In re A.C. CA2/4 ( 2021 )

Filed 7/1/21 In re A.C. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re A.C. et al., Persons B308315
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. Nos.
20CCJP01814,
20CCJP01814 A-B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
A.C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Victor G. Viramontes, Judge. Reversed.
Paul A. Swiller, under appointment by the Court of Appeal,
for Defendant and Appellant.
Office of the County Counsel, Rodrigo A. Castro-Silva,
County Counsel, Kim Nemoy, Assistant County Counsel,
Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and
Respondent.
INTRODUCTION
The juvenile court exercised jurisdiction over mother A.C.’s
two children, 13-year-old A. and nine-year-old K., finding that
mother had a substance abuse problem that placed the children
at risk of harm. (Welf. & Inst. Code, § 300, subd. (b)(1).1) This
finding was based on mother’s admission of occasional drug use
at the initiation of the case, and several missed drug tests
thereafter. There was no evidence that mother was ever with her
children while under the influence of drugs, or that her drug use
affected her ability to care for the children. No evidence
suggested that mother’s drug use posed a risk that the children
would suffer serious physical harm. The evidence was therefore
insufficient to support the juvenile court’s jurisdiction order, and
we reverse. Because we reverse the jurisdiction order, we do not
reach mother’s contentions regarding the disposition order.
FACTUAL AND PROCEDURAL BACKGROUND
A. Non-detention
Thirteen-year-old A. and nine-year-old K. came to the
attention of the Los Angeles County Department of Children and
Family Services (DCFS) on January 27, 2020 after a report to the
child protective hotline stated that mother had been hospitalized
“due to chest pressure and shortness of breath with
polysubstance abuse.” The report said that mother tested
positive for methamphetamine upon admission, and mother
admitted that she used methamphetamine recreationally once or
1All further statutory references are to the Welfare and
Institutions Code.
2
twice a month. Mother also stated that she uses marijuana to
help her sleep. Mother stated that nine-year-old K. lived with
her, and 13-year-old A. lived with father. The report stated that
mother “never uses in the presence of the child,” but that “she
uses on occasion when she goes out with friends” and “the child”
is with father or maternal grandmother. The doctor spoke with
mother about the negative effects of drugs on her health, and
mother “indicated she no longer plans to use meth when she is
released from the hospital.” The reporter did not know the
gender of the nine-year-old or the names of the children.
A children’s social worker (CSW) went to mother’s home on
January 30, 2020. The studio apartment was maternal
grandmother’s home; mother and K. were staying there
temporarily. The CSW noted that the apartment was “a bit
cluttered but all utilities were in working order and no safety
concerns were noted.” Mother told the CSW that she had been
hospitalized due to congestive heart failure and fluid buildup.
Mother admitted that she used methamphetamine “three times
in the past year via snorting ‘a little line,’ with the last time
being around 3 weeks ago. Mother stated that she did not use
any illicit drugs for 7 years prior to this past year, but did not go
into further detail.” The detention report further stated, “Mother
clarified that she never uses around her children and that it was
only when she went out (out of town specifically) with friends
while maternal grandmother or the father was taking care of the
children.” Mother also stated that she used to smoke marijuana
to help her sleep, but “she was quitting smoking cigarettes,
including marijuana.” She agreed to submit to drug testing for
DCFS. Mother stated that she and father were in the process of
divorcing, and father had been diagnosed with cancer.
3
The CSW spoke with K., who stated that she lives with
mother and A. lives with father; K. visited father almost every
weekend. K. denied any abuse or violence in mother’s home,
denied any drug use in the home, and was aware that her mother
was recently hospitalized for “something in her heart . . . fluid in
her lungs.” K. said that sometimes mother’s boyfriend, Sam,
visits, and she described him as “good” and “nice.” K. also said
she was doing well in school and got As and Bs on her last report
card.
Maternal grandmother reported that mother had been
having heart problems, and mother had recently been in a car
accident in which all the airbags deployed. Maternal
grandmother cared for K. while mother was in the hospital.
Maternal grandmother said mother was a very good mother who
took care of her children, and she had no concerns about mother’s
boyfriend, Sam. She also said there was a family history of heart
problems, and her middle daughter had been hospitalized for
such issues two weeks earlier.
Mother’s drug test on February 4, 2020 was positive for
marijuana metabolites. From February 4 to February 21, 2020,
the CSW had trouble contacting both mother and father, due to
mother’s phone not accepting calls or voicemails, and the CSW
not having current contact information for father. On February
21, the CSW reached father and made arrangements to meet him
and A.
The CSW met father and A. at father’s home on February
24, 2020. The home was appropriately furnished with no noted
safety hazards. A. said he was doing well in school, getting Bs
and Cs in his classes, and doing martial arts after school. K.
visited father’s home every other weekend, and A. visited
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mother’s home less often because mother did not have as much
space. A. denied any knowledge of drug use by mother or father,
and stated that mother does not drink alcohol. A. denied any
physical or sexual abuse, and reported feeling safe with both
parents.
Father told the CSW that he was seeking full custody, but
he had no concerns about mother’s care of the children. Father
later clarified that his request for “full custody” was not intended
to “take mother’s rights away,” but to have K. live with him and
A. The detention report stated, “Father stated that mother and
the grandmother love the children very much and that he is
certain they would do everything they can to protect them and
make sure they’re safe.” Father said he had been in remission
from cancer, but he learned recently that it had returned. Father
was unaware of any drug use by mother.
On February 24, 2020, the CSW spoke with mother again.
Mother stated that she had been sick with the flu and her phone
has been turned off “due to being unable to pay for service.” The
CSW asked mother to drug test again, but mother asked why she
needed to continue testing, and noted that she did not have a car
due to the recent car accident. The detention report stated,
“Mother appeared to become a little defensive about the
allegations and asked about the allegations again. Mother stated
that she is a good mom and that the kids are well taken care of.
Mother stated that she is struggling to make ends meet right now
but can’t comprehend why there is a concern for the welfare of
her children.” The CSW discussed the hotline referral and stated
that DCFS takes allegations regarding methamphetamine
seriously, and mother agreed that it is a “hard drug.”
5
Mother agreed to drug test the following day. When she
went to the testing center, she discovered that she did not have
her identification with her, and the center refused to allow her to
test. The center gave mother documentation showing that she
had been at the center.
The CSW met with mother and K. again at their home on
February 26, 2020. K. said she recently visited father, and she
was recovering from the flu and an allergic reaction to food.
According to the detention report, K. “did not report any worries
at this time.” Mother reported that she had been a delivery
driver when she was in the car accident, and she was upset that
without a car, she could no longer work. Mother told the CSW
she was not using any drugs.
The CSW asked mother if she would agree to enter a drug
program. Mother “appeared to get emotional” and said that her
earlier “mistake” occurred while her children were not under her
care. Mother asked who made allegations that the children were
at risk, and the CSW told mother that the identity of the reporter
was confidential. The CSW told mother that DCFS planned to
seek jurisdiction in juvenile court, and told mother to be honest
about her drug use. Mother estimated that she had used
methamphetamine “maybe twice? In the past year?” Mother also
told the CSW that she had been a patient of a methadone clinic
three years earlier after becoming dependent on prescription
medication following “a terrible accident.” Mother said her
treatment lasted about a year. Mother agreed to participate in
programs for DCFS because “her children are everything to her
and she will do whatever she needs to do.” Mother provided the
CSW with her email address and maternal grandmother’s phone
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number to provide alternate means of contacting her in case her
phone was disconnected again.
K.’s school reported to DCFS that K. did not have any
academic or behavior problems. However, K. “has attendance
issues as she has 45 tardies and 17 days of absences.” The
principal did not have any concerns regarding abuse or neglect.
A. did not have attendance issues, but he did have academic and
behavior problems. His report card showed grades of B and D,
and he had been disciplined for possession of marijuana and
attempting to cause physical injury. Information from both
schools is written in the detention report; no documents from
either school are included in the record.
The CSW visited the children at father’s home on March
19, 2020, and noted no concerns. A. said he had been doing his
schoolwork and completing online lessons from home.2 K. said
that she had been completing workbook lessons, and that her
school had some online lessons that were not mandatory. Father
stated that after “some soul searching,” he had decided that he
wanted joint physical custody of the children. Father reported no
concerns about mother.
The CSW noted multiple instances in which she attempted
unsuccessfully to reach mother and father. The CSW went to
mother’s home on March 26 and found mother and both children
there. The children “cheerfully greeted” the CSW. The CSW told
mother it was important to remain in touch, and gave her
information about free or discounted phones. Mother said she
would look into it.
2We note that around this time, schools were limiting or
halting in-person classes due to the Covid-19 pandemic.
7
The CSW told mother that DCFS would not recommend
that the children be detained, but would seek family maintenance
services “to ensure that mother maintains her sobriety and
follows through with services.” Mother responded that she did
not understand why court supervision was required when the
children were not experiencing any problems. The CSW
“reminded mother again about the risks of mother’s substance
abuse and history.”
The detention report noted that the family had no DCFS
history and mother had no criminal background. DCFS stated
that “the child is at risk of abuse and/or neglect by the mother,”
because “the Department has concerns regarding mother testing
positive for methamphetamines at admission” to the hospital. It
further stated, “Mother disclosed to hospital staff using
methamphetamines approximately 1 to 2 times per month, but
minimized her use to CSW upon questioning.” DCFS also noted
mother’s past prescription drug dependency. DCFS requested
family maintenance services “to prevent the need for removal
from mother and mitigate the risk to the children.”
On March 30, 2020, DCFS filed a juvenile dependency
petition under section 300, subdivision (b)(1). The single count
alleged that mother “has a history of substance abuse including
prescription medication and is a current abuser of
methamphetamine and marijuana which renders the mother
incapable of providing regular care for the children. On prior
occasions, the mother was under the influence of marijuana while
the children were in mother [sic] care and supervision. On
02/04/2020, the mother had a positive toxicology screen for
marijuana. The mother’s substance abuse endangers the
children’s physical health and safety, and places the children at
8
risk of serious physical harm and damage.” DCFS asked that the
children remain non-detained in the home of parents, and that
mother be ordered to complete a substance abuse rehabilitation
program with random drug and alcohol screening, individual
counseling, a psychological evaluation, and parenting education.
DCFS also recommended individual counseling and parenting
education for father, and individual counseling for the children.
At the detention hearing on April 2, 2020, mother, through
counsel, denied the allegations. The court found that a prima
facie showing had been made that the children were persons
described by section 300. The court ordered that DCFS “make[ ]
testing available to mother,” and the children would remain
released to parents as long as mother had “no unexcused missed
tests and no dirty tests.” The court stated that “a low level of
marijuana consistent with medicinal use” would be acceptable.
B. Detention
A detention report dated July 10, 2020 stated that DCFS
“has concerns for the safety of the child [sic] in the home of
mother . . . due to mother’s ongoing failure to submit to drug and
alcohol testing. [Mother] failed to provide a specimen on the
following dates: 2/25/2020, 5/26/2020, 6/1/2020, 6/18/2020,
6/19/2020, and on 6/25/2020.” Another portion of the detention
report noted that mother’s drug test on May 13 was positive for
marijuana. The CSW stated that she unsuccessfully tried to
contact mother on April 21; May 4, 5, and 8; and June 19, 22, 23,
24, and 25. The CSW scheduled a visit with mother for May 18,
and mother rescheduled twice to May 20. Information about a
home visit with mother on May 20 (or any other date) is not
included in the detention report. A separate entry stated that
9
mother “does not make herself available for home visits to meet
with” the CSW.
The CSW called father on April 21, 2020. Father stated
that he had just dropped the children off with mother that
morning. Father “stated that he has hired an attorney and that
he is concerned about the children’s well-being now that he has
found out about mother’s drug use. Per [father], he was unaware
that the mother was using drugs and stated, ‘She never gave me
any indications that she was a user.’” In a text message on May
4, father told the CSW that he was concerned about the children’s
safety “now that he’s found out about ‘mother’s drug use,’” which
he said he “‘found out by reading the court report.’”
The CSW met with father and the children at father’s home
on June 25, 2020. Father stated that he had hired a private
attorney and was seeking full custody of the children in the
divorce. Father stated that mother “makes no efforts to better
her life in anyway [sic], no NA, no AA, dependency programs, not
looking for employment when there are 1000 of [sic] opportunities
out there. [Father] stated that [mother’s] stability is non-existent
and [father] does not feel comfortable anymore [sic] with the
environment that the kids live in with [mother].” Father’s
treatment for cancer was continuing.
The CSW spoke with A., who stated that he recently
returned from a week at mother’s house. A. said that mother was
“pretty cool,” and he had no worries about her. A. said that
mother had texted him the day before. K. stated that their week
with mother was good, but she was upset with mother “for lying
about braking [sic] up with Sam, when in reality they are still
together.” K. said that mother had not responded to her calls
since June 20. K. said she did not have any concerns about
10
mother, except that she wanted mother to answer her calls and
not lie about Sam.
DCFS stated in the detention report that one of its concerns
was that “Mother has not made herself readily available to DCFS
during the initial investigation and since the Detention hearing.”
The detention report also stated, “Since COVID-19 and online
learning was initiated on March 13, 2020, [K.’s] school has not
been able to reach [K.] or her family. The school reported making
multiple attempts to reach the family and sent her name to the
Pupil Services office who was unable to make contact. The school
reported that phone numbers they have for the family do not
work and they believe that the family has challenges, (i.e.
parents are ill, father has cancer and mother may have medical
issues).” The date DCFS received this information is not stated,
no school records are included with the report, and the report
does not indicate that the CSW asked K. or any other family
members about school attendance.
The detention report stated that when the CSW served
mother with “the warrant,” mother said she did not understand
because the children were fine and had everything they need.
Mother said there was a lot going on with the pandemic, she lost
a close friend, the family business had been lost, her family was
in the process of moving, and her family was facing financial
hardships. DCFS stated that mother “minimizes her substance
abuse and despite a large support network, she keeps her use
hidden from the rest of the family under the guise of medical
conditions and thus has no external accountability. Mother has
not made herself consistently available to the department for
testing, and as such it was determined that court orders are
needed to ensure the safety and wellbeing of the children.”
11
On July 14, 2020, DCFS filed an ex parte application under
section 385, seeking to detain the children from mother and
release them to father. DCFS stated that it was concerned about
mother’s many missed drug tests. Mother told the CSW that she
forgets to call the testing site daily due to her long working
hours, losing the family business, and looking for a place to live.
Mother agreed to test on June 18, but when she went to the
testing site she found that it was closed. In fact, the test was
scheduled for June 19. Mother did not return to the testing site
the following day. The application repeated much of the
information from the July 10, 2020 detention report.
At the hearing on the section 385 petition on July 14, 2020,
counsel for the children requested a self-executing order releasing
the children to mother after four consecutive acceptable drug
tests. Counsel for the children noted that “no one has alleged any
unsafe behaviors” by mother, there was “a lot of family support,”
and the children wanted to continue spending time with mother.
Mother’s counsel asked that the children be released to mother.
Mother’s counsel also noted that mother tested negative on June
30, and explained that the CSW’s difficulties reaching mother
arose from mother traveling to a friend’s funeral and mother’s
lack of a working phone. Mother’s counsel also noted the lack of
any allegations of unsafe behavior involving the children.
Father’s counsel stated that father was “concerned that the
children are being upended by mother’s behavior, ongoing use of
substances.”
Counsel for DCFS argued that the court already
conditionally released the children to mother, and “the court was
very clear in April that mother was not to have any missed tests.”
Counsel for DCFS also argued that mother made no efforts to
12
contact the CSW, and questioned whether mother would continue
to follow court orders. DCFS therefore requested that the court
not implement a self-executing order based on four clean tests.
The juvenile court detained the children from mother and
released them to father. The court also issued “a self-executing
order that if the mother tests clean for all substances other than
marijuana, then the detention is – would be removed and the
children would be released back to the care of the mother.”
Mother stated that she understood, and her previous missed tests
and lack of communication “wasn’t intentional.” She said she
had “never been through anything remotely close to this,” did not
know she was supposed to stay in touch with the social worker,
and would do “whatever necessary. . . for my kids.” The court
stated that having the children continue to reside in mother’s
home was contrary to the children’s welfare. The court ordered
unmonitored visitation for mother within maternal
grandmother’s home, and monitored visitation elsewhere.
C. Jurisdiction
A jurisdiction/disposition report filed September 10, 2020
(erroneously dated May 18, 2020) stated that the children
remained with father. After the July 14 hearing, mother had
negative drug tests on July 30, August 3, August 19, and August
24. Mother had no-show tests on July 15, July 20 and August 11.
On July 24, the CSW spoke with mother about the missed
test on July 20. Mother stated, “That was Monday when we
spoke. Ughhhhh. Ok, so I completely understand now what
need[s] to be done on my end.” Mother said it would not happen
again, and told the CSW that she was making arrangements to
leave work to drug test as needed. On August 12, mother called
the CSW and stated that the day before, August 11, she arrived
13
at the testing site before it closed, but they would not allow her to
test because “she did not make the testing cut off.” Mother asked
if she could test “on demand” that day, but the supervising CSW
“stated that [mother] will not be testing on demand due to
already being informed of the importance of arriving to the
testing site early rather than near closing time.” The CSW told
mother on August 20 that because she missed the test on August
11, she must complete four more consecutive clean tests before
the children could be released to her. Mother later stated at the
jurisdiction hearing that she believed the August 11 no-show had
been excused. Mother had not yet enrolled in any counseling
services (which had not been ordered by the court), and DCFS
stated that mother “still has not enrolled in any DCFS
recommended programs.”
When interviewed on July 20, 2020, K. said that everything
was going “okay” and she was waiting to find out what mother’s
regular visitation days and times would be. K. said that mother
was communicating with her. A. reported that things were okay,
but he was reluctant to speak with the CSW. Father repeated his
concerns that mother was not enrolled in a drug program and
was not making efforts to improve her life or look for work. In
another interview on August 27, father told a dependency
investigator that he was not happy with how DCFS handled the
case. The report did not elaborate about father’s concerns. On
August 25, 2020, the director of the family preservation services
program informed the CSW that she was terminating family
preservation services because despite “many attempts to
complete and/or schedule meetings with the father,” no intake
had ever been completed. The dependency investigator noted
14
difficulty in reaching mother, father, and K. on their respective
phones.
DCFS stated that its concerns regarding the family
included that mother “is a current abuser of methamphetamines
and marijuana,” and she “has not been participating in random
drug/alcohol testing on a consistent basis.” It noted concerns
about K.’s lack of attendance at school, but referenced
information from the previous school year, and did not include
any information about the school year currently in progress. It
also stated concern that “mother and maternal grandmother
reside together and maternal grandmother denied knowledge of
mother’s substance abuse issues.” DCFS recommended that the
court sustain the petition, order that the children remain
detained from mother, order monitored visitation for mother, and
provide family maintenance services for father.
A last-minute report dated October 21, 2020 stated that
mother had no-show drug tests on September 16, 24, and 30.
Mother had not yet enrolled in any DCFS-recommended
programs. Father expressed concerns that mother was not being
“held accountable” and that DCFS was not doing enough to
monitor mother’s sobriety. DCFS stated that “Mother lacks
insight into how her ongoing substance abuse issues negligently
impact her children’s physical and emotional health and safety.
The children want a relationship with their mother, but due to
mother’s ongoing substance abuse issues, it is not safe for the
children to have unsupervised contact with their mother.” DCFS
stated that father has provided a safe home for the children, and
recommended that the petition be sustained, and jurisdiction
terminated with a family law order awarding father sole legal
and physical custody.
15
At the jurisdiction and disposition hearing on October 21,
2020, the court received the DCFS reports as evidence; no
witnesses testified. The children’s counsel asked that the
petition be dismissed, because DCFS failed to meet its burden to
show that there was a nexus between any drug use and a risk of
harm to the children. The children’s counsel also noted that
school absences did not constitute a risk of serious physical harm.
Mother’s counsel joined the children’s argument. Mother’s
counsel also pointed out that although K. had some attendance
issues at school, she was doing well academically, and school
absences were not a sufficient legal basis for jurisdiction.
Mother’s counsel stated that mother had no tests showing
methamphetamine use after her hospitalization. She explained
that mother had misunderstood the court’s July 14 order
regarding four consecutive clean drug tests. Mother believed that
she had five acceptable tests—July 30, August 3, August 19, and
August 24, plus what she believed was an excused test on August
11. She believed she had satisfied the court’s requirements, and
did not know she was supposed to continue testing after those
clean tests, resulting in the additional missed tests in September.
Father’s counsel asked that the petition be sustained,
asserting that “but for father being around and being present and
being cooperative, these children would still be in foster care
[sic].” Father’s counsel also stated that the “lack of schooling”
was a risk factor.
Counsel for DCFS also argued that the petition should be
sustained, asserting that methamphetamine use was “inherently
dangerous” because “[t]here are all kinds of problems that come
along with that kind of abuse.” Counsel for DCFS argued that
the court was clear that mother needed four clean drug tests,
16
“Yet she couldn’t manage to pull off four clean tests,” which
“really suggests that somebody has a serious problem.” In
addition, counsel for DCFS asserted that K.’s attendance issues
“definitely points toward a problem with drug use.”
The court found that DCFS met its burden, and the
children were persons described by section 300, subdivision (b).
The court noted that “there is a history of substance abuse that
remains ongoing,” stating that it was “placing weight on the
statements that the mother made when she was in the hospital”
when she “admitted to continuing methamphetamine use.” The
court also noted that mother tested positive for marijuana. Along
with the missed tests, the evidence was “sufficient for the court to
conclude that the mother still has a substance abuse problem.”
Although mother said she did not use drugs while with the
children, “there’s this problem that the kids were missing school.
And so it looks like the mother’s substance abuse problems were
affecting her ability to parent.”
Turning to disposition, the children’s counsel stated, “I’m of
the opinion that there’s no risk in this case,” and asked the court
to terminate jurisdiction with an order for joint custody. The
children’s counsel noted that mother and maternal grandmother
recently bought a home together, having maternal grandmother
in the home provided an adequate safety plan for the children,
and both A. and K. “expressed they wanted as much access to
both of their parents as possible.” The children’s counsel stated
that the “eventual priority” for both children was “to have joint
custody with both of their parents.”
Father asked that mother’s visitation with the children be
monitored because “he’s not confident that she’s sober at this
point.” Father asked that someone other than maternal
17
grandmother monitor the visits, because “maternal grandmother
has not shown any indication that she knows when the mother is
under the influence of drugs.”
Mother’s counsel also asked that the court terminate
jurisdiction with joint physical and legal custody. Mother’s
counsel noted that maternal grandmother did not recognize
mother’s drug use because mother only used substances when
outside of the home and away from the family.
Counsel for DCFS argued that mother had not been
following court orders throughout the duration of the case, and
giving mother overnight visits would be “too soon, considering her
lack of any kind of compliance.”
The court kept the case open, and found by clear and
convincing evidence that there would be a substantial danger to
the children if not removed from mother’s custody “based on what
I’ve determined to be ongoing substance abuse problems.” The
court granted mother weekly overnight visitation “on the
condition that the mother live with the maternal grandmother,”
and ordered additional unmonitored visitation. Mother timely
appealed.
DISCUSSION
Mother asserts that the court’s jurisdiction and disposition
findings were not supported by substantial evidence. She
contends there was insufficient evidence of substance abuse or
any substantial risk of serious physical harm to the children.
She also asserts that the court’s disposition order was not
supported by the evidence. We agree that the court’s jurisdiction
finding was not supported by substantial evidence, and therefore
do not address her contentions regarding disposition.
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“Section 300, subdivision (b)(1), authorizes a juvenile court
to exercise dependency jurisdiction over a child if 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 . . . to adequately supervise or
protect the child, or . . . by the inability of the parent . . . to
provide regular care for the child due to the parent’s . . . mental
illness, developmental disability, or substance abuse.’ (§ 300,
subd. (b)(1).)” (In re L.W. (2019) 32 Cal.App.5th 840, 848.) “A
jurisdictional finding under section 300, subdivision (b)(1),
requires DCFS to demonstrate the following three elements by a
preponderance of the evidence: (1) neglectful conduct, failure, or
inability by the parent; (2) causation; and (3) serious physical
harm or illness or a substantial risk of serious physical harm or
illness.” (Ibid.)
“‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them.’” (In re I.J. (2013) 56 Cal.4th 766, 773.) Evidence
is substantial if it is reasonable, credible and of solid value. (In re
T.V. (2013) 217 Cal.App.4th 126, 133.) “We do not pass on the
credibility of witnesses, attempt to resolve conflicts in the
evidence or weigh the evidence. Instead, we draw all reasonable
inferences in support of the findings, view the record favorably to
the juvenile court's order, and affirm the order even if other
evidence supports a contrary finding.” (Ibid.)
California Courts of Appeal have made clear for more than
a decade that a parent’s drug use, without more, cannot support a
finding of juvenile court jurisdiction. (See, e.g., In re Alexis E.
(2009) 171 Cal.App.4th 438, 453 [“use of medical marijuana,
19
without more, cannot support a jurisdiction finding that such use
brings the minors within the jurisdiction of the dependency
court”]; In re Drake M. (2012) 211 Cal.App.4th 754, 764 [“without
more, the mere usage of drugs by a parent is not a sufficient basis
on which dependency jurisdiction can be found’]; In re Destiny S.
(2012) 210 Cal.App.4th 999, 1003 [“It is undisputed that a
parent’s use of marijuana ‘without more,’ does not bring a minor
within the jurisdiction of the dependency court. [Citation.] The
same is true with respect to the use of hard drugs.”]; In re L.W.,
supra, 32 Cal.App.5th at p. 849 [“drug use or substance abuse,
without more, is an insufficient ground to assert jurisdiction in
dependency proceedings under section 300”]; In re L.C. (2019) 38
Cal.App.5th 646, 654 [a father’s “‘use of methamphetamine,
without more, cannot’ support jurisdiction”]; In re Alexzander C.
(2017) 18 Cal.App.5th 438, 451 [“Father’s use of
methamphetamine, without more, cannot bring the children
within the jurisdiction of the dependency court”], disapproved of
on another basis by Conservatorship of O.B. (2020) 9 Cal.5th 989,
1003, fn. 7.)
“The law is clear that jurisdiction must be based on
substance abuse; mere substance use is not sufficient for
jurisdiction.” (In re J.A. (2020) 47 Cal.App.5th 1036, 1046.)
Substance abuse involves a “‘maladaptive pattern’” of behavior
manifested by “‘(1) recurrent substance use resulting in a failure
to fulfill major role obligations at work, school, or home (e.g.,
repeated absences or poor work performance related to substance
use; substance-related absences, suspensions, or expulsions from
school; neglect of children or household)[; ¶] (2) recurrent
substance use in situations in which it is physically hazardous
(e.g., driving an automobile or operating a machine when
20
impaired by substance use)[; ¶] (3) recurrent substance-related
legal problems (e.g., arrests for substance-related disorderly
conduct)[; and ¶] (4) continued substance use despite having
persistent or recurrent social or interpersonal problems caused or
exacerbated by the effects of the substance (e.g., arguments with
spouse about consequences of intoxication, physical fights).’
(DSM–IV–TR, at p. 199.)” (In re Drake M., supra, 211
Cal.App.4th at p. 766.) Although this “is not a comprehensive,
exclusive definition” for substance abuse (In re Christopher R.
(2014) 225 Cal.App.4th 1210, 1218), where there is “a lack of
evidence of life-impacting effects of drug use,” there is insufficient
evidence to “support a finding that a parent has a substance
abuse problem justifying the intervention of the dependency
court.” (In re Rebecca C. (2014) 228 Cal.App.4th 720, 726.)
Mother’s actions do not fit this framework. Mother’s
substance use was not clearly impacting her daily life—maternal
grandmother, father, A. and K. had no suspicions that mother
used drugs before DCFS’s involvement. The record suggests that
Mother’s hospitalization was caused by her heart condition, not
drug use. Neither maternal grandmother nor father had any
concerns about mother’s care for the children before DCFS
became involved. No evidence suggested that mother ever used
methamphetamine or marijuana while caring for the children,
and mother stated that she only used methamphetamine while
she was out of town and away from the children, and mother
never tested positive for methamphetamine. The children made
clear that they wanted their parents to share custody, and they
had no concerns about being with mother. The evidence does not
demonstrate the “life-impacting effects of drug use.”
21
Even if we were to assume that mother had a substance
abuse problem, however, a jurisdiction finding under section 300,
subdivision (b)(1) “requires a showing of a risk of serious physical
harm resulting from [a parent’s] substance abuse.” (In re Destiny
S., supra, 210 Cal.App.4th at p. 1005.) No such evidence existed
here.
DCFS argues on appeal—in a total of three sentences in the
argument section of its brief—that K. had many school absences
and tardies, and A. had behavior problems. Nothing in the record
connects these issues to mother’s drug use. There is no indication
in the record that DCFS ever asked the parents, the children, or
maternal grandmother about these issues. In spite of her
absences, K. continued to do well academically. DCFS apparently
never followed up with the school after July; even though the
case began in January 2020 and the court made a jurisdiction
finding in October 2020, there is no information about whether
either child enrolled in school for the 2020-2021 school year, or
whether the children advanced to the next grade.
As mother’s and the children’s counsel correctly noted at
the jurisdiction hearing, school absences, without more, cannot
support a finding of jurisdiction under section 300, subdivision
(b)(1). “It is also no doubt true failing to go to school regularly is
very detrimental to the children. Failing to attend school
regularly not only deprives the children of an education, but also
of the social interaction and ‘peer relationships necessary for
normal growth and development.’” (In re Janet T. (2001) 93
Cal.App.4th 377, 388.) “However, that is not the same as saying
the failure to attend school created a ‘substantial risk’ of
suffering ‘serious physical harm or illness.’ The lack of education
may well cause psychic or emotional or financial or social harm.
22
But there are no facts alleged, or suggested by the supporting
documentary evidence, to indicate mother’s failure to ensure the
children’s regular school attendance subjected the children to
physical injury or illness, serious or otherwise.” (Id. at pp. 388-
389; see also In re Destiny S., supra, 210 Cal.App.4th at p. 1003
[Even assuming that mother’s “drug use ‘could’ have been the
cause of Destiny being late to class,” that “conclusion is irrelevant
to dependency jurisdiction” where there is no substantial risk of
serious physical harm].)
Noting that A. was found to possess marijuana at school in
October 2019, DCFS argues that “Mother’s drug abuse appears to
have made it difficult for her to set a good example to [A.] as to
how to become a responsible adult.” It is not the case that any
time a teenager gets in trouble at school, the child’s mother must
have failed to “set a good example.” In addition, the evidence
makes clear that no family member even knew mother used
drugs before DCFS became involved with the family. DCFS’s
contention that A. was mimicking mother’s behavior months
before the case began is wholly unsupported by evidence.
Here, both DCFS and the juvenile court took a position our
colleagues in Division Eight of this court rejected in In re Rebecca
C., supra, 228 Cal.App.4th at p. 728: “DCFS essentially argues
that, when a parent engages in substance abuse, dependency
court jurisdiction is proper. This is not what the dependency law
provides. Further, if DCFS’s position were accepted, it would
essentially mean that physical harm to a child is presumed from
a parent’s substance abuse under the dependency statutes, and
23
that it is a parent’s burden to prove a negative, i.e., the absence of
harm. Again, this is not what the dependency law provides.”3
There is no question that during the pendency of this case,
mother was unreliable, difficult to contact, and missed many
drug tests. But the evidence also showed that mother’s life was
in upheaval—she and father were divorcing, she had recently
been in a serious car accident, she had been hospitalized for heart
problems, she moved in with maternal grandmother and then
they moved to a new home, there was a global pandemic, schools
had closed, maternal grandmother lost her business, and one of
mother’s close friends passed away. The juvenile dependency
system does not allow a court to exercise jurisdiction over a child
simply because the parent is unreliable, however; “[t]he
overarching goal of dependency proceedings is to safeguard the
welfare of California’s children.” (In re Nolan W. (2009) 45
Cal.4th 1217, 1228.) That purpose is not served by exercising
jurisdiction in the absence of a substantial risk that a child will
suffer serious physical harm.
3 Although such a presumption may be appropriate in a
case involving children of tender years (see, e.g., In re Drake M.,
supra, 211 Cal.App.4th at p. 767), it is not applicable here, where
K. was nine years old and A. was 13 years old when the case was
initiated.
24
DISPOSITION
The juvenile court’s jurisdiction and disposition orders are
reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
25