In re I.T. CA4/1

Filed 12/17/21 In re I.T. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re I.T. et al., Persons Coming
Under the Juvenile Court Law.
D079029
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
(Super. Ct. Nos. EJ4520A-B)
Plaintiff and Respondent,

v.

T.T.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of San Diego County,
Rohanee Zapanta, Judge. Reversed and remanded for further proceedings.
Brent Riggs, under appointment by the Court of Appeal, for Defendant
and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and
Respondent.
 T.T. (Father) appeals from orders issued at a special hearing held on
May 25, 2021, requiring that his children, eight-year-old I.T. and six-year-old
V.M., upon medical clearance, be vaccinated and enrolled in school. Father
contends that the juvenile court erred by assuming the role of the children’s
educational decision maker without following the statutory framework to
limit his parental rights to direct his children’s education.1 He also argues
that the juvenile court lacked the authority to order the children be
vaccinated because the vaccination orders were not grounded upon any
concern for the children’s physical health or safety but to direct their
education.
We conclude that the juvenile court abused its discretion by failing to
follow Welfare and Institutions Code2 section 361 which governs how a
juvenile court may limit the right of a parent to make educational decisions
for a child. Accordingly, we reverse the orders without prejudice and remand
the matter for further proceedings. This conclusion renders Father’s second
argument moot and we decline to address it.

1 Mother, C.W., is not a party to this appeal.

2 Undesignated statutory references are to the Welfare and Institutions
Code.

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 I.
FACTUAL AND PROCEDURAL BACKGROUND 3
The parents are unmarried and their relationship ended in 2017. In
March 2020, the San Diego County Health and Human Services Agency (the
Agency) filed juvenile dependency petitions under section 300, subdivision
(b)(1) alleging that the children were exposed to violent confrontations in the
parent’s homes between Father and his girlfriend, and between Mother and
her boyfriend. At that time, a social worker spoke to the director of the
Montessori school that the children previously attended. The director
indicated that I.T. had not attended school “for the past year” and the school
terminated the children due to the parents being inconsistent with the
schedule and Father being unsafe because he hugged other students with
barber scissors around his neck. When the children had attended school they
“were always hungry and without sleep” because of the parents’ fighting.
The Agency detained the children in a foster home. In April 2020, the
children’s caregiver told a social worker that I.T. was behind in school, knew
her ABC’s but did not know how to read. At that time, I.T. had online school
meetings twice a week and a teacher provided packets for her to complete.
V.T. had not yet started school but the parents reported that he had a spot at
a Montessori school starting in September 2020. In May 2020, Mother and
her boyfriend had a child together. At the contested jurisdiction/disposition
hearing in July 2020, the juvenile court made true findings on the allegations
in the petitions and placed the children with the parents in a family

3 Because the matters on appeal relate to the orders issued at the special
hearing, we summarize the facts briefly, focusing on the special hearing. “In
accord with the usual rules on appeal, we state the facts in the manner most
favorable to the dependency court’s order.” (In re Janee W. (2006) 140
Cal.App.4th 1444, 1448, fn. 1.)

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maintenance case subject to certain conditions, including that the children be
enrolled in therapy and regularly attend school. The parents lived separately
under a shared custody arrangement where the children lived with Father
Mondays through Thursdays, and with Mother the remaining days of the
week.
In September 2020, the children attended a Montessori school for
distance learning due to the COVID-19 pandemic. Although the school had
resumed in-person instruction, the children could not attend in person
because they were unvaccinated. Instead, the children completed schoolwork
packets provided by the school. The parents reported that they were looking
into options to resume in-person learning including a “504 plan”4 or an
individualized education plan. The parents also attempted to obtain an
immunization waiver but could not find a doctor willing to give the children a
vaccination exemption.
In December 2020, Mother reported that the children had been
attending school virtually but Mother’s apartment had internet connectivity
issues and she received a letter that the school was “ ‘kick[ing] out’ ” the
children. The parents decided to appeal the decision and investigate other
options such as home schooling. With the help of a WRAP5 coordinator, the

4 Section 504 of the Rehabilitation Act of 1973 and the federal
implementing regulations require public schools to provide a plan of
accommodation for children with qualifying disabilities to satisfy their special
needs. (29 U.S.C. § 794; 34 C.F.R. 104.1 et seq.)

5 Families Forward Wraparound is an organization designed to provide
families in crisis with an array of services, including case management and
mental health services, as well as educational liaison services and crisis
intervention and planning. ( [as of Dec. 16, 2021], archived at
.)

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parents drafted a response to the children’s termination but they never
submitted the letter to the school.
In January 2021, the Agency filed supplemental petitions under section
387 requesting to place the children in foster care. The petitions alleged that
the parents exposed the children’s infant half-sibling to domestic violence and
Father continued to engage in domestic violence with his ex-girlfriend. At
the detention hearing on the supplemental petitions, the juvenile court
detained the children in out of home care.
At the February 2021 jurisdiction/disposition hearing, the parents set
the matter for trial. At a child and family team meeting in March 2021,
Father and the WRAP team were to follow up on home schooling options for
the children. At the contested jurisdiction/disposition hearing on the
children’s section 387 petitions held in early April 2021, minors’ counsel
informed the court that it had been three months since the children were
enrolled in school because they lacked the required vaccinations. Counsel
requested leave to set a special hearing to address the children’s unmet
educational needs. Father’s counsel reported that a couple of schools had the
children waitlisted and that Father helped the children with their education
during visits. At the conclusion of the hearing, the juvenile court found the
petitions true, removed the children from parental custody, ordered
supervised visitation and reunification services for the parents, and placed
the children in foster care with separate, supervised visits. The court set a
special hearing to address, among other things, the children’s schooling.
At the special hearing in late April 2021, minors’ counsel asked the
court to use its authority under section 362, subdivision (a) to have the
children vaccinated so they could attend school. The parents opposed the
request with Mother’s counsel arguing that the parents still held parental

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rights. Father’s counsel noted that schools had the children waitlisted, asked
that home schooling be ordered in lieu of vaccinations, and requested
unsupervised virtual visitation with the children for home schooling
purposes. The court stated it would not investigate home schooling at this
point because it wanted the children to have actual instructors and
interaction with other children. It asked Father to provide his counsel with
the names of the schools where the children were waitlisted so that the
schools could be contacted and the situation explained with the hope that the
children would be given priority. Father agreed to provide counsel with this
information.
At the May 25, 2021 special hearing, minors’ counsel reiterated his
request that the children be vaccinated and enrolled in school. Mother’s
counsel represented that the children had been vaccinated for some things
but suffered anaphylactic reactions and requested a continuance to provide
the court with medical documentation regarding past vaccinations.6 Father’s
counsel again requested unsupervised virtual contact with the children to
home school them. Counsel represented that two schools would accept a
physician’s medical exemption in lieu of vaccination and two other schools
had home schooling options that did not require proof of vaccination. Counsel
also reported that Father met with an individual who taught school that
provides appointment-based help with schoolwork.
The juvenile court prefaced its ruling with a statement that it set the
hearing to allow the parties to present evidence and for it to make a decision.
The court stated that it received no evidence showing that the children had
been enrolled in school since last fall or had suffered any type of reaction to

6 The parents previously told a social worker that they did not believe in
vaccines and represented that both children had an autoimmune disease that
prevented them from being vaccinated.

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past vaccinations, and that the parents had the time to give their counsel
leads on where they might find such evidence. Accordingly, the juvenile court
ordered that “[u]pon medical clearance and examination of a medical
professional along with providing the history to the medical professional and
physical assessment, if there is clearance for vaccination, that is authorized
and enrollment in school as soon as is available and possible.” Father timely
appealed.
II.
DISCUSSION
Parents have a constitutionally protected right to control their
children’s education. (Troxel v. Granville (2000) 530 U.S. 57, 65; In re R.W.
(2009) 172 Cal.App.4th 1268, 1276 (R.W.).) “In dependency proceedings,
however, those rights may be limited. The fundamental premise of
dependency law is to serve the best interests of the dependent child.
[Citation.] After a child is brought into the dependency system through the
parents’ neglect or abuse, a parent’s constitutional rights to raise his or her
children, including the right to make education choices, may be curtailed.’ ”
(In re Samuel G. (2009) 174 Cal.App.4th 502, 510.) Juvenile courts are
authorized to issue “all reasonable orders for the care, supervision, custody,
conduct, maintenance, and support of [a dependent] child,” and to “direct any
reasonable orders to the parents or guardians of [that] child.” (§ 362, subds.
(a) & (d).)
The juvenile court also has the authority to limit the right of a parent
to make educational decisions for a dependent child if it appears the parent is
unwilling or unable to do so, so long as any such limitations do not exceed
those necessary to protect the child. (§§ 366.1, subd. (e), 361, subd. (a)(1); see
also, Cal. Stds. Jud. Admin., § 5.40(h)(5) [role of juvenile court includes

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making appropriate orders limiting educational rights of a parent who is
unwilling or unable to be an active participant in ensuring a child’s
educational needs are met and appointing a responsible adult as educational
representative for such a child].) Any limitation on the right of a parent to
make educational decisions for a dependent child “shall be specifically
addressed in the court order.” (§ 361, subd. (a)(1); see also Cal. Rules of
Court, rules 5.649, 5.650, 5.695(b).) If the court so limits the right of the
parent, it must appoint another responsible adult to make educational
decisions for the child and must appoint a relative, or other adult known to
the child, if one is willing to serve as the educational representative before
appointing a surrogate that is not known to the child. (§ 361, subds. (a)(1) &
(a)(1)(4)(A); see Cal. Rules of Court, rule 5.650(a).) “If the court cannot
identify a responsible adult to make educational decisions for the child, . . .
and there is no foster parent to exercise the authority granted by Section
56055 of the Education Code, the court may, with the input of any interested
person, make educational decisions for the child.” (§ 361, subd. (a)(1)(4)(C).)
In reviewing the juvenile court’s decision to suspend a parent’s
education decisionmaking rights, we apply an abuse of discretion standard,
keeping in mind the focus of dependency proceedings is on the child rather
than the parent. (R.W., supra, 172 Cal.App.4th at p. 1277.) “The [juvenile]
court’s exercise of its discretion must be ‘informed and considered’ [citations],
and the [juvenile] court may not ‘ignore or contravene the purposes of the
law’ [citation].” (Plumas County Dept. of Child Support Services v. Rodriguez
(2008) 161 Cal.App.4th 1021, 1026.)
At the April 2021 special hearing, minors’ counsel requested that the
children be vaccinated so they could attend school. The court continued the
matter after Father agreed to provide his counsel with the names of the

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schools where the children were waitlisted so that the schools could be
contacted. At the subsequent hearing, minors’ counsel reiterated his request
that the children be vaccinated and enrolled in school. Father’s counsel
represented that all options for educating the children without vaccinations
had not been exhausted.
Based on the lack of evidence before it, the court ordered that upon
medical clearance the children be vaccinated and enrolled in school. This
order amounted to the suspension of the parents’ education decisionmaking
rights, and the juvenile court assuming the duty of the children’s educational
decision maker. The juvenile court, however, abused its discretion by
assuming this responsibility without following the requirements set forth by
the Legislature in section 361, including first determining whether another
responsible adult was available and willing to serve as the children’s
educational representative and specifically setting forth in its order the
extent of the limitation of the parents’ education decisionmaking rights.7
(§ 361, subds. (a)(1) & (a)(1)(4)(A).)
We understand the pressing need to address the children’s unmet
educational needs and sympathize with the court’s frustration in not
receiving sufficient information from the parents to determine what viable
options existed to educate these children should they not qualify for a
vaccination medical exemption. (See Health & Saf. Code, §§ 120370, 120372,
120375 [addressing requirements for a medical exemption].) Nonetheless, we
disagree with the Agency’s conclusion that the lack of vaccinations rendered

7 The Agency’s reliance on Education Code section 48293 for the
proposition that a juvenile court has the authority to order a child
immediately enrolled in school is misplaced. A juvenile court has this
authority only after a complaint is filed and a parent is convicted of a
violation of subdivision (a) of Education Code section 48293. (Ed. Code,
§§ 48291, 48293, subds. (a) & (c).)

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the children ineligible to participate in a legally mandated education program
and that no alternatives existed. Based on the minimal information
presented by Father’s counsel at the hearing it appeared that two schools
would accept a physician’s medical exemption in lieu of vaccination, that
home schooling options existed that did not require proof of vaccination, and
an individual existed who might meet the requirements for the “private
tutor” exemption from the compulsory education law. (Ed. Code, § 48224.)
As the juvenile court noted, it set the special hearing for the specific
purpose of receiving evidence regarding the children’s education options. The
parents, however, consistently proved their inability or unwillingness to
adequately investigate available options. In December 2020, the Montessori
school that the children attended virtually terminated them from the
program. Although the parents received help in drafting a response to the
termination they never submitted the letter to the school. At a child and
family team meeting in early March 2021, Father and the WRAP team were
to follow up on home schooling options for the children. Almost three months
later, at the May 25, 2021 hearing, the children’s education requirements
remained unsatisfied.8 In this situation, under the explicit authority of
section 361, the juvenile court could have limited the parents’ educational
rights, appointed an individual to act as the children’s educational

8 Although Father suggested home schooling the children via video, the
Agency noted that Father produced no evidence that he met any of the
requirements to home school the children. Before parents in California may
legally home school their children, an affidavit must be filed containing
certain information (Ed. Code, § 33190), and certain requirements must be
met including a verification “by the attendance supervisor of the district, or
other person designated by the board of education” that the parents are
entitled to a home schooling exemption (Ed. Code, § 48222). The record is
devoid of any evidence that Father had submitted the required affidavit to
seek a home schooling exemption.

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representative, allowed that person to explore educational options for the
children and decide how the children’s education requirements would be
satisfied. (§ 361.) What the court could not do was to act as the children’s
educational decision maker without having first complied with section 361
and the applicable rules of court. In so doing, the juvenile court abused its
discretion. Accordingly, we reverse the juvenile court’s orders without
prejudice. On remand, the juvenile court will be entitled to take into
consideration all that has transpired since the May 25, 2021 special hearing.
We express no opinion on the merits of the orders.
Given the importance of education for the children’s future, we implore
the juvenile court to set this matter for hearing on an expedited basis. In the
interests of justice and to prevent further delays, the parties may stipulate to
immediate finality and issuance of the remittitur. (See Cal. Rules of Court,
rule 8.272(c)(1); Conservatorship of the Person and Estate of Maria B. (2013)
218 Cal.App.4th 514, 535.)

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 DISPOSITION
The juvenile court’s orders of May 25, 2021, are reversed without
prejudice. The matter is remanded for further proceedings consistent with the
views expressed in this opinion.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O’ROURKE, J.

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