1

Filed 7/5/24 In re Eb.D. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re E b .D., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,

v. E

. D., Defendant and Appellant. E082572 (Super.Ct.No. J296015)
OPINION

APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Reversed and remanded with directions

. Michelle D. Pena, under appointment by the Court of Appeal, for Defendant and Appellant. Tom Bunton, County Counsel, and Landon Villavaso, Deputy County Counsel , for Plaintiff and Respondent.2

E.D. (father) challenges the juvenile court’s jurisdictional and dispositional finding s and orders concerning his minor daughter. He contends that the record does not
contain substantial evidence support ing either the jurisdictional finding against him u nder
Welfare and Institutions Code section 300, subdivision (b)(1) (§ 300(b)(1) ) or the order removing his daughter from his custody

. (U nlabeled statutory references are to th e Welfare and Institutions Code.) We agree that the jurisdictional finding is not supported by substantial ev idence , and we accordingly remand for further proceedings.
BACKGROUND
I. Initial r eferral and i nvestigation The family came to the attention of San Bernardino County Children and Family
Services (CFS) in December 2022

. CFS received an immediate response referral alleging general neglect and physical and sexual abuse of father’s 15

- year old child , E b. D. (daughter). D aughter had just moved in with father in September, after she ran away
from the home of her mother, V.C. (mother) , where A .V. (stepfather), J.V. ( step

- uncle ),
and daughter’s two younger half siblings also lived

. Step

- uncle lived with the family several days per week between August 2020 and September 2022.
D aughter reported separately to a law enforcement officer an d to a social worker
that the day before the referral she had a physical altercation with father

. Father was upset because of an email he had received from daughter’s school. When father arrived home, he told daughter that there was no one home to protect her , because paternal grandparents were not home. Father yelled at daughter and called her “‘a bitch

. ’” He3

approached daughter with clenched fists and pushed her, causing daughter to fall onto the
couch. D aughter did not suffer any bruises or marks on her bo dy as a result of the

encounter. D aughter left home later that night without telling anyone. D aughter believed
that father was under the influence during the altercation

. She said that father drank daily and frequently arrived home drunk. D aughter reported that when father was drunk he would get upset , “ get [] in her face ,” yell at her, “ and ball [] his hands into fist [s].”
D aughter denied that father had ever hit her before.
D aughter additionally reported that she ran away from mother’s house in September 2022 because mother had verbally and physically abused her. D aughter
disclosed that both stepfather and step

- uncle sexually abused her when she was living
with mother

. A social worker and a law enforcement officer together interviewed father. With respect to the incident the previous day, father confirmed that he confronted daughter
about a message but said that daughter became upset and pushed him. Father admitted
that he push ed daughter in response but said tha t he did not push her hard , and he denied
that she fell

. After he pushed daughter, she yelled , “‘ [H] i t me, give me some bruises.’” Father later realized that daughter was not at home , and he reported her missing. Father
denied that he ever physically di sciplined daughter and agreed not to have any additional physical encounters with her.
Father otherwise stated that daughter’s recent behavior had been problematic

. According to father, daughter moved in with him months earlier because she had acted4

aggressively toward mother

. Father believed that daughter was using drugs , because she was moody, ran away, and had a vape pen in her bedroom

. Father believed that daughter was upset because he and mother (collect ively, parents) had told daughter that she would have to submit to drug testing

. Father also believed that daughter was exaggeratin g about what had happened when she was living at mother’s house.
CFS recommended that daughter be detained from mother an d placed with father.
CFS reported that father appeared to be protective of daughter and able to meet her needs.
D aughter re ported feeling safe at father’s home. She felt as though she and father had a better relationship since she disclosed the sexual abuse that occurred when she lived with
mother

. II. Detention In February 2023, CFS filed a dependency petition alleging that daughter was
described by subdivisions (b)(1) and (d) of section 300. As to mother, the petition alleged that daughter had suffered sexual abuse by stepfather and step

- uncle while in
mother’s care and that mother ’s failure to protect daughter from such abuse had placed daughter at substantial risk of physical abuse. The petition did not cont ain any allegations against father.
The court detained daughter from mother and ordered that daughter could remain in father’s custody so long as father did not allow mother to have unauthorized contact
with her

. The court ordered father not to have any a lcohol in the home and ordered him

to take a drug test that day , which father did

. The results were negative

.5

CFS filed an amended petition as to daughter’s half siblings and stepfather. At a hearing in March 2023 concerning that petition , father’s counsel requested that the matter
be set for dismissal as to father

. T he court ordered CFS to file an addendum report documenting father’s progress and providing a recommendation concerning whether
father should be dism issed.
A social worker interviewed father in March 2023. Father worked 12

- hour days as
a truck driver. Father denied that he ever physically disciplin ed daughter or that anyone in the house hold used drug s or alcohol

. Father admitted that he previously drank alcohol
“‘once in a while’ and on the ‘weekends , ’” but he said that he had abstained since the detention hearing. Father was willing to take drug test s but said that he needed advance
notice because of his work schedule. Father disclosed that he had been arrested once for driving under the influence , but he said that the charges were dismissed

. III. Subsequent r eferrals concerning f ather
In May and June 2023, CFS received three referrals alleging that father was neglec ting and abusing daughter

. In addition, on May 19, daughter’s counsel filed a
section 388 petition, requesting that the court order daughter removed from father
because his excessive drinking caused her to feel un safe . The petition was supported by a declaration from Shauna D., a supervising social worker with Children’s Advocacy Group, Inc. (CAG) , the organization appointed to represent daughter in the proceedings.
Shauna interviewed daughter in May , and daughter re ported that father drank while he was driving with her in the car.6

On May 4, 2023, CFS received a referral alleging that f ather was a heavy drinker
and drank daily

. The reporting party indicated that father was verbally aggressive toward daughter when he was intoxicated

. According to the reporting party, father yelled at daughter and told her that she deserved to have been sexually abused

. CFS filed an addendum report with the court on May 9, 2023 , indicating that it was considering reevaluatin g the appropriateness of daughter’s placement with father. That day, a social worker interviewed father and daughter

. Father denied that he drank
alcohol and denied drinking or being intoxicated while driving with daughter. Father admitted that he previ ously drank alcohol excessively but said that he had stopped
because he did not want to jeopardize his employment. He was willing to take a drug

test. Father believed that daughter made a false allegation against him because she perceived him as too st rict. Father had recently discovered that daughter had a second cell phone , on which she had explicit photographs of herself

. D aughter had been messaging with adult men and sending them nude photographs of herself. Father admitted that he yelled at daughter about the photos. D aughter had also been sneaking
out of the house , and f

ather feared that she was meeting with adult men and smoking marijuana. Father was still adjusting to having daughter liv e with him.
Wh en interviewed, daughter denied that father had been drinking or that he inappropriately disciplined her. She acknowledged that she had reported to her attorney

concerns about how father acted when he was upset

. D aughter could not recall what she7

said an d did not recall reporting that father drove while under the influence. D aughter did not have any concerns living with father and felt safe, but she nevertheless wanted to live elsewhere because father was “very strict.” One week later, in mid

- May 2023 , CFS received a second referral alleg ing that
father generally neglected daughter and emotionally abused her. The report ing party
stated that father was drinking alco hol and acting verbally abusive toward daughter , who

runs away from home.
A social worker made an unannounced visit to father’s home. Father reported that daughter had run away from home because he was concerned about her whereabouts after school and her marijuana use. The social worker did not see any alcohol or alcohol
contai ners “on the premises.” Father showed the social worker where he stored recyclable cans . The stored cans included empty beer cans that father said belonged to paternal grandfather

. D aughter told the social worker that she continued to feel safe at hom e, but she admitted that she had run away three times

. D aughter denied that father was drinking alcohol in the home. In response to further questioning by the social worker, daughter repeatedly just answered that she was “‘fine.’”
A social worker inte rviewed daughter again in early June 2023

. D aughter reported that her arguments with father had “calmed down” and that she had no concerns to report.
She reported that no one in the home drank alcohol.8

In late June 2023, CFS received a referral alleging general neglect and sexual
abuse. D aughter

— then almost 16 years old

—had sex with her 18

- year
- old boyfriend , Dan iel , in father’s home. Father hit Dan iel , and daughter struck father. She was attempting t o stop fathe r from attack ing Dan iel

. A social worker interviewed father, who confirmed that he caught daughter having
sex with an adult man ( Dan iel ) in the house in the middle of the night. Father admitted
that he physically confronted Dan iel , whom fat her restrained until law enforcement
arrived. D aughter hit father in the eye. D aughter told father that Dan iel was her boyfriend, whom she had been dating for a while. Law enforcement arrested Dan iel but
released him. In August 2023, a social worker interviewed daughter. D aughter reported fe eling
safe at father’s home , and she wanted to continue living with father. D aughter was playing on the high school volleyball team and attended practice daily. She had not seen
father drink alcoh ol and denied that father drove while intoxicated. With respect to the night that father discovered daughter in bed with Dan iel , daughter admitted that she snuck Dan iel into the house and had sex with him

. D aughter
admitted that Dan iel was 18 years old

. D aughter accidentally struck father in the eye while attempting to protect Dan iel

. IV. D aughter’s s ection 388 p etition
Several days after CFS received the second May 2023 referral, daughter filed a petition under section 388 requesting to be removed from father and placed with a9

relative. The petition alleged that father kept alcohol in the house in violation of the
court’s order and that daughter told Shauna (CAG’s social worker) that father’s frequent drinking made daughter feel unsafe. The petition was supported by a declaration from Shauna

. D aughter disclosed to Shauna that father drank nearly every day and that hi s behavior changed when he drank. When father was drinking, he yelled, started fights with daughter and paternal grandfather, and acted aggressively. Father made frequent trips to the liquor store wh en he was drinking

. Father drank beer while he was dri ving with daughter in the car. On one occasion when father was drinking alcohol while driving with daughter in the car, daughter jumped out of the moving car and ran away. D aughter said that in early May
2023 she had reported father’s drinking to the soc ial worker , but father became angry and yelled at her when he read about the disclosure in a CFS report. Father instructed daughter not to tell anyone about what he did

. CFS filed a response to the section 388 petition in August 2023

. CFS
recommended that the court deny the petition

. In support of that recommendation, CFS
chronicled its efforts to investigate the three referrals received in May and June

. CFS
found the allegations from all three referrals to be unfounded. Father took thre e drug

tests in May and June , and the results for all of the tests were negative.
CFS concluded that it was in daughter’s best interest to remain in father’s home.
CFS believed that father had been honest about adjusting to being a full

- time parent and not being skilled in parenting a teenager who was exhibiting “ delinquent ” behavior

.10

Father had communicated with CFS about his concerns about daughter and indicated that he was willing to change his parenting tec hniques. In addition, CFS reported that f ather

was attending individual counseling and parenting classes. Father and daughter were participating in family therapy to improve their relationship. CFS did not have any
concerns about father ’s drinking , given that father submitted to drug tests and consistently tested negative

. In August 2023 , the court held a hearing on whether to set a full evidentiary hearing on the section 388 petition. On the day of the scheduled hearing, CFS filed an addendum report. CFS recommended that daughter remain in father’s home and that
father receive family maintenance services. Father continued to participate in individual therapy and parenting classes. Father took a drug test on August 15 , and the result s were still pending when CFS filed its addendum report

. T he court continued the hearing on the petition to October. At the request of daughter’s counsel and without opposition from CFS, the court ordered father not to have alcohol in his home and not to use corporal punishment.
V. Allegations a gainst f ather
Before the court held the continued hearing on daughter’s section 388 petition,
CFS filed a n amended petition containing a jurisdictional allegation against father, and the accompanying detention report recommended that daughter be detained from father. Father did not show up for a random drug test in mid

- September 2023 because of a n alleged conflict with his work schedule. The next day, father took an on

- demand drug11

test , and it was pos itive for ethanol. A social worker asked father about th e positive
result , and he admitted “to drinking ‘ Mike’s Hard Lemonade ’ on the morning of his drug
test.”
A social worker expressed to father that CFS was concerned about his drinking and wanted to remove daughter from his home. Father agreed to temporary detention of daughter by CFS. CFS recommended that the court order services for father

. As later amended , the petition alleged under sect ion 300(b)(1) that daughter had
suffered or was at subst antial risk of suffering serious physical harm as a result of father’s failure or inability to supervise or adequately protect her

. 1 The petition contained the following specific allegation: Father “has a substance abuse issue, specifically alcohol, which places [daughter] at risk of abuse and/or neglect.”
T he court held a detention hearing on September 28, 2023

. Father submitted on the recommendation to detain daughter from him

. Father’s counsel informed the court
that father “recognize [ s ] the issues and is working on them.” The court found that CFS made a prima facie showing that daughter came within section 300 , and the court ordered daughter detained. The court ordered fath er to drug test that day and notified him that failure to appear for the test would be considered a positive result.

1 The petition filed in September 2023 contained an allegation against father under subdivision (g) of section 300. At the detention hearing, CFS stated that it had alleged the wrong subdivision and would amend the petition to allege jurisdiction under subd ivision (b) of section 300, which CFS later did.12

CFS filed addendum report s in October and November 2023. CFS reported that father did not show up for random drug tests on September 2 7 a nd October 2. As to the September 27 test, father said that there was a work conflict. He also did not show up for
the test ordered at the detention hearing. 2 Father took a drug test on October 25, and the results were negative. In late September, CFS referred father to outpatient substance
abuse treatment services.
VI. Jurisdiction and d isposition In November 2023, the court held a contested jurisdiction and disposition hearing

. CFS introduced into evidence detention reports, dependency petitions, jurisdiction and disposition reports, and numerous addendum reports. CFS did not introduce daughter’s section 388 petition but did introduce CFS’s opposition to that petition. Father’s counsel
argue d that the jurisdictional allegation was not true and that the case involved
“substance abuse without more.” Father asked the court to return daughter to father’s

care with family maintenance services. T he court found true the allegations against both
fa ther and mother. The court removed daughter from both parents ’ custody and ordered
reunification services.

2 There is some discrepancy in the record about whether father took a drug test on the day of the detention hearing. In the October 2023 report, CFS reported that the test results from the day of the dete ntion hearing were pending , but in the November report CFS reported that father did not show up for that test

. A document submitted by the laboratory states that father did not show up for a test on September 28, 2023

.13 DISCUSSION Father argues that the evidence introduced at the jurisdiction hearing was not
sufficient to support the jurisdictional finding ag ainst him. We agree. 3 Section 300(b)(1) allows the juvenile court to assert jurisdiction when a “child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, a s a result of” a parent’s failure or inab ility “ to adequately supervise or protect the
child

. ” (§ 300 , subd. (b)(1)(A) (§ 300(b)(1)(A)

. ) Under s ection 30 0 (b)(1)(A) , a parent’s
substance

- related issues can contribute to a finding that jurisdiction exists because of the parent’s “ ‘ failure or inab ility of the child ’ s parent or guardian to adequately supervise or protect the child

. ’ ” ( In re N.R. (2023) 15 Cal.5th 520, 540, fn. 9 ( N.R. ) .) 4
A jurisdictional finding under section 300(b)(1) requires that CFS prove by a preponderance of the evidence the following elements : “ (1) neglectful conduct, failure, or inability by the parent; (2) causation; and (3) serious physical harm or illness or a

3 CFS contends that father’s appea l is moot because mother does not appeal the jurisdictional findings against her. The argument lacks merit because the jurisdictional finding against father serves as the basis for the removal of daughter from father’s custody and f

ather challenges that d is positional order

. T he appeal accordingly is not moot. ( In re D.P. (2023) 14 Cal.5th 266, 283

- 284.)

4 Subdivision (b)(1)(D) of section 300 provides for jurisdiction if the child has suffered or is at substantial risk of suffering serious physical harm on the basis of “[t]he inability of the parent or guardian to provide regular care for the child due to th e parent ’ s or guardian ’ s mental illness, developmental disability, or substance abuse. ” Father mistakenly contends that the petition contained an allegation under that subdivision. Although the allegation against father concerns his substance abuse, a par ent’s “ substance

- related issues may contribute to a finding that dependency jurisdiction exists” under section 300(b)(1)(A) because of the parent’s failure to protect or adequately supervise the child. ( N.R. , supra , 15 Cal.5th at p. 540, fn. 9.) That is what CFS alleged as to father.14

substantial risk of serious physical harm or illness. ” ( In re L.W. (2019) 32 Cal.App.5th 840, 848. ) The child must be subject to a defined risk of harm at the time of the jurisdiction hearing

. ( In re Roger S. (2018) 31 Cal.App.5th 572, 582; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1389, abrogated on another ground in In re R.T. (2017) 3
Cal.5th 622, 628

- 630 ( R.T. ).) The juvenile court “‘ need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child [citation]. ’” ( In re J.A. (2020) 47 Cal.App.5th 1036, 1048.) Evidence of a parent ’s past conduct may be probative of current risk, but in order to establish the existence of “ a defined risk of harm at the time of the hearing, there ‘ must be some reason beyond mere speculation to believe the alleged conduct will recur. ’” ( In re D.L. (2018) 22 Cal.App.5th 1142, 114 6 ; In re G.Z. ( 2022) 85 Cal.App.5th 857, 877.)

“‘ In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. ’” ( R.T. , supra , 3
Cal.5th at p. 633.) “‘In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that
i ssues of fact and credibility are the province of the trial court.’” ( Ibid. )
N o evidence introduced at the jurisdictional hearing in November 2023 showed
that daughter was at substantial risk of physical harm because of father’s drinking at that
time

. Ne arly one year before the jurisdictional hearing, father pushed daughter , and daughter believed that father had been drinking when he did that

. D aughter reported that15

father had otherwise never struck her

. The record does not contain any evidence that
father either used or threatened violence against daughter ever again, or that daughter
feared that father would act violent ly toward her. On the contrary, daughter consistently reported feeling safe at father’s home. As recently as August 2023 , daughter reported not only that she felt safe living with father but that she wanted to live with him. In sum , the
evidence showed only that father pushed daughter once , nearly one year before the jurisdictional hearing , and there is no evidence that she was phys ically injured or at risk of physical injury from that one incident

. It is not reasonable to infer from the single incident of father pushing his 15

- year
- old daughter 11 months before the jurisdictional hearing that there was a substantial risk that he wo uld physically injure her in the future

. ( In re J.N. (2010) 181 Cal.App.4th 1010, 1025

- 1026 ( J.N. ) .) Moreover, there was no
evidence admitted at the jurisdictional hearing from which it could be inferred that father’s drinking had otherwise placed daught er at substantial risk of harm. 5
CFS contends that other evidence shows that daughter was at substantial risk of physical harm, namely, daughter’s report in December 2022 that when father was drunk

5 Father argues that in determining whether jurisdiction existed the juvenile court may have considered daughter’s section 388 petition , which contained evidence that father drove under the influence with daughter in the car

. Daughter’s section 388 petition and supporting declaration w ere not admitted at the jurisdictional hearing, and the record contains no indication that the juvenile court considered the m at that hearing

. T he court did not mention those documents or any information contained therein when making its finding s
. Because those documents were not admitted at the jurisdictional hearing, they are irrelevant to our review of the sufficiency of the evidence to support the court’s jurisdictional findings. ( See , e.g., Acqua Vista Homeowners Assn. v. MWI, Inc. (2017) 7 Cal.App.5th 1129, 1159

- 1160

. ) We accordingly need not address father’s arg ument that consideration of those documents by the juvenile court would have constituted error.16

he would “get[] in her face,” yell at her, “and ball[] his hands into fist[s]

. ” We disagree. As with the pushing incident that occurred 11 months before the jurisdictional hearing, daughter’s statements in December 2022 do not support the finding that daug hter was at risk of physical harm in November 2023

. Considered in light of the whole record , the
evidence that father yelled in daughter’s face and balled his hands into fists does not support a reasonable inference that daughter was at risk of physical h arm , let alone
substantial risk

. Father’s conduct did not include the use of any physical force against daughter. There is no evidence that daughter or anyone else was concerned that father ’s yelling and balling his hands into fist s would lead him to use force against daughter. Moreover, in the 11 month s between daughter’s report of that behavior and the jurisdictional hearing, daughter continued to reside with father and did not report that
father ever acted that way again or ever used physical force with her

. Thus, as with the single incident of father pushing daughter 11 months before the jurisdictional hearing,
there is no evidence that father’s past behavior of yelling in daughter’s face with closed
fists was likely to recur or posed a substantia l risk of physical injury

. ( J.N. , supra , 181 Cal.App.4th at pp. 1025

- 1026.) The evidence thus is not sufficient to support the finding that daughter was at substantial ri sk of physical harm as a result of father’s substance
abuse.
CFS additionally argues that eve n if there was not substantial evidence that daughter was at risk of harm as a result of father’s alcohol use, there was substantial
evidence that daughter was at substantial risk of physical harm as a result of father’s17

failure or inability to protect her regardless of his substance abuse. In support of that contention, CFS points to the evidence that daughter ran away from father’s home , father caught daughter having sex with an 18

- year
- old, and father found a vape pen in daug hter’s room. CFS’s argument lack s merit. The only allegation contained in the petition against father was that daughter was at risk because of father’s substance abuse. The juvenile court sustained the allegation as pled , thus finding that daughter was at substantial risk of serious physical harm as a result of father’s substance abuse. The juvenile court did not amend the petition to conform to proof . The petition thus did not contain an y allegation that father’s inability to superv ise and protect daughter

— independent of father’s
substance abuse

—

placed daughter at substantial risk of physical harm. ( In re I.S. (2021) 67 Cal.App.5th 918, 927 [“ A juvenile court may amend a dependency petition to conform
to the evidence received at the jurisdiction hearing to remedy immaterial variances between the petition and proof ”].) Father therefore did not have notice or an opportunity to be heard on such an allegation , to which he was entitled. ( Ibid. ) Nor did the juvenile
court make a true fi nding on the unpled allegation. We accordingly cannot consider whether substantial evidence supported the juvenile court ’s jurisdiction on a ground on which it did not take jurisdiction. In any event, the record does not contain substantial evidence that daughter was at substantial risk of physical harm as a result of father’s failure to supervise or protect her independent of his substance abuse. There is no evidence in the record about what18

happened when daughter ran away , so there is no e vidence about where she went , how long she stayed away, or whether any relatives knew of her whereabout s
. Given the lack
of evidence about th e circumstances of daughter ’s episodes of running away , there is no
evidence that they placed her at substantial r isk of physical harm

. Moreover, although father suspected that daughter was smoking marijuana, there is no evidence that he ever confirmed that suspicion. There is no evidence that the vape pen that father found in daughter’s room was used for marijuana. In addition, father took away daughter’s cell phones after discovering that she had explicit photographs of herself and was texting
them to adult men. He therefore responded to the discovery of daughter’s inappropriate
use of her cell phone by mitigating the risk that it would recur. Thus, e ven if CFS had pled that daughter was at substantial risk of physical harm as result of father’s inability to
pr otect or supervise her independent of his substance abuse, the evidence would still be
in sufficient to support a jurisdiction al finding on th at basis

. In sum, the record of the jurisdictional hearing does not contain sufficient evidence to support a jurisd ictional finding against father. And b ecause the jurisdictional finding against father was the basis for removal of daughter from father’s custody at disposition, we must reverse the dispositional findings and orders as well.
DISPOSITION The disposition a l findings and orders are reversed, and the true finding on the jurisdictional allegation against father under section 300(b)(1)(A) is vacated with19

directions to dismiss the allegation

. The matter is remanded with directions to hold a new dispositional he aring as to daughter.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ J.

We concur:

CODRINGTON

Acting P. J.

FIELDS J.