Filed 7/20/22 In re Detroy L. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re DETROY L. et al., Persons

Coming Under the Juvenile 

Court Law.

 B311193

 (Los Angeles County Super.

 Ct. No. 20LJJP00807)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

DERRICK L.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los 

Angeles County, Robin Kesler, Juvenile Court Referee. Reversed

and remanded with directions.

Law Office of Robert McLaughlin and Robert McLaughlin, 

under appointment by the Court of Appeal, for Defendant and 

Appellant.
2

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Sally Son, Deputy County 

Counsel, for Plaintiff and Respondent.

__________________________

Derrick L. (Father) challenges the jurisdiction findings and 

disposition orders declaring 15-year-old Detroy L., 12-year-old 

Micah L., nine-year-old Derico L., and eight-year-old Malik L.

dependents of the juvenile court pursuant to Welfare and 

Institutions Code1 section 300, removing them from Father’s 

custody, and requiring Father to submit to drug testing. Father

contends there is insufficient evidence to support the juvenile 

court’s findings Father left the children without provision of care 

and the children were at risk of harm from Father’s past criminal 

convictions of sex offenses and his status as a registered sex 

offender. Father also argues substantial evidence does not 

support the disposition order removing the children from Father’s 

custody and requiring Father to test for drugs. 

We agree with Father substantial evidence does not 

support the juvenile court’s findings Father failed to provide or 

arrange for care of the children and the children were at 

substantial risk of sexual abuse by Father, and therefore reverse. 

As to the sexual abuse allegations, because the juvenile court 

based its finding on an incorrect understanding of one of Father’s 

prior convictions and the presumption affecting the burden of 

1 Further undesignated statutory references are to the

Welfare and Institutions Code.
3

production under section 355.1, subdivision (d), we remand for a 

new jurisdiction and disposition hearing.

FACTUAL AND PROCEDURAL HISTORY

A. The Referral and Investigation

On November 10, 2020 the Los Angeles County 

Department of Children and Family Services 

(Department) received a referral alleging Barbara B. (Mother) 

and the maternal grandfather allowed Detroy, Micah, Derico, and 

Malik to watch pornography, and the children were being 

sexually abused by an unidentified person. On November 13 a 

social worker visited the family home, where Mother and the 

children lived with paternal grandfather and the children’s adult 

sibling, Daquan J. Micah, Derico, and Detroy stated Mother’s 

male companion Carlos T. sometimes lived in the home. In 

private interviews with the social worker, each of the children 

denied watching pornography or being sexually abused. The 

children were clean and appropriately dressed and reported 

having enough to eat. 

However, Malik reported that a week earlier during a 

family trip to the beach (while they were in the hotel), Carlos hit 

Mother in the face with his fist causing Mother’s nose to bleed. 

Derico stated that during the trip Carlos pushed Mother against 

a wall causing her to fall and her nose to bleed. Detroy and 

Micah reported Carlos and Mother argued, but the children

denied the parents had a physical confrontation. 

Mother told the social worker as to the hotel incident that 

Carlos “got in Detroy’s . . . face” and was about to fight Detroy, 

but Mother and the maternal grandfather “broke it up.” When 
4

Mother attempted to leave, Carlos “dragged her down stairs and 

made her go back into the house,” scraping Mother’s knees and 

elbows. Mother confirmed Carlos had assaulted her in the hotel 

room, causing her nose to bleed. However, she stated that 

everything was now “okay” between her and Carlos, and Carlos 

had never physically abused the children. 

Mother stated she and Father were together for 14 years 

and shared custody of the children under “an informal 

agreement.” Prior to Mother and Father’s separation three years 

earlier, “‘Father was around with the children.’” More recently, 

Father “‘hasn’t been around for personal reasons.’” Mother spoke 

with Father “almost daily,” and the children saw Father “often.” 

On November 19, 2020 a social worker interviewed Father, who 

stated he had not had any contact with the children since 2017. 

Father had “distanced himself from [Mother] because she had a 

drinking problem.” The social worker reported, “Father said he 

had a drinking problem, too.” Father stated he lived with the 

paternal grandmother and was “not currently stable to have the 

children in his care.” But Father had family who could care for 

the children “if needed.” 

B. The Dependency Petition, Removal, and Further 

Investigation

On December 18, 2020 the Department filed a dependency 

petition under section 300, subdivisions (a) and (b)(1), on behalf 

of Detroy, Micah, Derico, and Malik alleging Mother and Carlos 

had a history of engaging in domestic violence in the presence of 

the children, and Mother failed to protect the children. At the 

detention hearing on December 23, the juvenile court ordered the 

children released to the home of Mother with the children to have 
5

no contact with Carlos. At Father’s arraignment on January 20 

2021, the court ordered monitored visitation for Father “with a 

written visitation schedule.” 

On January 25, 2021 the Department requested the 

children be removed from Mother and Father due to Mother’s 

failure to protect the children from Carlos. Detroy reported 

Carlos was at Mother’s home on December 27, 2020 and again on 

January 25, 2021, in violation of the juvenile court’s no-contact 

order. In addition, on December 28 Carlos crashed his vehicle 

into the family apartment’s complex, and his minor son was 

staying in the family home. Mother denied Carlos was in the 

home. Father stated he was unable to take custody of the 

children because of his current situation. He had family 

members who potentially could take the children but not at that 

time. On January 26 the juvenile court authorized the 

Department to remove the children from Mother and Father. 

The children were initially placed in foster care, but on January 

27 they were placed with a paternal aunt at Mother’s 

recommendation. At the February 2, 2021 detention hearing, 

Father’s attorney requested the children be released to Mother, 

or alternatively, to Father with a conditional placement with the 

paternal aunt. The court denied Father’s request and detained 

the children from Mother and Father. 

On January 28, 2021 the Department conducted a search of 

the California Law Enforcement Telecommunication System

(CLETS), which showed Father was a registered sex offender 

with felony criminal convictions in 1985 for lewd or lascivious 

acts on a child under 14 years of age (Penal Code, § 288, subd. 

(a)) and in 2005 for unlawful sexual intercourse with a minor who 
6

is more than three years younger than the perpetrator (id., 

§ 261.5, subd. (c)).2 

On February 2, 2021 a social worker interviewed Father 

regarding his convictions. Father stated his 1985 “conviction is 

36 years old,” and he declined to discuss it further, only noting 

“this matter keeps him from having a stable job.” Father 

explained he stayed away from the children out of a concern his 

criminal history might “embarrass[]” them. But he loved his 

children, and his criminal history had “nothing to do with” them. 

Father usually lived in his car but was staying with the paternal 

grandmother due to the COVID-19 pandemic. Father added, “‘I 

can’t have my children. They are with my sister and that is 

good.’” 

C. The First Amended Petition

On February 16, 2021 the Department filed a first amended 

petition, alleging Father was required to register as a sex 

offender and suffered criminal convictions of sex offenses in 1985 

and 2005 (§ 300, subd. (b)(1); count b-3), and Father could not

assume or arrange for care of the children (id., subds. (b)(1) & (g); 

count g-1), which placed the children at a substantial risk of 

serious harm.

3

The February 16 last minute information for the court 

reported Father stated he had “‘always been around [his] 

2 Father was sentenced on the 1985 conviction to 365 days in

county jail and four years’ probation, and on the 2005 conviction 

to two years in state prison. Father was also convicted in 2005 of 

failure to register as a felony sex offender.

3 The first amended petition also alleged Mother violated 

court orders by allowing Carlos to visit the home. 
7

children’” up until the last two years. The social worker 

confirmed Father was released on parole on September 10, 2007 

and discharged on July 19, 2010 without any violations. 

According to the March 10 last minute information for the court,

Father reported, “I have no restrictions to be around kids. . . . I 

would never harm my children.” Father stated he did not 

currently have a job or any source of income, and he could not 

take care of the children at the time although he loved them. 

Father continued to have monitored visits with the children, 

which he said were going well. He also regularly spoke with the 

children by phone. 

D. The Jurisdiction and Disposition Hearing

At the March 15 jurisdiction and disposition hearing, 

Father’s attorney requested the court dismiss all counts as to 

Father, arguing the Department failed to show Father was a

current risk to the children because none of Father’s convictions 

involved the children and Father had “no current criminal history 

for over ten years.” Further, Father arranged for the care of the 

children with Mother before the Department filed the petition,

and Father’s “living situation should not be used against him.” 

Father’s attorney added the children were “suitably placed” with 

the paternal aunt. The children’s attorney agreed Father did not 

present a current risk to the children based on his past criminal 

conduct and submitted as to the remaining counts against 

Father. 

The Department argued Father was a registered sex 

offender, and he “did not provide any information that he has 

gone through counseling” or “taken awareness classes or sexual 

abuse classes for perpetrators.” Further, Father admitted he 
8

could not provide for the children, and he failed to make an 

appropriate plan for the children when they were detained. 

The juvenile court sustained the allegations under 

section 300, subdivisions (b)(1) and (g).

4 The court found as to the 

sexual abuse allegations that Father “is a registered sex offender 

with at least two convictions for sex [with a minor] under the age 

of 14.” The court explained, “[Father] has more than one 

conviction with lewd acts for children under the age of 14, two 

convictions. One was a three-year-old child or younger. . . . The 

[Penal Code, section 288, subdivision (a)] was in 1985. And the 

[Penal Code, section 261.5, subdivision (c)] was in 2005. But 

. . . Father has . . . continued to involve himself with sexual 

conduct with children. [¶] [T]hese kids are seven and older, up 

to 15. In the court’s mind, the conviction shifts the burden of 

proof to show that Father has rehabilitated himself. . . . [H]e 

hasn’t had any convictions in regards to this since then; however, 

I don’t have any information of what he’s done otherwise in 

counseling or programs. It’s real obvious the kids are in danger.” 

As to the allegation under section 300, subdivision (g), the court 

explained, “While I understand the difficulty with COVID, and 

[Father’s] prior [criminal] history, he has been unable to provide 

care or support for the children.”

As to disposition, Mother’s attorney requested the children 

be placed with Mother, or at least that she be provided 

unmonitored visitation. Father’s attorney stated Father was 

willing to complete any case plan ordered by the court. The 

4 The court sustained the allegation in count g-1 that Father 

failed to assume or arrange for the care of the children and to 

provide them with the basic necessities of life. However, the 

court dismissed the identical allegation in count b-4.
9

children’s attorney requested all four children be removed from 

Mother and Father. The children’s attorney also clarified as to 

Father’s 2005 conviction “there . . . was . . . at least a three-year 

age difference between Father and the victim” and the conviction 

did not involve “a child under the age of three.” The court 

replied, “I did read it wrong. I thought it was a child three years 

or younger, but it’s a difference in age of three years. Thank you 

very much for pointing this out.” However, the court did not 

revisit its finding Father suffered at least two convictions for sex 

with children under the age of 14 or the jurisdiction finding based 

on the court’s erroneous interpretation of Father’s criminal

record. The Department argued that given the risk posed by 

Father, he should be “bypass[ed],” with no reunification services. 

The juvenile court removed the children from Mother and 

Father and ordered reunification services for both parents. As to 

Father, the court ordered up to three monitored three-hour visits 

each week, but it required any liberalization of visits be approved 

by the court. The court also ordered Father to comply with any 

criminal order requiring him to register as a sex offender, to 

submit to random and on-demand drug testing, and to complete 

sexual abuse counseling for perpetrators and individual 

counseling to address his sexual abuse. Father’s attorney 

objected to the court requiring Father to drug test and the 

restriction on liberalization of visitation. 

Father timely appealed.5

5 Mother is not a party to this appeal.
10

DISCUSSION

A. Father’s Appeal of the Jurisdiction Findings Is Justiciable 

The Department contends Father’s appeal is not justiciable 

because Mother has not appealed from the jurisdiction findings 

and disposition order and Father does not challenge the findings 

as to Mother. Father argues his claims are justiciable because he 

challenges the jurisdiction findings on which the disposition order 

he also challenges is based. We agree with Father his appeal is 

justiciable.

An appeal is not justiciable where “no effective relief could 

be granted . . . , as jurisdiction would be established regardless of 

the appellate court’s conclusions with respect to any such 

[challenged] jurisdictional grounds.” (In re Madison S. (2017) 

15 Cal.App.5th 308, 329; accord, In re I.A. (2011) 201 Cal.App.4th 

1484, 1490 [“An important requirement for justiciability is the 

availability of ‘effective’ relief—that is, the prospect of a remedy 

that can have a practical, tangible impact on the parties’ conduct 

or legal status.”].) Nevertheless, “[c]ourts may exercise their 

‘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 challenged 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].’” (In re D.P. (2015) 237 Cal.App.4th 911, 

917, quoting In re Drake M. (2012) 211 Cal.App.4th 754, 762-763; 

accord, In re Madison S., at p. 329; In re J.C. (2014) 233 

Cal.App.4th 1, 4.) We exercise our discretion to reach the merits 
11

of Father’s challenges because the jurisdiction findings against 

him serve as a basis for the removal order.

B. Substantial Evidence Does Not Support the Jurisdiction 

Findings as to Father

1. Standard of review 

The juvenile court has jurisdiction over a child if the 

Department establishes by a preponderance of the evidence that 

an allegation made pursuant to section 300 is true. (§ 355, 

subd. (a); In re I.J. (2013) 56 Cal.4th 766, 773.) We review the 

juvenile court’s jurisdiction findings for substantial evidence in 

light of the whole record. (In re I.C. (2018) 4 Cal.5th 869, 892 

[“the evidence supporting the jurisdictional findings must be 

considered ‘“in the light of the whole record”’ ‘to determine 

whether it discloses substantial evidence’”]; In re R.T. (2017) 

3 Cal.5th 622, 633 [“‘In reviewing the jurisdictional findings and 

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

uncontradicted, supports them.’”].) Substantial evidence is 

“evidence which is reasonable, credible, and of solid value.” (In re 

I.C., at p. 892; accord, In re Cole L. (2021) 70 Cal.App.5th 591, 

602.) “‘[W]e 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.’” (In re R.T., at p. 633; accord, In 

re I.J., at p. 773; In re Cole L., at p. 602 [“while substantial 

evidence may consist of inferences, any inferences must rest on 

the evidence; inferences based on speculation or conjecture 

cannot support a finding”].) “The appellant has the burden of 

showing there is no evidence of a sufficiently substantial nature 
12

to support the findings or orders.” (In re E.E. (2020)

49 Cal.App.5th 195, 206; accord, In re D.B. (2018) 26 Cal.App.5th 

320, 328-329.)

2. Substantial evidence does not support the juvenile 

court’s jurisdiction finding under section 300, 

subdivision (g)

Section 300, subdivision (g), provides for juvenile court 

jurisdiction when, among other grounds, “[t]he child has been left 

without any provision of support.” (Accord, In re Anthony 

G. (2011) 194 Cal.App.4th 1060, 1065 [“As pertinent here, a 

jurisdictional finding under section 300, subdivision (g) requires 

[the Department] to show that ‘[t]he child has been left without 

any provision for support . . . .’”]; In re J.O. (2009) 

178 Cal.App.4th 139, 153 [same], disapproved on another ground 

in In re R.T., supra, 3 Cal.5th 622.)

A jurisdiction finding under section 300, subdivision (g), 

does not require the Department to prove serious harm or risk of 

harm. (In re J.O., supra, 178 Cal.App.4th at p. 153.) “Whether a 

parent can arrange for care is to be determined as of the date of 

the jurisdictional hearing, and a non-custodial parent’s failure to 

make arrangements before the child is removed by [the 

Department] does not cause the child to fall within the terms 

of section 300, subdivision (g).” (Ibid.; accord, In re Aaron 

S. (1991) 228 Cal.App.3d 202, 209 [“The statute requires proof 

that appellant was unable to arrange for care at the time of the 

hearing, not that he had failed to do so at some prior point in 

time.”].)

Father contends substantial evidence does not support the 

juvenile court’s jurisdiction finding under section 300, 
13

subdivision (g), because Father never left the children without 

provision for support. Rather, prior to the removal of the 

children in January 2021, Mother cared for the children under an 

informal agreement between Father and Mother. The 

Department argues substantial evidence supports the court’s 

jurisdiction finding because “Father had not arranged for the 

children’s care with a relative when Mother became unable to 

care for them—as a result, the children were placed in foster 

care.” Father has the better argument.

As discussed, on November 19, 2020 Father told the social 

worker he was “not currently stable to have the children in his 

care,” but he had family who could care for the children “if 

needed.” As of January 21, 2021, Father was still unable to care 

for the children, and his family was not available to care for the 

children. Although the children were therefore placed in foster 

care on January 26, they remained there for only one day. On 

January 27 the children were placed with the paternal aunt, 

after Mother suggested the placement, stating “there were 

already plans for the [paternal aunt] to pick up the children and 

have an extended visit with her.” And Father similarly requested 

at the February 2, 2021 detention hearing that if the children 

could not be released to Mother, they should be released to 

Father conditioned on placement with the paternal aunt. 

Moreover, prior to the children’s removal, they were in good 

health, had adequate food and shelter, and showed no signs of 

abuse or neglect. 

There is not substantial evidence Father left the children 

without providing support within the meaning of section 300, 

subdivision (g). Father’s failure to arrange for the placement of 

the children before the Department removed the children “is not 
14

sufficient in and of itself to meet the term of section 300, 

subdivision (g).” (In re Aaron S., supra, 228 Cal.App.3d at 

p. 209.) At the time of the jurisdiction hearing, the children were 

placed with the paternal aunt, consistent with Father’s request 

at the February 2, 2021 detention hearing. (See In re J.O., supra, 

178 Cal.App.4th at p. 153 [the Department must prove a parent 

cannot arrange for care of a child as of the date of the jurisdiction

hearing to support allegations under § 300, subd. (g)]; In re Aaron 

S., at p. 209 [same].) The Department’s argument Father left the 

children without provision for support because it was Mother, not 

Father, who identified the paternal aunt for placement is not 

persuasive in light of Father’s arrangement with Mother to care 

for the children.

In re E.A. (2018) 24 Cal.App.5th 648, relied on by the 

Department, is distinguishable. There, the parents left the 

children without provision for support, abandoning them for 

seven months in a Tijuana shelter in the custody of Mexican 

Department of Integrity of Families without making any attempt 

to reunify. (Id. at pp. 656, 658.) The children were then brought 

to the United States (where they were citizens), and the juvenile

court placed them with the maternal grandmother. At the 

jurisdiction hearing, the juvenile court concluded the parents had 

left the children without provision for support under section 300, 

subdivision (g), but the later placement of the children with the 

maternal grandmother defeated any exercise of jurisdiction, and 

on that basis the court dismissed the petition. (In re E.A., at 

pp. 658-659.) The Court of Appeal reversed, concluding the 

juvenile court had misinterpreted section 300, subdivision (g), 

reasoning the “[g]randmother’s willingness to provide for minors’

care, a relevant fact if dependency jurisdiction was sought under 
15

the last criteria [subdivision (g)], is not an exception to, and does 

not trump, a finding that ‘the child has been left without 

provision for his or her support’ when dependency jurisdiction is 

asserted under the first clause of section 300(g).” (In re E.A., at 

p. 662.) The court reasoned further the parents had not arranged

for the grandmother to care for the children, did not want the 

children to live with the grandmother, and demonstrated a lack 

of interest in the children’s welfare at the time of the jurisdiction 

hearing by failing to meet with the social worker, to call the 

children when scheduled, or to submit to drug testing. (Id. at 

p. 663.)

Here, Mother and Father arranged for placement of the 

children with the paternal aunt after the children were removed 

from the parents’ care. That the children spent one day in foster 

care prior to the jurisdiction hearing does not provide a basis for 

jurisdiction under section 300, subdivision (g). Thus, we reverse 

the juvenile court’s jurisdiction finding under section 300, 

subdivision (g).

3. The juvenile court erred in sustaining the sexual 

abuse allegations under section 300, 

subdivision (b)(1)

a. Governing law

Section 300, subdivision (b)(1), allows the juvenile court to 

assume jurisdiction when “[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 the child’s 

parent or guardian to adequately supervise or protect the 

child . . . or by the willful or negligent failure of the parent to 

provide the child with adequate food, clothing, shelter, or medical 
16

treatment, 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, developmental disability, or substance abuse.”

“A jurisdiction finding under section 300, subdivision (b)(1), 

requires the Department to prove three elements: (1) the parent’s

or guardian’s neglectful conduct or failure or inability to protect 

the child; (2) causation; and (3) serious physical harm or illness 

or a substantial risk of serious physical harm or illness.” (In re 

Cole L., supra, 70 Cal.App.5th 591, 601; accord, In re L.W. (2019) 

32 Cal.App.5th 840, 848; see In re R.T., supra, 3 Cal.5th at p. 624 

[“section 300(b)(1) authorizes dependency jurisdiction without a 

finding that a parent is at fault or blameworthy for her failure or 

inability to supervise or protect her child”].) “Although 

section 300 requires proof the child is subject to the defined risk 

of harm at the time of the jurisdiction hearing [citations], the 

court need not wait until a child is seriously abused or injured to 

assume jurisdiction and take steps necessary to protect the 

child.” (Cole L., at pp. 601-602; accord, In re L.O. (2021) 

67 Cal.App.5th 227, 238 [“‘Although there must be a present risk 

of harm to the minor, the juvenile court may consider past events 

to determine whether the child is presently in need of juvenile 

court protection.’”].) “A parent’s ‘“[p]ast conduct may be probative 

of current conditions” if there is reason to believe that the 

conduct will continue.’” (Cole L., at p. 602; accord, In re J.A. 

(2020) 47 Cal.App.5th 1036, 1048.) 

Section 355.1, subdivision (d), “provides that a parent or 

guardian’s prior conviction of sexual abuse as defined in Penal 

Code section 11165.1 or the parent’s legal obligation to register as 

a sex offender as a result of a felony conviction pursuant to Penal 

Code section 290 constitutes ‘prima facie evidence in any 
17

proceeding that the [child who is the subject of the dependency 

proceeding] is a person described by subdivision (a), (b), (c), or (d) 

of Section 300 and is at substantial risk of abuse or neglect. The 

prima facie evidence constitutes a presumption affecting the 

burden of producing evidence.’” (In re Quentin H. (2014) 

230 Cal.App.4th 608, 614 (Quentin H.); accord, In re S.R. (2020) 

48 Cal.App.5th 204, 221.) A presumption affecting the burden of 

producing evidence “require[s] the trier of fact to assume the 

existence of the presumed fact unless and until evidence is 

introduced which would support a finding of its nonexistence, in 

which case the trier of fact shall determine the existence or 

nonexistence of the presumed fact from the evidence and without 

regard to the presumption.” (Evid. Code, § 604; accord, Quentin 

H., at p. 614.) 

Thus, the section 355.1 presumption “disappears once 

contrary evidence is introduced whether or not the contrary 

evidence is sufficient under the appropriate standard of proof to 

disprove the presumed fact.”6 (Quentin H., supra, 

230 Cal.App.4th at p. 615, fn. 6; accord, In re S.R., supra, 

48 Cal.App.5th at p. 222.) “Once rebutted, the presumed fact 

may still be considered by the fact finder, as well as 

any reasonable inferences to be derived therefrom . . . , but 

6 “A presumption affecting the burden of proof, in contrast, is 

designed to implement some public policy; it places on the party 

against whom it operates the affirmative obligation to disprove 

the presumed fact by a preponderance of the evidence, unless a 

different standard of proof is required by law.” (Quentin H., 

supra, 230 Cal.App.4th at p. 615, fn. 6; see Evid. Code, § 606 [the 

effect of a presumption affecting the burden of proof is “to impose 

upon the party against whom it operates the burden of proof as to 

the nonexistence of the presumed fact”].)
18

without regard to the benefit of the presumption.” (Quentin H., 

at pp. 614-615; accord, In re S.R., at p. 222 [“Even without the 

benefit of the [rebutted] presumption, however, the juvenile court 

was entitled to consider ‘the fact of [the father’s] prior sex abuse 

conviction and any reasonable inferences to be derived from it.’”]; 

see Evid. Code, § 604 [“[n]othing in this section shall be construed 

to prevent the drawing of any inference that may be 

appropriate”].)

b. Father rebutted the presumption under 

section 355.1 

Father contends the juvenile court improperly relied on the 

section 355.1 presumption in finding under section 300, 

subdivision (b)(1), the children were at substantial risk of abuse 

or neglect even though Father rebutted the presumption with 

evidence in the Department’s reports that the children stated 

they had never been sexually abused; Mother and Father 

coparented the children for 14 years without any signs of sexual 

abuse by Father; and Father had not reoffended since being 

released from parole in 2010. The Department argues Father did 

not rebut the presumption given the 20-year interval between 

Father’s two convictions for “sexual offense[s]” against minors, 

the absence of evidence Father completed rehabilitative services, 

and Father’s unwillingness to discuss the nature of the offenses. 

Father is correct.

Father’s 1985 conviction for committing lewd or lascivious 

acts on a child under 14 years of age (Pen. Code, § 288, subd. (a)) 

constitutes “‘sexual abuse’” under Penal Code section 11165.1, 

subdivision (a), thereby triggering the presumption under 

section 355.1, subdivision (d). (See Pen. Code, § 11165.1, 
19

subd. (a) [defining “‘sexual abuse’” to include, among other 

things, “conduct in violation of . . . subdivision (a) . . . of, 

Section 288 (lewd or lascivious acts upon a child)”].) However, 

the juvenile court erred in finding Father’s 2005 conviction under

Penal Code section 261.5, subdivision (c) (unlawful sexual 

intercourse with a minor who is more than three years younger 

than the perpetrator) also fell within the definition of “sexual 

abuse” pursuant to section 355.1, subdivision (d).7 (See Pen. 

Code, § 11165.1, subd. (a) [defining “‘sexual abuse’” to include 

“conduct in violation of . . . subdivision (d) of Section 261.5,” but 

not subdivision (c) of that section].) Further, Father’s 2005 

conviction, based on unlawful sexual intercourse with a minor

who was three years younger than Father, does not support the 

juvenile court’s finding the victim was under 14 years of age (and 

certainly does not show the victim was under three years old). At 

most the record of conviction shows the victim was a minor. After 

the children’s counsel pointed out the error, the court 

acknowledged it had misread the conviction record, but it failed 

to revisit its jurisdiction finding that was based on Father’s two 

convictions for sexual abuse, one of which the court believed 

involved a child younger than three years old. 

Moreover, in sustaining the sexual abuse count (b-3), the 

juvenile court misstated the applicable evidentiary burden, 

explaining the Department had met its “the burden of proof” 

rather than the burden of producing evidence. (See § 355.1, subd. 

7 It is troubling that counsel for Father and the Department

on appeal similarly treat Father’s 2005 conviction as one for 

sexual abuse under section 355.1, subdivision (d). Further, 

Father’s counsel erroneously refers to Father’s conviction as one 

“for having sex with a minor child under three years of age.”
20

(d).) Father amply rebutted the presumption he posed a danger 

to the children by his showing the 1985 offense for sexual abuse 

was stale; the offense did not involve Father’s children; the 

children denied they had ever been abused; and Father lived with 

the family for 14 years with no indicia of sexual abuse.

Our opinion in Quentin H., supra, 230 Cal.App.4th 608 is 

instructive. There, the father suffered a conviction of forcible oral 

copulation with a minor under 14 years old, which required him 

to register as a sex offender, over 20 years before the Department 

filed its petition. (Id. at p. 611.) At the jurisdiction hearing, the 

father argued he was not a risk to the children, relying on the 

staleness of the conviction and statements in the Department’s 

reports by the children and their mother that the father had lived 

with them for a substantial amount of time and never acted 

inappropriately with the children. (Id. at p. 612.) As here, the 

Department argued the father posed a danger to his children 

based on his conviction and lack of evidence he had completed 

rehabilitative therapy. (Ibid.) We reversed the juvenile court’s 

jurisdiction findings under section 300, subdivisions (b) and (d), 

reasoning Father’s evidence was sufficient to meet his burden of 

production, and thus, the presumption disappeared. (Quentin, at 

p. 610.) We explained, “The question is not whether this evidence 

is sufficient to support a jurisdiction finding because the court did 

not weigh this evidence or make any findings as to the 

significance or weight of the Department’s evidence relative to 

[father’s]. Instead, it erroneously relied on the presumption to 

sustain the petition as to [father], mistakenly believing no 

contrary evidence apart from the date of the conviction had been 

presented to overcome the presumption of dangerousness 

contained in section 355.1. This was error.” (Id. at p. 620.) We 
21

remanded for the court to make findings based on the evidence 

without regard to the presumption. (Id. at pp. 615-618.)

In light of the juvenile court’s factual and legal errors, as in 

Quentin H., we reverse the court’s jurisdiction finding on count b3 based on the sexual abuse allegations.8 On remand, the court 

must consider the evidence presented at the jurisdiction hearing 

without regard to the presumption under section 355.1, 

subdivision (d), in determining whether the Department carried 

its burden to show by a preponderance of the evidence 

jurisdiction is proper based on Father’s prior convictions and 

status as a sex offender.

C. We Reverse the Disposition Order as to Father

Because we reverse the jurisdiction finding as to Father, 

“the court’s findings cannot support a disposition order denying 

him custody of the children.” (In re Andrew S. (2016) 

2 Cal.App.5th 536, 544; accord, In re R.M. (2009) 175 Cal.App.4th 

986, 991.) Further, “all subsequent orders as to [Father] must be 

reversed as well.” (In re R.M. (2009) 175 Cal.App.4th at p. 991.) 

We therefore reverse the removal order and order requiring 

Father to submit to drug testing.

8 As we explained in Quentin H., supra, 230 Cal.App.4th at 

page 620, footnote 8, the court’s misapplication of the 

presumption under section 355.1 was prejudicial: “Under 

California law a judgment may not be reversed based on 

improper rejection of evidence unless the error is prejudicial—

that is, it resulted in a miscarriage of justice. [Citations.] Here, 

in a close case in which the court’s improper application of the 

presumption plainly tilted the balance in favor of the 

Department, we simply cannot deem the error harmless.”
22

On remand, the juvenile court will need to base any 

disposition order on current circumstances, including any 

requirement as to drug testing (challenged by Father on appeal). 

Substantial evidence did not support the requirement in the prior 

disposition order that Father submit to drug testing based on his 

single statement reflected in the December 23, 2020 detention 

report that he “said he had a drinking problem, too.” Father 

made this statement in explaining why he distanced himself from 

Mother and the children in 2017—because of Mother’s drinking 

problem. There is no evidence in the record that Father had a 

“drinking problem” after 2017, or the nature of any drinking 

problem. “The program in which a parent or guardian is required 

to participate shall be designed to eliminate those conditions that 

led to the court’s finding that the child is a person described by 

Section 300.” (§ 362, subd. (d); see In re Daniel B. (2014) 

231 Cal.App.4th 663, 673 [“The case plan ordered by the court 

should be appropriate for each individual family based on facts 

relevant to that family, and should be designed to eliminate the 

conditions that led to the dependency in the first instance.”].) 

Absent evidence Father had an alcohol or drug abuse problem in 

2020 that led to the court’s jurisdiction over the children (and 

was an ongoing issue), the juvenile court abused its discretion in 

requiring Father to submit to drug testing. (See In re Drake 

M. (2012) 211 Cal.App.4th 754, 770 [juvenile court abused its 

discretion in ordering drug testing of father where there was 

nothing in the record to indicate father had a substance abuse 

problem or that his use of medical marijuana led to the finding of 

dependency jurisdiction, nor was the condition designed to 

address mother’s substance abuse and mental illness issues].)
23

DISPOSITION

The jurisdiction findings on counts b-3 and g-1 and the

disposition order are reversed as to Father. On remand the 

juvenile court shall conduct a new jurisdiction hearing as to 

Father to determine whether the Department has sustained its 

burden of proof as to the sexual abuse allegations in count b-3 of 

the first amended petition without regard to the section 355.1

presumption, giving appropriate weight to the family’s current

situation.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.