Filed 4/27/16 In re Anthony V. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR




In re Anthony V. et al., Persons Coming                                 B264036
Under the Juvenile Court Law.
_____________________________________                                   (Los Angeles County
                                                                        Super. Ct. No. DK08787)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

ROGER V.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Timothy R.
Saito, Judge. Affirmed.
         Nancy E. B. Nager, under appointment by the Court of Appeal, for Defendant and
Appellant Roger V.
         Mary C. Wickham, County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
       In this dependency action, Roger V. (father) appeals from an order finding his
sons, Anthony V. and Andre V., to be persons described by section 300 of the Welfare
and Institutions Code,1 dismissing the case, and releasing them to the custody of both
parents under the informal supervision of the Los Angeles County Department of
Children and Family Services (Department). (§ 360, subd. (b).) The order is affirmed.


                    FACTUAL AND PROCEDURAL BACKGROUND
       In December 2014, Roger V. and Y.M. (mother) were living with their sons,
Anthony (born in 2001) and Andre (born in 2007), at the home of the children’s maternal
grandmother (Myra) and maternal great aunt (Rosa). Police were called when Myra and
Rosa had a loud and violent argument in which the parents intervened. Later that day, the
Department received an anonymous report that Anthony and Andre were suffering from
“emotional abuse and general neglect” (this allegation was not substantiated and is not at
issue on appeal), that mother and father smoked methamphetamine in a car outside their
house, and that the boys had access to methamphetamine.
       Department social worker Simone Williams interviewed the parents about the drug
allegations. Although father admitted prior use of methamphetamine, he denied current
use. After being asked to take a drug test, he admitted using methamphetamine the day
before at his “dealer’s home.” The revelation was a surprise to mother, who said she felt
“betrayed” because father had promised “he would not use anymore.” Both parents
agreed not to leave the children alone with father.
       Williams interviewed the children individually. Anthony denied witnessing any
substance abuse in the home or by any family members. Andre also denied witnessing
any substance abuse.
       The next day, father tested positive for methamphetamine and amphetamine.
Mother tested negative.




       1   All further statutory references are to the Welfare and Institutions Code.
                                               2
       At a team decision making meeting, mother said she was “shocked” about father’s
relapse. Mother admitted she is unable to discern when father is “under the influence.”
Father stated that not even “law enforcement” would be “able to tell that he was under the
influence,” because methamphetamine does not affect his appearance or cognitive
abilities. He agreed to temporarily leave home and enroll in a substance abuse program.
       The Department filed a dependency petition on behalf of Anthony and Andre.
(Welf. & Inst. Code, § 300.) Three counts focused on the domestic violence incident
between Myra and Rosa (counts a-1, b-3, and b-4); these were dismissed after mother
moved elsewhere with the children. Count b-1, which pertained to mother’s drug use,
also was dismissed after she consistently tested negative.
       Count b-2, the remaining count, pertained to father’s drug use. It alleged that he
had a history of substance abuse including marijuana and was a current abuser of
methamphetamine, which rendered him incapable of providing the children with regular
care and supervision. It stated that on unspecified prior occasions, father was caring for
the children while under the influence of illicit drugs, and that he tested positive for
amphetamine and methamphetamine on December 9, 2014. It alleged that his illicit drug
abuse endangered the children’s physical health and safety and placed them at risk of
physical harm and damage. (§ 300, subd. (b).)
       Finding there was a prima facie case for detaining the children under count b-2,
the juvenile court released them to the home of mother. The Department was ordered to
provide appropriate services, with father to have monitored visits.
       The parents enrolled in a random drug testing program, and father tested negative
on December 30, 2014. Williams received information from Anthony’s school that he
had “good” grades, dressed appropriately, had no apparent injuries, worked well in class,
and appeared “to have confidence & support.” Andre was described by his teacher as
“one of my best students academically” and “a role model in citizenship.”
       At a January 2015 hearing, father was granted unmonitored visits subject to
continued negative drug tests. The Department was granted discretion to allow him to
move back home. The juvenile court suggested that the Department consider a voluntary

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services contract under section 301,2 and continued the jurisdictional hearing for two
months.
       Father tested negative for drugs on January 16 and 27, but did not appear for a test
on February 5, 2015. He had a negative test on February 20, 2015.
       At the March 4, 2015 jurisdictional hearing, the Department opposed a voluntary
services contract (§ 301) on the grounds that neither parent had enrolled in any of the
suggested counseling programs, and that father recently had missed a drug test, which
counted as a positive test. The Department expressed concern that father had admitted to
“almost daily” use of methamphetamine in 2006, which constituted “heavy” use, and had
admitted to a “relapse.”
       Father’s counsel sought dismissal of count b-2, arguing that father had tried to
contact the Department the night before the missed test, but the system was “down.”
Counsel denied the children were at risk of harm. He argued there was no evidence that
father had used drugs in the presence of the children, that all of father’s prior drug use
had occurred at work, and that by the time he came home from work the children were
asleep. Counsel for the children and counsel for mother also requested dismissal of count
b-2.



       2  Section 301, subdivision (a) provides: “In any case in which a social worker,
after investigation of an application for petition or other investigation he or she is
authorized to make, determines that a child is within the jurisdiction of the juvenile court
or will probably soon be within that jurisdiction, the social worker may, in lieu of filing a
petition or subsequent to dismissal of a petition already filed, and with consent of the
child’s parent or guardian, undertake a program of supervision of the child. If a program
of supervision is undertaken, the social worker shall attempt to ameliorate the situation
which brings the child within, or creates the probability that the child will be within, the
jurisdiction of Section 300 by providing or arranging to contract for all appropriate child
welfare services pursuant to Sections 16506 and 16507.3, within the time periods
specified in those sections. No further child welfare services shall be provided
subsequent to these time limits. If the family has refused to cooperate with the services
being provided, the social worker may file a petition with the juvenile court pursuant to
Section 332. Nothing in this section shall be construed to prevent the social worker from
filing a petition pursuant to Section 332 when otherwise authorized by law.”
                                              4
       In summarizing the evidence, the court noted that father admitted “using meth to
treat his stress”; there was no evidence that his stress has been adequately addressed;
although father had several clean tests, there were stressors in this case that may
necessitate or may prompt usage; father admitted keeping methamphetamine in his truck
and there was no evidence he had stopped doing so; and father sometimes got off at
3:00 p.m. when the children were home. Finding there was evidence that father had an
unresolved drug problem, the court sustained count b-2.
       In view of the family’s ineligibility for voluntary services under section 361.5
based on father’s resistance to drug treatment, the court proposed a disposition under
section 360, subdivision (b). That statute provides: “If the court finds that the child is a
person described by Section 300, it may, without adjudicating the child a dependent child
of the court, order that services be provided to keep the family together and place the
child and the child’s parent or guardian under the supervision of the social worker for a
time period consistent with Section 301.”3
       Counsel for the children voiced no objection to dismissal of the case under section
360, subdivision (b). Father’s counsel argued that count (b)(2) should be dismissed, but
agreed to a dismissal with informal supervision under section 360, subdivision (b).
Mother’s counsel agreed to the dismissal with supervision, pointing out that mother was
receiving family preservation services and would benefit from additional services.
       Over the Department’s objection to returning the children to father’s custody, the
juvenile court released the children to both parents and dismissed the case under section
360, subdivision (b). Father timely appealed. (In re Adam D. (2010) 183 Cal.App.4th
1250, 1261 [disposition order for informal supervision under § 360, subd. (b) is
appealable].)




       3 According to subdivision (a) of section 301, services may be provided within the
time periods specified in sections 16506 (allowing family maintenance services for six-
month periods, which may be extended) and 16507.3 (maximum period of child welfare
services is 180 days).
                                              5
                                       DISCUSSION
       Father challenges the sufficiency of the evidence to support the juvenile court’s
jurisdictional finding under section 300, subdivision (b). He relies on cases in which an
appeal had been taken from an order sustaining dependency jurisdiction over the
children—such as In re Rebecca C. (2014) 228 Cal.App.4th 720, In re Drake M. (2012)
211 Cal.App.4th 754, and In re Destiny S. (2012) 210 Cal.App.4th 999. Those cases are
distinguishable. Unlike those decisions, in this case there was a dismissal—the case is
not one in which the juvenile court continued to assert jurisdiction where none existed.
       In reviewing the juvenile court’s findings, we examine “‘the record to 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.’ [Citations.]” (In re Kadence P. (2015) 241 Cal.App.4th
1376, 1384.)
       The findings of the juvenile court are supported by substantial evidence. The
record shows the Department was unwilling to provide services under section 361.5
based on father’s resistance to drug abuse treatment—he admitted to “almost daily” use
of methamphetamine in 2006, which the Department viewed as heavy use; he admitted to
a recent “relapse,” followed by a missed test that counted as a positive test; and he did not
attend recommended counseling programs that were available and accessible to him.
Based on the evidence of father’s resistance to treatment, we find substantial support in
the record for the trial court’s determination that dismissal of the case and a return to
parental custody would be most safely effected by providing informal services to the
family. (§ 360, subd. (b).)
       Underlying the trial court’s jurisdictional ruling is the reasonable presumption that
a parent’s longstanding drug use is detrimental to the child, because over time, drug use
can increase and become more dangerous. (See, e.g., § 361.5, subd. (b)(13) [court may
bypass reunification services based on finding, by clear and convincing evidence, that
parent has history of extensive, abusive, and chronic use of drugs or alcohol and has
resisted prior court-ordered treatment for this problem during a three-year period

                                              6
immediately prior to filing of petition that brought child to court’s attention].) For this
reason, being actively resistant to drug abuse treatment has serious implications in the
dependency context.
       By allowing father to return home, the court acknowledged there is hope his drug
problem will improve, and by requiring the Department to provide informal supervision,
which mother welcomed, the court improved the chances of a better outcome for the
family. The dismissal of the case under section 360, subdivision (b) was not an abuse of
discretion.


                                      DISPOSITION
       The jurisdictional findings and order dismissing the case under section 360,
subdivision (b) are affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  EPSTEIN, P. J.
We concur:



       WILLHITE, J.



       MANELLA, J.




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