Filed 7/16/14 In re Christopher M. CA2/8 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION EIGHT 

In re CHRISTOPHER 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 Referee. 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, for Respondent. 

__________________________ 
2

Christopher M., Sr., (father) appeals from the order adjudicating his son, 

Christopher M., (Christopher) a dependent child 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 PROCEURAL BACKGROUND 

 Christopher is the youngest of five half-siblings: 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 Christopher 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 intimate with another woman before he went to 

prison. Unbeknownst to mother, father obtained 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 incarcerated 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 five children were detained. 

Mother denied knowing father’s whereabouts (or the whereabouts of the half-siblings’ 

fathers). DCFS filed a petition which, as to father, alleged he failed to provide 

 

1 All future undesignated statutory references are to the Welfare and Institutions 

Code. 

2 The half-siblings each have a different father. Except for Christopher’s, none of 

the other fathers participated in the dependency 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 manslaughter 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. 
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Christopher with the necessities of life (paragraphs b-9, g-5) (§ 300, subds. (b) & (g)).4 

All five children were placed with maternal grandmother. 

Paternal grandmother appeared at the adjudication hearing on January 26, 2011, 

and informed the juvenile court that father was in prison. The hearing 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 authorizing his attorney to represent him at the 

hearing. 

According to the report for the 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 represent 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 paternal uncle appeared at the March 8, 2011 

adjudication hearing. Finding father to be only 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 services 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 asked to be reunified with Christopher. He 

was concerned that mother was not progressing in her case plan and maternal 

grandmother’s deteriorating health made Christopher’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 altercation in the presence of the children 

(paragraph b-4). Father does not challenge jurisdiction based 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 was hospitalized and placed on a three-week psychiatric hold 

after he became so angry when asked to share 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, mother 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 five 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 and wanted maternal grandmother appointed the 

children’s legal guardian or, alternatively, that maternal grandmother adopt them. 

Following the hearing, a section 366.26 permanent plan selection and implementation 

hearing was set for November 20, 2012. The juvenile court ordered DCFS to address 

visitation for paternal grandmother. The grandmothers subsequently agreed upon biweekly weekend visits for paternal grandmother, and to split holidays. 

 Father was released from prison on October 23, 2012. After DCFS learned that 

father was seeing Christopher during paternal 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 the .26 hearing and was appointed counsel. The 

hearing was continued to March 19, 2013, pending 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 visited Christopher five times. On March 19, 

2013 (the day of the .26 hearing), the juvenile court granted father’s section 388 petition 

seeking to be found Christopher’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, 2010 (detention), January 26, 2011 
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(jurisdiction/disposition), and 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 visitation but he told the social worker that he 

was happy with the existing visitation schedule and felt paternal grandmother could 

adequately represent his interests at the meeting. When the social worker arrived 

unannounced at father’s visit on April 25, Christopher was with a paternal uncle and 

father was not present. When father arrived 45 minutes later, accompanied by a female 

child about the same age as Christopher, father told the social worker that he was delayed 

at work. The social worker observed that father interacted more with the female child 

than with Christopher. Christopher referred 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, father relocated to San Diego to live with paternal 

grandmother. By the time of the continued adjudication hearing on August 28, 2013, 

father had obtained employment with a construction company and had enrolled in an 

anger-management program in San Diego. Father’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 consistently with help from his 

mother and brother, who together managed to get Christopher from Los Angeles to San 

Diego and back again (because father was on probation in San Diego, he was apparently 

not allowed to travel to Los Angeles). Christopher, then six years eight months old, told 

the social worker that he did not enjoy spending time with father. DCFS recommended 

continued reunification services to give father 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 petition had been filed: 

“The father is not currently incarcerated. He’s willing to and able to take custody of his 
6

child and that will also be his request.” The juvenile court sustained paragraphs b-9 and 

g-5 of the petition, which both alleged that father failed to provide Christopher with the 

necessities of life including food, 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 conduct, 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 challenged findings will have consequences to father 

beyond jurisdiction. 

“An important requirement for justiciability is the availability 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 jurisdiction with respect to a child when the child has been 

endangered in any manner described by section 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 adjudicating 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 may limit the control to be exercised over the 

dependent child by any parent . . . .”].) Where, as here, a father challenges the 

evidentiary support for jurisdictional 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. This 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 exercise personal jurisdiction over Father and 

adjudicate his parental rights, if any, since that jurisdiction is derivative of the court’s 
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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.App.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 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.” Placement 

under section 361.2 is a two-step process. Under subdivision (a) of that section, the 

juvenile court first determines whether temporary placement with the non-custodial 

parent would be detrimental to the child. Under subdivision (b), the court determines 

whether the placement should be permanent and dependency jurisdiction terminated. (In 

re John M. (2013) 217 Cal.App.4th 410, 420-421.) 

Although the term “nonoffending” does not appear 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 [Department] to temporarily place the child with the 

nonoffending noncustodial parent.”].) Other courts have found placement pursuant to 

section 361.2, subdivision (a) does not require 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.) 
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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 [“section 361.2 does not distinguish between an offending and 

nonoffending parent”], superseded by statute on other grounds, as stated in In re 

Adrianna P. (2008) 166 Cal.App.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 noncustodial parent would unquestionably be a 

consideration in assessing detriment under section 361.2, subdivision (a). (Nickolas T., at 

p. 1506, fn. 10.) 

Because jurisdictional findings based on father’s conduct could reasonably have 

consequences to consideration of father 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 Father 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 section 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 the dependency court’s findings and draw all 

reasonable inferences in support of those findings.” (In re John M., supra, 

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

1. Section 300, Subdivision (b) 
9

In relevant part, there is a basis for jurisdiction under section 300, subdivision (b) 

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 willful or negligent failure of the parent or 

guardian to provide the child with adequate food, 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 protect the child from risk of suffering serious physical harm or 

illness.” (§ 300, subd. (b), italics added.) 

To establish jurisdiction under section 300, subdivision (b), the risk of serious 

physical harm or illness from failure to support must exist at the time 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 pregnant 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. was born, the maternal uncle told the social 

worker that he did not want to be A.C.’s caregiver. But Mary K. said she was willing to 

take A.C. (Id. at pp. 666, 672.) The detention and jurisdiction/disposition reports 

inaccurately stated that mother named Mary K. only after 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 child’s ongoing care and supervision in that the child’s 

maternal uncle, and the maternal grandparents, are unwilling to provide care of the 

child.” ’ ” (Maggie S., at pp. 672, 667.) The appellate 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 paragraph b-9 of the petition, which alleged 

“[father] has failed to provide the child with the necessities of life including food, 

clothing, shelter and medical care. The father’s whereabouts is unknown. Such failure to 
10

provide for the child on the part 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 visiting 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 support the finding of jurisdiction 

under section 300, subdivision (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 unable 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 when dependency proceedings 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 mother, with whom father left Christopher, was 

unable to provide care or support. 
11

(1991) 228 Cal.App.3d 202, 210 [juvenile court erroneously focused on incarcerated 

father’s failure to make arrangements for child’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 noncustodial 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 question 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 insufficient evidence to support 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 care for A.C., were sufficient to compel a 

conclusion that at the time of the jurisdiction/disposition hearing, mother had arranged a 

caregiver for A.C. 

Here, the juvenile court sustained paragraph g-5 of the petition, 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 undisputed that, at the time 

of the jurisdiction/disposition hearing, father was out of prison, employed and wanted 

custody of Christopher. Even if the juvenile court found giving custody 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 already 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 the jurisdiction/disposition hearing. 

DISPOSITION 

 The jurisdictional order as to Christopher based on father’s alleged conduct is 

reversed, as is the dispositional order. The matter is remanded to the juvenile court for a 

new dispositional hearing as to Christopher at which the court should consider placement 
12

with father pursuant to section 361.2, subdivision (a). We express no opinion on a proper 

disposition order. 

 RUBIN, J. 

WE CONCUR: 

 BIGELOW, P. J. 

 FLIER, J.