Filed 7/9/14 Certified for Publication 8/1/14 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                              DIVISION EIGHT


In re REBECCA C., a Person Coming
Under the Juvenile Court Law.                                    B253065

LOS ANGELES COUNTY                                               (Los Angeles County
DEPARTMENT OF CHILDREN AND                                       Super. Ct. No. CK60360)
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

R. C.,

         Defendant and Appellant.



         APPEAL from orders of the Los Angeles County Superior Court.
Annabelle G. Cortez, Judge. Reversed.

         Daniel G. Rooney, under appointment by the Court of Appeal, for Appellant.

         Office of the County Counsel, John F. Krattli, County Counsel, James M. Owens,
Assistant County Counsel, and Denise M. Hippach, Deputy County Counsel, for
Respondent.
                           ______________________________________
      The juvenile dependency court issued jurisdictional orders based on its findings
that R. C. (Mother) has a history of substance abuse which renders her incapable of
providing her teenage daughter with regular care and supervision. Further, that Mother’s
drug abuse endangers her daughter’s health and safety, and places her daughter at risk of
physical harm. On appeal, Mother argues that substantial evidence does not support the
dependency court’s findings. We agree and reverse.
                                         FACTS
      Mother and Raymond C. (Father)1 are the parents of Rebecca C. who was born in
December 1999. In August 2013, the Los Angeles County Department of Children and
Family Services (DCFS) received a referral that Mother and Father used marijuana and
methamphetamine in Rebecca’s presence, and that there were guns and drug sales in the
family home, and that “everyone” who lived in the home was using drugs.
      DCFS sent two case social workers to the family home in response to the referral.
Mother denied all of the allegations. She stated that she and Father were separated, and
that he did not live in the family home. She denied any current use of drugs, and stated
that she had completed a drug program in 2006. Mother allowed the case social workers
to walk through the family home, and no drugs or guns were noted. Mother and her two
adult daughters who resided in the family home agreed to take drug tests. A few days
later, Mother’s drug test came back positive for methamphetamine, amphetamine, and
marijuana.
      When the case social workers returned to the family home and told Mother about
the drug test, she admitted that she used methamphetamine days earlier, and stated that
she “relapsed” due to “being under a lot of stress.” Her adult son was “maybe facing the
death penalty;” Father had cheated on her and they had separated, and she was having
financial problems. Mother “admitted to having a substance abuse problem,” and
“consented” to Rebecca’s removal from Mother’s care. Rebecca was taken into
protective custody, and placed with an adult sibling. On August 20, 2013, Mother

1
      Father is not involved in the current appeal.

                                            2
completed her intake at a substance abuse program. Meanwhile, when DCFS checked its
records, it found the family had a prior child welfare history with the agency. It included
a dependency court case, from September 2005 to March 2007, and involved two of
Rebecca’s older siblings, due to drug use by Mother and Father. Mother also had
criminal convictions for theft and drug-related offenses, including being under the
influence of a controlled substance and possession of marijuana for sale.
       DCFS filed a petition on Rebecca’s behalf pursue to Welfare and Institutions Code
section 300, subdivision (b).2 The dependency court found a prima facie case that
Rebecca was a person described by section 300, and ordered her detained from Mother’s
custody.
       DCFS filed a jurisdiction and disposition report showing the facts summarized
above. Further, Rebecca denied any knowledge of Mother’s drug use. Rebecca’s adult
sibling Renee, knew that Mother used marijuana, but was not aware of her
methamphetamine use. Mother reported that she was enrolled in a drug rehabilitation
program. Mother said she started using drugs again after she and Father separated at the
end of 2012, and their son was charged with murder. Mother indicated she had used
drugs since she was a teenager and that her drug of choice was marijuana. Mother said
she obtained a medical marijuana recommendation a few years ago for a pinched nerve in
her back. Mother claimed she stopped using methamphetamine “years” earlier, and only
resumed use recently. Mother claimed she had not used any substance since Rebecca
was detained in August 2013. Mother said she was “through getting high,” that she felt
she was going to “do better,” and that she had “new coping skills.” DCFS reported that
Mother’s drug rehabilitation counselor had indicated that although Mother participated in
group counseling sessions, the program was concerned because Mother kept testing
positive for marijuana and her levels were “up and down.” Since 2007, Rebecca had
participated in Individualized Education Plan (“IEP”) meetings at school and was eligible
for special education classes due to a learning disability with deficits in auditory

2
       All further section references are to the Welfare and Institutions Code.

                                              3
processing and attention. Her last IEP evaluation was in February 2013 and it indicated
Rebecca was performing below grade level in reading, written language, and math.
Further, the notes from the February 2013 meeting indicated that Rebecca’s homework
was inconsistent in Language Arts and Math, and completely non-existent in her Science
and History classes. Mother had been counseled on the homework policies and had said
she would monitor Rebecca’s homework.
       DCFS’s jurisdictional and disposition report included a November 2013 letter
from Mother’s drug counselor who wrote that since Mother enrolled in the program in
late August 2013, Mother had taken nine drug tests, and had tested positive for marijuana
eight times. Although Mother was required to attend at least three meetings a week, she
had only shown proof of attending about one-half the required meetings. Mother’s
counselor concluded that Mother was “not in compliance with her treatment plan goals
and program requirements” at that time.
       Mother was present at the November 12, 2013, adjudication and disposition
hearing. After hearing argument from counsel, including Rebecca’s counsel who asked
that the petition be dismissed, the juvenile court sustained allegations as to Mother under
section 300, subdivision (b), as follows:
              “ . . . [Mother] has a history of substance abuse and is a recent user
       of amphetamine, methamphetamine, and marijuana, which renders [her]
       incapable of providing the child with regular care and supervision. On
       8/15/13 and on prior occasions, . . . Mother was under the influence of
       illicit drugs while the child was in . . . Mother’s care and supervision.
       On 8/15/13, . . . Mother had a positive toxicology screen for amphetamine,
       methamphetamine, and marijuana. [Rebecca]’s siblings, Raymond C[.],
       Ruby C[.], and Renee C[.], were dependents of the juvenile court due to
       Mother’s substance abuse. . . . Mother’s abuse of illicit drugs endangers
       [Rebecca]’s physical health and safety, and places the child at risk of
       physical harm and damage.”



                                              4
       As to disposition, the juvenile court declared Rebecca a dependent child of the
court. The court ordered Rebecca placed in the custody of her parents, and ordered
family maintenance services for Mother to include participation in a drug rehabilitation
program with aftercare, random drug testing, a 12-step program with a sponsor, and a
referral to family preservation services. The court also ordered Mother not to smoke
marijuana in Rebecca’s presence.3
       Mother filed a timely notice of appeal.
                                          DISCUSSION
       Mother contends the dependency court’s jurisdictional findings are not supported
by substantial evidence. We disagree.
I.     The Law and Standard of Review
       As relevant to Mother’s current appeal, section 300, subdivision (b), authorizes the
dependency court to assert jurisdiction over a child in a number of circumstances:
(1) a child “has suffered” serious physical harm as a result of the failure or inability of his
or her parent to adequately supervise or protect the child, or (2) “there is a substantial
risk” the child will suffer serious physical harm as a result of the failure or inability of his
or her parent to adequately supervise or protect the child, or (3) the child has suffered
serious physical harm or there is a substantial risk that the child will suffer serious
physical harm “by the inability of the parent . . . to provide regular care for the child due
to the parent’s . . . substance abuse.”
       In short, there are three elements for jurisdiction under section 300, subdivision
(b), namely, (1) neglectful conduct or substance abuse by a parent in one of the specified
forms; (2) causation; and (3) serious physical harm to the child, or a substantial risk of
such harm. (See In re John M. (2013) 212 Cal.App.4th 1117, 1124; In re B.T. (2011) 193
Cal.App.4th 685, 692.) In Mother’s and Rebecca’s current case, the focus is on whether
there is maternal substance abuse, and whether such substance abuse has caused harm or
poses a substantial risk of causing harm to her child.

3
       On August 21, 2013, a few days after DCFS first investigated after receiving the
referral, Mother obtained a physician’s recommendation letter for medical marijuana use.

                                               5
II.    The Substance Abuse Findings
       Mother argues that the language “substance abuse” as used section 300,
subdivision (b), either necessarily or implicitly connotes that a parent has been diagnosed
as having a substance abuse pathology based upon recognized medical factors. From this
starting point, Mother argues that a parent may not, as a matter of law, be found to have a
substance abuse problem within the meaning of section 300, subdivision (b), in the
absence of evidence showing that a medical professional has made a substance abuse
diagnosis. Lacking a professional diagnosis, Mother contends, the evidence must
otherwise demonstrate the existence of recognized medical factors which would support a
substance abuse diagnosis. Mother argues the evidence presented at the jurisdictional
hearing in her current case showed only a “situational” use of drugs, not “substance
abuse.”
       We find Mother’s arguments unpersuasive. The two cases discussed in Mother’s
opening brief on appeal, Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322
(Jennifer A.) and In re Drake M. (2012) 211 Cal.App.4th 754 (Drake M.), do not support
a rule that substance abuse within the meaning of section 300, subdivision (b), must be
established by evidence of a medical professional’s diagnosis of a substance abuse
pathology, or, at least, by evidence showing factors that are recognized in the medical
profession to support a diagnosis of a substance abuse pathology. Although the Jennifer
A. and Drake M. opinions both noted the absence of a medical diagnosis of a substance
abuse problem, we do not read either opinion to support the proposition that a showing of
a medical diagnosis is a required element of proof to find substance abuse under section
300, subdivision (b).
       In Jennifer A., which arose in the context of termination of reunification services,
the evidence showed that Mother was regularly employed, and that no one involved in
the dependencys proceeding had ever expressed any concern about the living conditions
in the family home. Mother had never been incarcerated, had no mental illness history,
and had a parent-child relationship with her children. She “always acted appropriately”
during visits after the dependency proceedings were initiated. In short, the only evidence

                                             6
to support the continuation of the dependency court’s jurisdiction was the “opinion” of
the social worker, unsupported by foundational facts, that Mother’s use of alcohol and
marijuana amounted to substance abuse that posed a continuing risk of harm to her
children. The Court of Appeal found this evidence insufficient in the termination of
services context. (Jennifer A., supra, 117 Cal.App.4th at pp. 1336-1338, 1343-1347.)
         Drake M. arose in the context of a challenge to jurisdictional findings. There, the
Court of Appeal reversed a jurisdictional finding based on a father’s use of medical
marijuana. (Drake M., supra, 211 Cal.App.4th at pp. 757-758.) In reversing the finding,
the Court of Appeal noted that there was no evidence the father had been diagnosed with
a substance abuse problem by a medical professional or that he had a substance abuse
problem as defined in the American Psychiatric Association’s published Diagnostic and
Statistical Manual of Mental Disorders. Further, the social services agency had not
presented evidence showing that the father failed to fulfill his work obligations, suffered
from any substance-related legal problems, drove his vehicle while under the influence of
drugs, or used drugs to deal with social or interpersonal problems. (Id. at pp. 766-768.)
Additionally, there was no evidence that the father was unable to adequately supervise or
protect his child. Instead, the evidence showed that the child was healthy, and being well
cared for by his parents, and had not been exposed to marijuana or second-hand
marijuana smoke. (Id. at pp. 768-769.) Based on that record, the Court of Appeal
concluded that father’s use of marijuana, standing alone under the circumstances which it
did, was insufficient to support a finding that his child was at substantial risk of harm.
(Id. at p. 769.)
         As the summary of the Jennifer A. and Drake M. opinions show, neither case
supports the rule that a diagnosis of a substance abuse problem is a required element of
proof to find a substance abuse problem. On the contrary, the rule to be taken from
Jennifer A. and Drake M. is that the absence of a medical diagnosis of substance abuse,
and a lack of evidence of life-impacting effects of drug use, will not support a finding
that a parent has a substance abuse problem justifying the intervention of the dependency
court.

                                               7
       But even assuming that Mother is correct that evidence to support a substance
abuse finding must have some relationship to a diagnosis of substance abuse, or to the
types of factors involved in such a diagnosis, we would still find substantial evidence
here. The evidence in the lower court showed Mother’s use of drugs over a period of
years. This was shown by her involvement in the criminal court system and dependency
court system as the result of the use of drugs, her prior involvement in a drug program
and her “relapse,” her lying about her use of drugs, rationalization for the use of drugs,
and her admission that she had a substance abuse problem. These types of factors are
involved in a diagnosis of substance abuse under recognized professional publications.
(See Drake M., supra, 211 Cal.App.4th at p. 766.) We are more than amply satisfied that
substantial evidence supports the dependency court’s finding in the present case that
Mother suffers from a substance problem within the meaning of section 300, subdivision
(b).
III.   The “Endangers” and “Risk of Harm” Findings
       Mother contends the evidence does not support the dependency court’s finding
that her substance abuse has caused or is causing a substantial risk of harm to Rebecca.
We agree.
       Mother argues the evidence does not show that her “lapse . . . cause[d] any harm
to thirteen-year-old Rebecca.” She notes that, when the family residence was inspected
by the investigating social workers, it was clean, free of hazards, stocked with food, and
clear of drugs and firearms. Rebecca denied any physical or emotional abuse, did not
show any signs of physical abuse, and was not fearful of Mother. Rebecca was up to date
on medical and dental check-ups. Mother enrolled Rebecca in special education during
the fourth grade; Mother regularly attended individual education plan meetings on behalf
of Rebecca. When confronted with her positive drug test, Mother committed herself to a
program. According to Mother’s summary of the evidence, it supports a conclusion that
she “made a mistake” in relapsing, but did not provide a basis to justify jurisdiction of the
dependency court system. Relying on In re Destiny S. (2012) 210 Cal.App.4th 999,



                                              8
1003, Mother concludes with the argument that evidence showing “mere usage of drugs
is not a basis for the assertion of dependency [court] jurisdiction.”
       The first argument offered by DCFS that Mother’s substance abuse is causing or
presents a risk of causing physical harm relies on the evidence concerning Rebecca’s
educational history. DCFS cites to evidence showing that, in November 2013, one of
Rebecca’s teachers told a case social worker that Rebecca had only “recently” started to
complete her homework assignments regularly. DCFS says that this evidence shows that
Mother’s “illicit drug use was interfering with her ability to parent Rebecca and ensure
her educational needs were being met.” This takes the dependency statutes too far. If a
parent’s failure to keep on top of a teenage child’s homework assignments is sufficient to
show “physical harm,” many, many parents would be subject to DCFS intervention.
The required risk under section 300, subdivision (b), is a risk of “physical harm,” and
homework issues do not rise to a level of physical harm.
       DCFS next argues that methamphetamine, amphetamine and marijuana are well-
recognized to be substances which cause hallucinogenic or stimulant-driven behavior.
DCFS argues that “[t]he risk to a child being cared for by a parent under the influence of
such substances is not speculative.” We do not accept DCFS’s argument. It excises out
of the dependency statutes the elements of causation and harm. In other words, DCFS
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 DCFS’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. We agree with Mother that the evidence in the case is not
sufficient to support the finding that her substance is causing, or there is a risk it will
cause, physical harm to Rebecca.




                                               9
                                  DISPOSITION
     The dependency court’s jurisdictional orders are reversed.




                                                     BIGELOW, P.J.

We concur:


                  RUBIN, J.



                  FLIER, J.




                                         10
Filed 8/1/14
                            CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SECOND APPELLATE DISTRICT

                                      DIVISION EIGHT


In re REBECCA C., a Person Coming
Under the Juvenile Court Law.                       B253065

LOS ANGELES COUNTY                                  (Los Angeles County
DEPARTMENT OF CHILDREN AND                          Super. Ct. No. CK60360)
FAMILY SERVICES,

         Plaintiff and Respondent,                  ORDER CERTIFYING
                                                    PUBLICATION
         v.
                                                    (No Change in Judgment)
R. C.,

         Defendant and Appellant.



         THE COURT*:


         The opinion in the above entitled matter filed on July 9, 2014, 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 it is so ordered.




________________________________________________________________________
* BIGELOW, P. J.                     RUBIN, J.                   FLIER, J.
