Filed 4/12/16 In re Baby Boy T. CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE


In re BABY BOY T., a Person Coming                                   B261756
Under the Juvenile Court Law.
                                                                     (Los Angeles County
LOS ANGELES COUNTY                                                   Super. Ct. No. DK08361)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

JULIE T. et al.,

         Defendants and Appellants.



         APPEAL from orders of the Superior Court of Los Angeles County, Julie Fox
Blackshaw, Judge. Affirmed in part and reversed in part.
         Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant
and Appellant Julie T.
         Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and
Appellant Miguel D.
         Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant
County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff
and Respondent.
                                    INTRODUCTION
       Baby Boy T. was born with a positive toxicology screen for marijuana. The
juvenile court took jurisdiction over the infant and removed him from his parents’
custody. (Welf. & Inst. Code, §§ 300, subd. (b) & 361, subd. (c).)1 Mother Julie T. and
father Miguel D. appeal contending there is insufficient evidence to support the findings
underpinning the orders. We affirm the jurisdiction and disposition orders as to mother
but reverse the disposition order as to father.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Mother’s friend brought brownies laced with marijuana to mother’s baby shower
in November 2014. The baby was born the next day with marijuana in his system.
Mother claimed she did not know about the marijuana when she ate the brownies.
Mother also stated that she thought the friend brought the brownies for father because he
suffered from anxiety. Mother ate one brownie by accident. The parents both denied
abusing marijuana or any illegal substance and insisted that mother’s consumption of the
brownie was an isolated incident.
       Mother however acknowledged that she was on informal probation for selling
cocaine. Father denied any current or historical substance abuse. He acknowledged that
he had a criminal history that included possession of marijuana with intent to sell. Asked
to submit to a drug test, the parents slowly revealed that father had commenced daily
methadone treatment 50 days earlier at Matrix Clinic variously for chronic pain from
colon cancer and to resolve a two-year addiction to heroin. Mother apologized for not
being forthright about father’s addiction, but insisted that she did not have a history of
substance abuse. A letter from the Matrix Institute on Addiction, which treats opiate
addiction, confirmed father’s enrollment in its 180-day detoxification program. He was
progressing well, attending all counseling sessions, and drug testing.
       The clinical partner in the hospital’s pediatrics unit had no concerns about the
parents who took care of the infant and were affectionate with him. The parents lived in

1
       All statutory references are to the Welfare and Institutions Code.


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a motel, which they paid for with government assistance and by panhandling. They had
no family and had received donations of baby items from church. Mother showed the
dependency investigator pictures of the baby equipment they had collected and the
sleeping arrangements they had made for the infant.
       After an assessment, the Department of Children and Family Services
(the Department) categorized the infant as being at “ ‘very high’ ” risk for future abuse or
neglect. The juvenile court detained the infant. The parents visited him once a week.
       Mother had been convicted in March 2014 of transportation and sale of cocaine.
She received three years of formal probation and 180 days in jail. Father had been
convicted of the same crime in 2012, and between 2000 and 2007, of possession of
paraphernalia, being under the influence of controlled substance, and possession of
marijuana for sale. In an interview with the dependency investigator, father denied ever
using heroin, marijuana, or “ ‘hard core narcotics.’ ” He claimed the methadone
treatment was for withdrawal from the Percocet he had taken for a mass on his colon.
       Shortly after the birth, mother enrolled in a drug abuse program. Both parents
were testing clean.
       At the jurisdiction hearing, the juvenile court questioned the parents’ credibility.
It found “a drug history that both parents have really lied about and attempted to
downplay.” It found mother’s “story” that she did not knowingly eat a marijuana
brownie “preposterous” and “very hard to believe.” The court found father had a history
of heroin use and lied about it, although he was not currently using. Father volunteered
that he had a medical marijuana card. The only evidence the court had about mother’s
use was the one time just prior to giving birth. The court concluded that father either
knew about mother’s marijuana ingestion or was not concerned enough to check first and
prevent her from eating the brownie. The court stated, “there’s nothing more unfair to a
child than to have that child come into the world already under the influence of drugs. So
I find that there is definitely damage to the child, and there is a nexus here.” The court
sustained a count alleging the baby’s birth with a positive toxicology screen for
marijuana (§ 300, subd. (b)) and dismissed count B-2 alleging mother’s drug use. The


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court also dismissed count B-3, which alleged that father “has a history of substance
abuse and is a current abuser of heroin, marijuana and methadone,” and that “father’s
substance abuse renders the father unable to provide appropriate care and supervision of
the child.” The court explained it was unable to amend count B-3 to conform to proof.
Accordingly, as the court acknowledged, father was nonoffending.
       As for the disposition, the juvenile court found clear and convincing evidence that
there was a substantial danger to the child’s health, safety, protection, or well being and
no reasonable means by which he could be protected without his removal and removed
the infant from both parents’ custody. (§ 361, subd. (c).) However, the court allowed
unmonitored visits that could be gradually liberalized with a view toward returning the
baby to his parents on the condition the parents continued to test clean. The court
explained that it “want[ed] to see stability and sobriety in your household and that will
make me believe that your home is safe for the child.” Father was in the process of
weaning himself and becoming sober, but was not there yet. The court ordered
reunification services. Meanwhile, the court found, the baby was a “child of tender years
who has already been a victim of the drug use” by mother while father failed to protect
the baby. For those reasons, the court did not believe the home was safe for the infant.
Finally, at mother’s request, the court ordered the Department to look into whether the
baby needed to be placed in a medical foster home because he was prone to infection and
required antibiotics.
       Mother and father separately appealed.
                                     CONTENTIONS
       Mother contends there is no evidence to support the jurisdictional order. Both
parents contend the removal order was error because it was not supported by substantial
evidence.
                                      DISCUSSION
       1. The jurisdiction order is supported by substantial evidence.
       At the jurisdictional hearing, the juvenile court determines whether, based on a
preponderance of the evidence, the allegations in the petition that the child comes within


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section 300 are true. If so, the child falls within the court’s jurisdiction. (In re J.K.
(2009) 174 Cal.App.4th 1426, 1432, citing § 355.) We review the juvenile court’s
finding for substantial evidence. (In re J.K., at p. 1433.) “Substantial evidence” means
“such relevant evidence as a reasonable mind would accept as adequate to support a
conclusion; it is evidence which is reasonable in nature, credible, and of solid value.
[Citation.]” (Ibid.)
       Subdivision (b) of section 300 authorizes dependency jurisdiction 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 . . . to adequately
supervise or protect the child, or the willful or negligent failure of the child’s
parent . . . to adequately supervise or protect the child from the conduct of the custodian
with whom the child has been left . . . .” (§ 300, subd. (b)(1).)
       The juvenile court sustained one count under section 300, subdivision (b), namely
that Baby Boy T. had a positive toxicology screen for marijuana at birth, which would
not ordinarily occur except as the result of mother’s unreasonable act of placing the child
at risk of harm. Mother’s substance abuse endangered the child’s physical health and
safety and placed the child at risk of physical harm and damage. There is ample evidence
here to support the order sustaining this count. The infant was born with marijuana in his
system. Although the parents continue to insist that mother did not knowingly ingest the
drug the night before giving birth, the juvenile court found neither parent to be credible.
Specifically, the court found this particular “story” to be “preposterous.” We will not
reassess the juvenile court’s credibility finding or reweigh the evidence. (In re Casey D.
(1999) 70 Cal.App.4th 38, 52-53.)
       Mother argues even if there is evidence of past drug use, there was no evidence to
support the juvenile court’s assertion of jurisdiction at the time of the adjudication
hearing because there was no evidence that the abuse would recur. She relies on
statements made in In re Rocco M. (1991) 1 Cal.App.4th 814 and In re Alysha S. (1996)
51 Cal.App.4th 393, 399. The In re Rocco M. court stated: “While evidence of past
conduct may be probative of current conditions, the question under section 300 is


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whether circumstances at the time of the hearing subject the minor to the defined risk of
harm. [Citations.] Thus the past infliction of physical harm by a caretaker, standing
alone, does not establish a substantial risk of physical harm; ‘[t]here must be some reason
to believe the acts may continue in the future.’ ” (In re Rocco M., supra, at p. 824,
fn. omitted.)
       The contention is unavailing because proof of current risk of harm is not required
to support the initial exercise of dependency jurisdiction under section 300, subdivision
(b), which is satisfied by a showing the child has suffered or there is a substantial risk
that the child will suffer, serious physical harm or abuse. (§ 300, subd. (b); In re J.K.,
supra, 174 Cal.App.4th at p. 1436; In re Adam D. (2010) 183 Cal.App.4th 1250, 1261;
In re David H. (2008) 165 Cal.App.4th 1626, 1642.) Moreover, as explained below,
there is ample evidence that mother’s drug use would recur.
       2. The disposition order
       Before a juvenile court may order children removed from their parents’ custody it
must find clear and convincing evidence that “[t]here is or would be a substantial danger
to the physical health, safety, protection, or physical or 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 . . . physical custody.” (§ 361, subd. (c)(1); In re T.V. (2013) 217 Cal.App.4th
126, 135.) The declared purpose of the dependency laws 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.)
       “ ‘A removal order is proper if it is based on proof of parental inability to provide
proper care for the minor and proof of a potential detriment to the minor if he or she
remains with the parent. [Citation.] The parent need not be dangerous and the minor
need not have been actually harmed before removal is appropriate. The focus of the
statute is on averting harm to the child. [Citation.]’ [Citations.] The juvenile court’s
findings must be based on clear and convincing evidence. [Citations.] We review an


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order removing a child from parental custody for substantial evidence in a light most
favorable to the juvenile court findings. [Citations.]” (In re Miguel C. (2011)
198 Cal.App.4th 965, 969.)
       a. The order removing the baby from mother’s custody is supported by substantial
evidence.
       Mother has a drug history about which she continued to lie and downplay as late
as the disposition hearing. She was convicted of selling cocaine just months before the
baby’s birth. This baby was born with drugs in his system. The juvenile court could
reasonably infer from all of this evidence that mother’s drug use would recur.2 Mother
loves this baby and has begun a program to address her drug issues. Yet, the point of
section 361, subdivision (c) is to avoid harm to the baby. Without removal from mother,
this infant would be dependent on mother’s ability to remain sober. The evidence
supports the juvenile court’s removal order as to mother.
       b. The order removing the baby from father’s custody is not supported by
substantial evidence.
       The juvenile court dismissed counts B-2 and B-3 which named father. Those
counts alleged, respectively, that father “knew or reasonably should have known of the
mother’s substance abuse and failed to protect the child,” and he “has a history of
substance abuse and is a current abuser of heroin, marijuana and methadone, which
renders the father incapable of providing the child with appropriate care and supervision.
The child is of such young age that requires constant care and supervision and that the
father’s substance abuse renders the father unable to provide appropriate care and
supervision of the child.” (Italics added.) In dismissing counts B-2 and B-3, the court
stated that it could not amend count B-3 to conform to proof. The court had “a problem


2
       Cases cited by mother are distinguished. (See, e.g., In re A.E. (2014)
228 Cal.App.4th 820, 826 [isolated incident of spanking with a belt unlikely to recur];
In re Henry V. (2004) 119 Cal.App.4th 522, 529-530 [single occurrence of physical abuse
and no indication in the record that the court made removal order by clear and convincing
evidence].)


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with the way B-3 is written because I don’t believe there is evidence that he is currently
abusing heroin, currently abusing methadone. I think you are using methadone, but I
don’t believe that there is evidence that you’re abusing methadone.”
       If, as the juvenile court found, father is not currently abusing, then father’s past
history of substance abuse, absent some direct or circumstantial evidence of other risk of
harm, is insufficient to justify removal. (§ 361, subd. (c).) Yet, at the disposition
hearing, the court identified no other risk of harm.
       The reason is that the juvenile court based its order removing the baby from
father’s custody on the very same facts alleged in counts B-2 and B-3. (See § 361,
subd. (d) [“The court shall state the facts on which the decision to remove the minor is
based”].) The evidence the court cited for removal was father’s drug history; father was
not yet completely sober. The child is of tender years who was already a victim of drug
use by mother. The brownies were intended for father who failed to protect the child by
preventing mother from ingesting them. But, where the court found insufficient evidence
under the lower preponderance standard to sustain these allegations against father, these
identical facts necessarily cannot amount to the required clear and convincing evidence to
support removal. (In re A.E., supra, 228 Cal.App.4th at p. 825 [clear and convincing
standard under § 361, subd. (c) “is a heightened standard of proof from the required
preponderance of evidence standard for taking jurisdiction over a child”].) Therefore, the
order removing Baby Boy T. from father’s custody is not supported by substantial
evidence.
       Furthermore, notwithstanding the parties’ suggestions of methods for protecting
the baby that were less drastic than removing him from father, the court failed to
determine whether those methods constituted reasonable means to protect the child, in
violation of section 361. (Id., subd. (d) [“The court shall make a determination as to
whether reasonable efforts were made to prevent or to eliminate the need for removal of
the minor from his or her home” and “shall state the facts on which the decision to
remove the minor is based”].) The court simply declined to consider releasing the baby
to father, while simultaneously and contradictorily allowing father unmonitored visits


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conditioned on his ongoing sobriety. Under these circumstances, the disposition order as
to father must be reversed, and the matter remanded for a new disposition hearing. On
remand, the juvenile court shall make its decision based on the facts existing at the time
of the further proceedings.
                                     DISPOSITION
       The jurisdiction and disposition orders as to Julie T. are affirmed. The disposition
order as to Miguel D. is reversed, and the matter remanded for further proceedings
consistent with this opinion.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 ALDRICH, J.




We concur:




              EDMON, P. J.




              LAVIN, J.




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