Filed 6/23/17 In re A.B. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re A.B., a Person Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

S.B.,

Defendant and Appellant.


E067013

(Super.Ct.No. SWJ1600381)

OPINION


APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Reversed as to Defendant and Appellant S.B.; affirmed in all other respects.
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant S.B.
Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
S.B. (father) is the father of A.B. (child). When the child was seven months old, she was with mother at a wellness checkup when mother passed out due to drug use. At that time, father was incarcerated on murder charges. The juvenile court found that it had dependency jurisdiction based on the mother’s substance abuse and father’s failure to protect and provide care and support for the child due to his incarceration. (Welf. & Inst. Code, § 300, subds. (b), (g). ) The court denied reunification services to father. He appeals, contending there was insufficient evidence to support the jurisdictional findings and denial of reunification services. We agree and reverse as to father only.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 28, 2016, father was arrested and charged with murder. Due to mother’s substance abuse, on June 20, 2016, the Riverside County Department of Public Social Services (the Department) filed a dependency petition, amended on June 23, 2016, alleging the child (born October 2015) and her half siblings were described by section 300, subdivisions (b) and (g). At that time, the child was living with mother and paternal grandmother. As it pertained to father, the petition alleged that he had a criminal history to include a recent arrest for murder, for which he was incarcerated and awaiting trial, with an unknown release date, and that “such conditions place the child . . . at risk of suffering harm.” (Italics omitted.) The social worker met with father, who had been arrested shortly after the child’s birth. Father stated that the paternal grandmother had told him about the situation, and he was under the impression that she was going to file for legal guardianship of the child. The social worker advised him that mother was making it difficult for the paternal grandmother to do so. On June 24, 2016, the juvenile court detained the child, and ordered no visitation for father while in custody.
At the October 4, 2016, jurisdiction/disposition hearing, the juvenile court found all the allegations true, by preponderance of evidence. The court additionally found there was clear and convincing evidence of the circumstances stated in section 361 regarding father, specifically pursuant to subdivisions (c)(1) and (c)(5) [parent who has been incarcerated cannot arrange for the care of the child]. Reunification services were denied (§ 361, subd. (e)(1)), and the prior visitation orders were to remain in full force and effect.
II. DISCUSSION
Father challenges the evidence supporting the juvenile court’s jurisdictional findings and the denial of reunification services.
A. The Merits of Father’s Appeal Should Be Addressed.
Before we consider whether sufficient evidence supports the jurisdictional findings, we must address the Department’s contention that the validity of the allegations involving the father is not justiciable.
As a general rule, “‘[w]hen a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.’ [Citation.]” (In re I.J. (2013) 56 Cal.4th 766, 773.)
“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. [Citation.] As a result, it is commonly said that a jurisdictional finding involving one parent is ‘“good against both. More accurately, the minor is a dependent if the actions of either parent bring [him] within one of the statutory definitions of a dependent.”’ [Citation.] For this reason, an appellate court may decline to address the evidentiary support for any remaining jurisdictional findings once a single finding has been found to be supported by the evidence. [Citations.]” (In re I.A., supra, 201 Cal.App.4th at p. 1492; accord, In re J.C. (2014) 233 Cal.App.4th 1, 3-4; In re Briana V. (2015) 236 Cal.App.4th 297, 308-311.)
However, there are several exceptions to these principles: “Courts may exercise their ‘discretion and reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) “could have other consequences for [the appellant], beyond jurisdiction” [Citation.]’ [Citation.]” (In re D.P. (2015) 237 Cal.App.4th 911, 917.)
Relying on In re Drake M. (2012) 211 Cal.App.4th 754 (Drake), father urges this court to reach the merits of his appeal. In Drake, the court considered the jurisdictional finding involving the father, even though the jurisdictional findings involving the mother were unquestioned. It explained: “[T]he outcome of this appeal is the difference between father’s being an ‘offending’ parent versus a ‘non-offending’ parent. Such a distinction may have far-reaching implications with respect to future dependency proceedings in this case and father’s parental rights. Thus, although dependency jurisdiction . . . will remain in place because the findings based on mother’s conduct are unchallenged, we will review father’s appeal on the merits.” (Id. at p. 763; accord, In re Quentin H. (2014) 230 Cal.App.4th 608, 613.)
Here, as in Drake, the outcome of this appeal could have consequences for father beyond jurisdiction, and it could potentially impact the dependency proceedings. Thus, although dependency jurisdiction over the child will remain in place because of the findings based on mother’s conduct, we will review father’s appeal on the merits.
B. The Evidence Does Not Support the Jurisdictional Findings with Respect to Father.
Father contends that the evidence was insufficient to support the juvenile court’s finding that his conduct placed the child at risk of suffering harm as alleged in count b-3, and that he was unavailable to provide care and support for the child as alleged in count g-3. We agree.
“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. [Citation.] ‘However, substantial evidence is not synonymous with 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.]” (In re David M. (2005) 134 Cal.App.4th 822, 828, italics omitted.)
Count b-3 in the amended petition alleged that jurisdiction was warranted because father, “has a criminal history to include a recent arrest for murder charges, for which he is currently incarcerated and awaiting trial,” placing the child “at risk of suffering harm.” (Italics and boldface omitted.) Similarly, count g-3 asserts that due to father’s incarceration, he is “unavailable to provide care and support for the child.” Father argues that his incarceration should not be a basis for finding that he would place the child at risk of suffering harm or that he was unavailable to provide care or support for the child. Father points out that he identified the paternal grandmother as available, and willing, to care for the child.
“Section 300, subdivision (b) provides a basis for . . . jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness caused by the parent’s inability to provide regular care for the child because of the parent’s mental illness, developmental disability or substance abuse.” (In re James R. (2009) 176 Cal.App.4th 129, 135.) A jurisdictional finding under section 300, subdivision (b) requires “(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) “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 Rocco M., supra, at p. 823.)
To support the court’s finding, the Department must have produced evidence showing that, pursuant to section 300, subdivision (b), the child has suffered, or there is a substantial risk that she will suffer, serious physical harm or illness, as a result of father’s inability to provide regular care for her, or adequately supervise or protect her, due to father’s incarceration. At the time of detention, the child was living with both mother and the paternal grandmother. The Department acknowledged that the child had not suffered serious physical harm or illness. The paternal grandmother wanted legal guardianship of the child and initiated the paperwork. Although mother initially signed the papers, she became angry and upset and tore them up. Prior to his incarceration on charges of conspiracy and murder, father’s criminal history consisted of traffic citations. The social worker spoke with father, who stated that he was not aware of mother’s current substance abuse; however, after being informed of her use, he agreed that she needed intervention. Knowing that the paternal grandmother was living with the child and mother, father asked that the paternal grandmother be given custody of the child. The social worker explained that due to mother’s unwillingness to cooperate with the process, “it was not an option at this time.” The primary reason for the Department detaining the child was mother’s substance abuse and her lack of cooperation in giving legal guardianship to the paternal grandmother.
According to the jurisdiction/disposition report, the Department had not interviewed father “[d]ue to restriction implemented by father’s attorney.” Thus, the only information available to the Department was the information which had been obtained in preparation of the detention report, i.e., that father wanted the paternal grandmother to have custody of the child and the paternal grandmother wanted custody of the child. Otherwise, the social worker repeatedly reported that father “is not meeting the needs of his child as a result of his incarceration.” However, father correctly notes that his incarceration, without more, cannot provide a basis for jurisdiction. (In re S.D. (2002) 99 Cal.App.4th 1068, 1077.) In this case, there was nothing more. From the inception of the case father identified the paternal grandmother as a family member who was willing and able to care for the child.
At the September 14, 2016, contested jurisdiction hearing, the court “ordered the social worker to make contact with the paternal grandmother” and “authorized liberalized visitation for paternal grandmother,” including “overnights and unsupervised upon a suitable home evaluation.” The social worker visited the paternal grandmother’s home and learned the mother had moved out, that the paternal grandmother was paying the rent and utilities, and that she had been living with father’s 14-year-old daughter who was not detained, and the child, since February 2015, caring for them. The paternal grandmother consistently engaged in unsupervised visits with the child, wanted legal guardianship over the child, and was taking care of father’s older daughter pending his return.
Given the above, we conclude that there was no evidence in the record to support a finding that father’s incarceration placed the child at risk of suffering harm, or that father was unavailable to provide care and support for the child during his incarceration.
C. The Evidence Does Not Support the Denial of Reunification Services.
Father contends the evidence is insufficient to support the court’s denial of reunification services. We agree.
Section 361.5 promotes the provision of family reunification services for incarcerated parents. It provides in relevant part as follows: “If the parent or guardian is incarcerated, institutionalized, or detained . . . the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child.” (§ 361.5, subd. (e)(1); see Cal. Rules of Court, rule 5.695(g).) The factors that the court may consider in determining detriment include: “the age of the child, the degree of parent-child bonding, the length of the sentence . . . the nature of the crime . . . the degree of detriment to the child if services are not offered . . . the likelihood of the parent’s discharge from incarceration . . . within the reunification time limitations described in subdivision (a), and any other appropriate factors.” (§ 361.5, subd. (e)(1).)
Here, the court found that offering services to father was “not in the best interest of the child . . . .” We conclude the evidence is insufficient to support such finding. Father cared for and raised the child from the time of her birth until he was incarcerated when she was three months old. He financially provided for her and mother. He had also been providing for his 14-year-old daughter for the last four years. The paternal grandmother lived with them, helped care for his children, and wanted to continue doing so until father returned. Although father was incarcerated, he maintained his innocence, fighting the charges against him. The Department’s reliance on Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 17-18, for the proposition that services may be denied to a parent incarcerated on charges of murder although not yet convicted is distinguishable. In that case, the father was charged with murdering the mother. (Id. at p. 15.)
III. DISPOSITION
The jurisdictional/dispositional findings and order are reversed as they pertain to father. In all other respects, they are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


RAMIREZ
P. J.
We concur:

CODRINGTON
J.

SLOUGH
J.