In re D.C.









Filed 11/19/10 In re D.C. CA2/5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

In re D.C. et al., Persons Coming Under the Juvenile Court Law.	B222064 (Los Angeles County Super. Ct. No. CK74204)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JUAN C., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Donna Levin, Juvenile Court Referee. Affirmed in part; dismissed in part.
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel and Melinda White Svec, Deputy County Counsel for Plaintiff and Respondent.
The father, Juan C., appeals from a dependency dispositional order. The father, who had moved to Texas, was found to have failed to protect the children, D.C. and H. C. (Welf. & Inst. Code,[1] § 300, subd. (b).) Further, the father was found to have failed to provide the necessities of life for the children including food, clothing, shelter and medical care. (§ 300, subd. (b).) The Department of Children’s and Family Services (the department) appeals from the dismissal of a section 300, subdivision (g) failure to provide allegation. We affirm the dispositional order. We dismiss the department’s appeal as it is moot.
The juvenile court made two findings pursuant to section 300, subdivision (b). First, the juvenile court found that the father, who resided in Texas, was unable to protect his daughter, D.C., from being molested. The daughter was molested by the paternal grandmother’s boyfriend, F.M. The juvenile court found that the
father’s inability to protect D.C. from being molested by Mr. M. also placed her brother, H.C., at risk. Second, the juvenile court found the father provided the two children’s E.B.T. (welfare) card to the mother, Antonia Z., but provided no other necessities of life to the children including food, clothing, shelter and medical care who were placed with the maternal grandfather, A.Z.
Welfare and Institutions Code section 300 provides in part, “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] . . . (b) The 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 the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment . . . .” The juvenile court’s jurisdictional findings are reviewed for substantial evidence. (In re Heather A. (1996) 52 Cal.App.4th 183, 193; In re Tania S. (1992) 5 Cal.App.4th 728, 733.) Even if only one of the grounds cited by the juvenile court is supported by substantial evidence, we must affirm the jurisdictional order. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [“When 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”]; accord In re Andy G. (2010) 183 Cal.App.4th 1405, 1415, fn. 6.)
As to the first jurisdictional finding, substantial evidence supports the juvenile court’s failure to protect and at risk determinations. The father was given custody of the two children in March 2009 after a dependency case pursued against the mother was closed. The mother had two other children subject to juvenile court jurisdiction. The father was unrelated to the mother’s two other children who were subject to the reunification process. The paternal grandmother, the father and the two children who are the subject of the current petition lived at the same address. The paternal grandmother and Mr. M. resided in the front house. The father lived in the back house with D.C. and H.C. The father left California for Texas to look for work and to “take care of” tickets. The father left four-year old D.C. and two-year old H.C. with the paternal grandmother. The mother warned the father not to leave the children with the paternal grandmother. In response, the father told the mother not to worry because the two children would be in the paternal grandmother’s home. The maternal grandfather also expressed concern about the paternal grandmother’s residence, “The lady’s partner uses drugs so I was concerned about the children staying over [there] at their place.” Despite these facts, the father left the two children with the paternal grandmother.
The paternal grandmother’s home was unsuitable for any child. There was evidence Mr. M. abused drugs while the children resided with the paternal grandmother. Further, D.C. had observed acts of domestic violence by Mr. M. directed at the paternal grandmother. Mr. M. had pulled the paternal grandmother by the hair and shoved her against the wall. The mother saw a bump on the paternal grandmother’s head.
On August 30, 2009, the mother visited with D.C. in the paternal grandmother’s residence. The mother spoke with D.C. during the visit. At that time, D.C. revealed she had been molested by Mr. M. According to the detention report: “This past Sunday mother had visitations with the children. Mother asked [D.C.] how she was doing and who she was sleeping with. Mother reported that [D.C.] disclosed that she had been sleeping in the bed with [Mr. M.]. Mother attempted to educate [D.C.] that no one should be touching her private areas but her grandmother.” The molestation consisted of Mr. M. putting his penis on or next to D.C.’s vaginal area. The conversation between the mother and D.C. occurred within one week of the father leaving for Texas. Stated differently, the molestation occurred within days of the father leaving the children with the paternal grandmother.
At one point, the father accused the mother of possibly fabricating the story about D.C. being molested as a ploy to secure custody of the two children. There is no evidence the father notified the police of the molestation or spoke to D.C. about Mr. M.’s abuse of her. Thus, while the children resided in the paternal grandmother’s residence, there is substantial evidence they were exposed to domestic violence and drug use and D.C. was molested by Mr. M. Both the mother and the maternal grandfather had concerns about the children living with the paternal grandmother. As noted, the father resided at the same address as the paternal grandmother and there is no evidence he made any effort to determine who else was residing in the home. The juvenile court could rely on such negligent conduct in its making its section 300, subdivision (b) failure to protect and at risk findings. There is substantial evidence the father negligently failed to protect the children from the conduct of Mr. M.
Second, there is substantial evidence the father’s negligent failure to provide adequate food, clothing and medical treatment placed the children at risk of physical harm. As noted, the father traveled to Texas to take care of tickets and secure employment. The father left the children with the paternal grandmother. While living in the paternal grandmother’s residence, the two children were exposed to narcotics abuse and domestic violence and D.C. was molested. When the children were detained, they were placed with A.Z. The maternal grandfather was paying the babysitting costs for the two children. The father had given the children’s E.B.T. and medical cards to the mother. As of November 24, 2009, the mother still had the E.B.T. card. Thus, the father did not give the E.B.T. card to A.Z., who had custody of the two children. There is evidence the father never communicated with A.Z. The mother brought “some groceries” on Sundays and purchased diapers for H.C. Further, the father never sent any money for the children to A.Z. There is evidence A.Z was not provided with sufficient funds to care for the two children. Also, the father did provide authorizations which allowed A.Z. to secure medical care for D.C. and H.C. but they expired on November 6, 2009. The disposition hearing was held on January 28, 2010, two and one-half months after the medical authorizations expired. Further, the father left the first of the two authorizations with the maternal grandfather. This constitutes substantial evidence the father negligently failed to provide adequate food, clothing and medical care thereby placing them, even as of the date of the disposition hearing, at sufficient risk of harm.
We note that some substantial aspects of the father’s testimony is materially contradicted by other evidence. For example, the father claims to have spoken to A.Z. Also, the father claimed A.Z. had the welfare documents. But as noted, we view the evidence in a light most favorable to the judgment. (In re B.S. (2009) 172 Cal.App.4th 183, 193; In re Alexis E., supra, 171 Cal.App.4th at p. 451.) We therefore disregard the father’s self-serving testimony which is contradicted by other evidence.
Further, the father argues that the juvenile court should not have removed the children from his custody. Section 361, subdivision (c) provides in part: “A dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of . . .: [¶] (1) There 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 from the . . . parent’s . . . physical custody.” The evidence is viewed in a light most favorable to dispositional order. (In re Mariah T. (2008) 159 Cal.App.4th 428, 441; In re Isayah C. (2004) 118 Cal.App.4th 684, 694-695.) A section 361, subdivision (c)(1) finding is reviewed for substantial evidence. (In re E.B. (2010) 184 Cal.App.4th 568, 574-575; In re Heather A., supra, 52 Cal.App.4th at p. 193.)
Substantial evidence supports the juvenile court’s placement order. The father, who had sole custody of the two children, left them with the paternal grandmother which led to D.C. being molested by Mr. M. The home where the children were left was manifestly unsuitable given the fact that drug use and domestic violence occurred therein in addition to the molestation of D.C. As noted, the mother warned the father about placing the children in the paternal grandmother’s home and he said not to worry about it. The maternal grandfather was concerned about the drug usage in the paternal grandmother’s home.
The father failed to make any arrangements for the support of the two children. He failed to have the welfare documents necessary for the children’s care delivered to the maternal grandfather. Further, the father, who is on misdemeanor probation, failed to provide any support to the children. The groceries left by the mother, who retained the welfare documents, were insufficient to provide for the two children.
Additionally, the father presented no evidence he could provide an appropriate home for the children. There was no evidence he had a residence which was suitable for the two children. He presented no evidence he could provide any financial support for the children—in fact he failed to do so from the time he left for Texas in August 2009 through the disposition hearing on January 28, 2010. Also, he presented no evidence as to the amount of his income. There is no evidence he spoke to the two children. The father failed to even communicate with the maternal grandfather who was caring for the two children after they had to be removed from the paternal grandmother’s home. Once the children were detained, the father had refused to return telephone calls from the mother, the maternal grandfather and social workers. The father admitted trying to avoid contact with the maternal grandfather who had custody of the two children. The detention report states, “[H]e tries to avoid contact with the maternal grandfather because he has nothing but problems with him.” Thus, as the date of the disposition hearing, the father had failed in every material respect to act in a proper paternal role thereby placing the children at risk.
The juvenile court could reasonably conclude the father’s reliance on the mother to assist the maternal grandfather was unreasonable and placed the children at risk. The mother had two half-siblings removed from her care and she was receiving family reunification services. The mother had a methamphetamine use history and had abused narcotics as late as March 2009. Moreover, the mother was so irresponsible she failed to provide the welfare documents to the maternal grandfather. She dropped off groceries with the maternal grandfather which were inadequate to feed the two children. Moreover, the mother dropped off diapers which were insufficient to meet the two children’s needs.
Also, the father had repeatedly promised to return to Los Angeles from Texas to pick up the children but had failed to do so. The December 3, 2009 last minute information for court officer document, which was received in evidence at the January 28, 2010 adjudication hearing, states: “It does not appear that the father had any intention of returning for his children as he failed to return to Los Angeles on multiple occasions. On [September 4, 2009] [the] father stated to [social worker Rebecca] Estrada he would return to Los Angeles on [September 18, 2009] and [the] father did not show up. On [September 21, 2009], [the] father stated to [social worker Rene] Gil that he would be returning on [October 2, 2009,] and [the] father did not show up. On [October 5, 2009,] [the] father stated to [social worker Gema] Santiago that he would be returning on [October 10, 2009,] and [the] father did not show up. On [October 27, 2009,] [the] father stated to [Ms.] Santiago that he would be returning on [November 6, 2009,] and [the] father showed up at [the] Detention Hearing on [November 2, 2009].” On September 6, 2009, the father indicated in writing he would return to Los Angeles by September 18, 2009, but failed to do so. The father had a plane reservation for a flight departing on October 2, 2009, but he did not know what he would do upon returning.
Finally, the department has filed a cross-appeal challenging the juvenile court’s order dismissing the section 300, subdivision (g) allegation. Our resolution of the appeal renders these issues moot. Thus, the department’s cross-appeal should be dismissed as moot. (Ted Jacob Engineering Group, Inc. v. The Ratcliff Architects (2010) 187 Cal.App.4th 945, 960, fn. 12; Forsgren Associates, Inc. v. Pacific Golf Community Development LLC (2010) 182 Cal.App.4th 135, 139.)
The jurisdictional and dispositional orders are affirmed. The cross-appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


TURNER, P. J.

I concur:



MOSK, J.

ARMSTRONG, J.
.

I respectfully dissent.
The juvenile court found that father failed to provide his children with the necessities of life because, although he gave the children's mother an EBT card on which public assistance benefits worth between $300 and $900 were loaded every month, "he has not taken any further steps, as I say, to provide for their food, clothing, shelter and medical care." There was no finding, nor does the majority opinion cite any evidence which would support an implied finding, that the children's material needs for food, clothing, shelter and medical care went unmet. The dependency court, with the majority's blessing, has thus interpreted section 300 to subject children not in need of food, clothing, shelter and medical care to the juvenile court's jurisdiction if their parents could have taken "further steps" to provide them with things they already have.
The juvenile court rejected the DCFS's contention that father left the state for Texas without making an appropriate plan for the children, striking this language from the petition, perhaps in deference to the fact that DCFS itself had approved father's plan to leave the children with his mother. By asserting jurisdiction after refusing to find that father was negligent in leaving the children in his mother's care, the juvenile court has created a no-fault basis for dependency jurisdiction, never mind the statute's fault-based scheme. Meanwhile, the majority dispenses with the concept of causation: Having found evidence of father's "negligence" in failing to investigate the character of his mother's boyfriend, my colleagues are unconcerned with the lack of any causal link between the negligence and the molestation.
Given the juvenile court's conclusion that evidence of neglect is no longer a requirement for jurisdiction under section 300, subdivision (b), and the majority's elimination of causation as an element of the jurisdictional finding, it should come as no surprise that evidence of physical harm or illness is also optional. DCFS's acknowledge-ment "that no actual harm came to the children while they were in the maternal grandfather's care" doesn't persuade it that perhaps this family does not require its intervention.
In this case, Juan C., the father of two young children, was unemployed and supporting his family on public assistance when he decided to take steps to improve his life and that of his family by seeking employment in Texas. In order to do this, he had to rely on an extended family, including his own mother, the children's mother, and her father. Like many families, these individuals did not always get along, were not particularly forthcoming with each other, and were not adept at resolving interpersonal issues. All of them, however, loved Damaris and Herbert, and put the interests of the children above their petty squabbles. As a result of this familial love and care, the children were provided for during father's absence from the state and were moved to the paternal grandmother's house upon Damaris's unfortunate and unforeseen report of molestation (which can, of course, happen in the best of families). Happily, father was able to obtain employment which would permit him to support his family; unhappily, DCFS unnecessarily intervened.
As should be apparent, my view of this case is fundamentally different from that of the majority. I detail the relevant facts I glean from the record:
In March 2009, the family court awarded father sole custody of his two children, four-year-old Damaris and two-year-old Herbert, after dependency proceedings had been initiated against the children's mother, Antonia Z., as a result of her drug use. Father also had sole custody of mother's two older children, M. R. and Christian R.
for a six month period during that dependency proceeding. As of August of 2009, mother had a continuing reunification plan with the older children, who were then living with their maternal grandfather, Alejandro Z., and enjoyed visitation rights with the minors in father's care.
The last week of August 2009, father left Damaris and Herbert in the care of his mother, A.E., while he went to Texas to seek employment. He planned to find a job, secure a residence, and arrange for mother and all four children to join him. Father anticipated that he would have the financial resources to come back for his family several weeks after he left for Texas.
Before leaving the state, father consulted both with the DCFS social worker from the prior dependency action to confirm that he was permitted to leave the children with their maternal grandmother, and with mother. Mother preferred to have the children cared for by her father, with whom her two older children lived, but agreed that their paternal grandmother was an appropriate caregiver. At the social worker's suggestion, father wrote a letter giving the grandmother temporary custody of his children so that she had the authority to act on their behalf in making educational and medical decisions. Father left the children's medical cards and "Electronic Benefit Transfer,"[2] or EBT card with mother, for her to use for the children's benefit.
Shortly after he left the state, mother contacted father, saying that she had learned from Damaris that she slept in the same bed with the paternal grandmother and her boyfriend, F.M., and that F.M. had touched the child's private area and had
put his penis on top of that area.[3] Father instructed mother to inform her social worker about the incident and to request an investigation, and to have the child examined by a doctor. At DCFS's suggestion, father then arranged for the maternal grandfather to care for the children. The social worker asked father to fax a letter to DCFS authorizing the paternal grandfather to take care of the children and to make all medical, educational, and other decisions concerning them; he did so. The social worker asked father to sign, have notarized, and fax another letter to the same effect; he did so.
DCFS began an investigation of the molestation allegations in early September. As part of that investigation, DCFS interviewed the maternal grandfather in early October; he reported that he did not mind caring for the children, that he was able to provide for them, that he hired a babysitter to care for the them while he was at work, and that the children had not been sick or in need of medical attention.
Also in October, father reported to DCFS that he had found work in Texas and that he was trying to determine how to proceed with relocating the family. He was concerned that mother would object if he took the children to Texas (and mother confirmed that she would). He thought that if and when mother reunified with her older children, he would have mother take care of Damaris and Herbert as well. He indicated that his main concern was the children's safety, that he wanted what is best for them, and that he believed that the children were safe and well cared for by the maternal grandfather. On November 2, 2009, two months after the initial report of sexual abuse, DCFS filed a section 300 petition alleging that father failed to protect his children based on the incident with F.M. and on the maternal grandfather's complaints to DCFS that father did not return his telephone calls or communicate his intentions concerning the children. While father acknowledged that he avoided contact with his father-in-law because the two men did not get along, he kept in touch with the family through regular calls to mother, the babysitter, and his step-daughter.
At the detention hearing, father asked that the children be returned to his care; he had found good work in Texas, had obtained an apartment there, and was ready to resume physical custody of the children. Mother's counsel objected: "According to the mother, father was gone to Texas, but it was for a period of over two months. So mother really is questioning the care that the children were getting while the father wasn't there." Notwithstanding that she had just cast aspersions on the care the children received in the home of her father, mother requested that the children be placed in that very home, or be released to her.
The court ordered the children released to mother on the condition that she reside with the maternal grandfather. In other words, the court found that there was a prima facie showing that father was neglecting his children by leaving them in the maternal grandfather's care, and that if they were not removed from that situation they would be at risk of harm, and then ordered them to live in that same home, under mother's care.
The adjudication hearing was conducted on January 28, 2010; father was the only witness. Most of his testimony reiterated information in the DCFS reports, which were admitted into evidence. Father also explained that he had not come back to Los Angeles in September and October as originally planned because he had just gotten a job in Texas, would have lost his job if he had left, did not yet have an appropriate place for the children to live, and knew that his children "were in a safe place with [the maternal] grandfather."
DCFS sought jurisdiction under multiple subdivisions of section 300, only two of which are here at issue: failure to protect Damaris from sexual abuse (b-1) and failure to protect the children by failing to provide them with the necessities of life including food, clothing, shelter and medical care (b-2).
As to jurisdiction based on the molestation of Damaris, DCFS argued as follows: "Clearly, father is trying to make a better life for his family and is trying to get a good job, and I know that good jobs are hard to come by in California. And father made an effort to make an appropriate plan before he left, and the plan he made with the Department, to leave the children with his mother, seemed like it was going to be an appropriate plan, but, unfortunately, soon after he left the children with his mother, the mother's male companion molested Damaris. The Department is not saying that the father could have foreseen this. They are not blaming him for that. But what happened is this did result in this happening, and this child was molested, and I don't believe that either parent is refuting that this happened to this child. She is consistent with her statements. It is very unfortunate, but that is what happened, because of father leaving this happened. So it was due to father's absence that this happened. So if the court is not willing to sustain it as a (d), it is certainly a (b) because father wasn't there, and it is not that he failed to protect, he was unable to protect because he wasn't here."
The court sustained the b-1 count relating to the molestation of Damaris, stating: "I am not accusing the father with anything that has to do with any sex abuse by the child. He wasn't there. I believe that he knew nothing about this person." Consequently, the court did not deem father's plan to leave the children with his mother "inappropriate," and struck that language from the allegation. The court nevertheless found that father was the cause-in-fact of F.M.'s abuse of Damaris: "[B]ut for his not being there and but for his not being in the home where he lived originally with the children, where the court placed the children in the family law orders, the child was sexually abused . . . and I think that that's an inability to protect, and I am sustaining that."
With respect to the allegation based on the maternal grandfather's care of the children, DCFS argued "The record reflects, and father's testimony also confirms, that [father] tried to make a plan with the Department. But what is clear from the reports, that maternal grandfather didn't really know what was happening. He didn't know what father's intentions were. He did not have the medical card or the EBT card, but in fact, the mother had those items, or at least the EBT card." DCFS continued, "I really think that father just was doing the bare minimum for keeping his children safe while he was in Texas. I think that perhaps he believes that this was enough, that the Department knew where he was and that the mother was around and that the children were with the grandfather, but it really wasn't enough." DCFS does not explain what "the bare minimum" means if it does not mean it was just barely enough.
In sustaining this allegation, the court stated: "The Department said to him, if you agree, we'll just let the children stay with the maternal grandfather, and he agreed to that, and that plan seemed to be okay. And it is whether or not father failed to provide the children with the necessities of life. And I believe he has. . . . I don't think that just leaving these two cards with his mother, without knowing exactly how much was still on the card, or how much that meant to the children every month. So I am sustaining (b)(2)."


1. Allegation based on F.M.'s abuse of Damaris
"The three elements for a section 300, subdivision (b) finding are: '(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) "serious physical harm or illness" to the [child], or a "substantial risk" of such harm or illness.' (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)" (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1395-1396.) It is clear to me that none of the three elements identified above are present in this case: Father was not neglectful, his conduct did not cause the sexual abuse, and there is no evidence that Damaris suffered "serious physical harm or illness," or is at substantial risk of such harm or illness.
DCFS appears to believe that it had met its burden of proof with respect to all three of the necessary elements under subdivision (b) by pointing to the undisputed evidence that F.M. molested Damaris. However, DCFS was required to establish not simply that Damaris was harmed, but that father neglected her, and that his neglect caused the harm. There is no evidence of neglect.[4] DCFS cannot establish father's neglect by pointing out that something bad happened. Rather, it must prove that father's conduct was negligent. While the allegation of the petition sought to identify father's negligence as making an "inappropriate plan," the juvenile court specifically struck that allegation, presumably in recognition of the fact that DCFS itself had approved that plan.
Of course, if in the course of its investigation DCFS had learned that father had failed to take action upon learning of Damaris's report of abuse, DCFS would have evidence of father's neglect. However, all of the evidence is to the contrary: Father told mother to report the incident to DCFS and to have Damaris examined by a medical professional; and he concurred in DCFS's suggestion that the children be placed with maternal grandfather, and arranged for that to happen. No one claims that father's conduct in relocating the children to maternal grandfather's home in response to the sexual abuse allegation put the children at risk of sexual abuse, or any other harm. In short, no neglect, no jurisdiction. That should end the inquiry of whether jurisdiction may be asserted based on the molestation of Damaris.
There was also a dearth of evidence of causation. Contrary to the juvenile court's finding, father was not a legal cause of the harm Damaris suffered at the hands of F.M. DCFS's suggestion, and the juvenile court's ruling, that a parent's absence from home at the time a third party does harm to a child alone establishes juvenile court jurisdiction pursuant to subdivision (b) of section 300, in the absence of evidence that the parent was negligent in leaving the child in the custodian's care, flies in the face of common sense and logic. Parents cannot always keep their children by their sides: In order to maintain a home and support their families they must work, conduct personal business outside the home, and may even enjoy the company of adults outside the presence of their children. Children go to school, play sports and enjoy a myriad of activities in which their parents play no part. It is a fact of modern life that nearly all children, at some time or other and often routinely, are left in the care of persons not their parents. It is also an unfortunate fact of life that some adults do harm to the children in their care. DCFS cites no case affirming the juvenile court's jurisdiction based on failure to protect a child from the conduct of a custodian with whom the child has been left absent a finding that the parent was negligent in choosing the custodian. This is not surprising, for subdivision (b) of section 300 does not sanction the state's interference in a family's life when, through no fault of the parent, the child suffers harm at the hands of a third party.



2. Allegation based on father leaving children in care of maternal grandfather
It is DCFS's burden to establish the same three elements with respect to its allegation of jurisdiction based on count b-2, the facts surrounding father's conduct in leaving the children with maternal grandfather. DCFS argued to the juvenile court that father's neglect consisted of failing to inform maternal grandfather of his intentions and failing to ensure that grandfather had physical possession of the EBT and medical cards. DCFS faulted father for changing his return date, and suggested that the fact that when he left he did not know precisely when he would return, and that he did not return on the dates he had told people that he expected to, "was not an appropriate plan. It was not a secure plan." The juvenile court rejected the latter assertion, finding that father failed to return to California as originally scheduled because he did not have the money to do so, "and was trying to make enough in Texas to have the children. . . ." The court based jurisdiction on father's failure to provide: "I also believe that [] once he gave that card to the mother, to his mother, that was the end of his providing . . . further for
them. . . . I don't think he has taken any further steps, as I say, to provide for their food, clothing, shelter, and medical care. I have not seen any testimony as to that. I have not heard anything as to that. I don't think that just leaving these two cards with his mother, without knowing exactly how much was still on the card, or how much that meant to the children every month. So I am sustaining (b)(2)."
In fact, the evidence was undisputed that (1) the children's mother (that is, the caretaker's daughter), not father's mother, had possession of the EBT card; (2) at least $300, and as much as $900, in public assistance benefits was automatically loaded onto the EBT card each month; (3) mother used those funds to buy food for the children, which she delivered to her father's home every other week,[5] and (4) the children were in fact, provided the necessities of life. Thus, the court made its finding of neglect on faulty information. And if, as it appears, the basis of the court's finding of jurisdiction is that father left the EBT and medical cards with either mother or paternal grandmother when he should have transferred them to maternal grandfather, surely, consistent with the mandate of the statute, the court could have fashioned a remedy which addressed that situation short of removing the children from father's custody. In fact this was unnecessary, because at the time DCFS filed the petition, father had secured employment, obtained housing, and was ready, willing and able to resume his care of the children.
In addition to the insubstantial evidence upon which the juvenile court made its finding of neglect is that fact that there is not a whit of evidence that either child "has suffered, or there is a substantial risk that [either] child will suffer, serious physical harm or illness," the statutory requirement for the assertion of jurisdiction. Indeed, on appeal, DCFS acknowledges "that no actual harm came to the children while they were in the maternal grandfather's care." Citing a case concerning the assertion of jurisdiction over a child with cancer, whose Christian Science parents wished to rely solely on "Christian Science treatment" to the exclusion of the child's physician's recommended medical treatment (In re Eric B. (1987) 189 Cal.App.3d 996, 1004), DCFS tells us that there is no requirement of actual harm: "Juvenile authorities are not barred from aiding children until they suffer actual malnutrition, lack of shelter, clothes or medical care." While this is no doubt true, the authorities are barred from interfering with a parent's right to the care, custody and control of his children when there is no evidence either that the children suffered serious physical harm in the past, or are at risk of suffering such harm in the future.[6]
In sum, the record in this case is devoid of evidence which would support a jurisdictional finding under section 300, subdivision (b). In these times when the challenges to DCFS's mandate to protect children is front page news, it is disheartening to see the Department choose to expend its limited time and resources on this family after it had satisfied itself that the children were safe and secure in the home which DCFS itself had deemed appropriate.



ARMSTRONG, J.



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