Filed 7/13/15 In re Isaiah A. CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR


In re ISAIAH A., a Person Coming
Under the Juvenile Court Law.

LOS ANGELES COUNTY                                                   B259438
DEPARTMENT OF CHILDREN AND                                           (Los Angeles County
FAMILY SERVICES,                                                     Super. Ct. No. DK02452)

         Plaintiff and Respondent,

         v.

JESSICA R.,

         Defendant and Appellant.


         APPEAL from orders of the Superior Court of Los Angeles County, Steven
Klaif, Juvenile Court Referee. Affirmed.
         Lori Siegel, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the County Counsel, Mark J. Saladino, County Counsel, Dawyn R.
Harrison, Assistant County Counsel and Tracey F. Dodds, Principal Deputy
County Counsel, for Plaintiff and Appellant.
      Appellant Jessica R. (Mother) appeals the juvenile court’s jurisdictional
order asserting jurisdiction over her infant son, Isaiah A., under Welfare and
Institutions Code section 300, subdivision (b) based on Mother’s substance abuse
and the risk of detriment it posed to Isaiah.1 She also appeals the dispositional
order removing Isaiah from her custody and requiring her to participate in a
substance abuse program. Mother contends substantial evidence did not support a
finding that she abused drugs after her son’s birth or that her use of drugs created a
substantial risk of serious harm. We conclude the orders were supported by
substantial evidence and affirm.


               FACTUAL AND PROCEDURAL BACKGROUND
      A. Detention
      In October 2013, the Department of Children and Family Services (DCFS)
received a referral indicating four-month old Isaiah was being neglected by
Mother. The caller stated Mother was using drugs and not properly supervising the
child. The caller described Isaiah as looking unhealthy and unclean, and said his
hair was falling out in patches.
      The caseworker contacted the maternal grandmother who said Mother and
Isaiah had been living with her since his birth.2 Approximately three weeks earlier,
Mother had taken Isaiah and moved out. The grandmother was concerned because
Mother had not taken any of the baby’s things and had used marijuana around the



1
      Undesignated statutory references are to the Welfare and Institutions Code.
2
       The grandmother said Mother often left Isaiah with her when she went out with
friends, once staying out all night. On other occasions, Mother stayed out overnight with
the baby. On one occasion, she and Isaiah were gone for three days. When they
returned, Isaiah smelled of marijuana and cigarettes and had severe diaper rash.
                                            2
baby. The grandmother described Mother as having been “indifferent” to the child
and nonresponsive to his crying. Mother was on probation at the time.3
       DCFS obtained a removal order, detaining Isaiah from Mother. However,
when the caseworker located the baby on November 13, 2013, he was residing
with his father, Robert A. (Father), who reported Mother had left the baby with
him seven weeks earlier. Father denied any current drug use, although he admitted
having used marijuana daily in the recent past. As the home was found to be safe
and clean, and there was no evidence that Father was neglecting or abusing Isaiah,
Isaiah was not detained.4
       Within a day of interviewing Father, the caseworker learned he had been
arrested for murder, along with the brother with whom he was living. The paternal
grandmother and step-grandfather had assumed custody of Isaiah per Father’s
request. Father was released within a day and all charges were dropped. However,
he was dissuaded from picking up Isaiah. The paternal grandparents expressed
concern that Father was using methamphetamine and would be unable to properly
care for the baby.5 They also expressed concern that the parents were not meeting
the child’s medical and developmental needs. Doctors present at Isaiah’s birth had
informed the parents that he seemed to be partially deaf, but the parents had never
followed up to get his hearing tested.



3
      Mother’s probation officer reported a warrant had issued for her arrest because she
had not checked in for three months.
4
       At the time, Father was living with a maternal uncle, the uncle’s wife, and the
wife’s brother.
5
       Interviewed later, both Mother and the maternal grandmother said Father was
using drugs. Father agreed to drug test, but there is no indication in the record that he
ever did.
                                              3
       On November 15, 2013, the caseworker finally was able to contact Mother,
who denied use of drugs other than marijuana and claimed to have stopped using
marijuana in November 2012. She explained she had left Isaiah with Father
because she had become homeless after leaving the maternal grandmother’s house.
She told the caseworker she did not want to be “‘an everyday mother,’” but wanted
the maternal grandmother to be given custody of Isaiah.6 Mother voluntarily
agreed to drug test, but missed two scheduled tests in November.7
       On November 25, 3013, the court ordered Isaiah detained from both parents
and vested custody with DCFS. DCFS left Isaiah with the paternal grandparents.8


       B. Jurisdiction
       Father was interviewed for the jurisdiction/disposition report at Men’s
Central Jail.9 He stated Mother had stayed for a time in a “known drug house,” and
would go out to “drink[,] . . . hang out, [and] text,” leaving the baby with the
maternal grandmother. Father said Mother had not taken good care of Isaiah, as
the child developed bad diaper rash and smelled unbathed when Mother had



6
      DCFS was unable to consider placing Isaiah with the maternal grandmother
without obtaining a waiver due to her criminal history and history with child welfare.
7
      Mother later claimed to have arrived too late to test on the first occasion and to
have been sent away on the second occasion because the center did not have her
paperwork. Mother also failed to appear for three scheduled tests in January and
February 2014.
8
       In April 2014, Isaiah was placed with a maternal uncle. In July 2014, he was
placed with the maternal grandmother.
9
       Father claimed to have been detained for violating probation. The caseworker
received other reports indicating the incarceration was based on new criminal activity.
Father was released on June 30, 2014. After his release, he did not appear at any further
hearings. He is not a party to this appeal.
                                             4
custody.10 The paternal grandmother said Mother used marijuana and
methamphetamine, and that she had seen Mother in the park with Isaiah “getting
high.” She also reported seeing a picture of Mother on Facebook with drug
paraphernalia. The maternal grandmother, contradicting her earlier statements,
said she had never seen Mother use drugs or appear to be under the influence; she
denied that Mother had been indifferent or neglectful toward the baby, claiming to
have been misunderstood when she previously stated otherwise. Aurora said she
had seen Mother smoking marijuana and getting high. Aurora also said Mother
generally waited for someone else to care for the baby when, for example, his
diaper needed changing.
      In February 2014, Mother was arrested for assault with a deadly weapon.
The caseworker interviewed Mother during her incarceration and in an April 2014
last-minute information for the court, reported that Mother said she started
smoking marijuana after losing custody of Isaiah but denied having used marijuana
around him. Mother also said Father smoked marijuana and methamphetamine,
and that she was aware of Father’s drug use when she left Isaiah with him.11 Prior
to the jurisdictional hearing, Mother was sentenced to three years imprisonment.
      The jurisdictional hearing took place over multiple days in June and August
2014. The parties stipulated that if called to testify, Mother would say she last



10
       Father admitted using marijuana when he had custody of Isaiah and using
methamphetamine as recently as March 2013. Aurora R., the mother of the paternal
uncle’s girlfriend with whom Father and Isaiah had lived, described taking the baby from
Father once because she noticed he was high.
11
       Mother described a specific occasion when she had observed Father “tweaked and
high” during the period he had care and custody of Isaiah. At the time she made this
observation, Mother did not know where Isaiah was and made no effort to ensure he was
safe.
                                           5
used marijuana when she was under 18.12 The maternal grandmother testified that
her previous statements concerning Mother’s drug use were based on hearsay, not
personal observation. She denied ever saying Mother was indifferent to Isaiah or
inattentive to his needs. The paternal grandmother testified she had seen Mother
only once after Isaiah was born. She denied having seen Mother at a park with the
baby getting high. But she confirmed having seen a picture of Mother on
Facebook holding a glass pipe near her mouth.
       The court found true that Mother “has a history of illicit drug use and is a
current user of marijuana, which renders [her] incapable of providing regular care
for the child.” It found true that Father “is a current user of marijuana and has a
history of meth[amphetamine] use, which renders [him] incapable of providing
regular care for the child,” and that Father “abused illicit substances while the child
was under his care and supervision” in October 2013. The court further found the
substance abuse by Mother and Father “endanger[ed] the child’s physical health
and safety and place[d] the child at risk of physical harm, damage and danger.” At
the hearing, the court explained it had no qualms about dismissing a petition if
there was no proof of a nexus between parental drug use and neglect or abuse of
the child. The court pointed out that multiple witnesses had said Mother and
Father both used drugs and neglected the baby, and that Isaiah was “not a 13-year-
old child that’s going to school, being otherwise well taken care of . . . having all
of [his] needs provided for by the parents.” The court concluded that “[t]he age of
the child,” the parents’ drug use “as reported by a number of people,” and the


12
       Mother would have turned 18 in January 2011. The parties also stipulated that if
Father were called to testify, he would say he was not currently using marijuana or any
other drug and did not use illegal substances during the period Isaiah was in his care and
custody.
                                             6
evidence of “inadequate caring [of] the baby” provided the nexus required to
support jurisdiction under section 300, subdivision (b).
       DCFS and counsel for the children urged the court to provide no
reunification services for Mother due to the length of her sentence. The court
granted reunification services, ordering Mother to participate in a drug abuse
treatment program.13 Mother appealed.


                                     DISCUSSION
       A. Jurisdictional Issues
       Mother contends the court’s finding that she had a history of drug use and
was a user of marijuana was not supported by substantial evidence and even if true,
did not support a finding that Isaiah was at risk of harm. For the reasons discussed,
we disagree.14
       The juvenile court may properly assert jurisdiction over a minor child under
section 300, subdivision (b) where “[t]he child has suffered or there is a substantial

13
       Mother had completed a parenting program while incarcerated.
14
        Respondent contends we need not address the issues raised by Mother because the
juvenile court’s assertion of jurisdiction would be supported by the finding sustained as
to Father’s substance abuse, which Mother does not challenge. (See In re Alexis E.
(2009) 171 Cal.App.4th 438, 451 [when dependency petition alleges multiple grounds for
assertion that minor comes within dependency court’s jurisdiction, reviewing court can
affirm the juvenile court’s finding of jurisdiction over the minor if any one of the
enumerated bases for jurisdiction is supported by substantial evidence].) Appellate courts
generally exercise discretion to reach the merits of a challenge to a jurisdictional finding
where, as here, it “(1) serves as the basis for dispositional orders that are also challenged
on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact
the current or future dependency proceedings [citation] . . . .” (In re Drake M. (2012) 211
Cal.App.4th 754, 762-763.) Even where, as here, the appellant was a noncustodial parent
at the time of DCFS’s intervention, the jurisdictional finding is ordinarily reviewed due to
its negative impact on a request for custody under section 361.2. (In re Christopher M.
(2014) 228 Cal.App.4th 1310, 1317.)
                                             7
risk that the child will suffer, serious physical harm or illness, as a result of the
failure or inability of his parent or guardian to adequately supervise or protect the
child, or the willful or negligent failure of the child’s parent or guardian to
adequately supervise or protect the child from the conduct of the custodian with
whom the child has been left, . . 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 juvenile court’s jurisdictional finding must be supported by a
preponderance of the evidence. (In re Christopher M., supra, 228 Cal.App.4th at
p. 1318.) We review the juvenile court’s jurisdictional findings for substantial
evidence, considering the evidence in the light most favorable to the findings and
drawing all reasonable inferences in support of such findings. (Ibid.; In re Drake
M., supra, 211 Cal.App.4th at p. 763.)
      Substantial evidence supported the court’s findings that Mother abused
drugs and that her substance abuse posed a substantial risk of danger to Isaiah.
Mother admitted she smoked marijuana. She missed multiple drug tests, which the
court could reasonably conclude would have been dirty. Although she claimed on
one occasion to have quit using marijuana in November 2012 and on another not to
have used it after turning 18 in January 2011, in April 2014, she told the
caseworker she had used very recently, after losing custody of Isaiah. The
maternal and paternal grandmothers reported to the caseworker that she used
marijuana while caring for Isaiah. The court was not required to credit the
grandparents’ later claims to have been misunderstood or Mother’s claim to have
stopped using marijuana a year or more prior to DCFS’s intervention.
      Of course, to establish jurisdiction, DCSF must do more than prove that the
parent used an illicit drug or inebriating substance. There must also be evidence
that the substance abuse created a specific, nonspeculative, substantial risk of

                                            8
serious physical harm to the child. (In re Drake M., supra, 211 Cal.App.4th at
pp. 763-765; In re Rebecca C. (2014) 228 Cal.App.4th 720, 725; Jennifer A. v.
Superior Court (2004) 117 Cal.App.4th 1322, 1344-1346; In re Destiny S. (2012)
210 Cal.App.4th 999, 1003.) In determining risk, the age of the child involved is a
significant factor, and assertion of jurisdiction is justified where the child of the
substance abusing parents is “of such tender years that the absence of adequate
supervision and care poses an inherent risk to [his or her] physical health and
safety.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824; accord, In re Drake M.,
supra, at p. 767.) Indeed, for such a child, “the finding of substance abuse is prima
facie evidence of the inability of a parent or guardian to provide regular care
resulting in a substantial risk of physical harm.” (In re Drake M., supra, at p. 767;
accord, In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219.)
      Here, a prima facie case of risk was established by Mother’s drug use and
Isaiah’s age. In addition, the record is replete with evidence demonstrating
Mother’s neglect of Isaiah. The maternal grandmother told the caseworker that
during the baby’s early months of life, Mother was indifferent to him and did not
respond to his crying. The grandmother also said that when he was only a few
months old, Mother kept him out for days at a time or left him with the
grandmother while she went out for lengthy periods. Father said when the baby
was in Mother’s care, he developed bad diaper rash and smelled as if he were not
being bathed. Aurora said Mother would wait for someone else to step in when the
baby needed care. The paternal grandparents reported Mother failed to follow up
on the doctor’s warning that Isaiah appeared to be partially deaf. Mother herself
admitted that she left the baby with Father although she knew he abused marijuana
and methamphetamine. After she dropped Isaiah off with Father, she made no
effort to ensure he was safe, even on the occasion she observed Father “tweaked

                                           9
and high.” The court could reasonably attribute Mother’s neglect and poor
decisionmaking to her substance abuse and reasonably conclude from the evidence
presented that Mother’s drug use created a substantial risk of serious harm to the
infant.


      B. Dispositional Issues
      Section 361, subdivision (c)(1) provides that a juvenile court may not take a
dependent child from the physical custody of his or her parents unless the juvenile
court finds clear and convincing evidence that “[t]here is or would be a substantial
danger to the physical health, safety, protection, or physical or 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 . . . physical custody.” Section 361.2, subdivision
(a) provides that “[w]hen a court orders removal of a child pursuant to Section 361,
the court shall first determine whether there is a parent of the child, with whom the
child was not residing at the time that the events or conditions arose that brought
the child within the provisions of Section 300, who desires to assume custody of
the child.” If there is and if that parent requests custody, “the court shall place the
child with the parent unless it finds that placement with that parent would be
detrimental to the safety, protection, or physical or emotional well-being of the
child.” (§ 361.2, subd. (a).) Appellate courts have interpreted these provisions to
require juvenile courts to allow nonoffending incarcerated parents to claim or
retain custody of children neglected or abused by the other parent, provided they
can make appropriate arrangements for the care of the child. (In re A.A. (2012)
203 Cal.App.4th 597, 606; In re V.F. (2007) 157 Cal.App.4th 962, 965-966; In re
Isayah C. (2004) 118 Cal.App.4th 684, 695-701.)

                                          10
      Here, Mother rests her claim of being a nonoffending parent, entitled to have
her custodial arrangements respected despite her incarceration, on the contention
that substantial evidence did not support the court’s jurisdictional findings. As
discussed above, we conclude otherwise.
      Finally, Mother contends the court’s requirement that she participate in a
substance abuse program as part of the reunification program was unwarranted.
Again, she relies on her contention that substantial evidence did not support the
court’s jurisdictional findings that she used drugs and that such drug use created a
substantial risk of harm to her son. Because we find substantial evidence
supported these findings, we affirm the court’s dispositional order.
                                  DISPOSITION
      The court’s jurisdictional and dispositional orders are affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              MANELLA, J.

We concur:




EPSTEIN, P. J.




WILLHITE, J.




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