Filed 3/20/14 In re J.F. CA2/5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE


In re J.F. et al., Persons Coming Under the                          B250987
Juvenile Court Law.                                                  (Los Angeles County
                                                                     Super. Ct. No. CK99102)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

BRITTANY H.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court of Los Angeles County, Marilyn M.
Mordetzky, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
         Terrence M. Chucas, under appointment by the Court of Appeal, for Defendant
and Appellant.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
Stephen D. Watson, Deputy County Counsel for Plaintiff and Respondent.
       Appellant Brittany M. (“mother”), the mother of the minor children J.F. and J.W.,
challenges the juvenile court’s assumption of jurisdiction over her children, as well as its
decision to remove them from her home, based on its finding that her substance abuse
placed the children at substantial risk of serious bodily harm or illness. Finding no error,
we affirm the judgment.


                       FACTUAL AND PROCEDURAL SUMMARY
       J.F. (born June 2004) and J.W. (born December 2010) lived with mother and
K.W., the younger child’s (father).1 The children came to the attention of the Department
of Children and Family Services (“DCFS”) due to allegations of general neglect. A
social worker visited the family home, which was cluttered and disorganized and had no
running hot water. Mother explained that the family had been warming water on the
kitchen stove and in the microwave in order to bathe until the landlord fixed the problem.
In addition, mother and father admitted to using marijuana, but claimed that they usually
smoked it when the children were at school or day care. They both agreed to submit to
random drug testing.
       J.F. told the social worker she knew what drugs were, but had not seen them in the
house; she denied knowledge of mother or father’s use of drugs or of observing them
under the influence of any substances. Both children appeared well groomed, with no
signs of abuse.
       On August 9, 2012, mother tested positive for marijuana, and father tested positive
for both marijuana and cocaine. They agreed to participate in a voluntary family
maintenance plan. A few weeks thereafter, father moved out of the house. Mother told
the social worker they had not been getting along. By late September 2012, the hot
water was functioning.
       The social worker visited J.F.’s school on October 12, 2012, and December 10,
2012, but J.F. was not in attendance on either occasion. She also visited the family home

1
      Father did not appeal the juvenile court’s orders and thus is not a party to these
proceedings.

                                             2
on four occasions over the next few months, but no one was ever there. Mother and the
children were finally at home when the social worker visited on February 25, 2013.
Mother explained that she had been spending less time at home due to her work schedule,
as well as “having issues” with her neighbors and indicated that she had to change her
cell phone number. The social worker explained to her the importance of contacting
DCFS if the family was going to be away from the home for an extended time period.
       On November 21, 2012, DCFS met with mother and father, and they again agreed
to participate in a voluntary program consisting of parenting classes, substance abuse
counseling, on-demand drug testing, individual counseling, and psychiatric and medical
evaluations.
       Mother promised to bring the children to the social worker’s office on April 8,
2013, but failed to do so. On the same day, mother tested positive for marijuana and
cocaine. She said that her telephone had been disconnected. The social worker informed
her that the case could no longer be voluntary, and mother consented to the removal of
the children from her care. They were then taken into protective custody and placed in
foster homes.
       On April 22, 2013, DCFS filed on behalf of the children a two-count petition
under Welfare and Institutions Code2 section 300, subdivision (b). The first count
alleged that mother had a history of illicit drug use and was a current user of cocaine and
marijuana. Count one specifically alleged that mother was under the influence of drugs
in 2012 and 2013 when the children were in her care. It also alleged that while mother
was receiving remedial services from DCFS she tested positive for marijuana and
cocaine.
       At the detention hearing on April 22, 2013, the juvenile court made a prima facie
finding that the children were persons described by section 300, subdivision (b). It also
found that substantial danger existed to the physical or emotional health of the children
and there were no reasonable means to protect the children without removing them from


2
       Further statutory references are to this code.

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the care of mother and father. The children were placed in foster care pending the next
hearing. Mother and father were granted monitored visitation, and the court directed
DCFS to provide the parents with referrals for drug testing, and calendared an
adjudication hearing
       When re-interviewed by the social worker on May 9, 2013, J.F. stated that she had
never seen mother or father use drugs. She did not know what drug paraphernalia looked
like. She stated that the previous social worker told her that mother used drugs. She said
that mother “used to smoke weed,” but now smoked only cigarettes. She commented that
father (her stepfather) had raised her and they had been a family for seven years. J.F.’s
foster mother told the social worker that J.F. said her mother “used to use” drugs.
       Mother indicated that her positive cocaine test result of April 8, 2013 was due to
someone sprinkling cocaine on the marijuana she smoked. Mother stated that except for
this one time when she “unknowingly” smoked marijuana laced with cocaine, she has
never used cocaine. The social worker was able to locate J.F.’s biological father,
Maurice F., who denied knowledge of mother using illicit drugs. He had not seen his
daughter in two years.
       The second count of the petition alleges that father had a history of illicit drug use
and was a current user of cocaine and marijuana. This count specifically alleged that
father was under the influence of drugs in 2013 when he tested positive for cocaine and
marijuana. It also alleged that mother knew of father’s drug use and failed to protect the
children.
       At the detention hearing, the jurisdictional and dispositional issues were set for a
contested hearing. The juvenile court appointed a “Court Appointed Special Advocate”
or “CASA” for the children. The court also ordered DCFS to file a supplemental report
addressing mother’s and father’s drug tests. DCFS expressed the following concerns
regarding the fitness of mother to take care of the children: The parents’ long term use of
marijuana; mother allowing father to care for the children despite her agreement with
DCFS that father’s contact with the children would be monitored; the failure of either
parent to comply with the case plan or to maintain regular contact with DCFS; mother’s

                                              4
unsatisfactory drug tests results including two positive results for marijuana and one for
cocaine, three failures to appear, and an insufficient sample to test; and DCFS’s inability
to verify whether mother was participating in a drug treatment plan due to mother’s
failure to maintain contact with the Department.
       The jurisdictional and dispositional hearing commenced on August 7, 2013, and
concluded on August 13, 2013. At the conclusion of the hearing the juvenile court
sustained both counts under subdivision (b) of section 300 and removed custody of both
children from mother. It also removed custody of J.W. from father. In sustaining the
petition the juvenile court stated mother “has a history of illicit drug use and is a current
user of cocaine and marijuana, which renders the mother incapable of providing regular
care of the children. On prior occasions in 2012 and 2013, the mother was under the
influence of illicit drugs, while the children were in mother’s care and supervision. On
04/09/2013, the mother had a positive toxicology screen for cocaine and marijuana. On
08/09/2012, the mother had a positive toxicology screen for marijuana. Remedial
services failed to resolve the family’s problems, in that the mother continued to use illicit
drugs. Such illicit drug use on the part of the mother endangers the children’s physical
health and safety and places the children at risk of physical harm and damage.”
       The juvenile court found that J.F.’s presumed father, Maurice F., was a non-
offending parent, and placed J.F. with her father, who lived in the Bay Area. Maurice F.
was ordered to be present with J.F. at the six month review hearing.
       Mother was ordered to submit to random drug tests on a weekly basis, and if she
missed a drug test or tested positive for illegal drugs, she was to complete a drug
rehabilitation program. The court also ordered mother to attend counseling and to
complete a parenting class. The court ordered at least three hours per week of monitored
visits with J.F.
       An interim review hearing was scheduled so that the court could review mother’s
drug test results. The court granted DCFS discretion to release J.F. to mother prior to the
interim hearing.



                                              5
                                    ISSUES ON APPEAL
       1. The jurisdictional findings and order
       Mother argues that there was no substantial evidence presented to the juvenile
court to support a finding of jurisdiction over the children under count b-1 of the petition
based on mother’s alleged substance abuse.
       Juvenile court decisions regarding jurisdiction are reviewed under the “sufficiency
of the evidence” standard. (In re In re J. K. (2009) 174 Cal.App.4th 1426, 1433.) The
record is reviewed to determine if there was any substantial evidence presented, whether
or not contradicted, which supports the juvenile court’s decision. (In re Kristin H. (1996)
46 Cal.App.4th 1635, 1649.) All conflicts must be resolved in favor of the respondent
and all legitimate inferences indulged in to uphold the judgment, if possible. (In re
Katrina C. (1988) 201 Cal.App.3d 540, 547.) The ultimate test is whether it is reasonable
for a trier of fact to make the ruling in question in light of the whole record.
(Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652.) On appeal, the appellant
has the burden to establish the lack of sufficient evidence. (In re L.Y.L. (2002) 101
Cal.App.4th 942, 947.)
       Section 300, subdivision (b) provides that a child comes within the jurisdiction of
the juvenile court if “[t]he child has suffered, or if 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
or guardian to provide regular care for the child due to the parent’s or guardian’s mental
illness, developmental disability, or substance abuse.” (§ 300, subd. (b).) It is clear from
a reading of this statute that its purpose is not only to protect children who are currently
being neglected but also to ensure the “safety, protection, and physical and emotional
well being of children who are at risk of [such] harm.” (See § 300.2; In re Heather A.
(1996) 52 Cal.App.4th 183, 194-196.) The basic question under section 300 is whether
circumstances at the time of the hearing subject the minor to a defined risk of harm. (In
re James R. (2009) 176 Cal.App.4th 129, 135; In re Nicholas B. (2001) 88 Cal.App.4th
1126, 1134.)

                                                6
       No evidence was presented to the juvenile court at the time of the hearing to prove
that the children were then suffering from or had previously suffered “serious physical
harm or illness.” Therefore, the question presented to this reviewing court is, was
substantial evidence presented to the juvenile court to prove: (a) at the time of the
hearing, there was a “substantial risk that the children will [in the future] 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 or guardian to
provide regular care for the child, due to the parent’s or guardian’s . . . substance abuse.”
       The substance of the case DCFS presented to the juvenile court consisted of
mother’s admitted long time and heavy recreational use of marijuana (4 times per week
for 15 years); testing positive for marijuana and cocaine during the pendency of the
petition despite her agreement to stop using drugs, as well as her failure to appear at
several scheduled drug tests; and her use of marijuana in the presence of the children.
       Mother relies on In re Drake M. (2012) 211 Cal.App.4th 754 (“Drake”), to argue
that the evidence does not support a jurisdictional finding based on her drug use.
       In Drake, the appellate court reversed the jurisdictional finding as to one count of
the petition which alleged that the father, a current user of legal marijuana, was incapable
of providing regular care and proper supervision of the minor. The record established
that the minor’s father had a bona fide medical reason and a valid prescription for the use
of marijuana, never tested positive for any illicit drug other than cannabis, and never
failed to appear for any drug test appointment. He also had alternative caretakers
available to care for the child, never smoked in the home, even outside of the child’s
presence, and DCFS reported that there was plenty of food in the house and the utilities
were all working. The Drake court explained that “without more, the mere usage of
drugs by a parent is not a sufficient basis on which dependency jurisdiction can be found.
[Citations.]” (Drake, supra, 211 Cal.App.4th at pp. 764-765.) Thus, while father was a
substance user, there was no evidence he was a substance abuser.
       The facts of this case are markedly different from those in Drake. Here, mother
acknowledged a long history of recreational use of marijuana, had no valid prescription

                                               7
for the drug or medical reason to ingest it, and tested positive for cocaine and then
blamed her use of cocaine on others. J.F.’s statements that mother “used to smoke weed”
suggest that mother used the substance in her child’s present, although she denied using it
in the house. Her inability to refrain from use of the drug even while promising to do so
and facing severe consequences for failing to do so exhibits behavior which falls within
the definition of “substance abuse” contained in The American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders (4th rev. ed. 2000), that is,
“continued substance use despite having persistent or recurrent social or interpersonal
problems caused or exacerbated by the effects of the substance.” All of these factors
support the juvenile court’s conclusion that mother had a substance abuse problem which
affected her judgment, and thus her ability to adequately supervise and protect her
children. Moreover, under Drake, the fact that mother met the definition of a substance
abuser was prima facie evidence of her inability to provide regular care to J.W., who was
two years old when this case began. (Drake, supra, at p. 767.)


       2. The juvenile court’s dispositional orders
       On appeal, a removal order will be upheld if it is supported by substantial
evidence. (In re Javier G. (2006) 137 Cal.App.4th 453, 463.) The juvenile court is
empowered to remove a dependent child from the physical custody of the parent with
whom the child resided when the section 300 petition was filed, if the court finds by clear
and convincing evidence that “There is or would be substantial danger to the physical
health, safety, protection, or physical and emotional well being of the minor if the minor
were returned home, and there are no reasonable means by which the minor’s physical
health can be protected without removing the minor from the minor’s parent’s or
guardian’s physical custody. . . .”3


3
       The juvenile court’s finding was as follows: “Court finds by clear and convincing
evidence pursuant to Welfare & Institutions Code section 361(d) that there is a
substantial danger or would be if these children were returned home to the physical
custody of . . . father and . . . mother, and there are no reasonable means by which the

                                             8
       In deciding whether to remove a child from parental custody, the juvenile court is
required to determine if reasonable efforts were made to prevent or eliminate the need for
removal. (§ 361, subd. (d); In re Basilio T. (1992) 4 Cal.App.4th 155, 171.) Once
jurisdiction is established, the juvenile court is not limited to the contents of the sustained
petition when making dispositional orders, and may consider evidence beyond the
sustained petition to fashion an order consistent with the best interests of the child. (In re
Rodger H. (1991) 228 Cal.App.3d 1174, 1183.)
       Mother argues that the juvenile court should have allowed the children to remain
in her custody with a program of supervision. But, the juvenile court could not be
assured that the mother would comply with a program of supervision.4 DCFS had
previously entered into two voluntary family maintenance (“VFM”) agreements with
mother and father, but they both failed to comply with the terms thereof. Mother first
agreed to participate in a VFM on August 14, 2012, but she did not comply with the case
plan, or maintain regular contact with DCFS. Mother again agreed to a VFM plan on
November 21, 2012, but the social worker was unable to contact mother until February
25, 2013, when mother explained she had changed her cell phone number and had been
spending less time at home due to “having issues” with her neighbors. Though mother
agreed as part of the second VFM to submit to on-demand drug testing, she failed to drug
test until April 10, 2013, when she tested positive for marijuana and cocaine. She then

children’s physical or emotional needs can be protected without removing them from the
parents’ physical custody. That analysis is based on the fact that the court believes that,
given the conduct of the parents, there are no services or orders that can be put in place to
ensure that the parents will actually comply with those orders.”
4
        During the disposition hearing the Court stated in response to mother’s request for
custody of the children: “The only problem is . . . how is the court going to monitor this
if they don’t test? Here is part of the problem is the parents haven’t been cooperative. . . .
If the mother was willing to test and I could be assured that she would do that, but why
would I return the children to either of these parents if they are not going to test because
all that is going to cause is the department going out there and removing the children,
which I don’t want to do. This is not a real difficult case here. It’s just a matter of
participation and cooperation, is really what we’re looking at, and we’re not getting it.”


                                               9
failed to appear for scheduled drug tests in June and July of 2013. Thus the court
expressed its lack of confidence that mother would comply with any program of
supervision for the protection of the children required by the court as a condition to
having custody of the children. Thus, removal of the children was the only realistic
option available to the juvenile court to ensure the children’s protection.5
       In short, mother has failed to establish that the disposition order was an abuse of
the juvenile court’s discretion.


                                      DISPOSITION
       The juvenile court’s jurisdictional findings and dispositional orders are affirmed.


                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                     MINK, J.*


We concur:


TURNER, P. J.


MOSK, J.

5
       The juvenile court recognized the importance of family reunification; it stated:
“Both mother’s random and on-demand drug tests are every other week. Just in the
abundance of caution, to assure that if mother’s testing, father is testing, and everything is
looking good, I am going to make a referral to family preservation, so that referral will be
done. So if we come back in two months and everything is – and everyone is
cooperating, that we can look to liberalizing this case, and, if not, return to the parents.
Department has discretion to release to the parents prior to the next progress report date,
and the 21e will be on February 11, 2014.”
*
      Retired 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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