Filed 11/2/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re TYLER R .,

a Person Coming Under the Juvenile Court Law. B 261136
(Los Angeles County Super. Ct. No. D K 06923 )

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,

v.

MARITZA M ., Defendant and Appellant.

APPEAL from order s of the Superior Court of Los Angeles County
, Carlos E.
Vas quez, Judge. Affirmed

. Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham
, Interim County Counsel, Dawyn R. Harrison , Assistant County Counsel, and Tyson B. Nelson , Deputy County Counsel, for Plaintiff and Responde nt.

_______________________2 INTRODUCTION

Maritza M. (Mother) appeals the juvenile court’s jurisdiction al findings and disposition orders declaring her son, Tyler R ., to be a person described by Welfare and
Institutions Code 1 section 300, subdivision (b)
, and removing Tyler from Mother’s custody. On appeal, Mother contends the juvenile court’s findings and orders are not supported by substantial evidence. She also contends the Los Angeles County Department of Children and Family Services (Department) di d not make reasonable efforts to prevent or eliminate the need for Tyler’s removal from her home

. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Pref

iling Investigation
I n late July 2014, the Department received a child abuse hotline referral reg arding

two

- day

- old Tyler

. The caller reported Tyler’s m other was severely disabled, in a wheelchair, and unable to care for herself or Tyler. The caller believed Mother was “gravely disabled,” unable to speak or write and had no control over the movement of her
limbs. The caller characterized Tyler’s father, David R. (Father) as controlling and

“ dominant” with Mother. 2 In response to the hotline referral, the Department dispatched a social worker to investigate. The social worker interviewed hospital s t aff and learned Tyler was born prematurely at 32 weeks, but he suffered no medical problems. Tyler was not scheduled to be released, however, for thre e to four weeks because he was having feeding problems

. The social worker made an unannounced visit to Mother and Father’s home where
she interviewed them separately . Father denied any domestic violence against M other

1 All further statutory references are to the Welfare and Institutions Code.

2 Father is not a party to this appeal.3

but told the social worker he was a “second striker” with arrests for assault wi th a deadly weapon and burglary. He also revealed he was on parole. Father said his life had changed with the birth of his son, and he would do everything for him . He reported that
he and M other were moving in with her grandmother and adult siblings so they would have family support and assistance.
T he social w orker i nterviewed M other privately and asked her a series of “yes” and “no” questions. Mother communicated with the social worker by nodding her head.
Mother denied any domestic violence or concerns regarding F ather and expressed she
would feel better mo ving in with her grandmother

. Mother indic ated she felt safe. On August 10, while Tyler was still hospitalized, the Department received a second emergency response referral concerning Tyler. The report alleged domestic violence by Father against Mother. Mother’s adult brother and sister, Karla, brought
M other to the police station and reported two to three times a week, F ather would pick mother up out of her wheelchair, shake her and slap her face multiple times. 3 Mother
confirmed this inform ation and gestured to indicate F ather had struck her once across the right side of her head. An emergency pr otective order was issued so F ather could not live
in or come to the home or have contact with M other or Tyler

. 4 The following day, M other’s siblings told t he social worker that after Mother and
F ather mo ved into Mother’s grandmother’s home, Father had “smack [ ed ] ” Mother , put his hand over her mouth, cursed at he r and called her “Retard,” “ moron” and “B itch.”
Karla told the social worker “she would care for [Mother] and Tyler once he was discharged and the entire family would help each other out with meeting their needs

. ” 5

3 Mother is 26 years old, 4 feet 10 inches tall and weighs 100 pounds.

4 Because Father’s conduct violated his parole, he was later arrested and returned to custody . When law enforcement escorted Father out of the home, he reportedly told one of Mother’ s brothers, “When I get custody of my kid[,] you will never see him again.”

5 When the social worker spoke with Father about the allegations, he said he knew he had an anger management problem and was working to enroll in and attend a parent4

Shortly thereafter, Tyler’s doctor notified the Department Tyler had been
“medi cally cleared” for release
, but the persons responsible fo r his care would have to be taught how to feed him properly before he could leave the hospital . The doctor revealed that her “biggest concern” was Tyler’s ongoing care since, in the doctor’s view, Mother was unable to provide care for him. The Department placed a “hospital hold” on Tyler and placed him in to protective custody

. Just prior to juvenile court involvement, the social worker made an unannounced visit to Mother’s home. The social worker informed Mother a court hearing regarding Tyler was going to be held . The social worker asked Mother i f she understood. Mother
shook her head, “ n o.” Mother was upset dur ing the visit and was crying. She was crying because family members had taken her cell phone since she continued to text Father despi te the terms of the emergency protective order.

B. The Petition and t

he Detention Hearing
T he Department filed a three

- count section 300 petition on August 18, 2014 alleging Tyler was described by subdivisions (a) and (b) of that section. Father’s alleged
dom estic violence against Mother
, and risk of harm to Tyler because of it
, served as the basis for two of the counts. (Count s a

- 1 and b

- 1.) The remaining count involved Mother and her physical limitations . The Department alleged: “The child Tyler[ ’ s] .

. . mother

. . . is unable to provide care and supervision of the child in that mother is severely disabled. The mother’s inability to provide care and supervision of the child endangers the child’s physical health and safety and places the child at risk of physical harm and danger.” (Count b

- 2.) At the detention hearing, through its detention report, the Department advis ed the juvenile court of what social workers learned during its pre

- filing investigation and

re commended Tyler be detained. The Departme nt informed the court that “no relatives

education cla ss and an anger management program because he wanted his family back. He agreed to comply with the emergency protective order and agreed Tyler should be under the protect ive custody of the Department.5

have been identified as a possible placement resource on the child’s behalf.” The Department noted that “the family has refused to care for Tyler .

. . and no other family
has come forward to care for Tyler.”
The juvenile court detain ed Tyler from Father and ordered him released to Mother on condition that she continue to reside in her grandmother’s home with her adult siblings. 6 The court also issued a temporary restraining order protecting Mother and Tyler from Father and set a jurisdiction hearing

.

C. The Jurisdiction Hearing The juvenile court conducted a jurisdiction hearing on October 20, 2014. At that time, the Department submitted into evidence its detention report, a jurisdiction / disposition report and a last minute information for the court. The juvenile court did not receive any other evidence and he ard argument from the parties. The jurisdiction/disposition rep ort set forth statements from Mother, Father and Mother’s family members concerning the a llegations of domestic violence. 7 Mother communicated to the social worker that Father had hit and slapped her in the past causing bruising. She indicated that Father called her names and yelled at her. Mother also
verified that Father had shaken her vi olently an d put his hand over her mouth. Father denied the allegations a nd admitted only that he had yelled at Mother and covered her mouth in an effort “to calm her down.” Father explained that Mother “screams really, really loud.” Father suggested the complaints were fabricated by

6 The order specified Tyler be released to Mother on condition that she reside in Tyler’s maternal uncle’s home. Mother and four adult siblings all resided in their grandmother’s home, i.e., Tyler’s maternal great grandmother’s home.

7 As previously noted, Mother is not able to speak . To obtain informatio n, the social worker would ask “yes” and “no” questions, and Mother would nod in response. Mother’s family reported Mother “fully understands when someone is speaking with her.”6

Mother’s siblings. Father told the social worker that Mother’s siblings “possibly [did] not like him because they saw him stab someone in the face at a park years ago.” With regard to the allegations involving Mother, the s ocial worker reported Mother “was unable to speak about her disability.” She noted Mother’s use of a wheelchair, the “hospital

- like bed in her room” and the assistance she received from family members with her activities of daily living. The social worke r “did not observe [M]other holding the baby or motion to hold the baby during the [one

- and

- a

- half hour plus] visit in the home.” The report explained the unusual origin of Mother’s physical issues. The social worker reported M ot her had been hit by two c ars in 2009 but “completely recuperated” and worked at Macy’s after the accident. Two years later, however, “ her condition deteriorated and she couldn’t walk and lost her ability to speak.” The Department believed Mother’s family de monstrated multiple st rengths: family members were cooperative and supportive of one another; Mother had a stable home for herself and her baby, with extended family support for child care; Mother recognized her inability to care for Tyler and want ed Karla to be his legal guard ian ; Karla wanted to adopt Tyler if Mother could not care for him in the future; Mother was open to services
and a medical assessment; and Tyler , who was then in Mother’s legal custody, appeared to be healthy. The Department, however, also had some concer ns about Mother. “First and
foremost” was M other’s inability to care for her infant son “due to her own physical handicap.”
The Department also believed M other was “ very disconnected from the child. She rarely asks to hold the child and had to actually be encouraged to hold the child (with assistance from family) in order to bond with the child. Mother does not financially provide for the child
, even though she receives over $900 in SSI per month. [ 8 ] The

8 Karla said Father had “used” Mother in the past and had access to her soci al security money. She said Mother also had a bank account but did not know how Mother7

relatives in the home have provided the child wi th diapers, obtained WIC for the child
, and have received donati ons from others. [Karla] takes the child to the doctor.” Finally, the Department had “serious concerns” about Mother’s relationship with
Father. Mother communic ated to the social worker she missed Father and did not know if she still wanted to be in a relationship with him. Maternal relatives rep orted to the
social worker Mother , in fact, wanted to be in a relationship with Father and w as text messaging friends trying to obtain information about him

. Ultimately, the Department recommended through its jurisdiction/disposition report that Tyler be declared a dependent of the juvenile court and placed in Mother’s care under the Department’s supervision with family maintenance services . The
De partment’s recommendation for leaving Tyler in Mother’s custody was conditioned upon Mother being under the “care and supervision” of Karla or other relative s and that Tyler not be left alone with Mother. The Department, however, changed its recommendatio n to the juvenile court through a last minute information to the court. The last minute information revealed that “[d]uring further investigation [the social wor ker ] concluded that [M]other .

. . is u nable to meet minor Tyler[ ’ s] .

. . basic needs. There fore, the Department recommends the minor Tyler .

. . be detained from [M]other .

. . and be suitably placed with mate rnal aunt,
Karla

. . . .” After admitting the Department’s reports into evidence, counsel for the parties presented their arguments regar ding the petition allegations. As to the allegation that
Mother is “ unable to provide care and supervision for the child [ in ] that she is severely disabled,” counsel for the Department (joined by Tyler’s counsel) asked the juvenile court to find “that [ M o ther] is severely disabled” and “due to [ her ] physical condition, that she’s unable to provide care and supe rvision for [Tyler]

. . . .”

accessed or used the money. (When the social worker first spoke with Father, he indicated he handled Mother’s monthly disability income, and when the social worker ask ed Mother about her finances, she wanted to contact Father and did not know where her debit card was.)8

In opposition, Mother’s counsel argued the allegation based solely on M other’s
disabili ty was “ not jurisdictional.” C ounsel asserted that notwithstanding Mother’s physical disability, she had made an appropriate plan for Tyler’s care with her family so there was no showing of “a nexus between mother’s disability and her ability to car e for the child.”
After dismissing t he subdivision (a) count and sustaining the subdivision (b) count of section 300, based on Father’s violent conduct against Mother, the juvenile court
sustained the petition count concerning Mother ’s inability to care for Tyler as well. The
court stated: “I think that the counsel’s arguments as to whether or not the mother is able to make an appropriate plan for the child

— I think that is something that the court can take into consideration with respect to disposition,” but “I do believe that the allegatio n is jurisdictional in this case because it is a situation where the mother is physically unable to tend to many of the needs of the child as pointed out by counsel.

. . . Also if there were

an emergency

. . . , she’s not in a position where she could get assistance for the child in
certain situations. ” The juvenile court further explained
, “The court is looking as suggested by [Tyler’s counsel] at the best interest of the child which that is the primary responsibility
of the court

. . . to ensure a child ’s safety and well

- being. The court is happy that the mother is able to have the support of her family, but there is no guarantee that that

. . . is going to continue to be available in finitely. Circumstances do change, and in the absence of that family support, this child’ s safety would be jeopardized.” The juvenile court heard briefly from the parties concerning disposition. The Department’s counsel directed the court’s attention to the Department’s revised request to remove Tyler from Mother’s care. Counsel for the Department explained suitable placement with Karla was appropriate “in light of” M other ’s text messages indicating she
missed F ather, had tried to get information about him and was unsure whether she wanted to be in a relationship with him . The Department’s counsel reported Father was due to be
released from custo dy within the next month

.9

Mother ’s counsel stated she had intended to ask the juvenile court to continue the disposition hearing for the prepar ation of a guardianship report. Gi ven the Department’s change of placement recommendation
, however, counsel asked to a ddress the court

. The juvenile court interjected: “I am not inclined to detain the chil d from the mother at this point.” Tyler’s counsel addressed the court and expresse d “concern[] about [the] mother’s
inclination to return to the father

. ” T he court reiterated: “I am not inclined to [remove from] the mother. However, if [she] exposes the child to any contact with the father in violation of the court’s order,

. . . the n I will very promptly take action and remo ve that child from the mother.” The court continued the disposition hearing and then addressed Mother : “I am not going to detain [Tyler] from you as requested by the Department.

. . . I think that you are
clear ly the victim of domestic violence. And I think that you need to give that some very, very serious thought [regarding] what you are going to do in the future because this is a very violent man that you are dealing with. And you being in the physical cond ition that you are in
, y ou are very, very vulnerable to being seriously hurt if not killed. And it is my responsibility to ensure the well

- being and safety of your child. If I get information that you are exposing this child to violence, either to yourse lf or to the child, that you are allowing the child to have contact with [his father] without an appropriate monitor, then you are going to have to make a choice between [him] and your child.

. . . I cannot make it more clear to you than that. I am very sympathetic to you. Okay? I would like to keep this child with you, and I will do so if you conduct yourself in a way where you obey the court’s orders and you do not expose this child to a n unsafe dangerous situation. So do you understand that?”
In re sponse to the juvenile court, Mother nodded affirmatively.
The court ordered Tyler to remain in M other’s custody pending disposition , but addressing M other again, further ordered that F ather “ not have any unmonitored contact with [Tyler ] .

. 

### . [ a]nd you a nd he are not to be in the presence of the child together.10

Okay? So you [have] got some thinking to do, and I hope that you will give your futur e some serious thought. Okay?”

D. The Disposition Hearing At the disposition hearing on December 3, 2014, the court rec eived into evidence the Department ’s prior reports as well as an updated interim report . In the new report, the Department continued to recommend suitable placement for Tyler.
The report provided that despite some iss ues with formula, four

- a nd

- a

- half

- month old Tyler “appeared well developed” and “well nourished.” Tyler was gaining about a pound a week and weighed 16 pounds.
T he social worker , however, did not believe Mother was doing well. According to the social worker, Mother “ continues to get worse. Her legs now do not bend at the
knees

— they stick out straight. [She] almost slides off the small chair she sits on because she doesn’t bend at the waist. The only movement she makes is with her left hand to text people. ” The Department ha d concer ns Mother was not providing any financi al support for Tyler, 9 had not bonded with Tyler and seemed too interested in maintaining her relationship with Father. 10 The Department now believed the family home posed “a safety risk” to Tyler because ther e were bags of clothes on the floor, broken tiles and
cockroaches. In addition to the Department’s reports, the juvenile court received testimony from Karla at the disposition hearing. Karla testified that Mother did not care for Tyler on a daily basis a nd Mother had nev er asked Karla to care for him . She also testified that

9 The Department was particularly concerned about the financial arrangements for Tyler. There was some question about whether Mother’s family had the a bility to pay for certain medicine that had been prescribed for Tyler. Karla indicated Tyler had received all medicine that had been prescribed for him. She also stated she could meet Tyler’s financial needs without assistance from Mother or the Departme nt.

10 By the time of the disposition hearing, Father had been released from custody.11

Mother did not give her any money for Tyler’s necessities. Karla testified s he was “definitely” committed to continuing to care for Tyler without any financial assistance.
Karla wa s not aware of F ather ever coming by the house in the time Tyler had lived with her, but if he ever did, she would call the police “i mmediately.”
Karla testified she had never seen M other physically or emotionally harm Tyler or do anything that placed Tyl er’s safety at risk, and she was not afraid that M other would
do so. M other had never done anything to prevent Karla from tak ing care of Tyler, and
Karla believed she was “definitely” able to keep him safe in her care. Although she
would prefer to move o ut with Tyler to a new residence, if the court ordered him to remain with M other, Karla testified she would remain there with him

. She testified: “[I]f Tyler stays, I will stay.” Asked whether her sister had given her permission to care for Tyler, Karla said, “Well, she never asked me to. I just took the responsibility.”
Mother ’s counsel tol d the juvenile court M other was sending h er text messages throughout the di sposition hearing indicating she wanted Karla to become Tyler’s guardian. Mother’s couns el asked the court to allow Tyler to remain in M other’s home and explore the possibility of a guardianship for Tyler

. At the conclusion of the hearing, the juvenile court removed Tyler from Mother and Father’s custody and ordered him suitably placed with Karla . T he juvenile court
stated its decision was not based on M other ’s physical inability to care for Tyler but rather on her “unwillingness to do her part to care for the child. ” Relying on the Department’s interim report, the juvenile court explained M other had “refused to provide for [Tyler] during the entire time that the child has been in her care. [ She ] won’t pay for the diapers that he needs. She won’t pay for the food that he eats. The report indicates

. . . [M ] other has demonstrated a lack of interest in the child

. . . .” Further, the “desire”
M other had expressed to be with F ather “does prese nt a safety risk to the child.” The juvenile court commended Karla for “tak[ing] good care” of Tyler and said she had “done everything to ensure [he] is safe. However, a home of parent mother order would give [Karla] absolutely no rights to

— over the care and control of this child. [M other ] would ultimately be the decision maker as to where the child goes. If she were12

to decide to go back with the fat her, there is nothing [Karla] could legally do to prevent that, and so the court does believe that the Department has met its burden of clear and convincing evidence to remove from the mother at this time.”
The court further ordered M other could continue to reside with Karla and have
unlimited monitored visitation. M other ’s counsel objected to the requirement that visits be monitored, given the existing living arrangements and the fact she was not caring for Tyler on her own or taking him anywhere. T he j uvenile court responded : “My concern is not that she would harm the child intentionally in any way. There is absolutely no evidence of that. The concern is that some event could take place while she’s alone with the child, and being in the physical cond ition that she is, she would not be able to remove the child or protect the child from whatever hazard happens to be present.” 11

DISCUSSION

A. Mother ’s Contentions Mother argues the juvenile court’s jurisdiction al findings and disposition orders

are not supported by substantial evidence. She also contends the Department failed to make reasonable efforts to prevent or eliminate the need to remove Tyler from her custody.

B. The Merits of M

other’s Appeal Should Be Addressed The Department asserts we nee d not address Mother’s appeal of the juvenile
court’s jurisdiction al finding because the juvenile court properly o b taine d jurisdiction over Tyler based on the unchallenged allegations related to Father. Both parties recognize that “a jurisdictional findin g good against one parent is good against both.

11 At the disposition hearing, the juvenile court also granted Mother’s request for a restraining order against Father protecting both Mother and Tyler until December 3, 2017.13

More accurately, the minor is a dependent if the actions of either parent bring [him or]
her within on e of the statutory definitions of a dependent. [Citations.] This accords with the purpose of a dependen cy proceeding, which is to protect the child, rather than prosecute the parent. [Citation.] ” ( In re Alysha S. (1996) 51 Cal.App.4th 393, 397; accord, In re I.A. (2011) 201 Cal.App.4th 1484, 14 91

- 149 2 .) Accordingly , the findings relating to Father (count b

- 1) provide sufficient grounds for affirming the declaration of dependency as to Tyler. (See In re I.A ., supra , at p. 1491 [“ [ a ] s a result of this focus on the child, it is necessary only for the court to find that one parent’s conduct has created
circu mstances triggering § 300 for the court to assert jurisdiction over the child”]; In re
P.A. (2007 ) 155 Cal.App.4th 1197, 1212.) Nonetheless, we recognize the outcome here “ may have far

- reaching implications with respect to future dependency proceedings in this case and [M other’s] parental rights.” ( In re Drake M. (2012) 211 Cal.App.4th 754, 763.) We therefore agree with Mother’s argument that we should reach the merits of the challenged jurisdictional findings relating to her as those findings may have a dverse consequences in this or subsequent proceedings: “[W] e generally will exercise our discretion and reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as the basis for dispositional orders that are also challenge d on appeal [citation] ; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) ‘ could have other consequences for [the appellant]
, beyond jurisdiction ’ [citation]

. ” ( Id

. at pp . 762

- 763.)

C. Standard of Review

“‘ In reviewing a challenge to the sufficiency of the evidence supporting the jurisdiction al findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. “ 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 li ght most favorable to the court’ s determinations; and we note that issues of fact and credibility are the province of the trial court. ” [Citation.]14

“ We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial cou rt. [Citations.] ”’” ( In re I.J. (2013) 56 Cal .4th 766, 773 .) “Thus, we do not consider whether there is evidence from which the dependency court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw.” ( In re Noe F. (2013) 213 Cal.App.4th 358, 366.)

D. Applicable Law

—

Jurisdiction Through the dependency law, the L egislature intended “to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well

- being of children who are at risk of that harm.” (§ 300.2.) “Fundamentally,

. . . the focus of the system is on the child, not the parents.” ( D.M. v. Superior Cour t (2009) 173 Cal.App.4th 1117, 1129.) A child may be declared a dependent of the juvenile court when that child is described by any one of the 10 subdivisions of section 300. Section 300 also specifically instructs that where a parent suffers from a phys ical disability “the court’s determination pursuant to this section shall center [ on ] whether a parent’s disability prevents him or her from exercising care and control.” ( § 300, subd. (j), ¶ 2 .) This physical disability provision is not set forth as a s eparate basis for dependency jurisdiction. Instead, it appears in a paragraph of the statute setting forth legislative intent including a declaration that “physical disability .

. . is no bar to the raising of happy and well

- adjusted children.” ( Ibid .) Courts have consistently summarized lengthy subdivision (b)(1) of section 300 as requiring “( 1) neglectful conduct by the parent in one of the specified forms; (2)
causation ; and (3) ‘ serious physical harm or illness’ to the minor , or a ‘ substantial risk’ of
such harm or illness.” ( In re Rocco M. (1991) 1 Cal.App.4th 814, 820; accord, In re
David M. (2005) 134 Cal.App. 4th 822, 829.) While this much

- used shorthand15

description is helpful
, reference to the actual statute details “the specified forms” or

grou nds for dependency jurisdiction in the subdivision . ( Ibid .) More specifically, a child is described by section 300, subdivision (b)(1)
, where the “child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or ill ness,” resulting from any of the following: (1) “the failure or inability of his or her parent .

. . to adequately supervise or protect the child”; (2) “the willful or negligent failure of the child’s parent .

. . to adequately supervise or protect the chi ld from the conduct of the custodian with whom the child has been left”; (3) “the willful or negligent failure of the parent .

. . to provide the child with adequate food, clothing, shelter, or medical treatment”; or (4) “the inability of the parent .

. . to provide regular care for the child due to the parent’s

. . . me n tal illness, developmental disability, or substance abuse.” ( Ibid. )
A substantial risk of harm to a child as a result of the inability of a parent to adequately supervise or p rotect that child is a basis for dependency jurisdiction without regard to any willful or negligent conduct of a parent. The first clause of
subdivision (b)(1) of section 300 requires nothing more. 12 Dependency j urisdiction
under such circumstances promote s the overa ll policy of the dependency law “to ensure the safety, protection, and physical and emotional well

- being of children who are at risk of that harm.” ( § 3 00. 2.) The notion that a child may be subject to dependency jurisdiction without parental
fault or bla me is consistent with at least two other situations under section 300. A child
who “‘ is suffering serious emotional damage
, or is at a substantial risk of suffering
serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or
untoward aggressive behavior toward self or others .

. . who has no parent .

. . capable of

12 “‘The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous. If the plain language of a statute is unambiguous, no court need, or should, go beyond that pure expression of legislative intent.’” ( Ruiz v. Sylva (2002) 102 Cal.App.4th 199, 209, quoting Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 861.)16

providing appropriate care” is described by section 300, subdivision (c). ( In re Alexander
K. (1993) 14 Cal.App.4th 549, 557.) Subdivision (c) of section 300 does not req uire parental fault or neglect. Instead, dependency jurisdiction may be established where a parent is unable
, for whatever reason
, to provide adequate mental health treatment. ( In re
Alexander K.
, supra , at p. 557.) 13 Similarly, subdivision (g) of sectio n 300 permits dependency jurisdiction where a parent has left the child with a relative or other custodian and that caregiver “is unwilling or unable to provide care or support for the child.” This provision in sub division (g) does not require willfulness or bad faith on behalf of a parent. ( D.M. v. Superior Court , supra , 173 Cal.App.4th at pp. 1128

- 1129.) Section 300, s ubdivision (g)
, also supports dependency jurisdiction where an incarcerated parent “cannot arrange for the care of the
child.” The focu s is on the parent’s inability to arrange care without regard to fault or blame. ( In re Aaron S. (1991) 228 Cal.App.3d 202, 208 [“ [a] ccordingly, [§] 300, [subd.] (g) applies when, at the time of the hearing, a parent has been incarcerated and
does not kno w how to make, or is physically or mentally incapable of making, preparations or plans f

or the care of his or her child ”]

. ) Moreover, the Legislature’s express directive that in the case of a parent with a physical disability the juvenile court must consi der “whether a parent’s disability prevents him or her from exercising care and control” (§ 300, subd. (j), ¶ 2) is consistent with the notion that dependency jurisdiction need not necessarily be supported by some willful or negligent conduct of the parent . If a parent is physically unable to exercise care and control of his or her child such that the child is at substantial risk of harm, the parent’s inability (without regard to fault or blame) to adequate ly supervise or protect the child would support de pendency jurisdiction under the first clause of section 300, subdivision (b)(1).

13 Like section 300, subdivision (b)(1), in addition to allowing jurisdiction without regard to the fault of a parent, subdivisi on (c) includes an alternative jurisdictional basis based on a parent’s action or inaction in relation to the mental health of the child.17

We do not suggest that the fact of a severe disability alone “ip so facto make[s] a parent unfit ” or that dependency jurisdiction can simply be based on a “label.” Instead,
d epen dency jurisdiction depends upon an evaluation of the extent of the disability and how the disability impacts, if at all, a parent’s ability to adequately supervise and protect his or her child. If the parent’s abilities are compromised to such an exte nt that a child in the parent’s care and control would be at substantial risk of harm, dependency jurisdiction is warranted “ to ensure the safety, protection, and physical and emotional
well

- being” of that child. ( § 300.2.) We recognize that the notion o f dependency ju risdiction without regard to parental
fault or blame is at odds with our Division One colleagues’ decision in In re Precious D. (2010) 189 Cal.App.4th 1251 ( Precious D. ). 14 Nonetheless, we respectfully disagree
with the conclusion that secti on 300, subdivision (b)(1)
, necessarily requires that “parental unfitness or neglectful conduct must be shown in order to assert dependency court jurisdiction under that part of section 300 [, subdivision] (b).” ( Precious D. , supra , at p. 1254 ; s ee Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1489 , fn. 10 [one
division of the Second District is not bound by the decision of another division; there is
no horizontal stare decisis ].)
Precious D. addressed dependency jurisdiction in the context of an inc orrigible teenager . In reaching its conclusion that parental unfitness or neglectful conduct was required for dependency jurisdiction under subdivision (b) of section 300
, Precious D. considered the overall statutory scheme governing dependency. The cour t reasoned if

“ dependency jurisdiction [ could ] be asserted over an incorrigible child whose parent is neither unfit nor neglectful,” and ultimately parental rights could be terminated, federal due process pr inciples would be compromised

. ( Precious D. , sup ra , 189 Cal.App.4th at

p. 1261.) The court expressed concern that a jurisdictional finding where the parent was

14 Our colleagues in Division Two recently disagreed with Precious D. as well in In re R.T. (2015) 235 Cal.App.4th 795 , a decision in which the Supreme Court granted review on June 15, 2015, S226416.18

not at fault “would then be the basis for the child’s removal and for an order requiring reunification services that are either unnecessary or doomed to failure

. . . . ” ( Ibid .)
We do not share those same concerns
, based on the California Supreme Court’s explanation of the statutory scheme in Cythnia D. v. Superior Court (1993) 5 Cal.4th 242. “By the time termination [of parental rights] is po ssible under our dependency statutes the danger to the child from parental unfitness is so well established that there is no longer ‘reason to believe that positive, nurturing parent

- child relationships exist’ [citation]
, and the parens patriae interest of the state favoring preservation rather than severance of natural familial bonds has been extinguished.” ( Id. at p. 256.) “Indeed, our scheme requires: (1) a court finding that ‘there is substantial risk of serious future injury ’
to the minor in order to establish dependency [citation] ; (2) a finding by clear and convincing evidence that there is ‘substantial danger to the physical health of the minor ’ in order to remove the child from parental custody [citation] ; and (3) repeated findings by a prepondera nce of the evidence that return ‘would create a substantial risk of detriment to the physical or emotional well

- being of the minor’ [citations]. ” ( Id. at pp. 254

- 255.) Therefore, we hold that dependency jurisdiction may be established under the first
cla use of section 300, subdivision (b)(1)

— “the failure or inability of his or her parent .

. . to adequately supervise or protect the child”

— without regard to parental fault or blame

. In cases involving the physical disability of a parent the juvenile court must also focus “upon whether a parent’s disability prevents him or her from exercising care and control.” ( § 300, subd. (j), ¶ 2 .) Thus, where a parent’s physical disability makes him or
her unable to exercis e care and control of his or her child such t hat the parent cannot adequately supervise and protect the child resulting in a substantial risk of harm to that
child , the juvenile court’s jurisdiction may be invoked under the first clause of
section 300, subdivision (b)(1)

.

E. Substantial Evidence Su pport s the Juri sdictional Finding as to Mother
R elying on the first clause in section 300, subdivision (b)(1), t he petition allegations concerning Mother are minimal: “The child Tyler[’s] mother

. . . is unable to19

provide care and supervision of the chil d in that the mother is severely disabled. The mother’s inability to provide care and supervision of the child endangers the child’s physical health and safety and places the child at risk of physic al harm and damage.” The allegations are based solely on Mother’s physical disability and her inability to provide care and support for Tyler.
The evidence before the juvenile court established Mother had significant physical limitations. She had very little control over her limbs, could not speak, used a whe elchair and relied on others to meet all of her activities of daily living. Mother did have some movement and control in her left hand and was able to communicate by way of text messages through a cell phone. Ther e was no question that Mother di d not hav e the physical ability to care for Tyler. Moreover, t he evidence before the juvenile court also set forth specific social
worker concerns about Mother and her un willingness to parent Tyler to the extent she
was able . Mot her showed a lack of interest in T yler. Mother also did not ask others to
assist her with hold ing him and did not provide Tyler with the necessities of life (formula, diapers, clothes, a crib). Mother relied on relatives to provide for Tyler financially despite her receipt of monthly dis abi lity income. Additionally, de spite having been
victi mized by Father, Mother desire d to conti nue her relationship with him

. At the jurisdiction hearing, t his evidence was unrefuted. In addition to Mother’s physical inability to supervise and protect T yler, Mother

was not actually “exercising care and contro l” over him . ( § 300.) She was not parenting him in any respect. There was no evidence before the juvenile court Mother made any parenting

- related decisions for Tyler or direct ed others concerning his ongoing care. Mother argues that while she may have been physically unable to provide care for Tyler, she “was able to provide for the child by having .

. . those tasks done by one or more others [ sic ] who were physically able to provide that care and were willing to do so.” Arguing by analogy to the law governing incarcerated parents, Mother contends her physical inability to parent Tyler does not support dependency jurisdiction where she has made an appro priate plan for his care. (See Maggie S. v. Superior Court (2013) 22020

Cal.App.4th 662, 672; In re Noe F. , supra , 213 Cal.App.4th at p. 366 [no basis for jurisdiction where incarcerated parent makes appropriate plan for child].) Mother therefore relies on her family members’ willingness to provide c are for Tyler to undermine the juvenile court’s jurisdiction al findings. We are not persuaded by Mother’s argument. The L egislature has expressly provided that arrang ing for the care of a child is the relevant inquiry for dependenc y jurisdiction based so lely upon a parent ’s incarceration . ( § 300, subd. (g).) The
L egislature has ensured that “[t]here is no ‘Go to jail, lose your child’ rule in California. [Citation.]” ( In re S. D. (2002) 99 Cal.App.4th 1068, 1077.) In contrast to the express provision in section 300, subdivision (g), nothing in the
first clause of section 300, subdivis ion (b)(1)
, suggests an appropriate plan for a child defeats dependency jurisdiction based on a parent’s inability to supervise or protect the
child. 15 “When language is included in one portion of a statute, it s omission from a different portion addressing a similar subject suggests that the omission was purposeful.” ( In re Ethan C. (2012) 54 Cal.4th 610, 638.) Substantial evidence supports the juvenile court’s jurisdict ional finding as to Mother. Mother’s “severe disability d[id] not ipso facto” establish Tyler was a person described by section 300. Instead
, after considering the evidence, the juvenile court
determined Mother’s ph ysical inability to adequately supervis e and protect Tyler along
with her apparent lack of interest or indifference in parentin g him as well as her failure to provide any care and control over Tyler put Ty ler at substantial risk of harm because of his young age. The fortuity of Tyler having be en well cared for by family members up to this point, in spite of Mother’s physical inability to adequately supervise and protect him
, does not preclude dependency jurisdiction.

15 We agree with the juvenile court that an appropriate plan for a child’s ongoing care is a relevant inquiry on the issue of disposition where the jurisdiction finding is ba sed on a parent’s inability to adequately supervise or protect the child.21

F

. Substantial Evidence Supports the Juvenile Court’s Disposition Orders and Finding of Reasonable Efforts After a juvenile court finds a child before it is described by section 300, the juvenile court “shall hear evidence on the question of the proper disposition to be made of the child.” ( § 358 , subd. (a) .) The juvenile court may declare the child dependent and make orders concerning the child’s custody. (§ 360, subd. (d); Cal. Rules of Court,

r ule 5.695 .) The juvenile court may not remove physical custody of a child from his or her parent “unless the juvenile court finds cl ear and convincing evidence” “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or
emotional well

- being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s p hysical health can be protected without removing the minor from the minor’s parent’s .

. . physical custody.” ( § 361,
subd. (c)(1).) At the time the juvenile court made its disposition order removing Tyler from Mother’s custody and ordering him suitably placed with Karla , t he juvenile court
clarified its disposition order was “not at all based upon the mother’s inability to care for the child physically. ” Instead, the juvenile court articulated a number of findings that supported removal by clear and c on vincing evidence. Those specific findings as well as
all of the other evidence before it support s the juvenile court’ s determination that there was a substantial danger to the physical health and safety of then four

- and

- a

- half month old Tyler if he were l eft in Mother’s care , and that reasonable efforts had been made to prevent or eliminate the need for removal. The juvenile court found Mother was unwilling “ to do her part to care for [ Tyler ]”
and that she lacked interest in him. It also noted Mother ref used to pay for food or diapers for Tyler and had never provided any financial assistance for him. The juvenile court was “troubl[ed]” by Mother indicating to a social worker that she intended to be22

with Father when he was released from custody despite th e physical abuse he inflicted upon her

. 16 The juvenile court’s disposition order was supported by substantial evidence. The
evidence before the juvenile court established Mother had abandoned any kind of parental role over Tyler. Despite her physical lim itations, Mother had the ability to make parenting decisions for Tyler. Noth ing prevented her from directing Tyler’s care with physical assistance from others. Mother , however, did not assume any care and control of Tyler. Additionally, the juvenile cou rt recognized Mother’s desire to reunite with Father represented a substantial risk of harm to Tyler. The juvenile court noted its concern that if Mother chose to “go back with Father,” nothing would prevent her from taking Tyler
with her. Given Mother’s physical limitations, Father’s history of significant violence against Mother and Tyler’s young age, the juvenile court’s concern was well justified.
We also find Mother’s argument that the juvenile court should have dismissed the petition in favor of a guardianship granted by the probate court unavailing. Mother’s counsel suggested if the case “were to close,

. . . the mother could speak with the aunt and discuss issues about guardianship” and that the parties could go to probate co urt to obtain a guard ianship. Discussing iss ues about guardianship, however, is nothing more than an idea and would not have ensured Tyler’s safety

. Moreover, a s correctly noted by the Department, there was no evidence that Father was in agreem ent with such an idea or that F ather was not interested in reunifying with Tyler. In fact, there was some evidence to the contrary. We also reject Mother’s challenge to the juvenile court’s finding at the disposition hearing that the Department made reasonable efforts to prevent or el iminate the need for

16 In fact, the juvenile court admonished Mother at the conclusion of the jurisdiction hearing that it believed Father was a “very violent man” and it was concerned that Mother’s phy sical condition left her “very, very vulnerable to being seriously hurt if not killed.”23

Tyler’s removal from Mother’s custody as required by section 361, subdivision (c)(1). Mother claims the Department failed to provide her with any services while the
di sposition hearing was pending. The evidence, however, is to the co ntrary and supports the juvenile court’s finding
of reasonable efforts . The Department initially left Tyler in Mother’s home and worked with her so that she could retain custody of Tyler

. Prior to the jurisdiction hearing, the Department conducted a team meeting with Mother and family members to create a plan to assist Mother with caring for Tyler. In the meeting, the Departm ent and the family identified Tyler’s need to bond to Mother. They also noted that Tyler’s care would be the responsibility of Mot her with the help and support of family. The team created a goal of Mother obtaining a proper medical diagnosis and medical care with the assistance of one of Mother’s brothers. Having participated in the meeting where goals for her were created, Mother was well aw are of what was expected of her to ensure Tyler ’s safety . That Mother chose not to follow through with any of those goals cannot be blamed on an alleged failure to provide her with reasonable services to prevent or eliminate the need for Tyler’ s removal
from her home

.24 DISPOSITION

The orders are affirmed.

BECKLOFF, J. *

We concur:

PERLUSS, P. J.

SEGAL, J.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.