Filed 8/22/16 In re Tony A. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re TONY A., a Person Coming Under                                 B268843
the Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. DK13147)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

JESSICA H.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Nichelle
Blackwell, Juvenile Court Referee. Reversed.
         Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County
Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and
Respondent.
                                         ________________________
       Jessica H. appeals from the jurisdiction finding and disposition order declaring her
then three-year-old son, Tony A., a dependent of the juvenile court and removing him
from her custody after the court sustained a petition pursuant to Welfare and Institutions
Code section 300, subdivision (b),1 alleging Jessica had endangered Tony’s physical
health and safety by possessing heroin while he was in her care. We reverse.
                 FACTUAL AND PROCEDURAL BACKGROUND
       On August 30, 2015 Jessica took Tony to the state prison in Lancaster to visit her
boyfriend, Victor D. While Tony was in the play area, Jessica was observed placing
something in a candy bag and passing it to Victor, who poured it into his mouth and
drank water. As Jessica was putting more items into the candy bag, correctional officers
approached, handcuffed Victor and demanded Jessica turn over the bag. Five small
packets of heroin were found in the bag, and two packets were later recovered from
Victor. Jessica was arrested for offenses including introducing a controlled substance
into a prison (Pen. Code, § 4573.6).
       Correctional officers contacted the Los Angeles County Department of Children
and Family Services (Department) when they were unable to reach Tony’s maternal
grandmother or maternal uncle, whose names Jessica had provided. Tony was taken into
protective custody.
       The Department filed a section 300 petition on September 2, 2015 containing a
single count under subdivision (b). The petition alleged, “On 08/30/2015, the child
[Tony A.’s] mother, Jessica [H.], placed the child in a detrimental and endangering
situation in that the mother possessed heroin on her person, while the child was in the
mother’s care and supervision. On 08/30/2015, the mother was arrested for Possess
Controlled Substance/Etc. in Prison. Such a detrimental and endangering situation
established for the child by the mother endangers the child’s physical health and safety,
and places the child at risk of serious physical harm, damage and danger.”



1      Statutory references are to this code unless otherwise stated.

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         In its report for the September 2, 2015 detention hearing, the Department
summarized an interview with the maternal grandmother, Maria H., who described
Jessica as a “very caring and loving mother to her son.” Maria also said “the child loves
his mother very much.” Maria explained Jessica met Victor through an inmate pen pal
program and believed Jessica, who “ha[d] not been the same” since the suicide of Tony’s
father a few years earlier, was manipulated by Victor to bring him the drugs. The
Department social worker commented, “Mother needs psychological assessment to
determine if she is experiencing depression and low self esteem,” but nonetheless “saw
the positive side the mother has done a good job in caring for her son Tony [who] is a
well adjusted child.”2 The report also stated, “[b]ased on interviews and recent incidents
in mother’s life the potential for future risk of abuse is low,” and recommended continued
detention and placement for Tony “until mother submits to a psychological evaluation to
ensure welfare and safety of minor.” The Department suggested Maria be considered for
placement.
         At the detention hearing the court ordered Tony detained in shelter care pending
the next hearing and authorized the Department to release him to an appropriate relative.
Following a pre-release investigation the court on September 14, 2015 released Tony to
Maria.
         In its report for the jurisdiction and disposition hearing the Department advised the
court Jessica, who had pleaded no contest to introducing a controlled substance into a
prison, had been sentenced to one year in county jail with a possible early release after
four months based on good behavior. In an interview Jessica, then 28 years old, told the
Department social worker she had experimented with methamphetamine and marijuana
when she was 18 and 19 years old, but stopped using drugs because she did not like how
they made her feel. Maria confirmed that Jessica was not a current user of illegal drugs.


2      The social worker also observed Tony “appeared to be in good health and well
cared for. CSW did not observe any marks or bruises on minor [and] he was [a] very
playful and happy kid. CSW could tell he was bonded with his mother Jessica[;] he cried
for her when he was being taken away from the building.”

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Jessica expressed her desire to be with Victor when he was released from prison (he was
serving a 15-year sentence for a home invasion robbery) and said they planned to get
married.
       Testifying at the jurisdiction and disposition hearing on November 12, 2016,
Jessica described her decision to bring heroin into the prison as “the worst mistake” she
had ever made. She explained, as a single mother and sole provider for her son, she did it
because she hoped to make some money—Victor had told her he would pay her although
she did not know the amount or how he would get the money to her. She obtained the
heroin from another prisoner’s wife who lived near Jessica and drove with her to the
prison. Jessica insisted the woman, whose name she did not know, gave her the heroin
right before they went inside and Tony never had access to it. Although Jessica had
previously told the Department social worker she planned to marry Victor when he was
released from prison, she testified she no longer intended to remain in a relationship with
him because of everything she was going through with her son.
       The court sustained the section 300, subdivision (b), allegation, explaining Jessica
knew taking drugs into the prison was wrong, but did it anyway, and brought Tony with
her, “creating an emotional risk to this child. Although [Jessica] testified that the child
was in the play area, there is still an emotional risk to know she provided this drug
transportation within the prison, knowing that the possibility of being arrested and having
no one there, your child alone in the prison, that was highly inappropriate behavior.” The
court removed Tony from Jessica’s custody and placed him with his maternal
grandmother, where he was then living. The court ordered Jessica to complete
10 random drug tests and a full drug program if any tests were missed or positive, as well
as a 12-step program, parenting classes and individual counseling. It further ordered
monitored visitation at least three times per week for three hours per visit after Jessica
was released from custody. The Department was given discretion to liberalize visitation.




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                                        DISCUSSION
       1. Standard of Review and Governing Law
       “‘In reviewing a challenge to the sufficiency of the evidence supporting the
jurisdictional findings and disposition, we determine if substantial evidence, contradicted
or uncontradicted, supports them. “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.” [Citation.]
“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 I.J. (2013) 56 Cal.4th 766, 773.) We review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial evidence
such that a reasonable trier of fact could find that the order is appropriate. (Ibid.;
In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
       Section 300, subdivision (b), authorizes the court to adjudge a child a dependent of
the juvenile court if: “[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 subdivision (b) 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; accord, In re Noe F. (2013) 213 Cal.App.4th 358, 366.) “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 James R. (2009)
176 Cal.App.4th 129, 135.) Cases finding a substantial physical danger to a child “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.” (In re

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Rocco M., at p. 824.) As numerous courts have recognized, a juvenile court need not
wait until a child is seriously abused or injured to assume jurisdiction and take steps
necessary to protect the child. (See, e.g., In re Christopher R. (2014) 225 Cal.App.4th
1210, 1216; In re N.M. (2011) 197 Cal.App.4th 159, 165.)
       2. The Evidence Does Not Support the Juvenile Court’s Jurisdiction Finding
       There is no question Jessica’s decision to transport drugs into the prison for Victor
and to bring Tony with her demonstrated extraordinarily poor judgment and may have
created a risk of emotional harm to Tony, who was no doubt confused and upset when his
mother was arrested and he was taken into protective custody. However, poor parental
judgment that does not cause serious physical harm or illness or create a substantial risk
of serious physical harm or illness is simply not a basis for jurisdiction under section 300,
subdivision (b). Likewise, even under section 300, subdivision (c), a separate basis for
jurisdiction nowhere alleged in the petition, emotional harm will support dependency
jurisdiction only if there is proof “[t]he child is suffering serious emotional damage, or is
at substantial risk of suffering serious emotional damage, evidenced by severe anxiety,
depression, withdrawal, or untoward aggressive behavior toward self or others” as a
result of the conduct of the parent. The “emotional risk” to Tony that was the primary
concern of the juvenile court falls far short of meeting this elevated threshold.
       Seeking to avoid the juvenile court’s faulty explanation for its decision to exercise
jurisdiction, the Department argues Tony was placed at a substantial risk of physical
harm because Jessica allowed him in the car with a woman she did not know, who
provided her with heroin, thereby exposing the child to inherently dangerous people and a
criminal lifestyle.3 In support of this theory, which was not alleged as a basis for
subdivision (b) jurisdiction in the section 300 petition, the Department cites cases


3       During argument Tony’s attorney suggested Jessica may have brought Tony with
her to assist in the commission of the crime. This was the first time she had taken the
child with her to the prison; and, as noted in the detention report, a correctional officer
had said it was common for visitors to bring children with them when they planned to
commit crimes.

                                              6
demonstrating that drug dealers are known to keep firearms at the ready and to use them
when necessary. (See, e.g., People v. Glaser (1995) 11 Cal.4th 354, 367 [firearms are
“‘tools of the trade’” in the “‘narcotics business’”]; People v. Bland (1995) 10 Cal.4th
991, 1005 [“[d]rug dealers are known to keep guns to protect not only themselves, but
also their drugs and drug proceeds”].) The entirely speculative possibility the woman
who supplied the heroin may have also had a gun during the drive to the prison, even if
properly before the court, is not substantial evidence that Jessica’s actions created a
substantial risk of serious physical harm. Indeed, the actual transaction took place inside
of the prison where there was little to no risk of physical harm to Tony.
       Even if there had been some risk of physical harm to Tony as a result of Jessica’s
misjudgment, however, that single lapse, as egregious as it may have been, was an
insufficient basis for the court to exercise jurisdiction absent any evidence of a current
risk of serious physical harm to Tony. “‘[P]revious acts of neglect, standing alone, do not
establish a substantial risk of harm; there must be some reason beyond mere speculation
to believe they will reoccur.’” (In re J.N. (2010) 181 Cal.App.4th 1010, 1025 [although
children were injured in automobile accident in which father had driven drunk and
mother was drunk as well, no basis for jurisdiction because there was no evidence
parents, who expressed remorse and indicated they had learned from the incident, had
ongoing substance abuse problem that placed children at risk of serious physical harm];
accord, In re Rocco M., supra, 1 Cal.App.4th at p. 824; see In re James R., supra,
176 Cal.App.4th at p. 135.) “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 parent avoid a recurrence of such an incident.” (In re
J.N., at pp. 1025-1026.)

                                              7
       There was no evidence in the case at bar from which to infer Jessica would again
subject Tony to conditions potentially placing him at a substantial risk of serious physical
harm. By all accounts, Jessica was a loving and caring mother who readily admitted her
mistake; and Tony was bonded to her. Although Jessica initially had expressed her desire
to marry Victor when he was released—certainly suggesting continued bad judgment—
she shortly thereafter realized that would not be appropriate and, for the best interests of
Tony, no longer wanted to be in a relationship with Victor. Jessica had enrolled in a
12-step program before she was required by the juvenile court, had taken parenting
classes and will be on probation for several years after her release. Under these
circumstances, there simply was no basis for the exercise of juvenile court jurisdiction
over Tony.
                                      DISPOSITION
       The jurisdictional finding and disposition order are reversed.



                                                  PERLUSS, P. J.


       We concur:



              ZELON, J.



              SEGAL, J.




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