In re A.N. CA2/1

Filed 5/26/21 In re A.N. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

In re A.N., B309562

a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 20LJJP00536)

LOS ANGELES COUNTY ORDER MODIFYING
DEPARTMENT OF CHILDREN OPINION; NO CHANGE
AND FAMILY SERVICES, IN JUDGMENT

Plaintiff and Respondent,

v.

K.N.,

Defendant and Appellant.

THE COURT:
It is ordered that the opinion filed on May 24, 2021, be
modified as follows:
 On page 1, second line following the caption, the name of
the Judge Pro Tempore, “Robin Kessler,” is corrected to “Robin R.
Kesler.”
There is no change in the judgment.
NOT TO BE PUBLISHED

____________________________________________________________
ROTHSCHILD, P. J. BENDIX, J. FEDERMAN, J.*

* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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Filed 5/24/21 In re A.N. CA2/1 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

In re A.N., B309562

a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 20LJJP00536)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

K.N.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Robin Kessler, Judge Pro Tempore. Reversed.
Suzanne Davidson, under appointment by the Court of
Appeal, for Defendant and Appellant.
 Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_____________________

K.N. (Father) appeals from the juvenile court’s assertion of
jurisdiction over his then four-year-old daughter, A.N. The
juvenile court found that Father’s use of marijuana created a
substantial risk of serious physical or emotional harm to the
child. Father denies that his marijuana use either rises to the
level of substance abuse or poses any threat to A.N. We conclude
that substantial evidence does not support the juvenile court’s
jurisdictional findings as to Father and we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Family
A.N. was born in February 2016, and is Father’s only child
with K.J. (Mother).1 At the time this case was initiated, Father
and Mother were no longer in a relationship, but remained
friends and coparents.
A.N. lived with Mother and Mother’s son from a previous
relationship, K.G.2 Mother resumed a relationship with K.G.’s
father (Stepfather) after he was released from prison in March
2020. Father had sporadic contact with A.N.

1Father also had eight other children with another woman.
Those children are not involved in this case.
2 K.G. is not a party to this appeal.

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B. Petition for Jurisdiction
On June 13, 2020, the Department of Child and Family
Services (Department) received a report of domestic violence
between Mother and Stepfather. In her first interview with a
social worker on June 24, 2020, Mother confirmed ongoing
domestic violence committed by Stepfather. In one particularly
volatile incident, Mother reported that Stepfather attempted to
strangle her, resulting in scarring on her face and neck.
Following this interview, on August 11, 2020, Stepfather punched
Mother in the eye so hard that her eye split open, resulting in
permanent vision loss. At the time, Mother was four months
pregnant with Stepfather’s child.
A.N. told the social worker that Mother and Stepfather “hit
each other a lot.” She even reported that she had sometimes
intervened in these fights, saying that “she [A.N.] hits
[Stepf]ather . . . when he hits Mother.”
When the social worker called Father on July 29, 2020, he
stated that he had no concerns about A.N. being in Mother’s care
and denied that he had ever witnessed anything out of the
ordinary at Mother’s home. He agreed to take A.N. into his
custody if necessary, but said that he preferred for her to be
placed with her maternal grandmother if possible. He
acknowledged that the child had a close bond with her maternal
grandmother, and explained that placement with the
grandmother would allow the child to remain in her current
school.
Father admitted that he smoked marijuana daily to treat
chronic back pain, but insisted that he did not smoke marijuana
in front of his children. Father missed one drug test on
August 28, 2020. A subsequent drug test on September 2, 2020,

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showed that he tested positive for 820 nanograms per milliliter
(ng/ml) of marijuana. The Department attempted to schedule
subsequent tests for Father, but Father did not timely respond to
these attempts. He did submit to a drug test on December 3,
2020, but the results of his test were not available for the
jurisdictional hearing conducted the next day.
A.N. stated she did not know what drugs were and had not
seen anyone act differently by falling, tripping, or slurring their
words. Neither Mother nor the maternal grandmother had
observed Father abuse marijuana.
The Department’s records revealed four prior cases
regarding Father’s other children. In two of the cases, the
Department substantiated allegations of domestic abuse between
Father and his girlfriend. A third case alleging domestic abuse
was closed as inconclusive. In the fourth case, while Father had
seven children in his sole care, one of the children climbed out of
a window and fell into a swimming pool. Father found the child
floating face down in the pool, called 911, and revived the child
through CPR. The child was airlifted to a hospital, and
“appear[ed] to be okay.” The treating doctor expressed no
concerns regarding neglect or abuse. Nothing in the record of
that incident indicated that Father was under the influence of
marijuana at the time. The Department closed the matter
without taking any action.
On August 26, 2020, the Department filed a petition
pursuant to section 300 of the Welfare and Institutions Code
alleging jurisdiction over A.N. and K.G. on five counts. Counts a-
1 and b-1 asserted allegations related to Mother and Stepfather’s
pattern of domestic violence. The remaining three counts alleged
that substance abuse by all three parents impaired their ability

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to provide regular care for the children. As relevant here, count
b-4 alleged that Father “is a current abuser of marijuana,” and
that “[o]n prior occasions [F]ather was under the influence of
marijuana while the child was in [his] care and custody.”
At the detention hearing, the juvenile court ordered A.N.
removed from Mother. A.N. was released to Father, but
continued to live with her maternal grandmother.
C. Jurisdictional and Dispositional Hearing
On December 4, 2020, the juvenile court held a combined
jurisdictional and dispositional hearing on the petition. The
hearing was conducted remotely via the WebEx platform.
Mother pleaded no contest to count b-1 concerning the incidents
of domestic violence between her and Stepfather. All other
counts involving Mother were dismissed.
Father contested count b-4. He testified that he could not
remember how long he had used marijuana. He was trying to cut
down on marijuana use during the pendency of the case by using
it only every other day. He denied using marijuana in A.N.’s
presence and denied being under the influence while interacting
with her. He denied that any of his previous dependency cases
arose out of his marijuana use, or that his marijuana use
impacted his employment. In particular, he denied using
marijuana on the day one of his children fell into the pool. A
social worker testified that she had no information indicating
that Father’s drug use impaired his ability to parent A.N. Father
argued that his marijuana use did not rise to the level of
substance abuse, and that the Department could not show any
nexus between Father’s marijuana use and any potential harm to
A.N.

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 The juvenile court found that Father’s testimony was not
credible, and opined that Father appeared to be under the
influence during his testimony because he was “sluggish,”
displayed a “lack of coherency,” and was “slurring . . . his words.”
The court commented that Father did not have a criminal record
reflecting any drug charges. Nonetheless, his September drug
test result of 820 ng/ml was well above the “screen cut off [of] 50.”
Although the court expressed serious concerns about Father’s
marijuana use, it struck the allegation that he was “a current
abuser” of marijuana from count b-4, amending the charge to
allege that Father “smokes marijuana every day, which renders
the father incapable of providing regular care of the child. On
prior occasions the father was under the influence of marijuana
while the child was in the father’s care and custody.” The court
sustained count b-4 as amended.
The juvenile court released A.N. to Father on the condition
that she remain in the care of the maternal grandmother, and
that Father continue to drug test for the Department with
marijuana levels of no more than 200 ng/ml. The court granted
Mother monitored visitation and granted the Department the
discretion to liberalize Mother’s visitation. Lastly, the court set a
review hearing for June 4, 2021.
Father timely appealed.
DISCUSSION
A. Appellate Jurisdiction
Father alone appeals the jurisdictional order issued in this
case. The failure of both parents to appeal a finding of
jurisdiction requires that we ensure appellate review is
appropriate.

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 Dependency jurisdiction under section 300 is over the child,
not the parents, as a result of the harm or risk of harm the child
faces. (See, e.g., Kern County Dept. of Human Services v.
Superior Court (2010) 187 Cal.App.4th 302, 310.) Because the
juvenile court assumes jurisdiction over the child, not over the
parents, jurisdiction may exist based on the conduct of one parent
alone. (See § 302, subd. (a); In re John S. (2001) 88 Cal.App.4th
1140, 1143.) “For this reason, 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.” (In re I.A. (2011) 201 Cal.App.4th 1484, 1492.)
However, we may exercise our discretion and reach the
merits of a single parent’s challenge to any jurisdictional finding
when the finding (1) serves as the basis for dispositional orders
that are also challenged on appeal (see, e.g., In re Alexis E. (2009)
171 Cal.App.4th 438, 454), (2) could be prejudicial to the
appellant or could potentially impact the current or future
dependency proceedings (see, e.g., In re D.C. (2011) 195
Cal.App.4th 1010, 1015; see also In re I.A., supra, 201
Cal.App.4th at p. 1494), or (3) “could have other consequences for
[the appellant], beyond jurisdiction.” (In re I.A., supra, at
p. 1493.)
Father asserts that we should exercise our discretion to
reach the merits of his appeal because the outcome could be the
difference between Father being an “offending” parent versus a
“non-offending” parent, which could prejudice him in this matter
and in future dependency proceedings. We have exercised our
discretion to reach the merits of a single-parent appeal for this
reason before, and we do so here. (See, e.g., In re Quentin H.
(2014) 230 Cal.App.4th 608, 613.)

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B. Count b-4 is Not Supported by Substantial Evidence
1. Applicable 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 . . . substance abuse.” (Id., subd. (b)(1); In re
Christopher R. (2014) 225 Cal.App.4th 1210, 1215.)
“[T]here are three elements for jurisdiction under section
300, subdivision (b), namely, (1) neglectful conduct or substance
abuse by a parent in one of the specified forms, (2) causation, and
(3) serious physical harm to the child, or a substantial risk of
such harm.” (In re Rebecca C. (2014) 228 Cal.App.4th 720, 724-
725.)
In deciding whether there is a substantial risk of serious
physical harm, courts evaluate the risk that is present at the
time of the jurisdictional hearing. (In re Christopher R., supra,
225 Cal.App.4th at pp. 1215-1216.)
We review the trial court’s jurisdictional findings for
substantial evidence. (In re J.N. (2010) 181 Cal.App.4th 1010,
1022.) Under this standard, “ ‘we must uphold the . . .
[jurisdictional] findings unless, after reviewing the entire record
and resolving all conflicts in favor of the respondent and drawing
all reasonable inferences in support of the judgment, we
determine there is no substantial evidence to support [them].’ ”
(Ibid.) “ ‘Substantial evidence “means evidence that is
‘reasonable, credible and of solid value; it must actually be

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substantial proof of the essentials that the law requires in a
particular case.’ ” ’ [Citation.]” (In re L.C. (2019) 38 Cal.App.5th
646, 651.)
2. Discussion
Father raises two challenges to the juvenile court’s order
taking jurisdiction over A.N. First, he argues the juvenile court’s
finding that he had a substance abuse problem is not supported
by substantial evidence. Second, he contends the evidence does
not show any nexus between his marijuana use and any potential
harm to A.N. We agree with both arguments.
This court and others in our appellate district have made
clear that dependency jurisdiction “must be based on substance
abuse; mere substance use is not sufficient for jurisdiction.” (In re
J.A. (2020) 47 Cal.App.5th 1036, 1046, citing In re Drake M.
(2012) 211 Cal.App.4th 754, 764; see also In re L.C. (2019) 38
Cal.App.5th 646, 652 [father’s sporadic methamphetamine use
did not constitute substance abuse].)
“[T]he law is not in agreement on when substance use
reaches the point of substance abuse.” (In re J.A., supra, 47
Cal.App.5th at p. 1046.) However, one common thread running
through the jurisprudence on substance abuse is the impact of
substance use on a parent’s ability to fulfill his or her major
obligations to self, family, or society. (See In re Christopher R.,
supra, 225 Cal.App.4th at p. 1218 [mother’s recurrent cocaine use
while pregnant “resulted in her failure to fulfill a major role
obligation”]; In re Drake M., supra, 211 Cal.App.4th at p. 766
[substance abuse may be shown through “ ‘[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

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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 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’ ”].)
We note the juvenile court struck the allegation that
Father was “a current abuser” of marijuana, replacing it with a
finding that he “smokes marijuana every day.” To the extent this
finding could be interpreted to support a finding of substance
abuse, it is not supported by substantial evidence.
Although Father freely admitted that he smoked marijuana
daily to cope with chronic back pain, the evidence does not
demonstrate that his marijuana use impaired his ability to fulfil
major social obligations. Father did not have any drug-related
criminal history, and there was no indication in the record that
his marijuana use impaired his employment, social relationships,
or bodily health. The juvenile court discredited Father’s denial of
drug use during a prior incident three years ago, in which a child
under Father’s care nearly drowned in a swimming pool.
However, the record from that case contains no evidence to
indicate Father was under the influence of substances on the day
of the incident, and shows that he responded appropriately to the
situation, immediately calling 911 and performing CPR to

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resuscitate the child. The mere fact that a child left the house
and fell into the pool under Father’s watch does not in itself prove
that Father was under the influence at the time. Thus, there was
no evidence to support the juvenile court’s finding that “[o]n prior
occasions the father was under the influence of marijuana while
the child was in the father’s care and custody.”
During the jurisdictional hearing, Father denied using
marijuana while caring for A.N. Mother and the maternal
grandmother denied observing Father under the influence of
marijuana while interacting with A.N. There was no evidence to
indicate that the one drug test result from September 2020 was
representative of Father’s daily ingestion of marijuana. While
the juvenile court observed that Father appeared to be under the
influence during his remote appearance at the jurisdictional
hearing, the extent of his impairment is difficult to gauge from
the record. The sum total of these facts, while raising a serious
concern about the extent of Father’s use of marijuana, does not
amount to substantial evidence of substance abuse. To the
contrary, such a conclusion is based on little more than
speculation. (See In re Savannah M. (2005) 131 Cal.App.4th
1387, 1393 [“inferences that are the result of mere speculation or
conjecture cannot support a finding” of substantial evidence in
favor of dependency jurisdiction], italics omitted.)
The Department argues that Father’s failure to regularly
drug test prior to the jurisdictional hearing substantially
supports the juvenile court’s finding of substance abuse. A
parent’s failure to comply with the Department’s requests to drug
test may be relevant or substantial evidence in support of a
substance abuse finding in certain circumstances. For example,
such failure could substantially undermine a parent’s denial of

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drug use. It could also demonstrate a parent’s general failure to
cooperate with the Department, or to comply with a court order to
submit to drug testing. Here, Father never denied regular
marijuana use, the Department admits that Father was generally
cooperative, and Father was not in violation of any court orders
to drug test.3 In this context, Father’s failure to regularly drug
test cannot support a finding of substance abuse.
Moreover, there is no substantial evidence to support the
juvenile court’s finding that Father’s use of marijuana posed a
serious risk of harm to A.N. Even when there is evidence of
parental substance abuse, “it does not always follow that such a
finding means that the parent or guardian at issue is unable to
provide regular care resulting in a substantial risk of physical
harm to the child.” (In re Drake M., supra, 211 Cal.App.4th at
p. 766.) A juvenile court also must find that the parent’s
substance abuse would cause a substantial risk of physical harm
to the child. (In re Rebecca C., supra, 228 Cal.App.4th at pp. 724-
725.)
The social worker testified that she had no information
indicating that Father’s drug use impaired his ability to parent
A.N. As we have discussed, the record contains no other evidence
that Father was impaired while caring for A.N. or his other
children. As such, the record does not contain substantial

3 At the jurisdictional hearing, a social worker’s testimony
indicated that Father had been ordered to drug test around
November 23, 2020. Her testimony reflects a misunderstanding
of the juvenile court’s order, which required only that the
Department give Father a referral for low-cost drug testing
services, and provide the court with updates on that referral by
November 23, 2020.

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evidence supporting the conclusion that Father’s use of
marijuana poses a substantial risk of serious physical harm to
A.N. (See In re J.A., supra, 47 Cal.App.5th at p. 1050 [the
mother’s use of edible marijuana while pregnant was insufficient
to trigger dependency jurisdiction where there was no evidence
this harmed either of her children or posed a substantial risk of
harm]; In re Rebecca C., supra, 228 Cal.App.4th at p. 728
[reversing assertion of § 300, subd. (b), jurisdiction for lack of
evidence that the mother’s mere drug use was causing or created
a risk of causing physical harm to the child].)
The Department argues that A.N.’s young age triggers the
“ ‘tender years’ presumption,” and that Father’s current
unemployment and daily marijuana use renders him incapable of
providing the regular care and supervision that A.N. needs. (See
In re Christopher R., supra, 225 Cal.App.4th at p. 1216 [“Exercise
of dependency court jurisdiction under [§] 300, [subd.] (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’ ”].) This presumption, however,
applies where there is substantial evidence of parental substance
abuse. (Id. at p. 1220 [to obtain jurisdiction over a child of tender
years, “the Department need[ ] only . . . produce sufficient
evidence that the [parent] was a substance abuser”]; In re Drake
M., supra, 211 Cal.App.4th at p. 767 [holding that in cases
involving children of “ ‘tender years,’ ” a 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”].) For the reasons described above, we do not find
that the evidence presented in this case substantially supports a

13
finding of substance abuse and thus the presumption is
inapplicable.
DISPOSITION
The juvenile court’s order finding jurisdiction under
section 300, subdivision (b)(1), as to Father in count b-4 is
reversed.
NOT TO BE PUBLISHED

FEDERMAN, J.*

We concur:

ROTHSCHILD, P. J.

BENDIX, J.

* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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