Filed 6/3/22 In re J.J. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Cheryl C. Murphy, Judge. Affirmed.

Lauren K. Johnson, by appointment of the Court of Appeal, for Defendant and Appellant.

Gregory P. Priamos, County Counsel, Teresa K.B. Beecham and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

I. INTRODUCTION

J.J. is the son of defendant and appellant, Je.J. (Mother). The family came to the attention of the Riverside County Department of Public Social Services (Department) after it received a report that J.J. had sexually assaulted one of his younger cousins. J.J. later reported recurring feelings of depression and the desire to inflict self-harm, causing the Department to suspect J.J. may himself have been the victim of sexual assault. Initially, the Department attempted to work cooperatively with Mother to ensure J.J. received mental health treatment. However, after Mother stopped cooperating, the Department took J.J. into protective custody and filed a dependency petition pursuant to Welfare and Institutions Code[1] section 300 et seq. on his behalf, alleging jurisdiction under section 300, subdivision (b)(1), based upon Mother’s failure to adequately supervise J.J. and failure to provide adequate medical care for him.

At the contested jurisdictional and dispositional hearing, the juvenile court sustained the allegations of the petition and ordered J.J. removed from Mother’s custody. Mother appeals, arguing that the juvenile court’s jurisdictional and dispositional orders are not supported by substantial evidence. We conclude that substantial evidence in the record supports the juvenile court’s assertion of jurisdiction and its dispositional order, and we affirm the orders.

II. FACTS AND PROCEDURAL HISTORY

A. Facts

J.J. is the son of Mother.[2] On March 15, 2021, the Department received a referral alleging that J.J., who was 12 years of age at the time, had committed acts of sexual abuse on his nine-year-old cousin. The Department contacted Mother and J.J. to investigate the allegations. During the course of this investigation, two additional cousins came forward with allegations that J.J. had sexually abused them. Given the nature of the allegations against J.J., the Department was concerned that J.J. may have also been the victim of sexual abuse. However, Mother stopped cooperating with the Department’s investigative efforts. As a result, J.J. was taken into protective custody on June 4.

B. Detention Report

On June 8, 2021, the Department filed a detention report. According to the report, Mother and J.J. lived on the same property as J.J.’s maternal grandmother and maternal uncle. Occasionally, J.J.’s cousins would visit. The report provided detailed allegations made against J.J. by three of his cousins regarding acts of sexual abuse. The social worker noted that the alleged acts would constitute “advanced sexual behaviors” for a child of J.J.’s age.

In an initial interview with an investigative social worker, Mother acknowledged being told by a family member of the allegations made by one of the cousins but expressed doubt as to whether the allegations were true. Mother denied that J.J. had any history as a victim of sexual abuse and further expressed the opinion that J.J. did not have any behavioral or mental health issues requiring intervention. When the investigative social worker spoke directly with J.J., he reported feelings of depression and recurring desires to inflict physical harm on himself. He stated that he had previously shared some of these concerns with Mother, but that Mother did not seek any mental health intervention on his behalf. J.J. denied being the victim of sexual abuse. As a result of J.J.’s statements, the social workers advised Mother to make an appointment for J.J. in order to obtain a mental health assessment and informed Mother of potential resources to obtain mental health treatment for J.J.

Following the initial interview, the Department attempted to follow up with Mother to ascertain whether J.J. had undergone a mental health assessment or had been enrolled in counseling. While Mother represented she had enrolled J.J. in counseling, she did not respond to several requests to provide information that would permit the Department to confirm that fact. Mother also would not confirm a follow up appointment for J.J. to meet with the social worker and expressly refused to grant permission to a social worker to speak with J.J. at his school outside of Mother’s presence.

The Department interviewed the mother of two of the cousins who had made sexual abuse allegations against J.J. She stated that (1) her children were ages three and five; (2) J.J. had been engaged in sexually abusive behavior toward her children for more than a year; (3) she had initially attempted to resolve the issue within the family; (4) she had confronted Mother regarding J.J.’s sexualized behavior on more than one occasion over the course of several months; and (5) Mother refused to accept that J.J. engaged in any inappropriate behavior or needed mental health treatment.

Given the allegations of advanced sexualized behavior as well as J.J.’s reports of depression and desires to inflict self-harm, the Department suspected J.J. might also be a victim of sexual abuse. It set up a forensic interview for J.J. in order to investigate whether this might be the case. While Mother initially expressed her intent to cooperate with the investigation, she later refused to bring J.J. to the scheduled forensic interview and stopped responding to communications from the Department and law enforcement. As a result, J.J. was taken into protective custody. Even after the Department explained its concerns that J.J. had displayed signs consistent with being a victim of sexual assault, Mother refused to cooperate with any investigation and explicitly instructed J.J. not to speak with social workers.

C. Jurisdiction and Dispositional Report

On July 6, 2021, the Department filed a jurisdictional and dispositional report. In addition to the facts already set forth in the detention report, the Department reported that it had confirmed J.J. was attending remote therapy sessions on a weekly basis. Mother had been consistent with visitation, and there were no reported problems with visits. However, the Department recommended that J.J. remain in out-of-home placement on the basis that removal was the only protecting intervention available, in light of Mother’s prior refusal to grant the Department access to J.J. and her active efforts to impede any investigation to determine whether J.J. was the victim of sexual abuse.

On August 9, 2021, the Department filed an addendum to the report. The addendum noted that Mother’s weekly visitation schedule had been revised to permit Mother overnight visits every other weekend. J.J. and his caregiver both reported that visits with Mother were going well without any problems. However, the Department continued to recommend that J.J. remain in out-of-home placement.

D. Jurisdictional and Dispositional Hearing

On August 13, 2021, the juvenile court held a joint jurisdictional and dispositional hearing. At the outset of the hearing, the Department submitted an amended petition for filing. The amended petition alleged jurisdiction pursuant to section 300, subdivision (b)(1), based upon Mother’s failure to supervise, as well as her failure to adequately provide for J.J. Specifically, the Department alleged (1) that J.J. disclosed suicidal ideation to Mother, and Mother failed to seek treatment until after the Department intervened; and (2) Mother was aware of sexual abuse allegations against J.J. and failed to adequately supervise his behavior to prevent additional instances of alleged sexual abuse.

J.J.’s counsel submitted on the amended petition but expressed that J.J.’s desire was to be reunified with Mother and returned to Mother’s custody. Counsel also represented that J.J. had changed therapists a few weeks prior to the hearing, and she was not yet able to contact the therapist to obtain an updated status.

Mother’s counsel did not object to the filing of the amended petition; referred to the petition as “negotiated allegations”; and stated Mother would “waive defect and stipulate to a cause of action on the amended petition.” However, at the same time, counsel also stated Mother would “continue with denials” and submitted a written waiver of rights that represented Mother would submit on the petition on the basis of the social worker’s report and other documents. Counsel made no arguments with respect to the issue of jurisdiction and, instead, argued only that the juvenile court should order family maintenance as the appropriate disposition in the case.

Mother’s stipulated testimony was read into the record. If called to testify, Mother would have stated: (1) J.J. has experienced loss in his life given his father’s passing; (2) Mother and J.J. have a very close relationship; and (3) J.J. suffers emotionally from being separated from Mother. Mother also acknowledged the need to vigilantly supervise J.J. and the need to prevent J.J. from being unsupervised around other children. Finally, Mother expressed the desire that J.J. be returned to her care and stated that, “with the support of CPS,” she was confident she would be able to provide a safe home for J.J.

The juvenile court admitted the detention report, jurisdictional and dispositional report, and addendum into evidence. Based upon this evidence, the juvenile court found true the jurisdictional allegations in the amended petition. With respect to disposition, the juvenile court adopted the recommendations of the Department and ordered J.J. removed from Mother’s care. The juvenile court’s minute order states that “[f]indings [were] made pursuant to [section 361, subdivision (c)(1)].” However, the juvenile court appears to have simply repeated the language of the statute when speaking on the record.

Despite ordering J.J.’s removal, the juvenile court discussed the prospect of J.J.’s return to Mother’s custody; ordered the parties to engage in a child and family team (CFT) meeting to develop a safety plan to permit J.J. to return to Mother’s custody; and granted the Department permission to liberalize Mother’s visitation schedule or return J.J. to Mother’s care, once such a safety plan had been implemented. Mother appeals from the juvenile court’s dispositional order, arguing the juvenile court’s jurisdictional and dispositional findings are not supported by substantial evidence.

III. DISCUSSION

A. Scope of Appellate Review

Initially, we address the proper scope of our review on appeal. The Department argues that review of the juvenile court’s jurisdictional findings is beyond the scope of this appeal because (1) Mother’s notice of appeal does not explicitly mention the juvenile court’s jurisdictional ruling, and (2) Mother waived her right to challenge the jurisdictional ruling by negotiating amended allegations to the dependency petition and stipulating to a cause of action. We disagree with both of these contentions.

1. Mother’s Notice of Appeal Is Sufficient

“Generally, we must liberally construe a notice of appeal in favor of its sufficiency,” and “[a] notice of appeal shall be ‘ “liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.” ’ ” (In re J.F. (2019) 39 Cal.App.5th 70, 75-76.) As explained by our Supreme Court, the rule of liberal construction means that reviewing courts must avoid an “overly technical attempt to parse the notice of appeal’s language.” (In re Joshua S. (2007) 41 Cal.4th 261, 272.) Instead, “[a] notice of appeal ‘is sufficient if it identifies the particular judgment or order being appealed.’ ” (Ibid.)

“In dependency cases, the dispositional order is generally the first appealable order,” and “jurisdictional findings and other orders entered before the dispositional hearing are generally reviewable on appeal from the dispositional order.” (In re M.C. (2011) 199 Cal.App.4th 784, 801.) In fact, the California Supreme Court has specifically acknowledged that review of a dispositional order on appeal “encompasses the court’s jurisdictional findings.” (In re G.C. (2020) 8 Cal.5th 1119, 1126.) Given this unique relationship between the jurisdictional and dispositional rulings in a dependency proceeding, “[l]iberal construction is particularly appropriate . . . [where] the jurisdictional finding and dispositional order were rendered simultaneously . . . .” (In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1017 [notice of appeal that specified only jurisdictional finding liberally construed as properly specifying the dispositional order].)

Here, it is true that Mother’s notice of appeal states that she is appealing from the “Dispositional ruling made by the court.” However, the dispositional order is the very order from which Mother can seek review of jurisdictional findings. Further, the jurisdictional and dispositional order in this case were rendered simultaneously. Finally, the Department has not suggested any prejudice that would result from construing Mother’s appeal from the dispositional order as encompassing review of the juvenile court’s jurisdictional findings. Thus, we believe Mother’s notice of appeal is sufficient for the purpose of seeking review of the juvenile court’s jurisdictional findings.

2. The Record Does Not Support the Department’s Claim Mother Waived Her Right To Appeal Jurisdictional Findings

The Department suggests that we should consider any challenge to the jurisdictional findings waived because the parties negotiated the jurisdictional allegations to reach a settlement, and Mother’s counsel stated that she would “waiv[e] defect and stipulate[e] to a cause of action” at the time of the hearing. We do not believe the record in this case is sufficient to conclude that Mother waived her right to appeal the jurisdictional findings.

Generally, “f a parent does not contest jurisdiction, he or she has three options. ‘The parent . . . may [(1)] elect to admit the allegations of the petition, [(2)] plead no contest, or [(3)] submit the jurisdictional determination to the court based on the information provided to the court and waive further jurisdictional hearing.’ [Citation.] [¶] An admission . . . as well as a plea of no contest . . . , bars the parent from bringing an appeal to challenge the sufficiency of the evidence supporting the jurisdictional allegations. [Citations.] However, when a parent submits the jurisdictional issue to be determined by the juvenile court solely on the basis of the social worker’s report, the parent does not waive his or her right to challenge the sufficiency of the evidence to support the court’s jurisdictional finding.” ([i]In re N.M. (2011) 197 Cal.App.4th 159, 166-167.) In our view, Mother submitted the jurisdictional issue to be determined by the juvenile court based upon the social worker’s reports and, as such, did not waive her right to challenge the juvenile court’s findings on appeal.

First, when viewed in context, it is apparent that the statement by Mother’s counsel was intended to waive any pleading defect in the amended petition and to stipulate that the amended petition adequately alleged a cause of action, and was not intended to concede the truth of any such allegations.[3] The entire statement by counsel was as follows: “On behalf of [M]other, I would acknowledge receipt of the first amended petition. Waive formal reading and advisement of rights. Continue with denials. Waive defect and stipulate to a cause of action on the amended petition.” Thus, while Mother’s counsel stipulated to a cause of action, counsel simultaneously stated that Mother would “continue with denials.” Denying the allegations of a petition is synonymous with contesting jurisdiction. (In re S.N. (2016) 2 Cal.App.5th 665, 671-672 [“If a parent denies the allegations in a section 300 petition, the juvenile court must hold a contested hearing on them.”].) When viewed in context, the statement by counsel did not suggest an intent to stipulate to jurisdiction. (See In re Ricardo L. (2003) 109 Cal.App.4th 552, 565-566 [statement by counsel that father would “ ‘submit on the jurisdiction’ ” does not constitute waiver where context suggested counsel’s intent was simply to submit the matter based upon the social worker’s reports].)

Second, even if the statement by Mother’s counsel was sufficiently ambiguous to permit the interpretation urged by the Department, it could not constitute a valid waiver in this case. Here, Mother’s written waiver of rights stated that her intent was to “submit the petition on the basis of the social worker’s . . . report and other documents.” The oral waiver taken by the juvenile court mirrored this understanding. When in conflict, Mother’s own statements regarding the scope of any purported waiver must control over the statements of counsel, since a waiver of the right to a contested jurisdictional hearing cannot be based upon counsel’s representation alone. (In re S.N., supra, 2 Cal.App.5th at p. 672; In re Monique T. (1992) 2 Cal.App.4th 1372, 1377.) Thus, even if counsel had intended to stipulate to jurisdiction, counsel’s statements alone could not support a finding of waiver in this case. Having resolved the scope of our review, we proceed to consider the merits of Mother’s claims, but we conclude that reversal is not warranted.

B. General Legal Principles and Standard of Review

“At the jurisdictional hearing the juvenile court determines whether the allegations in the petition that the minor comes within section 300 (and therefore within the juvenile court’s jurisdiction) are true. The court’s jurisdictional findings must be based on a preponderance of the evidence. . . . If the court finds jurisdiction under section 300, it declares the child a dependent of the juvenile court and proceeds to the disposition phase, where the court considers whether the child should be removed from the parents under section 361.” (In re J.K. (2009) 174 Cal.App.4th 1426, 1432.) “At the disposition phase of the dependency proceedings the juvenile dependency court must find clear and convincing evidence to remove a child from his or her parents.” (Id. at p. 1433.)

“On appeal, the ‘substantial evidence’ test is the appropriate standard of review for both the jurisdictional and dispositional findings.” (In re J.K., supra, 174 Cal.App.4th at p. 1432.) “ ‘In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. “In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issue of fact and credibility are the province of the trial court.” ’ ” (In re I.J. (2013) 56 Cal.4th 766, 773.)

C. Substantial Evidence Supports the Juvenile Court’s Assertion of Jurisdiction

Here, the Department alleged, and the juvenile court found, jurisdiction pursuant to section 300, subdivisions (b)(1)[4] on two separate grounds: Mother’s failure to adequately supervise and Mother’s failure to provide adequate medical treatment. On appeal, Mother contends that both findings are not supported by substantial evidence. As we explain, the allegation that J.J. was subject to a substantial risk of harm as the result of Mother’s failure to provide medical treatment was supported by substantial evidence. Given this conclusion, we need not consider the sufficiency of the evidence to support the alternative jurisdictional finding.

Here, the Department alleged jurisdiction pursuant to section 300, subdivision (b)(1), based upon the allegation that Mother failed to seek appropriate treatment when J.J. disclosed suicidal ideation. Substantial evidence in the record clearly supports the juvenile court’s true finding on this allegation. The detention worker reported that J.J. directly disclosed he suffered from depression and a recurring desire to inflict self-harm. Further, J.J. represented that he had disclosed his struggles to Mother on more than one occasion, but Mother did not seek mental health treatment for him. Mother admitted she did not believe J.J. needed mental health treatment and did not seek out mental health treatment for J.J. until after a social worker intervened. This is substantial evidence upon which the juvenile court could rely to conclude that there was a substantial risk of harm as the result of Mother’s failure to provide medical treatment.

On appeal, Mother argues that, by the time of the jurisdictional hearing, J.J. had been consistently participating in therapy and, as a result, there was no present risk of harm. We note that an identical argument was considered and rejected in In re Roxanne B. (2015) 234 Cal.App.4th 916. In that case, a minor suffered depression and suicidal ideation, and her parents failed to address the issue until after intervention by a child protective services agency. (Id. at p. 921.) The parents challenged the sufficiency of the evidence to support jurisdiction, arguing that by the time of the jurisdictional hearing, the minor had already been in therapy for six months, was taking medication, and had consistent parental support during that time period. (Id. at pp. 921-922.) The Court of Appeal rejected this argument, noting that the parents did not take the minor’s mental health issue seriously until after intervention by the child protective services agency; were “reluctant and uncooperative” with the agency even after its initial intervention; and that such evidence supported a finding of a present risk of harm notwithstanding the fact the minor was actively receiving treatment by the time of the hearing. (Id. at p. 922.)

Here, Mother initially denied J.J. had any need for mental health treatment; did not obtain any such treatment for J.J. until after the Department intervened; and was reluctant to cooperate with social workers up until the time J.J. was taken into protective custody. Moreover, the record shows more than one instance in which Mother initially represented willingness to cooperate with the Department, only to abruptly change her mind. Like In re Roxanne B., supra, 234 Cal.App.4th 916, such evidence constitutes substantial evidence upon which the juvenile court could rely to conclude that the risk of harm to J.J. continued to exist, notwithstanding the fact that Mother was acting in a cooperative manner by the time of the jurisdictional hearing.

Mother also argues that the juvenile court’s finding that she failed to adequately supervise J.J. to prevent allegations of sexual abuse against him was not supported by substantial evidence. Specifically, Mother contends that this allegation was used to punish Mother for refusing to permit J.J. to submit to a forensic interview and the facts, even if true, would not support jurisdiction because allegations that J.J. perpetrated sexual abuse against others did not risk harm to J.J.[5] However, given our conclusion that substantial evidence supports one of the juvenile court’s jurisdictional findings, we need not address the sufficiency of the evidence to support this alternative finding. “As a general rule, a single jurisdictional finding supported by substantial evidence is sufficient to support jurisdiction and render moot a challenge to the other findings.” (In re M.W. (2015) 238 Cal.App.4th 1444, 1452; see In re M.R. (2017) 7 Cal.App.5th 886, 896 [“ ‘[T]he juvenile court’s exercise of jurisdiction . . . will be upheld if substantial evidence supports any one of the statutory bases for jurisdiction enumerated in the petition.’ ”].) If one finding is supported by substantial evidence, “the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.” (In re I.J., supra, 56 Cal.4th at p. 773.)

D. Juvenile Court’s Dispositional Findings Are Supported by Substantial Evidence

Finally, Mother challenges the sufficiency of the evidence to support the juvenile court’s decision to remove J.J. from her custody and keep J.J. in out-of-home placement. Specifically, Mother claims there was insufficient evidence of a risk of harm to J.J. absent removal and, further, that the juvenile court failed to explore reasonable alternatives before removing J.J. from her custody. We disagree.

As mother correctly notes, an order of removal requires the juvenile court to find by clear and convincing evidence that there is a substantial danger to the health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home and that there are no reasonable means by which the minor’s health can be protected absent removal. (§ 361, subd. (c)(1); In re L.O., supra, 67 Cal.App.5th at p. 244.) Nevertheless, the clear and convincing standard does not permit a reviewing court to reweigh the evidence or draw different inferences from the evidence where the inferences drawn by the trier of fact are reasonable. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 996 [A reviewing court continues to “give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.”].) Instead, the question is whether the evidence is sufficient to permit the trier of fact to find a “high probability” that a fact is true. (In re V.L. (2020) 54 Cal.App.5th 147, 154; In re L.O., at p. 245.) We believe that sufficient evidence in the record supports such a finding here.

First, we disagree with Mother that there was no evidence of a risk of harm to J.J. A removal order can be based upon the risk of suffering emotional harm alone. (In re H.E. (2008) 169 Cal.App.4th 710, 718-720 [The plain words of statute, as well as Judicial Council’s construction of statute as reflected in Rules of Court “effectively allows a risk of emotional harm to suffice alone”].) Here, J.J. reported recurring feelings of depression and the desire to inflict self-harm. At least three cousins came forward to allege that J.J. had sexually assaulted them on separate occasions, with graphic details of their allegations of the “advanced sexual behavior” provided to the juvenile court. Mother admitted in her own statements to the investigative social worker that she was made aware of both J.J.’s emotional state and the allegations of advanced sexual behavior but denied any problems requiring intervention. If credited, such evidence would support a reasonable conclusion that there was a high probability J.J. suffered from serious mental health issues that would result in emotional harm if left untreated[6] and that Mother could not be relied upon to consistently provide that treatment.[7]

Second, we disagree with Mother’s contention that the juvenile court erred in failing to consider reasonable alternatives to removal. “Although the court must consider alternatives to removal, it has broad discretion in making a dispositional order.” (In re Cole C. (2009) 174 Cal.App.4th 900, 918.) Here, the juvenile court concluded that reasonable efforts had been made to prevent the need for J.J.’s removal. Typically, such a finding, if supported by substantial evidence, will support a removal order. (Ibid.; See In re Ashly F. (2014) 225 Cal.App.4th 803, 809 [social worker’s report discussing the reasonable efforts made to prevent removal is evidence that aids the court in determining whether reasonable alternatives exist].)

Here, the record discloses that the Department did not initially seek to detain or remove J.J. from Mother’s care. Instead, a social worker visited the home, interviewed both Mother and J.J., advised Mother that J.J. needed mental health treatment, and provided Mother with information regarding available resources to obtain that care for J.J. When the Department attempted to follow up with Mother, she avoided providing relevant information, would not schedule a follow up meeting with the social worker, and actively blocked the social worker from visiting J.J. at school to check on his condition. Eventually, Mother stopped responding to social worker and law enforcement attempts to contact her. Only after Mother began obstructing the Department’s efforts did the Department seek to take J.J. into protective custody.

This evidence shows that the Department initially attempted to approach this case with efforts short of removal but was required to intervene only after its initial efforts to work cooperatively proved unsuccessful. If credited, the juvenile court was entitled to rely upon this evidence to conclude there was a high probability that efforts short of removal would not be effective in eliminating the risk of harm to J.J. As this court has recognized, evidence that a parent was not cooperative with a child welfare services agency during the time between referral and a disposition hearing can support a conclusion that a child cannot be safely returned to the parent’s custody. (In re E.E. (2020) 49 Cal.App.5th 195, 215-216 [listing, among other things, the fact that parent would not cooperate with social welfare agency as evidence in support of order of removal].) Thus, substantial evidence in the record supports the juvenile court’s finding that reasonable efforts were made to prevent or eliminate the need for removal from the home.

Finally, we disagree with Mother that the juvenile court’s purported failure to state specific factual findings in support of its removal order requires reversal. The juvenile court is statutorily required to state the facts upon which a removal order is based (§ 361, subd. (e)), and its minute order “ ‘is not a replacement for a statement of the facts supporting the court’s decision . . . .’ ” (In re L.O., supra, 67 Cal.App.5th at p. 247.) Nevertheless, “ ‘the failure to do so will be deemed harmless where “it is not reasonably probable such a finding, if made, would have been in favor of continued parental custody.” ’ ” (Ibid.)

Here, it is true that the juvenile court merely repeated the language of section 361 in making its removal order without making specific factual findings in support of its order. It was error for the juvenile court to fail to do so. However, the record shows the juvenile court engaged in a robust discussion with the parties regarding the specific conditions that could ultimately lead to J.J.’s return to Mother’s custody.[8] Ultimately, the juvenile court expressed the desire to have J.J. returned to Mother’s custody as soon as practicable; ordered the parties to participate in a Child and Family Team meeting to develop a safety plan; and authorized the Department to return J.J. to Mother’s care once an agreed safety plan was implemented. The discussion shows the juvenile court was well aware of the facts of the case, but of the view that specific conditions needed to be addressed before J.J. could be safely returned to Mother’s custody. Thus, the record does not suggest it is reasonably probable that factual findings, if made, would have been in favor of continued parental custody and reversal is not warranted on this ground.

IV. DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

McKINSTER

Acting P. J.

MILLER

J.

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

[2] Mother reported that J.J.’s father was deceased.

[3] The sufficiency of the evidence produced to support jurisdiction is distinguishable from the sufficiency of the allegations in the petition to state a cause of action. (See In re Alysha S. (1996) 51 Cal.App.4th 393, 396 [distinguishing “a claim of failure to state a cause of action” from a claim that “no substantial evidence” supports the allegations]; In re David H. (2008) 165 Cal.App.4th 1626, 1637-1639 [same]; In re Athena P. (2002) 103 Cal.App.4th 617, 626-630 [analyzing two issues separately].)

[4] On appeal, Mother refers to the two grounds as pursuant to section 300, subsection (b)(1) and (b)(2). However, the amended petition checks two different boxes listed under subsection (b)(1) and no boxes under subsection (b)(2).

[5] We observe that, contrary to Mother’s argument, this court recently addressed a similar situation in In re L.O. (2021) 67 Cal.App.5th 227. That case involved a factual scenario in which “a child is unintentionally exposed to sexual acts . . . , the child is inappropriately acting out the sexual behavior, and the parent is aware of the child’s sexualized behavior.” (Id. at p. 243.) We held that such facts could not support the assertion of jurisdiction under section 300, subdivision (d), but we expressed the opinion that the failure to supervise the child in light of the child’s inappropriate sexual behavior could have supported jurisdiction under subdivision (b)(1), even if the facts did not suggest the parent was blameworthy for causing the child’s inappropriately sexualized behavior. (Id. at pp. 243-244.)

[6] The reasons for J.J.’s condition are not relevant, as Mother need not “in some way be blameworthy for being unable to supervise or protect,” and “the parent’s failure or inability alone support[s] a juvenile court’s assertion of dependency jurisdiction.” (In re R.T. (2017) 3 Cal.5th 622, 627-630; In re L.O., supra, 67 Cal.App.5th at p. 245 [“ ‘ “ ‘ [T]he parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate.’ ” ’ ”].)

[7] Mother argues that there was “no reason to believe [she] would discontinue [J.J.’s] therapy.” However, it is well established that when considering the risk of harm, “[t]he court may consider a parent’s past conduct as well as present circumstances.” (In re N.M., supra, 197 Cal.App.4th at p. 170; In re L.O., supra, 67 Cal.App.5th at p. 245.) Thus, evidence that Mother had previously ignored repeated indications that J.J. required mental health treatment was evidence upon which the juvenile court could rely to conclude that Mother remained unable to adequately provide such care to J.J.

[8] The colloquy included issues such as (1) whether continued supervision by grandparents in the family home would be appropriate; (2) the possibility of after school programs as a viable alternative to relying on family members to supervise J.J.; (3) a request by the juvenile court for the parties to inquire and provide parameters for J.J. to interact socially with friends; and (4) the feasibility of mother moving to a new home to address any safety concerns.