In re Hailey E. CA2/2

Filed 6/22/21 In re Hailey E. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re HAILEY E. et al., Persons B306896
Coming Under the Juvenile Court (Los Angeles County
Law. Super. Ct. No.
18CCJP04864C-D)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

CRYSTAL M. et al.,

Defendants and Appellants.

APPEAL from findings and orders of the Superior Court of
Los Angeles County, Sabina A. Helton, Judge. Affirmed in part
and reversed in part.
 Marsha F. Levine, under appointment by the Court of
Appeal, for Defendant and Appellant Crystal M.

Deborah Dentler, under appointment by the Court of
Appeal, for Defendant and Appellant Joshua M.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sarah Vesecky, Deputy County
Counsel, for Plaintiff and Respondent.

______________________________

Appellants Crystal M. (mother) and Joshua M. (father) are
the parents of Kyle M. (Kyle, born 2014). Mother and Jeremy E.
(Jeremy)1 are the parents of Hailey E. (Hailey, born 2009).2
The juvenile court adjudicated minors dependents of the
court under Welfare and Institutions Code section 300,
subdivision (b)(1).3 Kyle was removed from parental custody,
while Hailey was released to mother under the supervision of the
Los Angeles County Department of Children and Family Services
(DCFS).
On appeal, mother argues that insufficient evidence
supports (1) the jurisdictional finding as to Kyle based on

1 Jeremy did not appear below and is not a party to this
appeal.
2 We refer to Kyle and Hailey, collectively, as minors.
3 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.

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mother’s inability to care for Kyle’s life-threatening medical
condition; (2) the jurisdictional finding as to Hailey based on
Jeremy’s substance abuse; and (3) the dispositional order
removing Kyle. Father argues that insufficient evidence supports
the jurisdictional finding as to Kyle based on father’s substance
abuse and mother’s failure to protect Kyle from it. Father also
challenges the dispositional orders to the extent that they affect
him.
We affirm the jurisdictional findings and dispositional
orders as to Kyle. However, we agree with mother that
substantial evidence does not support the exercise of jurisdiction
over Hailey. Accordingly, we reverse the jurisdictional finding
and corresponding dispositional orders as to Hailey only.
BACKGROUND
I. Prior Juvenile Dependency Case
In September 2018, the juvenile court sustained a
section 300 dependency petition on behalf of minors. As
sustained, the petition alleged that father was a current abuser
of amphetamines and methamphetamines and had a history of
driving under the influence of alcohol and drugs. The petition
also alleged that Jeremy, Hailey’s father, had a history of abusing
amphetamines and methamphetamines, as well as a drug-related
criminal history.
In March 2019, the juvenile court awarded mother sole
physical and legal custody of minors, granted father and Jeremy
monitored visitation with their respective children, and
terminated jurisdiction.
II. Referral
On September 28, 2019, DCFS received a referral alleging
severe neglect of Kyle, with Hailey also at risk. Mother had

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brought Kyle, who was autistic, to the hospital due to nausea,
diarrhea, and vomiting. He looked emaciated, and a doctor was
concerned about neglect. Kyle was determined to have type 1
diabetes and sepsis.
III. DCFS’s Initial Investigation
In response to the referral, a DCFS social worker conducted
interviews with the reporting party, a hospital social worker,
family members, mother’s roommate, and Kyle’s teacher.
A. Reporting party
The reporting party told the DCFS social worker that Kyle
had been so emaciated when he arrived at the hospital that staff
had wanted to call the police. Mother had appeared to be more
concerned about her boyfriend than Kyle. Mother was unable to
provide a timeframe of when Kyle’s health began to decline. Kyle
weighed only 27 pounds; a child his age should weigh at least 40
pounds. Kyle appeared to be nonverbal.
B. Hospital social worker
According to a hospital social worker, a doctor reported that
Kyle’s severe weight loss was not solely attributable to diabetes
and that there appeared to be some neglect and malnutrition.
The hospital social worker expressed concerns about mother not
being present at Kyle’s bedside and that mother’s understanding
of his condition was lacking.
C. Mother
According to mother, Kyle’s health issues related to his
ears and throat. She had noticed three weeks earlier that he was
losing weight. Two days earlier, she had taken him to a medical
clinic to have his eyes and ears examined by Dr. Dominguez, who
did not find any abnormalities. Although Dr. Dominguez
instructed mother to take Kyle to have blood work done, she did

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not do so. Instead, mother took Hailey to have her eyes
examined. Mother wanted Kyle to have a CT scan because she
did not believe his symptoms were solely caused by diabetes.
Mother reported that Kyle’s diet consisted of
carbohydrates, which caused him to become constipated. When
asked if she had attempted to give Kyle any nutritional
supplements, mother responded that she had purchased
PediaSure for him a month earlier. Mother attributed Kyle’s
weight loss to a growth spurt.
Mother admitted that she allowed father to have an
unmonitored visit with Kyle on June 9, 2019. She could not
explain why she violated the court’s visitation order.
Mother stated that Kyle had been diagnosed with autism at
age three. He was receiving regional center services and
attended school. Hailey was in the fifth grade and had podiatry
issues but was otherwise healthy.
The DCFS social worker observed mother fidgeting
throughout the interview, that her eyes were dilated, and that
she appeared to have methamphetamine sores on her face.
Mother continuously stated that she had met with a
dermatologist regarding her skin condition and was upset that
the doctor did not know the cause.
When the DCFS social worker spoke with mother a few
days later and informed her that she was scheduled to drug test,
mother said that she could not do so because she was at Kyle’s
bedside and could not leave. Mother became argumentative and
raised her voice.
D. Father
Father stated that it had been two months since he had
seen Kyle. On June 9, 2019, mother left Kyle, unmonitored, with

5
father at a park. At that time, Kyle appeared healthy, with no
signs of neglect. Mother had not allowed father visitation
because he was not paying child support. Father was very
concerned about Kyle because he was autistic and nonverbal.
Father reported that mother had a history of using
methamphetamines and that she had introduced him to the drug.
During the prior dependency case, mother used
methamphetamines but would test when she knew the drug
would be out of her system. Father said he protected mother by
not telling DCFS.
Father was homeless and lived in his vehicle and motels.
He denied current drug use or a history of mental illness.
E. Hailey
Hailey was interviewed at the family home. She attended
the fifth grade and liked school. She had not noticed Kyle’s
weight loss because she was always playing with her friends.
She denied abuse and appeared clean, well-cared for, and free of
marks or bruises.
F. Hailey’s paternal grandmother
Hailey’s paternal grandmother, who visited Hailey every
other weekend, believed that mother had bipolar disorder. She
reported that Hailey’s father, Jeremy, lived in Colorado and did
not have consistent visitation with Hailey.
G. Mother’s roommate
Mother’s roommate had known mother for 23 years; mother
and minors had resided with him for two years. He and mother
noticed that Kyle appeared to be ill two days before he was
hospitalized. The roommate reported that Kyle only drank milk
and did not usually eat solid food, but he would occasionally eat
bread or mini corndogs and something off someone else’s plate.

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Kyle appeared thinner than normal, but the roommate and
mother attributed this to him growing.
The roommate denied ever observing mother engage in
substance abuse. He thought that minors were safe in mother’s
care and that she took good care of them.
H. Kyle’s teacher
Kyle’s teacher, Ms. B., became concerned about Kyle on
September 24, 2019, because he was lethargic and very hungry.
He displayed these symptoms for two days. Ms. B. expressed her
concerns to Ms. E., the school psychologist. Ms. E. attempted to
make telephonic contact with mother several times, but mother
did not answer and the voice mailbox was full. Mother contacted
the school on September 26, 2019, and reported that Kyle needed
blood work and that the results were bad. Ms. B. did not
recognize Kyle’s weight loss because she was new to the school.
However, staff who previously worked with Kyle had noticed it.
IV. Orders Removing Minors
On October 4, 2019, DCFS sought and was granted orders
removing Hailey from mother and removing Kyle from mother
and father. The next day, the DCFS social worker provided
mother and father with the removal orders and then met
privately with each.
Mother did not appear to be under the influence; she was
alert and easy to engage. The social worker explained that, even
though mother’s toxicology results had returned negative two
days earlier, she was convinced that mother had been under the
influence of a controlled substance when they had last met on
September 28, 2019. Mother denied any substance use.

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 Father admitted that he had been arrested on
September 22, 2019. He claimed that his friend had left powder
cocaine in his vehicle, but he denied his own use.
V. Dependency Petition
On October 8, 2019, DCFS filed a dependency petition
seeking the juvenile court’s exercise of jurisdiction over minors
pursuant to section 300, subdivisions (b)(1) (failure to protect)
and (j) (abuse of sibling).
For the b-1 and j-1 counts, the petition alleged that Kyle
had been diagnosed with “Malnutrition-Chronic Severe and
Diabetes Mellitus with Ketoacidosis.” For at least three weeks
prior to his hospitalization on September 28, 2019, Kyle had been
lethargic, emaciated, and had lost a significant amount of weight.
Mother had failed to obtain timely medical care for Kyle and
follow up with a previous medical recommendation for blood
work. Mother’s medical neglect of Kyle endangered his physical
health and safety and also placed Hailey at risk of serious
physical harm.
For the b-2 count, the petition alleged that father had a
history of substance abuse, including amphetamine and
methamphetamine abuse, which rendered him incapable of
providing regular care for Kyle. He also had a history of criminal
convictions for driving under the influence of alcohol and drugs.
Mother had failed to protect Kyle from father’s substance abuse,
having allowed father to have unlimited access to Kyle in
violation of a court order that father’s visits be monitored.
Mother and father’s conduct endangered Kyle’s physical health
and safety and placed him at risk of serious physical harm.

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VI. Detention Hearing
At the detention hearing on October 9, 2019, the juvenile
court found that a prima facie showing had been made to detain
minors and that there was a substantial risk of detriment to
minors absent removal. Mother and father were granted
monitored visitation.
VII. Jurisdiction/Disposition Report
By mid-October 2019, Hailey had been placed with one of
her paternal relatives, and Kyle had been placed with his
paternal grandmother.
The DCFS dependency investigator assessed Kyle in the
grandmother’s home on November 19, 2019. He was playful and
making efforts to communicate. He appeared very comfortable
with his paternal grandparents and was cooperative when a
glucose check was administered. His grandmother reported that
Kyle had gained 10 pounds.
Mother visited minors on Saturdays, and they appeared to
be happy to engage with her. Mother appeared overly concerned
with attempting to apply ointments to Kyle’s skin. She was
instructed not to do so because there was no prescription or label
for the ointments.
DCFS reported that mother continued to not understand
Kyle’s need for medical services and referenced a letter dated
October 24, 2019, from California Children’s Services stating that
mother had not responded to their multiple attempts to contact
her to ensure that Kyle was eligible for services. Although
mother stated that she wanted assistance and education
regarding treating type 1 diabetes, she also told the dependency
investigator that she was no longer welcome to participate in the
education classes at Children’s Miller Hospital due to her being

9
disruptive. DCFS had serious concerns about her ability to
understand and administer Kyle’s complicated medical
treatments.
As to father, DCFS reported that, on September 22, 2019,
police observed a hypodermic needle and a white crystalline
substance resembling methamphetamine when father opened the
door of his vehicle. A glass pipe with black and white residue,
consistent with drug paraphernalia, was found during a search of
the vehicle. Father did not show up for drug tests on
October 17, 22, and 29, and November 8, 2019. On November 13,
2019, he tested positive for methamphetamines and marijuana.
Mother claimed that father had shown her a photo of how he
would cheat a drug test.
VIII. First Amended Petition
On December 6, 2019, DCFS filed a first amended petition.
The b-1 and j-1 counts were unaltered. The b-2 count was
amended to add that father was a current abuser of
methamphetamines and had tested positive for
methamphetamines and marijuana on November 13, 2019. A b-3
count was added alleging that Hailey’s father, Jeremy, had a
history of abusing amphetamines and methamphetamines.
IX. Last Minute Information for the Court (January 13, 2020)
Mother tested negative for drugs on December 6, 19, and
27, 2019, and January 3, 2020. She also tested negative on
January 8, 2020, but the sample was diluted. She missed a test
on December 12, 2019.
Kyle’s paternal grandmother was no longer willing to
monitor mother’s visits due to an argument between them. The
DCFS social worker planned to continue to coordinate visits
between mother and Kyle, but Kyle was unable to travel a long

10
distance due to his medical issues. Mother and Hailey were
visiting on a weekly basis, and there were no concerns.
DCFS conducted a meeting with mother and Kyle’s
paternal grandmother on January 7, 2020. The family’s goal was
identified as reunifying minors with mother. The family’s needs
included developing a comprehensive medical plan for Kyle and
mother being notified of all of Kyle’s medical appointments and
being able to attend them with a monitor.
Father missed four drug tests between December 6 and 27,
2019. Father appeared for a drug test on January 3, 2020, but
the facility reported that it was unable to observe his penis while
he urinated. DCFS described this as “an ongoing concern” and
referenced mother’s earlier report that father was cheating on his
drug tests.
X. Last Minute Information for the Court (May 26, 2020)
Mother provided DCFS with confirmation that she had
completed a 10-week parenting program. She continued to test
negative for drugs and alcohol, but her March 9, 2020, and
May 7, 2020, tests were diluted, and she missed a test on
April 21, 2020. Father tested negative for drugs on January 17,
2020, but had missed subsequent tests.
The DCFS dependency investigator spoke with Kyle’s
endocrinologist, Dr. Hicks, on May 12, 2020. Dr. Hicks expressed
concern about the parents not completing necessary medical
training within 10 days of Kyle’s hospitalization and that, during
his hospitalization, they were not as involved as typical parents
and would only show up sporadically. Kyle’s paternal
grandmother had taken him to his first visit with the
endocrinologist, while the parents did not show up. The parents
attended the second visit. Dr. Hicks stated that Kyle needed

11
follow-up medical care, and she expressed concern about mother’s
ability to follow through with Kyle’s treatment.
DCFS continued to have concerns about the parents’ ability
to care for Kyle, who continued to struggle with diabetes
complications. Mother had not been an active participant in
Kyle’s treatment. DCFS was concerned that she was unable or
unwilling to utilize available resources to care for him.
XI. Last Minute Information for the Court (July 20, 2020)
On July 9, 2020, the dependency investigator contacted
Dr. Alvarez, Kyle’s initial endocrinologist, who had treated him
during his hospitalization. Dr. Alvarez said that there was
confusion as to who was the child’s primary caregiver and who
would be following up with his medical needs. The hospital was
unsuccessful in its efforts to contact Dr. Dominguez, Kyle’s
primary doctor, to obtain his medical history.4 It was difficult for
Dr. Alvarez to say what happened prior to Kyle being seen at the
hospital because only certain data could be gathered from the
parents. It was possible that Dr. Dominguez did not catch any
concerns regarding diabetes.
Mother completed training with respect to diabetes and a
continuous glucose monitor device. Kyle’s caregivers reported
that he was doing well and experiencing more stable sugar levels
since a continuous monitoring device was placed on his body.
Father was visiting Kyle on a weekly basis, but mother was not
visiting.
Hailey was doing well and recently had a birthday party
that mother and her father, Jeremy, attended.

4 The dependency investigator was also unsuccessful in her
attempts to contact Dr. Dominguez.

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 DCFS remained concerned about mother’s ability to care
for Kyle. It took mother six months to complete required medical
training. Prior to completing the training, mother had not been
an active participant in Kyle’s medical care.
Father was not addressing his substance abuse problem, as
he was neither testing nor enrolled in services.
XII. Adjudication Hearing
The adjudication hearing took place over the course of
several days in July 2020.
A. Mother’s testimony
Mother testified that, prior to be being diagnosed with
diabetes in September 2019, Kyle had been diagnosed with
autism, seizures, a yeast infection, impetigo, and eye problems.
Mother had taken a year off of work to focus on Kyle’s medical
condition. Kyle had always struggled with low weight and
difficulty eating. Mother had sought medical advice about Kyle’s
weight and nutrition.
Mother took both Kyle and Hailey to the doctor two days
before Kyle’s hospitalization in September 2019. Hailey “had
something in her eyes[,]” and mother wanted Kyle checked
because his yeast infection had returned and he had possible
weight loss. Kyle was active at the doctor’s office and “didn’t
seem physically ill” to mother. The doctor gave mother
paperwork for blood work, but she did not get the impression that
it needed to be done immediately.
The next day, Kyle insisted on staying in mother’s
roommate’s room. Kyle was restless and vomited later that
night. Mother asked Kyle if he wanted to go to the doctor and,
despite “his lack of communication, Kyle did tell [mother] no, he
didn’t want to go to the doctor that night[.]”

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 The following morning, on Saturday, September 28, 2019,
Kyle woke up and said, “‘Mommy, doctor.’” Kyle was taken to the
emergency room by ambulance, with mother arriving separately
about an hour and a half later, as she had stopped to obtain his
medical records. Mother left the hospital at approximately 9:30
p.m. or 10:00 p.m. that night because she and father “were
having a sensitive matter” and decided it was best that father
have some time with Kyle to bond. Mother informed the hospital
staff that father’s visits had to be supervised; the staff indicated
“they would be okay” with monitoring.
Mother did not return to the hospital until approximately
6:00 p.m. the next day, Sunday. She had tried to locate an
available car at a car dealership and had cleaned her home. She
stayed at the hospital until 12:00 a.m. or 1:00 a.m. She returned
to the hospital on Tuesday afternoon and was also there on
Wednesday and Thursday. According to mother, she spent four
nights at the hospital with Kyle until she was told that she was
not allowed to spend the night. She tried to stay at the hospital
during the day for the remainder of Kyle’s stay there.
Mother stated that she “immediately jumped on trying to
get diabetic training” and that she went to a group diabetic
training session at the hospital. She claimed that the DCFS
social worker informed the hospital that she was not allowed to
receive any training, thus thwarting her from doing so.
Mother said that she contacted the parenting courses on a
list DCFS provided to her and that half of them were not in
service and the other facilities did not provide free services or
have available dates. She completed an online training but was
told that it would not be accepted. Mother testified that she had
reached out to the DCFS social worker and the hospital

14
numerous times to obtain training. Mother was not able to
obtain the training until June 10, 2020.
Mother admitted that she had left Kyle unmonitored with
father once. She had been “under the impression that . . . father
had completed all the court orders asked of him such as rehab.”
B. Dr. Ryan O’Connor’s testimony
Mother called Dr. O’Connor, an emergency medical
physician, as a witness. The juvenile court qualified him as an
expert for the matter. Dr. O’Connor had reviewed Kyle’s medical
records, as well as the detention and adjudication reports.
Dr. O’Connor opined that it was possible that Kyle could
have between sporadically hyper and then lethargic in the week
prior to his hospitalization, as “symptoms can be waxing and
waning.” The onset of type 1 diabetes “can be very subtle in the
beginning” and then a child can “have a very sudden rapid
deterioration perhaps over approximately a day or two even.”
Based on the documentation regarding Kyle’s September 26,
2019, doctor’s visit, Dr. O’Connor found no indication that the
doctor “thought that there was anything that would be considered
emergent” even though it would be expected to find some
abnormalities presented during the physical exam given Kyle’s
condition when he was taken to the emergency room two days
later.
Dr. O’Connor explained that “[f]ailure to thrive is a
multifactorial issue” that can be caused by neglecting a child as
well as “other issues unrelated to neglect such as metabolic
diseases.”
C. Jurisdictional findings
After entertaining oral argument, the juvenile court took
the matter under submission. On July 28, 2020, the court

15
sustained counts b-1 (amended to conform to proof),5 b-2, and b-3.
The court struck count j-1.
The juvenile court recounted the events in the days prior to
Kyle’s hospitalization and did not believe that Kyle’s symptoms
would have necessarily been a basis for mother to take him to a
doctor. The court noted that while it would “have been better” if
mother had Kyle’s bloodwork taken after it was ordered on
September 26, 2019, the court did not “know if it would have
made a difference.” In reviewing the timeline, the court did not
believe that mother’s actions could be criticized. “[L]eading up to
the time of the hospitalization, mother was on top of medical care
for her children.”
The juvenile court, however, had “more concerns with
mother’s conduct after the diagnosis” of type 1 diabetes. The
record was undisputed that mother had not completed diabetes
training until June 10, 2020, or the continuous glucose monitor
device training until July 9, 2020. The court noted mother’s
“slowness” to follow up regarding training. Regardless of
whether DCFS could have followed up more regarding training
for mother, mother had not demonstrated that she could “safely
care for Kyle and his condition.” And, even if mother had
completed “appropriate training[,]” she had not yet had an

5 As amended, the sustained b-1 count states: “On
9/28/2019, the child, Kyle . . . , was medically examined and
diagnosed with Malnutrition-Chronic Severe and Diabetes
Mellitus with Ketoacidosis. The child suffered from respiratory
distress, dehydration, nausea, vomiting and diarrhea, and had
lost some weight when he was admitted to the hospital on
9/28/2019. The child’s mother, Crystal M[.], lacks the current
ability to care for and attend to the child’s life threatening health
condition.”

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opportunity to implement it because she was still restricted to
monitored visits.
D. Dispositional orders
The juvenile court declared minors dependents of the court.
Hailey was released to mother, under DCFS supervision. The
court found, by clear and convincing evidence, that there were no
reasonable means to protect Kyle’s health and safety absent
removal from mother and father.
The juvenile court ordered mother and father to participate
in services, including CPR training for both parents6 and a full
drug and alcohol program with aftercare for father. The court
ordered that mother’s and father’s visits with Kyle be monitored
with DCFS discretion to liberalize.
The juvenile court stated that DCFS was “going to have to
work closely with the grandparents and the mother in
formulating a transition plan for mother to have her unmonitored
visits at some point with Kyle.”
XIII. Appeal
Mother and father each filed a timely notice of appeal from
the jurisdictional findings and dispositional orders.
DISCUSSION
I. Jurisdictional Findings
Mother challenges the juvenile court’s jurisdictional
findings with respect to the b-1 count regarding her inability to
care for Kyle’s life threatening health condition and the b-3 count
regarding Jeremy’s substance abuse. Father challenges the

6 The juvenile court reasoned that, “if something really were
bad to happen to Kyle,” a combination of CPR and insulin might
be required.

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court’s finding with respect to the b-2 count regarding father’s
substance abuse.
A. Applicable 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 by the inability of the
parent . . . to provide regular care for the child due to the
parent’s . . . 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
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; see
also In re K.B. (2021) 59 Cal.App.5th 593, 603 (K.B.) [“The court
need not wait for disaster to strike before asserting jurisdiction.
[Citation.] This is why the statute uses the word ‘risk.’”].)
“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

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“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.)
Jurisdictional findings must be made by a preponderance of
the evidence. (§ 355, subd. (a); Cynthia D. v. Superior Court
(1993) 5 Cal.4th 242, 248.) We review those findings for
substantial evidence—“evidence that is reasonable, credible and
of solid value. [Citations.] We do not evaluate the credibility of
witnesses, attempt to resolve conflicts in the evidence or
determine the weight of the evidence. Instead, we draw all
reasonable inferences in support of the findings, view the record
favorably to the juvenile court’s order and affirm the order even if
there is other evidence supporting a contrary finding.” (In re R.V.
(2012) 208 Cal.App.4th 837, 843.)
B. Analysis
Substantial evidence supports the juvenile court’s
jurisdictional findings as to Kyle on counts b-1 and b-2. The
court’s jurisdictional finding as to Hailey on count b-3, however,
is not supported by substantial evidence.
1. Count b-1: Mother’s inability to care for Kyle’s
medical condition
Kyle suffers from a chronic, life-threatening medical
condition that requires daily, skilled monitoring. Properly
addressing his medical needs is further complicated by his young
age and autism, which affects his ability to communicate.
Despite Kyle being diagnosed with type 1 diabetes in September
2019, mother did not successfully complete diabetes training
until June 2020 or continuous glucose monitor device training

19
until July 2020. By the time of the adjudication hearing in
August 2020, mother had still not progressed to unmonitored
visitation and, thus, had not actually implemented her newly
acquired training. Given the potential chasm between training
and successful implementation, the juvenile court could
reasonably infer that mother was not adequately equipped to care
and attend to Kyle’s critical medical needs.
This constitutes substantial evidence that mother lacked
the ability “to adequately supervise or protect” Kyle, thus placing
him at substantial risk of serious physical harm or illness.
(§ 300, subd. (b)(1); see also 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”].) The juvenile court did not
need to “wait for disaster to strike before asserting jurisdiction.”
(K.B., supra, 59 Cal.App.5th at p. 603.)
Mother contends that her delay in obtaining the diabetes
training is attributable, at least in part, to DCFS’s failure to
provide assistance. She also argues that her inconsistent
visitation and the fact that she never progressed to unmonitored
visitation were due to factors beyond her control.
These arguments miss the point. The first clause of
section 300, subdivision (b)(1), authorizes dependency jurisdiction
based on “the failure or inability” of a parent “to adequately
supervise or protect” a child. No finding of “parental fault” is
required. (In re R.T. (2017) 3 Cal.5th 622, 632.) Having already
identified substantial evidence to support the finding that mother
lacked the ability to supervise or protect Kyle, it is irrelevant
whether mother is “at fault or blameworthy for her . . .
inability . . . .” (Id. at p. 624; see also id. at p. 634.)

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 2. Count b-2: Father’s substance abuse
Father does not challenge the juvenile court’s finding that
he abused substances. Ample evidence supports this finding,
given that police observed drug paraphernalia, including a
hypodermic needle and a substance resembling
methamphetamine, in father’s car; he tested positive for
methamphetamines and marijuana; and he missed numerous
drug tests, each of which could be properly viewed as “the
equivalent of a positive test result” (Christopher R., supra, 225
Cal.App.4th at p. 1217).
Instead, father makes two arguments, both of which we
find unpersuasive.
First, father argues that because he lacked physical or legal
custody of Kyle following the prior juvenile dependency matter,
he had no legal duty to protect Kyle from a risk of physical harm.
Father offers no authority in support of this contention.
Whatever the extent of father’s legal duty, he maintained his
parental rights to Kyle and was entitled to monitored visitation.
He had at least one unmonitored visit, with mother’s knowledge,
in June 2019. And, after the initiation of the current dependency
proceedings, father continued to visit Kyle. Kyle’s contact with
father—even monitored—placed him in a position to be affected
by father’s substance abuse and could form the basis of
dependency jurisdiction.
Second, father argues that a parent’s substance abuse, by
itself, is an insufficient basis for dependency jurisdiction, and
that no factual nexus exists between his substance abuse and a
threat to Kyle. Father fails to acknowledge that, because minor
was five years old at the time of the adjudication hearing, he was
a child of “‘tender years’” and father’s substance abuse

21
constituted prima facie evidence of his inability to provide
regular care of him, resulting in a substantial risk of harm.
(Christopher R., supra, 225 Cal.App.4th at p. 1219; see also K.B.,
supra, 59 Cal.App.5th at p. 603 [“When a child is of tender age, a
parent’s substance abuse can be prima facie evidence of a risk of
serious physical harm or illness”].) Despite father’s lack of
physical or legal custody of Kyle, there was sufficient evidence of
a continuing relationship between father and Kyle—including
unmonitored contact7—for the juvenile court to apply this
presumption and make its jurisdictional finding.
3. Count b-3: Jeremy’s substance abuse
We agree with mother that substantial evidence does not
support the finding of jurisdiction over Hailey based on her father
Jeremy’s substance abuse.8

7 That mother permitted father to have an unmonitored visit
with Kyle is substantial evidence supporting the allegation in
count b-2 that mother failed to protect Kyle from father’s
substance abuse.

8 DCFS argues that mother acquiesced to jurisdiction over
Hailey by failing to object to or argue against the juvenile court
sustaining count b-3, specifically. We decline to find forfeiture.
While “a reviewing court ordinarily will not consider a challenge
to a ruling if an objection could have been but was not made in
the trial court” (In re S.B. (2004) 32 Cal.4th 1287, 1293,
superseded by statute on other grounds as stated in In re S.J.
(2008) 167 Cal.App.4th 953, 962), “here, mother preserved her
right to challenge the sufficiency of the evidence supporting the
juvenile court’s orders by requesting a contested
jurisdictional/dispositional hearing . . . . ‘Sufficiency of the
evidence has always been viewed as a question necessarily and
inherently raised in every contested trial of any issue of fact, and

22
 Hailey was 11 years old at the time of the adjudication
hearing; therefore, unlike Kyle, she was not considered a child of
tender age for whom “a parent’s substance abuse can be prima
facie evidence of a risk of serious physical harm or illness.” (K.B.,
supra, 59 Cal.App.5th at p. 603; see also Christopher R., supra,
225 Cal.App.4th at p. 1219 [children who are six years old or
younger are “children of ‘tender years’”].) In the absence of that
presumption, “drug use or substance abuse, without more, is an
insufficient ground to assert jurisdiction in dependency
proceedings under section 300.” (In re L.W. (2019)
32 Cal.App.5th 840, 849.) Here, we do not find substantial
evidence of anything “more” (ibid.) beyond Jeremy’s substance
abuse to support jurisdiction over Hailey.
As of March 2019, mother had sole physical and legal
custody of Hailey. Prior to Hailey’s removal from mother in
October 2019, the DCFS social worker noted that Hailey
appeared clean and well cared for. Hailey attended school and
denied any abuse. Jeremy had been entitled to monitored
visitation, but contact between Jeremy and Hailey appears to
have been minimal. Hailey did not live with Jeremy and his
whereabouts were unknown. Unlike with Kyle and father, the
record contains no evidence that mother had permitted Jeremy to
have unmonitored visits with Hailey, in violation of a court order.
Thus, unlike the b-2 count regarding father’s substance abuse
and the risk that posed to Kyle, the b-3 count regarding Jeremy’s

requiring no further steps by the aggrieved party to be preserved
for appeal.’” (In re Isabella F. (2014) 226 Cal.App.4th 128, 136;
see also In re Javier G. (2006) 137 Cal.App.4th 453, 464 [“Even if
the parent does not contest the state of the evidence, he or she
preserves the right to challenge it as insufficient to support a
particular legal conclusion”].)

23
substance abuse did not include any allegation that mother had
failed to protect the child.9
In short, there is insufficient evidence to support the
juvenile court’s finding that Jeremy’s substance abuse is causing
Hailey to suffer, or placing her at substantial risk of suffering,
serious harm or illness, to support jurisdiction under section 300,
subdivision (b)(1).
II. Dispositional Order Removing Kyle from Mother
Mother also challenges the evidentiary basis for the
dispositional order removing Kyle from her custody.
A. Applicable law and standard of review
Before removing a minor from a parent’s custody, the
juvenile court “must find, by clear and convincing evidence, the
child would be at substantial risk of harm if returned home and
there are no reasonable means by which the child can be
protected without removal. (§ 361, subd. (c)(1).)” (K.B., supra,
59 Cal.App.5th at p. 605.) “‘“Clear and convincing” evidence
requires a finding of high probability. The evidence must be so
clear as to leave no substantial doubt. It must be sufficiently
strong to command the unhesitating assent of every reasonable
mind. [Citations.]’ [Citation.] Actual harm to a child is not
necessary before a child can be removed. ‘Reasonable

9 The absence of allegations regarding mother’s conduct in
count b-3 does not deprive her of standing to challenge the
juvenile court’s finding on appeal. Hailey was declared a
dependent of the juvenile court based on Jeremy’s conduct as
alleged in count b-3, thus affecting mother’s parental rights. (See
In re A.K. (2017) 12 Cal.App.5th 492, 499 [“Whether a person has
standing to raise a particular issue on appeal depends upon
whether the person’s rights were injuriously affected by the
judgment or order appealed from”].)

24
apprehension stands as an accepted basis for the exercise of state
power.’” (In re V.L. (2020) 54 Cal.App.5th 147, 154 (V.L.).)
We review a dispositional order removing a minor from
parental custody for substantial evidence. (V.L., supra,
54 Cal.App.5th at p. 154.) The juvenile court must make its
finding that a ground for removal exists under the clear and
convincing evidence standard of proof. (§ 361, subd. (c).)
Therefore, “the question before the appellate court is whether the
record as a whole contains substantial evidence from which a
reasonable fact finder could have found it highly probable that
the fact was true.” (Conservatorship of O.B. (2020) 9 Cal.5th 989,
1011.)
B. Analysis
The same evidence that supports the juvenile court’s
exercise of dependency jurisdiction over Kyle based on the
allegations sustained in count b-1 regarding mother’s inability to
care for Kyle’s medical condition also constitutes substantial
evidence from which the court could find it highly probable that
Kyle would be at risk of substantial danger if he returned to
mother. (§ 361, subd. (c)(1).) Kyle has serious and complicated
medical needs, which require significant monitoring by his
caretaker. While mother received some training regarding how
to care for Kyle, that training had not been implemented at the
time of the adjudication hearing. A substantial risk of harm
existed if Kyle returned home to mother’s untested care.
Contrary to mother’s argument, such an inference is not
speculative but common sense.
Mother discusses at some length various cases where
removal orders were reversed on appeal. These cases are
distinguishable.

25
 First, none involved a seriously ill child whose parent
lacked experience caring for his or her serious medical needs.
(See In re A.E. (2014) 228 Cal.App.4th 820, 822 (A.E.) [reversing
order removing a minor from his father based on “a single
occasion of disciplining [the minor] by spanking her with a belt
on her legs and buttocks”]; In re Hailey T. (2012) 212 Cal.App.4th
139, 147–149 (Hailey T.) [reversing order removing a minor from
her parents based on physical abuse of a younger sibling]; In re
Steve W. (1990) 217 Cal.App.3d 10, 12–13, 22–23 (Steve W.)
[reversing order removing a minor from his mother’s custody
after his father killed the minor’s half-sibling]; In re W.O. (1979)
88 Cal.App.3d 906, 907, 910–911 (W.O.) [reversing order
removing two minors from their parents because cocaine and
marijuana were discovered in the residence].)
Second, unlike here, the cases involved removal orders
based “chiefly on speculation” (Steve W., supra, 217 Cal.App.3d at
p. 23); “a ‘remote possibility’” of future harm (W.O., supra,
88 Cal.App.3d at p. 910); “an isolated incident that is unlikely to
recur” (A.E., supra, 228 Cal.App.4th at p. 826); or abuse of a
sibling (Hailey T., supra, 212 Cal.App.4th at p. 148).
Mother also argues that less drastic alternatives to removal
existed, such as unannounced DCFS visits to mother’s home and
overseeing the services of a public health nurse. While, under
some circumstances, such methods of supervision might be
sufficient to permit an in-home placement (see In re Henry V.
(2004) 119 Cal.App.4th 522, 529), we do not find this to be such a
case. “Unannounced visits can only assess the situation . . . at
the time of the visit.” (In re A.F. (2016) 3 Cal.App.5th 283, 293.)
The same would be true of a public health nurse’s visit. Kyle’s
medical condition requires constant monitoring and can rapidly

26
deteriorate. Particularly given Kyle’s young age and autism,
which affects his ability to communicate, the risk that Kyle could
face a medical emergency or a swift decline in between visits by
DCFS or a public health nurse supports the juvenile court’s
finding that removal was necessary.
III. Dispositional Orders as to Father
Regarding the dispositional orders affecting him, father
argues, first, that the juvenile court erred by removing Kyle from
both parents rather than just from mother. Father asserts that
he did not have custody of Kyle at the time of the adjudication
hearing. But this alone does not render the removal order
erroneous, as section 361, subdivision (d), gives juvenile courts
the explicit authority to remove a child from an offending
noncustodial parent.10 Father offers us no other basis to find
reversible error, thus forfeiting his challenge. (See In re J.F.
(2019) 39 Cal.App.5th 70, 79 [“The juvenile court’s orders are
‘presumed to be correct, and it is appellant’s burden to
affirmatively show error[]’”]; Benach v. County of Los Angeles
(2007) 149 Cal.App.4th 836, 852 [assertion in appellant’s brief

10 Section 361, subdivision (d), provides: “A dependent child
shall not be taken from the physical custody of his or her
parents . . . with whom the child did not reside at the time the
petition was initiated, unless the juvenile court finds clear and
convincing evidence that there would be a substantial danger to
the physical health, safety, protection, or physical or emotional
well-being of the child for the parent . . . to live with the child or
otherwise exercise the parent’s . . . right to physical custody, and
there are no reasonable means by which the child’s physical and
emotional health can be protected without removing the child
from the child’s parent’s . . . physical custody.”

27
deemed waived if not accompanied by reasoned argument or
citations to authority].)
Second, father argues that the juvenile court abused its
discretion by ordering various reunification service programs for
father even though he was not seeking to regain custody of Kyle.
This argument has also been forfeited. When the juvenile court
asked if any party wanted to be heard as to the disposition or the
case plan, father’s counsel stated: “It appears this is the same
case plan my client was ordered last time other than the medical
appointments and the CPR. I’d object to the CPR training. I
don’t see how that is narrowly tailored to address my client’s
issues in this case with the drug use.”11 Father did not object to
other aspects of the case plan or waive reunification services, in
writing, pursuant to section 361.5, subdivision (b)(14)(A)-(B). By
failing to raise it below, father has not preserved the issue for our
review. (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”].)

11 Father did not repeat this argument regarding CPR
training in his appellate briefs.

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 DISPOSITION
The juvenile court’s jurisdictional findings and
dispositional orders as to Kyle are affirmed. The jurisdictional
finding and corresponding dispositional orders as to Hailey are
reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.
ASHMANN-GERST

We concur:

________________________, P. J.
LUI

________________________, J.
CHAVEZ

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