In re Y.F. CA2/8

Filed 1/15/16 In re Y.F. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re Y.F., a Person Coming Under the B264365
Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. CK98089)
FAMILY SERVICES,

Plaintiff and Respondent,

v.

J.F.,

Defendant and Appellant;

Y.F.,
Appellant.

APPEAL from orders of the Superior Court of Los Angeles County. Philip L.
Soto, Judge. Affirmed.
Michele Anne Cella, under appointment of the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant
County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and
Respondent.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Minor.
**********
 Father J.F. and counsel for the now one-year-old child, Y.F., appeal from
jurisdiction and disposition orders removing the child from father’s care. Y.F. was four
months old at the jurisdiction and disposition hearing. The day after Y.F. was born in
December 2014, the Los Angeles County Department of Children and Family Services
(Department) received a referral that mother M.M. may neglect Y.F. because she failed to
reunify with her two older children due to her unresolved abuse of methamphetamine and
marijuana over the course of many years. The referral did not mention father, who had
been in a live-in relationship with mother for a year before Y.F. was born. The
Department did not file a dependency petition until March 12, 2015. The Department did
not initially recommend Y.F. be removed from her parents’ care.
The Department filed an amended petition April 20, 2015, which included
allegations that father had a history of marijuana and alcohol use. The Department’s
report for the adjudication and disposition hearing recommended Y.F. remain with her
parents with family maintenance services. But on April 23, 2015, the day of the
adjudication and disposition hearing, the Department filed an ex parte application seeking
to change the recommended disposition. The Department recommended Y.F. be
removed from her parents’ care.
The court sustained allegations that mother failed to reunify with Y.F.’s half
siblings due to mother’s illicit drug use, and that father has a history of marijuana and
alcohol use and currently uses marijuana which renders him incapable of providing
regular care and supervision of Y.F. The court removed Y.F. from the parents’ custody,
and ordered reunification services.
Mother has not appealed the jurisdiction and disposition orders, and therefore, we
do not consider here appellants’ arguments regarding the findings and orders concerning
mother. On the other hand, the Department has not asked us to find father’s appeal is not
justiciable on the basis of In re I.A. (2011) 201 Cal.App.4th 1484, and therefore, we
consider father’s appeal on the merits.

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 Father and Y.F. contend there was insufficient evidence that father’s marijuana
use put Y.F. at substantial risk of serious physical harm such that removal from father’s
care was necessary to protect Y.F. We disagree and affirm the orders.
BACKGROUND
At the adjudication and disposition hearing on April 23, 2015, the court received
various Department reports and other evidence, including positive drug test results for
father on March 17, April 19 and 20, 2015. No party offered live testimony, and there
was no objection to the admission of any of the Department reports. The positive drug
test results were admitted over father’s objection.
The evidence concerning father is consistent in each of the Department’s reports.
We quote from the report submitted with the Department’s ex parte application on the
date of the adjudication and disposition hearing.
“[Father] is also a user of marijuana, which until recently, was mother’s drug of
choice. Father’s use of marijuana indicates very high risk to [Y.F.].
“[Father] reported that when he was [13]-years-old, he started to value marijuana
for its medicinal properties. [Father] reported that from then on, and for the past ten
years, he has used marijuana approximately 8 to 10 times a day to help relieve his aches
and pains from being bent over all day looking inside car engines working as a mechanic.
[Father] reported that sometimes he smoked as much as 15 times a day. [Father] reported
that he cut down on his marijuana use after he appeared in Court on 03/17/2015.
“[Father] reported that his medicinal marijuana card has expired and that he has
not renewed it. [Father] reported that, currently, he smokes marijuana approximately two
times a week. [Father] reported that since he no longer has a valid medicinal marijuana
card, he gets his marijuana supply from his friends.
“[Father] appears to be under the false belief that he is clean and sober because his
marijuana use is for medicinal purposes, despite the fact that his marijuana use is not
being supervised by a physician or any type of medical professional and his marijuana
supply is not directly from a medicinal marijuana vendor.

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 “[Father] admitted that he has never been examined or diagnosed by a primary
care physician, but that he believes that he suffers from arthritis. [Father] reported that
his medicinal marijuana doctor relied on his [(father’s)] self reports and completion of a
questionnaire to determine his medical need for marijuana as a course of treatment.
[Father] reported that he has never sought any other form of treatment for his aches and
pains.
“[Father] (who is 23-years-old) reported that when he was 20-years-old, he lived
in the Hollywood area and that he befriended people who used crack. [Father] reported
that he used crack regularly for a period of approximately 5 months.
“[Father] reported that he tried methamphetamine for the first time when he was
22-years-old. [Father] reported that he used methamphetamine regularly for
approximately one month and then he stopped. [Father] reported that he resumed his
methamphetamine use approximately one month later, and that he used
methamphetamine regularly for approximately two months. This was approximately six
months prior to meeting mother in December 2013.
“[Father] reported that when he met the mother, they smoked marijuana together
regularly. [Father] admitted to using methamphetamine with the mother a few times.
[Father] reported that his friends could not understand why he was involved with the
mother as she was in a bad condition due to her heavy use of methamphetamine.
“[Father] reported that on 04/24/2014, he knew that the mother left the family
home to go buy drugs.
“[Father] does not consider that his marijuana use could easily trigger the mother’s
illicit drug use.
“[Father] had an early onset of alcohol and illicit drug use during his childhood
and he has never sought treatment. [Father] has no insight into his illicit drug use and he
has overly emphasized the medicinal properties of marijuana. [Father] does not grasp
that although he smokes the marijuana outside of the family home, he is under the
influence of marijuana while he is in the home assisting with the care and supervision of
his child, thereby placing [Y.F.] at risk of harm and future abuse and neglect.”

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 Father argued there was no nexus between his marijuana use and any risk of harm
to Y.F., and the baby came to the attention of the Department only because of mother’s
long history of drug abuse and neglect of her children. Counsel for Y.F. acknowledged
that mother’s unresolved drug abuse and extensive history with the Department
warranted dependency jurisdiction but argued Y.F. is father’s first child and there was no
evidence he knew mother had these issues or had previous children removed from her
care. The Department focused on father’s use of marijuana up to eight to ten times a day,
observing, “I wouldn’t let him work on my car if he was smoking a joint ten times a day
let alone take care of my kid.”
The court found there was a sufficient nexus between the parents’ drug use and the
risk of harm to Y.F., “in that the parents are co-parenting and living together and the
child needs to be raised in a drug-free home.” In response to the arguments of father and
Y.F.’s counsel seeking to minimize father’s present marijuana use, the court observed,
“So we are clear, [counsel], according to the last minute [report], he may be using
marijuana once or twice a week now, but he said he cut down on account of court
intervention when he came in. So it’s clear to this court that if we don’t intervene, this
child is going to be at risk.”
When Y.F.’s counsel requested the court remove Y.F. only from mother’s custody,
suggesting that “[p]erhaps something can be arranged in the next couple of days with the
mother moving out or the father moving out,” the court replied, “I’ve got a very young
child which I’m declaring [a dependent]. Something needs to be done and it needs to be
done immediately. And so for the best interest of this child, I’m finding that pursuant to
361(c), continuance in the home of the parents would create a substantial risk of
detriment to the child’s safety, protection, physical, emotional well-being, . . . and the
child will be removed.”
The court removed Y.F. from her parents’ custody and ordered suitable placement,
with reunification services for both parents. The court ordered monitored visits, with
discretion to liberalize visitation as to father. The court also ordered the Department
“does have discretion to meet and confer with the parents to try and make arrangements if

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it’s appropriate for mother to leave the father to have the child returned.” Nothing in the
record before us suggests father ever made arrangements to leave mother so as to regain
custody of Y.F.
DISCUSSION
I. The Governing Statute and Standard of Review.
As explained in In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216
(Christopher R.):
“The purpose of section 300 ‘is to provide maximum safety and protection for
children who are currently being physically, sexually, or emotionally abused, being
neglected, or being exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.’ (§ 300.2; see In re
Giovanni F. (2010) 184 Cal.App.4th 594, 599.) Section 300, subdivision (b), allows a
child to be adjudged a dependent of the juvenile court 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 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.’
“Although section 300 generally requires proof the child is subject to the defined
risk of harm at the time of the jurisdiction hearing (In re Savannah M. (2005) 131
Cal.App.4th 1387, 1396; In re Rocco M. (1991) 1 Cal.App.4th 814, 824 (Rocco M.)), the
court need not wait until a child is seriously abused or injured to assume jurisdiction and
take steps necessary to protect the child (In re N.M. (2011) 197 Cal.App.4th 159, 165).
The court may consider past events in deciding whether a child presently needs the
court’s protection. (Ibid.) A parent’s ‘ “[p]ast conduct may be probative of current
conditions” if there is reason to believe that the conduct will continue.’ (In re
S.O. (2002) 103 Cal.App.4th 453, 461.)
“In addition, the Legislature has declared, ‘The provision of a home environment
free from the negative effects of substance abuse is a necessary condition for the safety,

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protection and physical and emotional well-being of the child. Successful participation in
a treatment program for substance abuse may be considered in evaluating the home
environment.’ (§ 300.2.) Exercise of dependency court jurisdiction under section 300,
subdivision (b), is proper when a child 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.’ (Rocco M., supra, 1 Cal.App.4th at p. 824.)
“We review the juvenile court’s jurisdictional findings and disposition orders for
substantial evidence. (Los Angeles County Dept. of Children & Family Services v.
Superior Court (2013) 215 Cal.App.4th 962, 966; In re R.C. (2012) 210 Cal.App.4th 930,
940.) Under this standard ‘[w]e review the record to determine whether there is any
substantial evidence to support the juvenile court’s conclusions, and we resolve all
conflicts and make all reasonable inferences from the evidence to uphold the court’s
orders, if possible.’ (In re David M. (2005) 134 Cal.App.4th 822, 828; accord, In re
Drake M. (2012) 211 Cal.App.4th 754, 763 (Drake M.); In re Savannah M., supra, 131
Cal.App.4th at p. 1393.)” (Fn. omitted.)
II. The Jurisdiction Findings Concerning Father Are Supported by Substantial
Evidence.
Marijuana use, alone, is not sufficient to establish dependency jurisdiction,
without any evidence that such usage places a child at substantial risk of serious physical
harm or illness. (Drake M., supra, 211 Cal.App.4th at p. 769.) Put differently, physical
harm to a child is not presumed from a parent’s substance abuse in every dependency
case. (In re Rebecca C. (2014) 228 Cal.App.4th 720, 728 [mother’s substance abuse did
not create substantial risk of harm to 13-year-old daughter].) On the other hand, in the
case of very young children, “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.” (Drake M., at pp. 766-767.)
Appellants argue the sustained allegations only establish father used marijuana,
and not that he abused marijuana. While that is correct, we consider not only the
sustained allegations of the petition but also the evidence before the court. (In re Jessica

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C. (2001) 93 Cal.App.4th 1027, 1037-1038 [“[A]fter a hearing on the merits has been
held on the petition, the focus must necessarily be on the substance of the allegations
found true by the juvenile court, not idiosyncratic particulars of the social worker’s
precise language.”].) We find there was substantial evidence that father abused
marijuana and required services to understand and remove the risks to Y.F. attendant to
his marijuana abuse. Father reported that for 10 years, from age 13 to the present, he
smoked marijuana eight to ten times a day, sometimes up to 15 times a day. When in the
company of friends who used crack and methamphetamine, father also used those drugs
for several months at a time. He never sought treatment for drug abuse and had no
insight into his illicit drug use, telling the Department he believed he was clean and sober
because he used marijuana for medicinal purposes.
All the parties cite Drake M., a leading authority on the propriety of dependency
jurisdiction over a parent who is alleged to be a substance abuser. The court in Drake M.
found no evidence the father there was a substance abuser. The father in Drake M. was
employed and had no criminal history; 14-month-old Drake was well cared for; there
were no allegations of abuse in the home; there was family support; and there was no
evidence the child was exposed to marijuana, drug paraphernalia or second-hand smoke.
The father in Drake M. had been diagnosed with arthritis due to his work as a cement
mason, on his knees three hours a day, and a Kaiser doctor had prescribed pain
medications, but the pills did not work for him so he sought marijuana as an alternative
treatment. He possessed a valid recommendation from a physician to use marijuana for
treatment of his chronic knee pain. Father testified he smoked at the beginning of the day
or at lunchtime, and a minimum of four hours passed between when he smoked and when
he saw Drake after work. (Drake M., supra, Cal.App.4th at pp. 760-761, 768-769.)
The facts of this case are not sufficiently analogous to Drake M. for us to reverse
the jurisdiction findings. As was the case in Drake M., father in this case was employed
and had no significant criminal history; there were no allegations of abuse; four-month-
old Y.F. was reaching developmental targets; and there was no evidence that Y.F. was
exposed to marijuana, paraphernalia or second-hand smoke.

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 What distinguishes this case from Drake M. is that here, father never sought
medical treatment for his aches and pains, had previously received a marijuana card
based solely on his own self-reporting, had no current license to use marijuana, which he
nonetheless obtained from friends (presumably, illegally) and used heavily throughout
the day; he began to limit his use only one month before the jurisdiction hearing, due to
the pendency of these dependency proceedings, and he had no insight into the risks of
such heavy marijuana abuse. Like the court in Christopher R., supra, 225 Cal.App.4th at
page 1220, “on this record the juvenile court properly found [father’s] persistent and
illegal use of marijuana demonstrated an inability to provide regular care” for infant Y.F.
III. The Disposition Order Removing Y.F. From Father’s Care Was Proper.
The same evidence that supports jurisdiction is also substantial evidence that
supports the disposition order removing Y.F. from father’s care. Father and mother lived
and cared for Y.F. together. Both parents had long term, untreated and unresolved
substance abuse problems. Y.F. was such a young and vulnerable baby that their
substance abuse placed her at risk of harm. Father knew that, six months before Y.F. was
born, mother left their home to go buy drugs, and he was apparently unable to stop her.
Father and mother had used methamphetamine and marijuana together many times. As a
practical matter, there was simply no way the court or the Department could ensure Y.F.
would remain safe in her father’s custody while he lived with mother, until father had
seriously addressed his substance abuse problems.
DISPOSITION
The jurisdiction and disposition orders are affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.

FLIER, J.

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