Filed 6/14/13 In re A.C. CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT


In re A.C., a Person Coming Under the                                B243857
Juvenile Court Law.                                                  (Los Angeles County
                                                                     Super. Ct. No. CK 93135)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Appellant,

         v.

RAUL C.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Terry
Truong, Juvenile Court Referree. Affirmed.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Peter Ferrera, Deputy County Counsel, for Plaintiff and Appellant.
         Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant
and Appellant.
                                                       ******
       Raul C. (father) appeals from the court‟s jurisdictional and dispositional order,
contending that substantial evidence did not support the court‟s exercise of jurisdiction
and its refusal to place his son, A.C., with father, who was the nonoffending,
noncustodial parent. The Los Angeles County Department of Children and Family
Services (DCFS) also appeals, arguing the court erred in dismissing certain allegations
against Mariela G. (mother). Mother has not appealed. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Father and mother never married. Mother has one child, A.C., with father and
another child, A.A., with another man. Because father is not the parent of A.A., this
appeal relates only to A.C. Maternal grandmother, Agustina A., has cared for A.C. since
birth and has helped mother raise him. Mother and her children have always lived with
Agustina. A.C. is legally blind. At the time of the present referral, A.C. was 13 years
old.
       The family has three prior referrals with DCFS. In July 2006, the referral alleged
general neglect of A.C. by mother. The investigation was inconclusive. In March 2008,
the referral alleged general neglect of A.C. and A.A. by mother. The allegations were
substantiated, and DCFS placed the children with Agustina. Mother told DCFS that she
had a recent history of using methamphetamine and a criminal history, and she admitted
to allowing the children to be around maternal aunt, Marissa G., who had an open DCFS
case because of drug and criminal activity. The family received voluntary maintenance
and reunification services from April 2008 to January 2011. In September 2009, the third
referral alleged A.C. and A.A. were at risk of general neglect by an unknown perpetrator.
The caller did not suspect abuse/neglect by Agustina, with whom the children resided,
but the caller was concerned that Agustina was overwhelmed because she was caring for
A.C., A.A., and three other children. The investigation concluded the allegations were
unfounded.
       Mother was incarcerated in June 2011 for a drug-related charge and parole
violation. When she was incarcerated, mother gave temporary custody of A.C. and A.A.
to Agustina. A.C. came to the attention of DCFS most recently on or about March 23,


                                             2
2012, when police officers stopped maternal uncle, Adam A., while he was driving. The
passengers of his car included Marissa, two of Marissa‟s children, Agustina, A.A., and an
adult male. A.C. was at home with other relatives. The officers stopped the vehicle
because Adam did not use a turn signal and the officers could see children inside who
were not properly restrained. When the officers approached the vehicle, they saw Adam
pass a bag containing suspected narcotics to Marissa, who then concealed the bag in her
pants below her stomach. The officers smelled a marijuana odor emitting from the
vehicle and detained Marissa and Adam to conduct an investigation. The officers found
on Marissa one bag of suspected methamphetamine, two bags of suspected cocaine, and
one bag of suspected marijuana. They also recovered a burnt marijuana cigarette from
the dashboard ashtray. They arrested Marissa and Adam for possession of a controlled
substance for sale, transportation of a controlled substance, and child endangerment.
After they advised Adam of his Miranda1 rights, Adam told them he was a gang member
and went by the moniker “Demon.” He said he had been addicted to methamphetamine
for more than 10 years and was out on bail for a case involving gun possession and sale
of narcotics. He had last used methamphetamine five days prior. After the officers
advised Marissa of her Miranda rights, she told them the drugs belonged to her for
personal use. The officers took Marissa and Adam to the station for booking and released
the vehicle and the children to Agustina.
       DCFS filed a petition on behalf of A.C. and A.A. on April 20, 2012, making a
single allegation under Welfare and Institutions Code section 300, subdivision (b),2 that
the children were at substantial risk of physical harm as a result of mother‟s failure to
adequately supervise or protect them, i.e., leaving them in the care of Marissa and Adam.
The juvenile court found a prima facie case for detaining the children. A.C. stated that he


1      Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
2     All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.



                                              3
did not want to be removed from Agustina‟s home. The court detained A.C. in shelter
care pending the results of a prerelease investigation of Agustina.
       DCFS filed an amended petition on May 24, 2012, adding allegations that both
mother and father had a history of abusing methamphetamine, placing A.C. at risk of
harm, and father also had a history of mental problems, rendering him incapable of
providing regular care and supervision.
       The adjudication hearing was scheduled for June 5, 2012, and then continued to
July 23. At the time of the jurisdiction/disposition report, A.C. had been placed back
with Agustina. A.C. reported that mother was incarcerated and he thought she had drugs,
but he was not sure. He had not seen anyone use drugs. He was not in the car when the
officers pulled over Marissa and Adam. He did not often go out because of his vision
problems. A.C. did not recall the last time he had seen father and said father “really
hasn‟t been with [him] much.” A.C. wanted to stay with Agustina and continue attending
his current school, where he enjoyed his “special classes.” A.C. is in special education
classes due to his vision impairment and also a speech impairment. Although he did not
want to move in with father, he said he felt safe being alone with father. A.C. described
father as “pretty nice guy.” A.C. was born legally blind; he has partial ability to see close
up out of one eye. His vision is blurry and he is hypersensitive to light. He has had
several eye surgeries. He had surgery recently to place an internal shunt to relieve eye
pressure, mostly in his left eye.
       DCFS was unable to interview mother for the report because she was incarcerated
in Chowchilla. The social worker attempted to contact mother through her counselor
approximately seven times to no avail. Marissa reported mother has been arrested three
times, including a parole violation, a drug-related charge, and a robbery charge. Marissa
said mother‟s “drug of choice” was methamphetamine, which she began using as an
adult. The report from the Department of Justice based on mother‟s fingerprint records
showed mother had an extensive history of arrests or convictions. In 2005, she was
arrested for and convicted of being under the influence of a controlled substance. In
2006, she was arrested for possessing drug paraphernalia. In 2007, she was arrested for


                                              4
possessing a controlled substance. In 2008, she was arrested for and convicted of
robbery. In 2009, she was arrested for possessing drug paraphernalia. In 2010, she was
arrested for being under the influence of a controlled substance. And in 2011 and 2012,
she was arrested for and convicted of possessing narcotics and violating parole.
       DCFS interviewed father via telephone. Father said he had been diagnosed with
schizophrenia when he was younger, around age 22. He was now 33. He heard voices in
the past. He did drugs when he was younger (methamphetamine and marijuana) but had
been clean for 12 years. Around 2002, he was hospitalized in a psychiatric ward for three
days. He was hospitalized again for three days to receive a psychiatric evaluation
sometime between 2002 and 2004. He was hospitalized a third time seven years later.
He thinks this occurred in 2010, when he “wasn‟t having a good day and this time it
wasn‟t because of the voices.” His mother was “scared” and thought he “was having a
trip,” and she called the police on him. Father was not on any medications. He did not
have any “problems” with Agustina. He had not had a job for the past two years and
began collecting unemployment a year ago. He and mother lived together for
approximately one year. They separated because he “was the problem” and “the
domestic abuse thing did not fly with her.” He was arrested in 1999 or 2000 for hitting
mother. She left him after that. Mother found him the prior year on Facebook via his
sister. He last saw A.C. approximately two months before the DCFS interview and “a
couple of times” at the beginning of 2012. It was father‟s opinion that the family did not
need help with anything from DCFS. He was nevertheless willing to participate in family
reunification services and any court ordered programs. He was fine with A.C. staying
with Agustina if A.C. was fine with the arrangement. Father had one on-demand drug
test scheduled. It was not conducted, however, because father was unable to urinate
when he showed up.
       Paternal grandmother Evangelina C. reported that father was living with her, was
not working, and was looking for a job. She said father used drugs in the past and would
hear voices but he was “different” now. She thought he had problems and was
hospitalized because he did not see his son, and now that he saw A.C., he was at peace


                                            5
and stable. She told him to see a doctor for an evaluation; father did not want to and said
his problems were in the past. She was not sure if father could care for A.C. on his own
because he had never done it. She did not know if father had ever hit mother. Marissa
reported that father had mental health issues and was possibly bipolar. She said he lived
with his parents because he is unable to care for himself, and although he appears normal,
he gets “paranoid” and “has gotten worse with time.”
       Marissa reported that she hid marijuana and methamphetamine on her person
when she was arrested with her children and A.A. in the vehicle. She said it was for her
and Adam‟s use, and they would use when they did not have the children for the weekend
because the children were, for example, staying with Agustina. At the same time, she
acknowledged that she and Adam had used when they were responsible for caring for the
children. She was out on bail and had the pending criminal case relating to her recent
arrest. She reported that she had been using methamphetamine since she was 18 years
old and she used approximately once per month. Adam reported that he had used
methamphetamine the week before his arrest and he had used marijuana the morning of
his arrest, but not in the vehicle with the children. He was incarcerated and was facing a
sentence of 36 years in prison as a result of his charges for drug possession and a prior
gun possession charge.
       Agustina reported that she had not witnessed and was not aware of either mother‟s
or Marissa‟s drug use until mother was incarcerated on drug-related charges and Marissa
tested positive for the dependency case involving her children. She never witnessed
Adam using drugs but smelled marijuana on him before. She did not see either Marissa
or Adam using marijuana in the vehicle on the day of their arrest. She wanted A.C. and
his sibling A.A. to remain with her because she had always cared for them, including
taking them to school and medical appointments. She loved them and felt they loved her
in return.
       Mother appeared with counsel at the adjudication hearing. At the hearing,
“mother admit[ted] that she has a history of substance abuse” and did not ask the court to
strike the count of the petition relating to her substance abuse. Rather, mother asked only


                                             6
that the count be conformed to proof insofar as it stated she was incarcerated, and she had
since been released from prison. She also requested the court amend the count to state
that her substance abuse only “periodically” (as opposed to regularly) rendered her
incapable of caring for her children. She argued that the court should strike the count
relating to her leaving the children in Marissa‟s and Adam‟s care because she actually left
them in Agustina‟s care, which was an appropriate plan.
       DCFS recommended A.C. and A.A. remain in Agustina‟s home. It further
recommended father submit to at least some drug testing to confirm that his stated history
of drug use was definitely in the past. It also wanted father to submit to a psychiatric
evaluation to assess whether father needed to be on psychiatric medication. The court
sustained a single count of the amended petition, count b-2, which it amended as follows:
“The children, [A.C.] and [A.A.]‟s mother Mariela [G.], has an unresolved history of
substance abuse which included methamphetamine use which periodically renders the
mother incapable of providing regular care of the children. The mother‟s substance abuse
places the children at risk of harm.” The court struck all other counts of the amended
petition, including the count that mother endangered the children by leaving them in
Marissa‟s and Adam‟s care, and the counts alleging father‟s substance abuse and mental
problems endangered A.C. and A.A. Regarding the counts against father, the court noted
that it was not sustaining those counts because “what [is] missing is the nexus.”
       The court found by clear and convincing evidence that there was a substantial
danger to the children‟s physical health, safety, protection, or emotional well-being if
they were to be returned to their mother‟s care. The court ordered them removed from
mother‟s custody, the parent with whom they typically resided when DCFS filed the
petition. Father requested that A.C. be placed with him. The court denied the request
and ordered both children to be placed in DCFS‟s care for suitable placement, which
would continue to be with Agustina. The court also ordered father to perform six random
or on-demand drug tests, and stated that if father tested positive or had a missed test
without a legitimate excuse, he would have to complete a drug rehabilitation program.
The court noted, “Just because I don‟t have enough evidence to sustain a count against


                                              7
you does not mean that I don‟t believe you may be using.” The court ordered
reunification services for both parents.
         The court scheduled the next hearing and said, “I would like to know how the
parents are doing. At that point, I will consider placement of the children with the
parents, but for right now, there‟s just too many red flags in this case for me to warrant
having any of the children placed with any of the parents.” Both father and DCFS filed
timely notices of appeal.
                                 STANDARD OF REVIEW
         In reviewing the jurisdictional findings of the juvenile court, “we look to see if
substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In
making this determination, we draw all reasonable inferences from the evidence to
support the findings and orders of the dependency court; we review the record in the light
most favorable to the court‟s determinations; and we note that issues of fact and
credibility are the province of the trial court.” (In re Heather A. (1996) 52 Cal.App.4th
183, 193.) “We do not reweigh the evidence or exercise independent judgment, but
merely determine if there are sufficient facts to support the findings of the trial court.”
(In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) If supported by substantial
evidence, we must uphold the judgment or findings, even though substantial evidence to
the contrary may also exist, and the juvenile court might have reached a different
conclusion had it determined the facts and weighed credibility differently. (In re
Dakota H. (2005) 132 Cal.App.4th 212, 228; In re Tracy Z. (1987) 195 Cal.App.3d 107,
113.)
         Likewise, we review the court‟s dispositional order denying placement with father
under the substantial evidence standard. (In re John M. (2006) 141 Cal.App.4th 1564,
1569.)




                                                8
                                        DISCUSSION
1. Substantial Evidence Supported the Court’s Jurisdictional Finding Based on
Mother’s Substance Abuse
       As an initial matter, DCFS contends that father has no standing to challenge the
jurisdictional finding based on mother‟s conduct because mother conceded jurisdiction
below and has not challenged it on appeal. But the jurisdictional order served as the basis
for the court‟s dispositional orders, including the orders denying placement with father
and for father‟s drug testing. Without jurisdiction, the court could not have made these
orders. It is not accurate to say father is not an aggrieved or affected party. (In re D.S.
(2007) 156 Cal.App.4th 671, 674.) Father has standing.
       Moving to the merits of father‟s argument, he contends there was no evidence
A.C. was at substantial risk of serious harm due to mother‟s methamphetamine use. We
disagree. Under section 300, subdivision (b), the juvenile court may assert jurisdiction
over a child 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.” (Italics added.)
When a court makes a finding of substance abuse under section 300, subdivision (b), it
does not necessarily “follow that such a finding means that the parent or guardian at issue
is unable to provide regular care resulting in a substantial risk of physical harm to the
child.” (In re Drake M. (2012) 211 Cal.App.4th 754, 766.) But “[t]he trial court is in the
best position to determine the degree to which a child is at risk based on an assessment of
all the relevant factors in each case.” (Ibid.) Cases finding a substantial risk of physical
harm under section 300, subdivision (b) “„tend to fall into two factual patterns. One
group involves an identified, specific hazard in the child‟s environment -- typically an
adult with a proven record of abusiveness. [Citations.] The second group involves
children of such tender years that the absence of adequate supervision and care poses an
inherent risk to their physical health and safety. [Citations.]‟ [Citation.] And we also


                                                9
hold that, in cases involving the second group, the finding of substance abuse is prima
facie evidence of the inability of a parent or guardian to provide regular care resulting in
a substantial risk of physical harm.” (In re Drake M., at pp. 766-767.)
       There is no real question here that mother is a substance abuser. She
acknowledged having a history of substance abuse at the adjudication hearing and did not
challenge jurisdiction on the basis that her substance abuse periodically renders her
incapable of providing regular care for A.C. She also had a previous case with DCFS in
2008 when she received voluntary services after acknowledging a recent history of using
methamphetamine and a criminal history. Even had she not admitted to a substance
abuse problem, there was substantial evidence to support the conclusion that she had such
a problem. The court may base a finding of substance abuse on evidence showing that
the parent at issue has a current substance abuse problem as defined in the DSM-IV-TR.3
(In re Drake M., supra, 211 Cal.App.4th at p. 766.) The DSM-IV-TR defines the
condition as “„[a] maladaptive pattern of substance use leading to clinically significant
impairment or distress, as manifested by‟” a number of possible things, including
“recurrent substance-related legal problems (e.g., arrests for substance-related disorderly
conduct)” within a 12-month period. (Ibid.) Here, mother experienced at least one drug-
related arrest or conviction every year since 2005, except in 2008, when she was
convicted of robbery. Mother‟s drug-related legal problems would qualify her as a
substance abuser under the DSM-IV-TR. In not challenging jurisdiction, mother all but
admitted A.C. was at substantial risk of harm because of her substance abuse. Although
A.C. is no longer a very young child at 13, he has a physical disability in that he is legally
blind and can see only partially out of one eye. He has had several eye surgeries in his
life and had one around the time of this latest referral to DCFS to place an internal shunt.
It is reasonable to infer that A.C. requires more care and supervision than the typical 13

3      The “DSM-IV-TR” refers to the “American Psychiatric Association‟s Diagnostic
and Statistical Manual of Mental Disorders.” (In re Drake M., supra, 211 Cal.App.4th at
p. 765.)



                                             10
year old, such that mother‟s substance abuse, which she admits periodically rendered her
incapable of caring for him, poses an inherent risk to his physical health and safety.
       Father argues this case is like In re Destiny S. (2012) 210 Cal.App.4th 999 and In
re David M. (2005) 134 Cal.App.4th 822, in which the courts held there was no
jurisdiction, but those cases are distinguishable. The mother in Destiny S. tested positive
for methamphetamine and admitted to using marijuana during the initial DCFS
investigation, but she tested negative for both for three months leading up to the
adjudication hearing. (Destiny S., at pp. 1002, 1004.) The mother challenged
jurisdiction, which was based on her alleged substance abuse. (Id. at pp. 1001-1002.)
Similarly, in David M., although the petition alleged mother had a substance abuse
problem, mother tested negative for drugs approximately 18 times between the detention
hearing and jurisdiction hearing, and mother also challenged jurisdiction. (David M., at
pp. 825, 831.) In neither case did the offending parent admit to a substance abuse
problem and concede jurisdiction based on her condition posing a substantial risk of
harm, as was the case here. The court did not err in exercising jurisdiction based on
mother‟s admitted substance abuse problem.
2. Substantial Evidence Supported the Court’s Order Denying Placement of A.C. with
Father
       Father next contends there was no substantial evidence that A.C.‟s placement with
father would be detrimental to A.C. Father argues that the court‟s dismissal of the counts
against him is conclusive evidence there would be no detriment to placing A.C. with him.
Additionally, father says, he is a sober, stable individual fully capable of raising his son.
We hold there was substantial evidence supporting the court‟s decision.
       When a nonoffending, noncustodial parent requests custody of a child who has
been removed from the child‟s home, “the court shall place the child with the
[noncustodial] parent unless it finds that placement with that parent would be detrimental
to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2,
subd. (a).) “A detriment evaluation requires that the court weigh all relevant factors to
determine if the child will suffer net harm.” (In re Luke M. (2003) 107 Cal.App.4th


                                              11
1412, 1425.) “[S]ection 361.2, which governs placement after the child has been made a
dependent of the court and removal from the custodial parent has already occurred,
conspicuously does not require that the court find the noncustodial parent might fail to
protect the child or that there are no reasonable means to protect the child in the
noncustodial parent‟s home in order to deny the noncustodial parent‟s request for
placement.” (Ibid.) The detriment need not be related to the noncustodial parent‟s
conduct. (Ibid.)
       Here, father‟s argument about the court‟s dismissal of the counts against him is
unpersuasive. The court indicated that it was not sustaining those counts because it did
not find evidence of a nexus between father‟s alleged conduct and harm to A.C. This is
perhaps unsurprising, given the minimal contact father has had with A.C. and the fact that
father has had essentially no responsibility for A.C.‟s care and upbringing. Father had
been absent from A.C.‟s life until the year prior to this referral, when mother located him
online through Facebook. Since then, father has visited A.C. only a few times, around
three. The court noted its ruling based on lack of nexus did not mean it believed father
was clean. Father admitted to having used methamphetamine and marijuana in the past.
He was unable to complete the only scheduled drug test prior to the adjudication hearing
to confirm his statement that he was clean. Additionally, he was diagnosed with
schizophrenia approximately 11 years ago and had been hospitalized three times, but he
was not on any medications for it. Marissa described him as unable to care for himself.
His mother, Evangelina, wanted him to seek current treatment for his mental health;
father denied that he needed any. Evangelina was not sure if father could care for A.C.
on his own. Contrary to father‟s assertion, there was evidence that he was not a stable
individual. Additionally, A.C. has special needs and wanted to remain with Agustina,
who has cared for and lived with A.C. since birth. While A.C. thought father was a “nice
guy,” he did not want to live with him and wanted to stay at his school where he enjoyed
his special education classes. Although the court could not have based its detriment
determination on A.C.‟s wishes alone, it was entitled to consider A.C.‟s wishes. (In re
Luke M., supra, 107 Cal.App.4th at p. 1426.) In light of the evidence regarding father‟s


                                             12
mental health, the question about his ability to care for A.C., his limited role thus far in
A.C.‟s life, A.C.‟s special needs, A.C.‟s desire to remain with Agustina, and Agustina‟s
role as A.C.‟s lifelong caretaker, there was substantial evidence supporting a finding of
detriment in placing A.C. with father.
3. DCFS’s Appeal Is Nonjusticiable
       DCFS has cross-appealed, arguing that the court erred when it dismissed the
allegations that mother endangered A.C. by leaving him under the care of Marissa and
Adam (the (b)(1) allegations). DCFS‟s appeal does not present a justiciable issue, and we
therefore decline to address the merits of its contention.
       “„“[As] a general rule it is not within the function of the court to act upon or
decide a moot question or speculative, theoretical or abstract question or proposition, or a
purely academic question, or to give an advisory opinion on such a question or
proposition. . . .”‟ [Citation.] An important requirement for justiciability is the
availability of „effective‟ relief -- that is, the prospect of a remedy that can have a
practical, tangible impact on the parties‟ conduct or legal status.” (In re I.A. (2011) 201
Cal.App.4th 1484, 1490.)
       “Once [a] child is found to be endangered in the manner described by one of the
subdivisions of section 300 . . . the child comes within the court‟s jurisdiction . . . .” (In
re I.A., supra, 201 Cal.App.4th at p. 1491.) “[A]n appellate court may decline to address
the evidentiary support for any remaining jurisdictional findings once a single finding has
been found to be supported by the evidence.” (Id. at p. 1492.)
       We have already determined that substantial evidence supported the court‟s
exercise of jurisdiction apart from the (b)(1) allegations. DCFS asserts we should
nevertheless exercise our discretion to address its appeal because there would be practical
consequences to reversing the court‟s dismissal -- namely, the sustained (b)(1) allegations
“would inform mother‟s treatment provider regarding the detrimental home environment
she established for her children,” and mother would be “made to address her negligent
attitude in regard to drugs and their impact on her children‟s safety.” But the sustained
allegations that mother‟s substance abuse endangered A.C. adequately inform her


                                              13
treatment provider in this respect. We fail to see how the (b)(1) allegations would
significantly change mother‟s treatment plan, and DCFS does not attempt to explain this.
Because any order we enter will have no practical effect on the dependency proceeding,
thereby precluding a grant of effective relief, we find DCFS‟s appeal to be nonjusticiable.
(In re I.A., supra, 201 Cal.App.4th at p. 1491.)
       Even were we to consider the merits of DCFS‟s appeal, we would find substantial
evidence supported the court‟s dismissal of the (b)(1) allegations. Those allegations
stated that mother “left the children in the care of the children‟s maternal aunt” Marissa
and “maternal aunt‟s male companion Adam” when mother was incarcerated. But it was
undisputed that mother left A.C. and his brother in Agustina‟s care. DCFS did not appear
to believe they were at risk in Agustina‟s care, insofar as it recommended to the court that
they remain with her.
                                     DISPOSITION
       DCFS‟s appeal is dismissed. The judgment is affirmed.




                                                   FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       RUBIN, J.




                                             14
