Filed 7/26/19 Certified for Publication 8/12/19 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                 DIVISION ONE


In re L.C., a Person Coming                       B294490
Under the Juvenile Court Law.                     (Los Angeles County
                                                  Super. Ct. No. 18LJJP00035)

LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

        Plaintiff and Respondent,

        v.

PEDRO C.,

        Defendant and Appellant.


      APPEAL from a jurisdictional order of the Superior Court
of Los Angeles County, Steven E. Ipson, Commissioner.
Reversed.
      Leslie A. Barry, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Jessica S. Mitchell,
Deputy County Counsel, for Plaintiff and Respondent.
                      ____________________

      In this appeal, we hold that evidence of a legal guardian’s
occasional methamphetamine use outside the legal guardian’s
home and while the child was in the care of another adult in the
home does not support dependency jurisdiction under
Welfare and Institutions Code section 300, subdivision (b).1
No substantial evidence showed that the legal guardian abused
methamphetamine, and no substantial evidence showed that the
child was at risk of serious physical harm. We therefore reverse
the juvenile court’s jurisdictional order.

      FACTUAL AND PROCEDURAL BACKGROUND
      Pedro was six-year old L.’s legal guardian since 2015 and
her primary caretaker since 2013.2 It was undisputed that Pedro
and L. shared a close relationship. Pedro does not have a
criminal history.

1.    Petition
      On October 12, 2018, DCFS filed a petition. The
section 300, subdivision (b) allegations against Pedro


      1  All statutory references are to the Welfare and
Institutions Code.
      2 Prior to Pedro’s undertaking the role of legal guardian,
the juvenile court removed L. from the custody of her mother,
Pedro’s sister. L.’s siblings were also dependents of the
juvenile court.




                                    2
stated: Pedro “is a current abuser of amphetamine and
methamphetamine which renders the Legal Guardian unable to
provide regular care of the child. The Legal Guardian had
positive toxicology screens for amphetamine and
methamphetamine on 09/04/2018 and 08/21/2018, while the child
was in the Legal Guardian’s care and supervision. The child is of
such a young age as to require constant care and supervision and
the Legal Guardian’s substance abuse interferes with providing
regular care of the child. The Legal Guardian’s substance abuse
endangers the child’s physical health and safety, creates a
detrimental home environment and places the child at risk of
serious physical harm, damage and danger.”

2.   DCFS Reports
      In its detention report, DCFS reported that Pedro tested
positive for methamphetamine and amphetamine on August 21,
2018 and September 4, 2018. Pedro did not appear for a test
scheduled for August 20, 2018, the day before his first positive
test. When asked about his drug use, Pedro denied using illegal
substances. A social worker was concerned that Pedro did not
provide a telephone number to the foster parents of L.’s sister.
Additionally, the social worker observed Pedro and L.’s mother
(Pedro’s sister) were arguing. The social worker stated when she
visited L.’s mother, Pedro was at the home; Pedro mumbled, used
profanity, and appeared to be under the influence. The social
worker did not identify the substance she believed Pedro used or
the reasons why she concluded that he was under the influence.
      On September 25, 2018, Pedro tested negative for
controlled substances including methamphetamine. On
October 22, 2018, Pedro tested negative for controlled substances
including methamphetamine. Pedro obtained these tests on his



                                   3
own initiative. On November 1, 2018, Pedro tested negative for
controlled substances including methamphetamine.
      A medical examination of L. revealed that she suffered
from developmental delays.

3.    Jurisdiction Hearing
       Social worker Evelyn Aguirre testified that Pedro tested
positive for methamphetamine twice—in August and
September 2018. She testified that Pedro did not admit to using
methamphetamine. According to Aguirre, the Department
recommended that L. be placed with foster parents. Aguirre was
concerned that Pedro’s “methamphetamine use hinders his
ability to provide her [L.] with the constant care and supervision
she needs.” Aguirre acknowledged that the positive toxicology
test results in August and September 2018 did not elucidate
whether or not Pedro was impaired as a result of his
methamphetamine use.
       Dr. Rody Predescu, a toxicologist, testified that Pedro’s
September 4, 2018 and August 21, 2018 blood tests indicated that
Pedro used methamphetamine within three to five days of those
tests. According to Predescu, the drug tests did not show
whether Pedro was impaired as a result of his methamphetamine
use. Dr. Predescu concluded, and it was undisputed, that Pedro
did not use amphetamine; he tested positive for amphetamine
because it was a metabolite of the methamphetamine. A chronic
methamphetamine user suffers side effects including sleep
deprivation, weight loss, and an inability to function normally.
Pedro was obese.
       Pedro and L. lived with C.B. for three years. C.B. testified
that she never observed Pedro in “a state where he couldn’t
properly care for” L. C.B. observed that Pedro took good care of



                                    4
L. Pedro sometimes went out at night, and on those occasions, he
would ask C.B. to care for L. C.B. never observed Pedro to be
under the influence of methamphetamine. C.B. did not notice
Pedro staying up at night or being easily angered. An employee
of L.’s school testified that she observed Pedro pick L. up from
school every day. Pedro never appeared to be under the influence
of any drugs.
       Pedro testified that he was responsible for L. and ensured
she attended appointments with her doctor, optometrist, and
dentist, including appointments related to L.’s required eye
surgery. Pedro took L. to school every day, and picked her up at
the end of the day. Pedro read to L. and helped her with her
homework. Pedro put L. to bed at night and woke her up in the
morning.
       At the jurisdictional hearing, Pedro acknowledged that he
tested positive twice for methamphetamine and that he lied to
the social worker when he denied using methamphetamine.
Pedro testified that he lied because he did not want the social
worker to remove L. from his custody. Pedro testified that he
took methamphetamine when he was at a party at a hotel.
Pedro took methamphetamine in December 2017 and February,
August, and September 2018. His only method of using
methamphetamine was smoking it. During cross-examination,
Pedro testified that he used methamphetamine at most six or
seven times, and DCFS did not contest this number.
       On the nights he used methamphetamine, Pedro stayed in
a hotel and made arrangements for C.B. to care for L. Pedro
testified that C.B. could contact him if there were an emergency
involving L. Pedro testified that L. never saw him impaired or
under the influence of methamphetamine.




                                   5
       Pedro testified that he did not use methamphetamine after
September 2018. Pedro testified that he did not crave
methamphetamine. He never purchased methamphetamine.
According to Pedro, his methamphetamine use did not affect his
ability to care for L.
       Prior to the jurisdictional hearing, Pedro enrolled in a drug
awareness class. Before DCFS enrolled him in random drug
testing, Pedro tested on his own for controlled substances. Pedro
testified that he was willing to continue to test twice a week for
controlled substances after the jurisdictional hearing. Pedro did
not believe he had a substance abuse problem. Pedro testified
that he weighed 360 or 370 pounds and that his weight had not
fluctuated over the course of the year. Pedro was not aware that
L. suffered from developmental delays and believed her work was
at grade level.

4.    Juvenile Court’s Findings
       The juvenile court sustained the allegations in the
section 300 petition. The juvenile court pointed out that Pedro
used profanity towards a social worker and appeared to the social
worker to be under the influence. The juvenile court emphasized
that Pedro was dishonest when he told the social worker that he
never used methamphetamine. The juvenile court indicated that
Pedro was unavailable to L. on the nights he went to a hotel. The
court concluded that this evidence was sufficient to sustain the
petition under section 300, subdivision (b).3



      3 At the subsequent dispositional hearing, the
juvenile court removed L. from Pedro’s care. The court permitted
Pedro monitored visits.



                                    6
                    STANDARD OF REVIEW
       Pedro challenges the juvenile court’s assumption of
jurisdiction over L. “When an appellate court reviews the
jurisdictional . . . findings of the juvenile court, it looks to see if
substantial evidence, whether contradicted or uncontradicted,
supports the findings. [Citations.] The appellate court must
review the evidence in the light most favorable to the trial court’s
order, drawing every reasonable inference and resolving all
conflicts in favor of the prevailing party. [Citation.] Substantial
evidence ‘means evidence that is “reasonable, credible and of
solid value; it must actually be substantial proof of the essentials
that the law requires in a particular case.” ’ ” (In re Alexzander C.
(2017) 18 Cal.App.5th 438, 446.)

                           DISCUSSION
       Pursuant to section 300, subdivision (b), the juvenile court
sustained allegations that Pedro abused amphetamine and
methamphetamine which rendered him unable to provide regular
care for L. and placed her at risk of serious physical harm.
Section 300, subdivision (b)(1) permits a juvenile court to assume
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
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.”
       “Substance abuse for purposes of section 300,
subdivision (b), is shown by a diagnosis from a medical
professional or by evidence of criteria recognized by the medical




                                      7
profession as indicative of a substance abuse disorder.” (In re
Alexzander C., supra, 18 Cal.App.5th at p. 447.) “A true finding
under this subdivision requires evidence of ‘ “ ‘ “ ‘serious physical
harm or illness’ ” ’ ” ’ to the child, or ‘ “ ‘ “a ‘substantial risk’ of
such harm or illness.” ’ [Citations.]” ’ ” (In re Israel T. (2018)
30 Cal.App.5th 47, 51.) “Proof of this element ‘ “ ‘effectively
requires a showing that at the time of the jurisdictional hearing
the child is at substantial risk of serious physical harm in the
future . . . .’ ” ’ ” (Ibid.)
      Applying these principles to this case, we conclude that the
juvenile court erred in assuming jurisdiction over L. for two
reasons. No substantial evidence showed that Pedro abused
methamphetamine and no substantial evidence showed that L.
was at substantial risk of serious physical harm as a result of
Pedro’s methamphetamine use.

A.    There Was No Substantial Evidence of Substance
      Abuse
       First, the record supports only the conclusion that Pedro
used methamphetamine. It does not support the conclusion that
he abused it.4 A substance abuse disorder includes “cravings and
urges to use the substance; spending a lot of time getting, using,
or recovering from use of the substance; giving up important
social, occupational or recreational activities because of substance
use; and not managing to do what one should at work, home or


      4 Because there was no evidence of substance abuse, the
following part of section 300.2 does not apply to this case: “The
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.”




                                       8
school because of substance use.” (In re Alexzander C., supra,
18 Cal.App.5th at p. 447.)
       No evidence supported any of these indicia of substance
abuse. Pedro used methamphetamine at most seven times
between December 2017 and September 2018. It was undisputed
that he did not crave it and that he never purchased it. It was
undisputed that he dropped L. off and picked her up from school
every day, accompanied her to her medical and dental
appointments, and never appeared under the influence when he
undertook these care-giving tasks. Further, DCFS presented no
evidence that Pedro gave up social, occupational, or recreational
activities because of his use of methamphetamine.
       Respondent’s contrary argument is not persuasive.
Although respondent correctly points out that Pedro initially lied
about his use of methamphetamine, he modified his conduct
when he realized that he could lose L. Pedro stopped using
methamphetamine, arranged for his own drug tests to show that
he had stopped using, enrolled in a class concerning controlled
substances, and acknowledged his use of methamphetamine at
the jurisdictional hearing. Respondent’s statement that Pedro
did “nothing” to “remediate his abuse” is not supported by the
record.
       Respondent cites to In re R.R. (2010) 187 Cal.App.4th 1264,
1284 to support the conclusion that Pedro abused
methamphetamine. In re R.R. is distinguishable because in that
case the father had an eight year history of methamphetamine
use and his methamphetamine use led to his hospitalization.
(Id. at pp. 1272, 1284.) Father also admitted using cocaine,
marijuana, and drinking three beers a day. (Id. at p. 1272.) The
court concluded this evidence supported the inference that the




                                   9
father abused methamphetamine. There was no similar evidence
in this case. In short, although the evidence showed Pedro used
methamphetamine, no substantial evidence showed he abused it.

B.    There Was No Substantial Evidence That L. Was At
      Risk of Serious Physical Harm Because of Pedro’s
      Methamphetamine Use
       When Pedro left the house to smoke methamphetamine, he
placed L. in C.B.’s care. It was undisputed that C.B. was
competent to care for L. Except for a handful of occasions when
Pedro left L. in C.B.’s care, Pedro regularly cared for L. and they
shared a close bond. Pedro ensured that L. attended school, took
her to her medical appointments, and helped her with her
homework. There was no evidence that Pedro ignored his
parental responsibilities as a result of his occasional
methamphetamine use. There was no evidence that Pedro kept
methamphetamine in the home he shared with L.
       Physical harm is not presumed from a parent or guardian’s
substance abuse. (In re Rebecca C. (2014) 228 Cal.App.4th 720,
728.) Respondent fails to show that substantial evidence
supported the allegation that L. was at substantial risk of
physical harm. Respondent’s claim that Pedro “did not meet his
parental role obligations,” is unsupported by any evidence. The
isolated evidence that a social worker believed Pedro was under
the influence of an unidentified substance in L.’s presence does
not support jurisdiction. The social worker did not indicate that
Pedro was under the influence of methamphetamine. Moreover,
the single, isolated incident in which L. was safe in a home with
multiple adults fails to demonstrate that L. was at substantial
risk of physical abuse. Although respondent correctly points out
that Pedro was unaware of L.’s learning or developmental



                                   10
disabilities, this evidence is not tethered to any basis for
jurisdiction and, in any event “homework issues do not rise
to a level of physical harm.”5 (In re Rebecca C., supra,
228 Cal.App.4th at p. 727.) The evidence showed that L. was
healthy, well cared for, and always supervised.
       In short, Pedro’s “use of methamphetamine, without more,
cannot” support jurisdiction. (In re Alexzander C., supra,
18 Cal.App.5th at p. 451; see also In re L.W. (2019)
32 Cal.App.5th 840, 849 [“case law stands for the proposition
that drug use or substance abuse, without more, is an insufficient
ground to assert jurisdiction in dependency proceedings under
section 300”].) Here, there was no evidence of something more.
We thus reverse the juvenile court’s assumption of jurisdiction
over L.

                         DISPOSITION
      The juvenile court’s jurisdictional order is reversed.



                                           BENDIX, J.
We concur:


      ROTHSCHILD, P. J.                    JOHNSON, J.


      5 Respondent points out that on October 31, 2018, Pedro
signed a form indicating that he received a “Full Referral
Packet.” Pedro testified at the subsequent jurisdictional hearing
that he was not provided referrals. Respondent fails to
demonstrate how this evidence supported either a finding that
Pedro abused methamphetamine or that L. was at risk of serious
physical harm because of Pedro’s substance abuse.




                                    11
Filed 8/12/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION ONE


In re L.C., a Person Coming           B294490
Under the Juvenile Court Law.         (Los Angeles County
                                      Super. Ct. No. 18LJJP00035)

LOS ANGELES COUNTY                    CERTIFICATION AND
DEPARTMENT OF                         ORDER FOR PUBLICATION
CHILDREN AND FAMILY
SERVICES,

       Plaintiff and Respondent,

       v.

PEDRO C.,

       Defendant and Appellant.

      The opinion in the above-entitled matter filed July 26, 2019,
was not certified for publication in the Official Reports. After
reviewing the request to publish the opinion, appellant’s joinder,
and respondent’s opposition thereto, and for good cause, it appears
that the opinion should be published in the Official Reports. It is so
ordered.

____________________________________________________________
ROTHSCHILD, P. J.           JOHNSON, J.          BENDIX, J.
