Filed 4/20/20 (unmodified and unpublished opinion attached)
                         CERTIFIED FOR PUBLICATION

        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          SECOND APPELLATE DISTRICT

                                      DIVISION FIVE


In re J.A. et al., Persons Coming                    B297416
Under the Juvenile Court Law.
LOS ANGELES COUNTY                                   (Los Angeles County
DEPARTMENT OF CHILDREN                               Super. Ct. No. 19CCJP00773)
AND FAMILY SERVICES,

        Plaintiff and Respondent,                   ORDER MODIFYING OPINION
                                                    AND CERTIFYING OPINION
        v.                                          FOR PUBLICATION

D.D.,                                               [No Change in Judgment]

        Defendant and Appellant.


THE COURT:
       GOOD CAUSE APPEARING, the opinion in the above-entitled matter
filed on April 1, 2020, was not certified for publication in the Official Reports.
For good cause, it now appears that the opinion should be published in the
Official Reports and be modified as follows:
       On page 17, full first paragraph beginning with “Department‘s only
other evidence . . .” change the word “suggestions” to “suggestion” in the last
sentence.
        There is no change in judgment.
        It is so ordered.


________________________________________________________________________
RUBIN, P. J.                         MOOR, J.
Filed 4/1/20 In re J.A. CA2/5 (unmodified and unpublished opinion)

         NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

In re J.A. et al., Persons Coming                            B297416
Under the Juvenile Court Law.
LOS ANGELES COUNTY                                           (Los Angeles County
DEPARTMENT OF CHILDREN                                       Super. Ct. No. 19CCJP00773)
AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

D.D.,

         Defendant and Appellant.

       APPEAL from orders of the Superior Court of Los Angeles County.
Philip L. Soto, Judge. Reversed.
       Paul A. Swiller, under appointment by the Court of Appeal, for
Defendant and Appellant.
       Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant
County Counsel and Sally Son, Deputy County Counsel, for Defendant and
Respondent.

                      __________________________
         Mother D.D. appeals from the order adjudicating her two children,
J.A. (Toddler) and D.Y. (Baby) dependent, and the dispositional order
placing the children in her home, but requiring her participation in certain
programs and services. The sole basis of dependency was mother’s use of
medical marijuana while pregnant with Baby. We conclude the evidence is
insufficient to establish mother abused marijuana or that any such substance
abuse placed the children at risk of serious harm. We therefore reverse.
            FACTUAL AND PROCEDURAL BACKGROUND
       The family came to the attention of the Los Angeles County
Department of Children and Family Services (DCFS or Department) at
Baby’s birth, when he and mother tested positive for marijuana. Toddler
had just turned four years old. The boys’ fathers are unknown and were not
parties to this proceeding.
1.     Baby’s Birth and Mother’s Marijuana Use
       Baby was born in December 2018. When mother and Baby tested
positive for marijuana, mother admitted consuming edible marijuana. She
denied smoking marijuana. 1 Mother explained that she had researched her
pregnancy symptoms and read articles online which indicated that
marijuana would be the safest alternative to pills to treat her symptoms.
Mother has a medical marijuana card, and used the marijuana to help with
pain and swelling. However, she conceded that, although she had obtained
prenatal care, she did not inform her doctor about her marijuana usage,
believing that the doctor would have judged her.




1      The record indicates that mother admitted smoking five to six
cigarettes per day. Given mother’s repeated denial of smoking marijuana,
this admission appears to relate to tobacco cigarettes.


                                      2
       There is some dispute in the record as to whether mother admitted
using medical marijuana “throughout” her pregnancy or only for the last
few months. Similarly, there is some dispute as to whether she admitted
taking it every day or only as needed.
       After Baby’s birth and positive test, the doctor told mother that she
could not breastfeed until she tested clean, so mother stopped taking
marijuana. Mother’s drug test on December 13, 2018, a few days after
Baby’s birth, was still positive for cannabinoids. Thereafter, on December
28, 2019, mother tested negative. Mother appeared for several more drug
tests during the course of the proceedings. The only results which are in
the record are negative, and DCFS makes no assertion that mother tested
positive after December 13, the day that Baby was three days old.
       Mother has no criminal history. Mother lived with maternal
grandmother; maternal great-grandmother lived nearby and both women
helped with child care. (As there are no paternal relatives in this case, we
simply refer to “grandmother” and “great-grandmother.”) Mother stated
that she safely stored her medical marijuana edibles on a top shelf away
from Toddler. There was no evidence to the contrary. Mother explained
that, although she took medical cannabis, she was never under the influence
when she was caring for Toddler, and was never “high.” Great-
grandmother concurred that mother was never high. There is some
objective evidence to support mother’s assertion that her cannabis use did
not render her unable to care for the children. On December 12 – one day
before mother’s drug test showed that she was still positive for
cannabinoids – the social worker met with mother, and described her as
“cooperative, easy to engage and presented with an appropriate affect.


                                      3
Mother displayed no visible indication of cognitive impairment or
substance use.” She observed mother interacting with Baby “in an
appropriate and nurturing manner.”
2.     The Department’s Informal Intervention
       The initial referral from the hospital came to DCFS’s attention on
December 11, 2018. 2 The Department did not immediately file a petition
but instead attempted to resolve any problems with mother’s voluntary
participation.
       After mother’s release from the hospital, a social worker did a home
visit of grandmother’s house, where mother and the children lived. There
were a lot of pets there; the house smelled like animals and the social
worker saw several cats and heard dogs barking behind a closed bedroom
door. The home “had a foul odor mixed with cleaning products.” She
noted the refrigerator and freezer were “dirty,” and that there was “minimal
food” in the refrigerator – only milk, eggs, and a few other items. Mother
explained that she had just received her financial assistance and would be
grocery shopping soon. The record also indicates that mother herself had
been a dependent child, based on, among other things, grandmother’s drug
use. However, in 2008, after mother had been removed from
grandmother’s home and reunification services had been terminated,


2      In addition to reporting mother’s admission of prenatal marijuana
usage, the referral stated that the attending nurse had observed mother to be
very rude and cursing at grandmother and Toddler. This is the only
indication in the record that mother was anything other than even-tempered
with her family.




                                      4
grandmother successfully filed a petition under Welfare & Institutions
Code section 388, and mother was returned to grandmother’s home. 3
Although grandmother had obtained sobriety in 2008 – sufficient for
mother to be returned to her custody – the Department would later use
grandmother’s drug history to question mother’s housing choices in this
case.
        A week after mother’s release from the hospital, mother moved to
great-grandmother’s home, saying there were too many pets at
grandmother’s home and she did not want Baby to feel uncomfortable. The
social worker did a home visit at great-grandmother’s home, and found the
home to be “clean, adequately furnished and stocked with sufficient food
supply, age appropriate toys and clean clothing and linens.” There were no
visible safety hazards and no signs of drug abuse. Great-grandmother
would allow the family to stay as long as necessary; however, she was
having heart surgery in a few days.
        At a home visit with a nurse, Baby was observed to have no
developmental concerns. The nurse explained, however, that because of his
prenatal exposure to marijuana, he might possibly show delays when he is
older. Interviews with Toddler never raised any cause for concern. Mother
took both children to the doctor as necessary.
        On January 8, 2019, mother explained that housing was still a
concern. Great-grandmother was in the hospital, awaiting triple bypass
surgery. Once she returned home, she would need time to recover without


3       All undesignated statutory references are to the Welfare and
Institutions Code.


                                      5
the children present. Mother told the Department that she was “hesitant” to
go to a homeless shelter.
       Mother’s housing situation became more dire by mid-January, when
both grandmother and great-grandmother received eviction notices and
were told be out of their respective homes by February 1. The Department
gave mother information about a shelter, and mother promised to follow up.
Mother also agreed to participate in Voluntary Family Maintenance.
       On January 22, mother reported that she was not willing to move to
the temporary shelter because of her young children. She planned to return
to grandmother’s home until grandmother’s eviction hearing. She
explained that the Los Angeles County Department of Public Social
Services had offered her hotel vouchers which she would use if
grandmother were evicted. The social worker explained that the
Department had concerns about mother returning to grandmother’s home
because, at the home visit, “the home appeared unkept, there was no food in
the home and [grandmother] has an extensive substance abuse history.”
Mother responded that she plans to buy food for the home. At this point,
the Department considered mother to have declined Voluntary Maintenance
Services, and considered filing a petition.
       Before we discuss the proceedings, there are two other factual issues
which need to be explained: Toddler’s possible need for speech therapy
and an inconclusive prior referral.
3.     Toddler’s Need for Speech Therapy Evaluation
       Mother took Toddler to the pediatrician regularly. As early as
January 2018, his pediatrician noted a speech delay and referred him for
speech therapy. Mother was told to contact the school district to obtain


                                      6
speech therapy; she did not do so. In November 2018, Toddler was again
seen in the clinic (for a flu vaccine). A speech delay was again noted, and
mother was directed to bring him back in three weeks for further
evaluation. She did not do so. The child was next seen on December 21,
2018, for an infection. Mother was again advised that he needed speech
therapy. She was also told he needed medication for hyperactivity and
oppositional disorder. On January 4, 2019, his doctor prescribed
medication for the hyperactivity, and once again pointed out that his speech
was poor.
          When a Department social worker had interviewed Toddler on
December 28, she thought he might have a speech impediment or delay.
Mother agreed that the pediatrician had recommended Toddler obtain
speech therapy at the school where he attended pre-K classes. The social
worker recommended that mother ask for an IEP (Individualized Education
Program); mother said she would look into it. On January 8, 2019, mother
reported that the school said it did not perform assessments and referred her
someplace else, which she had not yet had a chance to call. Mother also
explained that she had initially been hesitant to medicate Toddler for his
behavior, but had begun doing so and she had seen an improvement in
Toddler’s behavior. Mother agreed to call Los Angeles Unified School
District (LAUSD) as soon as possible to get Toddler assessed for speech
delay.
          On January 17, mother reported that she called LAUSD for the
speech assessment, but was told to call back later because they were on
strike.




                                       7
       On February 1, 2019, the social worker called mother and asked if
she had followed up on the speech evaluation for Toddler. Mother stated
that she spoke with a psychologist, who felt that Toddler’s speech was on
target and he did not need any speech therapy or intervention. The
psychologist also advised her to stop his hyperactivity medication, as the
psychologist felt he was too young to receive medication. The social
worker asked for the contact information of the psychologist; mother said
she would text it later.
       The petition was filed on February 5, 2019, and supported by a non-
detention report. A hearing was held on February 6, 2019. At the hearing,
mother’s counsel explained that mother had Toddler assessed for an IEP,
and brought a copy of the assessment to court. Mother was to provide a
copy to the Department. The report is dated January 31, 2019. It indicates
that the evaluation was conducted by a Special Education Teacher, a School
Psychologist, and a Language and Speech Specialist, all of whom were
identified by name. It reports that mother’s concern was “Articulation.”
The “Speech and Language” section of the evaluation states that Toddler
has “[a]ge appropriate articulation.” The “Health” section reads that he has
been on medication “to calm him down” since December, and states, “it is
not effective.” Toddler was assessed as “age appropriate” in all categories,
with no referral to Regional Center or for rescreening.
       Given that this evaluation was conducted by a psychologist on
January 31, and concluded Toddler needed no speech therapy, it is apparent
that this was what mother was referring to when, on February 1, she told
DCFS that a psychologist had told her Toddler did not require speech
therapy.


                                      8
4.     The Inconclusive Prior Referral
       In December 2015, when Toddler was one year old, there was a
referral of general neglect and physical abuse against mother, which was
resolved as inconclusive as to neglect and unfounded as to abuse.
       An anonymous reporter claimed that mother used cocaine,
methamphetamine and medical marijuana, and was constantly high in front
of Toddler. The reporter alleged that she left the drugs within Toddler’s
reach, and that she often left him alone in the house for several hours when
she went out to purchase marijuana. The reporter alleged that when mother
was home, she ignored Toddler, and he once fell in the pool because she
was not watching him. The reporter said mother often left cleaning
chemicals within the child’s reach, and that she was observed physically
striking the child on his face, mouth and hands.
       Mother had, at this point, checked herself into the hospital because
she had an anxiety attack and wanted to self-harm via cutting. She was
released in a few hours and recommended to mental health services.
Thereafter, at a meeting at the DCFS office, mother indicated she was
pursuing mental health services to deal with her anxiety and post-partum
depression, and also attended an addiction program – the same program
which had previously helped grandmother recover. After the Department
confirmed mother had enrolled in the mental health and addiction
programs, and the family declined further services, the Department
concluded the physical abuse referral was unfounded and the general
neglect inconclusive, and closed the referral.
       When asked in the current proceedings about the prior referral,
mother stated that the referral was made vindictively by an ex-boyfriend,


                                      9
who falsely alleged mother was using drugs; she said that she only used
marijuana. Mother denied being enrolled in a drug addiction program and
denied prior mental health services, post-partum depression, or suicidal
ideation.
5.      The 300 Petition
        The petition to declare the children dependent was filed on February
5, 2019. It alleged the children were described by section 300, subdivision
(b) in two counts. The first alleged that Baby was born with a positive
toxicology screen for marijuana, which condition would not have occurred
without unreasonable acts of mother, which place him at the risk of serious
physical harm and emotional damage. The second alleged that mother has
a history of substance abuse and is a current abuser of marijuana, which
renders her incapable of providing regular care to the children. It further
alleged that mother abused marijuana during her pregnancy with Baby, and
on numerous prior occasions was under the influence of marijuana while
providing care and supervision to the children. As the children are of such
young ages as to require constant care and supervision, mother’s substance
abuse interferes with her ability to provide that care and endangers the
children’s health and safety.
        There was no allegation of neglect based on any purported untreated
mental health issues of mother, or general neglect leading to the failure to
obtain necessary medical care. Both counts were based only on mother’s
alleged substance abuse.
        The children were not detained, but remained placed in mother’s
home.




                                      10
6.     Non-Detention Hearing
       A non-detention hearing was held. The Department’s report for the
hearing explained that the Department believed there was substantial
danger to the children because the Department was “concerned about
[m]other’s lack of follow through with [the Toddler’s] speech services.”
The Department was also “concerned about [m]other’s mental health as
[m]other was previously hospitalized on a 72-hour psychiatric hold for
cutting herself shortly after [Toddler’s] birth. Mother has not followed up
with her mental health services since her initial[] hospitalization.” 4 The
Department did not suggest mother’s alleged failures in this regard were in
any way related to the alleged substance abuse.
       DCFS’s report further indicated that mother admitted using
marijuana through her pregnancy with Baby and that a social worker’s
“safety assessment” indicated a “high risk for future abuse.” There was no
further explanation of the reason for this assessment.
       At the hearing, the court found a prima facie case and released the
children to mother. The court told mother to not use edibles or drugs of any
kind; she said, “No problem.” The Department was to provide services to
assist mother; mother was to drug test.



4       While mother completely denies any hospitalization or suicidal
ideation, DCFS’s characterization of this event overstates its own evidence.
The social worker’s description of the events related to the prior referral
states, “Mother admitted that she was in the hospital because she had [an]
anxiety attack and wanted to kill herself by cutting. Mother stated that she
was released in [a] few hours . . . .” There is no evidence of a 72-hour hold
or that she had actually cut herself.


                                      11
7.     Jurisdiction Hearing
       The jurisdiction hearing was held on March 18, 2019, approximately
six weeks after the non-detention hearing. In the intervening time, there
were no problems identified in mother’s care of the children. The
Department acknowledged the LAUSD assessment which mother had
obtained on January 31, which indicated Toddler was age appropriate in
speech. However, the Department still took the position that mother
continued to fail to identify the psychologist who told her, before
February 1, 2019, that she should stop Toddler’s hyperactivity medication.
       The summary of the Department’s findings, in its entirety, reads as
follows: “It is this DI’s assessment that the mother still does not
understand the risk she caused to the [Baby] by repeatedly consuming
marijuana while pregnant. Furthermore, she does not believe that being
under the influence of cannabis inhibits her ability to parent or supervise
her four-year-old son, [Toddler]. Additionally, the children’s pediatrician
reported that she instructed the mother to follow up with Regional Center
and LAUSD for speech services. On 1/4/19, [Toddler] was placed on
Tenez for hyperactivity and was informed that [Toddler] had poor speech.
On 2/1/19, [m]other informed CSW that [Toddler] was assessed by a
psychologist and it was recommended that [m]other stop [Toddler’s]
psychotropic medication without medical consultation. However,
[m]other was unable to provide any documents to support this
recommendation by the psychologist or the name of the psychologist. [¶]
The mother does not believe she is at fault or did anything to warrant the
Department and Dependency Court’s involvement in her family’s life. She
has reported feeling that cannabis was a safer alternative for pain


                                      12
management than narcotics or any pain medication she could have been
prescribed by a doctor. However, she also indicated that she failed to
notify her treating obstetrician due to fear of judgment. The mother
submitted to random toxicology screenings on 02/12/2019 and 02/20/2019,
her results were negative at both [] occurrences. The family has a strong
support system from extended maternal relatives, however they too believe
the mother acted appropriately by using cannabis as an alternative to
narcotics in effect to manage her pain during her pregnancy. Neither the
mother nor maternal relatives appear to understand the seriousness of the
mother’s substance abuse during her pregnancy, or the fact that being under
the influence of cannabis inhibits the mother’s ability to parent[] and
supervise a newborn as well as a hyperactive toddler. The maternal
relatives appear to support the mother’s decision to self-medicate. [¶] The
Department is also concerned about [m]other’s mental health, as [m]other
was previously hospitalized on a 72-hour psychiatric hold for cutting
herself shortly after [Toddler’s] birth. Mother has not followed up with her
mental health services since her initial hospitalization. Furthermore, the
mother participated in an Up Front Assessment and the recommendation
was for mother to receive[] mental health services. At this time, the mother
feels she is not in need of any mental health services and reported that
‘talking to someone doesn’t work’ for her. [¶] Without the Department
and Dependency Court’s supervision, it is highly likely that the mother will
not follow through with services for [Toddler]. Such as speech services
and mental health to address his hyperactivity and assist in behavior
modification. Additionally, it is equally likely that the mother will not
follow through with parenting, mental health services for herself nor will


                                      13
she maintain a stable and sober lifestyle. [¶] Given mother’s history with
the Department, unstable housing and reported lack of follow through, it is
the Department’s recommendation that the family receive Family
Maintenance Services, participate in Family Preservation Services and that
the mother participate in random drug testing, individual counseling to
address case issues, parenting program and follow up with academic
support services, medical appointments and Regional Center services for
the children. Additionally, it is recommended that [Toddler] receive age
appropriate services to address his hyperactivity and lack of focus.”
       At the hearing, mother argued that the only evidence supporting the
petition is that she used marijuana edibles, but there was no evidence that
either child was harmed by this. Mother also argued she is no longer using
and has tested clean. Counsel for the children argued that the petition
should be sustained simply because mother used marijuana while pregnant;
she did not seek her doctor’s approval before doing so; and the children
were of tender years.
       The court sustained the petition, but released the children to mother
as there was no evidence that release would be detrimental to them. The
court stated that mother “is cooperative and will be able to take care of the
children in her home if she continues to cooperate with the Department.”
Drug testing and family preservation services were ordered.
       Mother filed a timely notice of appeal.
                               DISCUSSION
1.     Standard of Review
       “ ‘We review the juvenile court’s jurisdictional findings for
sufficiency of the evidence. [Citations.] We review the record to


                                      14
determine whether there is any substantial evidence to support the juvenile
court’s conclusions, and we resolve all conflicts and make all reasonable
inferences from the evidence to uphold the court’s orders, if possible.
[Citation.] “However, substantial evidence is not synonymous with any
evidence. [Citations.] A decision supported by a mere scintilla of evidence
need not be affirmed on appeal. [Citation.] Furthermore, ‘[w]hile
substantial evidence may consist of inferences, such inferences must be “a
product of logic and reason” and “must rest on the evidence” [citation];
inferences that are the result of mere speculation or conjecture cannot
support a finding [citations].’ [Citation.] ‘The ultimate test is whether it is
reasonable for a trier of fact to make the ruling in question in light of the
whole record.’ [Citation.]” [Citation.]’ ” (In re Drake M. (2012)
211 Cal.App.4th 754, 763.)
2.     Elements Under Section 300, Subdivision (b)
       The children were declared dependent under section 300,
subdivision (b)(1). That subdivision provides, in pertinent part, that a child
may be declared dependent if “[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 inability of the parent or guardian to provide regular care
for the child due to the parent’s or guardian’s . . . substance abuse.” The
finding of dependency cannot be based on substance abuse alone;
jurisdiction requires a substantial risk of harm to the child arising from the
substance abuse. (In re Alexis E. (2009) 171 Cal.App.4th 438, 453.)
       Mother argues there is insufficient evidence of both elements – that
is, insufficient evidence of substance abuse and insufficient evidence of
substantial risk of harm to the children arising from substance abuse.


                                       15
DCFS does not separate its response with respect to the two elements,
preferring instead a holistic approach that mother’s prenatal use of
marijuana supported the finding of dependency.
3.     Insufficient Evidence of Substance Abuse
       The law is clear that jurisdiction must be based on substance abuse;
mere substance use is not sufficient for jurisdiction. (In re Drake M.,
supra, 211 Cal.App.4th at p. 764.) However, the law is not in agreement on
when substance use reaches the point of substance abuse. Division Three
of the Second Appellate District concluded that a finding of substance
abuse must be based on evidence sufficient to show that: (1) the parent had
been diagnosed as a having a current substance abuse problem by a medical
professional; or (2) the parent has a current substance abuse problem as
defined by the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders (4th rev. ed. 2000) (DSM-IV). (Id.
at p. 766.) Division Seven of the Second Appellate District disagreed with
the requirement of a diagnosis or evidence establishing the requirements of
DSM-IV. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1218.)
Moreover, the court noted that DSM-IV had been superseded by the fifth
version of the DSM, which has a much broader definition for substance
abuse disorders. (Id. at p. 1218, fn. 6.)
       DCFS does not argue that there is sufficient evidence of substance
abuse under any particular standard. The failure to do so is understandable.
The evidence of mother’s substance use is, at most, that she used edible
marijuana while pregnant, to address her pregnancy symptoms, after having
researched that it was a relatively safe alternative. She claims that she was
never high or under the influence when she used it. She claims that she


                                      16
easily stopped using as soon as she was told to do so; her drug tests support
this. This is not substantial evidence – or any evidence – of substance
abuse.
         In contrast, DCFS simply assumes that mother’s use of medical
marijuana was harmful to Baby and rendered mother under the influence
when caring for Toddler. The argument is more speculative than
evidentiary. There is no evidence, for example, of the type of medical
marijuana mother used, or whether the cannabinoids for which mother
tested positive were those with psychoactive properties or merely those
which affect pain. While the Department is unimpressed by mother’s
claimed research into the safety of the medical marijuana she used, it
presented no contrary research into the risks of prenatal exposure to
medical marijuana edibles. 5
         Department’s only other evidence of substance abuse is its
assumption that, based on the prior referral, mother had an “unaddressed
history of substance abuse.” The evidence of this – an inconclusive referral
three years prior, contradicted by three intervening years of care for
Toddler with no suggestions of drug use – is too insubstantial to support the
finding.




5       The sole evidence was that, at a joint visit with a Department social
worker and public health nurse, the nurse told mother that “as [Baby] was
prenatally exposed, there is a possibility he may show delays when he is
older.”


                                      17
4.     Insufficient Evidence of Substantial Risk Arising
       From Substance Abuse
       Even if we were to conclude the evidence was sufficient that
mother’s use of medical marijuana edibles rose to the level of substance
abuse, there is insufficient evidence that this abuse gave rise to a substantial
risk of harm to the children.
       “Although section 300 generally requires proof the child is subject to
the defined risk of harm at the time of the jurisdiction hearing [citations],
the court need not wait until a child is seriously abused or injured to assume
jurisdiction and take steps necessary to protect the child [citation]. The
court may consider past events in deciding whether a child currently needs
the court’s protection. [Citation.] A parent’s ‘ “[past] conduct may be
probative of current conditions” if there is reason to believe that the
conduct will continue.’ [Citation.]” (In re Christopher R., supra,
225 Cal.App.4th at pp. 1215–1216.)
       Here, the record shows no risk of harm to the children. Although
Toddler was indisputably in mother’s care while she was consuming the
marijuana edibles, there was no evidence of any risk to him. DCFS
attempts to manufacture a risk based on mother’s purported failure to
obtain the necessary speech therapy; but the evidence indicates that mother
did have Toddler evaluated prior to the non-detention hearing, and the
school psychologist and language and speech specialist conducting the
evaluation concluded there was no need for therapy. To the extent DCFS
would find a risk of harm based on mother’s failure to have Toddler
evaluated when his pediatrician initially recommended it, the
recommendation was in January 2018, and necessarily predated mother’s


                                      18
pregnancy and medical marijuana use. Therefore, mother’s delay in
following through could not have been attributable to her consumption of
marijuana edibles. 6
       DCFS is left, then, with a single fact: that Baby tested positive for
cannabinoids at birth. Department relies on authority that prenatal
exposure to drugs creates a presumption of dependency. (In re Christopher
R., supra, 225 Cal.App.4th at p. 1217; In re Monique T. (1992)
2 Cal.App.4th 1372, 1378; In re Troy D. (1989) 215 Cal.App.3d 889, 897.)
The presumption arises not from case law, but from section 355.1. (Troy
D., at p. 897.) The statute provides, in pertinent part that, “[w]here the
court finds, based upon competent professional evidence, that an injury,
injuries or detrimental condition sustained by a minor is of a nature as
would ordinarily not be sustained except as the result of the unreasonable or
neglectful acts or omissions of either parent, . . . that finding shall be prima
facie evidence that the minor is a person described by subdivision (a), (b),
or (d) of [s]ection 300.”
       Application of this statutory presumption when a child is “diagnosed
as being born under the influence of a dangerous drug,” such as morphine


6     We reach a similar conclusion with respect to the Department’s
concern regarding mother taking Toddler off his hyperactivity medication,
purportedly on the advice of a psychologist. The Department may disagree
with mother’s decision, and think it ill-advised, but does not tie it to
mother’s medical marijuana use. Mother had ceased using medical
marijuana by the time Toddler’s pediatrician placed him on psychotropic
medication, and any reluctance she thereafter may have had regarding
medicating her young child could not be attributable to her prior use of
medical marijuana.


                                       19
and methamphetamine, is clear. (In re Troy D., supra, 215 Cal.App.3d at
pp. 894–895, 897.) Being born “under the influence of a dangerous drug”
is obviously a “detrimental condition” within the meaning of the statutory
presumption. Similarly, in Monique T., the child not only tested positive
for cocaine at birth, she also suffered severe medical problems from the
drug use, requiring placement in a home for medically fragile children. (In
re Monique T., supra, 2 Cal.App.4th at pp. 1374–1375.) This, too, is
obviously a “detrimental condition” within the meaning of the statutory
presumption. And in Christopher R., the infant tested positive for cocaine,
amphetamine and methamphetamine at birth, which the court held
“unquestionably” endangered the child’s health. (In re Christopher R.,
supra, 225 Cal.App.4th at p. 1217.)
       In this case, we look in vain for “competent professional evidence”
of an “injury, injuries or detrimental medical condition” sustained by Baby
(§ 355.1). The evidence is that the child tested positive for cannabinoids at
birth and did not appear to be developmentally delayed. At most, there was
a possibility that he may show delays later.
       Although understandably neither DCFS nor the trial court condones
edible marijuana use while pregnant, DCFS acknowledges there is no
injury, and the medical condition of prenatal exposure carries only some
unexplained degree of possible future detriment. This is insufficient to
trigger the presumption such that there is a substantial risk of harm to Baby
from mother’s admitted prenatal consumption of marijuana edibles.




                                      20
5.     The Department’s Totality Approach Does Not
       Change the Analysis
       As we have previously observed, the Department does not address
the individual elements of substance abuse and substantial risk, but simply
argues that, in an overall manner, the record supports the finding of
dependency.
       But the Department’s analysis does not hold up. It relies on
authority that a parent’s substance abuse is prima facie evidence of
substantial risk to children of tender years who require adequate
supervision. (E.g., In re Drake M., supra, 211 Cal.App.4th at p. 766.) But,
as discussed above, the evidence does not support a finding of substance
abuse, so there is no prima facie evidence of substantial risk.
       In summary, the only evidence is that mother used medical
marijuana edibles during her pregnancy. There is no evidence this harmed
either of her children. The Department relies on evidence that mother
delayed in having Toddler’s speech assessed, but her marijuana use did not
cause the delay and, in any event, she obtained the assessment and
Toddler’s speech was age appropriate. The Department relies on evidence
that mother was reluctant to put Toddler on psychotropic medication, but
the evidence that she went against medical advice is inconclusive, and,
again, there is no evidence that her medical marijuana use caused her
reluctance. The Department relies on evidence that mother preferred to
stay in grandmother’s home rather than take her children to a shelter,
despite the social worker’s expressed concerns regarding grandmother’s
home; but there was no evidence grandmother’s home presented a risk to
the children, and, again, no evidence that mother’s decision was in any way


                                      21
impacted by her prior use of medical marijuana. Finally, the Department
relies on evidence from a prior referral to infer mother had long-standing
drug and mental health problems which were never addressed, yet the prior
referral was closed as inconclusive, the petition in this case did not allege
any mental health issues, and there is simply no evidence of drug use
outside the medical marijuana edibles mother admitted using during
pregnancy.
6.     The Appeal is Not Moot
       After briefing was completed in this matter, we advised the parties
of our intent to take judicial notice of the trial court’s two minute orders of
January 15, 2020, dismissing dependency proceedings. We gave the parties
the opportunity to voice any objection. Neither party objected.
Accordingly, we take judicial notice of the two orders.
       We also directed the parties to address in supplemental letter briefs
whether in light of the January 15, 2020 order terminating jurisdiction the
appeal was now moot. The Department argues mootness by asserting
dismissal of the dependency proceedings afforded mother the relief she
sought by this appeal. Mother claims the matter is not moot because of
potential collateral consequences to her family.
       In deciding whether to dismiss an appeal as moot, we are guided by
the general rule that “ ‘an appeal presenting only abstract or academic
questions is subject to dismissal as moot.’ [Citation.]” (In re Jody (1990)
218 Cal.App.3d 1615, 1621-1622.) “When no effective relief can be
granted, an appeal is moot and will be dismissed.” (MHC Operating
Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214
[mobile home rent control challenge].) As the last cited case reveals, this


                                      22
rule is not unique to dependency proceedings. (See also Vernon v. State of
California (2004) 116 Cal.App.4th 114, 117 [FEHA and Civil Rights
claims].) However, even in circumstances where effective relief can no
longer be provided to a parent appealing jurisdictional findings, because
that parent has since been awarded custody, courts have recognized they
retain the inherent discretion to resolve the issue where “there is a
likelihood of recurrence of the controversy between the same parties or
others.” (See, e.g., In re N.S. (2016) 245 Cal.App.4th 53, 59.)
       We believe that this is an appropriate case in which to exercise
discretion to address the jurisdictional errors, because the issue is one that
is likely to recur in the future. If we fail to exercise our discretion to
resolve the jurisdictional appeal, the Department may feel free to continue
to pursue jurisdiction in other cases where there is no evidence of substance
abuse, and no evidence of substantial risk – only evidence that a child was
born testing positive for marijuana, bolstered only by vague and unproven
concerns.
                                DISPOSITION
       The adjudication and disposition orders are reversed.




                                                           RUBIN, P. J.
I CONCUR:



                             MOOR, J.




                                       23
In re J.A., et al.
B297416




BAKER, J., Dissenting




        The mother of the very young minors at issue in this case, four-year-
old J.A. and three-month-old D.Y., ingested marijuana—daily, according to
her admission to hospital personnel—for the last four months of her
pregnancy with D.Y. 1 No surprise, D.Y. tested positive for marijuana at
birth. The mother claimed she used marijuana “‘as an alternative for the
pain and swelling associated with [her] pregnancy,’” but she admitted she
never asked her prenatal doctor whether such marijuana use was safe
(because the doctor would have “judged her”) and instead did her own
“research” by reading “articles online.” 2 And before D.Y. was born, the
mother twice failed to promptly follow up on medical recommendations
(including one made in November 2018, which was during the time she
was admittedly ingesting marijuana) that she have her older son assessed



1       Mother also admitted to smoking cigarettes during her pregnancy.
2     Mother told the Los Angeles County Department of Children and
Family Services (the Department) she concluded prescription medication
would do more harm to her baby than ingesting marijuana.
for speech delays. 3 Despite all this, when the Department filed a
dependency petition, the juvenile court agreed to keep the minors in the
mother’s custody while assuming dependency jurisdiction over the minors
to have better visibility into their welfare and provide protection against a
substantial risk of serious physical harm.
       In my view, the juvenile court’s resolution was spot on. Indeed, that
resolution was not just the Department’s recommendation below but also
the recommendation adopted by counsel for the minors. The majority
nevertheless reverses—apparently of the view that mere court supervision
of the family without removal of the children from the mother’s custody is
unjustifiable even under the deferential substantial evidence standard of
review that applies. Rather than catalog the ways in which the majority
goes astray in reaching this conclusion, it suffices to observe the majority
errs in so holding.




                                 BAKER, J.




3      There is also evidence in the record of the mother’s admissions, in
connection with earlier referrals made to the Department, that she
experienced mental health issues (including an anxiety attack in 2015 that
resulted in her hospitalization because she wanted to kill herself by cutting)
and attended a drug addiction program in 2016.


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