Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK72624 Stephen Marpet, Commissioner.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Fred Klink, Senior Deputy County Counsel, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
A.O. (Father) appeals from an order declaring his minor daughters, J.O. and K.O., dependent children of the court, denying him presumed father status and denying him reunification services. Father claims the juvenile court’s findings are not supported by substantial evidence, the court employed the wrong legal standards, and the court abused its discretion in denying reunification services. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In early 2008, the Department of Children and Family Services (DCFS) received a referral as to 10-year-old J.S., the daughter of A.S. (Mother). J.S. was living with her maternal great grandparents, who had been appointed her legal guardians in 2004 due to Mother’s drug use. During the DCFS investigation, J.S. reported that Mother used drugs. She also stated that she believed Mother hit her two half-sisters, four-year-old J.O. and two-year-old K.O., to punish them. Although she never saw Mother hit the girls, and Mother never hit her, J.S. saw J.O. with a black eye and thought Mother had hit her.
On March 14, 2008, the Children’s Social Worker (CSW) went to Mother’s home. The home was clean, with no safety hazards. J.O. and K.O. were watching age appropriate television. Mother assisted in disrobing the girls so the CSW could examine them; they showed no evidence of abuse. Mother also provided the results of medical examinations the previous month indicating that the girls were healthy and showed no signs of abuse.
The CSW noted that the girls appeared to be well bonded to each other and to Mother. The girls spent time with the maternal great grandparents, showing that Mother had the support of her extended family. Mother said that she was not currently in a relationship with a man. Her last relationship had been with Father, to whom she had never been married. Mother stated that Father was incarcerated in federal prison in Adelanto, California. She had been with him in June 2007 when he was arrested attempting to smuggle marijuana across the border from Mexico; she claimed not to have known at the time that he was involved in drug smuggling. She also claimed that Father had been physically and verbally abusive toward her, and one incident of domestic violence had required police intervention. She acknowledged, however, that Father wrote letters to her and the girls.
Mother denied using illegal drugs. At DCFS’s request, she agreed to drug test for about a month. She failed to show up for the first test, passed the second and failed to show up again for the third. The fourth test was positive for methamphetamine. She denied using the drug but claimed she was with someone—who she refused to identify—who was using the drug.
DCFS obtained Mother’s criminal history, which showed a 2003 arrest for inflicting corporal injury on a spouse/cohabitant arising out of an altercation with Father, in which he was also arrested. Mother was detained in June 2007 in conjunction with Father’s arrest for importing a controlled substance. Mother was arrested in January 2008 for petty theft. She also had been charged with driving with a suspended license.
The CSW believed that Mother’s “current substance abuse seriously impairs her ability to supervise, protect, or care for” the girls. Removing the girls from her care “is the only protecting intervention possible to ensure the safety of [the girls] as they would otherwise be in danger of immediate or serious harm.”
On April 16, 2008, DCFS filed a petition under Welfare and Institutions Code section 300, subdivisions (b) and (g). The petition alleged the girls had suffered or there was a substantial risk that they would suffer serious physical harm or illness as a result of their parents’ inability to supervise them adequately or to provide them with regular care due to substance abuse. (§ 300, subd. (b).) Specifically, it alleged that Mother had a history of substance abuse and currently abused amphetamine and methamphetamine, endangering the girls’ physical and emotional health and safety. (Par. b-1.) Mother and Father had a history of domestic violence which endangered the girls’ physical and emotional health and safety. (Par. b-2.) Father failed to provide the necessities of life for the girls, endangering their physical and emotional health and safety. (Par. b-3.)
Unless otherwise specified, all further section references are to the Welfare and Institutions Code.
The petition further alleged that Father had been incarcerated and could not arrange for the care of the children. (§ 300, subd. (g).) His failure to provide for the girls endangered their physical and emotional health and safety. (Par. g-1.)
At the April 16, 2008 detention hearing, Mother identified Father as the father of J.O. and K.O. She stated that she was not married to or living with him when J.O. was born, he was not on her birth certificate, he had not financially supported J.O., and he had not taken her into his home and treated her as his own. He was incarcerated when J.O. was born, but he lived with Mother and J.O. after he was released, when J.O. was one and one-half years old. He was still living with them on and off when K.O. was born. He did not financially support K.O. either. The juvenile court noted that it appeared Father was a biological/alleged father. It appointed counsel for him and ordered counsel to contact Father concerning the case.
The juvenile court found a prima facie case for detention. It ordered DCFS to provide Mother with referrals for drug counseling and testing, as well as to assess Mother regarding participation in the drug court program.
J.O. and K.O. were initially placed in foster care. On May 19, 2008, they were placed with their paternal grandmother.
In a May 21, 2008 jurisdiction/disposition report, the CSW reported that the federal prison authorities had not allowed him to interview Father. He had interviewed Mother, who stated that she and Father had lived together about three of the seven years she had known him. The girls had occasionally lived with him; at one point in 2007, they had all lived together at the paternal grandparents’ home. Father rarely worked or provided support for the children. Since his incarceration in 2007, he had not seen the girls or provided anything for their support.
Mother also told the CSW that Father had physically, verbally and mentally abused her, starting when she was pregnant with J.O. He had struck or pushed her and pulled her hair on numerous occasions. She had separated from him many times when he was violent, but they had reconciled and gotten back together.
Mother acknowledged using alcohol and marijuana as a teenager. She began using crystal methamphetamine several years earlier, when she was 27. She claimed she used it “sparingly,” and the last time she had used it was a week before the girls were detained. She admitted using drugs even after she knew that DCFS was investigating her and had asked her to drug test.
Mother reported that Father drank heavily and used marijuana and methamphetamine. She had never seen him use the drugs when the children were present, however. She also reported that he was involved in gang activity. She stated that Father was not due to be released from prison until 2009.
The CSW expressed concern that “Mother’s adamant denial of drug use, her insistence on being drug free, and the Mother’s inability to remain drug free during the initial phases of the investigation, lead the [DCFS] to conclude that the Mother has a much more significant drug problem than she cares to admit.” The CSW also was concerned that despite knowledge of Father’s drug problems, Mother took one of the girls with her on the trip to Mexico which resulted in Father’s arrest for drug smuggling. The CSW had additional concerns regarding Mother’s continuing relationship with Father despite multiple instances of domestic violence.
DCFS filed a first amended section 300 petition on May 30, 2008. This petition added allegations regarding Mother’s and Father’s history of domestic violence (par. b-2) and Father’s history of substance abuse (par. b-4).
The CSW was permitted to conduct a telephone interview with Father and filed a supplemental report on June 5, 2008. The CSW reported that Father was scheduled to be released from prison in August 2009. Father claimed that despite his many separations from Mother, he has always maintained contact with and provided for his children. He acknowledged, however, that he was unable to provide for his children during his periods of incarceration.
According to Father, his separations from Mother were due to her drug use. Additionally, incidents of domestic violence involved only mutual name-calling and pushing; he never hit Mother.
Father acknowledged a history of drug use but claimed not to have used drugs since 2003. The attempt to smuggle drugs into the country was simply a way to earn money so he could pay the bills. He denied that Mother knew anything about the attempt beforehand. He added that he did not intend to reunite with Mother after he was released from prison and he wanted the girls to remain with their paternal grandmother.
The CSW did not recommend that Father be provided with reunification services, since he was found to be only an alleged father and was incarcerated (§ 361.5, subd. (e)). If reunification services were granted, however, the CSW recommended that they include drug counseling and testing and a domestic violence program. The CSW recommended to Father that he participate immediately in the drug counseling and testing programs offered at the prison where he was incarcerated.
Father then filled out a form JV-505 Statement Regarding Parentage in which he checked the box indicating he did not know if he was the parent of J.O. and K.O. and requested blood or DNA testing. He wrote that the girls lived with him from February 2005 to June 2007; he told his mother, grandmother and other relatives that the girls were his, and he took the girls to visit with grandparents and to family reunions. He gave the girls shelter, food, medical care and clothing; he took them on outings and taught them the alphabet and colors.
At the jurisdiction/disposition hearing on July 17, 2008, Father’s counsel submitted the Form JV-505 in lieu of Father’s testimony, since he could not be brought to court from federal prison. Counsel told the court that Father wanted to be declared a presumed father. Counsel also pointed out that at the time the juvenile court found him to be an alleged father, the court had only heard from Mother; Father had not yet been interviewed.
The juvenile court did not find the JV-505 “persuasive relative to the statements made by Mother,” particularly since Father checked the box indicating he did not know if he was the father of the girls. The court also noted that despite his claims of support, Father did not support the girls while he was incarcerated. The court found that Father was an alleged father. Additionally, Father was going to be incarcerated beyond the statutory time limit. For those reasons, the court intended to deny him reunification services.
The juvenile court sustained the amended petition, declaring the girls to be dependent children of the court pursuant to section 300, subdivisions (b) and (g). It ordered reunification services for Mother, but it denied reunification services to Father pursuant to section 361.5, subdivisions (a) and (e). It ordered monitored visitation for both Mother and Father.
DISCUSSION
A. Standing
DCFS asserts that Father lacks standing to challenge the jurisdictional findings that pertain to Mother alone. It relies on the principle that a parent does not have standing to challenge a ruling unless his personal rights are affected by the ruling. (In re D.S. (2007) 156 Cal.App.4th 671, 674.) Thus, “a would-be appellant ‘lacks standing to raise issues affecting another person’s interests.’” (Ibid.)
DCFS also relies on the principle that in order to take jurisdiction over a child, the court need not make jurisdictional findings against both parents. (In re P.A. (2007) 155 Cal.App.4th 1197, 1212.) Therefore, “‘a jurisdictional finding good against one parent is good against both.’” (Ibid., quoting from In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) Ironically, it is this very principle which supports a conclusion that Father has standing to challenge the jurisdictional findings as to Mother.
To the extent the jurisdictional findings as to Mother resulted in the juvenile court’s exercise of jurisdiction over J.O. and K.O., Father has been aggrieved by those findings. The girls have been declared dependents of the court, and he has been declared an alleged father and denied reunification services. He is now in the position where his parental rights may be terminated unless he takes action. He thus has standing to challenge the findings. (See, e.g., In re Silvia R. (2008) 159 Cal.App.4th 337, 344-345; see also In re Frank L. (2000) 81 Cal.App.4th 700, 703-704.)
B. Standard of Review
The juvenile court’s jurisdictional findings must be supported by a preponderance of the evidence. (§ 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) We review the court’s findings under the substantial evidence test. (In re Heather A. (1996) 52 Cal.App.4th 183, 193; In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318-1319.) We will uphold the findings if they are supported by credible evidence of solid value. (Matthew S., supra, at p. 1319.) In determining whether substantial evidence supports the findings, we view the evidence in the light most favorable to the findings, drawing all reasonable inferences in support of the findings. (Heather A., supra, at p. 193; In re Tania S. (1992) 5 Cal.App.4th 728, 733.)
C. Jurisdictional Findings
1. Mother’s Drug Abuse
Father asserts that evidence of Mother’s drug abuse, with no showing of risk to J.O. and K.O., cannot support a jurisdictional finding under section 300, subdivision (b). We agree.
Subdivision (b) of section 300 provides, in pertinent part, dependency jurisdiction may be asserted if “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child,... or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.”
A jurisdictional finding under section 300, subdivision (b), requires either neglectful conduct on the part of the parent causing serious physical harm or illness, or a substantial risk of such harm or illness. (In re David M. (2005) 134 Cal.App.4th 822, 829.) DCFS must present evidence showing that, at the time of the hearing, “‘“the child is exposed to a substantial risk of serious physical harm or illness.”’” (Ibid.)
In In re David M., supra, while there was evidence that the mother had mental and substance abuse problems, and the father had mental problems, the evidence “was never tied to any actual harm” to the children. (134 Cal.App.4th at p. 829.) While the younger child had been removed from the parents at birth, there was uncontradicted evidence that the older child “was healthy, well cared for, and loved, and that mother and father were raising him in a clean, tidy home.” (Id. at p. 830.) Their problems had not affected their ability to provide a decent home for their child. (Ibid.) The court therefore concluded that there was no substantial evidence to support the juvenile court’s finding of a substantial risk of serious physical harm or illness. (Id. at pp. 831-832.)
The situation here is similar. There was evidence of Mother’s history of drug abuse and her continuing drug problem. However, there was no evidence that J.O. and K.O. had been physically abused, the basis of the original DCFS investigation. The CSW observed that the family home was clean, with no safety concerns or hazards. The children were watching age appropriate television. In caring for the girls, Mother had the support of her extended family.
There was no evidence tying Mother’s drug abuse to any past physical harm to J.O. and K.O. or “any evidence of a specific, defined risk of harm” resulting from her substance abuse. (In re David M., supra, 134 Cal.App.4th at p. 830.) “Certainly, it is possible to identify many possible harms that could come to pass. But without more evidence than was presented in this case, such harms are merely speculative.” (Ibid.)
DCFS attempts to distinguish David M. from the instant case on the ground the mother in that case used marijuana, while Mother here used methamphetamine. DCFS cites “evidence”—from a website—that was not before the trial court when it made its ruling. It is well established that “‘an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.’” (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Inasmuch as the juvenile court did not consider evidence pertaining to methamphetamine, as opposed to other drugs, we do not consider it.
DCFS also suggests the David M. was wrongly decided, in that it is “questionable that a court that recognizes the mother in the case before it has ‘unresolved’ problems with substance abuse [citation], could nevertheless find the evidence of risk to her extremely young children to be not supported by substantial evidence.” We perceive no problem with the David M. opinion. It simply requires that DCFS do a thorough investigation to determine what dangers, if any, a parent’s substance abuse problems pose for the children before removing those children from the parent’s home. If there is no “specific, defined risk of harm” resulting from her substance abuse (In re David M., supra, 134 Cal.App.4th at p. 830), less drastic measures are available to protect the children. (See, e.g., § 16506, subd. (b) [family maintenance services available where child is in “potential danger,” and family accepts services to correct the problems].)
The foregoing analysis also applies to the allegation concerning Father’s history of drug abuse. There was no evidence of current drug use or of “any evidence of a specific, defined risk of harm” resulting from his history of drug abuse. (In re David M., supra, 134 Cal.App.4th at p. 830.) Consequently, there is no substantial evidence to support the jurisdictional finding based on Father’s drug abuse.
2. Domestic Violence
Father contends that evidence of his and Mother’s history of domestic violence, with no showing of current risk to J.O. and K.O., cannot support a jurisdictional finding under section 300, subdivision (b). Again, we agree.
As previously stated, a jurisdictional finding under section 300, subdivision (b), requires a showing that, at the time of the hearing, “‘“the child is exposed to a substantial risk of serious physical harm or illness.”’” (In re David M., supra, 134 Cal.App.4th at p. 829.) Father claims there is no evidence of substantial risk to the girls due to domestic violence, in that he is incarcerated, and he and Mother have no plans to get back together after he is released from prison.
As Father notes, “[w]hile 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. (1991) 1 Cal.App.4th 814, 824; accord, In re Janet T. (2001) 93 Cal.App.4th 377, 388.) Thus, evidence of past conduct alone is insufficient to support a jurisdictional finding under section 300. (Rocco M., supra, at p. 824.) “‘[T]here must be some reason beyond mere speculation to believe [such conduct] will reoccur. [Citations.]’ [Citation.]” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394, italics omitted.) In light of Father’s incarceration and his stated intention not to reunite with Mother after his release from prison, there is no evidence that the domestic violence would reoccur or that, at the time of the hearing, J.O. and K.O. were at substantial risk of serious physical harm or illness due to domestic violence. (See, e.g., In re Steve W. (1990) 217 Cal.App.3d 10, 22.)
DCFS responds that “violence in the home supports a finding under subdivision (b) of section 300 because of the possibility the parents’ violent conduct will result in injuries to their children.” (See In re Heather A., supra, 52 Cal.App.4th at p. 194.) DCFS adds that Mother’s and Father’s propensity to reconcile after separation creates the substantial risk of injury to the girls.
If Father were not incarcerated, DCFS’s argument might have some merit. In light of his incarceration, however, at the time of the hearing there was no possibility he and Mother would reconcile, live together and repeat their domestic violence, placing J.O. and K.O. at substantial risk of harm. (See, e.g., In re Steve W., supra, 217 Cal.App.3d at p. 22.) Consequently, the jurisdictional finding based on domestic violence is not supported by substantial evidence.
3. Father’s Incarceration
DCFS agrees that the juvenile court’s finding under subdivision (g) of section 300 is unsupported by substantial evidence. Subdivision (g) applies if a “parent has been incarcerated or institutionalized and cannot arrange for the care of the child.” While Father was incarcerated, J.O. and K.O. were placed with their paternal grandmother, who was able to care for them without financial assistance from DCFS. These facts support a finding Father would have been able to arrange for the girls’ care if given the opportunity to do so. (In re S. D. (2002) 99 Cal.App.4th 1068, 1077; In re Aaron S. (1991) 228 Cal.App.3d 202, 208-209.)
4. Father’s Failure to Provide the Necessities of Life
There was one additional basis on which the trial court sustained the section 300 petition: Father’s failure to provide J.O. and K.O. with the necessities of life, endangering their physical and emotional health and safety and placing the girls at risk of physical and emotional harm and damage. As we discuss in greater detail below, substantial evidence supports the juvenile court’s finding that Father failed to provide financial support for the girls. This did not provide a basis for asserting jurisdiction over the girls, however.
Although Father failed to provide support for J.O. and K.O., Mother supported them. There was no evidence that they had been deprived of food, clothing or shelter. There thus was no basis for asserting jurisdiction over the girls under section 300, subdivision (b), based on Father’s failure to support them. (In re Janet T., supra, 93 Cal.App.4th at p. 392; In re Matthew S., supra, 41 Cal.App.4th at p. 1319.)
C. Legal Standards for Determining Disposition
Father contends the juvenile court erred in failing to employ the procedures found in section 361.2 to determine the girls’ disposition. This section provides that when the juvenile court orders that a child be removed from a parent’s custody, “the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with that parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).)
DCFS argues that the foregoing section applies only to a presumed father, which Father is not. Father claims that the trial court erroneously found him to be an alleged father, rather than a presumed father and, in any event, section 361.2 applies to alleged fathers as well as presumed fathers.
In In re Zacharia D. (1993) 6 Cal.4th 435, the Supreme Court addressed the meaning of the word “parent” as used in section 361.5. The court noted that while “parent” is not defined in the dependency statutes, it is defined in the Uniform Parentage Act (UPA, Fam. Code § 7600 et seq. (formerly Civ. Code, § 7000 et seq.)), which sets forth the ways in which a father can become a presumed father. (Zacharia D., supra, at pp. 448-449.) The court concluded that the dependency statutes impliedly incorporated the UPA definition of “parent.” “Applying the UPA definition to the dependency context, [the court] conclude[d] that only a presumed, not a mere biological, father is a ‘parent’ entitled to receive reunification services under section 361.5.” (Id. at p. 451.) It follows that “parent” within the meaning of section 361.2 includes a presumed father only, not an alleged or biological father.
Specifically, Family Code section 7610 provides the method of establishing a parent and child relationship between a child and the natural father. Family Code section 7611 lists the ways in which a father can qualify as a natural father. Family Code section 7660 refers to a “presumed father under Section 7611.”
Father argues that in In re V.F. (2007) 157 Cal.App.4th 962, the court held that the juvenile court erred in failing to make a finding under section 361.2, subdivision (a), even though the father was “merely the alleged father with respect to his youngest child.” Inasmuch as the father was the presumed father of the older children (V.F., supra, at p. 966), it cannot be said that the case stands for the proposition that an alleged father is a parent within the meaning of section 361.2. (People v. Neely (1999) 70 Cal.App.4th 767, 783 [decision is only authority on points passed upon by the court and directly involved in the case].)
This brings us to the question whether the juvenile court erred in finding that Father was an alleged or biological father rather than a presumed father. Family Code section 7611, subdivision (d), provides that a father may be found to be a presumed father if “[h]e receives the child into his home and openly holds out the child as his natural child.” A father seeking to be declared a presumed father must establish by a preponderance of the evidence both that he received the child into his home and that he held out the child as his natural child. (In re A.A. (2003) 114 Cal.App.4th 771, 782.) We apply the substantial evidence test in reviewing the juvenile court’s determination as to presumed fatherhood status. (Ibid.) Where, as here, there is conflicting evidence, we resolve all conflicts and draw all inferences in favor of the juvenile court’s determination. (Ibid.)
Father argues that he clearly met these requirements, and the juvenile court erroneously required a finding that he supported J.O. and K.O. in order for him to be found to be a presumed father. In Father’s view, the court confused the test for a presumed father with the test for a Kelsey S. father, the latter of which includes a financial support component.
In Adoption of Kelsey S. (1992) 1 Cal.4th 816, the Supreme Court held that “[i]f an unwed [biological] father promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.” (Id. at p. 849.) Kelsey S. addressed the rights of a biological father who was prevented from attaining presumed father status by the child’s mother. Kelsey S. is relevant only when the mother has prevented the biological father from becoming a presumed father. (See In re Kiana A. (2001) 93 Cal.App.4th 1109, 1117.)
The dependency statutes do not refer to a Kelsey S. father, only to a presumed father within the meaning of Family Code section 7611. DCFS acknowledges that this section does not contain a financial support component. As DCFS points out, however, the courts nonetheless look at financial support when determining whether a father is a presumed father.
It has been held that receiving a child into one’s home within the meaning of Family Code section 7611 requires more than allowing the child to live in the home for a period of time. It requires the father to demonstrate “a consistent commitment to assume the burdens of parenthood.” (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.) The father must, to the extent possible, make the child a part of his family and care for the child. (See, e.g., In re Richard M. (1975) 14 Cal.3d 783, 795-796.) Providing a child with financial support for the necessities of life is one factor in determining whether a biological father has received a child into his home within the meaning of Family Code section 7611. (See, e.g., In re A.A., supra, 114 Cal.App.4th at p. 784; In re Kiana A., supra, 93 Cal.App.4th at pp. 1116-1117.)
Viewed in the light most favorable to the juvenile court’s findings, the evidence established that while Father held J.O. and K.O. out as his natural children, he never took them into his home. He lived with them for a portion of their lives—in Mother’s home and in the paternal grandparents’ home—but he never took them into his home. He did not provide the girls significant or consistent financial support and he did not demonstrate “a consistent commitment to assume the burdens of parenthood.” (In re Spencer W., supra, 48 Cal.App.4th at p. 1653.) There is no evidence he ever attempted to have his name put on the girls’ birth certificates as their father. Under these circumstances, substantial evidence supports the juvenile court’s determination that Father was not a presumed father within the meaning of Family Code section 7611. (See, e.g., id. at pp. 1653-1654; In re Sarah C. (1992) 8 Cal.App.4th 964, 972-973.)
Inasmuch as Father does not qualify as a presumed father, section 361.2 was inapplicable to him. (Cf. In re Zacharia D., supra, 6 Cal.4th at p. 451.) Therefore, the juvenile court did not err in refusing to follow the procedures set out in that section.
D. Reunification Services
As stated above, “only a presumed, not a mere biological, father is a ‘parent’ entitled to receive reunification services under section 361.5.” (In re Zacharia D., supra, 6 Cal.4th at p. 451.) Since Father did not qualify as a presumed father, the juvenile court did not err in denying him reunification services under section 361.5.
Since the decision in Zacharia D., section 361.5, subdivision (a), has been changed to provide that “[u]pon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child.” Father does not argue that the trial court abused its discretion in declining to order services under this provision on the ground he established that the provision of services would benefit J.O. and K.O. Rather, he takes the position that, as a presumed father, reunification services were mandatory unless DCFS proved they would be detrimental to the girls. As discussed above, Father’s position is erroneous.
E. Conclusion
We have concluded that there is no substantial evidence supporting the juvenile court’s jurisdictional findings, and its order must be reversed. This “does not mean the DCFS cannot try again,” but only that “DCFS failed to prove the grounds it asserted or to assert the grounds it might have proved.” (In re Janet T., supra, 93 Cal.App.4th at p. 392.) For this reason, we have discussed the juvenile court’s findings regarding Father’s status as an alleged or biological father only. It is now up to him to take the steps necessary to become a presumed father to protect his parental rights over J.O. and K.O.
DISPOSITION
The jurisdictional order is reversed and the cause remanded for any further proceedings required in accordance with this opinion.
I concur: WOODS, J.
PERLUSS, P. J., Dissenting.
Welfare and Institutions Code section 300, subdivision (b), provides a child may be adjudged a dependent of the juvenile court when 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....” Exercise of dependency court jurisdiction under subdivision (b) is proper when a child is “of such tender years that the absence of adequate supervision and care poses an inherent risk to [his or her] physical health and safety.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
Statutory references are to the Welfare and Institutions Code.
The evidence in this case established Arlene S., the mother of J.O. (four years old at the time of the July 17, 2008 jurisdiction hearing) and K.O. (two years old at the time of the jurisdiction hearing), had a significant history of abusing methamphetamine—abuse that occurred over at least the past three years. Indeed, she tested positive for methamphetamine use even after the children had been detained by the Los Angeles County Department of Children and Family Services (Department). The children’s father, Arturo O., was in federal prison on drug-related charges and had his own substance abuse problems. As the Department acknowledges, however, there was no evidence the children had yet suffered any actual harm as the result of Arlene S.’s drug abuse and Arturo O.’s absence from the home.
In addition to testing positive on one drug test after the children had been detained, Arlene S. failed to appear for two other tests she had agreed to take. Although insisting she used the drug only “sparingly,” Arlene S. conceded she had used the drug one week before this case was initiated by the Department.
It may be, as our colleagues in Santa Ana held in In re David M. (2005) 134 Cal.App.4th 822, 830, that absent “evidence of a specific, defined risk of harm,” juvenile court jurisdiction is not warranted under section 300, subdivision (b), based on a showing a child’s mother has a limited substance abuse problem with marijuana and unrelated mental health issues. (See also Jennifer A. v. Superior Court (2004) 117 Cal.App.4tth 1322, 1346 [evidence insufficient to support finding that mother’s use of marijuana on one occasion created substantial risk of detriment to the children’s physical or emotional well-being when there was no evidence of clinical substance abuse, no testimony from a medical professional, no testimony of a clinical evaluation and no testimony linking marijuana and alcohol use to her parenting skills or judgment].) Sadly, however, it is all too well-known to bench officers in dependency court (as it is to those of us on the appellate courts who review dependency cases) that long-term abuse of methamphetamine is not comparable to occasional marijuana use.
Although it certainly would have been preferable for the Department to introduce evidence of the negative consequences of methamphetamine abuse, particularly as it relates to mood disturbances, anxiety, confusion, hallucinations and aggressive or violent behavior, given the children’s ages (two and four years old), I believe the evidence of on-going methamphetamine abuse alone is sufficient to support the juvenile court’s finding there was a substantial risk the children would suffer serious physical harm as a result of Arlene S.’s inability to supervise them. Under the circumstances present here such abuse, in my view, “poses an inherent risk to their physical health and safety.” (In re Rocco M., supra, 1 Cal.App.4th at p. 824.)
Whether, in the absence of any evidence of actual harm, it was proper to remove the children from Arlene S.’s physical custody under section 361, subdivision (c)(1), rather than providing means to assure they were protected in their home, is not before us because Arlene S. has not appealed from the disposition order.
Accordingly, I would hold the juvenile court properly assumed jurisdiction over the children even if the allegations regarding domestic abuse between Arlene S. and Arturo O. or Arturo O.’s own drug abuse problems were not properly sustained.