Filed 12/17/21 In re I.T. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re I.T. et al., Persons Coming 

Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

T.T.,

Defendant and Appellant.

 D079029

 (Super. Ct. Nos. EJ4520A-B)

APPEAL from orders of the Superior Court of San Diego County, 

Rohanee Zapanta, Judge. Reversed and remanded for further proceedings. 

Brent Riggs, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy 

County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and 

Respondent. 
2

T.T. (Father) appeals from orders issued at a special hearing held on 

May 25, 2021, requiring that his children, eight-year-old I.T. and six-year-old 

V.M., upon medical clearance, be vaccinated and enrolled in school. Father 

contends that the juvenile court erred by assuming the role of the children’s 

educational decision maker without following the statutory framework to 

limit his parental rights to direct his children’s education.1 He also argues 

that the juvenile court lacked the authority to order the children be 

vaccinated because the vaccination orders were not grounded upon any 

concern for the children’s physical health or safety but to direct their 

education. 

We conclude that the juvenile court abused its discretion by failing to 

follow Welfare and Institutions Code2 section 361 which governs how a 

juvenile court may limit the right of a parent to make educational decisions 

for a child. Accordingly, we reverse the orders without prejudice and remand 

the matter for further proceedings. This conclusion renders Father’s second 

argument moot and we decline to address it. 

1 Mother, C.W., is not a party to this appeal. 

2 Undesignated statutory references are to the Welfare and Institutions 

Code. 
3

I.

FACTUAL AND PROCEDURAL BACKGROUND3

The parents are unmarried and their relationship ended in 2017. In 

March 2020, the San Diego County Health and Human Services Agency (the 

Agency) filed juvenile dependency petitions under section 300, subdivision 

(b)(1) alleging that the children were exposed to violent confrontations in the 

parent’s homes between Father and his girlfriend, and between Mother and 

her boyfriend. At that time, a social worker spoke to the director of the 

Montessori school that the children previously attended. The director 

indicated that I.T. had not attended school “for the past year” and the school 

terminated the children due to the parents being inconsistent with the 

schedule and Father being unsafe because he hugged other students with 

barber scissors around his neck. When the children had attended school they 

“were always hungry and without sleep” because of the parents’ fighting. 

The Agency detained the children in a foster home. In April 2020, the 

children’s caregiver told a social worker that I.T. was behind in school, knew 

her ABC’s but did not know how to read. At that time, I.T. had online school 

meetings twice a week and a teacher provided packets for her to complete. 

V.T. had not yet started school but the parents reported that he had a spot at 

a Montessori school starting in September 2020. In May 2020, Mother and 

her boyfriend had a child together. At the contested jurisdiction/disposition 

hearing in July 2020, the juvenile court made true findings on the allegations

in the petitions and placed the children with the parents in a family 

3 Because the matters on appeal relate to the orders issued at the special 

hearing, we summarize the facts briefly, focusing on the special hearing. “In 

accord with the usual rules on appeal, we state the facts in the manner most 

favorable to the dependency court’s order.” (In re Janee W. (2006) 140 

Cal.App.4th 1444, 1448, fn. 1.) 
4

maintenance case subject to certain conditions, including that the children be 

enrolled in therapy and regularly attend school. The parents lived separately 

under a shared custody arrangement where the children lived with Father 

Mondays through Thursdays, and with Mother the remaining days of the 

week. 

In September 2020, the children attended a Montessori school for 

distance learning due to the COVID-19 pandemic. Although the school had 

resumed in-person instruction, the children could not attend in person

because they were unvaccinated. Instead, the children completed schoolwork 

packets provided by the school. The parents reported that they were looking 

into options to resume in-person learning including a “504 plan”4 or an

individualized education plan. The parents also attempted to obtain an 

immunization waiver but could not find a doctor willing to give the children a 

vaccination exemption.

In December 2020, Mother reported that the children had been 

attending school virtually but Mother’s apartment had internet connectivity 

issues and she received a letter that the school was “ ‘kick[ing] out’ ” the 

children. The parents decided to appeal the decision and investigate other 

options such as home schooling. With the help of a WRAP5 coordinator, the 

4 Section 504 of the Rehabilitation Act of 1973 and the federal 

implementing regulations require public schools to provide a plan of 

accommodation for children with qualifying disabilities to satisfy their special 

needs. (29 U.S.C. § 794; 34 C.F.R. 104.1 et seq.) 

5 Families Forward Wraparound is an organization designed to provide 

families in crisis with an array of services, including case management and 

mental health services, as well as educational liaison services and crisis 

intervention and planning. (<https://www.mhsinc.org/listing/familiesforward-wraparound-2/> [as of Dec. 16, 2021], archived at 

<https://perma.cc/QM8Q-9F6V>.) 
5

parents drafted a response to the children’s termination but they never 

submitted the letter to the school. 

In January 2021, the Agency filed supplemental petitions under section 

387 requesting to place the children in foster care. The petitions alleged that 

the parents exposed the children’s infant half-sibling to domestic violence and 

Father continued to engage in domestic violence with his ex-girlfriend. At 

the detention hearing on the supplemental petitions, the juvenile court 

detained the children in out of home care. 

At the February 2021 jurisdiction/disposition hearing, the parents set 

the matter for trial. At a child and family team meeting in March 2021, 

Father and the WRAP team were to follow up on home schooling options for 

the children. At the contested jurisdiction/disposition hearing on the 

children’s section 387 petitions held in early April 2021, minors’ counsel 

informed the court that it had been three months since the children were 

enrolled in school because they lacked the required vaccinations. Counsel 

requested leave to set a special hearing to address the children’s unmet 

educational needs. Father’s counsel reported that a couple of schools had the 

children waitlisted and that Father helped the children with their education 

during visits. At the conclusion of the hearing, the juvenile court found the 

petitions true, removed the children from parental custody, ordered 

supervised visitation and reunification services for the parents, and placed 

the children in foster care with separate, supervised visits. The court set a 

special hearing to address, among other things, the children’s schooling. 

At the special hearing in late April 2021, minors’ counsel asked the 

court to use its authority under section 362, subdivision (a) to have the 

children vaccinated so they could attend school. The parents opposed the 

request with Mother’s counsel arguing that the parents still held parental 
6

rights. Father’s counsel noted that schools had the children waitlisted, asked 

that home schooling be ordered in lieu of vaccinations, and requested

unsupervised virtual visitation with the children for home schooling 

purposes. The court stated it would not investigate home schooling at this 

point because it wanted the children to have actual instructors and 

interaction with other children. It asked Father to provide his counsel with 

the names of the schools where the children were waitlisted so that the 

schools could be contacted and the situation explained with the hope that the 

children would be given priority. Father agreed to provide counsel with this 

information. 

At the May 25, 2021 special hearing, minors’ counsel reiterated his 

request that the children be vaccinated and enrolled in school. Mother’s 

counsel represented that the children had been vaccinated for some things 

but suffered anaphylactic reactions and requested a continuance to provide 

the court with medical documentation regarding past vaccinations.6 Father’s 

counsel again requested unsupervised virtual contact with the children to 

home school them. Counsel represented that two schools would accept a 

physician’s medical exemption in lieu of vaccination and two other schools 

had home schooling options that did not require proof of vaccination. Counsel 

also reported that Father met with an individual who taught school that 

provides appointment-based help with schoolwork. 

The juvenile court prefaced its ruling with a statement that it set the 

hearing to allow the parties to present evidence and for it to make a decision.

The court stated that it received no evidence showing that the children had 

been enrolled in school since last fall or had suffered any type of reaction to 

6 The parents previously told a social worker that they did not believe in 

vaccines and represented that both children had an autoimmune disease that 

prevented them from being vaccinated. 
7

past vaccinations, and that the parents had the time to give their counsel 

leads on where they might find such evidence. Accordingly, the juvenile court 

ordered that “[u]pon medical clearance and examination of a medical 

professional along with providing the history to the medical professional and

physical assessment, if there is clearance for vaccination, that is authorized 

and enrollment in school as soon as is available and possible.” Father timely 

appealed. 

II.

DISCUSSION

Parents have a constitutionally protected right to control their 

children’s education. (Troxel v. Granville (2000) 530 U.S. 57, 65; In re R.W.

(2009) 172 Cal.App.4th 1268, 1276 (R.W.).) “In dependency proceedings, 

however, those rights may be limited. The fundamental premise of 

dependency law is to serve the best interests of the dependent child. 

[Citation.] After a child is brought into the dependency system through the 

parents’ neglect or abuse, a parent’s constitutional rights to raise his or her 

children, including the right to make education choices, may be curtailed.’ ” 

(In re Samuel G. (2009) 174 Cal.App.4th 502, 510.) Juvenile courts are 

authorized to issue “all reasonable orders for the care, supervision, custody, 

conduct, maintenance, and support of [a dependent] child,” and to “direct any 

reasonable orders to the parents or guardians of [that] child.” (§ 362, subds. 

(a) & (d).) 

The juvenile court also has the authority to limit the right of a parent 

to make educational decisions for a dependent child if it appears the parent is 

unwilling or unable to do so, so long as any such limitations do not exceed 

those necessary to protect the child. (§§ 366.1, subd. (e), 361, subd. (a)(1); see 

also, Cal. Stds. Jud. Admin., § 5.40(h)(5) [role of juvenile court includes 
8

making appropriate orders limiting educational rights of a parent who is 

unwilling or unable to be an active participant in ensuring a child’s 

educational needs are met and appointing a responsible adult as educational 

representative for such a child].) Any limitation on the right of a parent to 

make educational decisions for a dependent child “shall be specifically 

addressed in the court order.” (§ 361, subd. (a)(1); see also Cal. Rules of 

Court, rules 5.649, 5.650, 5.695(b).) If the court so limits the right of the 

parent, it must appoint another responsible adult to make educational 

decisions for the child and must appoint a relative, or other adult known to 

the child, if one is willing to serve as the educational representative before 

appointing a surrogate that is not known to the child. (§ 361, subds. (a)(1) & 

(a)(1)(4)(A); see Cal. Rules of Court, rule 5.650(a).) “If the court cannot 

identify a responsible adult to make educational decisions for the child, . . . 

and there is no foster parent to exercise the authority granted by Section 

56055 of the Education Code, the court may, with the input of any interested 

person, make educational decisions for the child.” (§ 361, subd. (a)(1)(4)(C).) 

In reviewing the juvenile court’s decision to suspend a parent’s 

education decisionmaking rights, we apply an abuse of discretion standard, 

keeping in mind the focus of dependency proceedings is on the child rather 

than the parent. (R.W., supra, 172 Cal.App.4th at p. 1277.) “The [juvenile]

court’s exercise of its discretion must be ‘informed and considered’ [citations], 

and the [juvenile] court may not ‘ignore or contravene the purposes of the 

law’ [citation].” (Plumas County Dept. of Child Support Services v. Rodriguez

(2008) 161 Cal.App.4th 1021, 1026.) 

At the April 2021 special hearing, minors’ counsel requested that the 

children be vaccinated so they could attend school. The court continued the 

matter after Father agreed to provide his counsel with the names of the 
9

schools where the children were waitlisted so that the schools could be 

contacted. At the subsequent hearing, minors’ counsel reiterated his request 

that the children be vaccinated and enrolled in school. Father’s counsel 

represented that all options for educating the children without vaccinations 

had not been exhausted. 

Based on the lack of evidence before it, the court ordered that upon 

medical clearance the children be vaccinated and enrolled in school. This 

order amounted to the suspension of the parents’ education decisionmaking 

rights, and the juvenile court assuming the duty of the children’s educational 

decision maker. The juvenile court, however, abused its discretion by 

assuming this responsibility without following the requirements set forth by 

the Legislature in section 361, including first determining whether another 

responsible adult was available and willing to serve as the children’s 

educational representative and specifically setting forth in its order the 

extent of the limitation of the parents’ education decisionmaking rights.7 

(§ 361, subds. (a)(1) & (a)(1)(4)(A).) 

We understand the pressing need to address the children’s unmet 

educational needs and sympathize with the court’s frustration in not 

receiving sufficient information from the parents to determine what viable 

options existed to educate these children should they not qualify for a 

vaccination medical exemption. (See Health & Saf. Code, §§ 120370, 120372, 

120375 [addressing requirements for a medical exemption].) Nonetheless, we 

disagree with the Agency’s conclusion that the lack of vaccinations rendered 

7 The Agency’s reliance on Education Code section 48293 for the 

proposition that a juvenile court has the authority to order a child 

immediately enrolled in school is misplaced. A juvenile court has this 

authority only after a complaint is filed and a parent is convicted of a

violation of subdivision (a) of Education Code section 48293. (Ed. Code, 

§§ 48291, 48293, subds. (a) & (c).) 
10

the children ineligible to participate in a legally mandated education program 

and that no alternatives existed. Based on the minimal information 

presented by Father’s counsel at the hearing it appeared that two schools

would accept a physician’s medical exemption in lieu of vaccination, that 

home schooling options existed that did not require proof of vaccination, and 

an individual existed who might meet the requirements for the “private 

tutor” exemption from the compulsory education law. (Ed. Code, § 48224.)

As the juvenile court noted, it set the special hearing for the specific 

purpose of receiving evidence regarding the children’s education options. The 

parents, however, consistently proved their inability or unwillingness to 

adequately investigate available options. In December 2020, the Montessori 

school that the children attended virtually terminated them from the 

program. Although the parents received help in drafting a response to the 

termination they never submitted the letter to the school. At a child and 

family team meeting in early March 2021, Father and the WRAP team were 

to follow up on home schooling options for the children. Almost three months 

later, at the May 25, 2021 hearing, the children’s education requirements 

remained unsatisfied.8 In this situation, under the explicit authority of 

section 361, the juvenile court could have limited the parents’ educational 

rights, appointed an individual to act as the children’s educational 

8 Although Father suggested home schooling the children via video, the 

Agency noted that Father produced no evidence that he met any of the 

requirements to home school the children. Before parents in California may 

legally home school their children, an affidavit must be filed containing 

certain information (Ed. Code, § 33190), and certain requirements must be 

met including a verification “by the attendance supervisor of the district, or 

other person designated by the board of education” that the parents are 

entitled to a home schooling exemption (Ed. Code, § 48222). The record is 

devoid of any evidence that Father had submitted the required affidavit to 

seek a home schooling exemption. 
11

representative, allowed that person to explore educational options for the 

children and decide how the children’s education requirements would be 

satisfied. (§ 361.) What the court could not do was to act as the children’s 

educational decision maker without having first complied with section 361 

and the applicable rules of court. In so doing, the juvenile court abused its 

discretion. Accordingly, we reverse the juvenile court’s orders without 

prejudice. On remand, the juvenile court will be entitled to take into 

consideration all that has transpired since the May 25, 2021 special hearing. 

We express no opinion on the merits of the orders.

Given the importance of education for the children’s future, we implore 

the juvenile court to set this matter for hearing on an expedited basis. In the 

interests of justice and to prevent further delays, the parties may stipulate to 

immediate finality and issuance of the remittitur. (See Cal. Rules of Court, 

rule 8.272(c)(1); Conservatorship of the Person and Estate of Maria B. (2013) 

218 Cal.App.4th 514, 535.) 
12

DISPOSITION

The juvenile court’s orders of May 25, 2021, are reversed without 

prejudice. The matter is remanded for further proceedings consistent with the 

views expressed in this opinion. 

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O’ROURKE, J.