Filed 2/29/16 In re Alexis C. CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


In re ALEXIS C. et al, Persons Coming                                B265643
Under the Juvenile Court Law.
                                                                     (Los Angeles County
___________________________________
                                                                     Super. Ct. No. DK09373)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

              Plaintiff and Respondent,

         v.

MARCOS C.,

               Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County. Annabelle
G. Cortez, Judge. Reversed.
         Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Mary C. Wickham, County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and
Respondent.
                                                     __________
       Marcos (Father) appeals1 from the order of the juvenile court asserting
jurisdiction over his four daughters under Welfare and Institutions Code section 300,
subdivisions (a), (b) and (j).2 There being no evidence that the children are at risk of
serious physical harm, the order is reversed.
                           FACTS AND PROCEEDING BELOW
       Alexis (age 15), Marissa (age 14), V. (age 13) and Melanie (age 3), came to the
attention of the Department of Children and Family Services (DCFS) in December
of 2014, when a friend of Marissa’s reported to the school that Marissa had bruises on the
front and back of her thigh, which the friend observed while they were changing for
physical education class. When questioned by the school, Marissa stated that, on
December 13, 2014, she and Father had argued over Marissa’s refusal to help clean the
house. Father requested that Marissa give him her cellular phone as a consequence for
her disrespectful behavior. Marissa refused, and Father lost his temper, hitting her with
his hand on her mouth and a belt on her thigh. Marissa explained that this was the first
time Father had hit her.
       On December 15, 2014, a DCFS children’s social worker (CSW) privately
interviewed each of the children, Father and Vanessa (Mother) at their home. Marissa
confirmed her previous report to school authorities and reiterated that Father’s use of
violence was an isolated incident. Alexis confirmed Marissa’s account of the event. V.,
who was in the kitchen at the time of the incident, did not witness the argument, but
remembered Marissa talking back to Father and Father hitting her legs. V. stated that,
prior to this incident, Father had never hit any of the children with a belt. The CSW was
unable to interview Melanie due to her young age, but noted that Melanie showed no
signs of abuse or distress.
       Mother was in the restroom at the time of the incident, but stated that when she
came out, she told Father to stop and asked him to leave the home to “let everything . . .


1
       The children’s mother is not a party to this appeal.
2
       All statutory references are to the Welfare and Institutions Code.

                                                2
cool down,” which he did. Father confirmed the argument with Marissa, and noted this
was the first time he hit any of his children with a belt. The parents were cooperative and
agreed to a safety plan whereby they would not engage in corporal punishment, they
would enroll Marissa in counseling, and Father would enroll in a parenting course.
       After the initial interviews, as the DCFS investigation continued, Father admitted
to having a criminal history3 and using methamphetamine in the past. Father agreed
to drug testing, but failed to show up for the initial test. Another test was scheduled
and, on January 12, 2015, Father tested positive for high levels of amphetamine and
methamphetamine. Father stated that he had not used drugs for three years, but had
recently relapsed. Mother stated that she was unaware of Father’s recent drug use,
explaining that he never used drugs at home or around his family and she had not noticed
any suspicious behavior on his part.
       On January 23, 2015, the parents attended a DCFS team meeting, and Father
consented to leaving the home while the children remained with Mother. Father reported
that he had attended intake appointments for a parenting class and an outpatient drug
treatment program.
       At the February 3, 2015, detention hearing, the juvenile court released the children
to Mother and ordered enhancement services for Father and monitored visitation.
       In its further investigative report, DCFS re-interviewed the family members, who
confirmed their earlier reports that Father had never hit the children prior to the incident
with Marissa. The children also stated that they were unaware of Father’s drug use
before the CSW brought it to their attention in connection with this case, and had never
seen their father get drunk or use any drugs. The children missed Father and wanted him
to return home. Mother, for her part, emphasized that Father loved the children and was
committed to his family, and had never used drugs in their home or, prior to the incident
with Marissa, hit any of the children.


3
       Father had prior convictions for transporting drugs and a firearm possession, and
in 2014, he had to register as a controlled substance offender.

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       Father was also interviewed. DCFS stated that he was cooperative and remorseful
for his drug use and for hitting Marissa, and confirmed he was receiving drug treatment
services. Father tested negative on two drug tests in February and March 2015. Father
stated that he always kept any drug use or criminal activity away from his family, noting
that “I never use anything around my kids or [Mother] . . . she would never allow it and I
don’t want to do it. I stay away from the house and come home when I’m sober.”
       In March 2015, Father was diagnosed with stage two colon cancer and underwent
hospitalization and surgery. At that time, Mother notified DCFS explaining that, due to
his illness, he would miss drug tests and drug treatment therapy. Father stated that he
was “going to do what I can. We all hope I can go home so I can see the kids every day,
and we can be together again.” DCFS recommended in its report that Father be permitted
to return to the family home.
       On May 7, 2015, adjudication hearing, the court declared the children dependants
under section 300, subdivisions (a), (b) and (j), and permitted them to remain at home
with both parents under DCFS and juvenile court supervision with in-home services.
Father timely appealed.
                                         DISCUSSION
       The court's decision relied on three statutory grounds: (1) that Marissa “suffered,
or there is a substantial risk that [Marissa or her siblings] will suffer, serious physical
harm inflicted nonaccidentally” by Father, under section 300, subdivision (a); (2) that the
children have “suffered, or there is a substantial risk that [they] 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 children under section 300, subdivision (b); and
(3) that a sibling (i.e., Marissa), “has been abused or neglected, as defined in
subdivisions (a) [or] (b) . . . and there is a substantial risk that [the other children] will be
abused or neglected, as defined in those subdivisions,” under section 300, subdivision (j).
(§ 300, subds. (a), (b) & (j), italics added.) Jurisdiction under these provisions requires a
showing that a child either suffered “serious physical harm” or was at serious risk of so
suffering. (In re D.M. (2015) 242 Cal.App.4th 634, 639-640.)

                                                4
       Respondent contends that Father’s drug use and the incident of Father hitting
Marissa during their argument on December 13, 2014 support the court’s decision.
We disagree.
       The record lacks any evidence that Marissa or her siblings suffered, or were at
risk of suffering, any physical harm as the result of Father’s use of illegal drugs.4 We
have repeatedly held that a parent’s use of drugs alone does not bring a minor within
the jurisdiction of the dependency court. (In re Destiny S. (2012) 210 Cal.App.4th
999, 1003.) (See also In re Rocco M. (1991) 1 Cal.App.4th 814, 817, 825–826 [mother’s
cocaine use standing alone was not sufficient basis for jurisdiction under section 300,
subdivision (b)]; In re Jeannette S. (1979) 94 Cal.App.3d 52, 59, fn. 2 [father’s
alcoholism alone did not support jurisdiction under section 300, subdivision (b)].)
       Instead, the DCFS must present evidence of a specific, non-speculative and
substantial risk to a child or her siblings of serious physical harm as a result of a
parent’s drug use. (In re David M. (2005) 134 Cal.App.4th 822, 830 [jurisdiction under
section 300, subdivision (b), reversed where mother had continuing substance abuse
problem, but there was no evidence of a specific, defined risk of harm from mother’s
substance abuse].) Here, the DCFS has failed to do so. Indeed, the record demonstrates
that the children and Mother had no knowledge of Father’s drug use, saw no evidence of
any drug use, and, other than the isolated incident with Marissa, Father was a loving and
responsible parent.
       Similarly, a jurisdictional finding cannot be based on Father’s single, isolated
incident of hitting Marissa. (See, e.g., In re J.N. (2010) 181 Cal.App.4th 1010, 1023
[holding that dependency jurisdiction cannot be based upon a single incident resulting in
physical harm absent current risk]; In re Isabella F. (2014) 226 Cal.App.4th 128, 131
[holding that dependency jurisdiction could not be based on a single incident of mother
hitting daughter in the face, grabbing her by the neck and locking her in the bathroom].)

4
      Similarly, the record lacks any evidence that the children suffered any harm
based on Mother or Father’s failure to supervise or protect them under section 300,
subdivision (b).

                                              5
DCFS failed to demonstrate that Father presented any current or future risk to his
children. Father took full responsibility for the isolated incident of hitting Marissa,
agreed to attend therapy and expressed remorse for hitting his daughter. As the court
itself noted, Father has “taken full responsibility in terms of the incident, and he’s . . .
open to learning skills and doing things differently.”

                                       DISPOSITION
       The court’s jurisdictional order is reversed.
       NOT TO BE PUBLISHED.




                                                           ROTHSCHILD, P. J.
We concur:




                      CHANEY, J.




                      LUI, J.




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