Filed 4/24/15 In re Mariah T. CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


In re Mariah T. et al., Persons Coming                               B259252
Under the Juvenile Court Law.                                        (Los Angeles County
                                                                     Super. Ct. No. CK99102)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

V.T.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court of Los Angeles County, Steven Klaif,
Referee. Affirmed.
         Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel
and Tyson B. Nelson, Deputy County Counsel for Plaintiff and Respondent.
       Appellant V.T. (father), the father of the minor children Mariah T. and Julian T.,
challenges the juvenile court’s assumption of jurisdiction over his children, as well as its
decision to remove them from his custody, based on its finding that his substance abuse
placed the children at substantial risk of serious bodily harm or illness. Finding no error,
we affirm the judgment.


                     FACTUAL AND PROCEDURAL SUMMARY
       Mariah (born July 2011) and Julian (born August 2013) lived with father and
Mariana S. (mother).1 The children came to the attention of the Department of Children
and Family Services (DCFS) due to allegations of general neglect. Both parents denied
current drug use, but father admitted prior marijuana use. Both parents agreed to submit
to random drug testing. Drug tests for the parents were scheduled for April 10, 2014.
Mother tested negative for all substances; father did not test.
       During a follow-up interview by the social worker, father stated that he had been
using marijuana since 2011 to help him sleep and for back problems; he had a medical
marijuana license but did not know where it was; he used no drugs other than marijuana;
and he missed the drug test because he had to work. The social worker stated that father
did not appear to be under the influence. Mother denied that she had ever witnessed
father using drugs. The maternal grandmother stated that the parents resided with her and
her husband; she had never observed the parents use drugs, and had no concerns about
the care the parents provided the children.
       After missing a second scheduled drug test, father tested positive for
amphetamine, methamphetamine and cannabinoids on May 27, 2014. In a subsequent
meeting with the social worker, father explained that he knew the drug test would be
positive because he had used methamphetamine on May 22, 2014, and had used the drug
for the prior six months, but only twice a month on the weekends. Mother and maternal
grandmother denied any knowledge of father’s methamphetamine use.

1
       Mother, who is non-offending under the petition, did not appeal the juvenile
court’s orders and thus is not a party to these proceedings.

                                              2
       DCFS conducted a Team Decision Meeting on June 10, 2014, with the parents and
other family members. “During the meeting, [father] was evasive and defensive about
his drug use . . . and was in denial about his drug usage.” He stated that he had been
using methamphetamine and marijuana for the past six months, used methamphetamine
twice a week, but does not have a drug problem. The paternal grandmother stated that
“she was aware that [father] was using drugs,” which was why she would not permit him
in her home.
       On June 13, 2014, DCFS filed a Welfare and Institutions Code2 section 300
petition. The juvenile court released the children to mother and detained the children
from father. The court ordered monitored visitation for father.
       In a subsequent interview, father stated that he did not have a substance abuse
problem: “I understand what [an illegal] substance can do to people. But I can control
that.” He believed there was no “differentiation” between marijuana and
methamphetamine. “I get how some people are on drugs and they lose control. But I’m
totally different. It’s not the case with me and I know I’m an unusual case for you guys.
I’m not high all the time. I haven’t been using that long. I started using meth six months
before the ER worker talked to me.” Father stated that he started using
methamphetamine when he had to care for his diabetic brother by providing him with
insulin and all his basic needs; he did not have enough food to feed his brother or himself.
He explained, “I didn’t have money to feed myself. I don’t get hungry with the drug.
I’m not doing it to steal or get high. I’m trying to support my family. I’m trying to
provide for my family. I’m a unique case. I get it.” When asked about the expense of
purchasing the drug, father responded, “You’re not listening to me. It was practically
given to me. I know a lot of people that use drugs.” He stated that he never used drugs
in the home.
       Father enrolled in SOBER International Community Counseling Center on
June 12, 2014, and was participating in parenting classes, substance abuse counseling and


2
       Unless otherwise specified, further statutory references are to this code.

                                             3
random drug testing. In its Jurisdiction/Disposition Report dated July 27, 2014, DCFS
stated, “Despite father’s motivation to maintain his sobriety, the Department is concerned
that father is still at a vulnerable stage of his sobriety given [his] lack of insight as he is
adamant he could control his substance use.” DCFS recommended the children remain in
the custody of mother and detained from father while father completed his substance
abuse treatment.
       At the disposition hearing on July 27, 2014, the juvenile court sustained the
petition as filed, which read as follows: “b-1 The Children, Mariah T[.] and Julian T[.’s]
father, V[.] T[.], has a 3 year history of illicit drug use and is a current user of
methamphetamine, amphetamine and marijuana, which renders the father incapable of
providing regular care for the children. On 05/27/14, and on prior occasions, the father
was under the influence of illicit drugs while the children were in father’s care and
supervision. The father had a positive toxicology screen for methamphetamine,
amphetamine and marijuana on 05/27/2014. Such illicit drug use by the father endangers
the children’s physical health and safety and places the children at risk of physical harm,
damage and danger.”
       Father was ordered to participate in a substance abuse program to include bi-
monthly testing, a 12-step program, and individual counseling to address drug awareness
and drug exposure to children. The court ordered monitored visits for father.
       Father timely filed a notice of appeal challenging the jurisdictional findings and
dispositional orders of the juvenile court.


                                         DISCUSSION
       1. The jurisdictional findings
       Father argues that there was no substantial evidence presented to the juvenile court
to support a finding of jurisdiction over the children under count b-1 of the petition based
on his alleged substance abuse. Specifically, he maintains that DCFS failed to establish
that he was a substance abuser because “the Department also did not present evidence
that Father had been diagnosed as having a current substance abuse problem by a medical

                                                4
professional or that he had a current substance abuse problem as demonstrated by various
behaviors within the past 12 months as defined in the DSM-IV-TR.”
       The underlying purpose of section 300 “is to provide maximum safety and
protection for children who are currently being physically, sexually, or emotionally
abused, being neglected, or being exploited, and to ensure the safety, protection, and
physical and emotional well-being of children who are at risk of that harm.” (§ 300.2;
see In re Giovanni F. (2010) 184 Cal.App.4th 594, 599.) Section 300, subdivision (b),
permits a minor child to be adjudged a dependent of the juvenile court when “[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 or guardian's mental illness,
developmental disability, or substance abuse.” “Although section 300 generally requires
proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing
(In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396, 32 Cal.Rptr.3d 526; In re Rocco
M. (1991) 1 Cal.App.4th 814, 824 (Rocco M.)), the court need not wait until a child is
seriously abused or injured to assume jurisdiction and take steps necessary to protect the
child. (In re N.M. (2011) 197 Cal.App.4th 159, 165.) The court may consider past
events in deciding whether a child presently needs the court's protection. (Ibid.) A
parent's ‘“[p]ast conduct may be probative of current conditions' if there is reason to
believe that the conduct will continue.’ (In re S.O. (2002) 103 Cal.App.4th 453, 461.)”
(In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216 (Christopher R.).)
       Furthermore, the Legislature has declared that “[t]he provision of a home
environment free from the negative effects of substance abuse is a necessary condition
for the safety, protection and physical and emotional well-being of the child. Successful
participation in a treatment program for substance abuse may be considered in evaluating
the home environment.” (§ 300.2.) Moreover, “Exercise of dependency court
jurisdiction under section 300, subdivision (b), is proper when a child is ‘of such tender
years that the absence of adequate supervision and care poses an inherent risk to [his or

                                                5
her] health and safety.’ (Rocco M., supra, 1 Cal.App.4th at p. 824.)” (Christopher R.
(2014) 225 Cal.App.4th at p. 1216.)
       Juvenile court decisions regarding jurisdiction are reviewed under the “sufficiency
of the evidence” standard. (In re In re J. K. (2009) 174 Cal.App.4th 1426, 1433.) The
record is reviewed to determine if there was any substantial evidence presented, whether
or not contradicted, which supports the juvenile court’s decision. (In re Kristin H. (1996)
46 Cal.App.4th 1635, 1649.) All conflicts must be resolved in favor of the respondent
and all legitimate inferences indulged in to uphold the judgment, if possible. (In re
Katrina C. (1988) 201 Cal.App.3d 540, 547.) 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.
(Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652.) On appeal, the appellant
has the burden to establish the lack of sufficient evidence. (In re L.Y.L. (2002) 101
Cal.App.4th 942, 947.)
       Here, prior to his first drug test, father told DCFS that he never used any drug
other than marijuana, and that he began using marijuana in 2011 to help him sleep.
Although he stated that he had a medical marijuana card for back pain, he never produced
it; in fact, he had been arrested for marijuana possession, suggesting that he did not have
a valid marijuana card. After testing positive for marijuana, amphetamine and
methamphetamine, father admitted to using the latter substance on a regular basis for the
prior six months, stating that he was stressed about caring for his diabetic brother. Father
initially stated that he used methamphetamine twice a month, but later said he used it
twice a week. Given father’s initial false denial of drug use and inconsistent statements
about his drug habit, the juvenile court reasonably believe that father understated the
extent and duration of his drug use. In addition, following the Department’s intervention,
father missed two drug tests, which were properly considered the equivalent of a positive
test result. While father recognized that consumption of methamphetamine generally had
a deleterious effect on its users, he suggested that he was immune to any negative effects
of the drug. This evidence fully supports the juvenile court's finding that father’s
substance abuse endangered the health and safety of the children.

                                              6
       Father argues that the holding of In re Drake M., supra, 211 Cal.App.4th 754
compels a different conclusion. We disagree, as did our colleagues in Division Seven of
this Court in Christopher R., supra, 225 Cal.App.4th 1210. The Christopher R. court
explained in detail the issue addressed in Drake M., and its disagreement with that court’s
conclusion, as follows: “As the Drake M. court explained, when the Legislature rewrote
section 300, subdivision (b), in 1987 to include as a basis for dependency jurisdiction a
parent's inability to provide regular care for his or her child due to substance abuse, it
included no definition of the term ‘substance abuse’ in the statute. (Id. at p. 765.)
Similarly, the legislative history revealed no specific discussion of how the term should
be defined in practice. As a result, ‘[d]ependency cases have varied widely in the kinds
of parental actions labeled “substance abuse.”’ (Ibid.)
       “To avoid inconsistencies, the Drake M. court proposed a definition of substance
abuse based on the American Psychiatric Association's Diagnostic and Statistical Manual
of Mental Disorders (4th rev. ed. 2000) (DSM–IV–TR), a definition that had also been
used in an earlier dependency decision involving a somewhat different issue, Jennifer A.
v. Superior Court (2004) 117 Cal.App.4th 1322. (See Drake M., supra, 211 Cal.App.4th
at p. 765.) Following Jennifer A., the Drake M. court held “a finding of substance abuse
for purposes of section 300, subdivision (b), must be based on evidence sufficient to (1)
show that the parent or guardian at issue had been diagnosed as having a current
substance abuse problem by a medical professional or (2) establish that the parent or
guardian at issue has a current substance abuse problem as defined in the DSM–IV–TR.
The full definition of “substance abuse” found in the DSM–IV–TR describes the
condition as “[a] maladaptive pattern of substance use leading to clinically significant
impairment or distress, as manifested by one (or more) of the following, occurring within
a 12–month period: [¶] (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

                                              7
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.,
at p. 766.)
       “We recognize the Drake M. formulation as a generally useful and workable
definition of substance abuse for purposes of section 300, subdivision (b). But it is not a
comprehensive, exclusive definition mandated by either the Legislature or the Supreme
Court, and we are unwilling to accept [the appellant's] argument that only someone who
has been diagnosed by a medical professional or who falls within one of the specific
DSM–IV–TR categories can be found to be a current substance abuser. (See Jessen v.
Mentor Corp. (2008) 158 Cal.App.4th 1480, 1490, fn. 10 [there is no ‘horizontal stare
decisis’ in the Court of Appeal; ‘we are not bound by the contrary decision by Division
One of this court’]; In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 409, 105
Cal.Rptr.2d 863 [same].)” (Christopher R., supra, 225 Cal.App.4th at pp. 1217-1218.)
       As did the court in Christopher R., supra, 225 Cal.App.4th 1210, we conclude
that, whether father’s conduct fell within one of the DSM–IV–TR categories, the
evidence before the juvenile court fully supports an implied finding of drug abuse within
the meaning of section 300, subdivision (b). That evidence includes father’s current
regular use of methamphetamine and marijuana, his admitted use of the drugs in the past,
his failure to drug test, and his denial that he has a drug problem. Methamphetamine is a
highly addictive and destructive drug. Until father completes treatment and is substance
free, he poses a risk of harm to his children.
       In addition, because the children were eleven months old and three years old at the
time of the jurisdiction hearing—children of “tender years” in the language of Rocco
M.—“the finding of substance abuse is prima facie evidence of the inability of a parent or
guardian to provide regular care resulting in a substantial risk of harm.” (Drake M.,
supra, 211 Cal.App.4th at p. 767; accord, Rocco M., supra, 1 Cal.App.4th at p. 824.)

                                                 8
This fact distinguishes this case from In re Destiny (2012) 210 Cal.App.4th 999 [11-year-
old minor] and In re Rebecca C. (2014) 228 Cal.App.4th 720 [13-year-old minor].)
Father did not rebut this evidence. Thus, the jurisdictional findings were supported by
substantial evidence.


       2. The juvenile court’s dispositional orders
       Father also contends that the dispositional order must be reversed because the
juvenile court lacked sufficient evidence that there would be a substantial danger to the
children if they were returned to his care. He states: “There was no evidence Father ever
acted inappropriately or out of the ordinary around the children, in fact the opposite was
true. Furthermore, Mother was the primary caretaker of the children and was very
protective of them.”
       On appeal, a removal order will be upheld if it is supported by substantial
evidence. (In re Javier G. (2006) 137 Cal.App.4th 453, 463.) The juvenile court is
empowered to remove a dependent child from the physical custody of the parent with
whom the child resided when the section 300 petition was filed, if the court finds by clear
and convincing evidence that “There is or would be substantial danger to the physical
health, safety, protection, or physical and emotional well being of the minor if the minor
were returned home, and there are no reasonable means by which the minor’s physical
health can be protected without removing the minor from the minor’s parent’s or
guardian’s physical custody. . . .”
       In deciding whether to remove a child from parental custody, the juvenile court is
required to determine if reasonable efforts were made to prevent or eliminate the need for
removal. (§ 361, subd. (d); In re Basilio T. (1992) 4 Cal.App.4th 155, 171.) Once
jurisdiction is established, the juvenile court is not limited to the contents of the sustained
petition when making dispositional orders, and may consider evidence beyond the
sustained petition to fashion an order consistent with the best interests of the child. (In re
Rodger H. (1991) 228 Cal.App.3d 1174, 1183.)



                                               9
       Due to the age of the minor children, “the finding of substance abuse by father is
prima facie evidence of the inability of a parent or guardian to provide regular care
resulting a substantial risk of harm.” (Drake M., supra, 211 Cal.App.4th at p. 767;
accord, Rocco M., supra, 1 Cal.App.4th at p. 824.) Father has failed to establish that the
disposition order was an abuse of the juvenile court’s discretion.


                                      DISPOSITION
       The juvenile court’s jurisdictional findings and dispositional orders are affirmed.


                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                     GOODMAN, J.*


We concur:



       MOSK, Acting P.J.



       KRIEGLER, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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