Filed 1/5/24 In re R.M. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re R.M., a Person Coming 

Under the Juvenile Court Law.

B327716

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

B.S.,

Defendant and Appellant.

Los Angeles County

Super. Ct. No.

22CCJP04816A

APPEAL from orders of the Superior Court of Los Angeles 

County, Stephen C. Marpet, Juvenile Court Referee. Reversed.

Katie Curtis, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Brian Mahler, Deputy County 

Counsel, for Plaintiff and Respondent.

_______________________________________
2

INTRODUCTION

Brittany S. (mother) appeals the court’s findings that there 

was jurisdiction under Welfare and Institutions Code1 section 

300, subdivisions (b)(1) and (g), based on her incarceration, and 

its dispositional orders. No evidence was presented that mother 

or R.M., Sr. (father)

2 abused or neglected the minor, R.M. (born 

October 2021), or that they had any debilitating mental 

impairment or substance abuse problems. Rather, the court 

exercised jurisdiction over R.M. because mother and father were 

arrested on murder charges and did not make prior 

arrangements for R.M.’s care. We conclude that the court’s order 

was not supported by substantial evidence because there was 

neither any allegation nor evidence that the parents were unable 

to arrange for care of R.M. during their incarceration. We 

therefore reverse and vacate the jurisdictional findings and 

dispositional orders.

FACTS AND PROCEDURAL BACKGROUND

On December 8, 2022, a car containing mother, father, and 

R.M. was stopped after it made an illegal U-turn. Police officers

determined that both mother and father have felony warrants for 

murder and took them into custody. Officers also booked the child

and then released him to the Los Angeles County Department of 

Children and Family Services (Department). Father provided 

1 All undesignated statutory references are to the Welfare and 

Institutions Code.

2 Father is not a party to the appeal.
3

officers the name of paternal grandfather, whom he stated would 

be willing to assume care of R.M.

A social worker arrived at the station and observed the 

child, who appeared to be calm and comfortable. He was 

appropriately dressed and had no visible marks or bruises. The 

social worker was permitted to speak with the parents concerning 

the child’s needs, but nothing else due to the nature of the 

criminal charges. Mother told the social worker that she also had 

an older child, N.G. (R.M.’s half-sister), who lived with paternal 

uncle and paternal grandmother.3 Mother provided information 

about R.M.’s health and routines. The social worker informed 

mother that, due to her being incarcerated, the child would be 

taken into protective custody and informed her of the date of the 

detention hearing. The social worker told father the same. 

The following day, the social worker spoke with paternal 

grandfather, who reported that he was interested in caring for 

R.M. The social worker requested the information for all adults in 

the home, including valid identification.

The Department filed a section 300 petition under 

subdivisions (b) and (g), alleging that there was a substantial risk 

that R.M. would suffer serious physical harm or illness as a 

result of parents’ failure to supervise or protect him due to their 

arrest for murder (count b-1) and that R.M. had no parent to 

provide care, supervision, and the necessities of life because his 

parents were arrested for murder (count g-1). 

3 According to the detention report, mother initially stated that N.G. 

lived with paternal grandmother and paternal grandfather. It was 

later clarified that paternal grandmother lived with paternal uncle.
4

On December 13, 2022, the court detained R.M. In a last 

minute information filed with the court on December 16, 2022, 

the Department reported that maternal grandmother had called 

and stated that she would like R.M. to be placed with her. She 

reported that N.G. would go back and forth between her house 

and paternal grandmother’s home. Maternal grandmother denied 

any history of domestic violence, substance abuse, mental health, 

or law enforcement coming to the home and stated that her 

partner had a criminal history that was more than 10 years old. 

The social worker also spoke with paternal grandmother, who 

stated that she resides in a 3-bedroom home with her adult son, 

the paternal uncle. She reported that she and paternal 

grandfather had been divorced for several years. Paternal 

grandmother stated that she would like R.M. released to her and 

that she had been caring for him since he was born. She reported 

that “most of her grandchildren have been raised by her as she 

provides a safe and stable home environment for the children.”

She stated that N.G. goes to visit her maternal grandmother but 

preferred to stay with paternal grandmother. The paternal

grandmother stated that her last arrest was in 2005 and denied 

any criminal history for herself or paternal uncle. A CLETS 

search for paternal grandmother “came back: ‘Hit’ ” but no crime 

or arrests were identified in the report. 

At a hearing on December 16, 2022, counsel for R.M.

requested that he be placed with paternal grandmother. The 

court ordered that R.M. be placed with paternal grandmother

over the objection of the Department. 

In the jurisdiction/detention report, the Department noted 

that N.G. was not included in the petition “as it was later 

discovered that she was in the home of [paternal grandmother].”
5

A social worker spoke with N.G., who reported that she had been 

living with paternal grandmother for approximately six years. 

She reported that the household consisted of R.M., paternal 

grandmother, and paternal uncle and stated that mother and 

father lived in Las Vegas but left N.G. with paternal 

grandmother so she could be closer to cousins, aunts, and uncles. 

She stated that R.M. mainly lived with mother and father, but 

“ ‘they would stay a couple weeks here and then go back.’ ” N.G. 

reported that she spoke with mother every day. N.G. stated that 

she would prefer to stay with paternal grandmother over her 

maternal grandparents. 

A social worker confirmed that mother was still 

incarcerated in San Joaquin County Jail with no release 

information. Concerning the allegations of the petition, mother 

stated: “ ‘That is just accusations, because right now I am 

innocent until proven guilty. Right now I have to go through the 

legal motions to see if I can qualify for bail.’ ” Mother stated that 

there was no official document or power of attorney granting 

paternal grandmother custody of R.M. or N.G., but that she 

wanted to create a notarized letter in which temporary legal 

custody could be established for paternal grandmother only while 

mother was incarcerated. Mother expressed interest in receiving 

reunification services and participating in court ordered services. 

She reported drinking alcohol once a year and denied using 

drugs. Father declined to comment on the allegations of the 

petition until he was appointed an attorney. Father reported that 

he was comfortable with paternal grandmother caring for R.M.

and that he wanted to reunify with his son. Father reported 

having a great relationship with the paternal grandparents and 

denied ever being exposed to domestic violence, alcohol, or drugs 
6

in his parent’s home. Father stated that he drinks socially and 

denied using drugs. 

Paternal grandmother reported that the parents call her 

daily. She expressed that she was willing and able to care for 

R.M. and N.G. and was willing to adopt them or become their 

legal guardian. 

In January and February of 2023, the court arraigned 

mother and father and appointed counsel for them. 

The court held the jurisdiction/disposition hearing on 

February 27, 2023. Counsel for mother sought dismissal of both 

allegations, arguing: “Number 1, the arrest is not jurisdictional. 

Number 2, an appropriate plan was made with paternal 

grandmother now taking care of the child. The child is no longer 

at risk of harm.” Counsel for father joined this argument. The 

court stated: “Mere fact that we were able to place the child with 

a relative is not the way the plan works. It’s a plan ahead of it.”

The court found that the petition was supported by a 

preponderance of the evidence and sustained both allegations. 

The court further found that there was no reasonable means of 

protecting R.M. short of removal. The court ordered family 

reunification services for mother and father as well as visitation.4

4 The court also stated that, because the parents were jailed in San 

Joaquin County and paternal grandmother also resided in Northern 

California, it was the court’s intent to transfer the case to San Joaquin 

County. On appeal, the Department seeks to establish that the case 

was transferred to San Joaquin County via attachments to its 

respondent’s brief. We may take judicial notice of court records outside 

the record on appeal (Evid. Code, §§ 459, subd. (a) & 452, subd. (d)),

but “a litigant must demonstrate that the matter as to which judicial 

notice is sought is both relevant to and helpful toward resolving the 

matters before this court. [Citation.]” (Deveny v. Entropin, Inc. (2006) 
7

Mother timely appealed. 

DISCUSSION

Mother contends that the court erred in sustaining the 

petition on the ground that the parents were incarcerated

without finding that the parents were mentally or physically

incapable of arranging for R.M.’s care by a relative. The 

Department contends that jurisdiction was necessary for R.M.’s 

placement with paternal grandmother “to have legal effect, and 

for R.M. to be protected from lacking parental support and being 

at substantial risk of suffering serious physical harm.” 

“ ‘In reviewing the jurisdictional findings and the 

disposition, we look to see if substantial evidence, contradicted or 

uncontradicted, supports them. [Citation.] 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 issues of fact and 

credibility are the province of the trial court.’ [Citations.]” (In re 

R.T. (2017) 3 Cal.5th 622, 633.) However, we note that the 

Department had the burden of proof as to each fact necessary to 

sustain the jurisdictional petition, and that mother “was not 

required to demonstrate anything” and could prevail “without 

making any factual showing at all.” (In re S.D. (2002) 99 

Cal.App.4th 1068, 1078 (S.D.).)

139 Cal.App.4th 408, 418.) The Department made no attempt to satisfy 

these requirements in its brief. Thus, we decline to take judicial notice 

of the attachments.
8

1. Substantial evidence does not support the court’s 

exercise of jurisdiction.

The court sustained the petition under section 300, 

subdivisions (b)(1) and (g). “A juvenile court may determine that 

a child is subject to the court’s jurisdiction under section 300, 

subdivision (b)(1) if it finds by a preponderance of the evidence 

that ‘[t]he child has suffered, 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,’ the willful or negligent 

failure of the parent to provide the child with adequate food, 

clothing, shelter, or medical treatment, or the inability of the 

parent to provide regular care for the minor due to the parent’s 

mental illness, developmental disability or substance abuse. 

[Citation.]” (In re Joaquin C. (2017) 15 Cal.App.5th 537, 560–

561.)

“Section 300, subdivision (g), authorizes the juvenile court 

to adjudge a minor a dependent child of the court where ‘the 

minor’s parent has been incarcerated or institutionalized and 

cannot arrange for the care of the minor . . . .’ [Citation.] The 

careful analysis found in In re Aaron S. (1991) 228 Cal.App.3d 

202 provides an authoritative interpretation of the statutory 

language. The court concluded that ‘[t]he use of the present tense 

verb in the statute, “cannot arrange,” indicates that the 

circumstances justifying the dependency must exist at the time of 

the hearing. [Citations.] Accordingly, section 300, subdivision (g) 

applies when, at the time of the [jurisdictional] hearing, a parent 

has been incarcerated and does not know how to make, or is 

physically or mentally incapable of making, preparations or plans 

for the care of his or her child.’ [Citation.]” (In re Monica C. (1995) 
9

31 Cal.App.4th 296, 304–305.) “Put another way, ‘neither 

incarceration alone nor the failure to make an appropriate 

advance plan for the child’s ongoing care and supervision is 

sufficient to permit the exercise of jurisdiction under subdivision 

(g).’ [Citation.] Moreover, ‘[n]othing in section 300, subdivision (g) 

even requires an incarcerated parent . . . to prove affirmatively 

the suitability of [his or] her caretaking arrangements. It 

requires only that [he or] she be able to make the 

arrangements.’ [Citation.]” (In re M.R. (2017) 7 Cal.App.5th 886, 

897 (M.R.).)

Without more, a parent’s inability to care for or financially 

support a child personally due to incarceration is not grounds for 

dependency jurisdiction under subdivisions (b)(1) or (g). (See, e.g., 

In re Noe F. (2013) 213 Cal.App.4th 358, 366 [holding, under 

subd. (b), that “incarceration, without more, cannot provide a 

basis for jurisdiction”]; In re Monica C., supra, 31 Cal.App.4th at 

p. 305 [subd. (g) “requires only that an incarcerated parent 

arrange adequately for the care of the child during the period of 

his or her incarceration”]; S.D., supra, 99 Cal.App.4th at p. 1077 

[“[t]here is no ‘Go to jail, lose your child’ rule in California”]; In re 

Andrew S. (2016) 2 Cal.App.5th 536, 542 [“Neither [section 300, 

subdivision (b) nor subdivision (g)] justifies the juvenile court’s 

assumption of jurisdiction over an otherwise well-cared-for child 

simply because an absent parent has not provided support.”].)

Mother contends that S.D., supra, 99 Cal.App.4th 1068 is 

instructive and supports reversal. In S.D., the mother left the 

two-year-old minor with a relative when she went out to dinner. 

(Id. at p. 1071.) The relative was arrested and police took the 

minor into custody. (Id. at p. 1072.) The next day the mother was 

arrested. (Ibid.) The petition alleged mother was incarcerated 
10

and neither parent was available to care for the minor, but there 

was no allegation or evidence that the mother was unable to 

arrange for the child’s care during her incarceration. (Id. at 

p. 1071.) In fact, the record “strongly suggest[ed] that [the 

mother] had several options for care of [the minor] during her 

incarceration.” (Ibid.) The minor was placed with a maternal 

aunt after the detention hearing and again after the 12-month 

review hearing. (Id. at pp. 1072–1073, 1075–1076.) The trial 

court dismissed the section 300, subdivision (b) allegations,

leaving section 300, subdivision (g) as the sole basis for 

jurisdiction. (S.D., at p. 1074.) 

In assessing mother’s claim of ineffective assistance of 

counsel for failing to assert a defense to section 300, subdivision 

(g), the Court of Appeal found it was “irrelevant that [the mother] 

had not already arranged for [the minor]’s care at the time of her 

incarceration.” (S.D., supra, 99 Cal.App.4th at p. 1077.) It held 

that the issue under section 300, subdivision (g), is whether the 

parent could arrange for care, not whether the parent had done 

so, and that the Orange County Social Services Agency (SSA) had 

the burden of proof and was required to establish that the parent 

could not arrange for care. (S.D., at p. 1078.) On the record before 

it, the court had “no problem concluding that SSA failed to 

sustain its factual burden.” (Ibid.) The court emphasized that, 

under the statute, the parent is not required to affirmatively 

prove the caretaking arrangements are suitable. (Id. at p. 1079.) 

The statute requires only that the parent is able to make the 

arrangements and, if the agency wishes to challenge the 

suitability of the arrangement, it must proceed under another of 

the clauses in section 300, subdivision (g). (S.D., at p. 1079.) 
11

In contrast, the Department contends that the court’s 

exercise of jurisdiction was appropriate under In re Athena P.

(2002) 103 Cal.App.4th 617 (Athena P.). In Athena P., the mother 

challenged the sufficiency of the evidence to support jurisdiction 

under section 300, subdivision (g). The parents were arrested and

several months later, while in custody, the mother gave birth to 

Athena and sent her to live with the grandparents. (Id. at 

pp. 621–622.) The mother attempted to create a formal custody 

arrangement, but the documents were never filed and the 

specifics of the arrangement were not known. (Ibid.) In finding 

substantial evidence supported the jurisdictional finding, the 

court observed that the mother had tried and failed to make the 

grandparents temporary legal guardians and never made any 

further effort to complete an arrangement for care of Athena. (Id.

at p. 629.) The failure left the grandparents with no legal 

authority to consent to medical treatment, authorize 

vaccinations, enroll the child in daycare or prove they were 

entitled to her custody should that prove necessary; thus, the 

mother was, and remained, unable to arrange for the minor’s 

care. (Ibid.) The court in Athena P. contrasted the circumstances 

before it from those present in S.D., supra, 99 Cal.App.4th 1068,

because “the social worker [in S.D.] conceded that the mother’s 

failure to give the babysitter a medical consent form, when she 

thought she was just going out to dinner, was not a basis for 

jurisdiction” and “the mother had never tried to give her sister 

legal custody; the dependency had intervened, making it 

unnecessary to do so.” (Athena P., at p. 630.) Thus, in S.D., “there 

was every reason to assume [the mother] could still make 

appropriate custody arrangements.” (Athena P., at p. 630.)
12

We agree with mother that the circumstances of this case

are more similar to S.D. than they are to Athena P. In Athena P., 

the mother was incarcerated for months before she gave birth 

and had time to make appropriate arrangements for the child’s 

care. Indeed, the mother had made attempts to create a formal 

custody arrangement but failed to file the paperwork. Here, the 

parents were arrested after a traffic violation and, upon their 

first interaction with the Department, were informed that the 

Department was taking R.M. into protective custody due to their 

incarceration. The record does not indicate that mother or father 

had any opportunity to attempt to arrange for R.M.’s care before 

the Department intervened. As in S.D., and unlike in Athena P., 

“the mother had never tried to give [paternal grandmother] legal 

custody [of R.M.]; the dependency had intervened, making it 

unnecessary to do so.” (Athena P., supra, 103 Cal.App.4th at 

p. 630.) Moreover, as in S.D., the record establishes that mother 

and father had multiple family members willing to assume care 

of R.M., including paternal grandmother, who was already caring 

for R.M.’s half-sister, and with whom R.M. was later placed.5 (See 

S.D., supra, 99 Cal.App.4th at p. 1071 [finding that mother had 

5 Although the Department argues on appeal that, absent jurisdiction, 

paternal grandmother “would not be legally obligated to continue 

providing care to R.M.[,]” it did not amend the petition to include N.G., 

even though paternal grandmother also does not have legal 

guardianship over her. This undermines any claim that the 

Department had concerns about paternal grandmother’s reliability. 

There is no basis in the record to conclude that paternal grandmother 

is not reliable or that R.M. is at risk of abandonment absent the court’s 

exercise of jurisdiction. Paternal grandmother cared for N.G. for 

approximately six years and expressed a strong interest in caring for 

R.M. as well. 
13

ineffective assistance of counsel where her attorney agreed that 

section 300, subd. (g) applied even though “the record . . . strongly 

suggest[ed] that [the mother] had several options for care of [the 

minor] during her incarceration”].)

Further, as in S.D., the Department “pleaded and proved 

only that [mother] had been incarcerated, but not that she was 

unable to arrange for care of” R.M. (S.D., supra, 99 Cal.App.4th at 

p. 1077.) The petition here alleged, with respect to both section 

300, subdivisions (b)(1) and (g): “The child, [R.M.], has no parent 

to provide care, supervision and the necessities of life . . . in that 

the child’s mother . . . and father. . . were arrested on 12/08/22 for 

PC 187 (Murder).” The Department did not allege that either 

parent was incapable of arranging for the provision of care, 

supervision, and the necessities of life for R.M. We have been 

unable to find evidence in the record supporting that the parents 

were physically or mentally unable to make appropriate custody 

arrangements for R.M., nor does the Department identify any 

such evidence on appeal. Indeed, even after the Department’s 

intervention, which rendered such efforts “unnecessary” (Athena 

P., supra, 103 Cal.App.4th at p. 630), mother considered how to 

make paternal grandmother’s guardianship of the children 

during her incarceration legally binding. The record further 

indicates that, despite her incarceration, mother spoke with the 

paternal grandmother and N.G. daily, which undermines any 

inference that mother was uninterested in her children or 

unwilling or unable to arrange for their care. (Compare M.R., 

supra, 7 Cal.App.5th at p. 897 [no substantial evidence supported

finding that incarcerated father did not or could not plan for the 

care of children under § 300, subd. (g), where “he took an interest 

in them, and attempted to provide for them to some degree from 
14

prison”] with In re James C. (2002) 104 Cal.App.4th 470, 484 

[upholding jurisdiction under § 300, subd. (g), and finding lack of 

evidence incarcerated father ever showed interest in or 

attempted to care for children sufficient for juvenile court to infer 

that he was unable or unwilling to arrange for care].)

In sustaining the petition, the juvenile court stated, “the 

mere fact we were able to place with a relative is not the way the 

plan works. It’s a plan ahead of it.” Contrary to the court’s 

statement, the law provides that “ ‘neither incarceration alone 

nor the failure to make an appropriate advance plan for the 

child’s ongoing care and supervision is sufficient to permit the 

exercise of jurisdiction under subdivision (g).’ [Citation.]” (M.R., 

supra, 7 Cal.App.5th at p. 897, italics added; accord, S.D., supra, 

99 Cal.App.4th at p. 1077 [that mother had not already arranged 

for the minor’s care at the time of her incarceration was 

“irrelevant” to determining whether exercise of jurisdiction under 

section 300, subd. (g) was appropriate].) 

In sum, we conclude that the Department did not carry its 

burden below of demonstrating that something more than the 

mere fact of the parents’ incarceration supported jurisdiction 

under section 300, subdivisions (b)(1) and (g). Further, the court 

applied an incorrect legal standard in concluding that jurisdiction 

was appropriate. We will therefore reverse the court’s true 

findings with respect to the exercise of jurisdiction under section 

300, subdivisions (b)(1) and (g), and its dispositional orders.
15

DISPOSITION

The court’s jurisdictional findings and dispositional orders 

are reversed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

ADAMS, J.