In re J.S. CA2/8

Filed 8/1/14 In re J.S. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 EIGHT

In re J.S. et al., Persons Coming Under the B252623
Juvenile Court Law. (Los Angeles County
Super. Ct. No. DK00511)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

Plaintiff and Respondent,

v.

C.G.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County, Philip L.
Soto, Judge. Affirmed in part and reversed in part.
Frank H. Free, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, and Aileen Wong, Deputy County Counsel, for
Plaintiff and Respondent.

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 C.G. (mother) appeals the juvenile court’s jurisdiction and disposition orders,
contending substantial evidence did not support declaring her two daughters dependents
pursuant to Welfare and Institutions Code section 300, subdivision (b)1 and removing
them from her custody pursuant to section 361, subdivision (c). We agree and reverse the
jurisdiction order as it relates to mother’s conduct, vacate the disposition order removing
the children from her custody, and remand for the juvenile court to issue a new
disposition order consistent with this opinion, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has two daughters, and at the time of the August 2013 petition, they were
five and three years old. On July 30, 2013, the Los Angeles County Department of
Children and Family Services (DCFS) received a referral from an unidentified caller
claiming mother had been smoking marijuana and drinking when the maternal
grandmother would leave the house; mother had her youngest child hanging on her leg
while she would get “high”; mother left her children home alone in order to go out
looking for marijuana; and mother claimed to have a medical marijuana card.
DCFS commenced an investigation, but aside from the medical marijuana card,
the caller’s claims were unsubstantiated. Mother produced a valid medical marijuana
card, although she did not provide information on her medical condition necessitating
marijuana use or on the length of time she had been using it. She stated she only smoked
marijuana once or twice a week outside her home and never when she was with her
daughters. When she was out, the maternal grandmother and great-grandmother would
take care of the children. Mother was willing to drug test on demand. Not surprisingly,
the drug test mother took shortly after the referral came back positive for marijuana. But
it also came back positive for cocaine, and when mother was asked about the test, she
initially responded she did not understand why it would have been positive for cocaine.
She then admitted she had gone out with her friends for her birthday and ingested

1 All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.

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cocaine. She said it was a “mistake” and she had done it only once. The social worker
nevertheless believed her “levels [were] high and her drug use has placed her daughters at
risk.” The social worker and DCFS also believed mother was minimizing her drug
issues.
Separate from her alleged drug use, in the course of the investigation mother
revealed two domestic violence incidents between her and the children’s father
Alfonso S. (father). The first incident occurred in September 2012 when father became
upset, was yelling, and broke their television. The children were home in the bedroom
where the argument took place. Mother did not call law enforcement, but asked father to
move out, which he did. He had not lived with them since that time. The second incident
occurred on January 18, 2013, when father showed up at the home intoxicated and upset.
He hit mother on the head with a closed fist three times. Mother called the police and
had him arrested. She also obtained a temporary restraining order against him that
protected both her and the children, although she ultimately did not obtain a permanent
order. The children were not home during that incident. Mother reported that father
“never listened” to her and continued to have contact with the children after these
incidents, but the parties stipulated the only interaction mother and father had since
January 2013 was over the phone when he would call to inquire about the children.
Mother’s older daughter2 reported at the time of the DCFS’s initial contact she had
not seen mother smoke cigarettes. She also did not see father and he did not live in their
home. She later told the social worker she saw her father when he picked her up from
school and dropped her off with the maternal grandmother. She said father did not live
with them, but he would visit her at the maternal grandmother’s house. She said mother
and father “fight a little bit. My dad went to jail [and] my dad gets mad at mom
everyday. He doesn’t like girls.” She was unable to provide any information as to the
frequency of incidents, dates of last incidents, or other details. She also was unable to

2 Both daughters’ initials are J.S., so we refer to them as older daughter and younger
daughter for convenience.

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provide any information as to the use of illegal substances by mother or father and could
not identify any illegal substances.
The maternal grandmother knew mother had a marijuana card and smoked
marijuana, but she said mother did not do it in the home or around the children. Instead,
she did it outside, sitting in her car for about three hours before coming back inside. The
maternal grandmother was otherwise unable to provide any information on mother’s past,
recent, or ongoing substance use. As for the incidents between mother and father, the
maternal grandmother stated they would engage in verbal altercations regularly, and in
September 2012 these conflicts escalated when father broke the television while the
children were asleep in the bedroom. Later, she said the children “saw and heard
everything.” She intervened and told mother and father their relationship was not
working out and he should leave the home, which he did. After that, he would pass by
their home intoxicated but he never tried to come inside. The January 2013 altercation
occurred outside, and although the maternal grandmother did not see father hit mother,
she saw him arrested. Mother thereafter obtained the restraining order. At the time of
her initial interview, the maternal grandmother reported father started coming around the
home, picking up and dropping off the children, but not coming into the house. She
believed mother maintained contact with father. Neither mother nor father had ever been
abusive to the children.
DCFS noted the children had no visible marks or bruises and both appeared well
adjusted and on track developmentally.
Following the August 2013 referral and investigation, DCFS took the children into
protective custody with mother’s consent, although mother indicated she would “‘do
anything to get [her] children back[.] I made a mistake. I will never do it again.” DCFS
filed a section 300 petition alleging as relevant here two grounds for jurisdiction.3 For
count b-1, the petition alleged mother “has a history of substance abuse, and is a current

3 The domestic violence incident was also alleged as part of a count pursuant to
section 300, subdivision (a), but that count was stricken.

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abuser of cocaine and marijuana, which renders the mother incapable of providing
regular care for the children. On 08/08/2013, the mother had a positive toxicology screen
for cocaine and marijuana. On 08/08/2013, and on prior occasions, the mother was under
the influence of cocaine and marijuana while the children were in the mother’s care and
supervision. The mother’s substance abuse endangers the children’s physical health and
safety and places the children at risk of physical harm and damage.” For count b-2, the
petition alleged mother and father “engaged in a violent altercation in which the father
repeatedly struck the mother’s head with the father’s fists. In September 2012, the father
broke a television during a verbal altercation with the mother, in the presence of the
children. The mother failed to protect the children in that she allowed the father to
frequent the children’s home and have unlimited access to the children. Such violent
conduct on the part of the father against the mother endangers the children’s physical
health and safety and place[d] the children at risk of physical harm, damage and danger.”
On August 19, 2013, the juvenile court ordered the children detained and set a date
for the jurisdiction/disposition hearing. It ordered DCFS to set up random weekly and on
demand drug testing and provide mother with referrals for drug, alcohol and domestic
violence programs. It also granted mother unmonitored visitation at the maternal
grandmother’s home so long as mother remained enrolled in a program, tested clean, and
the maternal grandmother was present. DCFS had discretion to allow mother to reside
with the maternal grandmother. Father was given monitored visitation.
Prior to the jurisdiction/disposition hearing, DCFS discovered father had been
arrested and the probation officer assigned to his case indicated he appeared to have
accepted a plea deal for three years in prison. The probation officer believed he would
not be released.
In its jurisdiction/disposition report, DCFS noted mother was “cooperative . . . in
locating therapeutic services” and she was willing to do what was necessary to protect her
children from further abuse. The DCFS expressed “excessive concern” about the
domestic violence because mother continued to minimize the incidents. For example,
mother had initially said the children were not present at the September 2012 incident,

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but later reported they were in the same bedroom where father broke the television.
Further, although mother had father arrested and obtained a restraining order after the
January 2013 incident, she allowed father “unlimited access to the children,” including
when he transported the older daughter to and from school regularly. With regard to
mother’s marijuana use, although she had a medical marijuana card, she refused to
provide information on her medical need, or on the frequency or length of time she has
been consuming marijuana, leading DCFS to believe she was minimizing her positive
feelings about marijuana and cocaine. DCFS concluded the parents had an “ongoing
issue as it relates to domestic violence” and mother had a “current issue as related to
substance use.”
DCFS’s jurisdiction/disposition report also noted that, prior to the referral in this
case mother had enrolled in domestic violence therapy and programs, and was enrolled in
individual therapy and groups for substance abuse and parenting. In domestic violence
therapy mother had disclosed “a history of physical, verbal, and emotional domestic
violence at the hands of the abuser” and had been an active participant, working through
“the effects of how the domestic violence has impacted her and her children.” The drug
treatment program reported mother was active during sessions and eager to express her
opinions, although she must learn commit to changes in her life to obtain reunification
with her children.
Mother tested positive for marijuana on several occasions and missed one test,
which was treated as a positive test. Mother also did not report for testing after the
missed test, although she continued with her classes and counseling.
Following a contested hearing held on October 29, 2013, the juvenile court
sustained the allegations in the petition and ordered the children be removed from mother
and father’s custody. The court noted “this started out as a drug case, but it blossomed
into a domestic violence case and that cannot be ignored as a mother putting the children
at risk when she allows father or somebody else in her future to commit domestic
violence on her or in front of the children.” The court ordered monitored visitation and
reunification services for both parents. For mother, the court ordered a drug and alcohol

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program with testing, a domestic violence program with a support group for victims, and
parenting programs. For father, the court ordered drug awareness programs and 52
weeks of domestic violence and parenting programs.
Mother timely appealed. Father did not appeal.
DISCUSSION
1. Standard of Review
In reviewing the jurisdiction and disposition orders, “we look to see if substantial
evidence, contradicted or uncontradicted, supports them. [Citation.] 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.” (In re Heather A. (1996) 52 Cal.App.4th 183, 193
(Heather A.).) Thus, “[w]e do not reweigh the evidence, evaluate the credibility of
witnesses, or resolve evidentiary conflicts. [Citation.] The judgment will be upheld if it
is supported by substantial evidence, even though substantial evidence to the contrary
also exists and the trial court might have reached a different result had it believed other
evidence.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) But “[s]ubstantial
evidence must be of ponderable legal significance. It is not synonymous with ‘any’
evidence. [Citation.] The evidence must be reasonable in nature, credible, and of solid
value. [Citation.] The appellant has the burden of showing there is no evidence of a
sufficiently substantial nature to support the finding or order.” (Ibid.)
2. The Merits of Mother’s Appeal Should Be Addressed
DCFS argues we need not address mother’s challenge to the jurisdictional findings
as to her because the juvenile court properly exercised jurisdiction based on the
allegations against father. DCFS is generally correct. (See In re Alysha S. (1996) 51
Cal.App.4th 393, 397 (Alysha S.) [“[A] jurisdictional finding good against one parent is
good against both. More accurately, the minor is a dependent if the actions of either
parent bring her within one of the statutory definitions of a dependent.”]; see also In re
Alexis H. (2005) 132 Cal.App.4th 11, 16 [same].) However, the court in In re Drake M.

7
(2012) 211 Cal.App.4th 754 (Drake M.), rejected an identical argument and proceeded to
the father’s jurisdictional challenge even though jurisdiction would have been sustained
based on allegations against the mother. We set forth that court’s analysis below and, for
the reasons identified, we exercise our discretion to reach mother’s appeal in this case.
“‘When a dependency petition alleges multiple grounds for its assertion that a
minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the
[trial] court’s finding of jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by substantial evidence. In
such a case, the reviewing court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.’ [Citation.] However,
we generally will exercise our discretion and reach the merits of a challenge to any
jurisdictional finding when the finding (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 [citations]; or (3) ‘could
have other consequences for [the appellant], beyond jurisdiction’ [citation]. [¶] Here, the
outcome of this appeal is the difference between father’s being an ‘offending’ parent
versus a ‘non-offending’ parent. Such a distinction may have far-reaching implications
with respect to future dependency proceedings in this case and father’s parental rights.
Thus, although dependency jurisdiction over Drake will remain in place because the
findings based on mother’s conduct are unchallenged, we will review father’s appeal on
the merits.” (Drake M., supra, 211 Cal.App.4th at pp. 762-763.)
3. Substantial Evidence Did Not Support Jurisdiction Based on Mother’s Conduct
“Under section 300, subdivision (b), the juvenile court may assert jurisdiction over
a child when ‘[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 . . . or by the willful or
negligent failure of the parent or guardian to provide the child with adequate food,
clothing, shelter, or medical treatment, 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,

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developmental disability, or substance abuse. . . . The child shall continue to be a
dependent child pursuant to this subdivision only so long as is necessary to protect the
child from risk of suffering serious physical harm or illness.’ Thus, ‘[t]he three elements
for jurisdiction under section 300, subdivision (b) are: “‘(1) neglectful conduct by the
parent in one of the specified forms; (2) causation; and (3) “serious physical harm or
illness” to the [child], or a “substantial risk” of such harm or illness.’”’” (In re John M.
(2012) 212 Cal.App.4th 1117, 1124.)
The two incidents of domestic violence in this case were insufficient to
demonstrate a substantial risk of harm to the children. “Physical violence between a
child’s parents may support the exercise of jurisdiction under section 300, subdivision (b)
but only if there is evidence that the violence is ongoing or likely to continue and that it
directly harmed the child physically or placed the child at risk of physical harm.” (In re
Daisy H. (2011) 192 Cal.App.4th 713, 717; see In re J.N. (2010) 181 Cal.App.4th 1010,
1025 (J.N.) [“‘[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.’”].) The juvenile court believed the children would be harmed by future acts of
domestic violence if mother “allows father or somebody else in her future to commit
domestic violence on her or in front of the children.” (Italics added.) There are at least
two problems with this statement. First, the juvenile court’s speculation that some
unidentified person in the future might assault mother cannot constitute substantial
evidence of future harm. (See In re Steve W. (1990) 217 Cal.App.3d 10, 22.) Second,
nothing in the record suggesting mother “allowed” father to assault her in the past or that
she would “allow” him or anyone else to assault her in the future. As soon as father
broke the television in September 2012, mother kicked him out of the home. When
father escalated the violence in January 2013 by returning to the home and punching
mother while they were outside the house, mother called the police, had him arrested, and
obtained a temporary restraining order. Although mother did not obtain a permanent
order, in the months between that incident and the filing of the petition in this case, no
further domestic violence incidents were reported, mother had no contact with father

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other than to discuss the children, and father’s only contact with the children was not in
the home. Father is now in prison, so the prospects of future domestic violence between
him and mother are minimal. Mother also entered domestic violence therapy prior to the
petition in this case, suggesting she was independently aware of and addressing any
lingering abuse issues before DCFS got involved.
In Alysha S., the court found similar allegations insufficient to state a claim for
dependency jurisdiction. There, the petition alleged, “‘The father was physically abusive
and violent to the mother and was arrested and incarcerated for domestic violence against
the mother . . . . [¶] The mother initially obtained a restraining order against the father[;]
however[,] . . . she had the restraining order dropped in spite of advice by Child
Protective Services not to do so, and resumed living with the father.’ Even construing
this pleading expansively to allege more than one instance of violence against the mother,
it does not allege that the violence was perceived by or affected the child and did not
establish a ‘failure to protect’ her.” (Alysha S., supra, 51 Cal.App.4th at p. 398.) The
facts here do not even rise to that level because mother did not resume living with father
and only had contact with him to discuss the children. Although the children were
present during the September 2012 incident and “saw and heard everything,” there was
no evidence they were in harm’s way or father targeted them for abuse, and they were not
present during the more serious January 2013 assault. DCFS also presented no evidence,
such as expert testimony, suggesting the children were negatively affected by these
incidents in any way. (Cf. Heather A., supra, 52 Cal.App.4th at pp. 195-196 [expert
testimony of effect spousal abuse had on children supported finding jurisdiction].)
DCFS relies on several cases to argue the existence of domestic violence in the
same household with the children was sufficient to support jurisdiction, but those cases
either arose in different contexts or involved more serious abuse than in this case. (In re
Sylvia R. (1997) 55 Cal.App.4th 559, 561-562 [father arrested twice for spousal abuse;
issue was whether dismissal of criminal charges defeated termination of reunification
services]; Heather A., supra, 52 Cal.App.4th at pp. 194-196 [five violent incidents with
children in the home; father had history of abusing partners; expert testified as to effects

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of abuse on the children]; In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5,
1472 [pattern of physical abuse of both spouse and child].) Unlike those cases, the two
acts of domestic violence in this case, coupled with the lack of evidence of any effect
whatsoever on the children, were insufficient to demonstrate a substantial risk of harm.
That leaves the evidence of mother’s substance abuse, but that was likewise
insufficient to demonstrate the children were at a substantial risk of harm. Mother used
marijuana pursuant to a valid medical marijuana card. There was no evidence she used it
excessively, let alone “abused” it, and she did not use it at home or around the children,
who were properly supervised while mother used marijuana outside the home. Indeed,
the older daughter was not even aware of mother’s use—she did not see mother smoking
cigarettes and was unable to identify any illegal substances. Because there was no
evidence mother’s marijuana use affected her children in any way, her “continuing usage
and testing positive for cannabinoids on drug screens, without more, is insufficient to
show that [the children were] at substantial risk of serious physical harm or illness.”
(Drake M., supra, 211 Cal.App.4th at p. 768; compare In re Alexis E. (2009) 171
Cal.App.4th 438, 451-453 [acknowledging “the mere use of marijuana by a parent will
not support a finding of risk to minors,” but finding principle inapplicable because father
previously used marijuana illegally, he used it while his children were home, and his use
had a negative effect on his demeanor toward the children].)
Further, although mother tested positive for and admitted using cocaine once, she
never tested positive again, she viewed the single use as a “mistake,” and vowed not to do
it again. She also enrolled in substance abuse therapy. (See J.N., supra, 181 Cal.App.4th
at pp. 1025-1026 [considering parent’s current understanding of and attitude toward past
conduct, as well as participation in educational programs, in assessing present risk based
on a single episode of endangering conduct].) Absent any evidence of neglect from
mother’s drug use, this case falls within the line of authority holding “the mere usage of
drugs by a parent is not a sufficient basis on which dependency jurisdiction can be
found.” (Drake M., supra, 211 Cal.App.4th at p. 764; see In re Destiny S. (2012) 210
Cal.App.4th 999, 1003 [same].)

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4. The Disposition Order Must Be Vacated
Because we reverse the jurisdiction order insofar as it is based on mother’s
conduct, we cannot say the juvenile court correctly exercised its discretion in removing
the children from her custody. We must therefore vacate the disposition order and
remand for the court to issue a new disposition order.4 (See In re David M. (2005) 134
Cal.App.4th 822, 833.)
DISPOSITION
That part of the jurisdictional order that is based on mother’s conduct is reversed.
The disposition order is vacated, and the matter is remanded for the juvenile court to
issue a new disposition order consistent with this opinion. In all other respects the
juvenile court’s orders are affirmed.

FLIER, J.
I CONCUR:

RUBIN, Acting P. J.

4 We realize that with the passage of time, other issues may have been presented
regarding the family. Our decision, of course, does not preclude further action based on
events that occurred after those set forth in the record on appeal. (§ 342.)

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In re J.S. et al.; Los Angeles County Department of Children and Family Services v.
C.G.
B252623
Grimes, J., Dissenting.
Respectfully, I dissent.
The focus of dependency proceedings is on the protection of minor children. (In
re I.A. (2011) 201 Cal.App.4th 1484, 1491-1492.) To acquire jurisdiction over a child, a
juvenile court need only “find that one parent’s conduct has created circumstances
triggering section 300.” (Id. at p. 1491.) “[I]t is commonly said that a jurisdictional
finding involving one parent is ‘ “good against both. More accurately, the minor is a
dependent if the actions of either parent bring [the minor] within one of the statutory
definitions of a dependent.” ’ [Citation.]” (Id. at p. 1492.) Jurisdiction over the children
in this case is proper based on father’s conduct, and mother does not contend otherwise.
Because father has not appealed from the jurisdiction and disposition orders, and mother
does not challenge the court’s orders concerning father, I agree with the majority that the
children will remain dependents of the court notwithstanding reversal of the orders
concerning mother.
As the majority acknowledges, there are circumstances under which courts should
consider one parent’s claim to be a nonoffending parent, even though dependency
jurisdiction continues over the child in any event. (In re Drake M. (2012)
211 Cal.App.4th 754, 762-763.) But the evidence concerning mother’s conduct that is
summarized by the majority demonstrates that mother is not a nonoffending parent, and
therefore, I would decline to entertain her jurisdictional contentions. (In re I.A., supra,
201 Cal.App.4th at p. 1492 [“an appellate court may decline to address the evidentiary
support for any remaining jurisdictional findings once a single finding has been found to
be supported by the evidence”].)
On the merits, the recitation of the facts by the majority demonstrates that
substantial evidence supports the jurisdictional findings as to both mother and father, for
the domestic violence and for mother’s drug use. In reviewing a challenge to the

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sufficiency of the evidence supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted, supports them. (In re
Heather A. (1996) 52 Cal.App.4th 183, 193.) “[W]e draw all reasonable inferences from
the evidence to support the findings and orders of the dependency court” (ibid.), and
“[w]e 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
Matthew S. (1988) 201 Cal.App.3d 315, 321). The juvenile “court has broad discretion to
determine what would best serve and protect the child’s interest and to fashion a
dispositional order in accord with this discretion.” (In re Christopher H. (1996) 50
Cal.App.4th 1001, 1006; see also In re A.L. (2010) 188 Cal.App.4th 138, 142-146.)
In my view, the majority has departed from these basic principles of appellate
review. I would affirm the jurisdiction and disposition orders as to mother.

GRIMES, J.

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