On March 19, 2013 (the day of the .26 hearing), the juven ile court granted father’s section 388 petition seeking to be found Christop her’s presumed father, and to have the jurisdictional and dispositional orders vacated on the grounds that father had not received proper notice of the hearings on November 23, 20 10 (detention), January 26, 20115 (jurisdiction/disposition), a nd March 8, 2011 (continued jurisdiction/disposition). Adjudication of the section 300 petition’s allegations against father was continued to May 21, 2013.

Father’s visitation became more consistent . Father’s work schedule prevented him from attending a family meeting to discuss visita tion but he told the social worker that he was happy with the existing visitation sche dule and felt paternal grandmother could adequately represent his interests at the m eeting. When the social worker arrived unannounced at father’s visit on April 25, Ch ristopher was with a paternal uncle and father was not present. When father arrive d 45 minutes later, accompanied by a female child about the same age as Ch ristopher, father told the social worker that he was delayed

at work. The social worker ob served that father interacted more with th e female child than with Christopher. Christopher referre d to father as “Big Chris” and did not recognize him as his father; Christopher was not affectionate toward father and seemed more comfortable with the paternal uncle. The adjudication hearing was continued so that father and Christopher could participate in joint counseling. On August 2, 2013, fath er relocated to San Diego to live with paternal grandmother. By the time of the continue d adjudication hearing on August 28, 2013, father had obtained employment with a cons truction company and had enrolled in an anger-management program in San Diego. Fath er’s Los Angeles therapist, whom father had been seeing since February 2013, gave father a positive prognosis; father had located a new therapist in San Diego. Father had been visiting cons istently with help from his mother and brother, who together managed to get Christopher from Los Angeles to San Diego and back again (because fa ther was on probation in Sa n Diego, he was apparently not allowed to travel to Los Angeles). Christ opher, then six years eight months old, told

the social worker that he did not enjoy spending time w ith father. DCFS recommended continued reunification services to give fath er more time to bond with Christopher. Father did not testify at the adjudication hearing on August 28, 2013. His counsel argued that circumstances had changed in the almost two years since the petiti on had been filed: “The father is not currently incarcerated. He ’s willing to and able to take custody of his6 child and that will also be his request.” Th e juvenile court sustai ned paragraphs b-9 and g-5 of the petition, which both alleged that fa ther failed to provide Christopher with the necessities of life including f ood, clothing, shelter and medical care. Father timely appealed.

DISCUSSION

A. Father’s Appeal Is “Justiciable”

DCFS contends we should decline to address father’s challenge to the jurisdictional findings based on his conduc t, because there is no challenge to the jurisdictional findings based on mother’s conduct. We elect to exercise our discretion to consider father’s appeal because the challenge d findings will have c onsequences to father beyond jurisdiction. “An important requirement for justiciab ility is the availab ility of ‘effective’ relief—that is, the prospect of a remedy that can have a practical, tangible impact on the parties’ conduct or legal status.” ( In re I.A. (2011) 201 Cal.App.4th 1484, 1490-1491.) The juvenile court exercises ju risdiction with respect to a ch ild when the ch ild has been endangered in any manner described by secti on 300; it acquires personal jurisdiction over the child’s parents through proper notice. ( Id . at p. 1491.) “Parental personal jurisdiction allows the court to enter binding orders ad judicating the parent’s relationship to the child.” ( Ibid .; see § 361, subd. (a)(1) [“In all cases in which a minor is adjudged . . . a person described by section 300, the court ma y limit the control to be exercised over the dependent child by any parent . . . .”].) Where, as he re, a father challenges the evidentiary support for juri sdictional findings based on his conduct, but does not challenge the jurisdictional findings based on the mother’s conduct, the appellate court may decline to address father’s challenge. Th is is because the juvenile court “will still be entitled to assert jurisdiction over the minor on the basis of the unchallenged allegations. Further, the court will still be permitted to exer cise personal jurisdiction over Father and adjudicate his parental rights, if any, since that jurisdiction is derivative of the court’s7 jurisdiction over the minor and is unrelated to Father’s role in creating the conditions justifying the court’s assertion of dependency jurisdiction.” ( I.A. at p. 1492.) However, where the jurisdictional finding could have other consequences beyond jurisdiction – e.g. where the finding may exclude the parent as a placement option – the appellate court has discretion to consider the question. ( In re Drake M. (2012) 211 Cal.Ap p.4th 754, 762- 763.) Relevant to this case is section 361.2, subdivision (a), which governs placement of a dependent child with a noncustodial parent. 5 It provides: “When a court orders removal of a child pursuant to Section 361, the court shall fi rst determine whether there is a parent of the child, with wh om the child was not residing at the time that the events or conditions arose that brought th e 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 em otional well-being of the child.” Placement

under section 361.2 is a two-st ep process. Under subdivision (a) of that section, the juvenile court first determines whether te mporary placement with the non-custodial parent would be detrimental to the child. Under subdivision (b), the court determines whether the placement sh ould be permanent and dependen cy jurisdiction terminated. ( In

re John M. (2013) 217 Cal.App.4th 410, 420-421.) Although the term “nonoffending” does not a ppear in the text of section 361.2, subdivision (a), some courts have recognized “an implicit nonoffending requirement in section 361.2.” ( In re John M., supra , 217 Cal.App.4th at pp. 421 et seq.; see In re

Karla C. (2010) 186 Cal.App.4th 1236 , 1245 [under § 361.2, “[i]f there is no showing of detriment, the court must order the [Departmen t] to temporarily plac e the child with the nonoffending noncustodial pare nt.”].) Other courts have found placement pursuant to section 361.2, subdivision (a) does not requir e the noncustodial parent to also be non-

5 Section 361, subdivision (c)(1), which governs placement with a non-offending custodial parent, is inapplicable because Christopher never lived with father. ( In re I.A., supra , at p. 1494.)8 offending. (See, e.g., In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1504 [§ 361.2, subd. (a) does not exclude from consideration for placement a noncustodial parent with a history of prior involvement with child dependency proceedings]; In re V.F. (2007) 157 Cal.App.4th 962, 966 [“sec tion 361.2 does not distingu ish between an offending and nonoffending parent”], superseded by st atute on other grounds, as stated in In re

Adrianna P. (2008) 166 Cal.A pp.4th 44, 57–58.). But even assuming that section 361.2, subdivision (a) does not include an implicit “non-offending” requirement, a jurisdictional finding based on conduct of a noncustod ial parent would unquestionably be a consideration in assessing detriment u nder section 361.2, subdivision (a). ( Nickolas T., at p. 1506, fn. 10.) Because jurisdictional findings based on fa ther’s conduct coul d reasonably have consequences to consideration of fath er for placement under section 361.2, subdivision (a), we exercise our discretion to consider father’s challenge to those jurisdictional findings.

B. The Jurisdictional Findings Against Fath er Were Not Supported By Substantial Evidence

Father contends no substantial evidence supports the jurisdictional findings under section 300, subdivisions (b) and (g) based on his conduct. We agree. We begin with the standard of review . “At the jurisdictional hearing, the dependency court’s finding that a child is a person described in se ction 300 must be supported by a preponderance of the evidence. (§ 355, subd. (a); [citation].) We review the dependency court’s jurisdictional findings for substantial evidence, and review the evidence in the light most favorable to th e dependency court’s findings and draw all reasonable inferences in supp ort of those findings.” ( In re John M., supra

, 217 Cal.App.4th at p. 418.) We turn ne xt to the substantial evidence question.

1. Section 300, Subdivision (b)9 In relevant part, there is a basis for ju risdiction under section 300, subdivision (b) if the “child has suffered, or there is a subs tantial risk that the child will suffer, serious physical harm or illness, as a result of . . . the willful or negligent fa ilure of the parent or guardian to provide the child with adequate fo od, clothing, shelter, or medical treatment

. . . . The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to prot ect the child from risk of suffe ring serious physical harm or illness.” (§ 300, su bd. (b), italics added.) To establish jurisdiction under section 300 , subdivision (b), the risk of serious physical harm or illness from failure to suppor t must exist at the ti me of the adjudication hearing. ( Maggie S. v. Superior Court (2013) 220 Cal.App.4th 662, 673 ( Maggie S. ).) In Maggie S. , the mother was incarcerated while pregna nt with A.C. Before A.C. was born, mother designated a maternal uncle and a family friend, Mary K., as prospective caregivers for A.C. Five days after A.C. wa s born, the maternal uncle told the social

worker that he did not want to be A.C.’s caregiver. But Ma ry K. said she was willing to take A.C. ( Id . at pp. 666, 672.) The detentio n and jurisdiction/disposition reports inaccurately stated that mother named Mary K. only afte r the maternal relatives declined to take A.C., and that the social worker was unable to make contact with Mary K. Based on those inaccurate reports, the juvenile court found A.C. to be a person described by section 300, subdivisions (b) and (g) because mother “ ‘was incarcerated and “made an inappropriate plan for the ch ild’s ongoing care and superv ision in that the child’s maternal uncle, and the maternal grandpare nts, are unwilling to provide care of the child.” ’ ” ( Maggie S. , at pp. 672, 667.) The appella te court reversed, reasoning that jurisdiction under section 300, subdivision (b) was not supported at the time of the hearing because mother had designated Mary K., Mary K. was willing to care for A.C.

and there was no evidence that A.C. would be at substantial risk of serious physical harm or illness based on failure to provide care if placed with Mary K. ( Id . at p. 673.) Here, the juvenile court sustained para graph b-9 of the pe tition, which alleged “[father] has failed to provide the child wi th the necessities of life including food, clothing, shelter and medical care. The father’s whereabouts is unknow n. Such failure to10 provide for the child on the pa rt of the father endangers the child’s physical and emotional health, safety and well being and places the child at risk of physical and emotional harm and damage.” None of these allegations as to father were supported by

the evidence available to the juvenile court at the time of the jurisdiction/disposition hearing on August 28, 2013. By that date, father was out of prison, employed, living with paternal grandmother in San Diego (who had been having unmonitored weekend visits with Christopher for some time) and was consistently visiti ng Christopher. In addition, father was in an anger management program and individual counseling, and was willing to pay for conjoint counseling with Christopher. Most significantly, father wanted custody of Christopher. There was no evidence that, at the time of the jurisdiction/disposition hearing, father was unwilling to provide Christopher with the necessities of life. As such, there was no evidence to supp ort the finding of jurisdiction under section 300, subdivis ion (b) based on father’s alleged failure to support.

2. Section 300, Subdivision (g)

Section 300, subdivision (g) provides a basis for jurisdiction if the child “ has been left without any provision for support; . . . the child’s parent has been incarcerated or institutionalized and cannot arrange for the care of the child; or a relative or other adult

custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown , and reasonable efforts to locate the parent have been unsuccessful.” 6 (§ 300, subd. (g), italics added.) Section 300, subdivision (g) applies only when the parent is unable to provide or arrange for care at the time of the hearing . ( In re J.O. (2009) 178 Cal.App. 4th 139, 153.) “The statue requires proof that appellant was una ble to arrange for care at the time of the hearing, not that he had failed to do so at some prior point in time.” ( In re Aaron S.

6 Although father was incarcerated wh en dependency procee dings began, the petition alleged only a failure to provide support; it did not allege father was incarcerated and unable to arrange for care, or that mothe r, with whom father le ft Christopher, was unable to provide care or support.11 (1991) 228 Cal.App.3d 202, 210 [juvenile co urt erroneously focused on incarcerated father’s failure to make arrangements for ch ild’s care before DCFS removed child from mother].) If the child must be removed from the custodial parent, the issue under section 300, subdivision (g) is whether the no ncustodial parent can either take physical custody, or can arrange for another caregiver. ( Id. at p. 212, fn. 10 [“under the proper construction of [§ 300, subd. (g)], the questio n is whether appellant was able to arrange

for the child’s care at the time of the hearing].) In Maggie S., supra , 220 Cal.App.4th at page 667, the appellate court found insuffici ent evidence to sup port jurisdiction under section 300, subdivision (g), reasoning that mother’s designation of Mary K. before A.C.’s birth, and Mary K.’s willingness to ca re for A.C., were sufficient to compel a conclusion that at the time of the jurisdic tion/disposition hearing, mother had arranged a caregiver for A.C. Here, the juvenile court sustained para graph g-5 of the pe tition, which alleged jurisdiction under section 300, subdivision (g) based on father’s failure to provide Christopher with the necessities of life. But the evidence was undisp uted that, at the time of the jurisdiction/disposition hearing, fath er was out of prison, employed and wanted custody of Christopher. Even if the juvenile court found giving cust ody of Christopher to father was not in Christopher’s best interest, there was no evidence that father could not make other arrangements for Christopher’s care, including with the paternal grandmother who already had an established relationship with Christopher, or even with the maternal grandmother with whom Christopher was alrea dy placed. That placing Christopher with father might not yet (or ever) be in Christopher’s best interests, is not relevant to the only issue under section 300, subdivision (g) – whether father was able to arrange for Christopher’s care at the time of th e jurisdiction/disposition hearing.

DISPOSITION

The jurisdictional order as to Christophe r based on father’s alleged conduct is reversed, as is the dispositional order. The ma tter is remanded to the juvenile court for a new dispositional hearing as to Christopher at which the court should consider placement12 with father pursuant to secti on 361.2, subdivision (a). We express no opinion on a proper disposition order.

RUBIN, J. WE CONCUR:

BIGELOW, P. J.

FLIER, J.