Filed 11/21/18; Certified for Publication 12/13/18 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re ISRAEL T. et al., Persons 

Coming Under the Juvenile Court 

Law.

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

VICENTE T., 

Defendant and Appellant.

 B286821

 (Los Angeles County

 Super. Ct. Nos. DK23385, 

 DK23385A, DK23385B)

APPEAL from an order of the Superior Court of Los 

Angeles County, Stanley Gensler, Judge. Reversed. 

Keiter Appellate Law and Mitchell Keiter, under 

appointment by the Court of Appeal, for Defendant and 

Appellant.
2

Mary Wickham, County Counsel, Kristine P. Miles, 

Acting Assistant County Counsel and Veronica Randazzo, 

Deputy County Counsel, for Plaintiff and Respondent.

____________________________________

Appellant Vicente T. (Father), the father of Israel and 

Isabel T., appeals the juvenile court’s jurisdictional order. 

The court asserted that the children fell under Welfare and 

Institutions Code section 300, subdivision (b), but found no 

substantial risk of serious harm to the children from the 

parents’ actions, and at the dispositional phase, returned the 

children to the custody of the parents, finding that the 

parents did not constitute “any kind of risk to the children.”1 

Father contends the court’s findings do not support the 

assertion of jurisdiction. We agree and reverse the 

jurisdictional order.

FACTUAL AND PROCEDURAL BACKGROUND

The family came to the attention of the Department of 

Children and Family Services (DCFS) on June 17, 2017. 

Officers from the Bell Gardens Police Department observed 

Father exchanging money for a Styrofoam cup at a fast food 

restaurant. Suspecting a drug transaction and observing 

 

1 Undesignated statutory references are to the Welfare and 

Institutions Code.
3

Father commit several traffic violations as he drove away, 

police stopped him. Father exited his car and ran to his 

home. Mother came out of the home, took a cup from 

Father’s car, and ingested something contained inside it. 

Father and Mother were arrested. Officers conducted a 

search of the family home, finding baggies with trace 

amounts of a substance believed to be cocaine on the floor, a 

small baggie containing an off-white crystal substance 

resembling cocaine or methamphetamine on a closet shelf, 

and a large zip-lock bag containing marijuana.2 They 

informed DCFS, who detained Israel and Isabel, then five 

and three, and placed them with paternal relatives. 

Interviewed by the caseworker, Father and Mother 

denied using or selling drugs. They claimed that any hard 

drugs found in the home were planted by the police officers,

and that the marijuana belonged to Father’s adult son, who 

had a medical marijuana card. The caseworker said they 

were cooperative and found them to be dedicated and 

consistent with respect to visitation. Father and Mother saw 

the children and assisted with their care every day, and 

continued to participate in their activities and school 

 

2 One of the baggies was tested and found to contain .06 

grams of methamphetamine. The DCFS detention report stated

that the police recovered “a pound of cocaine and marijuana 

inside the child[ren]’s home.” Nothing in the police report 

supports that contention. Neither Mother nor Father were 

charged with drug-related offenses. 
4

programs. Their involvement was particularly important to 

Israel, who suffered from autism and required structure and 

a regular daily routine. In addition, Father and Mother

volunteered to enroll in services, including parenting classes 

and drug testing.3

At the jurisdictional hearing, Father’s adult son 

testified the marijuana found in the home was his. He said

that he stored it in a box above his closet, out of the reach of 

his younger siblings, and that he generally locked his room 

when he left it. He further testified he did not use 

marijuana in the family’s home or in the presence of his 

siblings. He denied observing Father or Mother use drugs of 

any kind. 

Counsel for DCFS asked the court to find jurisdiction 

based on drugs being left within access to the children. 

Counsel for the children agreed that the presence of two 

baggies containing drug residue on the floor was sufficient to 

support jurisdiction. Counsel for Mother contended that the 

matter should be dismissed because DCFS failed to meet its 

burden of proof. Counsel for Father also argued that the 

matter should be dismissed for lack of sufficient evidence. 

Counsel began to argue that the court should consider 

Father’s negative drug test and willingness to test further in 

 

3 Father tested negative for all substances in July 2017; 

Mother missed her scheduled test. 
5

making its jurisdictional finding. The court interrupted her, 

saying: “[t]hose are dispo issues.” 

The court found true under section 300, subdivision (b)

that there was “a . . . risk that the child[ren] will suffer . . .

physical harm,” and that Father and Mother “created an 

endangering home environment for the children in that trace 

amounts of methamphetamine were found in the children’s 

home within access of the children.” In making its findings, 

the court struck the word “substantial” before the word 

“risk,” and struck the word “serious” before the word 

“physical harm.” In doing so, the court stated: “I am 

amending [the petition] so it will invite reversal at the Court 

of Appeal.” 

Turning to disposition, the court noted that Father and 

Mother continued to care for the children and to meet their 

special needs, that there was “no evidence of abuse or 

neglect,” and that Father and Mother had not been charged 

with any drug offenses. The court stated: “I don’t believe 

these parents constitute any kind of risk to the children.” 

The court proceeded under section 360, subdivision (b).

4 It

 

4 Section 360, subdivision (b) provides: “If the court finds 

that the child is a person described by Section 300, it may, 

without adjudicating the child a dependent child of the court, 

order that services be provided to keep the family together and 

place the child and the child’s parent or guardian under the 

supervision of the social worker for a time period consistent with 

Section 301 . . . .” As explained in In re Adam D. (2010) 183 

Cal.App.4th 1250, 1260: “‘If the court agrees to or orders a 

(Fn. is continued on the next page.)
6

ordered Father and Mother to participate in random drug 

testing for the next six months, to complete a parenting 

class, and to permit no illegal drugs or substances in their 

home.5 DCFS was authorized to make unannounced home 

calls to monitor the family and assist the parents. The court 

released Israel and Isabel to the care of Father and Mother. 

This appeal followed. 

DISCUSSION

A child may be adjudged a dependent of the court 

under subdivision (b) of section 300 if the “child has suffered, 

 

program of informal supervision [under section 360, subdivision 

(b)], it does not dismiss the dependency petition or otherwise set 

it aside. The true finding of jurisdiction remains. It is only the 

dispositional alternative of declaring the child a dependent that 

is not made.’” (Quoting Seiser & Kumli, Cal. Juvenile Courts 

Practices and Procedure (2009) § 2.124[2], pp. 2-283-2-284.) A

court’s decision to proceed with informal supervision under 

section 360, subdivision (b) thus represents “a final judgment” 

and “an appealable order,” permitting the parents to contest the 

underlying jurisdictional finding on appeal. (In re Adam D., 

supra, at p. 1261.)

5 Under section 360, subdivision (c), if during that time, the 

family is “unable or unwilling to cooperate with the services 

being provided [under subdivision (b)],” DCFS may file a new 

petition “alleging that a previous petition has been sustained and 

that disposition pursuant to subdivision (b) has been ineffective 

in ameliorating the situation requiring the child welfare 

services,” and the court may hold a new disposition hearing. 
7

or there is a substantial risk that the child will suffer, 

serious physical harm or illness, as a result of the failure or 

inability of his or her parent or guardian to adequately 

supervise or protect the child from the conduct of the 

custodian with whom the child has been left, or . . . by the 

inability of the parent or guardian to provide regular care for 

the child due to the parent’s or guardian’s mental illness

. . . .” (§ 300, subd. (b)(1).) A true finding under this 

subdivision requires evidence of “‘“‘“serious physical harm or 

illness”’”’” to the child, or “‘“‘a “substantial risk” of such harm 

or illness.’” [Citations.]’” (In re D.L. (2018) 22 Cal.App.5th 

1142, 1146.) Proof of this element “‘“effectively requires a 

showing that at the time of the jurisdictional hearing the 

child is at substantial risk of serious physical harm in the 

future . . . .”’” (Ibid., italics omitted, quoting In re B.T. 

(2011) 193 Cal.App.4th 685, 692.) Evidence of past conduct 

may be probative of current conditions. (In re D.L., supra, at 

p. 1146; accord, In re James R. (2009) 176 Cal.App.4th 129, 

135-136, abrogated in part on another ground in In re R.T.

(2017) 3 Cal.5th 622.)

DCFS bears the burden of proving that the minor 

comes under the juvenile court’s jurisdiction by a 

preponderance of the evidence. (In re M.R. (2017) 7 

Cal.App.5th 886, 896; see § 355, subd. (a).) On appeal, “‘we 

must uphold the court’s [jurisdictional] findings unless, after 

reviewing the entire record and resolving all conflicts in 

favor of the respondent and drawing all reasonable 

inferences in support of the judgment, we determine there is 
8

no substantial evidence to support the findings.’” (In re J.N. 

(2010) 181 Cal.App.4th 1010, 1022.)

Father contends that the court rejected the statutorily 

required elements in finding that any risk of harm was not 

serious or substantial, and that its failure to make the 

requisite findings requires reversal. We agree. 

Respondent contends the issue has been forfeited 

because of the general rule that a parent may not challenge 

the sufficiency of the factual allegations in a dependency 

petition on appeal if he or she did not raise the issue in the 

court below. (See, e.g., In re John M. (2012) 212 Cal.App.4th

1117, 1123; In re Christopher C. (2010) 182 Cal.App.4th 73, 

82.) Here, Father is not challenging the sufficiency of the 

petition, but the court’s failure to make the findings required 

by statute. In finding jurisdiction warranted under section 

300, subdivision (b), the court struck the language stating

that the children were at “substantial” risk of “serious” 

physical harm. Section 300, subdivision (b), requires the 

court to find that “the child has suffered, or there is 

substantial risk that the child will suffer, serious physical 

harm or illness . . . .” As numerous courts have said, “section 

300, subdivision (b) . . . ‘“means what it says. Before courts 

and agencies can exert jurisdiction under section 300, 

subdivision (b), there must be evidence indicating that the 

child is exposed to a substantial risk of serious physical 

harm or illness.” [Citations.]’ [Citation.]” (Maggie S. v. 

Superior Court (2013) 220 Cal.App.4th 662, 673, italics 

omitted, quoting In re Noe F. (2013) 213 Cal.App.4th 358, 
9

366; accord, In re Alysha S. (1996) 51 Cal.App.4th 393, 399.) 

By striking the language that stated the children were at 

substantial risk of serious harm, the court made clear that it 

did not believe the parents posed the level of risk to the 

children that must be found to warrant assertion of 

jurisdiction under subdivision (b) of section 300. This was 

confirmed by the court’s comment moments later, when it 

stated it did not believe Father and Mother posed “any . . .

risk” to the children.6 Accordingly, its finding that 

jurisdiction was warranted must be reversed.

Respondent cites In re Alexzander C. (2017) 18 

Cal.App.5th 438 (Alexander C.), where the juvenile court 

similarly excised the words “‘serious’” and “‘physical’” from 

the petition, finding only a “‘risk of harm’” to the child. The 

Court of Appeal concluded the father forfeited any issue 

pertaining to the language of the petition or the court’s 

findings by failing to object at the jurisdictional hearing. (Id. 

at p. 446, fn. 3.) There, however, the juvenile court’s 

dispositional order found by clear and convincing evidence 

that substantial danger existed to the physical health of the 

children, and that there were no reasonable means to protect 

them without removal from their parents’ custody. (Id. at 

p. 451.) Thus, regardless of the words used by the juvenile 

 

6 The court’s admittedly cryptic comment that by amending 

the petition, it was “invit[ing] reversal” by the Court of Appeal 

also suggests some awareness of the shortcomings in its 

jurisdictional findings.
10

court in its jurisdictional finding, there could be no question 

that the court had concluded the parents’ actions posed a 

significant risk to the physical safety of their children.

Here, in contrast, the court’s own comments in issuing 

the order under section 360, subdivision (b) and returning 

the children to their parents refute any inference that it 

found the parents posed a serious risk to their children’s 

physical wellbeing. The court’s statement -- “I don’t believe 

these parents constitute any kind of risk to the children” --

could not have been clearer. Thus, while the Alexander C. 

court could confidently rely on the record before it to 

conclude the court had, despite its interlineations, concluded 

that the parents posed a significant risk to their children’s 

physical health (the predicate for both its jurisdictional and 

dispositional orders), the record here supports only a 

contrary conclusion. 

Respondent contends that the record supports the 

finding that the children were at substantial risk of serious 

harm due to the evidence that baggies containing 

methamphetamine residue were on the floor of the family 

home. If the record does not show that the court did, in fact, 

make the requisite findings, it is immaterial whether the 

evidence might have supported such findings. The test for 

substantial evidence is applied to the court’s actual finding. 

(See In re Abram L. (2013) 219 Cal.App.4th 452, 463

[inappropriate for appellate court to imply findings where 

juvenile court failed to make express findings required by 

statute]; Kemp Bros. Construction, Inc. v. Titan Electric 
11

Corp. (2007) 146 Cal.App.4th 1474, 1478 [where respondent 

argues for affirmance based on substantial evidence, record 

must show the court actually performed its factfinding

function].) On this record, we cannot confidently say the 

court made the findings required by statute.
12

DISPOSITION

The jurisdictional finding is reversed.

MANELLA, P. J.

We concur:

COLLINS, J.

MICON, J.*

*Judge of the Los Angeles County Superior Court assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.
1

Filed 12/13/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re ISRAEL T. et al., Persons 

Coming Under the Juvenile Court 

Law.

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

VICENTE T., 

Defendant and Appellant.

 B286821

 (Los Angeles County

 Super. Ct. Nos. DK23385, 

 DK23385A, DK23385B)

 ORDER CERTIFYING

 OPINION FOR

 PUBLICATION

 

THE COURT:*

The opinion in the above-entitled matter, filed on November 21, 

2018, was not certified for publication in the Official Reports. For good 

cause it now appears that the opinion should be certified for publication 

in its entirety in the Official Reports and it is so ordered. 

MANELLA, P. J., COLLINS, J. MICON, J.**

______________________________________

**Judge of the Los Angeles County Superior Court assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution