In re Bella v. CA2/7

Filed 8/15/16 In re Bella V. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN

In re BELLA V., a Person Coming Under B268754
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. DK12693)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

Plaintiff and Respondent,

v.

SANDRA T., et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of Los Angeles County, Philip Soto,
Judge. Reversed.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and
Appellant Sandra T.
Linda B. Puertas and the Law Office of Linda B. Puertas, under appointment by
the Court of Appeal, for Defendant and Appellant Jose V.
Mary C. Wickham, County Counsel, D. Keith Davis, Assistant County Counsel,
and Jeanette Cauble, Principal Deputy County Counsel, for Plaintiff and Respondent.

________________________
 Jose V. (father) and Sandra T. (mother) appeal the juvenile court’s jurisdictional
order finding that they each had a marijuana abuse problem that rendered them incapable
of providing regular care for their five-year-old daughter Bella V. The parents contend
there was insufficient evidence to support the court’s finding that they used marijuana in
an abusive manner. We agree, and reverse the order.

FACTUAL AND PROCEDURAL BACKGROUND
A. Referral and Detention
1. Events preceding the section 300 petition
Mother and father are the parents of Bella V., who was born in November of 2010.
On June 15, 2015, the Los Angeles County Department of Children and Family Services
(DCFS) received a referral “alleging general neglect by parents.” The caller claimed
father was smoking marijuana with other adults inside the family residence, and that the
smoking occurred “all day and every day while the child is in the home with them.” The
caller also alleged there was “constantly a very strong odor of marijuana coming from the
home . . . that reaches the front sidewalk area.”
A DCFS social worker visited the home, which she found to be in “fair” condition.
The social worker “did not note any odor that would suggest recent marijuana use in the
house.” She did, however, “observe some ashes on the coffee table, a lighter on the floor,
and a glass bong on a different coffee table against the wall.” The social worker spoke
privately with father, who was “cooperative and willing to discuss” the case. Father
stated that he smoked marijuana “almost every day approximately one to two times per
day.” He explained that he did not smoke inside the home, and normally used the drug
“after work or right after bed.” Father further explained that he had a medicinal
marijuana card, which he showed to the social worker, and that he used the drug to
relieve pain in his hand and his back, and to help him sleep.
In response to questions regarding the presence of the glass bong and ashes found
inside the home, father stated that he normally brought the device inside “before and after
smoking,” and that the ashes were from “cleaning the bong out.” After the social worker

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informed father it was unsafe to have these items in an area that was accessible to the
child, father said he “understood,” and would put the pipe in a secure place.
Father reported that mother had moved into the home with Bella two weeks
earlier. When asked who supervised Bella while father was at work or using marijuana,
he said “usually [Bella’s] mother,” noting that Bella’s maternal grandmother, who lived
next door, also helped supervise the child. Father also said he “typically use[d] when [the
child] [wa]s asleep or not home,” and that he and mother “did not smoke at the same
time.” Father stated that a total of eight people “live[d] in th[e] apartment,” which
included “close friends of the family.” Father asserted they “did not usually smoke
together as it is not intended to be a gathering or party.” Father denied drinking alcohol,
or having ever engaged in any form of domestic violence or abuse. Father said he was
the “financial provider” for the family, currently employed full time as a cook.
The social worker then spoke with mother, who confirmed that she and Bella had
moved in with father two weeks earlier. They had previously lived with the maternal
grandmother. Mother stated that father only smoked outside the house, and that she had
previously instructed him to keep the glass pipe outside. Mother said she attended
vocational school from 5:00 p.m. to 10:00 p.m. each night, explaining that both of Bella’s
grandmothers helped father care for the child when mother was not home. In regards to
her own drug use, mother said she used marijuana “drops right before she goes to sleep as
a sleep aid because she suffers from insomnia.” Mother denied using any other drugs,
and denied any domestic violence in the home. Mother stated that Bella’s “well-being
[was] her priority.”
The social worker also spoke with Bella, who appeared “clean” and “well
groomed,” and displayed no “marks of abuse.” According to the social worker, Bella had
a “friendly disposition and talked openly.” The child stated that she felt “safe with
[parents],” and slept on their bed when she felt afraid of the dark. Bella said she had
never seen the parents smoke inside the house, explaining that they always smoked
outside so that she would not get sick. Bella also said her parents kept her safe, and that
the other people who lived in the apartment were kind.

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 The following day, the parents traveled to DCFS to “discuss an appropriate plan”
to ensure they were never “both under the influence while caring for [Bella].” The social
worker suggested the parents ask the maternal grandmother to stay with the family on
nights when they were both using the drug. Father, however, stated “he would rather
have a plan with mother that they cannot use [the drug] at the same time.” The parents
agreed to take a drug test the next day. Both tests were positive for marijuana. Mother’s
test showed a THC (the active ingredient in marijuana) concentration level of 696
nanograms per milliliter (ng/ml), and father’s test showed a THC concentration of 395
ng/ml. Neither parent tested positive for any other substance.
On June 29, 2015, DCFS contacted the maternal grandmother, who reported that
she had “[no] concerns for Bella.” The grandmother confirmed mother was currently
enrolled in school, and that father was working. The maternal grandmother said she was
“not really worried” about the father’s marijuana use because she felt he used the drug
“responsibly,” and “not to have fun.” She said father used to take pain medication for the
pain in his hand, but the medication was not effective. The grandmother also said she
had never smelled marijuana inside the family home, and that father was always outside
when she had seen him smoking. The maternal grandmother was unsure when father
normally used the drug, but explained that he “respect[ed] . . . his family and does not use
it when we are there. My understanding is he does it at night when Bella is asleep.” The
maternal grandmother reported that she had never seen either parent intoxicated, that
mother was “‘a good woman’” and that father never turned “‘wild or ‘violent.’” The
maternal grandmother also noted that she visited the family “almost [every] night[],” and
would not hesitate to report improper conduct because she was “protective of the kid[].”
On July 6, approximately three weeks after the initial interviews were conducted,
DCFS made an unannounced visit to the parents’ home. The social worker spoke with
Bella, who again appeared “well-groomed,” with no visible marks. The social worker
reported the child was “friendly,” “healthy” and “happy.” Father told the social worker
he was enjoying the time he spent with his daughter, and “adjusting to family life better
than he expected.” Father also said that since DCFS’s initial visit, he had decreased his

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marijuana usage to “2 to 3 times per week, [whereas] before he was using almost daily.”
Father reported he had no difficulty reducing his intake, and had not experienced any
symptoms of withdrawal. When asked where he now kept his “paraphernalia,” father
stated that the pipe was in a cabinet above the refrigerator. Mother reported that she had
also reduced her marijuana usage to about two times per week, and showed the social
worker the drops she had been using. Mother also said she and father were
“communicating when the other is using so that they do not do it at the same time.” Both
parents discussed Bella’s “inquisitive nature,” and reported that she was attending
preschool.
The social worker informed the parents that DCFS’s “preferred plan” was to open
“voluntary family maintenance” services to “monitor that they are not abusing their
medical marijuana card and that one parent is functioning and sober at all times.” The
social worker told the parents the services would include random drug testing and
enrollment in a substance abuse program. The parents stated that although they were
open to the idea of services, they needed time to think about it.
That same day, the social worker spoke to a “collateral who wishe[d] to not be
named.” The source stated that father used to smoke inside, “but never in front of Bella,”
that she had also seen mother smoke, and that all of the parents’ smoking now occurred
outside. The source also said the parents “use[d] marijuana every day,” and that father
sometimes used up to “three times per day.” The source reported mother was caring and
careful with Bella,” and that father was “building an attachment to [the child] and
“attempting to bond with her.” The source denied witnessing any physical abuse of
Bella, or any domestic violence between the parents.
DCFS visited the parents again on July 14, 2015, at which time they reported they
were doing well. Mother showed the social worker her renewed medical marijuana card.
The parents indicated that although they had been “following through” with drug testing,
they were no longer interested in participating in a voluntary plan. Father stated that he
assumed he would not have to provide drug tests “until he [was] mandated to.”

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 2. Section 300 petition and detention
Two weeks after the parents declined to participate in voluntary services, DCFS
filed a petition alleging Bella fell within the jurisdiction of the juvenile court under
Welfare and Institution Code section 300, subdivision (b).1 Count (b)(1) alleged mother
had a “history of illicit drug use and is a daily user of marijuana which renders [her]
incapable of providing regular care and supervision of the child. . . . On numerous prior
occasions, the mother was under the influence of illicit drugs while the child was in the
mother’s care and supervision. The child is of such a young age as to require constant
care and supervision and the mother’s substance abuse interferes with providing regular
care and supervision of the child. The child’s father . . . knew of the mother’s illicit drug
use and failed to protect the child.” Count (b)(2) contained identical allegations
regarding father’s marijuana use, and mother’s failure to protect Bella from such conduct.
Count (b)(3) alleged the parents had “created a detrimental and endangering home
environment for the child in that a drug pipe and ashes from the pipe were found in the
child’s home within access to the child. Such a detrimental and endangering home
environment . . . endangers the child’s physical health and safety. . . .”
DCFS filed a detention report in support of the petition summarizing the results of
its initial investigation. The report also contained a “prior child welfare history”
indicating that father had not been the subject of any prior referrals. Mother had three
prior referrals. In October of 2011, DCFS received a “general neglect” referral alleging
she smoked marijuana in a bedroom she shared with Bella, and spent all of her time
texting and checking Facebook, rather than providing care and attention to her child.
During the ensuing investigation, mother admitted “smoking marijuana once in a while,
but not in the home or in the presence of the child.” Mother had said she used the drug
for medical reasons, and provided a copy of her medical marijuana card. Mother also
said she had devised a plan with the maternal grandmother to act as a second caretaker
for the child. The allegation of “general neglect was [ultimately] deemed unfounded.”

1 Unless otherwise noted, all further statutory citations are to the Welfare and
Institutions Code.

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 DCFS received a second “general neglect” referral in August of 2012 alleging
mother was wanted on an outstanding warrant for failing to pay a marijuana citation.
Mother was subsequently arrested on the warrant, at which time Bella was temporarily
placed with an uncle. The neglect allegation was substantiated based on the fact the child
had to be placed with the uncle while mother was being detained pursuant to her arrest.
DCFS received a third referral in January of 2014 alleging that “a minor informed
someone that mother . . . provides the minor with methamphetamines.” The allegations
were “deemed inconclusive.” The detention report also contained a criminal history,
which showed father had no prior arrests. The report stated that mother had been arrested
in 2012 for failing to pay a marijuana citation (the same arrest that gave rise to her second
dependency referral), and had been convicted of misdemeanor theft in February of 2014.
In its assessment and evaluation, DCFS concluded that although there was no
reason to remove Bella from the parents’ home, it would nonetheless “be in the child’s
best interests for the family to receive services and supervision through [the agency].”
DCFS explained that the “[p]arents are using medical marijuana and though they have a
valid recommendation letter, [they] are not completely responsible with their use of
marijuana. According to [a] collateral [source], parents continue to use daily and while
the child is under their care. Also, given mother’s history with DCFS, it appears that
marijuana use is an ongoing issue. This and the young age of the child poses a risk for
future physical and/or emotional harm.” DCFS recommended that the court: (1) order a
mental health assessment of the child; (2) leave the child in the parents’ custody; and (3)
order both parents to participate in family maintenance services, including a “substance
abuse rehabilitation program with random drug and alcohol testing,” parenting classes
and individual counseling.
The court found DCFS had made a prima facie showing that Bella was a person
described in section 300, subdivision (b), and scheduled a jurisdiction and disposition
hearing for September 25, 2015. The court also followed each of DCFS’s
recommendations, ordering continued placement with the parents and family
maintenance services.

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 B. Jurisdiction and Disposition
1. Jurisdiction report
On September 18, 2015, DCFS filed a “Jurisdiction/Disposition Report”
summarizing additional interviews it had conducted with the family members. On
August 19, 2015, DCFS interviewed Bella at her home. The social worker reported the
child was “friendly and outgoing.” Bella told the social worker she felt “safe at home
other then when there is something ‘spooky’ under the bed when it is dark,” and enjoyed
watching her collection of Disney movies with her parents. According to the social
worker, Bella “appeared to be a well adjusted happy child” who “did not report anything
[that was] concerning.”
The social worker also interviewed both parents. Father stated he and mother had
“dramatically” decreased their marijuana usage “since DCFS’[s] involvement,” and
further indicated that mother is “not using.” He also stated that when mother used the
drug, she did so only as a sleep aid. He reported that he had been using the drug for
approximately five years to relieve hand and back pain, and to relax. Father also stated
that the paraphernalia DCFS had previously seen in the home belonged to “the former
roommates,” and that he had “got rid of [it].” The social worker noted that the parents
had “stable housing,” and that father was now employed as a security guard.
Mother informed the social worker that she had also been using marijuana for the
past five years. When she used the drug, she put “drops” into a glass of water
immediately before bed to help her sleep. She also said that when she or father used
marijuana, somebody was always nearby, including the maternal grandmother, who lived
next door. According to mother, she and father “don’t ever get high knowing [the child]
is awake,” and never “wanted to be impaired while caring for [their] daughter.” Mother
stated that although she had used marijuana for the past five years, she was currently
looking for “other ways to help fall asleep.” She confirmed that father used marijuana for
his hand and back pain, and that the parents had removed all the drug paraphernalia from
the home shortly after DCFS’s initial visit.

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 DCFS also spoke with the paternal aunt, who was renting a room in the family’s
residence. The aunt stated that she was in an internship to become a social worker for the
Los Angeles Unified School District. The aunt said mother and father “would use [the
drug] at night,” but that she had never seen mother under influence of the drug.
According to the aunt, mother was always “cooking, cleaning or going to school.” The
aunt also reported she had never witnessed the parents use the drug together, nor had she
ever seen either parent use the drug in the presence of Bella. The aunt stated that she did
not believe the parents abused the drug, and that she had never seen any form of
paraphernalia in the house.
The jurisdiction report also listed the results of additional drug tests the parents
had been scheduled to take. Following her initial test in mid-June, which showed a THC
concentration level of 696 ng/ml, mother had failed to appear for tests scheduled on July
28 and August 4. On August 19, she provided a positive test that showed a THC
concentration level of 197 ng/ml, which was approximately 70 percent lower than her
initial test in June. Mother’s most recent test on September 4, 2015 was negative. After
testing positive for marijuana in June, father failed to appear for five tests scheduled
between July 10 and September 10.
During a meeting with the family on August 19, the parents indicated they would
comply with a “WIC 301 contract,”2 were “open to receive” family preservation services
and random drug testing and understood that their “marijuana levels need[ed] to decrease
over time.” Following the meeting, however, DCFS elected not to go forward with a
voluntary plan given the parents’ prior failure to comply with random drug testing.
DCFS concluded that although the parents had “extended family support” and had been

2 Section 301 authorizes DCFS to engage in informal supervision where the social
worker “determines that a child is within the jurisdiction of the juvenile court or will
probably soon be within that jurisdiction.” (§ 301, subd. (a).) Through the informal
supervision, “the social worker shall attempt to ameliorate the situation which brings the
child within, or creates the probability that the child will be within, the jurisdiction of
Section 300 by providing or arranging to contract for all appropriate child welfare
services. . . .” (Ibid.)

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“cooperative” throughout the process, their refusal to participate in all of the agency’s
recommended services nonetheless showed that their “substance use need[ed] to be
addressed in a professional setting such as a drug treatment program as they continue to
use . . .[and they] need to take responsibility for their marijuana use and address this
through drug counseling.” DCFS expressed concern that because father had not been
compliant with drug testing, the agency was unable to verify whether he had decreased
his marijuana usage. DCFS also noted that because mother attended school for five hours
each evening, there was a risk father was “supervising [the child] while under the
influence of marijuana.” DCFS recommended the court sustain the petition, and order
the parents to participate in drug testing, attend AA/NA meetings and complete a family
education class.
On September 25, DCFS filed a last minute information reporting that the agency
had received the results of a drug test father had taken on September 14. Although the
test was positive for marijuana, his THC concentration level had dropped to 127 ng/ml,
approximately 70 percent lower than the level detected in his June test.

2. Jurisdiction hearing
At the September 25 jurisdiction hearing, the court announced the parties had
agreed to allow the parents to continue drug testing for four additional weeks, and then
reexamine whether an informal supervision contract (see § 301) would be appropriate.
The court agreed to the request, but warned the parents that if they failed to comply with
all of DCFS’s requirements, including drug testing and attending substance abuse
programming, the court would proceed to an adjudication on the section 300 petition.
The court scheduled a hearing on October 30, 2015. The court ordered DCFS to file a
last minute information prior to that date recommending whether the petition should be
“dismissed with a contract under 301.”
On October 30, 2015, DCFS submitted a last minute information stating that the
parents had not yet enrolled in any drug treatment programs. Since the September 25
hearing, however, father had provided a second drug test showing a THC concentration

10
level of 113 ng/ml, which was slightly lower than the test he had provided in mid-
September, and substantially lower than the test he provided in June. Mother had
provided three additional drug tests: a test on September 18 showed a THC level of only
35 ng/ml, and tests on October 7 and October 13 had been negative. DCFS nonetheless
recommended that the court sustain the petition, explaining: “It is crucial that mother and
father address their marijuana use in order to ensure that . . . Bella is safe in their care.
Additionally, given mother’s history of DCFS referrals, all pertaining to alleged
substance use, it appears that marijuana use is an ongoing issue for the mother. This and
the young age of the child pose a risk for future physical and/or emotional harm.”
At the October 30 hearing, the court announced it intended to proceed with an
adjudication of the section 300 petition. Prior to hearing argument, the court informed
the parties it was “inclined to make true findings and take jurisdiction and ensure that the
child is being raised in a drug-free environment.” Counsel for Bella argued the court
should dismiss the petition because there was no evidence the parents’ marijuana use had
“negatively affect[ed]” the child, or otherwise placed her at any risk of harm. Counsel
emphasized that although mother had missed some drug tests early in the proceedings,
her recent tests showed she had now stopped using the drug.
Counsel for mother also requested that the petition be dismissed in its entirety,
explaining that DCFS had made no showing that the parents’ drug use placed the child at
risk of harm. Counsel argued the evidence showed only that mother had previously used
marijuana drops to aid her sleep, and that she had now stopped taking the drug.
Moreover, father had never used the drug while the child was awake, nor was there any
evidence he had actually used it while he was supervising the child. Father’s counsel
agreed, explaining that the reports contained no evidence Bella had been “neglected in
any way, shape or form or that she [was] not being well taken care of.” Father’s counsel
noted the paternal aunt, who lived with the family and was training to be a social worker,
had never seen drug paraphernalia in the home, and had never seen the parents use the
drugs together or in the child’s presence.

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 DCFS, however, argued that the court should sustain the petition because the
parents had repeatedly refused to participate in voluntary services. The agency also
argued that the evidence in its reports suggested the parents had provided inconsistent
answers regarding their drug use, and that “there [wa]s partying going on in th[e] house.”
The court sustained the petition in its entirety, explaining: “[T]he child is being
raised in an environment where it’s not a drug-free home. Ashes from the bong and the
bong were found in an area where the child could have easily reached them even though
it could have been moved . . . . I appreciate that [the parents have medical marijuana]
card[s,] [b]ut that doesn’t mean to say that they can do it in such a way that it would be
accessible to the child. . . . I agree . . . this is not a situation where it [is] sufficiently
dangerous to the child where I need to remove. We can deal with this issue by keeping
the child home with the parents and ensuring that the parents will do what they need to do
to test and take the treatment and then we know that the child will be safe.”
The court ordered the parents to provide five drug tests, and further ordered that if
any tests were missed or did not come back clean, the parents would be required to
participate in a “full program with weekly testing.” The court also ordered the parents to
attend AA/NA classes and parenting classes. The court then addressed the parents
directly, stating: “You’ve got your baby right now. I’d like to see it end that way. But
you will have to deal with these issues. And if you deal with them constructively in six
months, we’ll probably be over with this case and everybody will be out the door happier
and better off, because you’re better parents and not using drugs and not exposing your
child to drugs. That’s what we would all like to have happen. That’s in the law. The
legislature says we don’t want to have children raised in drug environments. We want a
drug-free environment for children to be raised in, Okay? . . . . So let’s deal with these
risks with the child in the home.”

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 DISCUSSION
A. Summary of Governing Law and Standard of Review
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), 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.’ [Citation].”
(In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215–1216 (Christopher R.).)
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,
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.)
“We review the juvenile court’s jurisdictional findings and disposition orders for
substantial evidence. [Citation.] 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.’ [Citations.]” (Christopher R., supra,
225 Cal.App.4th at p. 1216.) “‘“However, substantial evidence is not synonymous with
any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not

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be affirmed on appeal. [Citation.] Furthermore, ‘[w]hile substantial evidence may
consist of inferences, such inferences must be “a product of logic and reason” and “must
rest on the evidence” [citation]; inferences that are the result of mere speculation or
conjecture cannot support a finding [citations].’ [Citation.] ‘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.’ [Citation.]” [Citation.]’ [Citation.]” (In re Drake M. (2012) 211 Cal.App.4th
754, 763 (Drake M.).)

B. The Record Contains Insufficient Evidence to Support a Finding that Either
Parent Has a Substance Abuse Problem

The parents argue there was insufficient evidence to support the trial court’s
jurisdictional finding that they each had a “substance abuse” problem within the meaning
of section 300, subdivision (b) or section 300.2. According to parents, the evidence
showed nothing more than that they used medical marijuana, which they were both
licensed to do.
It is well-established that “without more, 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; In re Destiny S. (2012) 210 Cal.App.4th 999, 1003
(Destiny S.) [“parent’s use of marijuana . . . ‘without more,’ does not bring a minor
within the jurisdiction of the dependency court”].) As explained in Drake M., supra, 211
Cal.App.4th 754, the language of section 300, subdivision (b) makes clear that
“jurisdiction based on ‘the inability of the parent or guardian to provide regular care for
the child due to the parent’s . . . substance abuse,’ must necessarily include a finding that
the parent at issue is a substance abuser.” (Id. at p. 764 [emphasis in original].) This is
especially true where, as here, the substance at issue is one that was legally prescribed to
the parent: “[A parent’s] . . . use of medical marijuana, without more, cannot support a
jurisdiction finding that such use brings the minors within the jurisdiction of the
dependency court, not any more than his [or her] use of [any other] medications [legally]
prescribed for him [or her] by his [physician] brings the children within the jurisdiction of

14
the court.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 453 (Alexis E.) [emphasis
omitted].)3
Our courts have applied different standards to assess what constitutes “substance
abuse,” a term the Legislature has not defined. (See Christopher R., 225 Cal.App.4th at
p. 1217.) In Drake M., supra, 211 Cal.App.4th 754, Division Three of this District
“proposed a definition . . . based on the American Psychiatric Association’s Diagnostic
and Statistical Manual of Mental Disorders (4th rev. ed. 2000) (DSM-IV-TR). . . . [T]he
Drake M. court held ‘a finding of substance abuse for purposes of section 300,
subdivision (b), must be based on evidence sufficient to (1) show that the parent or
guardian at issue had been diagnosed as having a current substance abuse problem by a
medical professional or (2) establish that the parent or guardian at issue has a current
substance abuse problem as defined in the DSM-IV-TR. The full definition of “substance
abuse” found in the DSM-IV-TR describes the condition as “[a] maladaptive pattern of
substance use leading to clinically significant impairment or distress, as manifested by
one (or more) of the following, occurring within a 12-month period: [¶] (1) recurrent
substance use resulting in a failure to fulfill major role obligations at work, school, or
home (e.g., repeated absences or poor work performance related to substance use;
substance-related absences, suspensions, or expulsions from school; neglect of children
or household)[; ¶] (2) recurrent substance use in situations in which it is physically
hazardous (e.g., driving an automobile or operating a machine when impaired by
substance use)[; ¶] (3) recurrent substance-related legal problems (e.g., arrests for

3 In addition to requiring “a finding of substance abuse,” jurisdiction under section
300, subdivision (b) requires a showing that the parent “is unable to provide regular care
resulting in a substantial risk of physical harm to the child.” (Drake M., supra, 211
Cal.App.4th at p. 766.) However, when, as here, the child at issue is “six years old or
younger at the time of the jurisdiction hearing – [a] child[] of ‘tender years’ . . . – ‘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 harm.’ [Citation.]”
(Christopher R., supra, 225 Cal.App.4th at p. 1219.) In this case, the parents have not
challenged the “risk of harm” element, asserting only that DCFS failed to provide
substantial evidence they are substance abusers, rather than merely users of medical
marijuana.

15
substance-related disorderly conduct)[; and ¶] (4) continued substance use despite having
persistent or recurrent social or interpersonal problems caused or exacerbated by the
effects of the substance (e.g., arguments with spouse about consequences of intoxication,
physical fights).” [Citation]. [Citation.]” (Christopher R., supra, 225 Cal.App.4th at
pp. 1217 –1218.)
In Christopher R., this court “recognize[d] the Drake M. formulation as a
generally useful and workable definition of substance abuse for purposes of section 300,
subdivision (b).” (Christopher R., supra, 225 Cal.App.4th at p. 1218.) We further held,
however, that Drake M.’s formulation was “not a comprehensive, exclusive definition
mandated by either the Legislature or the Supreme Court,” and rejected the assertion that
“only someone who has been diagnosed by a medical professional or who falls within
one of the specific DSM-IV-TR categories can be found to be a current substance
abuser.” (Ibid.) We concluded the evidence in that particular case, however, which
showed the mother had used cocaine during the late stage of her pregnancy (causing the
child to test positive for the drug at birth) and that father had recently violated the terms
of his probation by testing positive for marijuana, justified the exercise of jurisdiction.4
Regardless of which specific standard we apply, we conclude the record here does
not contain substantial evidence that either parent had a substance abuse problem within
the meaning of section 300, subdivision (b). During their initial interview with DCFS,
both parents informed DCFS they regularly used medicinal marijuana, and were both
licensed to do so. Father explained he had obtained a physician’s recommendation to use
the drug for pain in his back and his hand, and mother stated that she used diluted
marijuana “drops” before going to sleep to treat her insomnia. Both parents agreed to
take a drug test, which tested negative for all drugs other than marijuana.

4 Division Eight of this District has adopted a definition derived from Drake M.,
explaining that to support a jurisdictional finding based on substance abuse, there must be
“a medical diagnosis of substance abuse” or “evidence of life-impacting effects of drug
use.” (In re Rebecca C. (2014) 228 Cal.App.4th 720, 726.)

16
 In their follow-up interviews with DCFS, the parents reported they had
substantially reduced their marijuana intake, and taken steps to ensure they were not
simultaneously under the influence of the drug. Father reported he had reduced his
marijuana intake to two to three times a week, and claimed he had not had any difficulty
doing so. Mother also claimed she was now only taking the drug two times per week.
The parents’ subsequent drug tests supported their claim that they had substantially
reduced their drug intake. Father’s tests in September and October showed his THC
concentration level was 68 percent and 72 percent lower than the level found in the test
he took in June. Mother provided a drug test in August that showed her THC
concentration level was 70 percent lower than the level found in her June test. In
September she provided two additional tests: one was negative, and the other showed a
THC concentration level that was 95 percent less than her initial June test. She also
provided multiple negative tests in October.
DCFS’s reports contain no evidence the parents had used the drug in the child’s
presence, nor does it contain any evidence demonstrating the parents simultaneously used
the drug in a manner that rendered them incapable of caring for the child. The maternal
grandmother, who checked on Bella “almost nightly,” and the maternal aunt, who lived
with the child, did not believe the parents were abusing the drug, nor did they believe that
parents’ drug use was having any negative effects on the child or on the family’s life.
DCFS consistently reported that Bella appeared to be a “well-adjusted,” “happy,”
“friendly” and “open” child who felt safe with her parents. There was no evidence either
parent had engaged in any form of violence or abuse, nor was there evidence that the
home environment was unstable. To the contrary, DCFS reported that the family’s
housing situation was “stable,” that father was employed full time, that mother was
attending vocational school and that Bella was attending preschool. Moreover, the
maternal and paternal grandmothers were each providing additional support to the family.
Neither parent had any substantial prior criminal or child welfare history. Father
had never been arrested, and had no prior involvement with the dependency court.
Mother had been the subject of a “general neglect” referral involving marijuana use four

17
years earlier. During the investigation, mother admitted she occasionally used marijuana
for medical reasons, and provided a medical marijuana card. The referral was deemed
unfounded, meaning that the agency concluded the report was either false, inherently
improbable or did not to constitute child abuse. (See Pen. Code, § 11165.12, subd. (a);
B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 192-193 & fn. 9].) The
following year, mother was cited for marijuana possession, and was then arrested and
detained after she failed to appear in court on the citation. Mother was released after
paying the fine. Although this arrest generated a second dependency action that resulted
in a substantiated finding of “general neglect,” the record indicates the neglect finding
was not based on mother’s drug use habits, but rather because Bella had to be temporarily
placed with a family member during the brief period mother was detained pursuant to her
arrest. A more recent referral involving an allegation that a “minor had told someone”
mother gave him methamphetamine was deemed inconclusive, meaning that there was
insufficient evidence to determine what had occurred. (See Pen. Code, § 11165.12, subd.
(c).) Thus, while mother’s history does indicate she was the subject of two prior legal
proceedings involving marijuana use, neither proceeding was recent (see Destiny S.,
supra, 210 Cal.App.4th at p. 1004 [conduct described in investigation that occurred many
years ago not relevant to current risk assessment], and neither resulted in a finding of
substance abuse.
In sum, the evidence shows that: (1) both parents possessed a valid medical
marijuana card; (2) after their initial meeting with DCFS, the parents agreed to reduce
their marijuana intake and take precautions to ensure they did not take the drug at the
same time; (3) the parents’ drug tests indicated they had in fact substantially reduced their
drug intake; (4) the parents did not use the drug in the child’s presence; (5) there was
never any professional diagnosis of substance abuse; (6) the parents have met the child’s
basic needs, and provided a stable home environment; (7) Bella is a happy, well-adjusted
child who feels safe with her parents; (8) other family members who had daily contact
with the family had no concerns regarding the child or the parents’ drug use; and (9)

18
neither parent has a substantial criminal history or any prior substantiated finding of
substance abuse.
These facts distinguish this case from other decisions that have affirmed a
jurisdictional finding predicated on substance abuse. In Christopher R., supra, 225
Cal.App.4th 1210, for example, we affirmed a finding of substance abuse where the
evidence showed the parent had used marijuana daily since the age of 14; had steadily
increased his intake of the drug; had never obtained a medical marijuana card; and had
recently violated the terms of his parole by failing to complete a substance abuse program
and testing positive for marijuana. (Id. at pp. 1213-1214, 1219-1220.) In Alexis R.,
supra, 171 Cal.App.4th 438, Division Three of this District affirmed a finding of
substance abuse based on evidence showing that the father “constantly” smoked
marijuana in the presence of his children, that his drug use had a “negative effect on his
demeanor towards his children and others,” which included neglectful behavior and
violent outbursts and had admitted he could “not function” without the drug. (Id. at
pp. 451-453.) In Rebecca C., supra, 228 Cal.App.4th 720, Division Eight of this court
affirmed a jurisdiction finding based on substance abuse where the evidence showed
mother had tested positive for methamphetamine, amphetamine and marijuana after
specifically denying any current use of drugs. She later admitted she had a substance
abuse problem, had several prior criminal convictions involving drug use, and had been
the subject of a prior dependency proceeding that resulted in a finding of drug abuse.
(Id. at pp. 722-723, 726-727.)
In contrast, the parents here never denied their marijuana use, both held valid
medical marijuana cards and were both able to substantially reduce their drug intake
immediately after DCFS became involved. Moreover, there was no evidence the parents’
drug use had interfered with their major life obligations, or negatively affected their
relationships with each other, the child or anyone else. The facts of this case are
therefore analogous to Drake M., supra, 211 Cal.App.4th 754, in which the court
reversed a jurisdictional finding based on father’s marijuana use. The father in Drake M.
admitted he regularly used medical marijuana to treat arthritis, and had done so for years.

19
The evidence showed, however, that father had a steady job, provided for the child’s
basic needs, remained sober in the child’s presence and had no significant legal, social, or
personal problems caused by his drug use. The court concluded such evidence was not
sufficient to show “father ha[d] a substance abuse problem.” (See In re Drake M., supra,
211 Cal.App.4th at pp. 766-768.) The same is true here.
DCFS, however, contends that three categories of evidence support the court’s
finding that the parents did in fact have a substance abuse problem. First, DCFS argues
the record shows the parents refused to participate in voluntary drug treatment prior to the
jurisdiction hearing. According to DCFS, this conduct demonstrates the parents were not
“serious about addressing their substance abuse issues, thereby prolonging their
substance-related legal problems.” DCFS’s reasoning is circular, positing that the
parents’ decision not to accept services for a condition they contend DCFS has otherwise
failed to prove (substance abuse) is itself evidence of the condition. In the absence of
independent evidence establishing that the parents did in fact have a substance abuse
problem, we fail to see how their decision to decline DCFS’s request for voluntary
services is, in itself, evidence of such a problem.
Second, DCFS argues the juvenile court’s finding of substance abuse is supported
by evidence showing the parents “were less than forthright about the continuing nature
and extent of their marijuana use.” More specifically, DCFS asserts that although the
parents told the agency they had substantially reduced their marijuana intake during an
interview on July 6, 2015 (which was three weeks after their initial interview), other
evidence in the record shows the parents had in fact “continued to use marijuana on a
daily basis [even] after DCFS [first] became involved with the family.” DCFS’s brief
does not describe what specific evidence proves the parents misrepresented that they
were no longer using marijuana on a daily basis. The brief contains a citation to a portion
of the detention report that summarizes an interview the agency conducted with an
unnamed “collateral source” on July 6, 2015. The report states the unnamed source had
claimed the parents “used marijuana every day,” and that father sometimes used the drug
up to three times a day. DCFS appears to posit this statement constitutes substantial

20
evidence that parents were being untruthful when they told DCFS in July that they had
reduced their marijuana usage.
The collateral source’s statement regarding the frequency of parents’ drug use
does not, however, identify what specific time period the speaker was referring to. In
their June meeting with DCFS, the parents did not deny daily usage of the drug. It was
not until their subsequent interviews in July and August that the parents claimed to have
reduced their marijuana usage to two times per week. The parents’ claims are supported
by the results of their subsequent drug tests in August, September and October, which
showed significant reductions in their respective THC levels. The collateral source, in
turn, did not state that the parents continued to use drugs daily even after their initial
meeting with DCFS. Rather, the source stated only that parents used the drug daily.
Without any information clarifying the specific time period to which the speaker was
referring, this isolated, anonymous statement is not sufficient to show the parents were
being untruthful about the changes in their drug use.
Third, DCFS argues there is substantial evidence that after the agency interviewed
the parents in June, they continued to use marijuana together each night, suggesting they
were simultaneously “impaired” while Bella was under their supervision. The sole
evidence DCFS relies on in support of this assertion is the paternal aunt’s statement
during an interview on September 25 that the parents “would use at night.” The paternal
aunt did not, however, state that the parents both used the drug every night, or that they
used the drug at the same time. To the contrary, the aunt specifically clarified that she
had never seen mother “under the influence,” and had never seen the parents “use
together or in front of Bella.” Considered as a whole, the only inference that can be
reasonably drawn from the aunt’s comment is that when the parents did use marijuana,
they did so only at night.5

5 Throughout its brief, DCFS also relies on information provided in the referral that
precipitated the agency’s investigation. Specifically, DCFS relies on statements in the
referral alleging there were other people in the home smoking marijuana, that the odor of
marijuana extended from the house to the street, and that the child was present when

21
 At the adjudication hearing, the juvenile court appeared to base its jurisdictional
finding on a fourth category of evidence: DCFS’s observation of a marijuana pipe and
ashes in an area accessible to the child during the agency’s first visit to the home. In
sustaining the petition, the court said: “All right. The court will find the . . . counts true
as plead. The risk that the child is being raised in an environment where it’s not a drug
free home. Ashes from the bong and the bong were found in an area where the child
could have easily reached them even though it could have been moved. . . . It would [not]
be ok if you were to be a user . . . of . . . alcohol or something . . . and left open bottles or
half-drunk glasses . . . of alcohol where a child could find their way to that . . . .” The
court later emphasized the Legislature had directed that children should not be “raised in
drug environments. We want a drug-free environment for children to be raised. . . . It’s
no different than if you left a . . . bottle of wine on the coffee table in the living room and
the child drank it all.”6
To the extent the juvenile court concluded that, regardless of whether the parents
were substance abusers, the act of leaving the pipe and ashes in an area accessible to
Bella on a single occasion demonstrated they had placed the child at risk of harm by
failing to adequately supervise her (see § 300, subd. (b) [permitting jurisdiction where
“[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]), the record does not support that
finding. There is no evidence the parents ever left Bella unattended in the presence of
these items. Moreover, after DCFS informed father that the paraphernalia was potentially

marijuana was being smoked. DCFS, however, presented no evidence substantiating
these allegations.

6 The court’s statement that the Legislature has directed children should be raised in
a “drug-free environment” appears to be a reference to section 300.2, which states: “The
provision of a home environment free from the negative effects of substance abuse is a
necessary condition for the safety, protection and physical and emotional well-being of
the child.” As discussed above, however, use and abuse are not interchangeable terms.

22
hazardous to the child, father immediately placed the items in a secure location, and later
removed them from the home. During subsequent visits to the house, at least one of
which was unannounced, DCFS reported that father had secured the pipe in a cabinet
above the refrigerator, and later removed the item from the house. We do not believe
father’s act of leaving a pipe and marijuana ashes in an area accessible to the child on a
single occasion is itself substantial evidence that the parents had placed the child at
substantial risk of serious physical harm or illness.
In sum, under the circumstances presented here, we conclude the juvenile court’s
order declaring the child a dependent of the court pursuant to section 300, subdivision (b)
is not supported by substantial evidence.7

DISPOSITION
The juvenile court’s jurisdictional findings and disposition order are reversed.

ZELON, J.

We concur:

PERLUSS, P. J.

SEGAL, J.

7 During the jurisdictional hearing, the court stated that it had declared the child a
dependent pursuant to section 300, subdivisions “(a) through (j).” The parties agree that,
in light of the fact the petition alleged jurisdiction only under subdivision (b), the court’s
oral references to the other subdivisions in section 300 was error. We agree that the
record clearly demonstrates that to be the case, and that the minute order failed to
accurately record the court’s erroneous ruling.

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