Filed 3/17/22 In re N.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Superior Court of Los Angeles County, Robin R. Kesler, Judge Pro Tempore of the Juvenile Court. Reversed.

Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kelly G. Emling, County Counsel, for Plaintiff and Respondent.

Appellant father D.C. challenges jurisdictional findings and disposition orders concerning his son, N.C. Respondent Los Angeles County Department of Children and Family Services (DCFS) concedes the jurisdictional findings are not supported by substantial evidence and does not oppose reversal. We accept the concession and agree that substantial evidence does not establish a nexus between father’s marijuana use and risk to N.C. We accordingly reverse the findings and orders.

BACKGROUND

Referral and Investigation

Father is the father of N.C., now four. He is in a relationship with but does not live with N.C.’s mother, T.S., who is also mother to D., now three.

On December 1, 2020, DCFS filed a petition under Welfare and Institutions Code section 300,[1] alleging that D. was a person described by subdivisions (a) and (b)(1) due to domestic violence between her father, D.L., and his current girlfriend. D. and N.C. remained in mother’s care throughout that case.

In February 2021, DCFS received a referral alleging that mother allowed D. to have unmonitored visitation with D.L. While investigating that allegation, DCFS children’s social worker (CSW) Isidoro visited mother’s home and observed that both children were well cared for. Mother was cooperative with the investigation. Both mother and maternal grandmother (MGM), with whom mother lived and who often cared for D. and N.C., denied allowing D. to visit with D.L. CSW Isidoro noted that mother denied substance use and did not appear to be under the influence.

Isidoro consulted with CSW Prosper, who had been working with the family on D.’s case. Prosper told Isidoro that mother recently inadvertently sent him a text message about her marijuana use. Prosper “confronted” mother about the errant message, and mother indicated she did not abuse marijuana and would stop using it. When mother took a drug test in early March 2021 on a day she had not used marijuana, however, she tested positive for what Prosper characterized as “high” levels of marijuana metabolites (1054 ng/ml). Prosper told Isidoro that he planned to have mother test weekly and enroll in services to address her substance use. Prosper also told Isidoro that father used marijuana but “other than that there are no concerns and he ‘seems alright.’”

On April 7, 2021, Isidoro spoke with mother about her marijuana use. Mother reported that she smoked marijuana “daily when she gets home from work at night time and she smokes 1-2 blunts in her car.” Mother denied driving while under the influence. She also stated that N.C. and D. were asleep and in MGM’s care when she smoked, and she stored the marijuana in the car out of their reach. Mother denied smoking in the house or on her days off from work. Isidoro told mother her drug use was “excessive” and “admonished” her about her test results. According to Isidoro, mother stated “yes” when asked if she believed she had a problem with marijuana. Mother also said she was open to receiving services and would try to stop using marijuana. Mother took a drug test later that day; it was positive for marijuana metabolites at a higher level than her previous test (1253 ng/ml) but negative for all other substances.

Isidoro also met with MGM, who reported that she had suspected mother of using marijuana “over a year ago” but believed that was a “one-time thing” because she had never seen mother possess or use marijuana. MGM became aware of mother’s current marijuana use only after mother said she was required to drug test. Isidoro checked on both children, who were alert, well-groomed, dressed appropriately for the weather, and free of marks or bruises indicative of abuse or neglect. Both children had well-child pediatric visits and received immunizations within the last month.

Isidoro spoke with father by phone on April 8, 2021. Father said he was aware of mother’s recent drug test results. He did not know the extent of mother’s marijuana use, but believed she used marijuana only when the children were asleep. He had no concerns about the children being in her care. Father reported that he previously used marijuana but decided to stop about a month ago. Father denied any mental health issues and said he was self-employed as a delivery driver. Isidoro assessed father’s home on April 12, 2021 and found it to be clean, organized, and free of visible hazards. The home had plenty of food and working utilities, and Isidoro did not observe any drug paraphernalia. Father took a drug test on April 20, 2021. He tested positive for marijuana metabolites (506 ng/ml) and negative for all other drugs.

Section 300 Petition and Initial Hearing

On May 13, 2021, DCFS filed a non-detained petition concerning N.C. under section 300, subdivision (b)(1).[2] Count b-1 alleged that mother’s history of substance abuse and current abuse of marijuana placed N.C. at risk, and father was aware of mother’s substance abuse but failed to protect N.C. from it. Count b-2 contained reciprocal allegations regarding father’s current abuse of marijuana and mother’s failure to protect N.C.[3]

The court held a hearing on May 18, 2021. The court found that father was N.C.’s presumed father and a prima facie case had been made. It found, however, that reasonable services existed to prevent detention and release of N.C. to mother and father would not be detrimental. The court admonished mother and father that N.C. was “very young” and needed “a clean and sober parent to raise” him. It accordingly ordered DCFS to provide referrals for services, including drug testing. The court added, “So we should be anticipating that without any marijuana use, your levels will go down and eventually get to zero. The quicker you do that and the longer you maintain that, the quicker this case would be dismissed.” The court set the matter for a jurisdiction hearing in July 2021.

Jurisdiction/Disposition Report

DCFS filed a jurisdiction/disposition report on June 25, 2021. It reported that Dependency Investigator-CSW (DI-CSW) Lopez visited N.C. at mother’s home on June 15, 2021. Lopez observed N.C. to be comfortable in the home and affectionate toward mother and D. N.C. had no marks indicative of abuse, and there were no concerns with his development. Mother was cooperative and polite during the visit and an earlier phone call with Lopez. Mother denied any history of substance abuse; she told Lopez that she had started using marijuana two years ago with her coworkers after work. N.C. and D. were at home with MGM when mother used; mother denied using marijuana when she was caring for the children. Mother told Lopez that she and father had smoked marijuana together “sometimes” in the past, but father had stopped using. Mother said that father did not use around N.C. and she would not allow him around the children if he were under the influence. Lopez did not have any concerns about mother’s mental health. The appellate record does not contain any information about drug testing for mother after her April 7, 2021 test.

Lopez spoke with father via phone on June 24, 2021. Father, who was at work at a new job at the time of the call, denied being under the influence and was cooperative and polite. Father told Lopez that he was aware of mother’s marijuana usage but said they “‘both quit ever since you guys (DCFS) told us we needed to decrease and stop usage.’” Father described mother as a very responsible parent who “would not smoke and provide regular care and supervision” to N.C. Father denied addiction to marijuana, which he had only used for a year or so and had stopped using. He also denied ever being under the influence while caring for N.C. Father was a no-show for a drug test on June 17, 2021. Father told Lopez he was not aware he had missed a test because he had never heard his number come up during his daily calls to the random testing hotline. There is no indication that father was asked to test again.

Lopez spoke with the current CSW assigned to the case on June 4, 2021. The CSW reported no “immediate or hazardous concerns with the children in the care of the mother.” MGM similarly reported that she trusted mother to care for the children, who looked “well cared for when [mother] cares for them.” MGM did not believe mother currently was using marijuana, because she did not smell it on mother or in their shared car. MGM further reported that mother had changed her work schedule, and MGM did not observe her to be under the influence when she arrived home. MGM added that mother previously used marijuana with father, but father told MGM he had stopped using marijuana.

The report concluded, “[b]ased on the information presented in this report, it is believed that both mother and father are willing and able to take the necessary steps to ensure the safety of [N.C.]. There appears to be a healthy bond and attachment between [N.C.], mother and father.” It added that both parents “appear to be committed to keeping [N.C.] and sibling [D.] safe,” and “have been able to provide for the child, with stable homes, and continue to provide for the child’s basic needs such as food, clothes, warm water, and medical attention.” The report also noted that DI-CSW Lopez “did not observe any drug paraphernalia” or “any safety hazards that would be detrimental to the health of the children in the home.”

DCFS nevertheless recommended the court sustain both allegations in light of parents’ admitted past marijuana use and positive and no-show tests. It included a list of possible effects of marijuana use, and asserted that such use “may affect [parents’] ability to function effectively in a parental role and the parents will provide inadequate supervision, as they will have reduced capacity to respond to a child’s cues and needs. Parents can become inconsistent with their parenting, create a chaotic home life, and expose the children to the substance by means of accidental ingestion of the drug.”

Jurisdiction/Disposition Hearing

The court held a combined jurisdiction/disposition hearing on July 14, 2021. It admitted into evidence the non-detained detention report, the jurisdiction/disposition report, N.C.’s birth certificate, and a notice of hearing. No other evidence was submitted, and counsel for DCFS reserved her argument for rebuttal. Counsel for both mother and father argued that the allegations should be dismissed because DCFS failed to prove a nexus between parents’ past marijuana use and current risk of harm to N.C. Father’s counsel called the court’s attention to the positive observations and conclusions detailed in the jurisdiction/disposition report. Father’s counsel also argued that D.’s case, which remained open despite her father D.L.’s death in March 2021, served as “an extra layer of protection.” N.C.’s counsel joined the arguments of mother’s and father’s counsel “in their entirety” and asked the court to dismiss the petition due to the absence of a nexus between the parents’ marijuana use and any risk to N.C.

Counsel for DCFS urged the court to sustain the petition, citing N.C.’s age, the increase in mother’s marijuana metabolite levels between her March and April tests, and father’s no-show test in June. Counsel for DCFS also asserted that mother stated she had a problem with marijuana, and her levels were high on a day she said she had not used; “therefore, she’s under the influence while she’s providing care for this very young child.”

The court sustained both allegations. In support of its decision, it cited mother’s characterization of her marijuana use as a problem; mother’s increased marijuana metabolite levels; mother’s willingness to drive under the influence; and N.C.’s age. The court additionally noted that father tested lower than mother, but “we don’t have any follow-up as to his actual use.” The court acknowledged that “marijuana is legal . . . [and] there is nothing in the appellate record that says what numbers are too high. But to consume marijuana on your way to take care of your children, that puts those children at risk, especially with the three-year-old.” The court also suggested that MGM was responsible for N.C. being well-cared for.

Regarding disposition, counsel for DCFS requested that N.C. remain in parents’ care, with family maintenance services. Mother’s counsel stated that mother would submit to testing, with her marijuana levels to go down. Father’s counsel submitted on home of parents, requested that any drug testing for father be ordered on reasonable suspicion of use only, and objected to parenting classes, “as there is no specific concern as to how [father] is parenting.” N.C.’s counsel did not make any argument regarding disposition; his comment that he joined parents’ counsel’s arguments in their entirety appears to have included their disposition arguments.

Over the objection of counsel for DCFS, the court declined to find N.C. a dependent of the court and released him to both parents. (See § 360, subd. (b).) It ordered mother and father to continue to drug test, with decreasing levels, and further ordered them to participate in a “substance abuse education course, so they can learn how their use of marijuana is affecting their three-year-old.” It struck parenting classes and individual counseling from DCFS’s proposed case plan.

Father timely appealed.

DISCUSSION

Father contends, and DCFS concedes, that the court’s jurisdictional findings were not supported by substantial evidence. Father further argues that the disposition orders based on the faulty jurisdictional findings must be reversed. We agree with father on both points.

I. Justiciability

Mother did not appeal the jurisdictional findings or the disposition order as they pertain to her. “[A] jurisdictional finding good against one parent is good against both” because dependency jurisdiction attaches to the child, not the parents. (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) This means that in many cases, an appeal by one parent cannot afford effective relief and is therefore moot. Father contends we should reach the merits of his appeal. DCFS does not mention justiciability.

“[W]e generally will exercise our discretion and reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as a basis for dispositional orders that are also challenged on appeal; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings; or (3) ‘could have other consequences for [the appellant], beyond jurisdiction.’” (In re Drake M. (2012) 211 Cal.App.4th 754, 762 (Drake M.).)

Here, the jurisdictional findings both implicate father and serve as a basis for the dispositional orders father also challenges. Additionally, the “jurisdictional findings as to Father, if erroneous, could have severe and unfair consequences to Father in future family law or dependency proceedings.” (In re Daisy H. (2011) 192 Cal.App.4th 713, 716.) We accordingly exercise our discretion in favor of considering father’s claims on the merits.

II. Standard of Review

“‘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 making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.” [Citation.] “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] ‘“[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate].”’ [Citation.]” [Citation.]’” (In re I.J. (2013) 56 Cal.4th 766, 773.)

III. Analysis

Section 300, subdivision (b)(1) authorizes a juvenile court to exercise jurisdiction over a child if it finds that “[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 his or her 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 . . . substance abuse.” (§ 300, subd. (b)(1).) “A jurisdictional finding under section 300, subdivision (b)(1), requires [the agency] 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.” (In re L.W. (2019) 32 Cal.App.5th 840, 848.)

In the context of alleged substance abuse, 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, without more, cannot support a jurisdiction finding that such use brings the minors within the jurisdiction of the dependency court”]; Drake M., supra, 211 Cal.App.4th at p. 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 [parent’s “‘use of methamphetamine, without more, cannot’ support jurisdiction”].)

“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 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.)” (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.)

Here, the record contains no evidence that father’s or mother’s substance use impacted their daily lives in any material way. Neither parent had any criminal history. Both had regular employment; maintained appropriate, safe, and stable homes for N.C.; bonded well with N.C.; and appropriately cared for N.C. DCFS explicitly acknowledged as much in the jurisdiction/disposition report. MGM, who lived with mother and shared the car in which mother smoked and stored her marijuana, had no current suspicions that mother was using drugs. MGM also informed DCFS that mother had changed her work schedule and did not appear to be under the influence when she arrived home. Neither parent appeared to be under the influence when interacting with DCFS, despite their positive test results, and both were cooperative, polite, and “willing and able to take the necessary steps to ensure the safety of [N.C.].”

Even if we were to assume that either or both parents 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, despite the speculation in the jurisdiction/disposition report. N.C. was happy, healthy, and well-cared for in every sense of the word. Both parents’ homes were appropriate and free of hazards, even during unannounced visits. Neither parent had any concerns about the other’s parenting, and MGM trusted mother with the children. No drug paraphernalia was accessible to N.C., and there is no indication that either parent actively cared for N.C. while under the influence. DCFS became aware of parents’ substance use only after receiving an errant text message, not after observing anything concerning during the investigation of D.’s case. Indeed, both parents safely cared for N.C. and D. throughout both cases; DCFS never even recommended detention of N.C. “‘The basic question under section 300 is whether circumstances at the time of the [adjudication] hearing subject the minor to the defined risk of harm.’ [Citation.]” (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) The circumstances here did not, as DCFS now concedes. The jurisdictional findings accordingly cannot stand. Nor can the disposition orders predicated thereon.

DISPOSITION

The juvenile court’s jurisdiction findings and disposition orders are reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

WILLHITE, J.

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] The petition did not mention D. It is unclear whether D.’s case included similar allegations.

[3] Count b-1 alleged that mother “has a history of substance abuse and is a current abuser of marijuana which renders the mother incapable of providing regular care for the child. On 04-07-21 and 03-08-21, the mother had positive toxicology screens for marijuana. On 04-07-21 and on prior occasions, the mother was under the influence of marijuana while the child was in the mother’s care and supervision. The child is of such young age requiring constant care and supervision and the mother’s substance abuse interferes with providing regular care and supervision of the child. The child’s father [D.C.] failed to protect the child when the father knew of the mother’s substance abuse and allowed the mother to have unlimited access to the child. The mother’ substance [sic] and the father’s failure to protect the child abuse [sic] endangers the child’s physical health and safety and creates a detrimental home environment, placing the child at risk of serious physical harm, damage and failure to protect.” Count b-2 alleged that father “has a history of substance abuse and is a current abuser of marijuana which renders the father incapable of providing regular care for the child. On 04-20-21, the father had a positive toxicology screen for marijuana. On 04-20-21, the father was under the influence of marijuana while the child was in the father’s care and supervision. The child is of such young age requiring constant care and supervision and the father’s substance abuse interferes with providing regular care and supervision of the child. The child’s mother, [T.S.], failed to protect the child when the mother knew of the father’s substance abuse and allowed the father to have unlimited access to the child. The father’s substance [sic] and the mother’s failure to protect the child abuse [sic] endangers the child’s physical health and safety and creates a detrimental home environment, placing the child at risk of serious physical harm, damage and failure to protect.”