1

Filed 8/8/16 In re Scott B. CA1/5

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re Scott B., a Person Coming Under the 

Juvenile Court Law.

ALAMEDA COUNTY SOCIAL 

SERVICES AGENCY,

Plaintiff and Respondent,

v.

Barry B.,

Defendant and Appellant.

 A145912

 (Alameda County

 Super. Ct. No. SJ15024375)

Barry B. (Father) appeals from jurisdiction and disposition orders that declared his

son, Scott, a juvenile dependent and removed him from Father’s as well as his mother’s 

care. The court sustained a jurisdictional allegation that Father had a history of substance 

abuse that placed Scott at a substantial risk of physical harm. Father complains the

finding is not supported by substantial evidence. We agree; however, the court continues 

to have jurisdiction over Scott based on the other sustained findings. We uphold the 

order removing Scott from Father’s care because substantial evidence supports the 

court’s findings that the Agency made reasonable efforts to avoid removal, that no 

reasonable alternatives were available to protect Scott, and that Scott faced a substantial 

risk of harm if left in Father’s care.
2

I. BACKGROUND

Scott, who was seven years old at the time of the dependency petition, lived on 

property that included a home where Scott’s mother (Mother) and her boyfriend

(Brandon) lived with their two children (Damon & Raymond), a one-room shed with no 

running water or plumbing where Father lived, and an uninhabited home with bathroom 

facilities used by Father. Father’s shed was in clear sight of and right next door to 

Mother’s home.

A. Intervention and Detention

On February 25, 2015, Raymond, an infant who had been born prematurely, was 

discovered laying face-down and unresponsive. Mother and Brandon called for an 

ambulance, but Raymond had already died.1 Scott and Damon were in Mother’s home

when police and paramedics arrived. The house was an “ ‘utter mess’ ” and extremely 

cold; the children were dirty, smelly and surrounded by dirty clothes and blankets; and

Damon was discovered asleep under a pile of blankets.

Several witnesses described Mother and Brandon as under the influence of drugs: 

Mother had difficulty answering simple questions, such as requests for her name and date 

of birth, she mumbled incoherently, and she appeared agitated; Brandon acted erratically, 

spoke in repetitive sentences, and was unable to sit still. They were both disheveled and 

foul-smelling. Police found suspected narcotics and drug paraphernalia in plain sight and 

within reach of the children. Four baggies of suspected methamphetamine, two butane 

lighters, 10 suspected methamphetamine pipes (some broken or partial), and prescription 

hydrocodone were collected from the room where Mother, Brandon, Damon and 

Raymond slept. Mother admitted a 20-year substance abuse history and drug-related 

criminal history. Both Mother and Brandon admitted having used methamphetamine the 

previous day. Brandon also admitted a long history of heavy drinking and said he had 

 

1 Raymond’s body had no visible injuries, and an autopsy disclosed no evidence of 

trauma. Medical personnel described the incident as a possible case of Sudden Infant 

Death Syndrome. An extensive police investigation had not resulted in charges against 

Mother or Brandon as of July 31, when the orders on review were made. Father was 

never a subject of the police investigation.
3

sipped beer the previous day. Scott told a social worker that Brandon “ ‘likes beer a 

lot.’ ” Scott also told police he had never seen Mother and Brandon smoke from a pipe,

Mother was a good parent, and neither Mother nor Brandon spanked or hit him. Police 

reported that Mother’s home had “a lot of police history,” and both Mother and Brandon 

initially gave a false name for Brandon.

Father told a social worker on February 25, 2015, that he kept Scott on weekends 

and sometimes overnight. According to Mother, Father picked up Scott at about 

5:00 p.m. the previous day, and Scott returned to spend the night at Mother’s house. 

Father admitted a substance abuse history but said he had been clean for seven or eight 

years. However, he looked disheveled and unkempt, and he smelled bad. The Alameda 

County Social Services Agency (Agency) learned that Father had a 17-page criminal 

history with extensive drug and alcohol charges including driving under the influence and 

a conviction for battery with serious bodily injury. His most recent charges were in 2005 

and 2006.

Approximately nine months prior, the Agency received a referral expressing 

concern that Damon (then an infant) may have been sexually abused by Father’s brother 

(Uncle), a registered sex offender who reportedly lived with Father off and on.2 When a 

social worker investigated, Mother told her that Scott lived with Father and the social 

worker located Scott with Father. When asked where Uncle lived, Scott pointed to the 

shed, but Father said that Uncle lived in a trailer elsewhere on the property. Father 

acknowledged Uncle was a sex offender who should not be around Scott. Father said he 

had not invited or allowed Uncle to stay there, but Uncle had showed up and refused to 

 

2

The referral also described Mother’s home as a known drug house in the 

neighborhood, and it was alleged that needles had been found in front of the home and 

marijuana was growing by a creek behind the house. However, Damon, appeared to be 

well cared for. No action was taken regarding the condition of Mother’s home.
4

leave. Scott disclosed no sexual abuse by Uncle. Father agreed not to let Uncle back on 

the property, and the Agency apparently took no further action.3

The Agency placed Scott and Damon in protective custody pending a detention 

hearing, and filed a juvenile dependency petition on their behalf pursuant to Welfare and 

Institutions Code section 300, subdivision (b) (failure to protect).4 Soon thereafter, the 

court granted Father presumed father status and ordered Scott detained. Scott and Damon 

were later placed with a maternal aunt and all three adults received twice weekly 

visitation.

B. Jurisdiction and Disposition

An addendum to the detention report noted that Father had not returned a social 

worker’s call prior to the March 3, 2015 detention hearing. The jurisdiction and 

disposition report filed on March 20, 2015, stated that the social worker “saw [Brandon], 

[Mother], [and Father] . . . in face to face visits” on March 3, presumably after the

detention hearing. The March 20 report summarized statements by Mother and Brandon 

and indicated Father had not provided a statement. According to a July 2015 addendum 

to the jurisdiction and disposition report, a social worker met with Father, Mother and 

Brandon on July 10 to discuss the parents’ concerns about the children’s placement. A 

“Team Decision Meeting” on similar issues had taken place on May 28, but it is not clear 

if Father was in attendance.

The jurisdiction and disposition report and addenda document that, although 

Father “did not initially test as requested,” he repeatedly and consistently tested negative 

for drugs and alcohol from March 6 through July 31, 2015. In contrast, Mother refused 

to test on February 26, tested positive for methamphetamine on February 27, and 

thereafter tested negative. Brandon missed several tests and tested positive for alcohol or 

 

3

In early March 2015, Brandon told the Agency that Father allowed Uncle to stay 

overnight in Father’s shed, but he last recalled seeing Uncle in the summer of 2014. 

Uncle apparently was arrested for drug possession in May 2015. Brandon agreed not to 

let Uncle back on the property.

4 Undesignated statutory references are to the Welfare and Institutions Code.
5

methamphetamine or both on March 4 and 13 and again in May. At the July 10 meeting

with Father, Mother and Brandon, the social worker noticed a strong odor of alcohol but 

apparently could not determine which parent had been drinking and all denied doing so.

An Agency social worker conducted a home visit on July 17, 2015. Mother’s 

home had been straightened up but “still [had] a strong foul odor” and lacked sufficient 

beds for the children. The social worker reported that she “attempted to see [Father’s] 

home during this visit, but [Father] was at work,” and “[s]ince this home visit, [she] 

attempted to see [Father’s] home to no avail.”

The Agency recommended removal with family reunification services for all three

adults. Mother and Father requested a contested jurisdictional hearing. After Brandon 

completed part of his testimony, all parties agreed to submit on the state of the evidence. 

The juvenile court sustained the petition and followed the Agency’s disposition 

recommendation. Regarding Father, the juvenile court said: “[H]e has a history of drug 

use. He lives in close proximity to [Mother and Brandon]. I believe it is essentially the 

same property that has two homes on it. But in very close proximity. [¶] And with the 

fact that there has been and possibly has been very obvious to many people for some time 

that both [Mother and Brandon] have serious drug problems, the fact that there is drug 

paraphernalia that has been out in the open in their home, it’s hard to believe that [Father] 

would not be aware of these problems. Yet he has allowed his son to remain in that 

environment. [¶] He’s also allowed his brother, who is a registered sex offender, to have 

contact with his son. For some reason, at this point, he has not allowed the child welfare 

worker to have access to his home to determine whether or not his home would be safe 

for Scott. The Court believes that it would be detrimental to place Scott in his custody at 

this time and it would also present a substantial risk of harm to Scott.” The juvenile court 

sustained the allegation that Father had a history of substance abuse; declared Scott a 

dependent of the court; removed Scott from Father’s care based on clear and convincing 

evidence that he faced a substantial danger to his physical health, safety or welfare if left 

in Father’s care; found no reasonable alternative means were available to protect Scott; 
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and found reasonable efforts were made to prevent removal. The court granted six 

months of reunification services to each parent.

Father appealed from the “07/31/2015 Order granting [Father] but 6 month’s 

Reunification Services on a finding of Dependency, based on ‘sibling group’ 

notwithstanding the under 3 sibling is not [Father’s] child and [Scott] . . . did not reside 

exclusively with his mother and sibling.”

II. DISCUSSION

A. Appellate Jurisdiction

The Agency argues Father’s notice of appeal does not encompass the issues he 

argues and therefore the appeal should be dismissed for lack of jurisdiction. Father 

argues the notice adequately communicated his intent to challenge the jurisdictional and 

dispositional orders and, in any event, liberal construction permits review on the merits. 

We agree with Father.

A notice of appeal “must be liberally construed, and is sufficient if it identifies the 

particular judgment or order being appealed.” (Cal. Rules of Court, rules 8.405(a)(3), 

8.416(a)(2).) This rule does not require the appellant to list the specific rulings in the 

order that will be challenged on appeal or preview his anticipated appellate arguments. 

On the other hand, an appeal that is expressly taken “ ‘from a portion of a judgment 

brings up for review only that portion designated in the notice of appeal.’ ” (Unilogic, 

Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625.) That is, where the notice of 

appeal conveys a clear intention to appeal from only part of the judgment, the appellate 

court lacks jurisdiction to review other parts of the judgment. (Id. at pp. 624–625 [notice 

of appeal specified challenge only to “Judgment on the 10th Cause of Action;” no 

appellate jurisdiction to review judgment on eighth cause of action].)

The first page of Father’s notice of appeal states that he is appealing from the 

“07/31/2015 Order granting [Father] but 6 month’s Reunification Services on a finding of 

Dependency, based on ‘sibling group’ notwithstanding the under 3 sibling is not 

[Father’s] child and [Scott] . . . did not reside exclusively with his mother and sibling.” 

On page two of the notice form regarding “[t]he order appealed from,” Father checked 
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boxes indicating “Section 360 (declaration of dependency),” “[r]emoval of custody from 

parent or guardian,” and “[o]ther orders”; a box specifying “review of section 300 

jurisdiction findings,” however, was not checked. Father identified the hearing dates for 

these orders as June 2, July 30, and July 31, 2015, which are the dates of the twicecontinued jurisdiction and disposition hearing that formed the basis of the court’s July 31 

rulings.

Father’s notice of appeal is scarcely a model of clarity, but taken as a whole and

liberally construed it encompasses all issues he raises on appeal. Page one of the form 

notice identifies the “07/31/2015 Order,” the date on which the court made oral rulings 

on both jurisdiction and disposition issues.5 The identification of one specific ruling 

within the disposition order—“granting [Father] but 6 month’s Reunification Services . . . 

notwithstanding the under 3 sibling is not [Father’s] child”—is followed by a statement

that Scott “did not reside exclusively with his mother and his sibling.” Because the issue 

of shared custody is not clearly related to the now-abandoned issue of whether Father was 

entitled to six or 12 months of reunification services based on the age of his child (see 

§ 361.5, subd. (a)(1)(A)–(C)), it could be understood as a reference to Father’s general 

objections to both jurisdiction and removal.

6 Additionally, page two of the form notice 

indicated that Father was challenging the “declaration of dependency” (i.e., the 

jurisdictional finding), removal of Scott from his care, and “[o]ther orders.” Father’s 

page-two identification of all three jurisdiction and disposition hearings also supports an 

inference that Father intended to challenge the entirety of the court’s July 31 rulings. 

Considered as a whole, the notice of appeal encompasses all issues Father raises here, and 

we therefore reject the Agency’s argument that the appeal must be dismissed for lack of 

jurisdiction.

 

5

The record on appeal includes the reporter’s transcript of those oral rulings and a 

minute order, but no separate written order.

6

Father argued at the July 30, 2015 hearing that Scott was “not at risk in his care 

and has never been at risk in his care” and that Father “has not lived in the same 

residence as the other two parents” (i.e., that there was no basis for jurisdiction or 

removal).
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B. Dependency Jurisdiction

Father argues the juvenile court’s order sustaining the jurisdictional allegation that 

his history of substance abuse created a current risk of harm to Scott is not supported by 

substantial evidence. We agree.

7

Section 300, subdivision (b)(1) provides a basis for juvenile court jurisdiction if 

“[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, or the willful or negligent failure of 

the child’s parent or guardian to adequately supervise or protect the child from the 

conduct of the custodian with whom the child has been left, or by the willful or negligent 

failure of the parent or guardian to provide the child with adequate food, clothing, shelter, 

or medical 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.” The Agency has the burden of proving by a preponderance of the 

evidence “(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” at the time of the jurisdiction hearing. (In re Rocco M.

 

7 Because dependency jurisdiction may be based on the conduct of one parent 

alone, we could decline to address the evidentiary support for the finding related to 

Father based on his concession that sufficient evidence supported the findings related to 

Mother. (In re I.A. (2011) 201 Cal.App.4th 1484, 1491 [“[o]nce the child is found to be 

endangered in the manner described by one of the subdivisions of section 300[,] . . . the 

child comes within the court’s jurisdiction, even if the child was not in the physical 

custody of one or both parents at the time the jurisdictional events occurred”]; see id. at 

p. 1492.) However, we exercise our discretion to reach the merits of Father’s challenge 

to this jurisdictional finding because of the implications for dispositional orders designed 

to address substance abuse rather than other possible sources of Father’s failure to protect 

Scott. (In re Drake M. (2012) 211 Cal.App.4th 754, 762–763 [review of merits proper 

where jurisdictional finding serves as basis for challenged dispositional orders, could be 

prejudicial to appellant or potentially impact the dependency proceedings, or “ ‘could 

have other consequences for [the appellant], beyond jurisdiction’ ”]; In re J.C. (2014) 

233 Cal.App.4th 1, 4.)
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(1991) 1 Cal.App.4th 814, 820; In re I.J. (2013) 56 Cal.4th 766, 773.) We review 

jurisdictional findings for substantial evidence. (I.J., at p. 773.)

Here the petition generally alleged a substantial risk of harm to Scott as a result of 

failure to adequately supervise or protect him. The petition also alleged a substantial risk 

of harm by “the inability of the parent . . . to provide regular care for the child due to the 

parent’s . . . substance abuse.” In support of these general allegations, the petition alleged 

that Father “has a history of substance abuse which affects his ability to provide care and 

support for [Scott].” The court sustained the allegations on July 31, 2015. As of that 

date, evidence of Father’s alleged substance abuse problem consisted primarily of his 

February 25, 2015 admission of substance abuse that ceased seven or eight years prior

(i.e., around 2007 or 2008) and his criminal history, which was consistent with his claim 

of sobriety with the latest reported offense being from 2006. While Father did not 

initially submit to a drug test as requested, he repeatedly and consistently tested negative 

for drugs and alcohol from March 6 through July 31, 2015, and he continued to insist he 

had no current substance abuse problem. The Agency’s July 2015 addendum to the 

jurisdiction and disposition report inaccurately reported that, according to pages 12 and 

13 of the police report of the February 25, 2015 incident, Father was “observed to be 

acting erratically, appeared disheveled and was unable to sit still. Deput[ies] also 

indicated that [Father] appeared under the influence of a controlled substance.” In fact, 

the cited pages of the police report describe Brandon, not Father. On the actual 

evidentiary record, there was no substantial evidence that Father had a substance abuse 

problem that placed Scott at a current substantial risk of physical injury. (See In re 

Destiny S. (2012) 210 Cal.App.4th 999, 1003 [substance abuse alone is insufficient to 

support jurisdiction].)

Although we shall direct the juvenile court to set aside the jurisdiction finding 

against Father, the court will not lose jurisdiction over Scott. “[I]t is necessary only for 

the court to find that one parent’s conduct has created circumstances triggering section 

300 for the court to assert jurisdiction over the child. [Citations.] Once the child is found 

to be endangered in the manner described by one of the subdivisions of section 300[,] . . . 
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the child comes within the court’s jurisdiction, even if the child was not in the physical 

custody of one or both parents at the time the jurisdictional events occurred.” (In re I.A., 

supra, 201 Cal.App.4th at p. 1491.) Father concedes this point.

We observe that the erroneous jurisdictional finding may have adversely affected 

the progress of this dependency case. As Father notes, his case plan required him to 

engage only in substance abuse services. (See In re Basilio T. (1992) 4 Cal.App.4th 155, 

172–173 [error to require substance abuse treatment absent substantial evidence of a 

substance abuse problem], superseded by statute on other grounds as stated in In re 

Lucero L. (2000) 22 Cal.4th 1227, 1239–1242.) Although Father’s case plan objectives 

also included attentive parenting and obtaining a suitable residence, there was no referral 

to or requirement to participate in housing assistance or parenting education.8 

Nevertheless, while the apparent mismatch between Father’s case plan and the problems 

that led to the dependency case may affect the juvenile court’s future reasonable efforts 

and services findings, they do not require or permit us to reverse the jurisdictional order.

C. Removal

Father argues the juvenile court erred in removing Scott from his care, and in 

making the predicate findings that the Agency made reasonable efforts to prevent 

removal and no reasonable alternatives to removal were available.

9

 While we find this a 

closer issue, we disagree.

 

8

The only case plan in the appellate record is attached to the March 2015 

jurisdiction and disposition report. At the July 30 hearing, Father’s counsel told the court 

that the social worker had told Father he needed to complete “a parenting class, 

outpatient drug treatment, testing, and showing the ability to maintain the child in 

suitable housing.” However, this representation is not documented in a written and courtapproved case plan and the stated plan is not necessarily directed toward the source of 

Father’s problems.

9

“We note that [Father] has likely forfeited this argument by failing to raise it in 

the juvenile court.” (In re Miguel C. (2011) 198 Cal.App.4th 965, 970 [noting general 

rule that a party may not assert theories on appeal which were not raised in the trial 

court].) However, the Agency does not assert forfeiture, and we exercise our discretion 

to consider this claim, concluding that it fails on the merits. We also note that to the 

extent Father challenges the detention order, the validity of that ruling is moot in light of 
11

We review the dispositional order under the same substantial evidence standard of 

review as the jurisdictional findings. (In re Hailey T. (2012) 212 Cal.App.4th 139, 146.) 

“ ‘ “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.” ’ ” (In re I.J., supra, 56 Cal.4th at p. 773.) 

The burden remains on the appellant to show “there is no evidence of a sufficiently 

substantial nature to support the court’s findings or orders.” (Hailey T., at p. 147.) The 

jurisdictional findings are prima facie evidence that the child cannot safely remain in the 

home. (§ 361, subd. (c)(1).) “Although the court must consider alternatives to removal, 

it has broad discretion in making a dispositional order.” (In re Cole C. (2009) 

174 Cal.App.4th 900, 918.) “The parent need not be dangerous and the child need not 

have been actually harmed for removal to be appropriate. The focus of the statute is on 

averting harm to the child.” (Id., at p. 917.) In assessing the need for removal, “the court 

may consider the parent’s past conduct as well as present circumstances.” (Ibid.)

At disposition, the court must determine “whether reasonable efforts were made to 

prevent or to eliminate the need for removal of the minor from his or her home.” (§ 361, 

subd. (d), italics added.) It must also find by clear and convincing evidence not only that 

substantial risk of harm requires removal, but also that “there are no reasonable means by 

which the minor’s physical health can be protected without removing the minor from the 

minor’s parent’s or guardian’s physical custody.” (Id., § 361, subd. (c)(1), italics 

added.)10 As the case law demonstrates, the reasonable efforts and reasonable 

alternatives findings are linked. (See, e.g., In re Basilio T., supra, 4 Cal.App.4th at 

p. 171 [discussing reasonable efforts and reasonable alternatives interchangeably]; In re 

Heather A. (1996) 52 Cal.App.4th 183, 196 [same].) Reasonable efforts to prevent 

 

the court’s subsequent removal order. (See In re Raymond G. (1991) 230 Cal.App.3d 

964, 967; In re David H. (2008) 165 Cal.App.4th 1626, 1633–1634.)

10 “[W]e employ the substantial evidence test on review. . . bearing in mind the 

heightened burden of proof.” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
12

removal often provide the information necessary to determine whether reasonable 

alternatives to removal are available.

One reasonable effort that must be considered is “[a]llowing a nonoffending 

parent or guardian to retain physical custody as long as that parent or guardian presents a 

plan acceptable to the court demonstrating that he or she will be able to protect the child 

from future harm.” (§ 361, subd. (c)(1)(B).) Father implicitly argues he should have 

been permitted to retain custody of Scott under this provision. We affirm the removal 

order, however, because substantial evidence demonstrated that Father was either an 

offending parent11 or a nonoffending parent who failed to present an acceptable safety 

plan. 

We agree with Father that deficiencies in the Agency reports undermined the 

reasonable efforts and no reasonable alternative showings. Ordinarily, we would expect a 

jurisdiction and disposition report, especially one amended a full five months after 

removal, to include a summary of interviews with the parent facing removal; an analysis 

of the parent’s problems, social history, and family network; a description of the parent’s 

visits with the child; and an assessment of the parent’s relationship with the child. Here, 

the focus of the Agency’s investigation was clearly on Mother and Brandon, and much of 

this information is missing as to Father. Although the social worker “saw” Father in a 

“face to face visit[]” on March 3, 2015, the March 20 jurisdiction and disposition report

indicated Father had not provided a statement and provided no new relevant information 

about Father. Neither the original nor the July 2015 addendum report describes Father’s 

 

11 Nothing in the statute limits “offending” parents to those with sustained 

jurisdictional findings against them. Because jurisdiction is taken over the child rather 

than the parents, an agency need not allege and a court need not sustain allegations 

against all offending custodial parents. (In re I.A., supra, 201 Cal.App.4th at p. 1491.) 

Moreover, section 361 does not require the reasons for removal to be the same as the 

grounds for continuing jurisdiction over the child. (See In re Joseph B. (1996) 

42 Cal.App.4th 890, 897–900 [statutes governing status review hearings do not limit 

grounds for refusing to return a child to a parent’s care to those grounds that supported 

jurisdiction]; id. at p. 899 [statutes’ focus is “on the child’s well-being at the time of the 

review hearing rather than on the initial basis for juvenile court intervention”].)
13

visits with Scott or the nature of their relationship, and the Agency reports no services or 

referrals for Father other than drug testing, even though Father had consistently tested 

negative since early March. The social worker reported that she was unable to inspect 

Father’s home, but it was not clear that Father was responsible for the delay—although 

the juvenile court placed the blame for the lack of a home inspection on Father (“For 

some reason, at this point, he has not allowed the child welfare worker to have access to 

his home to determine whether or not his home would be safe for Scott”). The only 

evidence of evasion was Father’s failure to return a social worker’s call before the 

March 3 detention hearing and his failure to test when initially requested. Father spoke to 

the emergency social worker on February 25, 2015 (as well as in May 2014), apparently 

met with social workers on March 3 and July 10 (and possibly May 28), personally 

appeared at every hearing, and submitted to testing from March 6 onward.

Still, the evidence before the court indicated not only that Father had failed to 

protect Scott from risk of harm in Mother’s home and in his own, but also that Father 

remained unable to provide a safe, suitable and habitable home for Scott. A significant 

undisputed fact is that Father, Mother and Brandon all lived on the same property. 

Father’s shed was in clear sight of and right next door to Mother’s home, and Father 

reportedly cared for Scott on weekends and some overnights, so he inferably interacted 

with Mother, Brandon and the children. Father picked up Scott from Mother’s home on 

the day before Raymond’s death, the same day Mother and Brandon had admitted using 

methamphetamine and the house inferably was an “ ‘utter mess,’ ” strewn with dirty 

clothes and blankets and reeking of a foul odor. The court, in its findings, made only a 

single reference to Father’s “history” of drug use, and made no reference to current 

substance abuse. The court instead focused on the “very close proximity” of Father’s 

residence to Mother’s, the “serious drug problems” of Mother and Brandon, and the 

existence of drug paraphernalia “out in the open in their home.”

On this record, the court reasonably could have found that Father was aware of 

adverse conditions in Mother’s home on that day and yet failed to intervene to protect 

Scott. Moreover, in light of Mother’s admitted 20-year history of substance abuse (which 
14

included years when she was married to Father), Brandon’s admitted long history of 

heavy drinking, and Scott’s independent reports of Brandon’s love of beer, the court 

could have reasonably inferred that Father had been aware of ongoing substance abuse in 

Mother’s home for some time. The court expressed disbelief that Father “would not be 

aware of these problems. Yet he has allowed his son to remain in that environment.”

Additional evidence suggested that Father’s failure to protect Scott was likely to 

continue into the future. In May 2014, Father had admitted that Uncle’s presence on the 

residential property posed a risk to Scott and that he had not taken any action to protect 

Scott from Uncle (e.g., taking Scott away from the property when Uncle refused to leave 

or calling the police or child protective services agency to intervene), which supported an 

inference that Father was not adequately protective of Scott in general. Father’s 

disheveled and foul-smelling appearance on February 25, 2015, also indicated a lack of 

self-care and supported an inference he would also be unwilling or unable to care 

adequately for others. Moreover, since at least March 2015 Father was on notice that he 

needed to relocate to an appropriate residence suitable for a minor, with running water, 

electricity, a toilet, a kitchen, and beds, but at the time of the jurisdiction and disposition 

hearing he continued to reside in what was consistently described as a “shed” with none 

of these things. Father presented no evidence he had made any efforts to relocate or 

sought assistance from the Agency in doing so. The Agency was not required to 

rehabilitate Father’s housing, nor to provide him with relocation services he had not 

requested.

The juvenile court could reasonably conclude that alternatives to removal had 

been considered, and that Scott could not safely be returned to his Father’s care at that 

time, and under those circumstances. “We recognize that removing a child from the 

custody of his or her parent is a ‘drastic measure.’ ” (In re Miguel C., supra, 

198 Cal.App.4th at p. 973.) “Although a parent’s interest in the care, custody and 

companionship of a child is a liberty interest that may not be interfered with in the 

absence of a compelling state interest, the welfare of a child is a compelling state interest 
15

that a state has not only a right, but a duty, to protect.” (In re Marilyn H. (1993) 

5 Cal.4th 295, 307.)

III. DISPOSITION

The jurisdiction finding as to Father having a history of substance abuse affecting 

his ability to provide care and support for Scott is vacated. The disposition orders are 

affirmed.

_________________________

BRUINIERS, J.

WE CONCUR:

_________________________

SIMONS, Acting P. J.

_________________________

NEEDHAM, J.