In Re Sergio C.

83 Cal.Rptr.2d 51 (1999) 70 Cal.App.4th 957 In re SERGIO C, a Person Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.

Adelaido C, Defendant and Appellant.

No. B122743. Court of Appeal, Second District, Division One.

February 24, 1999. As Modified March 17, 1999. Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.

Lloyd W. Pellman, County Counsel, Gary P. Gross, Deputy County Counsel; Auxiliary Legal Services, Inc., and Jill Regal for Plaintiff and Respondent.

MIRIAM A. VOGEL, J.

A mother abandoned her two children, ages one and three. The father of the three-year-old (who is not the father of the other child) was later found, and the three-year-old was placed with his father. Without any factual basis, a petition was sustained as to the father, and DCFS concedes that this order must therefore be reversed. We also reverse an order that requires the father to submit for random drug tests, not because [52] the court was without jurisdiction to make that order but because, once again, there is no factual basis for the order.

FACTS

In May 1997, three-year-old Sergio C. and his one-year-old half brother were taken from the custody of their mother, Guadalupe C. A petition was filed alleging they were at risk because Guadalupe had subjected the younger child to severe physical abuse. (Welf. & Inst.Code, § 300.)[1] The petition alleged that the whereabouts of Sergio's father (Adelaido C.) was unknown. Shortly thereafter, the boys were released to their mother, who then disappeared with both children. In their absence, the petition was sustained, and the children were declared dependents of the court. In November, DCFS reported that Guadalupe and the children had been located in San Bernardino.

In April 1998, DCFS learned that Guadalupe was using drugs and that she had left the children with a cousin without providing for their care. The cousin located Adelaido and he came to pick up Sergio.[2] Adelaido called the police to report Guadalupe's abandonment of the children and contacted DCFS to explain that he wanted to care for Sergio. When she was found, Guadalupe told DCFS that Adelaido had a history of arrests, that he had been in jail as the result of a domestic violence incident, and that he had used and sold drugs. When interviewed, Adelaido admitted that he had been arrested (it is uncontroverted that they were all misdemeanor offenses and that the most recent arrest was more than two years before these proceedings) but denied that he ever used or sold drugs. Insofar as we can tell from the record, the arrests were for being in the wrong places with the wrong people, and there were no convictions. Although Sergio remained with Adelaido, DCFS filed a supplemental petition and further hearings were held. As ordered, Adelaido enrolled in domestic violence counseling and complied with all orders made by the dependency court.[3] Meanwhile, Guadalupe pled no contest to the allegations that concerned her.