Filed 3/2/15 In re Tanner B. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re TANNER B. et al., Persons Coming 

Under the Juvenile Court Law.

 B253597/B258789

 (Los Angeles County

 Super. Ct. No. CK57753)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

KENNETH B.,

Defendant and Appellant.

APPEALS from orders of the Superior Court of Los Angeles County,

Marguerite Downing, Juvenile Court Referee. Reversed. 

John L. Todd, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County 

Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent. 

_____________________________
2

INTRODUCTION

In his first appeal (B253597), Kenneth B. (father) challenges the dependency 

court’s November 6, 2013 order placing his four minor children, Tanner B.,1 Chance B., 

Pamela B., and Garrett B.2 with the Department of Children and Family Services (the 

Department) for suitable placement. Kenneth, the children’s noncustodial parent at the 

time of the November 6, 2013 hearing, argues the court failed to make the requisite

detriment finding under Welfare and Institutions Code section 361.2, subdivision (a)3

before placing his children with the Department. In his second appeal (B258789), 

Kenneth challenges the court’s August 19, 2014 jurisdictional order issued under a 

subsequent dependency petition (§ 342) filed by the Department on May 22, 2014, 

through which his children were adjudged dependents of the court after the court 

sustained the petition’s allegation that his history of amphetamine and methamphetamine

use placed his children at risk of harm. Father argues the jurisdictional order is not 

supported by substantial evidence. We reverse both orders. 

FACTUAL AND PROCEDURAL SUMMARY

1. The Original Dependency Petition (§ 300)

On October 1, 2012, the Department filed a petition alleging that, among other 

things, Brigitte experienced mental and emotional problems, including a major depressive 

disorder for which she failed to take prescribed medications, placing the children at risk 

of physical harm. The petition also alleged that Brigitte left the younger two children 

1 The dependency court recently terminated its jurisdiction as to 18-year-old Tanner 

(who lived with his mother, Brigitte B., throughout the pendency of these proceedings) so 

our discussion regarding Tanner is limited. Likewise, because Brigitte has not appealed, 

our discussion of her is similarly limited to facts relevant to Kenneth’s appeals.

2 Sometimes collectively referred to as the children.

3 All statutory references to this code.
3

(Pamela and Garrett) home alone without adult supervision, placing them at risk of 

physical harm.4 (§ 300, subd. (b).) 

Kenneth B., who was not mentioned in the petition’s allegations, appeared at the 

detention hearing that same day. He was found to be the presumed father of the children 

and was appointed counsel. The dependency court ordered the children to remain 

released to their parents, with Brigitte’s residence as their primary residence; the 

Department was ordered to provide family preservation services. 

2. The Family’s Prior Child Welfare History

In its report filed in advance of the jurisdiction and disposition hearing, the 

Department recounted the family’s prior child welfare history.5 

In 2000, in Orange County, a dependency petition and supplemental petition filed 

on behalf of Tanner and Chance were sustained, based on findings Brigitte and Kenneth 

had a history of engaging in domestic violence in the children’s presence and both had 

unresolved substance abuse histories. Kenneth had been arrested during a drug raid (in 

Tanner’s presence, causing him undue emotional distress); Brigitte had a positive drug 

test and had failed to test; Brigitte had struck both Tanner and Chance, and Chance had 

been left home alone. Initially, the dependency court ordered family maintenance 

services, but after Brigitte had a positive drug test and failed to test in violation of the 

4 There were additional allegations pursuant to subdivisions (a), (b) and (j) of 

Welfare and Institutions Code section 300 that Brigitte had allowed Tanner to excessively 

discipline his younger siblings and had a 12-year history of drug use, with four 

convictions for use of or being under the influence of a controlled substance and one 

conviction for possession of a controlled substance, such that Tanner and Chance had 

been dependents in the past due to her substance abuse. However, these allegations were 

dismissed at the January 3, 2013 hearing. 

5 There were other referrals in addition to those described in the text, but we do not 

include them here as they were classified as unfounded. 
4

court’s orders, the children were detained in December 2000. The dependency court’s 

jurisdiction (Orange County) was terminated two years later (in December 2002). 

Then, in Los Angeles County in January 2005, Brigitte and Kenneth were arrested 

for child neglect, and the children (Tanner, Chance, and Pamela) were taken into 

protective custody. The Department filed a petition alleging that, on a number of 

occasions, Brigitte and Kenneth left Tanner and Chance home alone for extended periods 

of time without adult supervision endangering their safety and placing Pamela at risk; this 

petition was sustained as well. (§ 300, subd. (b), (j).) The children were initially 

detained in foster care but were apparently returned to their parents’ custody the next 

month, with family maintenance services ordered on the condition that Brigitte and 

Kenneth would remain living in Kenneth’s parents’ home. A few months later, the 

Department filed an amended petition alleging Brigitte had taken the children from the 

paternal grandparents’ home in violation of the court’s order, failed to keep the 

Department apprised of their whereabouts for three days, and left the children alone at 

night without adult supervision. Thereafter, Brigitte complied with court-ordered 

programs addressing her parenting, domestic violence, and addiction history. The 

children were ordered placed back in Brigitte’s home in January 2006, and the 

dependency court terminated its jurisdiction in January 2007. 

Two and a half years later, in August 2009, the Department received a referral 

alleging general neglect and caretaker absence/incapacity as to both Brigitte and Kenneth 

and physical abuse against the children’s maternal grandmother. All allegations were 

found to be substantiated, and the children were detained. Brigitte and Kenneth were 

living separately at the time, and neither could be located; the maternal grandmother was 

reportedly caring for the children. A related petition was reportedly dismissed in 
5

December, and the children were released to their parents with no specific custody orders 

in place. The Department closed its case in January 2010.6 

3. The Jurisdiction and Disposition Hearing on the Original Dependency Petition 

In its November 7, 2012 jurisdiction and disposition report, the Department 

reported that the dependency investigator was unable to interview Kenneth “as he failed 

to avail himself to the Department to be interviewed regarding the allegations.” 

At the jurisdiction and disposition hearing on January 3, 2013, Kenneth appeared 

and waived reading of the petition as he was noted to be a “non[-]offending” parent. The 

dependency court sustained the allegations that Brigitte had left the children home alone 

without supervision and that she had unresolved mental health issues.7 The court then 

found the children were dependents within the meaning of subdivision (b) of section 300 

and ordered the children to remain placed with Brigitte under the Department’s 

supervision. The dependency court ordered the Department to provide family 

maintenance services to both Brigitte and Kenneth. The matter was continued to July 3, 

2013 for a review hearing. (§ 364.) 

4. The First Subsequent Dependency Petition (§ 342)

On June 14, 2013, the children were removed from Brigitte’s custody and placed 

with Kenneth. On June 26, 2013, the Department filed a petition pursuant to section 342, 

adding allegations that an unrelated 13-year-old boy had unlimited access to the children 

and had molested Pamela as Brigitte left her and Garrett home alone without supervision

for extended periods of time. The subsequent petition further alleged, Pamela and Garrett 

6 In addition to the foregoing child welfare history, the Department reported Brigitte 

had six prior drug-related convictions (five for “use/under influence of controlled 

substance” (September 1993; April, June, July and September 1994) and one for 

“possession of control[led] substance” (February 2000)). 

7 Brigitte stipulated to the factual basis for the petition’s allegations.
6

had been dependents in Orange County because Brigitte had left them home alone 

unsupervised in the past. 

According to the Department’s detention report dated June 25, 2013, when the 

social worker asked Kenneth if he would be able to have custody over all of the children, 

he said “he could take Chance and Pamela only.” When the social worker (Donna 

Jackson) asked why he could not take the other two children, he said, “Garrett is very 

active and [Kenneth’s] parent[s] are up in age and would not be able to tolerate 

[Garrett’s] active behavior. As for Tanner[,] he is the oldest and could remain with 

[Brigitte]. Kenneth . . . stated that he lives with his parent[s] and they do not have the 

space for all of the children. But he is willing to let his niece Kendra B[.] have custody 

over all four children to keep them together.” 

In an “Addendum Report” also dated June 25, 2013, another social worker said 

she had spoken with Kenneth that day and confirmed he would appear at the detention 

hearing the following day. In the addendum report, the Department recommended that 

Kenneth “[p]articipate in [four] consecutive random drug and alcohol tests, if any 

positive tests, [Kenneth] to complete a substance abuse rehabilitation program with 

random testing” and “[f]urther investigation as to [Brigitte’s] and [Kenneth’s] current 

drug use and the physical abuse of the children by sibling Tanner and [Brigitte’s] failure 

to protect and the petition amended if needed[.]” 

In a last minute information report filed on June 26, 2013, the Department 

informed the dependency court that Kenneth had “consented to have all four [c]hildren 

detained from his custody because he is unable to care for his [c]hildren. At this time 

[they] are placed with [p]aternal [a]unt, Kendra B[.]”8 

On June 26, 2013, with Kenneth in attendance, the dependency court ordered 

Chance, Pamela and Garrett detained and placed with their paternal aunt pending the next 

8 Kendra B. is described as both Kenneth’s niece and the children’s paternal aunt in 

the record. 
7

hearing, with the further order Kenneth “may reside with paternal aunt.” The Department 

was given discretion to place the minors with “any appropriate relative or extended 

family member.” The Department was to provide Brigitte and Kenneth with family 

reunification services. Notwithstanding the Department’s recommendations in its June 

26, 2013 addendum report, there was no mention of drug testing or any other drug-related 

investigation as to Kenneth in the dependency court’s orders of that date. Tanner, who 

was 17 at the time of the hearing, was released to Brigitte. The dependency court 

continued the matter to July 23, 2013 for “receipt of report” and to August 29, 2013 for 

adjudication of the contested section 342 petition. 

In its status review report for the July 3, 2013 hearing, the Department reported the 

three younger children were living with Kendra, their paternal aunt. The Department 

recounted the dependency court’s orders of January 3, 3013, but no subsequent orders 

were identified. Further, there was no mention of any investigation into Kenneth’s 

current drug use or any request that he submit to drug testing. In detailing the 

Department’s “contacts” with the family, there was no mention of Kenneth. The hearing 

was continued to July 23, 2013 “to follow the hearing regarding the [subsequent] petition 

[pursuant to section] 342.”9 

According to the Department’s jurisdiction and disposition report for the 

August 29, 2013 hearing on the subsequent petition, Brigitte told the social worker she 

felt the three younger children’s placement with their paternal aunt “will help [them] 

emotionally. They will be able to interact with [Kenneth] who lives close. My children 

are happy . . . .” When Kenneth was interviewed on June 7, 2013, he said he had “no 

problems with my niece[] Kendra B[.] taking care of my children. She is a very 

responsible young lady and I entrust that she will do whatever is needed for my children 

9 There is no reporter’s transcript for June 26, July 3 or July 23, 2013. 
8

and I will help as much as possible.”10 The children were happy living with their aunt. 

There was no mention of any investigation into whether Kenneth was currently using

drugs or any request that he submit to a drug test.

On August 29, 2013, the dependency court noted Kenneth had filed a J.V. 140

form indicating that he had a new address. The court also noted that the Department 

intended to assess Kenneth’s home for potential placement. The court ordered the 

Department to provide a supplemental report regarding placement with Kenneth; the 

court continued the matter to September 11, 2013 for a progress hearing, and it set an 

adjudication hearing on November 6, 2013. Both parents were ordered to appear at the 

adjudication hearing without further notice. 

At the September 11, 2013 progress hearing, the Department informed the court 

that on June 7, 2013, Kenneth had said he lived with his parents, who did not have the 

space for all four children. According to the social worker, Kenneth was “currently” 

living with his parents, and on September 6, 2013, she asked them about Kenneth having 

Chance, Pamela and Garrett in their home. Kenneth’s parents reportedly stated that they 

did not have the space to accommodate their grandchildren, and that they were unable to 

assist Kenneth with caring for the children because of their age and health problems. 

Kenneth’s parents did state, however, that they did not have any problem allowing the 

children to spend the night at their home.

The social worker also informed the court that she had received an anonymous call 

informing her that Kenneth was using drugs. According to the social worker, she then 

asked Kenneth to submit to a drug test on June 18, 2013, at which he failed to appear. On 

September 6, 2013, the social worker again asked Kenneth to submit to a drug test, but he 

stated “‘I’m the non-offending parent and I did not need to drug test and I will talk to my 

10 The Department noted Kenneth was receiving Social Security benefits. 
9

attorney[.]’” The social worker stated that the Department was concerned that Kenneth 

could drive with the children in his car while he was under the influence of drugs. The 

social worker recommended that, despite his non-offending status, Kenneth submit to an 

on-demand drug test. The social worker also recommended that if Kenneth refused to 

submit to a drug test, the court not allow the children to stay with Kenneth overnight, 

require Kenneth’s visits with the children be monitored, and preclude Kenneth from 

transporting the children. 

At the progress hearing, Chance, Pamela, and Garrett were ordered to remain 

placed with their paternal aunt. After stating “all prior orders remain in full force and 

effect,” the dependency court said: “I’m advising Mr. B[.], through his attorney, that 

although he is a non[-]offending party, he has unmonitored visitation, and he is subject to 

court orders. [¶] The Department’s request is that he randomly drug test, and if he 

refuses to randomly drug test or if his test results are missed or dirty, his visitation, that is 

currently unmonitored, is going to revert back to monitored. [¶] The Department has 

discretion, once he complies, to liberalize his visits.”11 

5. The Jurisdiction and Disposition Hearing on the First Subsequent Petition

At the November 6, 2013 adjudication hearing, the Department informed the 

dependency court that Kenneth had yet to submit to any on-demand drug tests. 

According to the Department, the assigned social worker had made numerous attempts to 

contact Kenneth about scheduling a drug test, but Kenneth had not responded to any of 

the social worker’s messages. 

Kenneth did not appear at the November 6, 2013 adjudication hearing. Kenneth’s 

attorney informed the court that she had contacted Kenneth before the hearing and would 

be requesting a continuance of the disposition hearing on his behalf. The dependency 

court declined counsel’s request for a continuance, noting that the disposition hearing had 

11 According to the record, Kenneth did not attend the progress hearing. 
10

already been continued twice, once on August 29, 2013 and again on September 11, 

2013. 

The court received the Department’s six reports into evidence. Kenneth’s counsel 

presented no evidence. When invited to present argument, Kenneth’s counsel responded: 

“No argument with regard to the adjudication, Your Honor. My client is non-offending.” 

After hearing argument from the attorneys representing Brigitte, the Department, and the 

children, the dependency court sustained the following allegations: (1) that on prior 

occasions, Brigitte had left Pamela and Garrett home alone without adult supervision for 

extended periods of time; (2) Chance and Pamela were prior dependents (in Orange 

County) for the same reason; and (3) Brigitte’s failure to provide supervision placed 

Chance, Pamela, and Garrett at risk. (§ 300, subds. (b) & (j).) The court dismissed the 

remaining allegations. The court then found the previous disposition had not been 

effective in protecting the children. When the court asked for the case plan, counsel for 

the Department said she thought “dispo[sition] was going over” so she had not prepared 

one. 

Kenneth’s counsel then requested the opportunity to address the issue of suitable 

placement. She requested that the children be released to Kenneth because he was a nonoffending, noncustodial parent under the original and subsequent petitions. She stated 

that Kenneth would be able to have some of the children live within him in his parents’

home. Kenneth’s counsel argued that the Department had failed to produce any evidence 

demonstrating that Kenneth could not care for his children. She argued that the 

Department’s report of the anonymous call alleging that Kenneth had been using drugs 

was unsubstantiated, and highlighted the fact that the Department had not filed a petition 

against Kenneth due to his alleged drug use. Kenneth’s counsel also addressed Kenneth’s 

failure to submit to a drug test, arguing that Kenneth did not believe he was required to 

submit to any additional testing in the children’s current case because he had already 

tested around the time the original petition was filed. 
11

Chance’s counsel joined with Kenneth’s counsel’s argument. Counsel for the 

Department argued: “I’m not inclined to release these children to [Kenneth]. One reason 

is although he’s non[-]offending, he was ordered to randomly drug test and I don’t have 

any information that he is refusing to test and there was an anonymous call that he might 

be using. But the test was his opportunity to show me that the anonymous call was not 

true. I have told him and the Department has told him, he still refuses to test.” Pamela’s 

and Garrett’s counsel joined with the Department. 

When Kenneth’s counsel asked to respond, the court interjected: “I gave you the 

opportunity to be heard, [counsel]. And as [Pamela’s] counsel indicated, these children 

were released to him. We tried to do a [prerelease investigation]. He indicated he 

couldn’t keep the children and then we had the issue with respect to drug use. He 

currently has monitored visits. So a home of parent father order is not appropriate.” 

Kenneth’s counsel then said: “I would just object. I don’t believe the Department 

has established [its] burden.” 

When the dependency court interrupted her again, she responded: “I am making a 

record.” 

The dependency court continued: “[Y]ou were asked to be heard. I said[] No. No 

is very clear. [Y]ou had your opportunity to be heard.” 

The court then found “by clear and convincing evidence pursuant to [section 361, 

subdivision (c)], there is a substantial danger if these children were returned to their [sic] 

physical health and emotional well[-]being and that there are no reasonable means by 

which they may be—these children may be protected without removing them from the 

parents’ physical custody. [¶] They are hereby removed from [Brigitte], the parent with 

whom they resided at the time this petition was filed. Their care, custody, control and 

conduct is placed under the supervision of the Department . . . for suitable placement.” 

The dependency court granted the Department’s request for suitable placement of 

Chance, Pamela, and Garrett. 
12

Kenneth’s counsel inquired: “If the court is ordering that [Kenneth] test, which I 

understand the court is, [I request] there at least be a limitation as to the number of tests 

that he is required to provide. I would ask [that] the Department have discretion to 

liberalize his visits back to unmonitored once they have established that the tests are 

clean.” 

The dependency court responded: “He didn’t comply.” 

Kenneth’s counsel then said: “I would like to point out to the court he was not here 

for September 11th. I do believe . . . in fact [it] appears [his counsel at that hearing] sent 

him a letter. He indicated to me when I spoke without him he didn’t get the letter. 

Didn’t read the letter. [¶] I’m not sure he was present in court when the court made the 

order.” 

The court: “[H]is attorney was. I don’t know why he was not here, that’s between 

him and his attorney. You may know more than I do. He was ordered back for 

subsequent days. . . . I cannot tell you why he’s not here now. The court is going to 

make a case plan.” 

The dependency court then ordered Brigitte to provide five random or on-demand 

drug tests, and to complete a drug treatment program if any tests were missed or dirty. 

Based on Brigitte’s non-compliance with most of the court’s prior orders (including the 

order to drug test) and the sustained petition, the Department argued the children would 

be at risk with unmonitored visitation with their mother. The dependency court 

responded that although Brigitte had skipped some of her tests and therefore failed to do 

six consecutive drug tests as ordered, “I don’t really see drugs as an issue in this case. [¶] 

[A]t least I don’t have any evidence [she left the children home—] because she was doing 

drugs . . . . [¶] . . . [¶] I’m going to allow her to keep unmonitored day visits, over the 

Department’s objection. 

“I think the children at this stage are old enough so that if anything inappropriate 

happens, that the . . . children are able to communicate.” 
13

When Kenneth’s counsel asked if the court would consider allowing Kenneth to 

provide a set number of tests, the court responded: “No. My problem with Mr. B[.] is he 

won’t comply for various reasons. I’m wondering whether or not he is using drugs, and 

he just won’t get on the ban[d]wagon.” 

Kenneth’s counsel responded: “The court just made the order September 11th. [¶] 

My client advised me he was not aware of it. He tested previously for the Department.”

The dependency court again rejected the request to order a set number of tests. The court 

ordered Kenneth to submit to random and on demand consecutive drug testing and, if any 

tests were missed or dirty, to complete a drug rehabilitation program with random testing. 

The court also ordered monitored visitation for Kenneth two times a week for three 

hours, at a minimum, with a monitor approved by the Department. The court added that 

the test results were to be part of the progress report prepared for January 8, 2014. 

Kenneth filed a notice of appeal from the order of November 6, 2013 

(B253597).12 

6. Kenneth’s Positive Drug Test

On January 8, 2014, the Department informed the dependency court that Kenneth 

had submitted to an on-demand drug test which was positive for amphetamine and 

methamphetamine on December 10, 2013. 

12 In connection with this first appeal, we requested and received minute orders 

subsequent to the November 6, 2013 hearing, and then supplemental letter briefs from the 

parties to address what effect, if any, proceedings occurring on August 19, 2014 had on 

Kenneth’s appeal. Because Kenneth filed notice of a second appeal and that appeal had 

the potential to render moot his first appeal, we vacated submission in the first appeal 

(B253597) and deferred our ruling in that matter in order to consider the merits of the 

more recent appeal (B258789) and then proceed accordingly. (See In re A.B. (2014) 225 

Cal.App.4th 1358, 1364 [“so long as the jurisdictional finding under the subsequent 

petition is supported by substantial evidence, reversal of the jurisdictional finding under 

the original petition would be futile”].) 
14

On February 20, 2014, the Department said it had learned from Kendra B. that 

Kenneth had been arrested on January 13, 2014 for a felony and had a court date set for 

March 5.13 

According to the Department’s status report, Kenneth told the social worker he 

had been arrested for contempt of court on January 13, 2014, and he had no further court 

dates. According to the inmate information sheet attached as an exhibit to the report, 

Kenneth had had one court date on March 5, 2014, had been released on March 6, 2014,

and had another court date set for September 4, 2014.14 

Chance, Pamela, and Garrett continued to live with their paternal aunt Kendra 

while Kenneth continued to live with his parents nearby; his parents monitored his visits 

with the children, which were held twice a week for three hours. 

On May 20, 2014, the Department informed the court that it would be filing a 

section 342 petition as to Kenneth, due to his positive drug test in January 2014 and his 

failure to comply with court-ordered drug testing. 

7. The Second Subsequent Dependency Petition (§ 342)

On May 22, 2014, the Department filed a subsequent petition alleging Kenneth “is 

an abuser of illicit drugs including amphetamine and methamphetamine, which render 

[him] incapable of providing regular care and supervision of [Chance, Pamela, and 

Garrett].” The Department cited Kenneth’s positive drug test on December 10, 2013, and 

said he had failed to comply with court orders for random drug testing. The Department 

alleged Kenneth’s illicit drug abuse and noncompliance with court orders endangered the 

children’s health and safety and placed them at risk of physical harm. (§§ 300, subd. (b) 

& 342.) 

13 The offense is not identified in the record.

14 We find no further mention of criminal proceedings in the record.
15

The Department reported Kenneth’s visitation was monitored because of his 

positive drug test on December 10, 2013, and said he had agreed on April 6, 2014, to 

submit to an on-demand test but had failed to do so.15 The report concluded that 

Kenneth “appears to have a substance abuse problem.” 

On June 25, 2014, the dependency court continued the hearing to July 14, 2014,

ordering the Department to interview Kenneth and to file a supplemental report by July 

10, 2014. 

In a last minute information report dated July 10, 2014, the social worker indicated 

she had spoken with Kenneth the day before regarding the allegations in the recently filed 

petition, and he said he did not have a history of abusing drugs; he had been “clean” since 

his release from jail; he had not known he was supposed to be drug testing; he had had a 

stroke four years earlier and did not “remember things that well”; and if he tested positive 

on December 10, 2013, it could have been because of an antihistamine inhalant he was 

taking for congestion, stating “[t]hat’s the only thing it could have been.” Kenneth said 

he had been in a drug program for the past three months and provided the program name, 

address, and phone number as well as the name of his counselor, indicating he would ask 

her to prepare a progress letter for him. He said that he attended the program for 90 

minutes each week for group counseling, and that he participated in individual counseling

afterward. He said that he had almost completed the 12-session program and was willing 

to undergo drug testing through the Department. 

On July 14, 2014, the hearing was continued again for “further report [to be filed 

by August 15, 2014] and contested hearing.” 

15 Although the record contains documentation of Brigitte’s missed tests, we find no 

such documentation regarding Kenneth.
16

According to the report dated August 19, 2014, the social worker had contacted

Kenneth by telephone on April 4 and July 9, 2014, and had met with him in person on 

April 6, May 8, and June 19, 2014. The report stated that Kenneth had informed the 

Department that he would like to have his children in his custody. The report also 

contained the same information included in the July 10, 2014 last minute information

report, including Kenneth’s statement that he was willing to submit to drug testing 

through the Department (but without mention of any Department-requested or 

Department-scheduled testing date(s) or result(s)). The report also stated that, on August 

15, 2014, the social worker had contacted Kenneth’s counselor, but she was unable to 

discuss Kenneth’s progress without a consent to release of information. 

8. The Jurisdiction and Disposition Hearing on the Second Subsequent Petition

At the August 19, 2014 jurisdiction and disposition hearing, the Department 

submitted on its reports and presented no live witnesses. The dependency court sustained 

the petition as to Kenneth, noting he “had a positive test[,] and he has refused to test for a 

variety of reasons, in addition to the fact he was incarcerated.” “His position alternately 

had been he was nonoffending so he shouldn’t have to test; or, in the alternative, he’s 

happy to test, but, for a variety of reasons, he never makes it to a test; or that he’s not 

using and the test was just a mistake and he was probably taking some prescribed 

medication. But he’s never shown proof of that medication [or of completion of his drug 

program].” By clear and convincing evidence, the court concluded the children’s return 

to their father would create a substantial risk of harm and ordered them removed them 

Kenneth’s custody, to remain placed with their paternal aunt under the Department’s 

supervision. The court ordered reunification services for Kenneth, including individual 

counseling and participation in a “full-on” drug treatment program with random drug 

testing.16 The court allowed the Department discretion to liberalize Kenneth’s monitored 

16 The court noted that it would recognize any drug-treatment programs Kenneth had 

enrolled in and completed since the time the section 342 petition was filed. 
17

visitation. The matter was continued to October 23, 2014 for a contested 12-month 

review hearing on the original section 300 petition.

17 (§ 366.21, subd. (f).)

Kenneth filed a notice of appeal from the court’s order of August 19, 2014 

(B258789).

DISCUSSION

I. Kenneth’s Second Appeal (B258789)

In appealing from the dependency court’s August 19, 2014 order sustaining the 

subsequent petition alleging Kenneth’s substance abuse placed his children at substantial 

risk of physical harm (§ 300, subd. (b)), Kenneth argues the Department failed to 

demonstrate the required nexus between his conduct and a current risk of substantial 

harm to the children. (In re David M. (2005) 134 Cal.App.4th 822, 829 (David M.).) 

Citing In re Destiny S. (2012) 210 Cal.App.4th 999, 1003, he argues the use of hard 

drugs, standing alone, is insufficient to support jurisdiction. 

Citing our decision in In re Christopher R. (2014) 225 Cal.App.4th 1210

(Christopher R.), the Department argues the record supports the inference Kenneth’s drug 

use was not a “one-time event” and says “it is clear that [Kenneth] has a substance abuse 

problem, or rather a substance use disorder.” Although the Department acknowledges 

that the record contains no evidence demonstrating how much time Kenneth spends 

 

17 We requested and have received minute orders reflecting the proceedings in this 

matter following the August 19, 2014 hearing. Pursuant to Evidence Code sections 452, 

subdivision (d), and 459, subdivision (a), we take judicial notice of the minute orders 

dated October 23 and December 15, 2014, and January 20, 2015. (In re C.C. (2009) 172 

Cal.App.4th 1481, 1487, fn. 3.) At the review hearing on October 23 (§ 366.21, subd. 

(f)), the dependency court noted Kenneth was in compliance with his case plan but found 

continued jurisdiction necessary; the matter was continued to December 15 for a hearing 

pursuant to section 366.22. On December 15, the matter was continued to January 20, 

2015, and then to March 5 for the contested hearing.
18

getting and using methamphetamine, it asserts that “it is very clear that [Kenneth] places 

his need for the drug over his responsibility to his children.” 

1. The Governing Statutes and Standard of Review

As relevant, section 342 specifies as follows: “In any case in which a minor has 

been found to be a person described by Section 300 and the petitioner alleges new facts 

or circumstances, other than those under which the original petition was sustained, 

sufficient to state that the minor is a person described in Section 300, the petitioner shall 

file a subsequent petition. . . . [¶] All procedures and hearings required for an original 

petition are applicable to a subsequent petition filed under this section.”

“Section 300, subdivision (b), allows a child to be adjudged a dependent of the 

juvenile court when ‘[t]he child has suffered, or there is a substantial risk that the child 

will suffer, serious physical harm or illness, as a result of the failure or inability of his or 

her parent or guardian to adequately supervise or protect the child . . . 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.’” (Christopher 

R., supra, 225 Cal.App.4th at p. 1215.) “In short, there are three elements for jurisdiction 

under section 300, subdivision (b), namely, (1) neglectful conduct or substance abuse by 

a parent in one of the specified forms; (2) causation; and (3) serious physical harm to the 

child, or a substantial risk of such harm. [Citations.]” (In re Rebecca C. (2014) 228 

Cal.App.4th 720, 724-725 (Rebecca C.).) In Kenneth’s case, the issue is whether his use 

of amphetamine and methamphetamine has caused harm or poses a substantial risk of 

harm to his children.

“We review the juvenile court's jurisdictional findings for sufficiency of the 

evidence. [Citations.] We review the record to determine whether there is any 

substantial evidence to support the juvenile court's conclusions, and we resolve all 

conflicts and make all reasonable inferences from the evidence to uphold the court's 

orders, if possible. [Citations.] ‘However, substantial evidence is not synonymous with 
19

any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not 

be affirmed on appeal. [Citation.] Furthermore, “[w]hile substantial evidence may 

consist of inferences, such inferences must be ‘a product of logic and reason’ and ‘must 

rest on the evidence’ [citation]; inferences that are the result of mere speculation or 

conjecture cannot support a finding [citations].” [Citation.] “The ultimate test is whether 

it is reasonable for a trier of fact to make the ruling in question in light of the whole 

record.” [Citation.]’ [Citation.]” (David M., supra, 134 Cal.App.4th at p. 828.)

2. The August 19, 2014 Jurisdictional Findings and Dispositional Order Are Not 

Supported by Substantial Evidence

In Christopher R., supra, 225 Cal.App.4th 1215, we considered the court’s 

analysis in Drake M., supra, 211 Cal.App.4th 754. As the Drake M. court had explained, 

“when the Legislature rewrote section 300, subdivision (b), in 1987 to include as a basis 

for dependency jurisdiction a parent’s inability to provide regular care for his or her child 

due to substance abuse, it included no definition of the term ‘substance abuse’ in the 

statute. (Drake M., at p. 765.) Similarly, the legislative history revealed no specific 

discussion of how the term should be defined in practice. As a result, ‘d]ependency cases 

have varied widely in the kinds of parental actions labeled “substance abuse.”’ (Ibid.)” 

(Christopher R., supra, 225 Cal.App.4th at p. 1217.) 

In an effort to avoid inconsistencies, the Drake M. court had proposed a definition 

of substance abuse based on the American Psychiatric Association’s Diagnostic and 

Statistical Manual of Mental Disorders (4th rev. ed. 2000) (DSM-IV-TR), and we 

recognized that formulation as a “generally useful and workable definition of substance 

abuse for purposes of section 300, subdivision (b).” (Christopher R., supra, 225 

Cal.App.4th at p. 1218.) We cautioned, however, that the DSM-IV-TR formulation was 

“not a comprehensive, exclusive definition mandated by either the Legislature or the 

Supreme Court,” and we rejected the mother’s argument in Christopher R. that only 

someone who has been diagnosed by a medical professional or who falls within one of 
20

the specific DSM-IV-TR categories can be found to be a current substance abuser.” 

(Ibid.) 

Moreover, we noted the DSM-IV-TR’s definition of “substance abuse” had 

already been replaced in the Diagnostic and Statistical Manual of Mental Disorders, Fifth 

Edition (DSM-5), published in May 2013 (after the decision in Drake M.), by a more 

broadly defined classification of “substances abuse disorders,” combining substance 

abuse and dependence. (Christopher R., supra, 225 Cal.App.4th at p. 1218, fn. 6.) 

“DSM-5 identifies 11 relevant criteria, including cravings and urges to use the substance; 

spending a lot of time getting, using, or recovering from use of the substance; giving up 

important social, occupational or recreational activities because of substance use; and not 

managing to do what one should at work, home or school because of substance use. The 

presence of two or three of the 11 specified criteria indicates a mild substance use 

disorder; four or five indicate a moderate substance use disorder; and six or more a severe 

substance use disorder. (American Psychiatric Association, Highlights of Changes from 

DSM-IV-TR to DSM-5 <http://www.dsm5.org/Documents/changes%20from%20dsm-ivtr%20to%20dsm-5.pdf> [as of Apr. 14, 2014].)” (Christopher R., supra, 225 

Cal.App.4th at p. 1218, fn. 6.) 

According to the Department, the petition was properly sustained because Kenneth 

had a positive drug test on December 10, 2013, and stated he had been “clean” since his 

release from jail which occurred on March 6, 2014. If true, the Department says, at the 

time of the hearing on the section 342 petition, he had only been drug free for five 

months; he said he had completed a 12-week program he attended once a week for 90 

minutes at a time, but “[i]t is the nature of addiction that one must be clean for much 

longer to show real reform.”18

18 Unlike the determination to be made at a jurisdictional hearing, the cases the 

Department cites involve section 388 petitions, where a parent must demonstrate (1) a 

genuine change of circumstances or new evidence and (2) that revoking the previous 

order would be in the best interests of the children. (In re Marcelo B. (2012) 209 
21

Furthermore, the Department asserts—without citation to any supporting evidence 

in the record—instead of using his SSI to obtain a place to live where he could care for 

his children (as all three could not live with him at his parents’ home), he used it to buy 

methamphetamine, knowing all along that his continued drug use could lead to 

termination of his parental rights.19 

Notably, in its respondent’s brief in connection with Kenneth’s first appeal, the 

Department expressly conceded, based on the record through November 2013 (before 

Kenneth’s positive drug test in December 2013): “Granted, the evidence of [Kenneth]’s 

drug use was nominal and would not have supported jurisdiction or an order removing 

the children from father had he been a custodial parent.” Thereafter, Kenneth had one 

positive drug test on December 10, 2013. By February 20, 2014, the Department had 

learned Kenneth had been arrested for a felony on January 13, 2014 and as of April 2014, 

knew he had been released from jail on March 6, 2014. There is no indication in the 

 

Cal.App.4th 635, 642 [father had received extensive treatment for alcoholism and had 

achieved a period of sobriety but relapsed four months after reunifying with his son; 

although he reentered treatment after losing custody, he continued to deny negative 

impact his alcoholism had on his son]; In re C.J. W. (2007) 157 Cal.App.4th 1075, 1081 

[both parents had extensive histories of drug use and failing to reunify with their children, 

and their “recent efforts at rehabilitation were only three months old at the time of the 

section 366.26 hearing”]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9. 

[considering a “parent who loses custody of a child because of the consumption of illegal 

drugs[,]” the court stated: “It is the nature of addiction that one must be ‘clean’ for a 

much longer period than 120 days to show real reform”].) 

According to DSM-5, “Early remission from a DSM-5 substance use disorder is 

defined as at least 3 but less than 12 months without substance use disorder criteria 

(except craving), and sustained remission is defined as at least 12 months without criteria 

(except craving).” (American Psychiatric Association, Highlights of Changes from 

DSM-IV-TR to DSM-5 <http://www.dsm5.org/Documents/changes%20from%20dsm-ivtr%20to%20dsm-5.pdf> [as of Feb. 3, 2015].) 

19 According to the record, because he had had a stroke four years earlier, Kenneth 

was on disability and received about $600 a month. 
22

record that Kenneth’s arrest involved drugs. As stated in the Department’s later report, 

he told the social worker he had been “clean” since his release from jail in early March, 

2014. 

As the Destiny S. court stated, “It is undisputed that a parent’s use of marijuana, 

‘without more,’ does not bring a minor within the jurisdiction of the dependency court.” 

(Destiny S., at p. 1003, original italics.) “The same is true with respect to the use of hard 

drugs. (In re Rocco M. (1991) 1 Cal.App.4th 814, 817, 825–826, 2 Cal. Rptr. 2d 429 

[(Rocco M.)] [mother’s cocaine use standing alone was not sufficient basis or jurisdiction 

under § 300, subd. (b)]; see In re Jeannette S. (1979) 94 Cal.App.3d 52, 59, fn. 2 [156 

Cal. Rptr. 262] [father’s alcoholism alone did not support jurisdiction under § 300, subd. 

(b)].)” (Destiny S., at p. 1003; see also Drake M., supra, 211 ca 4 at p. 766 [“Although a 

finding of substance abuse is necessary under . . . section 300, subdivision (b), it does not 

always follow that such a finding means that the parent or guardian at issue is unable to 

provide regular care resulting in a substantial risk of harm to the child”].)

To support a jurisdictional finding under section 300, subdivision (b), the 

Department had to present “evidence of a specific, nonspeculative and substantial risk to 

[Chance, Pamela, and Garrett] of serious physical harm” stemming from Kenneth’s use 

of amphetamine and methamphetamine. (Destiny S., supra, 210 Cal.App.4th at p. 1003, 

citing David M., supra, 134 Cal.App.4th at p. 830 [jurisdiction under section 300, 

subdivision (b), reversed where mother had continuing substance abuse problem but there 

was no evidence of a specific, defined risk of harm from her substance abuse].) Here, the 

Department produced no evidence demonstrating that Kenneth’s drug use caused any 

harm or posed any substantial risk of harm to his children.

At the time of the August 2014 jurisdictional hearing on the section 342 petition in 

this case, whether Kenneth had a substance abuse problem was relevant only to the extent 

it affected his ability to care for his children. (In re B.T. (2011) 193 Cal.App.4th 685, 

693; In re James R., Jr. (2009) 176 Cal.App.4th 129, 137 (James R.) [“The mere 
23

possibility of alcohol abuse, coupled with the absence of causation, is insufficient to 

support a finding the minors are at risk of harm within the meaning of section 300, 

subdivision (b)”].) The record contains no evidence demonstrating that Kenneth’s 

conduct had caused actual harm to Chance (then 15), Pamela (10) or Garrett (9), nor does 

it contain evidence demonstrating that his conduct created a substantial risk of serious 

harm to these children. (James R., supra, 176 Cal.App.4th at p. 136; In re Ricardo L. 

(2003) 109 Cal.App.4th 552, 567 [other than parent’s arrests for being under the 

influence of methamphetamine six and seven years prior to hearing, there was no 

evidence in record of parent’s substance abuse history or history of neglect; “[w]ithout 

the history of abuse and neglect, it is nearly impossible to determine whether [the child] 

is at risk of suffering from the same abuse and neglect”] .) To the contrary, the children 

were happy and doing well living with their paternal aunt and spending time with 

Kenneth who lived nearby. (See Rocco M., supra, 1 Cal.App.4th 814, 824 [“the fact that 

a child has been left with other caretakers will not warrant a finding of dependency if the 

child receives good care”].) 

These children were not of “such tender years that the absence of adequate 

supervision and care poses an inherent risk to their physical health and safety.” (Rocco 

M., supra, 1 Cal.App.4th at p. 824.) Moreover, there is no indication the children were

ever around Kenneth when he was under the influence of drugs; that Kenneth ever drove 

the children while under the influence of any drugs; that the children ever had access to 

Kenneth’s drugs; or that Kenneth otherwise placed the children at a current risk of harm

because of his drug use. 

Because there is no evidence that Kenneth’s drug use or abuse placed his children 

at current risk of serious physical harm as required for dependency jurisdiction pursuant 

to section 300, subdivision (b) (David M., supra, 134 Cal.App.4th at p. 831), the order 

sustaining the petition is not supported by substantial evidence. (See Rebecca C., supra, 

228 Cal.App.4th at pp.727-728.) 
24

Given our conclusion that the jurisdictional findings must be reversed, the 

dispositional orders must also be reversed.20 (James R., supra, 176 Cal.App.4th at p. 

137; David M., supra, 134 Cal.App.4th at p. 833.) We now turn to Kenneth’s first 

appeal.

II. Kenneth’s First Appeal (B253597)

Kenneth argues reversal of the November 2013 order is also required because the 

dependency court did not make a finding that placing the children in his custody would 

be detrimental to their safety, protection or physical or emotional well-being as required 

by section 361.2. According to the Department, Kenneth forfeited his right to challenge 

the dispositional order for failure to apply section 361.2, the dependency court did not err 

as it made appropriate findings required by the statute, and substantial evidence 

supported the dependency court’s decision not to place the children with their father.21 

Again, we agree with Kenneth.

20 Because our reversal of the jurisdiction order requires us to also reverse the 

disposition order, we need not and do not address Kenneth’s argument that the 

dependency court erred as a matter of law in ordering the children removed from his 

custody under section 361 because the children did not reside with him at the time the 

dependency court issued its jurisdiction and disposition orders. 

21 We reject the Department’s argument Kenneth forfeited his argument the 

dependency court failed to apply or comply with section 361.2. Although, as a general 

rule, a party who does not raise an argument in the trial court forfeits that argument on 

appeal, application of the forfeiture rule is not automatic, and when, for example, the 

appellant raises a question of law, an appellate court has discretion to address the issue. 

(In re Abram L. (2013) 219 Cal.App.4th 452, 462 (Abram L.), citing In re V.F. (2007)

157 Cal.App.4th 962, 967-968 (V.F.), superseded by statute on other grounds, as 

recognized in In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1503.) As the court 

concluded in Abram L., supra, 219 Cal.App.4th at page 462, the arguments raised here 

are primarily issues of law. Further, at the disposition hearing, Kenneth’s counsel 

repeatedly objected, arguing the Department had failed to meet its burden to show the 

children would be at risk if placed with Kenneth, their nonoffending noncustodial parent, 

and the dependency court told Kenneth’s counsel she had exhausted her opportunity to be 

heard. “Under these circumstances, we decline to hold that [Kenneth], a nonoffending 
25

1. The Dependency Court Erroneously Failed to Apply Section 361.2

Pursuant to section 361, subdivision (c)—the statute cited by the dependency court 

in entering the orders from which Kenneth appeals, a dependent child may not be taken 

from the physical custody of a parent with whom he resided at the time the petition was 

initiated, unless the [dependency] court finds by clear and convincing evidence that at 

least one of certain enumerated circumstances exists. One such circumstance exists 

where “[t]here is or would be a substantial danger to the physical health, safety, 

protection or physical or emotional well-being of the minor if the minor were returned 

home, and there are no reasonable means by which the minor’s physical health can be 

protected without removing the minor form the minor’s parent’s . . . physical custody.” 

(§ 361, subd. (c)(1).) 

According to the record in this case, the dependency court found the requirements 

of section 361, subdivision (c)(1) were satisfied on the basis of the mother’s conduct—

just as the dependency court in Abram L., supra, 219 Cal.App.4th 452, had done. (Id. at 

p. 460 [“Mother did not appeal the dispositional order and we assume the court’s finding 

was supported by substantial evidence”].) “[The children], however, could not be 

removed from [their] father’s physical custody under section 361, subdivision (c)(1) 

because they were not residing with him when the petition was initiated. (V.F., supra,

157 Cal.App.4th at p. 969 [§ 361, subd. (c) ‘“‘does not, by its terms, encompass the 

situation of the noncustodial parent’”’].)”

22 (Abram L., supra, 219 Cal.App.4th at p. 460, 

original italics.)

 

and noncustodial parent, forfeited his arguments regarding his constitutionally protected 

interest in assuming physical custody over his children.” (Abram L., supra, 219 

Cal.App.4th at p. 462.)

22 As the Department acknowledges in its respondent’s brief, language in the record 

is imprecise in referring to “parent(s)” and “parents” and suggesting both Brigitte and 

Kenneth had physical custody of the children, but the Department also concedes: “There 
26

Rather, the court should have considered father’s request that his children be 

placed in his custody under section 361.2.23 (Abram L., supra, 219 Cal.App.4th at p. 

460.) Under subdivision (a) of section 361.2, “When a court orders removal of a child 

pursuant to Section 361, the court shall first determine whether there is a parent of the 

child, with whom the child was not residing at the time that the events or conditions arose 

that brought the child within the provisions of Section 300, who desires to assume 

custody of the child. If that parent requests custody, the court shall place the child with 

the parent unless it finds that placement with that parent would be detrimental to the 

safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).) 

To comport with the due process requirements protecting a parent’s fundamental

right to care, custody, and management of his child “‘a finding of detriment pursuant to 

section 361.2, subdivision (a) must be made by clear and convincing evidence.’ 

[Citation.]” (Abram L., supra, 219 Cal.App.4th at p. 461; see also Isayah C., supra, 118 

 

could have been no question in anyone’s mind, including the juvenile court’s, that 

[Kenneth] was a noncustodial parent.” 

23 At oral argument, the Department argued Kenneth’s request for custody was not 

sufficient to trigger application of section 361.2, subdivision (a) because he did not 

request to take physical custody of all his children; rather, he requested that only some of 

his children reside with him in his parents’ home, with the other children to reside with 

their paternal aunt, Kendra. We disagree. Under section 361.2, “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.” (In re Isayah C. (2004) 118 

Cal.App.4th 684, 700 (Isayah C.), fn. omitted; see also V.F., supra, 157 Cal.App.4th at p.

971.) Accordingly, Kenneth’s request for custody of his children was sufficient to trigger 

application of section 361.2, subdivision (a). This does not mean, however, that upon 

remand, the dependency court may not consider the children’s placement in separate 

homes as a factor in determining whether granting Kenneth custody of the children would 

be detrimental to their safety, protection, or physical or emotional well-being. (See In re 

Luke M. (2003) 107 Cal.App.4th 1412, 1422-1423 [in evaluating detriment under section 

361.2, subdivision (a), the dependency court may consider the impact placement with the 

noncustodial parent would have on the dependent children’s relationships with their

siblings].)
27

Cal.App.4th at p. 697 [“a nonoffending parent has a constitutionally protected interest in 

assuming physical custody, as well as a statutory right to do so, in the absence of clear 

and convincing evidence that the parent’s choices will be ‘detrimental to the safety, 

protection, or physical or emotional well-being of the child.’ [Citation.]”].) “Under the 

plain terms of the statute, if the juvenile court finds that placing a child in the physical 

custody of a noncustodial parent would not be detrimental to the child within the meaning 

of section 361.2, subdivision (a), it must place the child in the physical custody of the 

noncustodial parent.” (Abram L., supra, 219 Cal.App.4th at p. 461.) “Section 361.2, 

subdivision (c) provides that ‘[t]he court shall make a finding either in writing or on the 

record of the basis for its determination under subdivisions (a) and (b).’” (Ibid.)

Just as in Abram L., supra, 219 Cal.App.4th 452, nothing in the record before us 

suggests the dependency court considered the requirements of section 361.2 in 

determining whether to deny Kenneth’s request for physical custody of Chance, Pamela 

and Garrett. As in Abram L., the dispositional order does not refer to section 361.2 or the 

standard set forth in subdivision (a) of the statute to deny a noncustodial parent physical 

custody of his or her children; to the contrary, the dependency court cited to section 361, 

subdivision (c), its statutory language, and the conduct of the children’s mother. (Id. at p. 

461.) Also, as in Abram L., in its oral remarks regarding Kenneth’s request for possible 

placement of the children with their father, the dependency court did not refer to section 

361.2 or use the operative language of the statute. (Ibid.) Furthermore, the Department 

did not request the court to consider section 361.2 in its November 6, 2013 jurisdiction 

and disposition report.

24 (See ibid.) In light of the foregoing, we conclude the 

dependency court did not apply the applicable law to Kenneth’s request for physical 

custody of the children.

24 Indeed, in this case, the Department’s counsel indicated there was no proposed 

case plan in anticipation that the disposition hearing would be continued. 
28

2. We Decline to Make Implied Findings

Citing In re S.G. (2003) 112 Cal.App.4th 1254, the Department asserts “it is clear 

from the record the [dependency] court had section 361.2 in mind when it denied 

[Kenneth’s] attorney’s request that the children be released to [him].” The Department 

argues that, based on the record, we may imply that the dependency court’s statement that 

releasing the children to father would not be appropriate supports a finding that the 

children’s release to Kenneth would be detrimental. (See In re S.G., supra, 112 

Cal.App.4th at p. 1260.) We disagree. 

As the court explained in Abram L., “[u]nder Marquis and V.F., it is inappropriate 

to make implied findings where the juvenile court fails to make express findings as 

required by section 361.2, subdivision (c).” (Abram L., supra, 219 Cal.App.4th at p. 

463.) Accordingly, we decline to make implied findings in this case.

3. Father Was Prejudiced By the Court’s Dispositional Order

To warrant reversal of the dependency court’s dispositional order, Kenneth must 

have been prejudiced by the court’s error in not applying section 361.2 to his request for 

placement of his children in his home. (Abram L., supra, 219 Cal.App.4th at p. 463.) 

We will reverse if “‘it is reasonably probable that a result more favorable to [Kenneth] 

would have been reached in the absence of the error.’ [Citation.]” (Ibid.) 

In light of the lack of evidence supporting a detriment finding before the 

dependency court at the time of the November 6, 2013 disposition hearing, we conclude 

it was reasonably probable the court would have placed the children in Kenneth’s custody 

had it considered Kenneth’s request under section 361.2. The Department argues that 

placement with Kenneth would have been detrimental to the children because of “the 

issue of [Kenneth’s] possible drug use.” The Department concedes, however, that the 

evidence of Kenneth’s drug use at the time of the disposition hearing was “nominal” and 

based solely on the unsubstantiated anonymous call the Department’s social worker 

received around June 2013. Nevertheless, the Department asserts that it would have been 
29

unreasonable for the dependency court to grant Kenneth’s request for placement because 

there was a potential harm that Kenneth would drive with the children in his car while 

under the influence of drugs. The Department cites no evidence to support this assertion. 

(See David M., supra, 134 Cal.App.4th at p. 828 [speculation or conjecture alone does 

not constitute substantial evidence].) Accordingly, we conclude there is a reasonable 

probability the dependency court would have rejected the Department’s detriment 

argument had it considered Kenneth’s request for placement under the standard set forth 

in section 361.2. (See In re C.M. (2014) 232 Cal.App.4th 1394 (C.M.) [182 Cal.Rptr.3d 

206, 213-214] [noncustodial parent’s past substance abuse problems did not support a 

detriment finding where the underlying petition contained no substance abuse allegations 

against the noncustodial parent and there was no evidence that the noncustodial parent 

had recently abused illicit drugs].)

DISPOSITION

The dependency court’s August 19, 2014 jurisdictional order issued under the 

subsequent petition filed May 24, 2014 is reversed. All subsequent orders issued under 

that petition are vacated as moot. (David M., supra, 134 Cal.App.4th at p. 833.) The 

dependency court’s November 6, 2013 dispositional order issued under the subsequent 

petition filed June 26, 2013 is also reversed to the extent it denied Kenneth’s request that 

the children be placed with him and ordered the children placed with the Department for 

suitable placement. The dependency court is directed to conduct a new disposition 

hearing under the June 26, 2013 subsequent petition. At the new disposition hearing, the 

court should consider under the standards set forth in section 361.2 father’s request for 

placement of the children in his home, as well as what services father should be provided 

going forward. In making these determinations, the juvenile court may consider events 

that have taken place and circumstances that have arisen since the November 6, 2013 
30

disposition hearing. (C.M., supra, 232 Cal.App.4th 1394 [182 Cal.Rptr.3d 206, 214]; 

Abram L., supra, 219 Cal.App.4th at p. 464, fn. 6.)25 

WOODS, J.

We concur:

PERLUSS, P. J. ZELON, J.

25 Our disposition of Kenneth’s appeals does not affect the dependency court’s 

orders issued with respect to the children’s mother, Brigitte. Accordingly, the 

dependency court should proceed with the March 5, 2015 section 361.22 hearing as it 

pertains to Brigitte.