1

Filed 6/8/23 (unmodified opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re S.F., a Person Coming Under 

the Juvenile Court Law.

SAN FRANCISCO COUNTY 

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

W.F.,

Defendant and Appellant.

 A166150

 (San Francisco City 

& County

 Super. Ct. 

No. JD22-3083)

ORDER MODIFYING 

OPINION AND 

DENYING 

REHEARING 

[CHANGE IN 

JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on May 17, 2023, be modified 

as follows: 

On page 42, the Disposition should be modified to read as follows: “The 

jurisdictional findings and orders as to father, as well as the related 

dispositional orders regarding removal and substance abuse testing and 

treatment, are reversed. The matter is remanded for further proceedings 

consistent with this opinion to the juvenile court with directions to issue new 
2

or modified orders of jurisdiction and disposition consistent with the findings 

in the opinion.”

There is a change in the judgment.

The petition for rehearing is denied.

Dated: ________________________________

Humes, P. J.
1

Filed 5/17/23 (unmodified opinion)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re S.F., a Person Coming Under 

the Juvenile Court Law.

SAN FRANCISCO COUNTY 

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

W.F.,

Defendant and Appellant.

 A166150

 (San Francisco City & 

County Super. Ct. 

No. JD22-3083)

W.F. (father)1 appeals from the juvenile court’s jurisdictional findings 

and dispositional orders adjudicating his son, S.F. (minor), a dependent of the 

court under Welfare and Institutions Code section 300, subdivision (b)(1)2

and removing minor from father’s custody. Father asserts (1) the 

jurisdictional findings are not supported by substantial evidence, (2) the 

dispositional order removing minor from father’s custody is not supported by 

substantial evidence of a clear and convincing nature and the orders 

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this 

opinion is certified for publication with the exception of part II. C.

1 Mother is not a party to this appeal.

2 All further statutory references are to the Welfare and Institutions

Code unless otherwise indicated.
2 

requiring him to engage in substance abuse testing and treatment are not 

supported by substantial evidence, and (3) the court erred in placing minor in 

foster care without first complying with the provisions of the Indian Child 

Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). 

 We agree that neither the jurisdictional findings nor the challenged 

dispositional orders are supported by substantial evidence, but conclude the 

juvenile court complied with ICWA. 

I. BACKGROUND

 The San Francisco County Human Services Agency (Agency) responded 

to a 10-day “Emergency Response Investigation Referral” regarding mother 

and minor, then 11 months old, after mother was released from a 

section 5150 hold. The Agency and mother agreed to a safety plan whereby 

minor would remain in maternal grandmother’s care and mother would work 

with a non-court family maintenance program through the Agency. Two 

weeks later, mother violated the safety plan when she “brandished a knife at 

the grandmother, and a physical fight occurred between [mother] and 

[grandmother] in the presence of [minor],” which resulted in mother taking 

minor “on public transit, intoxicated.” At the time, father was residing in 

New York with his sister. He was, however, providing monetary assistance 

to mother and minor. 

Detention

 The Agency detained minor and filed a section 300 petition alleging 

failure to protect under section 300, subdivision (b)(1)3 and supported by five 

factual allegations (counts B1 to B5). Three of the counts were directed at 

3 Section 300, subdivision (b)(1) authorizes juvenile court jurisdiction 

where “[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” any of four 

specified circumstances. (§ 300, subd. (b)(1)(A)–(D).) 
3

mother (B1 to B3), the remaining two (B4 and B5), at father. Count B4 

alleged “father has anger management issues that require assessment and 

treatment in that he had been sending the mother threatening text messages. 

[Father] has also sent the maternal grandmother and the mother messages 

indicating that he would send someone to hurt them.” (Capitalization 

omitted.) Count B5 alleged father “reported that he used to abuse crack 

cocaine and alcohol but that he is about 2 years sober.” (Capitalization 

omitted.) 

In its detention report, the Agency stated it had notified father of 

minor’s detention. Father stated he had been at the hospital for minor’s birth 

but had not signed the birth certificate due to a disagreement with mother. 

However, he had taken a DNA test, which confirmed he was minor’s father. 

Father identified his two sisters (minor’s paternal aunts) as potential 

placements. 

The Agency reported father as saying the following: He had abused 

“crack, cocaine and alcohol” in the past but had “been clean about 2 years.” 

He had previous arrests, one being domestic violence related and the other 

“with [mother] when they were still together.” He had been with mother 

“during her pregnancy and she was clean for 9 months.” He “moved back to 

New York where he is from to get away from the drug environment in [the]

San Francisco Bay Area.” He desired “to take full custody of [minor] and 

would be willing to move to California to do so or take him to New York if he 

could.” He maintained “mother’s new boyfriend is the reason why she 

relapsed.” 

The Agency reported that when asked about father, mother and 

grandmother “said that they are receiving threats from him in text messages 

stating that he will send over a woman . . . to hurt them.” Mother was 
4

“interested in filing a restraining order” against father and “was in the 

process of applying for one.” Mother stated she and father had “ ‘tussled’ 

together when they were dating, but that she wouldn’t consider it to be 

domestic violence.” Mother’s boyfriend stated mother had been “20 days 

sober” before she “receiv[ed] threatening text messages from [father], and 

that is when she started using because she was stressed out.” 

At the detention hearing, the court found a prima facie case had been 

made that minor came within section 300 and removal was necessary to 

protect minor’s physical and emotional health.4 The court ordered minor 

detained, placed in foster care, and set the matter for a jurisdiction and 

disposition hearing. 

Prior to the hearing, father sought to elevate his status to that of 

presumed father. In his motion, father stated he was “physically present [for]

[minor] . . . until he moved to New York on June 29, 2021,” when minor was 

three months old. During that time, he had regularly “bathed [minor], 

burped him, fed him, changed his diapers, and took care of him alone.” He 

moved to New York “after a domestic violence incident with [mother],” 

because he “thought taking some space would be good for his relationship 

with [mother] and he needed the support of his family in New York.” Even 

though he had moved, he still spoke with minor “by way of FaceTime on a 

4 At the detention hearing, the juvenile court must order the child’s 

release from custody unless a prima facie showing is made that the child 

comes within a section 300 ground for dependency (here subd. (b)) and the 

court finds, under section 319, subdivision (c), that continuation in the home 

would be contrary to the child’s welfare, which includes “substantial danger 

to the physical health of the child or the child is suffering severe emotional 

damage, and there are no reasonable means by which the child’s physical or 

emotional health may be protected without removing the child from the 

parent’s or guardian’s physical custody.” (§ 319, subd. (c)(1).) 
5

daily basis,” as did his sister, with whom he lived. Additionally, both he and 

his family helped to support minor. This support included a six-month 

supply of diapers sent to minor from paternal uncle, money sent to mother 

and maternal grandmother by father, and many “baby items,” including 

formula, a stroller, clothes, shoes, toys, diapers, teething supports and a 

walker, all for which father provided receipts. While he was in New York, he 

had become concerned about mother and minor and had called the San 

Francisco Police Department on two occasions “to ask them to conduct a wellchild check” on mother’s home. 

Jurisdiction and Disposition

The Agency’s report stated as follows: Father agreed that the B5 

allegation—that he had abused “crack cocaine and alcohol but that he is 

about 2 years sober”—was true. (Capitalization omitted.) Father said he 

started drinking at age 175 and began using cocaine in 2018, but he no longer 

drank alcohol and had “been clean of cocaine use since 2020.” The Agency 

had made a referral for “drug testing to assess his level of drug use,” but as of 

the date of the report, father had not tested. Father stated he had focused on 

“more pressing matters such as securing housing and employment.” The 

Agency was therefore “unable to determine the degree of [father’s] abstinence 

from substance use.” 

With respect to the B4 allegation, the Agency reported father and 

mother had been arrested for a May 2021 domestic violence incident, shortly 

before father left for New York. Mother stated father had “hit her, grabbed 

at her and pushed her in the past,” was “verbally abusive,” and “had 

threatened her and would ‘get in her face’ while they were in a relationship.” 

She stated father “had hit her with a fan while she was swinging a golf club 

5 Father was 56 years old at the time of the report. 
6

at him,” which had led to their joint arrest for infliction of corporal injury on 

a spouse or cohabitant. Father “denied any domestic violence” toward 

mother, and maintained it was mother who “had taken a swing at him with a 

golf club.” 

The Agency further reported father had moved back to California “upon 

receiving the news that the minor was involved” in dependency proceedings 

but had not yet found “stable housing or income.” The Agency had 

“encouraged [father] to apply for public assistance if needed,” but had made 

no referrals in this regard. Father acknowledged he had not “parented the 

minor since leaving San Francisco” in June 2021 but stated he had 

financially helped to support minor and was seeking to reestablish his 

connection with minor through supervised visitation. Father currently had 

supervised visitation with minor two times per week and had been 

“consistent” with his visitation. 

The Agency’s case plan objectives for father included securing 

appropriate housing, substance abuse assessment, random drug testing, 

individual therapy to focus on “better communication with mother as a coparent,” and completing parenting education. The Agency provided referrals 

for a substance abuse assessment, drug testing, parenting education classes, 

and a “supportive letter to Compass Family Services.” The Agency did not 

provide a referral for any kind of domestic violence services, instead stating 

in the domestic violence “follow-up needed for parent(s)” section of its report, 

mother and father “are not in a relationship with each other and they only 

plan to co-parent the child together. Perhaps, individual therapy for each 

parent to learn to communicate with each other more effectively would be a 

more suitable tool for the parents to co-parent together.” (Capitalization & 

boldface omitted.) 
7

Five days before the jurisdiction and disposition hearing, father 

completed a self-reporting substance use assessment through the San 

Francisco Health Network Treatment Homeless Prenatal Program. Father 

reported smoking marijuana once a month and not using alcohol or cocaine. 

The therapist at the services center concluded that, given father’s assessment 

and report of past and current services, father did “not meet medical 

necessity for . . . Substance Use Disorder Treatment[] at this time. [Father] 

endorses 2 years of abstinence from alcohol and cocaine and ahs [sic] 

successfully completed treatment in 2019. [Father] encouraged to continue 

working with community support resources included NA and HPP to 

maintain abstinence. [Father] encouraged to reach out if needing additional 

support or experiencing a relapse.” 

At the contested jurisdiction/disposition hearing, the court heard from 

father, mother, the child welfare worker, and the dependency protective 

services worker. 

Father testified as follows: He had moved to New York in June 2021, 

and it was after that that he first learned mother was using drugs after 

minor’s birth. Mother had not been using drugs while they were together. 

His sobriety date was December 2019. He was not “actively working” on the 

12 steps. He did not have a sponsor but had “acquaintances that [he] 

obtained [through] Narcotics Anonymous and AA.” His last NA meeting was 

three months before the hearing. The protective services worker had spoken 

to him about the drug testing referral. But “[t]here was just so much on my 

plate” because he was “looking for housing. I didn’t know where I was going 

to sleep my head after that point. The hotel room ran out.” He was 

attending parenting education classes and felt these were of real benefit and 

also helped him stay focused on sobriety. Prior to the hearing, he completed 
8

a substance abuse assessment and had tested once, with negative results. 

While completing the assessment, he remembered taking an earlier 

assessment and completing a 90-day inpatient treatment in 2019. He had 

not previously mentioned the 2019 assessment and treatment because “[n]o 

one ever asked for it.” 

Father denied incidents of domestic violence but acknowledged the May 

2021 incident, stating it “was a misunderstanding that . . . led to somewhere 

where it shouldn’t have.” The minor was not present and was with maternal 

grandmother at the time. Nor was minor present during other arguments he 

and mother had gotten into. He did not confirm one way or the other 

whether he and mother were going to continue their relationship, but said, 

“we’re trying to accomplish things as parents and reunify our family. And 

there’s issues that we both need to work on before we quote/unquote say that 

we’re intimately involved.” 

He had not received any help from the Agency in terms of housing and 

was “pretty much doing everything on my own.” He was open to other 

services, like “anger management classes,” but hesitant to have too many 

services “to get piled up in all these groups that hinder me from getting a roof 

over my head so you guys can release my son to me.” He wanted services 

that would assist him in obtaining “low subsidy” housing. He had just 

obtained employment and was scheduled to start work the week of the 

hearing. 

Mother testified as follows: She had used drugs with father but “way 

before” she became pregnant or had minor. 

She and father “got into an altercation and that led us to the jail,” but 

it was “not a situation that continuously happened.” They “had gotten into 

arguments. Again, not only that, there were certain physical situations. But 
9

it’s nothing like abuse at all.” When she told the social worker she and father 

had gotten into “tussles,” she meant, “Getting close. Getting loud.” This did 

“include putting hands on each other” but “not like bruises and stuff like 

that; so—I’ve never really had an actual fight fight. It may have been just 

pushing away type of thing.” There were “less than three” incidents, none of 

which were in the presence of minor; rather, he was with maternal 

grandmother. 

With respect to the text messaging, mother initially stated she and 

father “had a lot of differences between each other; so I’m not going to say it 

was threatening. What I’m going to say is that I, like, moved on, and I was 

seeing someone different so there was lots of arguments and things going 

against both of us.” On cross-examination, she said father’s text messages 

“were not always threatening. But at times, you know, they could feel that 

way.” 

The child welfare worker testified as follows: From her “first 

interactions with [father], he indicated he wanted custody of [minor].” Father 

“was transparent” about his past alcohol and cocaine use but never indicated 

“he had completed a substance abuse treatment program.” He also had not 

provided any documentation that he had engaged in a substance abuse 

treatment program. She could not recall if she had ever asked father about 

any prior treatment programs or if he had documentation. 

She discussed the idea of placing minor with father with her 

supervisor. But they decided against it “because [father] hadn’t been 

involved in the child’s life for a prolonged period of time and there was that 

distance.” At that time, mother had indicated she “was receiving text 

messages from dad that seemed threatening, and that was another factor; 
10

however, I do believe that in that decision, it came down to the distance and 

the lack of involvement of father with the child throughout his life.” 

The protective services worker testified as follows: Father did not 

provide him with “any verification that he attended any treatment program.” 

Nor could he recall if he had ever asked father to do so. Father did complete 

a substance abuse assessment. The Agency had referred father to drug 

testing, but this was not mandatory as the court had not ordered father to 

“provide urinalysis testing.” Since that referral, father had taken one test, 

which showed he was “free of cocaine or amphetamine or anything.” 

Father denied any domestic violence toward mother and denied making 

any threats toward mother and maternal grandmother. As to the May 2021 

incident, father “indicated that mom was swinging either a golf club or a fan 

at him or towards him.” There was no evidence minor had been exposed to 

“any conflict between mother and father” or that “father used substances 

near [minor] ever.” 

Father had video visits with minor when he was in New York and 

transitioned to in-person visits when he moved back to California, and “[b]y 

all accounts,” father had been “very appropriate” during visits. 

At the beginning of the continued jurisdiction and disposition hearing, 

father’s counsel sought a stipulation from Agency’s counsel that AVATAR “is 

the official San Francisco City and County medical records system,” and that 

the system reflects “confirmation that father did, in fact, attend treatment.” 

The stipulation was based on a line in the self-reporting assessment

completed by staff which stated “reporting 2 years of abstinence from cocaine 

and alcohol (consistent with AVATAR records).” The court pointed out this 

line made no specific mention of a drug treatment program. Counsel 

explained AVATAR “records would only reflect involvement in treatment. . . . 
11

You wouldn’t be able to get into those records were there not some interplay 

with a public health provider for those services.” Agency counsel did not 

dispute this statement and stipulated to what was “written in the report.” 

Agency counsel then urged the court to sustain the section 300, 

subdivision (b)(1) counts against father. Counsel asserted father had “used 

drugs with the mother,” “left [minor] with a mother that has an ongoing 

substance abuse problem,” and “failed to protect his child.” Counsel further 

maintained “mother agreed with the allegations that there has been violence, 

anger management issues involving father,” but “just didn’t want to say the 

magic words that they had ‘domestic violence’ issues.” 

Minor’s counsel joined in the Agency’s arguments, asserting “there has 

been evidence presented, in addition to what’s in the report, that the nature 

of the relationship between the parents has been conflictual, and it appears 

to be that the parents are minimizing that relationship.” Counsel was 

“concerned” about father’s history of substance abuse. 

Father’s counsel pointed out the protective services worker had 

testified there was no evidence “that father had endangered [minor] or put 

his child . . . at risk.” As to the B5 count, there was no evidence of any 

“continued or current risk of harm” to minor, no evidence father had 

“continued to use drugs. In fact, you have the opposite.” Father 

acknowledged he had used substances in the past and he would therefore 

have a “lifelong problem.” But there was “no evidence he used beyond those 

couple years.” The substance abuse assessment was that he did not “require 

further treatment,” and his drug test was negative. As to the B4 count, the 

May 2021 incident “happened a year ago,” and there was “no evidence that 

anything ever took place in front of the minor.” 
12

Counsel emphasized the question before the court was “Does [father’s] 

behavior pose a substantial risk of serious physical harm or illness to his 

child?” and asserted, “There’s no evidence of that.” Father was not a 

custodial parent, but rather was in New York, at the time of the events 

leading to detention. Father had “felt it was best for him to leave and have 

some space there, and he did. And he went to New York and had virtual 

visits with his son. And he sent assistance as he could. Financial

assistance.” Visits between father and minor had been “perfect,” with “[n]o 

evidence of any substance use [or] conflict, [or] anger during those visits.”

The court sustained the amended petition.6 The court found mother to 

be credible. While mother was “clearly holding back” initially, under crossexamination “the truth came out in the end.” There had been “yelling, 

arguing, tussling, and basic domestic violence” between mother and father. 

The court also found father “was quite candid in some aspects,” but found 

him “not to be credible” in regard to domestic violence. And “[b]ecause of that 

lack of credibility in that particular area, it does reflect upon his self-reports 

when it comes to his lack of cocaine and drug use and abuse.” Stating it was 

taking all of the evidence into account, the court found the B4 and B5 factual 

allegations true.

Without taking any additional evidence, the court moved on to removal 

and disposition, hearing additional argument by counsel. 

Father’s counsel asserted the “court . . . cannot find by clear and 

convincing evidence that [father] would pose a risk of harm to his child 

consistent with [section] 361.D.” Thus, the “only basis” for removing minor 

6 The only amendment pertaining to father was adding his status as 

presumed father. 
13

from father’s custody was father’s “poverty” and lack of housing, and those 

are not permissible bases for removal. 

Agency counsel denied “seeking to remove the child from the father 

based on poverty.” Rather, the Agency was “concerned” because father had 

“knowingly left his child with a parent that he knew or reasonably should 

have known had a chemical dependency problem that posed a risk.” The 

Agency was also “concerned” about the “domestic violence incidents.” 

Father’s counsel responded that the fact father “quote/unquote 

knowingly left the child with mother” was “not an allegation in the case.” 

Furthermore, “[i]t was likely a smart decision for him to go away to his family 

at the time.” What father “desperately needs help with [is] housing. That is 

what we are asking for.” He was also “still requesting” placement with 

paternal aunts. 

The court found by “clear and convincing evidence” that “there is a 

substantial danger to the physical health, safety, protection, or physical and 

emotional well-being of the child, and there are no reasonable means by 

which the child’s physical and emotional health can be protected without 

removing the child from both parents.” It then identified the evidence it 

considered: (1) “the fact that three months after the younger person was 

born, he may have had a good reason, but [father] did leave for New York”; 

(2) “the yelling, arguing, tussling, domestic violence, even if it was mutual 

combat between the parents”; (3) “the recency of his cocaine . . . use for the 

two years in 2018 and 2020”; (4) even though father had recently started a 

job—the day of the hearing—he had “no means to . . . support the younger 

person”; (5) that father “currently does not have any housing”; and (6) that 

there was “currently no proof . . . to [father’s] parenting skills or prior skills.” 

The court also found father’s progress in alleviating the need for placement 
14

was “minimal” and that the Agency had made reasonable efforts to prevent 

the need for removal. 

When father’s counsel took issue with the court’s finding that father’s 

progress had been “minimal,” given that father had returned to San 

Francisco to participate in the dependency proceeding, had completed all the 

visits, and had engaged in parenting classes, the court responded, “Flying out 

here to reunite with his son after leaving him, ditching him after three 

months . . . [¶] . . . I don’t find that to be a factor.” Counsel then took issue 

with the court’s characterization of father as having “ ‘ditched’ ” minor, 

pointing out father had been helping to support mother and minor—because 

there are “custodial and noncustodial parents . . . doesn’t mean the 

noncustodial parent ‘ditched’ their child.” The court then revised its finding 

to state father’s progress in alleviating the causes of the dependency had 

been “adequate.” 

The court thereafter imposed several reunification requirements, 

including that father “submit to random drug testing” noting any missed 

drug test would be considered “a dirty test,” and that he “undergo substance 

abuse assessment and follow its recommended treatment.”7 

II. DISCUSSION

A. Jurisdictional Findings

Mootness

As a threshold matter, the Agency maintains father’s appeal is moot. It 

points out the section 300 petition includes allegations as to both mother and 

7 The court imposed several additional requirements father does not 

challenge. These include, that he “secure appropriate housing for himself,” 

“participate in individual therapy focusing on better communication with 

mother as a co-parent,” and “participate in parenting education focusing on 

the care, provision and supervision of a toddler.” 
15

father and because the allegations as to mother are unchallenged, “this Court 

need not reach the merits of father’s challenge to the B4 and B5 counts in the 

section 300 petition.”8 

“[W]here jurisdictional findings have been made as to both parents but 

only one parent brings a challenge, the appeal may be rendered moot.” (In re 

D.P. (2023) 14 Cal.5th 266, 283 (D.P.).)

Father, relying on In re Drake M. (2012) 211 Cal.App.4th 754 (Drake 

M.), asks that we exercise our discretion to decide his appeal because the 

“jurisdictional orders . . . are . . . the basis for the dispositional orders 

removing the child that father challenges” and because the “jurisdictional 

orders . . . will undoubtedly prejudice him when he seeks to gain custody of 

his son.” 

Our Supreme Court has recently clarified, “where a jurisdictional 

finding ‘serves as the basis for dispositional orders that are also challenged 

on appeal’ ”—as is the case here—“the appeal is not moot.” (D.P., supra, 

8 In its respondent’s brief, the Agency suggests the B2 count was 

directed at both mother and father. It never advanced this contention in the 

juvenile court. It is also an inaccurate characterization of that count which 

was plainly directed at mother and stated, “The mother has substance abuse 

issues that requires assessment and treatment as evidenced by the following: 

[¶] . . . (A) It was reported that the mother abuses alcohol, ecstasy, cocaine, 

and methamphetamines. The Agency received referrals regarding recent 

incidents which involved mother being intoxicated from substances and 

needing family members to care for minor. [¶] . . . (B) The mother confirmed 

that she has used crystal meth and cocaine but that she does not do it 

regularly. [¶] . . . (C) The maternal grandmother reported that the mother 

needs to be in an in-patient. [¶] . . . (D) The night before [mother] was out 

drinking alcohol with her sister and [mother’s boyfriend] believes that is 

what influenced her behavior. [Mother’s boyfriend] stated prior to this, both 

had been sober for 20 days but she began to get threatening text messages

from the alleged father and that is when she started using again.” 

(Capitalization omitted.) 
16

14 Cal.5th at p. 283 [disapproving Drake M., supra, 211 Cal.App.4th 754 to 

the extent it suggests “where a jurisdictional finding ‘serves as the basis for 

dispositional orders that are also challenged on appeal” that, alone, is 

insufficient to avoid mootness and supports only the exercise of discretionary 

review].) 

 We therefore address father’s challenge to the B4 and B5 counts. 

 Sufficiency of the Evidence 

 As we have recited, the section 300 petition alleged dependency 

jurisdiction on the basis of subdivision (b)(1). Under this provision, a juvenile 

court may assume jurisdiction where the “child has suffered, or there is a 

substantial risk that the child will suffer, serious physical harm or illness, as 

a result of any of the following: (A) The failure or inability of the child’s 

parent or guardian to adequately supervise or protect the child. (B) 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. (C) The willful or negligent failure of the parent or 

guardian to provide the child with adequate food, clothing, shelter, or medical 

treatment. (D) 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.” (§ 300, subd. (b)(1)(A)–(D).) 

 Thus, to obtain a jurisdictional determination under section 300, 

subdivision (b)(1), an agency must “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. (2021) 70 Cal.App.5th 591,

601 (Cole L.); In re D.L. (2018) 22 Cal.App.5th 1142, 1146.) A court “need not 

wait until a child is seriously abused or injured to assume jurisdiction and 
17

take steps necessary to protect the child.” (Cole L., at p. 602.) And a parent’s 

“ ‘ “[p]ast conduct may be probative of current conditions” if there is reason to 

believe that the conduct will continue.’ ” (Ibid.) However, “ ‘[t]o establish a 

defined risk of harm at the time of the hearing, there “must be some reason 

beyond mere speculation to believe the alleged conduct will recur.” ’ ” (Ibid.; 

D.L., at p. 1146.)

“ ‘ “In reviewing a challenge to the sufficiency of the evidence 

supporting the jurisdictional findings and disposition, we determine if 

substantial evidence, contradicted or uncontradicted, supports them. ‘In 

making this determination, we draw all reasonable inferences from the 

evidence to support the findings and orders of the dependency court; we 

review the record in the light most favorable to the court’s determinations; 

and we note that issues of fact and credibility are the province of the trial 

court.’ [Citation.] ‘We do not reweigh the evidence or exercise independent 

judgment, but merely determine if there are sufficient facts to support the 

findings of the trial court.’ ” ’ (In re I.J. (2013) 56 Cal.4th 766, 773 . . . ; see In 

re I.C. (2018) 4 Cal.5th 869, 892. . . .) However, ‘[s]ubstantial evidence is not 

synonymous with any evidence. [Citation.] To be substantial, the evidence 

must be of ponderable legal significance and must be reasonable in nature, 

credible, and of solid value.’ (In re M.S. (2019) 41 Cal.App.5th 568, 580[9] . . . 

; accord, In re J.A. (2020) 47 Cal.App.5th 1036, 1046 [(J.A.)]. . . [while 

substantial evidence may consist of inferences, any inferences must rest on 

the evidence; inferences based on speculation or conjecture cannot support a 

finding].)” (Cole L., supra, 70 Cal.App.5th at pp. 601–602.)

9 Disapproved on another ground as stated in Michael G. v. Superior 

Court (2023) 14 Cal.5th 609, 631, footnote 8.
18

The B4 Count

The B4 count alleged: “The father has anger management issues that 

require assessment and treatment in that he has been sending the mother 

threatening text messages. The . . . father has also sent the maternal 

grandmother and the mother messages indicating that he would [send] 

someone to hurt them.” (Capitalization omitted.) 

We preliminarily observe this count did not allege “domestic violence,” 

but rather, anger management issues based on alleged text messages. A 

dependency petition must contain a “concise statement of facts, separately 

stated, to support the conclusion that the child upon whose behalf the 

petition is being brought is a person within the definition of each of the 

sections and subdivisions under which the proceedings are being instituted.”

(§ 332, subd. (f).) While there is no requirement that an agency “regurgitate 

the contents of the social worker’s report into a petition,” (In re Alysha S. 

(1996) 51 Cal.App.4th 393, 399–400), “[n]otice of the specific facts on which 

the petition is based is fundamental to due process because it enables the 

parties to properly meet the charges.” (In re T.V. (2013) 217 Cal.App.4th 126, 

131; see In re Andrew S. (2016) 2 Cal.App.5th 536, 544; In re Wilford J. 

(2005) 131 Cal.App.4th 742, 751 [“a parent whose child may be found subject 

to the dependency jurisdiction of the court enjoys a due process right to be 

informed of the nature of the hearing, as well as the allegations upon which 

the deprivation of custody is predicated”].)

However, “[p]utting aside whether it would be proper to sustain the 

petition based on an unalleged history of domestic violence” (Cole L., supra, 

70 Cal.App.5th at pp. 604–605), there was insufficient evidence, in any case, 

to support a section 300, subdivision (b)(1) jurisdiction determination on the 

basis of “domestic violence.”
19

Cases have made it abundantly clear that evidence of prior domestic 

violence between a mother and father, in and of itself, will not support 

jurisdiction under section 300, subdivision (b)(1). (In re Daisy H. (2011) 

192 Cal.App.4th 713, 717 (Daisy H.)10 [existence of past domestic violence 

alone not enough to support jurisdiction, rather the Agency must prove 

domestic violence is “ongoing or likely to continue” and that it “directly 

harmed the child physically or placed the child at risk of physical harm”]; see 

In re Rocco M. (1991) 1 Cal.App.4th 814, 82411 [“While evidence of past 

conduct may be probative of current conditions, the question under 

section 300 is whether circumstances at the time of the hearing subject the 

minor to the defined risk of harm. [Citations.] Thus the past infliction of 

physical harm by a caretaker, standing alone, does not establish a 

substantial risk of physical harm; ‘[t]here must be some reason to believe the 

acts may continue in the future.’ ”].)

For example, in Daisy H., supra, 192 Cal.App.4th 713, the court 

concluded there was insufficient evidence to “support a finding that past or 

present domestic violence between the parents placed the children at a 

current substantial risk of physical harm” because “[t]he physical violence 

between the parents happened at least two, and probably seven, years before 

the [filing of] the petition,” and there was no evidence the children were 

present when the violence occurred. (Id. at p. 717; see Cole L., supra, 

70 Cal.App.5th at pp. 604–605 [insufficient evidence to support jurisdiction 

where incident of pushing and shoving occurred outside presence of children]; 

10 Disapproved of on another ground in D.P., supra, 14 Cal.5th at page 

278.

11 Abrogated in part on another ground by In re R.T. (2017) 3 Cal.5th 

622, 626–630 (R.T.).
20

In re Ma.V. (2021) 64 Cal.App.5th 11, 21–23 [insufficient evidence to support 

jurisdiction where it had been over 10 months since abuser had “left the 

family home,” and the mother had “ended her relationship with him”]; In re 

M.W. (2015) 238 Cal.App.4th 1444, 1454 [insufficient evidence to support 

jurisdiction where “the record contains evidence that a single incident of 

domestic violence occurred more than seven years before the hearing” and no 

other evidence of altercations between the parents]; In re Jonathan B. (2015) 

235 Cal.App.4th 115, 120–121 (Jonathan B.) [insufficient evidence to support 

jurisdiction where the mother had lived apart from the father prior to the 

domestic violence incident and immediately reported it to the police and only 

other domestic violence incident occurred five years prior].)

Here, mother testified to three incidents of what she called “tussling,” 

including the May 2021 incident during which both parents were arrested. 

While these incidents apparently involved some physical touching, there was 

no evidence of any physical injury and there was no evidence these 

arguments (and any pushing) ever occurred in the presence of minor. (See

Cole L., supra, 70 Cal.App.5th at p. 606 [physical danger to children was 

minimal where minor incidents of domestic violence involved, at most, some 

pushing and grabbing, and no evidence domestic violence took place in the 

children’s presence].)

Similarly, there is no evidence minor was present at any time mother 

received a “threatening” text message from father. The record is devoid of 

any specifics as to what these messages actually said or even how many were 

sent. No copies or screen shots of messages were ever shown to any Agency 

personnel or introduced at the hearing. Nor could mother elucidate at the 

hearing. The most she could say when asked whether father had sent 

threatening texts was that they argued by text and “at times, you know, they 
21

could feel that way.” While on an “abstract level” threats certainly are 

“incompatible with child safety . . . such generalities” are not evidence of an 

“ ‘identified, specific hazard in the child’s environment’ that poses a 

substantial risk of serious physical harm to him.” (In re J.N. (2021)

62 Cal.App.5th 767, 776 (J.N.), italics omitted.) 

The Agency does not dispute the state of the record but contends the 

juvenile court was “entitled to infer” some of the “conflictual relationship took 

place in front of the child, given [that] the parents had lived together for the 

first three months of the child’s life.” However, inferences must rest on 

evidence, not conjecture or speculation. (In re Emily L. (2021) 73 Cal.App.5th 

1, 15; In re J.A., supra, 47 Cal.App.5th at p. 1046.) Here, not only was there 

no evidence that the squabbling and physical contact between father and 

mother occurred in the presence of minor, but the evidence was 

uncontradicted that minor was, in fact, not present and was with his 

maternal grandmother on these occasions.

Moreover, there was no evidence any squabbling and shoving by 

mother and father, or any text “threats,” was likely to continue and place 

minor at substantial risk of serious physical harm. 

After the May 2021 incident, father moved away from mother, in part, 

because he “felt it was best for him to leave and have some space there, and 

he did.” While the juvenile court uncharitably accused father of having 

“ditched” minor, the courts have repeatedly pointed out separation can be a 

proactive step to assist parents who are unable to reside together peacefully 

but who have given every indication they can interact appropriately with 

their children. (See Jonathan B., supra, 235 Cal.App.4th at pp. 119–121 

[parental separation can be relevant where it eliminates danger to the 

children from domestic violence]; Daisy H., supra, 192 Cal.App.4th at p. 717 
22

[past domestic violence is insufficient to support jurisdiction where there was 

“no evidence of any ongoing violence between the parents who are now 

separated”].) Indeed, the Agency appears to have been of the latter view—

that because father and mother were no longer residing together, there was 

no substantial risk of physical injury to minor from any earlier altercations 

between the couple—at the time it prepared its reports, since it did not refer 

father for any anger management (let alone domestic violence) assessment, or 

to an anger management (or domestic violence) program. Nor did the Agency 

include any such assessments and programs in his case plan. Rather, the 

only “follow up” was a suggestion the parents attend individual therapy “to 

learn to communicate with each other more effectively” as a “more suitable 

tool for the parents to co-parent together.” 

It is also true father did not deny hope of future reunification, stating 

“we’re trying to accomplish things as parents and reunify our family.” But 

certainly a parent’s desire to reunify his or her family is a laudable goal and 

not a basis for “inferring” that there is a “substantial risk” of “serious” 

physical harm to the minor in the absence of any evidence that reasonably 

suggests that is the case. Indeed, father displayed awareness that “there’s 

issues that we both need to work on before we quote/unquote say that we’re 

intimately involved.” And he had attended, and was continuing to attend, 

the parenting skills program. 

“Section 300, ‘subdivision (b) means what it says. Before courts and 

agencies can exert jurisdiction under section 300, subdivision (b), there must 

be evidence indicating that the child is exposed to a substantial risk of 

serious physical harm or illness.’ ” (In re David M. (2005) 134 Cal.App.4th 
23

822, 829 (David M.), italics omitted.)12 Here, there is no substantial evidence 

of any “nexus” between the parents’ prior arguments, shoving, and texting,

and substantial risk of serious physical injury to minor. (See Cole L, supra, 

70 Cal.App.5th at pp. 604–608 [insufficient evidence to support finding that 

parents’ domestic violence placed children at substantial risk of harm where 

“incident involved, at most, some pushing and grabbing for [father’s] cell 

phone and took place outside presence of children,” and no evidence 

threatening conduct would reoccur]; Daisy H., supra, 192 Cal.App.4th at 

p. 717 [insufficient evidence to support finding that past or present domestic 

violence placed children at substantial risk of harm when the domestic 

violence happened at least two years ago, and no evidence children were 

present and no evidence of ongoing violence between parents]; see also J.N., 

supra, 62 Cal.App.5th at p. 775 [“DCFS must establish a nexus between the 

parent’s past conduct and the current risk of harm.”].) 

The B5 Count

The B5 count alleged: Father “reported that he used to abuse crack 

cocaine and alcohol but that he is about 2 years sober.” (Capitalization 

omitted.) 

As we have recited, father did not dispute this allegation. Nor, of 

course, did the Agency. Instead, it expressed “concern” about his prior drug 

use and doubt about his sobriety. The juvenile court, in turn, commended 

father for being forthright about his prior drug use and addiction, but 

doubted his credibility as to the state of his sobriety. 

Again, the Agency had the burden of proving father’s substance abuse 

history presented a substantial risk of serious physical harm to minor. (See 

12 Abrogated in part on another ground by R.T., supra, 3 Cal.5th at 

pages 628–629.
24

In re I.J., supra, 56 Cal.4th at p. 773.) However, it presented no evidence 

father’s reported sobriety was false, let alone, that any prior or current drug 

use presented a substantial risk of serious physical harm to minor. 

Rather, the Agency complained father did not complete an assessment 

and did not test until shortly before the hearing. It acknowledged, however, 

father was not required to do either before the hearing. It also essentially 

dismissed the fact that father did complete an assessment—which concluded 

he did “not meet medical necessity for . . . Substance Use Disorder 

Treatment”—and did test, with negative results. The Agency also stipulated 

that a line in the self-reporting assessment completed by staff stated 

“reporting two years of abstinence from cocaine and alcohol (consistent with 

A[V]ATAR records).” Nor did it take issue with father’s counsel’s 

representation to the court that AVATAR “is the official San Francisco City 

and County medical records system,” and AVATAR “records would only 

reflect involvement in treatment. . . . You wouldn’t be able to get into those 

records were there not some interplay with a public health provider for those 

services.” 

In short, the Agency presented no evidence that father had lied about 

his sobriety or that he had a current substance abuse problem that posed a 

substantial risk of serious physical harm to minor. Indeed, not a single 

witness testified father had abused drugs during the time he claimed to be 

sober. While “concern” that an addict will relapse is understandable, such 

“concern” untethered to any evidence that this is more than a theoretical 

possibility (as it is in the case of every addict) does not establish a substantial 

risk of serious physical injury to a minor. (See J.N., supra, 62 Cal.App.5th at 

p. 775 [no nexus between father’s past substance abuse and any current risk 

of harm to minor]; In re Destiny S. (2012) 210 Cal.App.4th 999, 1003
25

[substance abuse “standing alone” and “without more,” is insufficient to 

support a section 300, subdivision (b) finding], italics omitted.) 

B. Dispositional Orders13

Removal from Noncustodial Parent 

 Applicable Statute 

 After the hearing, the juvenile court entered a written order and 

checked the box stating: “Good cause appearing, the court hereby makes the 

following findings by clear and convincing evidence, pursuant to 

[section] 361(c): [¶] There is substantial danger to the physical safety, 

protection or physical or emotional well[-]being of the child[] or would be if 

the child[] were returned home, and there are no reasonable means by which 

the child’s[] physical health can be protected without removing the child[] 

from the parents’ . . . custody.” (Capitalization omitted.) 

 Father contends the court erred in applying subdivision (c) of 

section 361, which applies to a custodial parent. The Agency agrees and 

13 Our conclusion that the jurisdictional findings as to father are 

unsupported does not automatically mandate reversal of dispositional orders 

pertaining to him since jurisdiction over the minor remains valid by virtue of 

the unchallenged findings against mother. (Cf. In re Isabella F. (2014) 

226 Cal.App.4th 128, 138, 141 [vacating dispositional order when all findings 

supporting jurisdiction over child are vacated]; In re James R. (2009) 

176 Cal.App.4th 129, 131, 137 [same], abrogated on another ground by R.T., 

supra, 3 Cal.5th at pp. 628–629; David M., supra, 134 Cal.App.4th at p. 833 

[same].) Where jurisdiction still exists over the child, the juvenile court has 

discretion to require both parents—whether they are offending or 

nonoffending—to participate in educational and counseling programs that 

“the court deems necessary and proper.” (§ 362, subd. (d); In re I.A. (2011) 

201 Cal.App.4th 1484, 1492 (I.A.) [“A jurisdictional finding involving the 

conduct of a particular parent is not necessary for the court to enter orders 

binding on that parent, once dependency jurisdiction has been established.”].) 
26

maintains the “operative section was section 361, subdivision (d),” which 

applies to a noncustodial parent. 

Prior to 2018, the statutory framework was “silent on the factual 

findings necessary to order [the removal of] a child from the custody of a 

noncustodial parent.” (Assem. Com. on Human Services (Reg. Sess. 2017–

2018) as amended Mar. 28, 2017, p. 2, italics added.) Indeed, there was no 

specific statutory provision allowing juvenile courts to remove children from 

noncustodial parents. (Sen. Com. on Judiciary, Assem. Bill No. 1332 (Reg. 

Sess. 2017–2018), pp. 2, 5 [“situations where parents do not cohabitate and 

one parent has primary physical custody do not seem to be clearly provided 

for under existing law”].) Rather, the juvenile court’s authority to remove 

children from noncustodial parents was implied or inferred from other 

statutory provisions. (See In re Dakota J. (2015) 242 Cal.App.4th 619, 628–

629, 632–633 [juvenile courts may remove children from noncustodial parents 

under § 361, subd. (a), which authorizes courts to “ ‘limit the control to be 

exercised over the dependent child by any parent or guardian,’ ” and § 362, 

subd. (a), which authorizes courts to “ ‘make any and all reasonable orders for 

the care, supervision, custody, conduct, maintenance, and support’ ” of a 

dependent child].) 

Accordingly, in 2018, the Legislature sought to “clarify the juvenile 

court’s authority to remove a child from the physical custody of a 

noncustodial parent” and establish “a specific standard for such removal.” 

(Sen. Judiciary Com., Assem. Bill No. 1332 (Reg. Sess. 2017–2018), p. 2; see 

also Seiser & Kumli, on Cal. Juvenile Courts Practice and Procedure (2022) 

§ 2.126(2)(a), pp. 2-483 to 2-484 [“Effective January 1, 2018, [section 361] has 

been amended to address removal from the physical custody of the parents 

. . . , with whom the child did not reside at the time the petition was 
27

initiated.”].) The Legislature did so by amending section 361 and adding 

subdivision (d). 

The juvenile court therefore erred in removing minor pursuant to 

section 361, subdivision (c), rather than subdivision (d). 

Father maintains this error was prejudicial because subdivision (d) 

assertedly “applies a different standard” for removal than subdivision (c). 

Father is mistaken in this regard. 

The legislative history reflects that in enacting subdivision (d), the 

Legislature adopted “the same standard used for removal of a child from the 

custody of a custodial parent” for “the removal of a child from the custody of a 

noncustodial parent.” (Sen. Judiciary Com., Assem. Bill No. 1332 (Reg. Sess. 

2017–2018), p. 5; Assem. Com. on Judiciary, Assem. Bill No. 1332 (2017–2018 

Reg. Sess.) as amended Mar. 28, 2017, p. 3 [“This bill . . . allow[s] removal 

from a parent with whom the child did not reside on the same basis as 

removal of a child from the custodial parent.”]; see also Seiser & Kumli, on 

Cal. Juvenile Courts Practice and Procedure, supra, § 2.126(2)(a), pp. 2-483 to 

2-484 [“the same standard applies to a removal from the physical custody of a 

parent with whom the child did not reside as the removal of physical custody 

from a parent with whom the child did reside”].) 

Thus, although the juvenile court erred in checking the section 361, 

subdivision (c) box on the dispositional order, any error was harmless, given 

that both subdivision (c) and subdivision (d) impose the same fact-finding 

requirements and heightened clear and convincing burden of proof for 

removal.14

14 We therefore need not, and do not, address father’s assertion that 

removal also was improper under section 361.2, since that section pertains to 

a noncustodial parent who is requesting custody, and he was not 

affirmatively doing so. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1820.) 
28

 Sufficiency of the Evidence 

 Section 361, subdivision (d) states as follows: “A dependent child shall 

not be taken from the physical custody of his or her parents, guardian, or 

Indian custodian with whom the child did not reside at the time the petition 

was initiated, unless the juvenile court finds clear and convincing evidence 

that there would be a substantial danger to the physical health, safety, 

protection, or physical or emotional well-being of the child for the parent, 

guardian, or Indian custodian to live with the child or otherwise exercise the 

parent’s, guardian’s, or Indian custodian’s right to physical custody, and 

there are no reasonable means by which the child’s physical and emotional 

health can be protected without removing the child from the child’s parent’s, 

guardian’s, or Indian custodian’s physical custody.” 

 “ ‘The elevated burden of proof for removal from the home . . . reflects 

the Legislature’s recognition of the rights of parents to the care, custody and 

management of their children, and further reflects an effort to keep children 

in their homes where it is safe to do so. [Citations.] By requiring clear and 

convincing evidence of the risk of substantial harm to the child if returned 

home and the lack of reasonable means short of removal to protect the child’s 

safety, section 361, subdivision (c) demonstrates the “bias of the controlling 

statute is on family preservation, not removal.” ’ ” (In re M.V. (2022) 

78 Cal.App.5th 944, 959, quoting In re A.R. (2015) 235 Cal.App.4th 1102, 

1115 (A.R.).) 

In any case, any error in applying section 361.2 also would have been 

harmless. (See In re D’Anthony D. (2014) 230 Cal.App.4th 292, 303–304 

[error in applying section 361.2, rather than section 361 subdivision (c) 

(which applies the same standard as subdivision (d)), was harmless given 

similarity of the standards set forth in the statutes].) 
29

Indeed, “[a] dispositional order removing a child from a parent’s 

custody is ‘a critical firebreak in California’s juvenile dependency system’ [(In 

re Paul E. (1995) 39 Cal.App.4th 996, 1003 . . . )], after which a series of 

findings by a preponderance of the evidence may result in termination of 

parental rights.” [Citation.] Thus, California dependency laws “establish 

that out-of-home placement is not a proper means of hedging against the 

possibility of failed reunification efforts, or of securing parental cooperation 

with those efforts. It is a last resort, to be considered only when the child 

would be in danger if allowed to reside with the parent. The law requires 

that a child remain in parental custody pending the resolution of dependency 

proceedings, despite the problems that led the court to take jurisdiction over 

the child, unless the court is clearly convinced that such a disposition would 

harm the child. The high standard of proof by which this finding must be 

made is an essential aspect of the presumptive, constitutional right of 

parents to care for their children.” (In re M.V., supra, 78 Cal.App.5th at 

p. 959, quoting In re Henry V. (2004) 119 Cal.App.4th 522, 525, italics added.)

At the hearing, father’s counsel, citing to In re Serenity S. (2020) 

55 Cal.App.5th 355 (S.S.), argued there was no evidence, let alone clear and 

convincing evidence, of a substantial danger to the child and no reasonable 

means to protect the child without removal. (§ 361, subd. (d).) Rather, the 

only concern that could have any traction, said counsel, “would be based on 

the fact he has no housing. . . . [¶] . . . [¶] The only thing stopping him from 

being able to provide a home for his son is that he does not presently have 

housing. He is not asking for custody right here today because he doesn’t 

have housing.” But the fact he did not yet have suitable housing could not, 

under S.S., be the basis for a removal order. 
30

Counsel for the Agency responded, “we are concerned because the 

father knowingly left his child with a parent that he knew or reasonably 

should have known had a chemical dependency problem that posed a risk to 

this child. . . . [¶] . . . [¶] The father voluntarily elected to leave to go to New 

York for reasons that are in his own state of mind. But he left right after the 

tussle incident with the mother. The domestic violence incidents that the 

mother has detailed, those are the reasons the Agency is concerned.” 

Defense counsel continued to emphasize that the court was required “to 

find clear and convincing evidence that father poses a risk of detriment to the 

child in order to remove from father. [¶] We are not seeking custody today; 

therefore, the court does not need to remove from father. The case of In re 

S.S. discusses this scenario where a parent has no housing. He desperately 

needs help with housing. That is what we’re asking for.” 

The juvenile court ruled that on the basis of “clear and convincing” 

evidence “there is substantial danger to the physical health, safety,

protection, or physical and emotional well-being of the child, and there are no 

reasonable means by which the child’s physical and emotional health can be 

protected without removing the child from both the parents.” The court

identified the following as the basis for its ruling: “The facts . . . included in 

the petition that the court did sustain, and the allegations under 

[section] 300(b);” and the “the issues and concerns” raised about father in the 

Agency’s reports—that father left for New York three months after minor was 

born, the domestic violence between mother and father, the “recency of his 

cocaine” abuse, that there was “no proof” of his “current parenting skills or 

prior skills,” and that father had no means to support minor and no housing 

to keep minor “safe and protected.” The court went on to comment that 
31

“While I understand you’re not asking for [custody] today, the court is 

making the decision about it today.” 

In short, the juvenile court found that the record before it not only 

supported jurisdiction under a preponderance of the evidence standard, but it 

also supported removal from custody under the significantly heightened clear 

and convincing evidence standard.

Given that we have concluded that the court’s jurisdictional findings 

are not supported by substantial evidence, we necessarily reach the same 

conclusion as to the court’s removal findings, i.e., that the removal order is 

not supported by substantial evidence, particularly taking into account the 

higher clear and convincing standard of proof. 

We have discussed in detail why the Agency’s showing fell short of 

establishing jurisdiction as to father, and we need not repeat that discussion 

here. We observe, however, that in arguing removal was warranted, the 

Agency identified two “concerns”—that father “left his child” with “a parent 

that he knew or reasonably should have known had a chemical dependency 

problem that posed a risk to this child,” and the “domestic violence incidents 

that the mother has detailed.” 

As to the first concern, there was evidence mother had abused drugs 

prior to the pregnancy. But there was no evidence she did so during the 

pregnancy (notably there was no evidence in the record that minor was born 

with an addiction). There was also evidence the Agency received two 

referrals after the birth, on June 8 and 9, that alleged “mother’s drug use is 

affecting her care of the minor” and in the second referral, the social worker 

“discovered the mother’s substance use and her mental health issue might be 

affecting the mother’s care of the minor.” The first referral was “evaluated 

out.” The second was “closed” because mother agreed grandmother would 
32

provide care and supervision of minor in the event mother was under the 

influence and because mother was connected to and using various community 

services. When father left for New York is unclear. He testified he left June 

9; in his motion for presumed father status, he said he left June 29. He also 

testified he was not aware of mother’s drug use until after he moved out. So 

the evidence arguably supports an inference he knew or should have known 

of mother’s resumed use. 

But awareness mother used, without more, cannot not support 

jurisdiction as to father (or even mother), let alone a removal order as to 

father. (See J.A., supra, 47 Cal.App.5th at p. 1046 [“dependency cannot be 

based on substance abuse alone; jurisdiction requires a substantial risk of 

harm to the child arising from the substance abuse”].) Furthermore, the 

Agency “evaluated out” the first referral and it “closed” the second in light of 

maternal grandmother’s agreement to care for minor if mother again used 

and mother’s access to and use of community services. Given that the Agency 

was satisfied with this handling of the incidents, father certainly cannot be 

penalized with loss of custody by failing to perceive mother’s use created “a 

substantial danger to” the minor. 

Furthermore, there is no evidence whatsoever that “there are no 

reasonable means by which the child’s physical and emotional health can be 

protected” from mother’s addiction “without removing” minor from father’s 

legal custody. 

As to the second concern—the incidents of domestic violence to which 

mother testified—there is, as we have discussed, no evidence the parents’ 

arguments and any touching occurred in minor’s presence or presented a 

“substantial risk” of “serious physical harm” to minor, let alone, evidence 

sufficient to support a finding on the basis of “clear and convincing” of “a 
33

substantial danger to” minor. There is also no evidence, let alone evidence 

sufficient to support a finding by clear and convincing evidence, that “there 

are no reasonable means by which the child’s physical and emotional health 

can be protected” from this concern “without removing” minor from father’s 

legal custody. (See In re I.R. (2021) 61 Cal.App.5th 510, 513, 521–522

[evidence insufficient to support removal from father as record did not 

contain evidence minor was in substantial danger in the father’s care nor was 

there evidence that “there were no ‘reasonable means’ to protect [the minor] 

other than removing her from Father”]; see also Isayah C. (2004) 

118 Cal.App.4th 684, 700 [“[A] parent may have custody of a child, in a legal 

sense, even while delegating the day-to-day care of that child to a third party 

for a limited period of time.”].) 

To the contrary, by residing apart from mother, father has already 

taken a step expressly approved in section 361, subdivision (c) as a 

“reasonable means to protect the minor.” (§ 361, subd. (c)(1); see A.R., supra,

235 Cal.App.4th at p. 1118 [evidence insufficient “to establish existence of a 

‘substantial danger’ within meaning of section 361, subdivision (c),” where 

the “father had already removed himself from the home,” and there was “no 

evidence that father intended to move back into the home”].)

As for the additional reasons recited by the court—the “recency” of 

father’s cocaine abuse, “no proof” of his “current parenting skills or prior 

skills,” and no means to support minor and no housing to keep minor “safe 

and protected”—they do not singularly or collectively constitute substantial 

evidence, let alone taking into account the heightened clear and convincing 

standard of proof, that there “would be a substantial danger” to the “physical 

or emotional well-being” of the minor absent removal from father’s legal 

custody. We have discussed at some length the absence of any evidence that 
34

minor is at substantial risk of serious harm in light of father’s prior drug 

abuse. There is also no evidence minor is at risk due to the lack of any 

parenting skills. To the contrary, the evidence was undisputed that father 

attended to the infant appropriately, that he provided economic and material 

support while he lived in New York, and that he was attending parenting 

classes. Thus, there is also no evidence, let alone evidence sufficient to 

support a finding by clear and convincing evidence, that “there are no 

reasonable means by which the child’s physical and emotional health can be 

protected” from any concern about parenting “without removing” minor from 

father’s legal custody. And finally, as S.S. holds, a child cannot be taken 

from a parent’s legal custody solely on the basis of the parent’s poverty. 

Rather, the Agency must make every effort to assist the parent in securing 

employment and housing. The Agency made no such showing here. And 

father, on his own, had secured employment. 

Drug Testing and Treatment Program 

Father also challenges dispositional orders requiring drug testing and 

substance abuse treatment, asserting there was “no evidence of any current 

substance abuse.” 

The Agency maintains father has forfeited this challenge because he 

did not object to these orders in the juvenile court. And, indeed, as a general 

rule, failure to object in the juvenile court forfeits a parent’s right to pursue 

an issue on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293;15 accord, In re 

N.O. (2019) 31 Cal.App.5th 899, 935 [“ ‘A party forfeits the right to claim 

error as grounds for reversal on appeal when he or she fails to raise the 

objection in the trial court. [Citations.] Forfeiture . . . applies in juvenile 

15 Superseded by statute on another ground as stated in In re S.J. 

(2008) 167 Cal.4th 953, 962.
35

dependency litigation and is intended to prevent a party from standing by 

silently until the conclusion of the proceedings.’ ”].)

However, a recognized exception to forfeiture is futility. (See People v. 

Gomez (2018) 6 Cal.5th 243, 286–287 [“ ‘Reviewing courts have traditionally 

excused parties for failing to raise an issue at trial where an objection would 

have been futile . . . .’ ”].) As we have recited, father’s attorney repeatedly 

argued there was no evidence that could support a jurisdictional finding or a 

dispositional removal order based on prior drug abuse. Given that the 

juvenile court rejected these arguments, we conclude any further objection to 

an additional disposition order requiring testing and treatment would have 

been futile. We therefore conclude father has not forfeited his challenge to 

the orders on appeal and turn to the merits.

Under section 362, subdivision (a), a juvenile court can “make any and

all reasonable orders for the care, supervision, custody, conduct, 

maintenance, and support of the child.” (§ 362, subd. (a).) The problem the 

court seeks to address need not be described in the sustained section 300 

petition. (See In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006–

1008.) “In fact, there need not be a jurisdictional finding as to the particular 

parent upon whom the court imposes a dispositional order.” (In re Briana V. 

(2015) 236 Cal.App.4th 297, 311; see also I.A., supra, 201 Cal.App.4th at 

p. 1492 [“A jurisdictional finding involving the conduct of a particular parent 

is not necessary for the court to enter orders binding on that parent, once 

dependency jurisdiction has been established.”].) 

“The juvenile court has broad discretion to determine what would best 

serve and protect the child’s interests and to fashion a dispositional order 

accordingly.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) Although 

the court “should be mindful of the burdens their disposition orders impose 
36

on parents already grappling with difficult conditions and circumstances,” 

the “paramount concern always must be the child’s best interest . . . no 

matter how burdensome its requirements may seem from the parent’s 

perspective.” (In re D.P. (2020) 44 Cal.App.5th 1058, 1071–1072.) 

Nevertheless, a juvenile court’s discretion is “not unfettered.” (In re 

Nolan W. (2009) 45 Cal.4th 1217, 1229.) The court’s orders must be 

“ ‘reasonable’ ” and, as is critical here, “ ‘designed to eliminate those 

conditions that led to the [juvenile] court’s finding that the child is a person 

described by Section 300.’ ” (In re D.M. (2015) 242 Cal.App.4th 634, 639, 

quoting § 362, subd. (d).) Thus, while the juvenile court “may direct any 

reasonable orders to the parents” of a dependent child, which may include 

participating in a counseling or education program,” this is “provided the 

program 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).) 

Given that no sufficient evidence supported the juvenile court’s

jurisdictional finding based of father’s alleged substance abuse, the 

dispositional testing and treatment orders aimed at eliminating that

invalidated jurisdictional finding must also be reversed. In other words, in 

the absence of that jurisdictional finding, there is no nexus between the 

remaining valid conditions leading to the dependency and the challenged 

disposition orders. (§ 362, subd. (d) [dispositional order requiring 

participation in programs “shall be designed to eliminate those conditions 

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

Section 300”]; see In re R.M. (2009) 175 Cal.App.4th 986, 991 [in light of 

court’s “determination that the jurisdictional order must be reversed,” 

dispositional order placing children outside the mother’s home “and all 

subsequent dispositional orders” as to the mother “must be reversed as well”]; 
37

cf. D.P., supra, 14 Cal.5th at p. 277 [“reversal of the jurisdictional finding 

calls into question the validity of orders based on the finding”].)

C. ICWA

In March 2022, the social worker asked father if he knew of any Native 

American ancestry in his family, and father reported he did not know “for 

sure if his family has any registration with a tribe but that he knew that his 

mother is Shinnecock. He reported remembering that he had went to some 

events when he was younger [on] a reservation. He said his sisters might 

have more information.” The Agency stated further inquiry was necessary 

because there was “reason to believe the child may be an Indian child.” 

(Boldface omitted.) 

Three days later, father filed an ICWA-020 form. He marked the box 

indicating “[o]ne or more of [his] parents, grandparents, or other lineal 

ancestors is or was a member of a federally recognized tribe.” He stated, 

“[s]ome cousins lived on reservation (child’s paternal great grandmother lived 

on reservation and current family members live on reservation) Shinnecock 

Tribe South Hampton.” He then listed the name of minor’s paternal great 

grandmother. 

The Agency’s jurisdiction and disposition report noted father had 

completed an ICWA-020 form and indicated he had “Native American/Indian 

ancestry on his mother’s side of the family.” The Agency stated despite 

naming the tribe—Shinnecock—father “has no other information of his 

Native American/Indian status except to indicate his sister . . . , would have 

more information.” He provided his mother and grandmother’s name, both of 

whom were deceased, and stated it was his grandmother “who has the Native 

American/Indian ancestry.” The social worked contacted one paternal aunt 

on two separate occasions but did not receive a response, and she contacted 
38

another paternal aunt once and also did not receive a response. Father 

indicated “no immediate family, including himself, has lived on a Native 

American/Indian reservation;” “attended a Native American/Indian school;” 

“has registered” with a tribe; or “received services” from a tribe. 

The Agency noted further inquiry was required because father had 

claimed Indian ancestry and there is reason to believe minor “is an Indian 

child, but there is not sufficient information to determine there is reason to 

know” minor is an Indian child and further investigation is warranted. The 

report stated “Pending the response from [the Bureau of Indian Affairs] and 

Shinnecock Tribe as identified by the father’s maternal side of the family 

might have Native American Ancestry.” 

Under a section in the report labeled “Formal Notice,” (capitalization & 

boldface omitted) the Agency checked the box stating, “The following efforts 

to gather family tree information necessary to complete the ICWA-030 were 

made: 5/18/2022. Family information gathered, documented above (in 

Further Inquiry grid), or in the attached family tree form, was included in 

the ICWA-030 notice.” 

The juvenile court did not make any ICWA findings at either the 

detention hearing or at the jurisdiction and disposition hearing.

Father contends the court “erred in removing the child from father and 

placing him in foster care where the child was an Indian child and no notice 

as required by ICWA was provided.” 

The Agency maintains there was “no reason to know [minor] is an 

Indian child,” and ICWA notice was not required. In essence, the Agency 

contends “[f]ather conflates two separate and distinct provisions of 

section 224.2, namely the ‘reason to know’ provisions . . . and the ‘reason to 

believe’ provision.” We agree.
39

“[S]ection 224.2 creates three distinct duties regarding ICWA in 

dependency proceedings. First, from the Agency’s initial contact with a 

minor and his family, the statute imposes a duty of inquiry to ask all involved 

persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) 

Second, if that initial inquiry creates a ‘reason to believe’ the child is an 

Indian child, then the Agency ‘shall make further inquiry regarding the 

possible Indian status of the child, and shall make that inquiry as soon as 

practicable.’ (Id., subd. (e), italics added.) Third, if that further inquiry 

results in a reason to know the child is an Indian child, then the formal notice 

requirements of section 224.3 apply. (§ 224.2, subd. (c) [court is obligated to 

inquire at the first appearance whether anyone ‘knows or has reason to know 

that the child is an Indian child’]; id., subd. (d) [defining circumstances that 

establish a ‘reason to know’ a child is an Indian child]; § 224.3 [ICWA notice 

is required if there is a ‘reason to know’ a child is an Indian child as defined 

under § 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) 

“It is important . . . to recognize the distinction between ‘reason to 

believe’ and ‘reason to know.’ A reason to believe should trigger further 

inquiry . . . , while a reason to know is the standard that requires actual 

notice.” (Seiser & Kumli, on Cal. Juvenile Courts Practice and Procedure, 

supra, § 2.125(2)(b), p. 2-451, citing §§ 224.2, 224.3, subd. (b); Cal. Rules of 

Court, rule 5.481(b).)

Preliminarily, we note the Agency never marked any box indicating 

there was a reason “to know;” rather, it only indicated further inquiry was 

required because there is reason “to believe” minor is an Indian child. 

In any event, here there was no reason to know minor was an Indian 

child. Section 224.2, subdivision (d) “specifically delineates when there is 

reason to know a child involved in a proceeding is an Indian child.” (Seiser & 
40

Kumli, on Cal. Juvenile Courts Practice and Procedure, supra, § 2.125(2)(b), 

p. 2-452.)16 None of those criteria are met in this case, nor does father 

contend they are. 

In contrast, subdivision (e) of section 224.2 provides, “If the court, social 

worker, or probation officer has reason to believe that an Indian child is 

involved in a proceeding, but does not have sufficient information to 

determine that there is reason to know that the child is an Indian child, the 

. . . social worker . . . shall make further inquiry regarding the possible Indian 

status of the child, and shall make that inquiry as soon as practicable. 

[¶] (1) There is reason to believe a child involved in a proceeding is an Indian 

child whenever the court, social worker, or probation officer has information 

suggesting that either the parent of the child or the child is a member or may 

be eligible for membership in an Indian tribe. Information suggesting 

membership or eligibility for membership includes, but is not limited to, 

information that indicates, but does not establish, the existence of one or 

more of the grounds for reason to know enumerated in paragraphs (1) to (6), 

inclusive of subdivision (d).” (§ 224.2, subd. (e)(1).)

16 Section 224.2, subdivision (d)(1)–(6) provides, “There is reason to 

know a child involved in a proceeding is an Indian child under any of the 

following circumstances: [¶] (1) A person having an interest in the child . . . 

informs the court that the child is an Indian child. [¶] (2) The residence or 

domicile of the child, the child’s parents, or Indian custodian is on a 

reservation or in an Alaska Native village. [¶] (3) Any participant in the 

proceeding . . . informs the court that it has discovered information indicating 

that the child is an Indian child. [¶] (4) The child who is the subject of the 

proceeding gives the court reason to know that the child is an Indian child. 

[¶] (5) The court is informed that the child is or has been a ward of a tribal 

court. [¶] (6) The court is informed that either parent or the child possess an 

identification card indicating membership or citizenship in an Indian tribe.” 
41

Here, it is clear the Agency had a reason to believe, but did not have 

sufficient information to determine there was a reason to know, minor was an 

Indian child.

Defendant relies on In re N.D. (2020) 46 Cal.App.5th 620, a case he 

claims is “factually identical,” to support his contention that “the juvenile 

court is not authorized to proceed with foster placement of an Indian child 

until ICWA notice has been sent and received.” However, this case was 

decided before the Legislature provided a definition for “reason to believe.” 

(See Seiser & Kumli, on Cal. Juvenile Courts Practice and Procedure, supra, 

§ 2.125(2)(b), p. 2-452 [“Previously there was no definition of reason to 

believe. . . . This was resolved by the passage of Assembly Bill (AB) 2944 

[Stats. 2020, ch. 104],” effective Sept. 18, 2020.].) 

Accordingly, as the initial inquiry only established a reason to believe, 

and not a reason to know, we conclude there was no error in compliance with 

the ICWA requirements.17 

17 In his reply brief, father suggests that “[w]ith no ICWA findings . . . 

and nothing in the oral record, it cannot be assumed that the Agency met its 

duty of further inquiry.” To the extent father challenges the Agency’s duty of 

inquiry, we hold his claim is premature. (J.J. v. Superior Court (2022) 

81 Cal.App.5th 447, 461 [“because the juvenile court made no final ICWA 

ruling at or before the challenged dispositional hearing as to whether ICWA 

applied to the proceedings, mother’s claim is premature”].) “That is, ICWA 

issues are not ripe for review. ‘ “Ripeness” refers to the requirements of a 

current controversy.’ [Citation.] An issue is not ripe for review unless and 

until it is ‘sufficiently concrete to allow judicial resolution even in the absence 

of a precise factual context.’ [Citations.] Because the dependency case is still 

ongoing, any perceived deficiencies with ICWA inquiry and noticing may still 

be resolved during the normal course of ongoing dependency proceedings.” 

(Id. at p. 461, citing In re M.R. (2017) 7 Cal.App.5th 886, 904 [determining 

ICWA claim premature where no final ICWA ruling made at dispositional 

hearing]; see In re S.H. (2022) 82 Cal.App.5th 166, 171 [holding reversal of an 

early dependency order not warranted where parent has shown Agency’s 
42

III. DISPOSITION

The jurisdictional findings and orders as to father, as well as the 

related dispositional orders regarding removal and substance abuse testing 

and treatment, are reversed. The matter is remanded to the juvenile court 

with directions to dismiss the petition as to father.

ongoing inquiry obligations have not yet been satisfied by the time of the 

parent’s appeal].)
43

_________________________

Banke, J.

We concur:

_________________________

Humes, P.J.

_________________________

Margulies, J.

A166150, San Francisco Human Services Agency v. WF
44

Trial Court: Superior Court of San Francisco City and County 

Trial Judge: Hon. Braden C. Woods

Counsel: 

Linda S. Votaw, under appointment by the Court of Appeal, for Defendant 

and Appellant.

David Chiu, City Attorney, Kimiko Burton, Lead Attorney and Elizabeth 

McDonald Muniz, Deputy City Attorney for Plaintiff and Respondent.