Filed 2/7/19; Certified for Publication 2/28/19 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                               DIVISION EIGHT

In re L.W., a Person Coming                      B290992
Under the Juvenile Court Law.
______________________________                   (Los Angeles County
LOS ANGELES COUNTY                               Super. Ct. No. 18CCJP02446A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

        Plaintiff and Respondent,

        v.

S.Y.,

        Defendant and Appellant.


     APPEAL from orders of the Superior Court of Los Angeles
County, Kristen Byrdsong, Referee. Affirmed.

     Annie Greenleaf, under appointment by the Court of
Appeal, for Defendant and Appellant.

      Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
                    _________________________
                      INTRODUCTION
      Mother asked her physician to help her stop using cocaine.
Based on Mother’s admitted drug abuse, allegedly in front of her
13-year-old daughter, Mother’s physician referred the family to
the Department of Children and Family Services (DCFS). The
primary question presented is whether the juvenile court
correctly asserted jurisdiction over mother and daughter based on
mother’s admitted use of cocaine and a reckless driving
conviction mother sustained shortly before the dependency
proceedings commenced; the answer is yes. We therefore affirm
the juvenile court’s orders.
      FACTUAL AND PROCEDURAL BACKGROUND
      On March 16, 2018, DCFS received a referral regarding
Mother’s ongoing use of cocaine to treat her chronic body pain.
According to the referral, Mother smoked crack cocaine in her
home in front of her then 13-year-old daughter L.W., who would
complain to Mother about this conduct. The reporting party was
a physician at Kaiser Permanente, whom Mother had asked for
help in treating her drug use.
      Later that same day, a DCFS social worker went to the
family home to investigate. The social worker noted that the
home appeared clean and had all the basic necessities. L.W.’s
two adult siblings, Brittany and Brandon, also resided in the
family home in separate bedrooms. The social worker found no
drugs or drug paraphernalia in the home.




                               2
        The social worker interviewed Mother, L.W., and maternal
aunt Doris1 separately. Mother told the social worker that she
suffered from several medical problems, including chronic
sciatica and hypertensive peristalsis, a condition that causes the
esophagus to contract and made Mother feel “like she was having
a heart attack every single day.” To treat these ailments, Mother
stated she took a myriad of prescription and over-the-counter
medication, including but not limited to Norco, Valium,
Ibuprofen, and Tylenol. Mother stated she would ingest her
medication with a “shot of vodka” every day for the past year,
because the alcohol served “as a catalyst” for the drugs to take
effect.
        Mother said she started using cocaine six months prior,
after a friend suggested to her that cocaine would help with her
mobility issues. Mother continued to use cocaine because it
“helped her walk, cook, clean, and be [a] functional parent.” She
stated she generally used the drug every other day, or when she
had “money for it.” Mother denied ever using cocaine in front of
L.W. or in the family home and stated that she never kept
cocaine in the home. She said she only smoked it at her friend’s
home and that her most recent cocaine use was three days
earlier, on March 13, 2018.
        Mother explained she sought help from a doctor at Kaiser
Permanente with her medication and cocaine use, as she wished
to “cleanse her body” and “detox.” Mother told the social worker
that there was no need for DCFS intervention, as she no longer


1     Although the record reflects that maternal aunt’s name is
Doris, Appellant refers to her as “Danielle” throughout
Appellant’s opening brief.




                                3
wanted to use drugs and alcohol. The social worker requested
that Mother submit to a voluntary drug test that same day;
however, Mother refused, saying she already disclosed the drugs
and medication she used, rendering the testing unnecessary.
Mother then indicated she would be willing to test a few days
later, when “everything is flushed out of her system.” Mother
requested that the social worker keep Mother’s drug abuse
private as her family would be “very disappointed” in her if they
learned about her drug use.
       The social worker created a safety plan for Mother. As part
of this safety plan, Mother agreed to refrain from using cocaine
and alcohol and to enroll in a substance abuse program and
submit to drug tests, with the results available to DCFS. Mother
also agreed to allow L.W.’s maternal aunt Doris and adult sibling
Brittany to assist in supervising L.W.
       That same day, the social worker interviewed L.W., who
stated she felt safe with Mother and denied any concerns about
Mother’s parenting. L.W. said either she or one of her adult
siblings would assist Mother when she experienced pain as a
result of her ailments. They would bring Mother her meals
and/or medication. L.W. said she never saw Mother use drugs.
       Maternal aunt Doris was “shocked” to hear of DCFS’s
involvement and denied any concerns about Mother’s mental
health or substance use. Doris described Mother as “a great
parent to L.W.” Similarly, L.W.’s adult siblings, Brandon and
Brittany, both stated they had no concerns about Mother’s use of
drugs or alcohol and described Mother as a “good” parent who
“loves her children to [the] core.” Both Doris and Brittany stated
they helped Mother in caring for L.W. and driving her to and
from school when Mother’s ailments prevented her from doing so.




                                4
Brittany stated she is a “home body” who makes sure L.W.
showers every morning and has food or a ride to school She has
never seen Mother drinking and then driving.
       On March 19, 2018, the social worker called Mother to
follow up on the status of her drug tests, but Mother stated she
no longer wanted to submit to on-demand drug and alcohol
testing.
       On April 6, 2018, the social worker contacted Mother again,
who reported she was unable to enroll in a substance abuse
program because the program would not accommodate her
medical needs. Mother stated she would participate in an
outpatient program but had “no ride” to the class. The social
worker assessed Mother as having low insight about the safety
concerns and negative impact her substance abuse would have on
L.W., and found L.W. to be at “high risk” for general neglect. The
social worker believed Mother struggled with understanding that
her mixture of prescription drugs, cocaine, and alcohol could be
detrimental to her health, as well as the safety of L.W.
       On April 10, 2018, the social worker interviewed Father,
who lives separately and is not a party to his appeal. Father
denied any concerns of Mother’s substance use and stated he had
“never seen [M]other under the influence of any drugs or alcohol.”
Father explained that there is no family law order in place
regarding L.W. He is still “very involved” in L.W.’s life in that he
takes L.W. to school every morning and Mother picks L.W. up
from school thereafter. L.W. spends time at his house and will
have overnight visits. He explained L.W. never disclosed to him
any concerns about her mother.




                                 5
       On April 11, 2018, Mother informed the social worker by
telephone that she had not used cocaine or alcohol since the social
worker came to her home on March 16.
       DCFS then learned of Mother’s criminal history spanning
from 1993 until as recently as late 2017. In October 2017, six
months before the DCFS referral, Mother was arrested and
charged with driving under the influence (DUI) of alcohol and
reckless driving. As a result, she was convicted of reckless
driving. Six months earlier, in March 2017, Mother had been
arrested and charged with another DUI and convicted of an
unknown misdemeanor offense. In 2013, she was arrested for
possession of paraphernalia and battery on a police officer; she
was convicted of the latter charge. In 2005, she was convicted of
disturbing the peace. In 1996 and 1997, she successfully
completed diversion after being charged for possession of
controlled substances. In 1993, she was charged with resisting
arrest and convicted of presenting false identification to a peace
officer.
A.     The Petition
       On April 16, 2018, DCFS filed a petition alleging L.W. came
within the jurisdiction of the juvenile court under section 300,
subdivision (b)(1) of the Welfare & Institutions Code.2 The
petition alleged that Mother is a “current abuser” of cocaine and
a “frequent user” of alcohol with prescription medication,
rendering Mother “incapable of providing regular care and
supervision” of L.W. and placed L.W. at risk of danger and
serious physical harm. The petition also alleged that in 2018,


2     All further references are to the Welfare and Institutions
Code, unless otherwise indicated.




                                6
Mother was under the influence of illicit drugs, alcohol, and
prescription medication while L.W. was in Mother’s care and
supervision.
      DCFS filed the detention report on April 17, 2018 and
requested court services for Mother to ensure she followed up
with treating her substance abuse and to ensure L.W.’s safety.
      On April 17, 2018, both Mother and non-offending Father
appeared at the detention hearing. Mother denied the
allegations on the petition. The court found a prima facie
showing had been made that L.W. was a minor described by
section 300, subdivision (b)(1). The court found it would be
detrimental to the child not to be subject to DCFS supervision,
but found several measures could be put in place so that L.W.
need not be removed from Mother’s custody, as Mother “has been
very forthcoming and wants to receive the necessary help.” The
court ordered DCFS to make frequent unannounced home visits
and ordered Mother to submit to on-demand testing. Mother
indicated she was “in talks” with the House of Uhuru, an
outpatient substance abuse program. The court ordered DCFS to
provide referrals to Mother for additional outpatient substance
abuse programs.
      After the April 17 detention hearing, DCFS continued to
supervise Mother. On May 4, 2018, Mother’s toxicology results
tested positive for cocaine.
      On May 15, 2018, the social worker interviewed Mother
again. Mother stated that she last “used cocaine about 8 months
ago.” Mother provided the social worker with prescriptions for
her medication, except for three that she was unable to locate.
Mother stated she had previously smoked “a marijuana joint
laced with cocaine.” The social worker asked Mother how often




                               7
she used cocaine, and Mother said she “only did it 3 times” but
never in the home or in L.W.’s presence.
       On May 29, 2018, DCFS spoke with a social worker with
Kaiser Permanente, who stated Mother disclosed to her physician
that she was a regular user of cocaine. When asked how often
she used cocaine, Mother had told the Kaiser Permanente social
worker that she used cocaine “daily,” and that she often used
cocaine in the family room in L.W.’s presence. Mother’s medical
records indicated she had been using illicit drugs for the past two
years.
       On May 31, 2018, the social worker learned that Mother
failed to enroll in the substance abuse program at the House of
Uhuru and had not participated in the scheduled intake.
B.     Adjudication
       During the combined jurisdictional and disposition hearing
on June 28, 2018, the court received into evidence the detention
report, filed April 17, 2018, and the jurisdictional/disposition
report dated June 11, 2018. The court also took judicial notice of
all prior orders and findings.
       Mother requested the court dismiss the dependency
petition for a “lack of evidence” and “lack of nexus” between
Mother’s “substance use and any kind of neglect or abuse of the
child.” She argued there is “absolutely no evidence, whatsoever,
to indicate that this child has or will ever be at risk of any abuse
or neglect.” Further, Mother contended there was nothing in the
record to suggest that L.W. was being neglected or abused in any
way; in fact, L.W. was “doing well” in school, did not have any
“attendance problems,” and L.W. herself reported to DCFS that
Mother always takes care of her, and cleans and cooks “almost
every night.” Mother alluded to the fact that there was “full




                                 8
family support” in helping care for L.W. and/or taking L.W. to
and from school.
       DCFS and minor’s counsel both asked the court to sustain
the petition as alleged. DCFS stated its “strongest evidence”
against Mother was Mother’s “self-report of daily cocaine use.”
DCFS argued the “fact that [Mother’s] family doesn’t or didn’t
know about her cocaine use on a daily basis in and of itself is
concerning because it shows that she’s a functioning drug
abuser.” Based on Mother’s previous drug-related arrest, a DUI,
her daily use of various drugs, and her driving L.W. to and from
school, DCFS believed there was a substantial nexus between
Mother’s substance abuse and the risk of harm to L.W.
       Minor’s counsel reminded the court that Mother continued
to test positive for cocaine even after Mother knew of DCFS’s
ongoing investigation and even after the detention proceedings
were held. Minor’s counsel argued that Mother’s substance
abuse, her “changing story as to her cocaine use,” and her taking
“shot[s] of vodka . . . as a catalyst” along with cocaine and
prescribed medication put L.W. at substantial risk of serious
harm. Minor’s counsel stated that Mother was using an illicit
drug that has “addictive qualities and makes a person act
irrationally if . . . they take too much of it,” and that Mother’s
addiction could put L.W. “at risk” at any point.
       The court found by a preponderance of the evidence that
the section 300(b)(1) count was true as alleged and that L.W. was
a person described by section 300, subdivision (b)(1). The court
found by clear and convincing evidence that L.W. could remain in
the home of Mother “on the condition that Mother comply with




                                9
the case plan.”3 The court stated, “Given that [Mother] had a
positive test after detention and given there’s conflicting stories
of [Mother’s] drug use, I think [Mother] really do[es] need a full
[drug and alcohol] program to address this issue and get [Mother]
the help [she] need[s] so [she] can be the kind of mom that I’m
sure [Mother] want[s] to be.”
      Mother timely appealed.
                         DISCUSSION
       Mother contends the evidence does not support the juvenile
court’s exercise of jurisdiction over L.W. on the ground that
Mother’s substance abuse caused or will cause a substantial risk
of harm to L.W. Mother also contends the juvenile court abused
its discretion when it declared L.W. a dependent of the court
rather than ordering informal supervision of the family.
A.     Substantial Evidence Supports the Juvenile Court’s
       Jurisdictional Finding.
       In reviewing a challenge to the sufficiency of the evidence
supporting jurisdictional findings and related dispositional
orders, we “consider the entire record to determine whether
substantial evidence supports the juvenile court’s findings.”
(In re T.V. (2013) 217 Cal.App.4th 126, 133; accord, In re I.J.
(2013) 56 Cal.4th 766, 773.) “Substantial evidence is evidence
that is ‘reasonable, credible, and of solid value’; such that a
reasonable trier of fact could make such findings. [Citation.]”
(In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)


3     The record does not contain the juvenile court’s case plan.
We understand the case plan ordered by the court to be the same
as the one recommended by DCFS in the jurisdictional report.




                                10
       Section 300, subdivision (b)(1), authorizes a juvenile court
to exercise dependency jurisdiction over a child if the “child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or
inability of his or her parent . . . to adequately supervise or
protect the child, or . . . by the inability of the parent . . . to
provide regular care for the child due to the parent’s . . . mental
illness, developmental disability, or substance abuse.” (§ 300,
subd. (b)(1).) A jurisdictional finding under section 300,
subdivision (b)(1), requires DCFS to demonstrate the following
three elements by a preponderance of the evidence: (1) neglectful
conduct, failure, or inability by the parent; (2) causation; and
(3) serious physical harm or illness or a substantial risk of
serious physical harm or illness. (In re Joaquin C. (2017)
15 Cal.App.5th 537, 561; see also In re R.T. (2017) 3 Cal.5th
622, 624.)
       It is undisputed that there was no evidence of and no
specific finding of past harm to L.W. as a result of Mother’s
substance abuse. L.W. stated she never saw any drugs or
paraphernalia at home, never saw Mother abuse drugs and felt
safe living with her Mother. She was well-fed, groomed, and
regularly attended school. All percipient witnesses and family
members agreed Mother was a good parent to L.W. and all denied
having concerns about Mother’s abilities as a mother. While not
denying her substance abuse, Mother argues there is no nexus
between it and any substantial risk of harm to L.W. There was
“no reason to believe the family was unable to handle Mother’s
substance abuse issues as there was strong family in-home and
out-of-home support.”




                                11
       The legislature has declared, “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.” (§ 300.2.) The juvenile court
“need not wait until a child is seriously abused or injured to
assume jurisdiction and take the steps necessary to protect the
child.” (In re R.V. (2012) 208 Cal.App.4th 837, 843.)
       On the other hand, our 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. (In re Drake M. (2012) 211 Cal.App.4th 754, 769
[drug use without evidence that use has caused or will cause
physical harm insufficient to support jurisdiction]; Jennifer A. v.
Superior Court (2004) 117 Cal.App.4th 1322, 1336–1338 [DCFS
opinion that mother’s use of alcohol and marijuana did not
establish substance abuse]; In re Rebecca C. (2014)
228 Cal.App.4th 720, 728 (Rebecca C.) [substance abuse without
more is insufficient to support jurisdiction].)
       Rebecca C. is instructive as the facts are strikingly similar
to the facts before us. Upon investigation of the referral that
Rebecca’s parents were using drugs and that the home was filled
with guns and drugs, DCFS found nothing other than mother’s
lengthy and current drug abuse and Rebecca’s below grade level
or nonexistent school performance. (Rebecca C., supra,
228 Cal.App.4th at pp. 722–724.) Mother had a lengthy history of
drug use since her teenage years currently used
methamphetamine, which she alternately denied and admitted.
(Ibid.) She tested positive for methamphetamine, amphetamine,
and marijuana on the day the social workers responded to the
referral. (Id. at p. 722.) She had been involved in the criminal




                                12
court dependency court systems in the past as a result of her
drug use. (Ibid.) She had previously enrolled in a drug program
and relapsed. (Id. at pp. 722–723.) She rationalized her drug use
as being due to the stress she was feeling as she had recently
separated from Rebecca’s father and their son was charged with
murder. (Ibid.) She failed to monitor whether Rebecca was doing
her homework. (Id. at p. 722.)
       After rejecting the argument that failure to monitor
homework presents a risk of physical harm, the court addressed
the sole remaining basis for asserting jurisdiction – mother’s
substance abuse. (Rebecca C., supra, 228 Cal.App.4th at
pp. 727-728.) “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.” (Ibid.)
       This is not, however, a case involving substance abuse
without more. We believe there is substantial evidence in
addition to Mother’s substance abuse that places L.W. at
substantial risk of future harm. In the year preceding the




                               13
commencement of DCFS’s investigation, Mother was arrested
twice for driving under the influence. While the disposition of
one of the arrests is unknown, the most recent arrest was
resolved when Mother was convicted of reckless driving.
Mother’s arrests and conviction of reckless driving add a new
dimension to the analysis. They lead us to conclude the effect of
her substance abuse is not now confined to her private moments
alone. The conviction alone is evidence of substance abuse in a
situation in which it is physically hazardous to do so. That there
were two arrests and at least one conviction within a year of the
referral shows Mother’s substance abuse is now spilling over into
areas that will pose a substantial risk of physical harm to L.W.
      Mother had an opportunity to try to resolve the problem by
enrolling in drug treatment between the referral and the
combined jurisdictional/disposition hearing and did not or could
not do so. We find it reasonable to infer that the safety problems
posed by Mother’s substance abuse will continue to multiply to
Lauryn’s detriment until Mother’s substance abuse is resolved.
The recent DUI arrests and conviction for reckless driving
provide a nexus between Mother’s substance abuse and a
substantial risk of future harm to L.W.
B.    The Juvenile Court Did Not Abuse its Discretion in
      Declaring L.W. a Dependent of the Court.
      Mother contends the juvenile court erred when it declared
L.W. a dependent child because there was an available lesser
alternative to dependency—namely, an order to DCFS to provide
family maintenance services under section 360, subdivision (b).
We disagree.
      After the juvenile court finds jurisdiction pursuant to
section 300, it must “adjudicate the child a dependent unless the




                                14
severity of the case warrants nothing more than Agency’s
supervision of family maintenance services. . . . [T]he court may,
without adjudicating the child a dependent, order that services be
provided to keep the family together under the informal
supervision of the child welfare agency.” (In re N.M. (2011)
197 Cal.App.4th 159, 171.) The court has broad discretion to
determine what would best serve and protect the child’s interest
and to fashion a dispositional order in accord with this discretion.
(In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)
       We cannot reverse the court’s dispositional order absent a
clear abuse of discretion. A court exceeds the limits of legal
discretion if its determination is arbitrary, capricious or patently
absurd. The appropriate test is whether the court exceeded the
bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295,
318-319.)
       On these facts, we cannot say the juvenile court acted
arbitrarily in authorizing formal supervision of the family.
Mother gave conflicting stories about the length and extent of her
substance abuse, successfully hid her substance abuse from her
relatives so as not to disappoint them, continued to test positive
for cocaine even after the detention hearing, and had not enrolled
in a substance abuse program by the June 28, 2018 adjudication
hearing. By her own testimony, Mother’s substance abuse had
spiraled from using prescription drugs to abusing a mixture of
alcohol, prescription drugs, and cocaine. Although services had
been offered, by the time of the adjudication, she was not yet in
treatment. That the juvenile court believed formal supervision
and oversight by the court would be more efficacious than
informal family maintenance services is supported by Mother’s




                                15
unfortunate downward trajectory. We cannot find the decision
arbitrary or capricious.
                          DISPOSITION
      The juvenile court’s jurisdictional and dispositional orders
are affirmed




                                           STRATTON, J.

We concur:




             GRIMES, Acting P. J.




             RUBIN, J.





       Presiding Justice of the Court of Appeal, Second Appellate.
District, Division Five, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.




                                16
Filed 2/28/19
                      CERTIFIED FOR PUBLICATION

        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                       SECOND APPELLATE DISTRICT

                               DIVISION EIGHT

In re L.W., a Person Coming Under          B290992
the Juvenile Court Law.
___________________________________        (Los Angeles County
LOS ANGELES COUNTY                         Super. Ct. No. 18CCJP02446A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,                       ORDER CERTIFYING
                                           OPINION FOR PUBLICATION
        Plaintiff and Respondent,          [NO CHANGE IN JUDGMENT]
        v.

S.Y.,

        Defendant and Appellant.

THE COURT:
      The opinion in the above-entitled matter filed on February 7, 2019, 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.
      [There is no change in the judgment.]




__________________________________________________________________
GRIMES, Acting P. J.                STRATTON. J.                 RUBIN, J.


       Presiding Justice of the Court of Appeal, Second Appellate. District,
Division Five, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
