Opinion
B315050
08-05-2022
In re E.K., a Person Coming Under the Juvenile Court Law. v. B.K., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Mansi Thakkar, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 21CCJP02826A, Steff R. Padilla, Judge Pro Tempore of the Juvenile Court. Reversed and vacated.
Mansi Thakkar, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
EGERTON, J.
Father challenges a juvenile court order declaring his five-year-old daughter E.K. a dependent child under Welfare and Institutions Code section 300, subdivision (b), and removing E.K. from his physical custody. The dependency petition alleged E.K. was at risk of suffering serious physical harm due to parental neglect because father drove under the influence of alcohol and overturned his vehicle while E.K. and mother were passengers in the car. Fortunately, father had secured E.K. in her car seat and the child was not injured.
Statutory references are to the Welfare and Institutions Code.
Father contends this was a one-time incident that is insufficient to support dependency jurisdiction under section 300, subdivision (b). Father maintains the juvenile court-because of its mistaken belief that father had a past conviction for driving under the influence-erroneously failed to evaluate the present circumstances at the time of the adjudication hearing to determine whether E.K. faced a current and continuing risk of harm due to parental neglect. The record supports father's contention. Despite the profound seriousness of his endangering conduct, nothing in the record supported a finding that father's understanding of the risks of inappropriate alcohol use was so materially deficient that he remained unable to supervise or protect his daughter at the time of the adjudication hearing. Because a juvenile court cannot exercise dependency jurisdiction under section 300, subdivision (b) where the evidence fails to establish a current risk of harm, we must reverse the exercise of dependency jurisdiction and vacate the disposition order.
FACTS AND PROCEDURAL HISTORY
Consistent with our standard of review, we state the facts in the light most favorable to the juvenile court's findings, resolving all evidentiary conflicts in favor of the findings, and indulging all reasonable inferences to uphold the court's order. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022 (J.N.).)
On June 17, 2021, the Los Angeles County Department of Children and Family Services (the Department) filed a petition to declare E.K. (born October 2015) a dependent child. The petition alleged E.K. came within the juvenile court's jurisdiction because she had suffered, or was at substantial risk of suffering, serious physical harm "as a result of the failure or inability of [the child's] parent . . . to supervise or protect the child adequately" and "as a result of the willful or negligent failure of the child's parent . . . to supervise or protect the child adequately from the conduct of the custodian with whom the child has been left." (See § 300, subd. (b).)
The petition offered a single factual allegation to support the assertion of dependency jurisdiction. According to the petition:
"On [May 15, 2021], the child, [E.K.]'s mother . . . and the father . . . placed the child in a detrimental and endangering situation in that the father drove a vehicle while under the influence of alcohol and while the child and the mother were passengers in the vehicle. The father had BAC's (Blood Alcohol Contents) of .15% and .17%. Further, the father was involved in a traffic collision resulting in the vehicle overturning, the mother requiring medical attention and the mother sustaining a concussion and neck strain. On [May 15, 2021], the father was arrested for Driving Under the Influence of Alcohol and Child Endangerment. On [May 15, 2021], the mother was arrested for Child Endangerment. The mother knew, or reasonably should have known that the father was . . . driving the vehicle, while the father was under the influence of alcohol, and failed to protect the child. Such a detrimental and endangering situation established for the child by the mother and the father endangers the child's physical health and safety, and places the child at risk of serious physical harm, damage, danger and failure to protect."
On June 22, 2021, the juvenile court detained E.K. from her parents' custody, finding the Department made a prima facie showing of dependency jurisdiction. Father's attorney stated father "does deny the allegations [in the petition] strenuously as well as many of the accounts in the police report" of the incident, but counsel confirmed father was "willing to comply with the Department[,] including random screens, a parenting class, [and] any D.U.I. alcohol classes that might be related." Counsel said father "understands this was a very, very serious accident that could have seriously harmed his daughter, and he does not minimize that whatsoever," but he denied it was "due to him being under the influence." Due to father's active criminal case, his attorney requested an order prohibiting interviews about the facts of the case without his attorney present. The court made the requested order regarding father's interviews; granted the parents monitored visitation; ordered the Department to provide the parents referrals for drug counseling and testing, parenting classes, and individual counseling; and set a hearing for adjudication of the petition.
On September 10, 2021, the juvenile court held the contested jurisdiction and disposition hearing. The parents and Department submitted on the documentary evidence, which included: The Department's jurisdiction/disposition report and two last-minute information reports; letters from father's parenting skills course and individual counselor reporting on his progress and an Alcoholics Anonymous attendance log for father; and documents related to mother's progress in her services.
The evidence showed the following. On May 15, 2021, police responded to a reported traffic collision and overturned vehicle. When they arrived at the scene, the parents and E.K. were outside the vehicle, and father was holding E.K. on his lap. Emergency responders assessed the family and reported there were no injuries. The officers determined E.K. had been safely fastened in her car seat. The car was "totaled."
Father told one of the officers that he was the driver and had been involved in a traffic collision due to another vehicle cutting him off. The officer noticed the odor of alcohol on father's breath, his face was red and sweaty, his eyes were bloodshot and watery, and father staggered and had difficulty maintaining his balance as he spoke. Father denied he had consumed alcohol before driving. He initially submitted to a field sobriety examination, but then refused to take a preliminary alcohol screening after he failed to maintain distinct and sustained horizontal gaze nystagmus under examination.
Mother spoke to the other officer, who determined mother also smelled of alcohol and displayed symptoms of being under the influence. She reportedly was unable to give E.K.'s age and slurred her words when she spoke. Mother would not disclose who was driving, but E.K. said it was father.
The officers arrested father for driving under the influence and arrested both parents for child endangerment. They contacted E.K.'s maternal grandmother, who retrieved the child from the scene. Father submitted to a breathalyzer test at the police station, which returned BAC percentages of 0.15 and 0.17. Police booked the parents without incident.
On May 27, 2021, the Department interviewed the family at their home. The parents were cooperative. They had gone to a graduation party at a friend's home on the night of the incident and left E.K. with a maternal aunt. Mother said she was asleep when father stopped to pick up E.K. from the maternal aunt's home. She woke up when the car flipped over on its driver side and she fell out of her seat, hitting her neck and suffering a concussion. She said neither she nor father was drunk, reporting," 'All we had was water and I had a concussion, that's probably why my speech was slurred.'" Mother said the police did not test her for intoxication and, although she was arrested, the charges were dropped. She denied that she or father abused alcohol or any illicit substances.
In his initial interview at the home, without an attorney present, father likewise denied that he had consumed alcohol on the night of the incident. He said another car ran a stop sign, forcing him to stop abruptly to avoid a collision. He claimed the brakes then "locked up" and the car veered into the emergency turning lane. When he attempted to correct the steering, father said the car's "lane departure assistant attempted to correct the steering in the opposite direction," causing the car to flip on its driver side. He said he had secured E.K. in her car seat and she was not injured. Father denied that he or mother had a history with substance or alcohol abuse. He reported he had "an occasional beer or a light beer." He refused the Department's initial request for drug and alcohol testing, responding," 'I don't need to do that.' "
The social worker interviewed E.K. with the parents present. E.K. said the family was coming home from her aunt's home and that" 'Daddy was going too fast and the car was sliding.'" She said mother was asleep the entire time. E.K. was not injured. She said she knew "what alcohol is" and that" 'Daddy drinks beer all the time.'" Her mother told her" 'Daddy was drinking water'" on the night of the incident. She denied seeing anyone in the home act drunk or strange or sleep for long periods of time.
The maternal grandmother retrieved E.K. from the scene, but the police would not allow her to see father or mother the night of the incident. Mother later told her she had not consumed alcohol that night, and the maternal grandmother had no concerns about substance or alcohol abuse regarding the parents.
The Department's records revealed the family had been the subject of an earlier dependency investigation. In July 2017, mother came to the emergency room reporting she had "hit [her] head on the car window" during an altercation with father the night before. She said she had a baby at home, but the child was not in the car. Mother initially denied drinking, but later said she had a couple of drinks. She was tearful and reportedly "went from saying it was physical to saying that father had not been physical with her." The Department's records said the "story of what happened to mother is unclear as mother first said there was prior physical abuse and then said there wasn't." There was no mention of child abuse and the Department deemed the report "inconclusive."
Father had a 2003 misdemeanor conviction for driving with a suspended license. He did not have a record in the Child Abuse Central Index. Mother did not have a criminal or child abuse record.
According to the Department's report, father's name returned a" 'Hit'" on the California Law Enforcement Telecommunications System for a "2003 misdemeanor arrest/ conviction for driving while license suspended." The Department did not produce father's certified criminal record and there is no indication that the license suspension was related to impaired driving.
In July 2021, the Department interviewed the family again. Mother said the parents had been at the party for about an hour and she had two alcoholic drinks (whiskey and coke). She said she" 'honestly [did] not know how much [father] drank'" and" '[e]very time [she] saw him, he was drinking out of a water bottle but [she] really was not paying attention to him.'" Mother admitted," 'We made a terrible decision and lapse in judgment that put our daughter and other people in harm's way.'" While she asserted," 'I do not have a drinking problem and this was an isolated incident,'" she said she understood," 'I need to go above and beyond and exhaust all efforts to get my daughter back.'" She reported she had been attending Alcoholics Anonymous meetings since the incident, parenting classes four times a week, and weekly therapy sessions.
Father was interviewed with his attorney and initially declined to give a statement" 'due to [his] criminal proceedings.'" However, when asked to define the problem to be addressed in the dependency case, father responded," 'It was an extremely poor choice and it turned into a worst case scenario. Definitely [a] poor choice on my part.'" Father told the Department," 'I would like to go through the programs to better myself as an individual and as a parent'" and he would do" '[w]hatever is asked of me,'" adding," 'I am looking forward to getting through the process.'" Father had been attending Alcoholics Anonymous meetings since the incident, and said he was scheduled to begin parenting classes three times a week in the next two days. He was also scheduled to begin individual therapy in four days.
The maternal grandmother reported E.K. had not said anything about the incident, other than that" 'daddy was going too fast.'" Regarding the possibility of substance abuse, she said," 'Prior to this accident I had no concerns at all for [mother] and [father]. They are great parents. [E.K.] is their only child and they are very hands on.' "
A multidisciplinary assessment team reported E.K. was an intelligent, well-rounded, kind, and easy-to-engage child, who "spoke with a maturity that appeared to be beyond her years." The team reported E.K. had always lived with her parents and she had met all her early developmental milestones. She had no history of mental, behavioral, or emotional issues, and she got along with both children and adults, joined groups easily, and was good at social interactions. She received regular pediatric care and had no history of hospitalization, surgeries, broken bones, injuries, or major accidents.
The parents visited E.K. three times per week. The visits went well and without incident. The assessment team reported E.K. was "usually excited to see her parents and they respond[ed] to her with love and nurturance."
With the exception of three missed drug tests (one of which was excused due to a problem with the testing referral), the parents had consistently tested negative for alcohol and controlled substances. However, the Department reported it had been unable to verify the parents' Alcoholics Anonymous meeting attendance because they did not provide contact information for their groups. They also had not provided contact information for their therapists.
At the adjudication hearing, father offered a letter from his parenting class, reporting he was enrolled in an 18-session program and had attended 10 classes to date. He also offered a letter from his therapist, reporting he had participated in three counseling sessions. The therapist wrote, "We have focused on continuing with [Alcoholics Anonymous] meetings for support along with identifying other available systems of support, setting parenting goals and priorities, coping techniques, and stress management. [Father] has been forthcoming in regard to his desire and determination to provide safety, responsible parenting, and positive role modeling for his daughter." Father also offered an Alcoholics Anonymous group attendance log. The juvenile court admitted all documents into evidence.
The Department argued the court should sustain the jurisdictional count against both parents and declare E.K. a dependent child. Focusing on the parents' denials when they were questioned by police officers at the scene, the Department urged that "if someone gets caught doing something and they . . . speak about alcohol use in such a way that shows that this likely happened previously, it stands to reason this is not the first time[;] [i]t's the first time that something happened." While the Department acknowledged the parents were "remorseful," it maintained there was "current risk still" because the parents "don't recognize the problem itself and identify the depth of the problem."
The minor's counsel joined with the Department's recommendation to sustain the petition, arguing the "police officer's observations of both mother and father being intoxicated at the time of the incident" was sufficient to sustain the Department's "burden by a preponderance of the evidence."
Father argued the petition should be dismissed under J.N., supra, 181 Cal.App.4th 1010 because the underlying incident was a "one-time horrible mistake." His counsel maintained father was "confused and did not have the advice of counsel" when he initially spoke to the social worker. But since the dependency petition's filing, counsel argued father had "been forthcoming to the ability and degree that he can be facing an open criminal case," emphasizing father's statement that the accident occurred due to" 'an extremely poor choice.'" Counsel argued there was no evidence to prove there was "a problem of alcoholism or addiction"; rather, "[i]t was a one-time incident" and father was committed "never [to] let something like this happen again."
The juvenile court rejected father's argument that J.N. controlled, remarking to the Department's counsel, "Mr. Kim, are you going to talk me out of sustaining because father has a 2003 D.U.I., 2017 there was a domestic violence incident where there was alcohol and a car present, and now this?" The court continued: "The court's well aware of [the J.N.] case. This is not a one-time incident. Alcohol and cars and dad do not get along. [¶] Now there's a great - there's a great period of time from 2003 to 2017 to 2021. But things are getting worse. They're lucky that no one was seriously hurt. [¶] . . . I certainly understand [father] is limited in what he can say because of the outstanding criminal case and his possibility of facing a second D.U.I. which is a mandatory jail sentence. Three I believe is a mandatory prison sentence. So I can understand that."
The court struck mother from the count, but sustained the petition "as to father because of the history," reiterating, "I think that distinguishes the case from [J.N.]."
With respect to disposition, the court removed E.K. from father's physical custody, placed her in mother's custody, and ordered father to remain outside the family home. The court ordered father to attend Alcoholics Anonymous meetings at least twice a week, remarking, "There's alcohol in this family that has permeated this family for a while."
Father filed a timely appeal from the jurisdiction and disposition order.
DISCUSSION
Section 300, subdivision (b), authorizes dependency jurisdiction where the evidence proves "[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 the child's 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 . . . substance abuse." The subdivision stipulates,
"The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness." (§ 300, subd. (b).)
" 'The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.' [Citation.] 'Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300' at the jurisdiction hearing. [Citation.] 'On appeal, the "substantial evidence" test is the appropriate standard of review for both the jurisdictional and dispositional findings.'" (J.N., supra, 181 Cal.App.4th at pp. 1021-1022.)
"Thus, 'we must uphold the court's [jurisdictional] findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.] Substantial evidence is evidence that is reasonable, credible, and of solid value.'" (J.N., supra, 181 Cal.App.4th at p. 1022.)
Although the evidence may be sufficient to establish a child has "suffered . . . serious physical harm . . . as a result of the failure . . . of the child's parent . . . to adequately supervise or protect" (§ 300, subd. (b)), the juvenile "court cannot exercise dependency jurisdiction under this subdivision where the evidence shows a lack of current risk." (J.N., supra, 181
Cal.App.4th at p. 1023, italics added, citing In re Rocco M. (1991) 1 Cal.App.4th 814, 824; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1397 ["the purpose of section 300, subdivision (b) is to protect the child from a substantial risk of future serious physical harm and that risk is determined as of the time of the jurisdictional hearing"]; but see In re J.K. (2009) 174 Cal.App.4th 1426, 1435 , fn. 5 [initial exercise of jurisdiction may be based upon either a prior incident of harm or risk of harm].) This is because section 300, subdivision (b) expressly limits the court's authority to maintain jurisdiction "only so long as is necessary to protect the child from risk of suffering serious physical harm or illness." (Italics added.) If a single incident resulting in physical harm absent current risk were sufficient, "a juvenile court could take jurisdiction but would be required to immediately terminate the dependency under the final sentence of section 300, subdivision (b)." (J.N., at p. 1023; see also § 300.2 ["Notwithstanding any other provision of law, the purpose of the provisions of this chapter relating to dependent children is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (Italics added.)].)
Thus, the juvenile court was not authorized to exercise jurisdiction over E.K., unless there was sufficient evidence to prove she was at current "substantial risk" of suffering "serious physical harm or illness" as a result of her parents' failure or inability to "supervise or protect" her at the time of the adjudication hearing. (§ 300, subd. (b); J.N., supra, 181 Cal.App.4th at pp. 1024-1025.) "While past harmful conduct is relevant to the current risk of future physical harm to a child [citations], the evidence as a whole must be considered. '[P]revious acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur.'" (J.N., at p. 1025.)
At the outset, we note the petition does not expressly identify an ongoing deficiency or problem of father's that poses a risk of future harm to E.K. The petition alleges only that father "placed the child in a detrimental and endangering situation" by driving under the influence of alcohol while E.K. was a passenger, and it asserts this "detrimental and endangering situation . . . endangers the child's physical health and safety, and places the child at risk of serious physical harm, damage, danger and failure to protect." Notably, the Department expressly declined to assert (by not checking the corresponding box on its petition) that father had an ongoing "substance abuse" problem. Instead, the Department alleged E.K. was at risk because the "endangering situation" demonstrated E.K. would suffer serious physical harm (1) "as a result of the failure or inability of his or her parent . . . to supervise or protect the child adequately"; and (2) "as a result of the willful or negligent failure of the child's parent . . . to supervise or protect the child adequately from the conduct of the custodian with whom the child has been left." There was no allegation of a specific ongoing risk of harm, nor was there evidence to substantiate a finding that such a risk existed.
J.N. is instructive. The father in J.N. drove with a BAC percentage of 0.20, collided with another car, and ultimately crashed into a light pole, all with his three children-ages four years, eight years, and 14 months-in the car. (J.N., supra, 181 Cal.App.4th at pp. 1014-1017.) The mother was also in the car and had a BAC percentage of 0.11. (Id. at pp. 1015-1017.)
The eldest child had unfastened his youngest sibling's car seat, and the 14-month-old was propelled out of her seat during the collision, sustaining severe lacerations to her head that required stitches. (Id. at p. 1017.) The father attempted to flee the scene with one of the children, and both parents were aggressive and uncooperative when police arrived. (Id. at pp. 1015-1017.) As a result of the incident, the father was charged with child endangerment and several other criminal violations. (Id. at p. 1019 &fn. 7.) The eldest child told a social worker that both parents rarely drank (id. at p. 1017), and the parents denied having a substance abuse problem. (Id. at pp. 1018, 1020.)
Both parents, however, acknowledged consuming alcohol that night. The mother told the child welfare agency "[s]he could not remember how much beer she drank that night but acknowledged that she had been drinking beer like she was drinking soda" (id. at pp. 1017-1018), and the father "admitted that, on the night of the accident, [the] mother and [the father] had about nine beers during dinner." (Id. at p. 1018.) The father eventually "recognized that he had made 'a bad decision to drive,' which he regret[ted]" and he "appeared cooperative and remorseful." (Ibid.)
On these facts, the J.N. court concluded that, "[d]espite the profound seriousness of the parents' endangering conduct . . . there was no evidence from which to infer there is a substantial risk such behavior will recur." (J.N., supra, 181 Cal.App.4th at p. 1026.) It instructed that, "[i]n evaluating risk based upon a single episode of endangering conduct, a juvenile court should consider the nature of the conduct and all surrounding circumstances." (Id. at p. 1025.) Most significantly, the juvenile court should "consider the present circumstances, which might include, among other things, evidence of the parent's current understanding of and attitude toward the past conduct that endangered a child, or participation in educational programs, or other steps taken, by the parent to address the problematic conduct in the interim, and probationary support and supervision already being provided through the criminal courts that would help a parent avoid a recurrence of such an incident." (Id. at pp. 1025-1026, italics added.) Applying these factors, the reviewing court determined there was insufficient evidence to prove the mother or the father had a substance abuse problem, and there was nothing beyond mere speculation on which to conclude the parents' judgment or parenting skills were so deficient that either was unable to adequately supervise and protect the children. (Id. at p. 1026.)
Here, the juvenile court determined father's "history . . . distinguished]" this case from J.N. It stated, unlike J.N., "[t]his is not a one-time incident," citing "a 2003 D.U.I." and a "2017 . . . domestic violence incident where there was alcohol and a car present." But the juvenile court was mistaken. There was no evidence that father had a prior conviction for driving under the influence; his only criminal record was a 2003 misdemeanor conviction for driving with a suspended license. And, as for the 2017 domestic violence incident, mother had reported she- not father-was the one who consumed alcohol, before retracting her allegation that any physical abuse had occurred.
Because the juvenile court mistakenly believed father had a history of dangerous and abusive conduct involving alcohol, it did not consider the present circumstances, as J.N. directs. (J.N., supra, 181 Cal.App.4th at pp. 1025-1026.) The Department acknowledges the court's mistake, but contends it is irrelevant to the disposition of this appeal because the evidence of father's denials at the scene and in his first interview with a dependency investigator are alone sufficient to support the jurisdictional finding. We disagree.
To be sure, like the father in J.N. who attempted to flee the scene, father initially did not acknowledge responsibility or fault for the endangering incident. However, because section 300, subdivision (b) requires evidence sufficient to prove endangering conduct" 'will reoccur,'" the most significant consideration is "the present circumstances," including "evidence of the parent's current understanding of and attitude toward the past conduct that endangered a child, or participation in educational programs, or other steps taken, by the parent to address the problematic conduct in the interim." (J.N., supra, 181 Cal.App.4th at pp. 1025-1026, italics added.)
The relevant evidence showed that, despite father's apparent apprehension about self-incrimination, he acknowledged the endangering incident resulted from" 'an extremely poor choice'" and" '[d]efinitely [a] poor choice on my part." (Italics added.) He pledged to do" '[w]hatever is asked of me,'" and had taken the initiative shortly after the incident to attend Alcoholics Anonymous meetings, parenting classes, and individual counseling. His therapist reported father had been "forthcoming in regard to his desire and determination to provide safety, responsible parenting, and positive role modeling for his daughter." Father consistently tested negative for alcohol and controlled substances, missing only three tests (one of which was excused) in the early phase of the dependency proceeding. And he consistently visited with E.K. at least three times a week without incident, responding to his daughter with "love and nurturance." Contrary to the Department's contention, all the relevant evidence of father's present circumstances proved he understood the gravity of his endangering conduct and was committed to addressing that problematic conduct to ensure it did not recur. (Cf. J.N., supra, 181 Cal.App.4th at p. 1026 [notwithstanding "valid concern" that "mother seemed to minimize her and her husband's alcohol use and the ramifications of alcohol use, by the time of the jurisdiction/ disposition hearing" mother had been ordered to "complete substance abuse and parenting programs" and "[s]ignificantly, both parents were remorseful, loving, and indicated that they were willing to learn from their mistakes"].)
In re M.R. (2017) 8 Cal.App.5th 101 (M.R.) is instructive, but substantively distinguishable. There, the mother had been convicted of driving under the influence after she was caught driving 83 miles per hour with her four-year-old and 21-month-old children in the car. (Id. at pp. 103, 106.) She had a BAC of 0.14. (Ibid.) The father was also in the car. Both parents consistently maintained the mother had" 'had a couple of beers'" that evening, but she" 'wasn't drunk,'" and she did not have a drinking problem. (Id. at pp. 104-105.) The mother also denied a documented incident of domestic violence with the father several years earlier, which had involved alcohol. (Id. at pp. 105-106.) The criminal court had ordered the mother to participate in an alcohol and drug education and counseling program, but the mother had yet to enroll. (Id. at p. 106.) The juvenile court declined to declare the children dependents, choosing instead to order six months of supervised services under section 360, subdivision (b). (M.R., at p. 107.)
The M.R. court distinguished J.N., emphasizing the parents (1) "continued to minimize the seriousness of the incident during the dependency proceedings" and (2) had not "taken any significant steps to participate in educational programs concerning the problematic use of alcohol that gave rise to the substantial risk to the children's safety." (M.R., supra, 8 Cal.App.5th at p. 107.) Critically, "the parents' acceptance of responsibility seemed to worsen, rather than improve, as dependency proceedings progressed: they were significantly more accepting of the wrongfulness of Mother's conduct and open to Department intervention in their first interview as compared to their interview before the jurisdiction hearing-when both parents denied Mother was drunk and stated they saw no need for Department involvement." (Id. at p. 109.) The reviewing court also observed the past "alcohol-related episode of domestic violence," although not suggesting an ongoing substance abuse problem, provided "further reason why the court could justifiably conclude there remained a risk to the children." (Id. at p. 110.) Based on the overall circumstances-past and current-the M.R. court found substantial evidence supported the juvenile court's order requiring dependency supervision for the family. (Id. at p. 107.)
Father's attempt to evade and deny responsibility for his reckless actions gives us significant pause. But unlike the mother in M.R., at the time of the adjudication hearing, father's attitude toward his endangering conduct reflected an improved understanding of his responsibility for the incident, and his voluntary participation in supportive services, parenting classes, and individual counseling demonstrated a genuine commitment to addressing the underlying failure to keep E.K. safe and protected. Unlike in M.R., the Department presented no evidence of past endangering conduct involving E.K. or father's consumption of alcohol. On the contrary, the multidisciplinary team reported E.K. had lived with father all her life, she had met all her early developmental milestones, she had received regular pediatric care, and she had no history of hospitalization, surgeries, broken bones, injuries, or major accidents. The team described E.K. as an intelligent, well-rounded, kind, and easy-to-engage child, who was excited to see her parents when they were allowed to visit. Unlike in M.R., the overall circumstances-past and present-did not suggest father's parenting skills, general judgment, or understanding of the risks of inappropriate alcohol use was "so materially deficient that [he would be] unable 'to adequately supervise or protect'" E.K. in the future. (J.N., supra, 181 Cal.App.4th at p. 1026 [emphasizing "[t]he evidence consistently indicated that the children were healthy, well adjusted, well cared for, bonded with each other, and developing appropriately "].)
Contrary to the juvenile court's finding, the Department's evidence proved no more than "a single episode of endangering conduct," requiring the court to consider "the present circumstances" in determining whether a "substantial risk" existed that "such behavior [would] recur." (J.N., supra, 181 Cal.App.4th at pp. 1025-1026, italics added.) Notwithstanding the profound seriousness of father's endangering conduct, had the court considered the present circumstances at the time of the adjudication hearing, we conclude the relevant evidence would have compelled a finding that a substantial risk no longer existed. The juvenile court erred in declaring E.K. a dependent child under section 300, subdivision (b).
Because there was insufficient evidence to exercise jurisdiction, the disposition order must be vacated. (See In re Janet T. (2001) 93 Cal.App.4th 377, 392.)
The Department's motion to dismiss the part of father's appeal challenging the disposition order is denied. Although the judicially noticeable records show the juvenile court has returned E.K. to father's physical custody, the court lacked jurisdiction to remove the child when it made the disposition order.
DISPOSITION
The adjudication order is reversed. The disposition order is vacated.
We concur: EDMON, P. J., LAVIN, J.