In re K.D. CA2/2

Filed 11/3/20 In re K.D. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re K.D., a Person Coming B304860
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
19CCJP06476A)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

E.G.,

Defendant and Appellant.

APPEAL from findings and orders of the Superior Court of
Los Angeles County, Stephen C. Marpet, Judge Pro Tempore.
Affirmed.
 Erin Riley Khorram, under appointment by the Court of
Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, and Stephanie Jo Reagan, Principal
Deputy County Counsel, for Plaintiff and Respondent.
______________________________

On February 10, 2020, the juvenile court declared K.D.
(minor, born 2013) a dependent of the court pursuant to Welfare
and Institutions Code section 300, subdivision (b)(1).1 Among its
dispositional orders, the court required appellant E.G. (mother)
to submit to drug testing if suspected of being under the influence
by the Los Angeles County Department of Children and Family
Services (DCFS). On appeal, mother contends, first, that there
was insufficient evidence to support the court’s jurisdictional
finding that she knew or should have known about substance
abuse by minor’s father, J.D. (father),2 and failed to protect
minor; and, second, that the court abused its discretion by
ordering her to drug test.
We affirm.
BACKGROUND
Referral and Initial Investigation
In August 2019, DCFS received a referral alleging that
mother and father emotionally abused minor through their

1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 Father is not a party to this appeal.

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ongoing domestic violence and substance abuse and sales in the
family home.
A DCFS social worker interviewed the family on August 27,
2019. Both mother and father admitted that they argued but
denied physical violence. Father also denied using drugs or
alcohol. Minor stated that she did not know what drugs or
alcohol were and denied all forms of abuse and neglect.
According to mother and father, minor was not enrolled in school
because she was missing a physical examination due to the
suspension of Medi-Cal benefits.
Father tested positive for methamphetamines and
amphetamines on August 28, 2019.3 When contacted by the
social worker regarding the results, father admitted his drug use.
Mother claimed that she had no knowledge of and had never
witnessed father’s drug use.
Mother missed a drug test on August 28, 2019, but tested
negative on September 3, 2019. The social worker contacted
mother on September 19, 2019, regarding a second drug test.
Mother made excuses regarding why she could not get tested that
“seemed erratic” to the social worker, including “‘why did you
wait so long to drug test me again?’” She felt frustrated being
asked to do so many things when it was father who had tested
positive, and she stated that she did not have time to do what
DCFS requested.
Minor was enrolled in school as of September 16, 2019.

3 According to his probation officer, father tested positive for
methamphetamines in July 2019. The record also reflects that
father had numerous drug-related arrests and, in August 2019,
was convicted of possession of a controlled substance (Health &
Saf. Code, § 11377).

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Dependency Petition
On October 4, 2019, DCFS filed a single-count dependency
petition seeking the juvenile court’s exercise of jurisdiction over
minor. Brought under section 300, subdivision (b)(1) (failure to
protect), the petition alleged that father had a history of
substance abuse and was a current abuser of methamphetamines
and amphetamines, which rendered him unable to provide
regular care and supervision of minor. Mother knew or
reasonably should have known about father’s substance abuse yet
failed to protect minor by allowing father to reside in the same
home as minor and have unlimited access to her.
Detention Hearing
At the detention hearing on October 7, 2019, the juvenile
court found that a prima facie showing had been made that minor
was a person described by section 300. Minor was released to
mother and father under DCFS supervision.
Father’s Arrest
Father was arrested on October 31, 2019, on suspicion of
murder. A DCFS investigator interviewed father in custody.
Father reported that he had been in an on-again, off-again
relationship with mother for 24 to 25 years. In addition to minor,
mother and father shared an adult daughter. Father began using
alcohol and marijuana when he was 15 years old and
methamphetamines when he was 20 years old. For the past few
years, he had used methamphetamines daily. He admitted to
having a drug problem and also stated that he had a history of
gang affiliation.
Mother was interviewed in November 2019. She stated
that she met father when she was 13 years old, and they had
“dated ‘on/off’ since then.” They had lived together since minor’s

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birth, but he was always in and out of jail. Mother was aware
that father had used methamphetamines in the past, but she did
not know about his current use. Mother “appear[ed] stressed and
somewhat overwhelmed” by financial difficulties and father’s
incarceration. She was, however, cooperative and receptive to
services.
In December 2019, the DCFS investigator spoke to a
detective involved in father’s criminal case. According to the
detective, there was no reason to believe that mother was
involved in the murder and no drugs or drug paraphernalia were
found during a search of the house.
Based on father’s incarceration, on December 9, 2019, the
juvenile court granted an ex parte request by DCFS to detain
minor from father.
Last Minute Information for the Court
In early February 2020, DCFS reported that mother and
minor were receiving family preservation services, in which
mother had been cooperative. Mother missed a drug test on
January 15, 2020, due to a work conflict, but she tested negative
on January 22, 2020.
Adjudication Hearing
On February 10, 2020, mother’s counsel argued that the
juvenile court should strike the dependency petition’s allegation
that mother failed to protect minor from father’s substance
abuse. DCFS and minor’s counsel asked the court to sustain the
petition as pled, which the court did based on a preponderance of
the evidence. Minor was declared a dependent of the court,
removed from father, and released to mother under DCFS
supervision.

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 The juvenile court ordered a developmentally appropriate
parenting program and individual counseling for mother. The
court also ordered mother to submit to on-demand drug tests only
if DCFS suspected that she was under the influence. Mother’s
counsel had “[n]o objection to drug testing” but asked if mother
missed a test that “it be walked on for further orders rather than
[for] mother [to] enter a program.” The court agreed.
This timely appeal ensued.
DISCUSSION
I. Substantial Evidence Supports the Challenged
Jurisdictional Finding.
A. Relevant law and standard of review
Under section 300, subdivision (b)(1), the juvenile court has
jurisdiction over and may adjudge to be a dependent of the court
a “child [who] 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 . . . to adequately
supervise or protect the child, or the willful or negligent failure of
the child’s parent . . . to adequately supervise or protect the child
from the conduct of the custodian with whom the child has been
left, . . . or by the inability of the parent . . . to provide regular
care for the child due to the parent’s . . . mental illness,
developmental disability, or substance abuse.”
“[S]ection 300 does not require that a child actually be
abused or neglected before the juvenile court can assume
jurisdiction. The subdivision[] at issue here require[s] only a
‘substantial risk’ that the child will be abused or neglected. The
legislatively declared purpose . . . ‘is to provide maximum safety
and protection for children who are currently being physically,
sexually, or emotionally abused, being neglected, or being

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exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.’
(§ 300.2, italics added.)” (In re I.J. (2013) 56 Cal.4th 766, 773.)
“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.” (§ 300.2.) “‘[T]he 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[]’” to a child
“six years old or younger at the time of the jurisdiction hearing[.]”
(In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219
(Christopher R.).) For a child “‘of such tender years . . . the
absence of adequate supervision and care poses an inherent risk
to [his or her] physical health and safety.’” (Id. at p. 1216; see
also In re Drake M. (2012) 211 Cal.App.4th 754, 766–767
(Drake M.).)
We review jurisdictional findings for substantial evidence.
(In re T.W. (2013) 214 Cal.App.4th 1154, 1161.) “Evidence is
‘“[s]ubstantial”’ if it is ‘“reasonable, credible, and of solid value.”’
[Citation.] We do not pass on the credibility of witnesses,
attempt to resolve conflicts in the evidence or weigh the evidence.
Instead, we draw all reasonable inferences in support of the
findings, view the record in favor of the juvenile court’s order and
affirm the order even if other evidence supports a contrary
finding.” (Id. at pp. 1161–1162.)
B. Analysis
Mother does not challenge the juvenile court’s finding that
father abused substances. Nor could she reasonably do so, given
the ample evidence provided by father’s positive drug tests, his
drug-related criminal history, and his admission that for the past

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few years he had used methamphetamines on a daily basis and
had a drug problem.4 (See In re R.R. (2010) 187 Cal.App.4th
1264, 1284 [a father who had a long history of methamphetamine
use, had recently been hospitalized due to drug use, and had lied
about his drug use had “a compromised ability to care for his
child, thus justifying the assumption of jurisdiction”].) Instead,
mother argues that substantial evidence does not support the
finding that she knew or should have known about father’s
substance abuse and failed to protect minor from it. We
disagree.5

4 This is not a case in which the juvenile court conflated drug
use with drug abuse. (Cf. In re L.C. (2019) 38 Cal.App.5th 646,
648, 652 [holding that a legal guardian’s occasional
methamphetamine use did not support dependency jurisdiction
under section 300, subdivision (b), where “the record support[ed]
only the conclusion that [the legal guardian] used
methamphetamine” but did “not support the conclusion that [the
legal guardian] abused it”].)
5 DCFS contends that mother’s claim is not justiciable
because dependency jurisdiction based on father’s conduct would
continue irrespective of the jurisdictional finding regarding
mother’s conduct. “Because the juvenile court assumes
jurisdiction of the child, not the parents, jurisdiction may exist
based on the conduct of one parent only.” (In re J.C. (2014)
233 Cal.App.4th 1, 3.) “However, when, as here, the outcome of
the appeal could be ‘the difference between [mother]’s being an
“offending” parent versus a “non-offending” parent,’ a finding
that could result in far-reaching consequences with respect to
these and future dependency proceedings, we find it appropriate
to exercise our discretion to consider the appeal on the merits.”
(In re Quentin H. (2014) 230 Cal.App.4th 608, 613.)

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 Mother had known father since she was 13 years old and
had been in a relationship with him for over 20 years. They
shared two children and a home. Mother reported that father
was always in and out of jail and that she was aware of his past
methamphetamine use. The juvenile court did not need to credit
mother’s assertion that she was unaware of his continuing, daily
drug use. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043 [“A
trier of fact is free to disbelieve a witness, even one
uncontradicted, if there is any rational ground for doing so”].)
Even if mother did not actually know that father was abusing
drugs, the court could reasonably infer that she should have
known.
Because minor was six years old at the time of the
adjudication hearing, she was a child of “‘tender years’” and
father’s substance abuse constituted prima facie evidence of his
inability to provide regular care of her, resulting in a substantial
risk of harm.6 (Christopher R., supra, 225 Cal.App.4th at
p. 1219.) Despite the risk father posed to minor, mother allowed
him to live in the same home as minor and, it can be inferred,
have unlimited access to her. This was substantial evidence from
which the juvenile court could find that mother failed to protect
minor.
Mother argues that, at the time of the adjudication hearing,
father no longer posed a threat to minor because he was

6 Because of this presumption and the fact that evidence of
actual neglect is not required for a juvenile court to properly
exercise dependency jurisdiction (In re I.J., supra, 56 Cal.4th at
p. 773), mother’s contention that neither DCFS nor the juvenile
court identified a specific actual or potential harm to minor
resulting from father’s substance abuse does not warrant
reversal.

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incarcerated and not living in the home. It is certainly true that,
“[w]here jurisdictional allegations are based solely on risk to the
child, and not on past injury, a juvenile court ordinarily
determines whether a substantial risk of harm exists at the time
of the jurisdiction hearing[.]” (In re J.M. (2019) 40 Cal.App.5th
913, 921.) But here, although father remained in custody after
his October 2019 arrest when the February 2020 adjudication
hearing was held, nothing in the record suggests that he had
been convicted. Father had previously returned to the family
home after periods in jail. The reasonable inference follows that
father could be released from custody at any time and, without
the juvenile court’s intervention, return to the family home.
Because “[a] parent’s ‘“[p]ast conduct may be probative of
current conditions” if there is reason to believe that the conduct
will continue[]’” (Christopher R., supra, 225 Cal.App.4th at
p. 1216), the juvenile court could also infer that father’s
substance abuse would continue, as would mother’s failure to
protect minor from it. This was substantial evidence of a current
risk of harm. (See In re Madison S. (2017) 15 Cal.App.5th 308,
318 [“Substantial evidence may include inferences, so long as any
such inferences are based on logic and reason and rest on the
evidence”].)
II. The Juvenile Court Did Not Abuse Its Discretion by
Ordering Mother to Drug Test.
A. Relevant law and standard of review
A juvenile court has broad authority to “make any and all
reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of” a dependent child. (§ 362,
subd. (a).) This includes directing reasonable orders to the
parent of the dependent child. (§ 362, subd. (d).) “The court’s

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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, permits the court to formulate disposition
orders to address parental deficiencies when necessary to protect
and promote the child’s welfare, even when that parental conduct
did not give rise to the dependency proceedings.” (In re K.T.
(2020) 49 Cal.App.5th 20, 25.)
Absent a clear abuse of discretion, we will not disturb a
dispositional order. (In re Briana V. (2015) 236 Cal.App.4th 297,
311; see also In re A.B. (2014) 225 Cal.App.4th 1358, 1366 [“A
juvenile court abuses its discretion if its decision is arbitrary,
capricious or patently absurd”].)
B. Analysis
Mother not only failed to object to the juvenile court’s order
that she submit to drug testing upon suspicion of being under the
influence, but her counsel affirmatively stated that there was
“[n]o objection to drug testing.” Mother therefore forfeited her
challenge to the order on appeal. (See In re Anthony Q. (2016)
5 Cal.App.5th 336, 345 [“the forfeiture doctrine applies in
dependency cases and the failure to object to a disposition order
on a specific ground generally forfeits a parent’s right to pursue
that issue on appeal”].)7

7 Mother’s notice of appeal indicates that she appeals the
declaration of dependency with a review of the section 300
jurisdictional findings. We note that it does not indicate any
challenge to the dispositional order regarding drug testing.
Although we liberally construe the notice of appeal (Cal. Rules of
Court, rule 8.100(a)(2)), this omission further supports a finding
of forfeiture.

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 Forfeiture aside, mother’s argument fails on the merits.
Requiring mother to submit to a drug test if DCFS suspected her
of being under the influence was eminently reasonable given
mother’s denial that she was aware of father’s current, daily
methamphetamine use. Regardless of whether mother was
untruthful regarding her knowledge of father’s substance abuse
or was blind to it, the juvenile court could infer the possibility
that mother’s own substance use affected her judgment and
ability to protect minor in this regard. The fact that mother
missed a drug test in August 2019 and another in January 2020
further supports such an inference. (See Christopher R., supra,
225 Cal.App.4th at p. 1217 [juvenile court could properly view
each missed drug test as “the equivalent of a positive test
result”].)8

8 We find that the cases relied upon by mother are
distinguishable. In In re Sergio C. (1999) 70 Cal.App.4th 957,
960, the appellate court reversed a juvenile court’s order for
random drug testing of a father where the only evidence of his
drug use was “the unsworn and uncorroborated allegation of an
admitted drug addict who ha[d] abandoned her children.”
Drake M., supra, 211 Cal.App.4th at pages 769–770 also involved
an order for random drug testing of a father even though there
was no evidence that he had a substance abuse problem. Here, in
contrast, mother was ordered to submit to drug testing only upon
the suspicion that she was under the influence.
Finally, in In re Basilio T. (1992) 4 Cal.App.4th 155, 160,
172–173, the appellate court reversed the inclusion of a
substance abuse component in a reunification plan—specifically,
drug testing and substance abuse therapy—where nothing in the
record indicated that either parent had a substance abuse
problem. Here, there is a nexus between father’s substance

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 Because there was nothing arbitrary, capricious, or
patently absurd in the juvenile court’s order, we find no abuse of
discretion. (See In re Marcelo B. (2012) 209 Cal.App.4th 635, 642
[“An abuse of discretion occurs when the juvenile court has
exceeded the bounds of reason by making an arbitrary, capricious
or patently absurd determination”].)
DISPOSITION
The findings and orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.
ASHMANN-GERST

We concur:

________________________, P. J.
LUI

________________________, J.
HOFFSTADT

abuse and the exercise of dependency jurisdiction, and mother
was not ordered to participate in substance abuse therapy.

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