Filed 6/21/16 In re Joel R. CA2/3
Received for posting 6/22/16
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115(a).


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE


In re JOEL R., A Person Coming Under the                                   B266124
Juvenile Court Law.
                                                                           (Los Angeles County
LOS ANGELES COUNTY                                                         Super. Ct. No. DK09457)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

SALVADOR R.,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County,
Connie R. Quinones, Judge. Reversed and remanded.
         Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and
Appellant, Salvadore R.
         Office of the County Counsel, Mary C. Wickham, County Counsel,
R. Keith Davis, Acting Assistant County Counsel, and Aileen Wong, Deputy County
Counsel, for Plaintiff and Respondent.
                        ___________________________________________
                                   INTRODUCTION
       Salvador R. (father) challenges the juvenile court’s jurisdictional finding
concerning his 16-year-old son, Joel R. Joel came to the attention of the Department of
Children and Family Services (department) after his mother, Angelica R., gave birth to
another child and tested positive for amphetamines following the baby’s delivery.
       Father contends the jurisdictional finding is not supported by substantial
evidence because the department failed to show that mother’s drug use caused Joel any
harm in the past, or placed him at a substantial risk of future physical harm or illness.
We agree, and therefore reverse the jurisdictional and dispositional orders of the
juvenile court.
                   FACTS AND PROCEDURAL BACKGROUND
       Father and mother are married and have one child together, Joel R. Prior to the
events at issue, mother, father, and Joel lived together in the home of father’s parents.
Father’s brother, Gonzalo, and his three children also lived in the home.
       On December 10, 2014, mother gave birth to a second child, Abel R.1 Mother
tested positive for amphetamines after the birth and the department was notified.
A social worker visited mother in the hospital the day after the birth. Although mother
initially denied drug use, she eventually admitted she had taken some drugs in an effort
to manage pain. Mother also admitted she abused drugs in the past and had recently
relapsed while pregnant with Abel. In addition, mother advised the social worker that
Gonzalo is Abel’s father. Neither father nor Gonzalo knew mother was using drugs
during the pregnancy.
       For approximately two months after Abel’s birth, mother continued to reside
with father, Joel, Gonzalo, and the rest of the family. Father and Gonzalo both thought
mother was no longer using drugs. However, mother took several on-demand drug tests


1
       Although the court found jurisdiction as to both Joel and Abel, father only
challenges the jurisdictional finding regarding Joel. Accordingly, we do not discuss the
facts which relate solely to Abel.


                                             2
at the request of the department and twice tested positive for amphetamines and/or
methamphetamine.
       On February 3, 2015, after the second positive drug test, a department social
worker spoke with mother, father, and Gonzalo. The social worker advised that
mother’s continuing drug use placed both Joel and Abel at risk of neglect or abuse and
that the department planned to intervene and detain both children from mother. Mother
agreed to move out of the family’s home and agreed to have the children detained from
her care and supervision. Father and Gonzalo told the social worker they were willing
and available to take care of Joel and Abel, respectively. The next day, father
confirmed mother was no longer living in the family home.
       On February 9, 2015, the department filed a petition regarding both Abel and
Joel, and named mother, father and Gonzalo in the petition. The petition alleged under
Welfare & Institutions Code2 section 300, subdivision (b), that mother was unable to
care for the children due to her use of illicit drugs. The petition contained specific
allegations regarding mother’s positive toxicology screen following Abel’s birth. As it
relates to Joel, the petition alleged father “knew or reasonably should have known that
mother was abusing illicit drugs,” and that father allowed mother to continue to reside
with Joel and have unlimited access to him. The petition stated mother’s drug use,
combined with father’s failure to protect Joel, endangered Joel’s “physical health and
safety and creat[ed] a detrimental home environment for the children, placing the
children at risk of serious physical harm, damage, danger, and failure to protect.”
       At the detention hearing on February 9, 2015, the court found that Salvador was
Joel’s presumed father, and ordered a paternity test to determine the identity of Abel’s
father. The court then detained Joel and Abel from mother, and released the boys into
the care of father and Gonzalo, respectively. The court also ordered a referral to the
Regional Center for Joel.


2
      All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


                                             3
       According to the department’s jurisdiction/disposition report, the department
received two prior referrals (in 2007 and 2011) regarding Joel, both of which were
unfounded. The first referral alleged mother was physically abusing Joel. However, the
case worker found Joel had no bruises or marks, and Joel denied mother hit him. The
case worker also observed “mother is very supportive and never leave[s] Joel alone.”
The second referral alleged general neglect by mother and father— specifically, Joel
was missing school and was not receiving proper medical care for treatment of a seizure
condition. After an initial investigation, the case worker found Joel had been seen
regularly by his pediatrician and was taking medication as directed to treat the seizure
condition.
       In connection with the current case, mother reported she had never abused
methamphetamine when either Joel or father was present. She said “she was able to
conceal her drug abuse issues because [father] trusted her and never questioned her
behaviors.” Mother said she used drugs in the past, but had been sober for 11 years
prior to her relapse during pregnancy. She never completed a rehabilitation program,
but simply stayed away from friends who she knew abused drugs. Mother explained
that she relapsed during the last trimester in her pregnancy because she was
experiencing pain from contractions, and was also stressed due to her strained
relationship with father and the conflict with father’s parents, as a result of her affair
with Gonzalo. Mother also said she was “depressed” and “lonely,” which made her
want to continue to use drugs. However, mother told the case worker she was “clean”
and was diligently looking for a drug rehabilitation program.
       During the investigation, father told the social worker assigned to the case he
never had any idea mother was using drugs during their 16-year marriage. Although he
was initially supportive of mother’s rehabilitation efforts, father became frustrated after
her second positive test. Father told mother she had to move out of the house because
he “was not going to risk getting the kids taken away.” According to the case worker,
father understood that he could not allow mother to return to the family home without
the permission of the department or the court.


                                              4
       The social worker met with Joel several times during the course of the
investigation. Joel is diagnosed with mild autism and learning disabilities. According
to the department’s reports, Joel is “shy,” “soft spoken,” and although he doesn’t speak
often or at length, he smiles a lot when spoken to. Joel attends special education classes
at a public high school, and enjoys playing baseball. The social worker observed that
the family home was amply furnished, and Joel was comfortable in his home and with
his father. Joel was healthy and well-nourished, and received regular medical care.
When asked about discipline, Joel said that he sometimes had to “face the wall” or
“stand [in] the corner.” Joel denied being hit, being called names, or being
inappropriately touched by anyone in the household. Joel said he didn’t know what
drugs were, but learned from his teacher that drugs are “bad.” He also said he had never
seen anyone abuse drugs or alcohol. When the social worker asked if Joel knew
whether his mother has abused drugs or alcohol, he shook his head to indicate “no.” In
short, “Joel was unable to provide any details about the mother’s drug abuse issues.”
       On April 1, 2015, the court held an adjudication hearing. The court sustained the
petition, finding jurisdiction under section 300, subdivision (b), as to both Joel and
Abel. However, the court struck the allegation that father and Gonzalo failed to protect
the boys from their mother’s drug use. The court renewed the existing placement with
father and Gonzalo, respectively. Mother contested disposition, and the court set the
matter for a further hearing on May 13, 2015. At that time, the department submitted
a last minute information which indicated mother was participating in an outpatient drug
rehabilitation program as well as counseling and classes. Although mother was not
living in the family home at that time, she had not yet found stable housing for herself.
Mother also advised the department that she was pregnant with another child by
Gonzalo, and the case worker observed that mother’s relationships with father and
Gonzalo continued to cause stress among father’s family members. However, the
department noted that “[t]he children continue to do well and no concerns have been
observed.”



                                             5
       At the disposition hearing, the court ordered Joel and Abel removed from
mother. The court further ordered that the boys remain in the home of their respective
fathers, and ordered monitored visitation for mother, with one 2-hour unmonitored visit
per week. Father timely appeals.
                                       DISCUSSION
       A.     Standard Of Review.
       We review the juvenile court’s jurisdiction findings for substantial evidence.
(In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384.) “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.’ ” (Ibid., brackets
are in the original.) However, inferences drawn from speculation or conjecture do not
constitute substantial evidence and cannot support a jurisdictional finding. (In re
Drake M. (2012) 211 Cal.App.4th 754, 763.) “ ‘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.’
[Citations.]” (Ibid.)
       B.     Substantial Evidence Does Not Support the Jurisdictional Finding.
       Father contends the court erred by asserting jurisdiction over Joel because the
evidence does not establish that mother’s drug use caused Joel to suffer, or placed him
at risk of suffering, serious physical harm or illness. We agree.
       Section 300, subdivision (b)(1), provides for jurisdiction when a “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.” The department must prove, by a preponderance of the
evidence, three elements: “(1) neglectful conduct by the parent in one of the specified
forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or
a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814,


                                              6
820; § 355, subd. (a).) “The third element ‘effectively requires a showing that at the
time of the jurisdiction hearing the child is at substantial risk of serious physical harm in
the future (e.g., evidence showing a substantial risk that past physical harm will
reoccur). [Citations.]’ ” (In re David M. (2005) 134 Cal.App.4th 822, 829.)
“Section 300, ‘subdivision (b) means what it says. Before courts and agencies can exert
jurisdiction under section 300, subdivision (b), there must be evidence indicating that
the child is exposed to a substantial risk of serious physical harm or illness.’
[Citations.]” (In re John M. (2013) 217 Cal.App.4th 410, 418.)
       The department cited mother’s drug use as the sole basis for jurisdiction over
Joel. The department described the situation in its jurisdiction/disposition report:
“Mother has a history of substance abuse and is a current abuser of methamphetamines.
The mother used illicit drugs during the pregnancy of the child Abel. Therefore, the
children’s safety cannot be ensured in the home of their mother until the mother
complies with the case plan outlined in [the jurisdiction/disposition] report.” But many
cases have concluded that a parent’s use of drugs, standing alone, does not bring
a minor within the jurisdiction of the dependency court. (See In re Destiny S. (2012)
210 Cal.App.4th 999, 1003 [the mother’s use of marijuana and methamphetamine
insufficient to support jurisdiction under section 300, subdivision (b)]; In re David M.,
supra, 134 Cal.App.4th at p. 830 [jurisdiction under section 300, subdivision (b),
reversed where the mother had a continuing substance abuse problem, but there was no
evidence of a specific, defined risk of harm from mother’s substance abuse]; In re
Rocco M., supra, 1 Cal.App.4th at p. 817 [the mother’s cocaine use was not sufficient
basis for jurisdiction under section 300, subdivision (b)]; In re W.O. (1979)
88 Cal.App.3d 906, 910 [the parents’ drug use and discovery of drugs in the family
home is insufficient to support the exercise of dependency jurisdiction].) Rather, the
department had the burden to present evidence of a specific, non-speculative and
substantial risk of serious physical harm to Joel based on mother’s conduct. (In re
David M., supra, 134 Cal.App.4th at p. 830.) The department failed to make that
showing here.


                                             7
       The record in this case contains no evidence that mother’s current or prior use of
methamphetamine caused harm to Joel or placed him at risk of harm. In fact, mother
stated she never used drugs in the family home or in the presence of anyone in the
family. (Cf. In re Alexis E. (2009) 171 Cal.App.4th 438, 452 [finding risk of harm
based on the father’s use of marijuana in the home that exposed the children to the
“negative effects of secondhand” smoke].) She successfully concealed her drug use,
such that no one in the family even suspected she was using drugs. Moreover, the
record contains only positive observations about Joel and his home environment. The
social worker observed Joel to be healthy and well cared for; Joel received regular
medical care; Joel was comfortable in the family home and with his father; and there
was absolutely no evidence of inappropriate discipline or other abuse.
       The department argues the court could have inferred that mother was under the
influence while she was with father and Joel at some unknown point in the past because
mother admitted she used drugs for five years after Joel was born. Certainly, past
harmful conduct is relevant to the current risk of future physical harm to a child. (See
In re David M., supra, 134 Cal.App.4th at p. 831 [“past abuse or neglect can certainly
be an indicator of future risk of harm”]; In re Rocco M., supra, 1 Cal.App.4th at p. 824
[“evidence of past conduct may be probative of current conditions”].) However, the
department fails to provide any evidence that mother’s drug use resulted in any harm to
Joel in the past, such that it would support a reasonable inference that he is currently at
substantial risk of serious physical harm or illness. (Cf. In re Rocco M., supra,
1 Cal.App.4th at p. 824 [“past infliction of physical harm by a caretaker, standing alone,
does not establish a substantial risk of physical harm; ‘[t]here must be some reason to
believe the acts may continue in the future’ ”].)
       We note this is not a case like In re R.R., in which the father’s use of
methamphetamine required his hospitalization and compromised his ability to care for
his children. (In re R.R. (2010) 187 Cal.App.4th 1264, 1284.) Nor is it like In re
Rocco M. in which the court held evidence that a mother that exposed her 11-year-old
son to her drug use, “thus impliedly approving such conduct and even encouraging him


                                             8
to believe that it is an appropriate or necessary means of coping with life’s difficulties,”
was sufficient to support a jurisdictional finding. (In re Rocco M., supra, 1 Cal.App.4th
at p. 825.)
       The department correctly observes that, where very young children are at issue,
“the finding of substance abuse is prima facie evidence of the inability of a parent or
guardian to provide regular care resulting in a substantial risk of physical harm.” (In re
Drake M., supra, 211 Cal.App.4th at p. 767; In re Rocco M., supra, 1 Cal.App.4th at
p. 824 [“tender years”].) The so-called “tender years” rule recognizes that very young
children are unable to care for themselves and require constant supervision;
consequently, a parent’s inability to care for them—even for a short time—poses
a significant danger. The department urges us to use this principle to affirm the
jurisdictional finding in this case because, although Joel is 16-years-old, he is autistic
and has a seizure disorder. Without deciding whether, or under what circumstances, the
“tender years” rule could be extended to include an older child with disabilities, we
decline to do so here. Joel takes medication to control his seizure disorder. Although
Joel has significant learning disabilities, he attends a public high school and plays some
sports. There is simply no evidence on this record from which we could reasonably
infer that Joel requires the type of constant care and close supervision necessary to
preserve the health and safety of an infant or toddler.
       Finally, the department asserts that, in the absence of department supervision,
father could allow mother to move back in to the family home. While true, this
speculative assertion does not lead to a reasonable inference that Joel is currently at
substantial risk of serious physical harm or illness. (See In re David M., supra,
134 Cal.App.4th at p. 828 [inferences must be a product of logic and reason and must
rest on the evidence; inferences that are the result of conjecture cannot support
a jurisdictional finding]; In re Rocco M., supra, 1 Cal.App.4th at p. 824 [noting “the
question under section 300 is whether circumstances at the time of the hearing subject
the minor to the defined risk of harm”].) We also reject the department’s suggestion
that the jurisdictional finding should be affirmed because it would be beneficial for


                                              9
father to take a drug awareness class. The fact that family maintenance services would
be beneficial does not support the exercise of dependency jurisdiction in the first
instance. (§ 300.)
       In short, the department failed to show a nexus between mother’s use of illegal
substances and a substantial risk of harm to Joel. Accordingly, the court’s jurisdictional
finding is not supported by substantial evidence.3 Because we conclude the
jurisdictional order must be reversed, the dispositional order as to Joel must also be
reversed. (See In re James R. (2009) 176 Cal.App.4th 129, 137.) On remand, if the
department files a subsequent petition based upon new developments which occurred
during the pendency of the appeal, the court may consider it. (See In re Ryan K. (2012)
207 Cal.App.4th 591, 597-598.) Otherwise, given the absence of a valid basis for
jurisdiction over Joel, the court should dismiss the petition.




3
       In light of our holding that the court’s jurisdictional order must be reversed, it is
unnecessary for us to address father’s argument regarding the court’s refusal to issue an
exit order.


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                                    DISPOSITION
       The jurisdictional and dispositional orders regarding Joel are reversed. We
remand to the juvenile court for further proceedings consistent with this opinion.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                                      LAVIN, J.

WE CONCUR:




       EDMON, P. J.




       ALDRICH, J.




                                           11
