Filed 11/19/14 In re E.R. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 E.R., et al.,                                                             B253814
                                                                                (Los Angeles County
Persons Coming Under the Juvenile Court Law.                                     Super. Ct. No. DK01990)


LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

JOSE R.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court for Los Angeles County, Julie
Fox Blackshaw, Judge. Reversed.
         Kate M. Chandler, under appointment by the Court of Appeal, for Defendant
and Appellant.
         John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Stephen D. Watson, Deputy County Counsel, for Plaintiff and
Respondent.
      Appellant Jose R. (father) appeals from the jurisdiction and disposition
orders of the juvenile court with respect to his six children. He contends there is
insufficient evidence to support the juvenile court’s assumption of jurisdiction over
the children under Welfare and Institutions Code1 section 300, subdivision (b), or
the court’s removal of the children from his custody and care. We agree, and
reverse the order.


                                  BACKGROUND
      In October 2013,2 Father and Veronica M. (mother), who had been married
for 16 years, were living together with their six children, ranging in age from 14 to
almost three years old. On or before October 10, father was interviewed as part of
an investigation by the Department of Children and Family Services (the
Department) regarding his child with another woman, Rita S. The interviewer
noticed that father had bloodshot eyes and was very thin, and believed that father
might be under the influence of drugs. Father agreed to submit to an on-demand
drug test. The results showed that father was positive for amphetamines and
methamphetamine. Based on the positive test results, a referral was made on
October 16, alleging general neglect by father and mother toward their six
children.
      On October 16, a social worker from the Department made a home visit to
father’s and mother’s home. Although the social worker observed that the home
was dingy, she noted that all utilities were in working order, no visible safety
hazard was present, and there was no indication of drug or alcohol abuse in the


1
      Further undesignated statutory references are to the Welfare and Institutions Code.
2
      All references to dates are to the year 2013 unless otherwise indicated.


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home. The social worker privately interviewed and/or assessed each member of
the family.
      The social worker observed father interacting with his son, and the son
appeared comfortable and attached to father. During her interview with father, she
noted that father “appeared jittery and spoke at a rapid speed” at the beginning, but
eventually calmed down and was articulate and coherent. She also noted that the
whites of his eyes were dark red. When asked about the referral allegations, he
said that he had not caused harm to anyone. He admitted using drugs two days
before he was tested. He told the social worker that he only uses
methamphetamine. He said he started using it about two years before, and uses it
sporadically. He uses it in private, in the garage, and the children are never
present. When asked whether he considers his methamphetamine use a problem,
father said he did not because he is able to work and provide for his family. He
told the social worker that he had never considered enrolling in a drug treatment
program, and did not want to because his family depends on him financially, but he
said he was willing to do anything.
      During the interview with mother, mother told the social worker that she was
not aware that father used drugs, and had never witnessed father using drugs or
alcohol. She said that father’s rapid speech was common, and that their eldest
daughter also has rapid speech. She also told the social worker that father’s
bloodshot eyes were due to his construction job, because he often gets dust and
insulation flakes in his eyes. Mother agreed to submit to an on-demand drug test;
the results were negative for all substances, including alcohol.
      The social worker interviewed the five oldest children individually, and
assessed the youngest, who was too young to be interviewed. The social worker
observed that all of the children were clean, neatly groomed, and appropriately
dressed. All were easy to engage, and the four oldest were verbally articulate.

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None showed any signs of abuse or neglect. The three oldest denied knowing of
any drug or alcohol use in the home; the fourth oldest denied seeing anyone
smoking anything or excessively drinking beer or alcohol.
      Father and mother attended a Team Decision Meeting (TDM) the following
day. The social worker told the parents about the dangers of methamphetamine
use, and the risks it poses to children in the user’s care. Father admitted that he last
used methamphetamine on October 8, and that he occasionally smokes marijuana.
He agreed to be tested the next day. He also said that he did not believe his drug
use was a problem, and rejected the possibility of participating in an inpatient drug
treatment program. He emphasized how much he cares for his children, and said
that he was willing to do anything for them so long as he could remain in the
home. Mother told the social worker that she was willing to kick father out of the
house if he continued to use drugs, in order to protect the children. Father and
mother said they both were willing to cooperate with the Department and
participate in services. As part of a TDM Safety Action Plan that was formulated
at the meeting, father agreed to enroll in a drug treatment program and to be
enrolled in random drug testing; mother agreed to ask father to leave the home if
he tested positive, and father agreed to comply with that request.
      The next day, father tested positive for amphetamines and
methamphetamine. When the social worker called father to tell him the results of
the test a few days later, father denied using drugs since October 8. He said he
would not move out of the house because he had nowhere to go. Father and
mother met with the social worker at the Department’s office the following day.
The social worker told father that if he did not voluntarily move out of the house
and relinquish custody of the children, the Department would seek a removal order
and detain all of the children from their parents’ care. After mother started to cry
and told father he had to leave, father agreed to leave his home and gave verbal

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consent for the Department to remove the children from his care and custody.
Father also submitted to a random drug test that day, October 23, and tested
negative for all substances.
      The Department filed a petition a few days later, alleging a single count
under section 300, subdivision (b). The petition alleged that father has a history of
substance abuse and is a current user of methamphetamine and amphetamines,
which renders him unable to provide regular care and supervision to his six
children.3 In the detention report filed for the October 28 detention hearing, the
Department reported on the social worker’s interviews of and meetings with the
family, and noted that father was employed and was a willing financial provider
for his family. The Department also reported that the social worker determined
that “[b]ased on [father’s] continued use of amphetamine and methamphetamine
and his failure to acknowledge responsibility for his actions and possible drug
problem, the family can be categorized as having a ‘moderate’ risk for further
abuse.” The Department stated that continued detention from father is necessary to
protect the children because father “admitted to using meth on a regular basis but
does not recognize the risk this presents to his children.” The Department
recommended that the children be left in mother’s care.
      At the October 28 detention hearing, the juvenile court asked counsel for the
Department to articulate what is the risk to the children caused by father’s presence
in the home. Counsel stated, “The risk is that methamphetamine is a dangerous
drug. It does have an effect on users. And that the fact that the worker observed
him appearing jittery and speaking at a rapid speed.” The court asked, “But the
risk to the children?” Counsel responded, “He was under the influence. He’s been
3
     The petition also alleged in that count that mother knew or reasonably should have
known of father’s drug use, and failed to protect the children. The petition later was
amended to strike that allegation.


                                           5
in the home. He’s a caretaker with the mother. And we believe that that creates
risk.” Counsel for the children interjected, “Your Honor, I believe the risk would
be how can he properly care for the children while he’s under the influence of such
a dangerous substance?” Father’s counsel argued that the Department’s showing
of risk was inadequate.
      The court found a prima facie case that the children were persons described
by section 300, subdivision (b). But the court also found that the Department did
not make reasonable efforts to prevent removal, and that there are services
available to prevent detention. The court ordered the children released to both
parents, and ordered the Department to provide family maintenance services, to
include continued drug testing by father, unannounced home visits, and a drug and
alcohol program for father.4 The court explained that although father admitted
using methamphetamine and had positive tests, there was no evidence that his
methamphetamine use “has in any way affected the children. And although
methamphetamine is a very serious drug and can lead to very serious addiction and
substance abuse, that evidence is not before the court today.” The court noted that
it “has decided that there is not a substance abuse problem yet.”
      Five weeks later, the Department filed an ex parte application and again
sought to detain the children from father’s custody. In a report submitted in
advance of the second detention hearing on December 5, the Department reported
that father had enrolled in a drug and alcohol program, was attending NA
meetings, and was drug testing. He had negative tests on November 13 and
November 19. Although the results showed that the sample was diluted, the testing
collection site confirmed that the results were valid. The social worker spoke to
4
        We note that the minute order for the October 28 detention hearing incorrectly
states that the court found that reasonable efforts were made to prevent the need for
removal, and that temporary placement and custody of the children rested with the
Department.

                                            6
father on November 25, and told him that the samples were diluted; the social
worker suggested that father limit his liquid intake before the random testing. On
November 26, father tested positive for amphetamines and methamphetamine.
      The Department reported that at a TDM held on December 2, father
admitted that he used methamphetamine on November 24. He said that he had
gone out and used methamphetamine that day because of stress at home. He
stayed out all day, and went straight to bed when he got home that evening; he
went to work the next day. He denied using the drug at home or around the
children, and said he made a mistake and wanted to continue to move forward with
his treatment. He consented to have his children temporarily removed from his
care and custody. Later that day, the social worker conducted a home visit, and
confirmed that father had moved out of the house.
      The detention report noted that the children and mother stated they were
unaware of father’s drug usage, and mother reported that she had not observed
anything in father’s behavior to indicate he had used methamphetamine. The
report also stated that the Department “has conducted an assessment and the risk at
this time was found to be moderate as to the children. It is the department’s
assessment that the children . . . are currently not safe in the custody of father . . .
and continued detention is necessary. There is a substantial danger to the physical
health of the children.”
      At the detention hearing held on December 5, the juvenile court found a
prima facie case for detaining the children, and found that the Department made
reasonable efforts to prevent removal of the children from father’s custody. The
court ordered temporary placement and care of the children to be vested with the
Department, and ordered the children to be released to mother pending a further
court order.



                                            7
      The Department filed a jurisdiction/disposition report on the same day as the
December 5 detention hearing. The Department reported that the children were
interviewed on November 25. Each of the four oldest children said that she or he
had never seen father use drugs, and had never seen him act in any manner to
suggest that he was using drugs. The Department also reported that father said in
an interview on November 25 that he did not use methamphetamine on a regular
basis, but that he had used it on and off over the past two years.
      The jurisdiction/disposition hearing was held on January 6, 2014. The only
evidence presented was the October 28 detention report, the December 5 second
detention report, and the jurisdiction/disposition report. Counsel for the
Department asked the juvenile court to sustain the petition. Father’s counsel
argued that although the Department showed some drug use by father, it did not
show “substance abuse,” and it failed to present any evidence connecting father’s
drug use to harm to the children. Therefore, counsel argued, the Department failed
to meet its burden to establish dependency jurisdiction.
      When asked by the court to point to evidence of substance abuse and the
correlation between father’s drug use and risk of harm to the children, counsel for
the Department pointed to father’s admission that he used methamphetamine on
November 24 because of stress at home, which counsel argued connects his drug
use to the risk to the children. Counsel also stated that “the Department believes
that methamphetamine use, per se, is dangerous and creates a risk to anyone who’s
around, including the children.” Finally, counsel argued that the fact that father
used methamphetamine after the court cautioned him not to demonstrates that he
has an addiction, which creates risk to the children.
      The court noted that when the case was first before it (at the initial detention
hearing), “the court did not believe there was a sustainable count.” But the court
pointed out that father had promised that he would stop his drug use, because he

                                          8
wanted to be with his family and his family needed him, but he did not stop and
tested positive for methamphetamine on November 26. The court found that the
fact that father made promises he could not keep meant that his drug addiction was
such that he could not live up to his own intentions, which the court found
qualified as abuse or addition. The court also noted that the fact that he used
methamphetamine to get away from stress at home has an impact on the children
because, if he is leaving home to take drugs, he is not at home to help the children.
For that reason, the court found there was a risk to the children, and found by a
preponderance of evidence that the amended count alleged in the petition was true.
      Moving on to disposition, the juvenile court found by clear and convincing
evidence that there was a substantial danger to the physical health, safety, or
physical or emotional health of the children if they were returned to father’s
custody, and there are no reasonable means to protect them without removing them
from father’s custody. The court ordered the children to be placed in home of
parent-mother, with family maintenance services. Father was ordered to
participate in a drug and alcohol program with aftercare, random and on-demand
testing, and parenting classes. The court ordered monitored visitation for father,
outside the home, although the visits would be unmonitored after six consecutive
clean drug tests.
      Father timely filed a notice of appeal from the jurisdiction and disposition
orders.


                                   DISCUSSION
      On appeal, father contends the juvenile court erred in finding jurisdiction
over the children because the Department failed to present evidence sufficient to
show that father’s drug use caused physical harm, or presented a substantial risk of
physical harm, to the children. We agree.

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      Section 300 provides, in relevant part, that a child is within the jurisdiction
of the juvenile court 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 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 . . . substance abuse.” (§ 300, subd. (b).)
The purpose of section 300 is “to limit court intervention to situations in which
children are threatened with serious physical or emotional harm” as a result of their
parents’ conduct. (In re Marilyn H. (1993) 5 Cal.4th 295, 303.) To establish
jurisdiction under section 300, subdivision (b), the Department must show
specifically how the child has been or will be harmed by a parent’s conduct. (In re
Matthew S. (1996) 41 Cal.App.4th 1311, 1318.)
      Jurisdictional findings of the juvenile court are reviewed on appeal under the
substantial evidence standard of review. We “review 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. [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 David M. (2005) 134
Cal.App.4th 822, 828.)



                                            10
      In this case, as noted, the juvenile court concluded the children were within
the jurisdiction of the dependency court because father’s inability to keep his
promise to stop his drug use qualified as substance abuse or addiction, and his use
of methamphetamine to get away from stress at home made him unavailable to
help care for the children, which presented a risk to the children. Father does not
dispute that he used methamphetamine on November 24, and that he stayed away
from home on that day, but he argues there is nothing in the record showing that
this conduct caused serious physical harm to the children or posed a risk of
physical harm. Instead, he points out that the evidence in the record shows that the
children were in good health and showed no signs of trauma or physical abuse.
      The Department contends “there was no need to identify any ‘specific,
defined harm or risk of harm’ to the children in order to support jurisdiction,”
because it presented evidence that father was a longtime drug abuser with drug
related convictions dating back to 1992, and because methamphetamine “is an
illegal, dangerous drug, the effects of which are inconsistent with adequate
parenting.” There are two problems with the Department’s contention.
      First, in asserting that father was a longtime drug abuser, the Department
relies upon what is purported to be CLETS results for father, which the
Department attached to the December 5 detention report. In fact, those CLETS
results (which were not based upon fingerprints) actually were two sets of results
for two different people. The first set is for a man who is five feet, nine inches tall,
weighing 160 pounds, with hazel eyes and black hair. That man has the same date
of birth as father, and the names listed are all variations of father’s name. It lists an
arrest in 2003 for a hit and run with property damage, deportation proceedings in
2003, and a 2012 conviction for possession of a controlled substance. The second
set of results is for a man who is six feet, two inches tall, weighing 225 pounds,
with brown eyes and black hair. The man has a different date of birth, and

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numerous aliases, only one of which is similar to father’s name. It lists numerous
arrests and/or convictions for transporting and/or selling narcotics/controlled
substances from 1992 to 1996. Clearly, the second set of results is for someone
other than father.
      Second, section 300, subdivision (b) requires some showing of risk of
physical harm. (In re Rebecca C. (2014) 228 Cal.App.4th 720, 727.) The fact that
father’s sporadic drug use may not make him an ideal parent does not mean his
children are at risk of physical harm. As our colleagues in Division 8 of this
District recently observed in response to a similar argument made by the
Department, the argument “excises out of the dependency statutes the elements of
causation and harm. In other words, [the Department] essentially argues that,
when a parent engages in substance abuse, dependency court jurisdiction is proper.
This is not what the dependency law provides. Further, if [the Department’s]
position were accepted, it would essentially mean that physical harm to a child is
presumed from a parent’s substance abuse under the dependency statutes, and that
it is a parent’s burden to prove a negative, i.e., the absence of harm. Again, this is
not what the dependency law provides.” (Id. at p. 728; see also In re Destiny S.
(2012) 210 Cal.App.4th 999 [mother’s use of drugs, including methamphetamine is
insufficient to uphold jurisdiction finding without evidence that child was at risk of
suffering physical harm as the result of mother’s drug use].)
      Because there is insufficient evidence to show that father’s drug use caused,
or presents a substantial risk that it will cause, physical harm to his children, there
is no basis for dependency jurisdiction.




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                                 DISPOSITION
            The jurisdictional order is reversed and all subsequent orders are
vacated as moot.
            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                             WILLHITE, J.




            We concur:




            EPSTEIN, P. J.




            COLLINS, J.




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