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Name: In re S.F.
Case #: A166150
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 05/17/2023

There was insufficient evidence to support jurisdictional and dispositional findings as to Father where there was no evidence that domestic violence or substance abuse was ongoing. The minor was removed from Mother due to her mental health and substance abuse. Father had earlier moved out of state when the minor was three months old, but continued to provide him with financial support. The move was prompted by a domestic violence incident with Mother where both parents were arrested. The minor was not present during the incident. Father reported he had a history of substance abuse but had been sober for two years. Father returned to California when the minor was removed, seeking custody. After a contested jurisdictional hearing, the juvenile court sustained jurisdiction based on Father’s anger management and substance abuse issues. The juvenile court then found by clear and convincing evidence that the minor needed to be removed from Father, noting that Father had “ditched” the minor when he moved to New York. Father appealed and the reviewing court reversed. Because the jurisdictional findings found true as to Father serve as the basis for dispositional orders also challenged on appeal, the matter is not moot. Here, there was no nexus between the parents’ prior domestic violence and risk of injury to the minor because he was not present during any altercations between the parents and Father separated himself from Mother following the incident by moving away. Additionally, no evidence was presented that Father had a current substance abuse problem, where he reported two years sober and the Agency presented no evidence to contradict that. While concern that an addict will relapse is understandable, such concern untethered to any evidence that this is more than a theoretical possibility did not establish a substantial risk to the minor. There was not clear and convincing evidence to remove the minor from Father’s legal custody where Father demonstrated an ability to parent appropriately and took steps to protect the minor by residing apart from Mother. The jurisdictional and dispositional orders related to Father are reversed and the matter was remanded with directions to dismiss the petition against Father.

The full opinion is available on the court’s website here: