Filed 4/17/14 In re A.D. CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO

In re A.D., a Person Coming Under the                                B249609
Juvenile Court Law.                                                  (Los Angeles County
                                                                     Super. Ct. No. CK96458)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Appellant,

         v.

LETICIA L. et al.,

         Defendants and Respondents.


         APPEAL from an order of the Superior Court of Los Angeles County. Stephen
Marpet, Commissioner Presiding. Affirmed.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
William D. Thetford, Deputy County Counsel for Plaintiff and Appellant.
         Marissa Coffey, under appointment by the Court of Appeal, for Defendant and
Respondent Leticia L.
         Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant
and Respondent Jesse L.
                                                     *******
       The Los Angeles County Department of Children and Family Services
(Department) appeals from an order dismissing a petition filed in accordance with
Welfare and Institutions Code section 300, subdivision (b)1 after Jesse L. (Father) while
driving under the influence of alcohol was involved in an automobile accident that
injured his children. We affirm. Substantial evidence supported the juvenile court’s
determination that the children were not at a current risk of harm at the time of
adjudication.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Leticia L. (Mother) and Father are the married biological parents of Aliza born in
2005 and Ariel born in 2007; Father is the stepfather of Angel born to Mother in 2000.
The family came to the Department’s attention early in the morning of November 11,
2012 when Father was arrested for suspected driving under the influence and charged
with violating Penal Code section 273A (child endangerment). Mother was later arrested
and charged as well.
       The family had attended a niece’s Quinceanera on Saturday November 10, 2012.
Mother and Father reported they drank approximately two to four four-ounce cups of
beer around 5:00 p.m. and then ate a large meal at 8:00 p.m. The family left the party at
about 12:30 a.m. and Mother believed Father was capable of driving. Father, a truck
driver, had not slept for two days, and Mother and he believed he fell asleep at the wheel
before he crashed into a parked car. After police arrived, the family was transported to
the Los Angeles County/USC Medical Center Emergency Department.
       Angel suffered a skull fracture and required emergency surgery to relieve the
pressure on his brain caused by internal bleeding. He remained stable after surgery.
Aliza and Ariel were also injured but released from the hospital within hours. Aliza
stated she was wearing her seatbelt at the time of the accident. She sustained some
bruising above her eyebrow, while Ariel sustained cuts on her lips that did not require
stitches.

1       Unless otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.

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       Relatives who arrived at the hospital uniformly stated neither Mother nor Father
was ever neglectful of or abusive toward the children.
       On November 15, 2012, the Department filed a section 300 petition alleging
pursuant to subdivision (b) that Mother and Father placed the children at risk when
“father drove a vehicle while [he] was under the influence of alcohol while the children
were passengers in the vehicle, resulting in a vehicle collision” and in injuries to the
children (paragraph b-1), and that Father was a current abuser of alcohol, rendering him
unable to provide regular care for and supervision of the children (paragraph b-2). The
juvenile court found a prima facie case for detaining the children. Angel remained
hospitalized and, shortly after the hearing, Aliza and Ariel were placed with relatives.
The Department was directed to provide family reunification services to Mother and
Father, including random drug testing.
       On November 27, 2012, the Department submitted a copy of the police report as
well as the results of Father’s blood test after the accident showing a blood-alcohol level
of .11. According to the police report, when officers arrived Mother was sitting on the
curb with Aliza and Ariel, a third party was on the ground with Angel applying pressure
to his head to try to stop the bleeding, and Father was leaning against a fence drinking
from a bottle of water. Officers asked him to stop drinking and he complied; he picked
up the bottle once again but complied when officers reiterated their request. Father
initially stated that Mother was driving, but admitted he was the driver after officers
advised him that his head injury was consistent with marks on the windshield. He stated
he must have fallen asleep. Officers observed that Father exhibited symptoms consistent
with alcohol intoxication—including bloodshot/watery eyes, slurred speech, an unsteady
gait and an odor of alcohol—and Father admitted he had “‘a lot to drink.’”
       Mother stated that she and Father had about four beers each earlier in the evening.
When asked why the two younger children were not in car seats, Mother first responded
that she thought they were old enough to be out of them and later stated the seats were in
her other car. Officers reported that Mother also exhibited symptoms consistent with
alcohol intoxication. An officer who accompanied the family to the hospital heard

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Mother yelling at Father, “Angel is having brain surgery because of you, I hate you, I
hate you, I hate you!”
       According to the Department’s January 2013 jurisdiction/disposition report, on
November 23, 2012, Angel had been transferred to Rancho Los Amigos for rehabilitation
and was released to his biological father (A.D.) in December 2012. Due to the
circumstances of the case, Father had lost his job, and Mother and he had since become
homeless and were residing with various relatives. The Department interviewed all three
children for the report. Angel blamed Mother and Father for the accident, stating that he
saw Father drinking at the party, Father should not have driven, and he fell asleep and
crashed. He was also angry at Mother for letting Father drive because she knew he had
not slept. Angel stated he was not the same after the accident, noting that he had a scar
and trouble balancing, and added that Father needed to “pay” for what he had done.
Though Angel admitted taking off his own seatbelt because he wanted to sleep
comfortably, he blamed his injuries on Father’s conduct and not his lack of a seatbelt. He
was content residing with A.D. Mother noted that A.D. had not been involved with
Angel for the past three years, and she was concerned that he encouraged Angel to blame
Mother and Father for his current circumstances.
       Angel further stated that Father did not drink every day, explaining “he drinks
mostly on the weekend or when we go[] to a party, but he has driven us around while he
was buzzed. I know he is buzzed because I could smell the alcohol on his breath, and I
could see he acts a little more relaxed. He doesn’t get drunk he gets mostly buzzed. The
difference between being buzzed and being drunk is that when you are buzzed you are
drinking and you could still do things but you look a little more slow and relaxed and
when you are drunk you have trouble walking and you talk funny or like doesn’t make
sense.” He said Father is generally buzzed and not drunk when he drinks, and Mother is
aware that he drives while he is “buzzed.” He knew the brands of beer that Mother and
Father preferred.
       Aliza knew her parents were drinking beer at the Quinceanera and stated that the
car crashed because Father fell asleep. She said the incident was scary, but they were all

                                             4
“okay now.” She said that sometimes her Father would drink beer and then drive, but not
all the time. He drank beer primarily on the weekends, and she did not like it when he
drank beer because it is not good for him. Ariel reiterated that Father fell asleep while
driving. She added that Father drinks out of brown bottles even though she has told him
not to drink because it is not good for him. She said Father did not drink every day,
“‘just sometimes.’” Aliza and Ariel wanted to reside with Mother and Father.
       Father stated that he had been up since 10:30 a.m. on the Friday preceding the
Saturday party, and that he made the mistake of drinking before driving. He did not feel
as if he were unable to drive and would never have put his children in danger. He stated
he drinks only during the weekends and at parties. Mother attributed the accident to
Father’s lack of sleep and denied that Father had any problem with alcohol.
       Angel’s coach and teacher stated that he had known the family for two years and
characterized Mother and Father as involved and interested parents who were affectionate
and patient with their children. He had no concerns about Father showing up intoxicated
at a game and never observed anything to make him suspect Father had a drinking
problem. He added that the community was divided after the accident: “‘Those who
know them [Mother and Father] well know that they would never put their children in
harm’s way and those who don’t are spreading rumors and it’s unfortunate.’” Both the
maternal and paternal grandmothers said Mother and Father are good parents, and neither
had concerns about Father’s drinking. The paternal aunt who hosted the Quinceanera
stated she intentionally served beer out of four-ounce cups to avoid guests drinking
excessively. She saw Mother and Father eat a large meal and they did not appear drunk
or unable to drive when they left around midnight. She said Mother and Father were
“‘great parents.’”
       Mother had been visiting almost daily with Aliza and Ariel, and approximately
three times per week with Angel, who sought less frequent visitation because his visits
with Mother reminded him of the accident. Father had been unable to visit because of an
order in his criminal case. Mother and Father submitted four blood tests in December
2012 that came back negative for both drugs and alcohol.

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       Though acknowledging the family’s positive aspects, the Department was
concerned about Father’s blood-alcohol level on the night of the accident, the children’s
knowledge about Mother’s and Father’s’ drinking and the parents’ “permissive views”
about drinking and driving. In a supplemental report submitted in March 2013, the
Department reported that both Mother and Father were visiting all of the children
regularly, though Angel continued to have mixed emotions about his visits with Mother.
Mother and Father had been attending parenting classes and were scheduled to complete
them on March 18, 2013. They had recently enrolled in individual counseling and Father
was attending a substance abuse program. In addition, Mother and Father had submitted
eight additional negative tests for drugs and alcohol. Several individuals also submitted
letters on Father’s behalf.
       At the adjudication hearing, the juvenile court admitted the Department’s reports
into evidence and heard argument from counsel. The Department argued the section 300
petition should be sustained as pled, counsel for the children asked that only paragraph b-
1 be sustained, and Mother’s and Father’s counsel requested that the petition be
dismissed. Though acknowledging that a serious injury had occurred as a result of
Father’s driving while under the influence, the juvenile court found no evidence of a
current risk of harm. It explained that the car accident “seems to be a single incident.
And Father has been testing clean since this matter happened. Mother has been testing
clean. And I don’t see a current risk under the applicable cases that are before the court.”
Summarizing, the juvenile court stated: “[A]ll the evidence today points to a single
horrible incident that caused serious, serious injuries, especially to one of his children but
I see no current risk today.” Consequently, the juvenile court dismissed the petition.
       The Department appealed.
                                          DISCUSSION
       The Department maintains the juvenile court should not have dismissed the
petition because the undisputed evidence established the children were persons as
described in section 300, subdivision (b). We disagree. Substantial evidence supported
the order of dismissal.

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I.     Applicable Legal Principles and Standard of Review.
       The Department bears the burden of proving by a preponderance of evidence the
juvenile court has jurisdiction. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)
Section 300, subdivision (b) permits the juvenile court to adjudge a child a dependent of
the juvenile court where “[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 . . . .” A true
finding under that subdivision requires proof of: “(1) neglectful conduct by the parent in
one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness' to the
minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1
Cal.App.4th 814, 820.) “The third 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.” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396; accord, In re J.O.
(2009) 178 Cal.App.4th 139, 152; In re James R. (2009) 176 Cal.App.4th 129, 137; In re
David M. (2005) 134 Cal.App.4th 822, 829.) As summarized in In re J.N. (2010) 181
Cal.App.4th 1010, 1023, “the consensus of the courts . . . has been that a court cannot
exercise dependency jurisdiction under this subdivision where the evidence shows a lack
of current risk. [Citations.]”
       We review the juvenile court’s jurisdictional findings under the substantial
evidence test. (In re B.T. (2011) 193 Cal.App.4th 685, 691; In re David M., supra, 134
Cal.App.4th at p. 828.) In determining whether there is substantial evidence, “‘“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 I.J. (2013) 56 Cal.4th 766, 773.) We will uphold the juvenile court’s
finding if it is supported by substantial evidence, even if there is substantial evidence to
support a contrary finding. (In re Dakota H. (2005) 132 Cal.App.4th 212, 230; accord, In
re Stephen W. (1990) 221 Cal.App.3d 629, 644, fn. 12.) “The appellant has the burden of



                                               7
showing there is no evidence of a sufficiently substantial nature to support the findings or
order. [Citation.]” (In re T.W. (2013) 214 Cal.App.4th 1154, 1162.)
II.    Substantial Evidence Supported the Juvenile Court’s Dismissing the Section
300 Petition.
       In paragraph b-1, the section 300 petition alleged that Mother and Father placed
the children in an endangering situation when, with the children as passengers, Father
drove a vehicle while under the influence of alcohol and collided with a parked car, and
further alleged that “[s]uch a detrimental and endangering situation established for the
children by [mother and Father] endangers the children’s physical health and safety and
places the children at risk of physical harm, damage, danger and death.” Paragraph b-2
alleged that Father was an abuser of alcohol and that “[s]uch alcohol abuse by [Father],
and [Mother’s] failure to protect the children, endangers the children’s physical health
and safety and places the children at risk of physical harm, damage and danger.”
       The juvenile court concluded that while the evidence showed a serious injury had
occurred as a result of Father’s driving under the influence, the evidence further
demonstrated this was an isolated incident; therefore, the Department failed to meet its
burden to show that incident placed the children at a current risk of harm. Substantial
evidence supported the juvenile court’s determination. As the court noted, the
Department offered no evidence to show that Father had a history of driving under the
influence and no evidence to show Father had previously been involved in any alcohol-
related incidents. Moreover, Mother and Father had taken responsibility for their actions,
with Father having enrolled in a substance abuse program and both having completed a
parenting course and submitted multiple clean random drug and alcohol tests. In short, it
found no evidence to support a finding that the children remained at risk at the time of the
hearing.
       As explained in In re J.N., supra, 181 Cal.App.4th at page 1022, “‘[t]he basic
question under section 300 is whether circumstances at the time of the hearing subject the
minor to the defined risk of harm.’ [Citation.]” (Accord, In re Carlos T. (2009) 174
Cal.App.4th 795, 803 [“dependency jurisdiction is not warranted under [section 300]

                                             8
subdivision (b) if, at the time of the jurisdiction hearing, there no longer is a substantial
risk that the child will suffer harm”].) In re J.N. is particularly instructive, as the
circumstances in that case which led to Department intervention mirror those presented
here. There, a father was driving his three young children when he struck another vehicle
and then struck a light pole when trying to flee the scene. When police arrived, the father
admitted to drinking six beers, and he exhibited symptoms of being under the influence
of alcohol; a blood test revealed he had a blood-alcohol level of .20. The mother who
was a passenger in the car likewise exhibited symptoms consistent with intoxication and
had a blood-alcohol level of .11. She was belligerent with police officers. The children,
one of whom was not wearing a seatbelt, suffered injuries and were later treated at a
hospital. (In re J.N., supra, at pp. 1015-1017.)
       The father and mother were arrested, and the Department filed a petition under
section 300, subdivision (b). The mother later pleaded no contest to two misdemeanors
and the father remained incarcerated. They both acknowledged their mistake in drinking
and driving. The father later admitted to drinking nine beers before the accident. The
children stated that their parents drank once in awhile and they wanted to be reunited
with them. (In re J.N., supra, 181 Cal.App.4th at pp. 1017-1020.) The juvenile court
sustained the dependency petition finding that the severity of the single incident—
including the level of the father’s alcohol consumption and his poor judgment, coupled
with the mother’s failure to protect—was sufficient for it to find a current risk of harm.
(Id. at p. 1021.)
       The Court of Appeal reversed. Finding that evidence of a current risk of serious
physical harm is necessary to assume jurisdiction over a child, the court determined:
“Despite the profound seriousness of the parents’ endangering conduct on the one
occasion in this case, there was no evidence from which to infer there is a substantial risk
such behavior will recur.” (In re J.N., supra, 181 Cal.App.4th at p. 1026.) The court
found no evidence to show that the father’s or mother’s past alcohol consumption was
likely to lead to alcohol abuse in the future, and no evidence to show that either parent’s
general judgment or understanding of the risks of alcohol was so deficient so as to place

                                               9
the children at risk. (Ibid.) To the contrary, “[t]he evidence consistently indicated that
the children were healthy, well adjusted, well cared for, bonded with each other, and
developing appropriately. While it is a valid concern that the TSR [treatment status
report] evaluator in this case thought mother seemed to minimize her and her husband’s
alcohol use and the ramifications of alcohol use, by the time of the
jurisdiction/disposition hearing, the criminal court had ordered mother to complete
substance abuse and parenting programs and placed her under probation supervision.
Significantly, both parents were remorseful, loving, and indicated that they were willing
to learn from their mistakes.” (Ibid.)
       The evidence here was no different. Father drove a vehicle while under the
influence of alcohol and his collision with another vehicle resulted in injuries to his and
Mother’s three children. Though Mother and Father initially tried to minimize and even
conceal the nature of their conduct, they later expressed remorse about their actions and
took steps to insure there was no recurrence—including participating in parenting classes,
substance abuse classes, counseling and random drug and alcohol testing. There was no
evidence to show that Mother’s or Father’s alcohol consumption had ever previously
endangered the children or resulted in law enforcement intervention. The undisputed
evidence showed that the children were well-cared for and that others who knew the
family uniformly reported that the parents were caring and loving, and actively involved
in their children’s lives. Even the Department’s services worker opined “the parents are
good and caring parents who made a bad choice and . . . the children should reunify with
the parents as soon as possible.”
       We find no merit to the Department’s argument that these circumstances are
instead governed by In re J.K. (2009) 174 Cal.App.4th 1426, a case expressly
distinguished in In re J.N., supra, 181 Cal.App.4th at pages 1023-1024. In In re J.K., the
appellate court affirmed a jurisdictional finding on the basis of evidence that a few years
earlier the father had raped the child and struck her so hard that he dislocated her




                                             10
shoulder, and that the mother had continued to permit the child to visit the father after
learning about the incidents. (In re J.K., supra, 174 Cal.App.4th at pp. 1429-1430.) The
court rejected the father’s argument that the jurisdictional findings should be reversed
because there was no evidence of a current risk of harm, finding both that section 300 did
not require a finding of current risk where serious physical injuries had occurred and that
the evidence established a current risk. (Id. at pp. 1434-1440.) In connection with its
interpretation of the statute, the court concluded “that a showing of prior physical or
sexual abuse is sufficient to support the initial exercise of jurisdiction under section 300,
subdivisions (a), (b) and (d) . . . .” (In re J.K., supra, at p. 1439.) With respect to the
child’s current and future risk of harm, the court observed that the father continued to
minimize the severity of his abuse and neither he nor mother had taken any steps to
address their prior behavior. (Id. at pp. 1439-1440.) Thus, the evidence supported the
conclusion that the child remained at risk of harm. (Id. at p. 1440.) In re J.K. has no
application here, both because there was no showing that Mother or Father committed a
prior act of sexual or physical abuse and because the evidence showed that both parents
had taken affirmative steps to demonstrate that a similar incident would not recur.
       We likewise reject the Department’s alternative argument that the evidence
offered here is more egregious than that in In re J.N., supra, 181 Cal.App.4th 1010. In
that case, the court outlined the factors that a court should consider in determining
whether a prior harmful incident may be sufficient to demonstrate a current risk: “In
evaluating risk based upon a single episode of endangering conduct, a juvenile court
should consider the nature of the conduct and all surrounding circumstances. It should
also consider the present circumstances, which might include, among other things,
evidence of the parent’s current understanding of and attitude toward the past conduct
that endangered a child, or participation in educational programs, or other steps taken, by
the parent to address the problematic conduct in the interim, and probationary support
and supervision already being provided through the criminal courts that would help a




                                              11
parent avoid a recurrence of such an incident. The nature and circumstances of a single
incident of harmful or potentially harmful conduct may be sufficient, in a particular case,
to establish current risk depending upon present circumstances.” (Id. at pp. 1025-1026.)
       The Department maintains that an application of those factors established a current
risk; it points to evidence not present in In re J.N., including that the parents initially lied
about who was driving and how much alcohol they had consumed on the night of the
accident, the children stated Father drank beer every weekend, Angel discussed in great
detail the difference between being “buzzed” versus being “drunk,” and A.D. described a
Halloween party incident where the parents drank and were involved in a fight.
Construing the evidence in the light most favorable to the juvenile court’s findings (see,
e.g., In re Michael G. (1993) 19 Cal.App.4th 1674, 1676), we find no basis to disturb the
order of dismissal. Though Mother and Father initially failed to acknowledge their
behavior at the scene of the accident, they both later admitted their poor judgment and
took steps to remedy any future risk. While there was evidence that Father drank beer,
the Department bore the burden “to present evidence of a specific, non-speculative and
substantial risk to [the children] of serious physical harm” from his beer drinking. (In re
Destiny S. (2012) 210 Cal.App.4th 999, 1003.) As the juvenile court stated, the
Department offered no evidence to show the parents had been involved in any prior or
subsequent alcohol-related incidents. Further, the Department offered no evidence to
show how Angel obtained his knowledge about being buzzed versus being drunk, and
specifically no evidence that he learned the distinction from his parents. Finally, the
Department offered no time frame for the Halloween party described by A.D. and no
evidence to show from whom he “heard” Mother and Father were “wasted.”
       Because the Department failed to meet its burden to establish the children
remained at a substantial risk of serious physical harm at the time of the jurisdictional
hearing, substantial evidence supported the juvenile court’s dismissal of the dependency
petition.




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                                    DISPOSITION
      The order dismissing the section 300 petition is affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           _____________________, J. *
                                                  FERNS
We concur:




____________________________, P. J.
      BOREN


____________________________, J.
      ASHMANN-GERST




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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