In re Amaya R.

Filed 9/25/07 In re Amaya R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Marilyn H. Mackel, Commissioner. Reversed and remanded.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Llana Serobian, Deputy County Counsel for Real Party in Interest Los Angeles County Department of Children and Family Services.

Alfonso S., the father of Amaya R., appeals from the juvenile courts orders made pursuant to a subsequent petition filed under Welfare and Institutions Code section 342[1]declaring Amaya a dependent child of the juvenile court pursuant to section 300, subdivisions (b) and (g), removing Amaya from his custody and placing her with Guadalupe R., her maternal aunt and de facto parent. Alfonso S. argues the facts alleged in support of the section 342 petition fail to adequately plead a basis for dependency court jurisdiction and the evidence presented is insufficient to support either the courts jurisdictional findings as they relate to him or its disposition order removing Amaya from his custody. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Original Dependency Petition and Detention of Amaya

In January 2006 Amaya, then two years old,[2]was living with her mother, Yolanda R., and her two older sisters in Guadalupe R.s home. The Los Angeles County Department of Children and Family Services (Department) filed a petition pursuant to section 300, subdivisions (a), (b), (d), (i) and (j), alleging, in part, Yolanda R. had physically abused Amayas sisters and this physical abuse endangered the physical and emotional health and safety of Amaya. The petition also alleged Yolanda R. had failed to protect the oldest of the three siblings from a known sexual abuser. Alfonso S. was identified as the alleged father of Amaya, but was not named as an offending party or otherwise described in the petition.[3]

According to the Departments detention report, filed January 13, 2006, Alfonso S. stated he had rarely visited with Amaya because Yolanda R. only allowed him to see the child when it was convenient for her. Alfonso S. was then living with his sister and her family in Baldwin Park and explained he had a wife and three children in Mexico. Alfonso S. said he could take care of Amaya with the help of his sister.

After initially detaining Amaya, the Department took her to Alfonso S., where she was living at the time of the detention hearing. At that hearing the juvenile court found a prima facie case existed for detaining the three children, ordered the two older children detained, determined Alfonso S. was Amayas presumed father and ordered Amaya released to Alfonso S. pending the next hearing.

2. Alfonso S.s Decision To Allow Amaya To Resume Living with Guadalupe R.

In its jurisdiction and disposition report, prepared for the February 16, 2006 hearing, the Department indicated Amaya was then living, at the request of Alfonso S., in the home of Guadalupe R. (Amayas older sister Adriana was also living with Guadalupe R. as a result of the juvenile courts placement order at the detention hearing.) Apparently Alfonso S. had asked Guadalupe R. to care for Amaya several days after the detention hearing. The jurisdiction/disposition report also stated, Alfonso S. has been inconsistent in his response to his child. He has shared with the mother and with maternal relatives that he is going to return to Mexico. [He] has made a decision to have the child Amaya reside with the maternal relatives. He has completed a legal guardianship form which stated that the maternal aunt Guadalupe R[.] and the maternal grandparents Javier R[.] and Maria Elena R[.] have legal guardianship of Amaya, until the year 2021. According to the Department, Alfonso S. acknowledged he was unable to care for Amaya at the present time, but if the child does not reunify with the mother, he would like to have custody of the child. Notwithstanding this information, the Department did not recommend any change in Amayas placement and, in fact, recommended the court order family maintenance services for Alfonso S. related to his child Amaya.

At the jurisdiction and disposition hearing on February 16, 2006 Amaya was declared a dependent child of the court under section 300, subdivisions (a) (risk of serious, nonaccidental physical harm), (b) (substantial risk of harm due to failure or inability to adequately supervise or protect) and (j) (risk due to abuse of sibling); removed from the custody of her mother; and ordered placed in home-of-parent-father, Alfonso S., under the supervision of the Department.

On April 13, 2006 the Department filed a supplement to its jurisdiction/disposition report, which attached the report of the multi-disciplinary assessment team regarding Amaya. The report stated Amaya was currently placed in maternal aunts care, described Amaya as functioning adequately, given the neglect and physical abuse, and removal from biological mothers care and indicated Amaya displays a genuine love and affection for siblings, aunt & grandparents.

3. Guadalupe R.s Motion To Be Appointed a De Facto Parent

On July 18, 2006 Guadalupe R. filed a motion with the juvenile court to be appointed Amayas de facto parent. (See Cal. Rules of Court, rule 5.502(10).) In support of her application Guadalupe R. declared she had had responsibility for the day-to-day care of Amaya from her birth through October 2005 and again from January 12, 2006 through the present and stated she attended to all of Amayas daily needs for love, nurturing care and support. The motion was initially denied by the court. However, at the six month/status review hearing for the three children on August 9, 2006, the court vacated its ruling and set a hearing on Guadalupe R.s motion with respect to Amaya, as well as a similar motion for de facto parent status as to Amayas sister Adriana, for September 11, 2006.

The Departments report for the August 9, 2006 hearing ( 364, 366.21, subd. (e)) once again reflected that Amaya, who had been released to Alfonso S., continued to reside with Alfonso S.s consent in Guadalupe R.s home. Alfonso S. advised the Department that, if he needed to take Amaya to his residence, he was prepared to do so and would be able to care for his child with the support of his family. The report noted, however, Guadalupe R. had expressed concern regarding Amayas visits with Alfonso S. because the child became visibly anxious when he arrived and her behavior was altered when she returned from the visits. There is a lack of connection between the father and the child that is causing her severe reactions. The Department also reported Alfonso S. ha[d] failed to provide financial assistance to [Guadalupe R.] to aid her in caring for the child. The Department recommended the court grant Guadalupe R.s application for de facto parent status but nonetheless also recommended Amaya remain in the custody of her father and family maintenance services continue for him.

On August 9, 2006 the court ordered Alfonso S. to participate in conjoint counseling with Amaya and continued its earlier home-of-parent-father placement. It also ordered the Department to prepare a report addressing the conflict that existed between Guadalupe R., on the one hand, and Alfonso S. and Adrianas father, on the other hand. The six month/status review hearing was continued to September 11, 2006.[4]

In its supplement report for the continued six month/status review hearing the Department described Amaya as doing well and receiving excellent care in Guadalupe R.s home. Alfonso S. had participated in two conjoint therapy sessions with Amaya. The therapist reported Amaya was very anxious during the first session and left for the scheduled weekend visit with Alfonso S. screaming and crying. Amaya was more relaxed at the second session and interacted with her father without exhibiting traumatic feelings. The Department also reported Alfonso S. had disagreements with Guadalupe R. and other members of the mothers family, which the social worker mediated, regarding visitation, provisions for the child, alleged threats (Alfonso S. said the maternal grandfather had threatened him because he did not like Alfonso S. visiting the child) and physical custody.

4. Alfonso S.s Plan To Travel to Mexico

The September 11, 2006 report further indicated Alfonso S. had stated he was planning to return to Mexico before the end of the year and would stay for several months to visit family members. According to the Department, Alfonso S. said he did not want to take Amaya with him: [H]e wishes her to continue to reside with the maternal aunt. He stated that he knows it is in her best interest to reside with her maternal aunt because she has lived there for a long time, but he would like to continue to be a part of her life and improve his role as the childs father. Yet once again, the Department recommended Amaya remain in the custody of Alfonso S. and family maintenance services be continued for him.

At the hearing on September 11, 2006 the court granted Guadalupe R. de facto parent status as to both Amaya and Adriana. When the court indicated it would continue its order placing Amaya with Alfonso S. (consistent with the recommendation in the Departments September 11, 2006 interim review report), counsel for Amaya expressed concern for the home-of-parent order in light of Alfonso S.s intention to leave the country for three months and Alfonso S.s failure to develop a strong relationship with the child during the pendency of dependency proceedings. Counsel also indicated she did not believe Alfonso S. was providing any support for the child and suggested the Department look into the matter.

At this point the court stated, Quite frankly, I am inclined to agree. The court asked Alfonso S. what contributions he was making for the care of Amaya. Alfonso S. responded, None at all. The court then asked, Why are you leaving the country for three months? After Alfonso S. replied he was going to visit his family in Mexico, the court commented, I dont think that is an appropriate arrangement. You have a responsibility to provide financially as well as have a visit with your child and not to have been providing financially for her since she has been a dependent of the court is simply not appropriate. The court ordered the matter continued one week, to September 18, 2006, for a further report and a contested hearing regarding Amayas placement. Counsel for the Department indicated the Department would need to file a new petition.

5. The Redetention of Amaya and the Departments Subsequent Petition

On September 14, 2006 Amaya, who continued to reside with Guadalupe R., was detained from Alfonso S. and placed with Guadalupe. According to the Departments September 18, 2006 interim review report, the Department filed a section 387 supplemental petition[5]on September 15, 2006 although no such petition appears in the record on appeal and, as reflected in the reporters transcript of the September 18, 2006 hearing, apparently no such document was filed. Counsel for Alfonso S. told the court Alfonso S., who was present in court, indicated he had offered Guadalupe R.s family money for the care of Amaya, but the offer was declined. Counsel asserted there was, therefore, no basis for a petition on failure to provide. The court responded, We do not have a petition, so theres no point in talking about it. Nonetheless, the court expressed its view that the existing home-of-parent order, made because Alfonso S. was a nonoffending parent, is inappropriate when father has not provided for the child in any kind of consistent or meaningful way in reality, and we have been trying to have counseling for him to establish a relationship with the child with the goal of the child being with him. Thats the original plan. And now hes off for three months to Mexico, so his priorities are clear to this court . . . .

On September 19, 2006 the Department filed a section 342 subsequent petition[6]as to Amaya, alleging, pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support), Alfonso S. left the child with the childs maternal aunt, Guadalupe R[.], without making appropriate provisions for the childs ongoing care and supervision. Further, the childs father has not provided the child with the basic necessities of life such as food, clothing, shelter, and medical treatment, thereby endangering the childs physical and emotion health and safety and placing the child at risk of serious harm. The detention report, also filed September 19, 2006, confirmed Alfonso S. had not provided any support for the child while she was living with Guadalupe R., but Alfonso S. stated she had repeatedly told him not to worry about it, that she would take care of the child. At the detention hearing the court found prima facie evidence to support the petition and ordered Amaya detained from Alfonso S. and placed in the temporary custody of the Department in the home of Guadalupe R. The matter was set for adjudication on September 26, 2006.

At the hearing on September 26, 2006, which Alfonso S. did not attend, his counsel argued the section 300, subdivision (b), count could not be sustained because Amaya was not at substantial risk of serious physical harm simply because Alfonso S. had not provided financial assistance to the maternal aunt, who all parties agreed was a loving and nurturing caregiver. As to section 300, subdivision (g), counsel argued, notwithstanding his failure to support Amaya while she lived with Guadalupe R., Alfonso S. was prepared to have the child live with him and would provide for her needs.

Counsel for Amaya expressed her agreement with Alfonso S.s position the section 342 petition was not pleaded properly, but argued there was a risk to Amaya in that father has failed to develop a relationship with the child such that it would be safe for her to be in his care and custody and he has now left the country for an extended period of time without developing that relationship. Amayas counsel also noted the last report from the Department suggested Amaya displayed signs of significant stress when she left for a visit with him and asserted that amounts to a [section 300, subdivision] (c) count, in my opinion, in that its demonstrable signs of emotional trauma because hes failed to develop a relationship with her. Counsel for Guadalupe R., who was present at the hearing, added that Alfonso S. admitted he had not been providing any support for Amaya and also agreed with Amayas counsel that Amaya acts out with distress after visits with her father: That is consistent with my clients statements that the father visits her infrequent[ly] and that the child would become hysterical out of fear she was going to go have to live with the father. Alfonso S.s counsel, repeating that the evidence presented by the Department did not establish either a subdivision (b) or subdivision (g) count, observed the petition did not contain a subdivision (c) count alleging the child is suffering or is at risk of suffering serious emotional damage and the Department had not asked to amend the petition according to proof.

The court, having reviewed the documents admitted into evidence (an interim review report for the September 26, 2006 hearing, as well as the Departments reports and related attachments for August 9, 2006, September 11, 2006 and September 18, 2006), stated it was clear the amended subdivision (b) and (g) counts should be sustained: Im gong to have to construct the language here.[[7]] I will amend it according to that proof. The essence is that this failure on the fathers part to be consistent in his visitation such that the child would develop a successful relationship, combined with his leaving the country for several months during the period where establishing the relationship with the child is critical, poses a substantial risk of detriment to the child, emotional harm to the child. I think the emotional harm has been shown, despite a subsequent therapeutic visit that went a little bit better . . . . The court then proceeded to disposition, finding by clear and convincing evidence allowing Amaya to remain in the care and custody of Alfonso S. will pose a substantial danger to her physical health or emotional well being. The court ordered Amaya placed with her de facto parent, Guadalupe R., permitted Alfonso S. monitored visitation and ordered him to continue in conjoint counseling with Amaya. A further review hearing ( 366.21, subd. (f)) was scheduled for February 7, 2007.

CONTENTIONS

Alfonso S. contends the facts alleged in support of the section 342 petition fail to adequately plead a basis for dependency court jurisdiction under section 300, subdivisions (b) or (g), the evidence offered in support of the petition is insufficient to support jurisdictional findings against him under either subdivision and the evidence at disposition does not support the courts finding there would be a substantial danger to the physical health, safety, protection or physical or emotional well-being of Amaya if she remained in his custody.

DISCUSSION

1. The Section 342 Petition Alleged Facts Sufficient To Support Dependency Court Jurisdiction

At the jurisdiction hearing Alfonso S. asserted, as he does again on appeal, the Departments section 342 petition did not adequately plead a basis for dependency jurisdiction under section 300, subdivision (b) or subdivision (g).[8] A parent may challenge the sufficiency of a dependency petition with a motion akin to a demurrer. (In re Janet T. (2001) 93 Cal.App.4th 377, 386 (Janet T.); In re Alysha S. (1996) 51 Cal.App.4th 393, 397 (Alysha S.); see Super. Ct. L.A. County, Local Rules, rule 17.15(c) [demurrers and motions to strike].) As with a demurrer, we independently review the petition to determine whether it alleges facts that, if true, state a basis for dependency court jurisdiction. (Janet T., at p. 386; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1133.)[9]

a. Section 300, subdivision (b)

To initiate dependency proceedings under section 300, subdivision (b), a petition must include a concise statement of facts that support the conclusion the child on whose behalf the petition is being filed is either suffering actual physical harm or illness or is at substantial risk of future physical harm or illness as a result of a parents inability or failure to adequately protect or supervise the child or the parents failure to provide the child with adequate food, clothing, shelter or medical treatment. (In re David M. (2005) 134 Cal.App.4th 822, 829 (David M.).)[10] The statutory definition consists of three elements: (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.) The third element effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur). (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.) 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. [Citation.] (Inre Nicholas B., supra, 88 Cal.App.4th at p. 1137; accord, David M., at p. 829.)

As filed by the Department, count b-1 of the section 342 petition alleged there is a substantial risk Amaya will suffer serious physical harm or illness as a result of the willful or negligent failure of Alfonso S. to provide her with adequate food, clothing, shelter or medical treatment because Alfonso S. left the child with Guadalupe R. without making appropriate provisions for the childs ongoing care and supervision. Count b-1 also alleged, the childs father has not provided the child with the basic necessities of life such as food, clothing, shelter, and medical treatment, thereby endangering the childs physical and emotional health and safety and placing the child at risk of serious harm. Those allegations of neglectful conduct, causation and substantial risk of serious physical harm in the future, sparse as they may be, are sufficient at the pleading stage to constitute a basis for dependency court jurisdiction. (See Janet T., supra, 93 Cal.App.4th at pp. 386-387.)

b. Section 300, subdivision (g)

Section 300, subdivision (g), provides the juvenile court may adjudge any child a dependent child of the court if the child has been left without any provision for support; . . . the childs parent has been incarcerated or institutionalized and cannot arrange for the care of the child; or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful. No separate allegation the child is currently suffering physical harm or is at risk of such harm is required. (See, e.g., In re Athena P. (2002) 103 Cal.App.4th 617, 630 [substantial evidence supports finding child left with grandparents was left without provision for support under 300, subd. (g), because caregivers had no authority to consent to medical treatment or enroll child in school].)

As filed by the Department, count g-1 of the section 342 petition alleged, in language identical to that in count b-1, Amaya was left by Alfonso S. without any provision for her support because he allowed her to live with Guadalupe R. without making appropriate provisions for the childs ongoing care and supervision. The petition does not specifically allege Alfonso S. is either incapable or unwilling to adequately arrange for the care of Amaya, nor does it expressly assert Guadalupe R., who had been caring for Amaya for the nine months preceding the filing of the petition, was now unwilling or unable to continue doing so. Nonetheless, construing those facts alleged in favor of the petition, as we must (Janet T., supra, 93 Cal.App.4th at p. 386), count g-1 is also sufficient at the pleading stage to constitute a basis for dependency court jurisdiction. (See In re Athena P., supra, 103 Cal.App.4th at p. 630.)

2. The Jurisdictional Finding Under Section 300, Subdivision (b), Is Not Supported by Substantial Evidence

We review the juvenile courts jurisdiction and disposition findings for substantial evidence. (David M., supra,134 Cal.App.4th at p. 828; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Under this standard we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses. (In re Savannah M., supra, 131 Cal.App.4th at p. 1393; In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) We determine only whether there is any substantial evidence, contradicted or uncontradicted, that supports the courts order, resolving all conflicts in support of the determination and indulging all legitimate inferences to uphold the courts order. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re John V. (1992) 5 Cal.App.4th 1201, 1212; In re Eric B. (1987) 189 Cal.App.3d 996, 1004-1005.) 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.] (In re Savannah M., at pp. 1393-1394; accord, In re Albert T. (2006) 144 Cal.App.4th 207, 216-217.)

In Janet T., supra, 93 Cal.App.4th at page 388, this court emphasized that, before courts may exercise jurisdiction under section 300, subdivision (b) there must be evidence indicating the child is exposed to a substantial risk of serious physical harm or illness. (Accord, David M., supra, 134 Cal.App.4th at p. 829; In re Savannah M., supra, 131 Cal.App.4th at p. 1396.) The evidence submitted at the jurisdictional hearing, as reflected in the juvenile courts sua sponte amendment of the section 342 petition to conform to proof, failed to demonstrate any risk of physical harm to Amaya, who was receiving excellent care from her maternal aunt and de facto parent, Guadalupe R. Rather, the evidence showed, as the court found, Alfonso S.s failure to take effective steps toward reunifying with Amaya, together with his intention to leave for an extended visit to Mexico, poses a substantial risk of detriment to the child, emotional harm to the child. I think the emotional harm has been shown . . . . That finding, even if based on substantial evidence, does not support an order declaring Amaya a dependent child pursuant to section 300, subdivision (b).

On appeal the Department attempts to defend the subdivision (b) finding by asserting Amaya was at risk of physical harm because Guadalupe was no longer willing to go along with fathers arrangement for her to parent Amaya without having legal custody over the child. If that is true, it would certainly justify the juvenile courts exercise of jurisdiction under section 300, subdivision (g), and arguably under subdivision (b) as well, if Alfonso S. is out of the country or otherwise unable to care for Amaya himself.[11] However, the Department presented no evidence Guadalupe R. was unwilling to continue to care for Amaya under the then-existing arrangement with Alfonso S.; and neither Guadalupe R., who was present at the September 26, 2006 hearing, nor her counsel suggested she would not continue to provide support for the child if Amaya formally remained in Alfonso S.s custody.[12] Significantly, the court made no finding to that effect with respect to either the amended b-1 or amended g-1 count.

Although not argued by the Department in either the juvenile court or on appeal, counsel for Amaya suggested below the evidence of Alfonso S.s lack of interest in developing a parental bond with Amaya and his planned departure for Mexico, considered with the conjoint therapists description of Amayas distress when leaving for a weekend visit with Alfonso S., would support a jurisdictional finding under section 300, subdivision (c). It appears the juvenile court had this in mind when it amended the petitions language to emphasize Alfonso S.s failure to reunify with Amaya and found a risk of emotional harm to the child, and this certainly was the thrust of the courts comments at earlier hearings at which the bench officer expressed her concern about Alfonso S.s priorities. However, the court did not purport to base its jurisdictional findings on subdivision (c); and neither the evidence as presented nor the amended language of the section 342 petition sustained by the court satisfies the requirements of subdivision (c), which requires proof the child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others. ( 300, subd. (c); see In re Brison C. (2000) 81 Cal.App.4th 1373, 1379.)

It may well be that at a properly noticed hearing, based on a section 342 petition alleging dependency court jurisdiction under section 300, subdivision (c), Dr. Lucia Lopez-Plunkett, the therapist who conducted the conjoint counseling sessions with Amaya and Alfonso S. and stated Amaya was anxious at the initial session and had a severe reaction to leaving with Alfonso S. for a weekend visit, could be asked directly whether Alfonso S.s failure to reunify with Amaya placed her at substantial risk of suffering serious emotional damage if no change in custody occurs. Other expert and percipient witness testimony may also be available on this question. But on the record before us we can only conclude the Department failed to prove the grounds it asserted and failed to assert the grounds it might have proved. (See Janet T., supra, 93 Cal.App.4th at p. 392.)

3. The Jurisdictional Finding Under Section 300, Subdivision (g), Is Not Supported by Substantial Evidence

As amended to conform to proof and sustained by the juvenile court, count g-1 of the section 342 petition, in addition to unrelated allegations regarding Alfonso S.s lack of effort to reunify with Amaya, asserts simply father has failed to provide for the minors ongoing care and financial support. Although there was some dispute whether Alfonso S. at some point offered to assist Guadalupe R., substantial evidence supports the juvenile courts finding he did not contribute financially to Amayas support while dependency proceedings were pending. However, the fact Alfonso S. himself did not provide financial support for Amaya does not by itself equate to leaving Amaya without any provision for support, as required for jurisdiction under section 300, subdivision (g). Subdivision (g) contemplates a parent may properly leave a child with a relative or other adult custodian who is willing and able to provide care and support for the child without triggering juvenile court jurisdiction. (Cf. In re Summer H. (2006) 139 Cal.App.4th 1315, 1334; In re S. D. (2002) 99 Cal.App.4th 1068, 1077.) As discussed, there was no allegation, let alone proof, at the September 26, 2006 hearing that Guadalupe R. was unwilling or unable to continue to care for Amaya as she had been doing for the past nine months. Moreover, Alfonso S. on several occasions indicated he was willing to have Amaya return to his home and to provide for her care (with the assistance of his sister and her family) if that was necessary because Guadalupe R. would not continue to provide for her. Although Alfonso S.s sincerity in making this offer, as well as his ability to do so in light of his plan to travel to Mexico, were questioned by the Department, it remained its burden to prove at the time of the hearing there was a defined risk of harm to Amaya. (E.g., David M., supra, 134 Cal.App.4th at p. 831; In re Savannah M., supra, 131 Cal.App.4th at p. 1394.) 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. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.)

In re Athena P., supra, 103 Cal.App.4th 617, relied upon by the Department, does not compel a different result. As the Department notes, the Court of Appeal upheld the juvenile courts jurisdictional finding under section 300, subdivision (g), because the incarcerated mother had sent her newborn child to live with the childs maternal grandparents but failed to make any effective arrangements to allow the grandparents to consent to medical treatment for the child, including her necessary childhood vaccinations. (Id. at p. 629.) In addition, the grandparents had no authority to enroll her in day care or in school. If she wandered away or got lost, they could not prove that they were entitled to have her returned to them. These were all aspects of the care of a preschool child. The juvenile court could properly conclude that [the mother] had been unable and remained unable to arrange for [the childs] care. (Id. at pp. 629-630.) Unlike the mother in Athena P., who was incarcerated on felony charges for an indeterminate period (id. at p. 623), Alfonso S. lived a short distance (approximately one and one-half miles, as reflected by the addresses to which the Department sent its notices of hearings) from Guadalupe R. and was available to her and to Amaya when necessary. Although Alfonso S. intended to leave the country for several months, the juvenile court made no finding this temporary absence would in any way affect Guadalupe R.s ability to continue to function as Amayas caregiver. Similarly, there was no evidence, and the juvenile court made no findings, concerning Alfonso S.s current ability to make appropriate arrangements for Amayas care, either by authorizing Guadalupe R. to make necessary decisions for her in his absence or by having Amaya return to live with him and his sisters family.

4. The Disposition Order Removing Amaya from the Custody of Alfonso S. Must Be Reversed

In light of our determination the jurisdictional findings must be reversed, the disposition order removing Amaya from Alfonso S.s custody must also be vacated as moot. (See David M., supra, 134 Cal.App.4th at p. 833; Janet T., supra, 93 Cal.App.4th at p. 392.) However, as we explained under similar circumstances in Janet T., our conclusion the Department failed to present sufficient evidence to sustain the section 342 petition does not mean that the Department cannot try again or that it may not be in Amayas best interests for her to be removed from the custody of Alfonso S. (Janet T., at p. 392.) In addition, we recognize circumstances may have arisen during the pendency of this appeal that could affect the juvenile courts evaluation of any new petition filed by the Department or another interested party. Accordingly, in any further proceedings on remand the juvenile court should give appropriate weight to Alfonso S.s and Amayas current situation. (See In re Jayson T. (2002) 97 Cal.App.4th 75, 91, disapproved on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 414 [reversing judgment terminating parental rights and remanding for updated review hearing].)

DISPOSITION

The juvenile courts order sustaining the section 342 petition is reversed and its order removing Amaya from Alfonso S.s custody is vacated as moot. The matter is remanded to the juvenile court for further proceedings not inconsistent with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J. ZELON, J.

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[1] Statutory references are to the Welfare and Institutions Code.

[2] Amaya was four years old by the time of oral argument in this appeal.

[3] Neither Yolanda R. nor the fathers of Amayas sisters are parties to this appeal.

[4] Yolanda R. had another child in June 2006, who was adjudicated a dependent child of the juvenile court under section 300, subdivisions (b) and (j), at the August 9, 2006 hearing. The disposition hearing was set for September 11, 2006 in coordination with the continued six month review hearing for Amaya and her two older siblings.

[5] A section 387 petition is used when the Department seeks [a]n order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home. ( 387, subd. (a).)

[6] A section 342 petition is used to allege new facts or circumstances, different from those contained in an original sustained petition, sufficient to state that a dependent child is a person described in section 300.

[7] The amended petition language sustained by the court as counts b-1 and g-1 alleges, The child Amaya R[.]s father Alfonso S[.] has failed to effectively reunify with his daughter and he has failed to visit with her consistently such that his child has not developed a relationship with him. Additionally, father has failed to provide for the minors ongoing care and financial support. Such failure to develop and maintain such a relationship on fathers part combined with fathers leaving the country for several months during this critical portion of the reunification process poses a substantial risk to minors emotional well-being and support and places her at substantial risk of harm.

[8] Regardless of the adequacy of the section 342 petition or the sufficiency of the evidence to support its allegations, Amaya is properly a dependent child of the juvenile court based on the section 300 petition sustained on February 16, 2006. [A] jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent. [Citations.] This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent. (In re Alysha S. (1996) 51 Cal.App.4th 393, 397; In re Alexis H. (2005) 132 Cal.App.4th 11, 16.)

[9] If the juvenile courts jurisdictional findings are supported by substantial evidence, any technical defect in the allegations of the petition itself will, in any event, be harmless error unless as pleaded the petition fails to provide constitutionally adequate notice to the parent. (See In re Javier G. (2006) 137 Cal.App.4th 453, 458-459; In re Athena P. (2002) 103 Cal.App.4th 617, 627.)

[10] Section 332, subdivision (f), requires a dependency petition to 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.

[11] As discussed, the Departments report for the six-month review hearing held on August 9, 2006 included Alfonso S.s assurance he was prepared to take Amaya to his residence and care for her with the support of his family if that was necessary.

[12] In its brief on appeal the Department asserts Guadalupe R. argued for Amayas removal from her fathers custody at the September 26, 2006 hearing. In fact, counsel simply reiterated Alfonso S.s admission he had not been providing support for Amaya while she was living with Guadalupe R. and agreed with Amayas counsels comment that Amaya acts out with distress after her fathers visits. Counsel then submitt[ed] with that, without stating any position with respect to the custody issue.