Filed 5/27/21 In re Mila A. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re MILA A., a Person 

Coming Under the Juvenile 

Court Law.

 B308744

 (Los Angeles County Super. 

 Ct. No. 20CCJP03812A)

 

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

ERIKA G.,

Defendant and Appellant.
2

APPEAL from an order of the Superior Court of Los 

Angeles County, Sabina A. Helton, Judge. Affirmed.

Karen J. Dodd, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Veronica Randazzo, Deputy 

County Counsel, for Plaintiff and Respondent. 

* * * * * *

A juvenile court exerted dependency jurisdiction over a 

toddler due to her mother’s persistent use of marijuana. The 

mother appeals, arguing that the court’s decision to exercise

jurisdiction was not supported by substantial evidence. Her 

arguments lack merit, so we affirm. 

FACTS AND PROCEDURAL BACKGROUND

I. Facts

Erika G. (mother) and Giovany A. (father) have one child 

together—Mila A., born December 2016. 

Mother has used marijuana over the last few years to help 

her sleep. She ingested marijuana even while actively trying to 

conceive and until she learned she was pregnant with Mila, 

which was three or four months after conception. After Mila was 

born, she continued using marijuana nightly with father.

Although she and father would leave Mila with the paternal 

grandmother while they smoked in the evenings, they would 

retrieve Mila at bedtime and would be Mila’s sole caregivers 

despite being under the influence. After mother ended her 

relationship with father around August 2020 and moved in with 
3

maternal grandmother, mother would still use marijuana at 

night and then go to bed while being responsible for Mila.

Mother minimized both the extent of her marijuana use 

and its impact on Mila. She said she began smoking in high 

school, but stopped and did not start again until she was 18 years 

old. This was contradicted by her admission that she used while 

trying to conceive Mila (which was before mother was 18). She 

said she did not ever smoke inside her residence, but this was 

contradicted by the odor of marijuana in her residence (which she 

blamed on the smell “seeping” into her residence from neighbors’ 

nearby use). She said at least one adult was always sober at 

night to care for Mila, but this was contradicted by mother’s 

statement that she and father would retrieve Mila at night after 

they had smoked and by the fact that mother smoked before 

going to bed even after she separated from father.

1

In June 2020, mother tested positive for marijuana and 

father tested positive for marijuana and cocaine. Mother 

promised to voluntarily enroll in a drug treatment program but 

never did.

II. Procedural Background

In mid-July 2020, the Department filed a petition asking 

the juvenile court to exert dependency jurisdiction over Mila on 

the ground that mother and father had a “history of substance 

abuse” and were “current abuser[s]” of marijuana (as to mother) 

and marijuana and cocaine (as to father), which rendered them 

“incapable of providing regular care for the child” and “placing” 

her “at risk of serious physical harm” (thereby rendering 

1 Although maternal grandmother’s boyfriend also lived with 

them, there was no evidence that he ever cared for Mila.
4

dependency jurisdiction appropriate under Welfare and 

Institutions Code, section 300, subdivision (b)(1)).2 

Although mother told the Department that she stopped 

using marijuana after the Department filed its petition, mother 

subsequently tested positive for marijuana eight times. Six of 

those results were indicative of daily use and the marijuana 

levels in mother’s test results increased at times when she was 

under close supervision by the Department and the juvenile 

court—namely, the levels in her test results doubled after the 

detention hearing and also increased leading up to the 

adjudication hearing. On October 8, 2020, father drove mother 

and himself to a drug test with Mila in the car, and the 

subsequent results for both of them was positive, but mother 

later denied ever seeing father drive with Mila with drugs in his 

system.

In November 2020, the juvenile court held a combined 

jurisdictional and dispositional hearing. The court sustained the 

allegations against mother and father, and removed Mila from 

father—but not mother.

3 The court ordered family preservation 

services for mother; mother’s case plan required her to submit to 

ten random or on-demand drug tests that had to show decreasing 

levels of marijuana. 

Mother filed this timely appeal. 

2 All further statutory references are to the Welfare and 

Institutions Code unless otherwise indicated. 

3 The juvenile court removed Mila from father’s care because, 

after he failed to submit to several drug tests, he tested positive 

for cocaine and high levels of marijuana.
5

DISCUSSION

Mother argues that substantial evidence does not support 

the juvenile court’s exercise of dependency jurisdiction. Before 

reaching this argument, however, we first address a question of 

justiciability.

I. Justiciability

As a threshold matter, the Department asserts that 

mother’s challenge is not justiciable because father has not also 

appealed, such that the court’s exercise of dependency 

jurisdiction over Mila will remain appropriate based on father’s 

conduct no matter how we resolve mother’s appeal.

Juvenile dependency jurisdiction attaches to the child, not 

to the parent. (In re I.A. (2011) 201 Cal.App.4th 1484, 1491

(I.A.).) Thus, if there is one valid basis for exerting dependency 

jurisdiction over a child, a challenge to any other basis for 

jurisdiction is likely to have no effect on the juvenile court’s 

rulings and thus likely to be little more than an “‘“opinion[] upon 

[a] moot question[] or [an] abstract proposition[].”’” (Eye Dog 

Foundation v. State Board of Guide Dogs for the Blind (1967) 67 

Cal.2d 536, 541; In re D.P. (2014) 225 Cal.App.4th 898, 902 [“‘[A]s 

long as there is one unassailable jurisdictional finding, it is 

immaterial that another might be inappropriate’”].)

Appellate courts nevertheless retain the “discretion” to 

hear the merits of a challenge to a juvenile court’s jurisdictional 

finding, even if overturning that finding will have no immediate 

effect on the juvenile court’s assertion of jurisdiction. (I.A., supra, 

201 Cal.App.4th at pp. 1494-1495.) However, courts will 

generally exercise that discretion only upon a showing that (1) 

the challenged finding will have some further consequence in the 

case at issue, such as when the finding “serves as the basis for 
6

dispositional orders that are also challenged on appeal,” or (2) the 

challenged finding could have some further consequence in a 

future proceeding, most likely a future dependency or family law 

proceeding, such as when the finding declares the appealing 

parent to be an “offending” parent rather than a “non-offending” 

parent or when the finding itself is “pernicious” or “carries a 

particular stigma.” (In re Drake M. (2012) 211 Cal.App.4th 754, 

762-763 (Drake M.); In re M.W. (2015) 238 Cal.App.4th 1444, 

1452.)4

Because the validity of the allegations mother challenges in 

this appeal are what make her an “offending” parent rather than 

a “non-offending” parent, we elect to exercise our discretion to 

reach the merits of mother’s appeal.

II. Jurisdictional Finding

We evaluate the sufficiency of the evidence supporting a 

juvenile court’s jurisdictional finding by asking whether there is 

enough evidence in the record that is reasonable, credible, and of 

solid value that a reasonable trier of fact could reach the same 

conclusion as the juvenile court. (In re K.B. (2015) 239 

Cal.App.4th 972, 979.) In so doing, we consider the record as a 

whole, and resolve all conflicts and draw all reasonable 

inferences to support the juvenile court’s findings. (In re R.T.

(2017) 3 Cal.5th 622, 633; In re Lana S. (2012) 207 Cal.App.4th 

94, 103.) Only if the record compels a finding in favor of mother 

as a matter of law must the juvenile court’s jurisdictional finding 

be reversed. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, 

4 Although Drake M. articulated three types of showings 

justifying the exercise of discretion, those types fall into the two 

broader categories described above.
7

disapproved on other grounds, Conservatorship of O.B. (2020) 9 

Cal.5th 989, 1003, fn. 4, 1011, fn. 7.) 

Under section 300, subdivision (b)(1), a juvenile court may 

exert dependency jurisdiction if, as pertinent here, a “child has 

suffered, or there is a substantial risk that the child will suffer, 

serious physical harm or illness” due to (1) “the failure or 

inability of ... her parent ... to adequately supervise or protect” 

her, or (2) “the inability of the parent ... to provide regular care 

for the child due to the parent’s ... substance abuse.” (§ 300, 

subd. (b)(1).) When the failure to supervise is based on drug 

abuse, courts employ a “tender years” presumption; under that 

presumption, a “finding of substance abuse is prima facie 

evidence of the inability of a parent . . . to provide regular care 

resulting in a substantial risk of physical harm.” (Drake M., 

supra, 211 Cal.App.4th at pp. 766-767; accord, In re Kadence P.

(2015) 241 Cal.App.4th 1376, 1385 (Kadence P.); In re 

Christopher R. (2014) 225 Cal.App.4th 1210, 1220 (Christopher 

R.).) In such cases, jurisdiction is appropriate even without proof 

of “an identified, specific hazard in the child’s environment.” 

(Drake M., at pp. 766-767, italics omitted.) What is more, risk of 

harm means just that: The juvenile court “need not wait until a 

child is seriously abused or injured to assume jurisdiction . . . .” 

(Kadence P., at p. 1383; In re N.M. (2011) 197 Cal.App.4th 159, 

165.) 

Substantial evidence supports the juvenile court’s 

determination that Mila faces “substantial risk . . . [of] serious 

physical harm” due to mother’s “inability” to “supervise” or 

“provide regular care” for her due to mother’s substance abuse. 

(§ 300, subd. (b)(1).) There is substantial evidence to support the 

finding that mother has engaged in substance abuse. Mother has 
8

been using marijuana for years. More to the point, mother has 

continued to use even when doing so creates a risk of harm to 

Mila, including when she was trying to conceive, when she is 

responsible for Mila at night, and even when she is transporting 

Mila in a car. Not even supervision by the Department or the 

juvenile court has halted—or even reduced—mother’s use. 

Instead, she missed testing, did not follow through with her 

promise to enroll in a drug treatment program, underreported 

her usage, and was not forthright with the Department about the 

times when her usage has endangered Mila. (In re Natalie A.

(2015) 243 Cal.App.4th 178, 186 [substantial evidence of 

substance abuse where father’s drug test results raised 

reasonable inference that his use was more frequent than 

reported and failed to enroll in drug programs as promised]; In re 

K.B. (2021) 59 Cal.App.5th 593, 601 (K.B.) [substantial evidence 

of substance abuse where mother “had been transparently 

dissembling about her drug use” and “was trying to hide her 

ongoing addiction”]; Kadence P., supra, 241 Cal.App.4th at pp. 

1384-1385 [substantial evidence of substance abuse where 

mother hid drug use and avoided drug tests].) By virtue of the 

tender years presumption, mother’s substance abuse translates 

to a substantial risk of serious physical harm to Mila. 

(Christopher R., supra, 225 Cal.App.4th at p. 1219 [children 

under the age of six are children of tender years].) 

Mother resists this conclusion with three arguments.

First, mother acknowledges that she has used marijuana 

but argues that there is insufficient evidence that her use rises to 

the level of “substance abuse” within the meaning of Drake M., 

supra, 211 Cal.App.4th at pp. 766-767, italics added. Drake 

M. held that a parent engages in “substance abuse” only if (1) a 
9

medical professional has diagnosed the parent as having a 

substance abuse problem, or (2) the parent’s substance abuse

meets the definition of a substance abuse problem as defined by 

the Diagnostic and Statistical Manual of Mental Disorders 

(DSM). (Id. at p. 766, italics added.) As have several other 

courts, we decline to follow Drake M. to the extent it purports to 

require such a showing in all cases. (In re Rebecca C. (2014) 228 

Cal.App.4th 720, 726; Christopher R., supra, 225 Cal.App.4th at 

p. 1218; K.B., supra, 59 Cal.App.5th 593, 601.) And even if we 

were to follow the path blazed by Drake M. by looking to the 

DSM, substantial evidence supports a finding of “substance 

abuse” under the most recent, fifth edition of the DSM. That 

edition replaced the definition of “substance abuse” with the 

broader classification of “substance use disorder,” which is met

when two or three of 11 enumerated factors exist (Christopher R., 

at p. 1218, fn. 6), and those factors include (1) taking the 

substance in larger amounts or for longer than a person is meant 

to, (2) wanting to cut down or stop using the substance but not 

managing to, and (3) using substances, even if it puts a person or 

others in danger. (Hartney, DSM 5 Criteria for Substance Use 

Disorders (Mar. 21, 2020) Verywell Mind, archived at 

<https://perma.cc/CV2S-MT3A> [as of Mar. 19, 2021].) Here, 

mother’s continued—and, indeed, elevated use—of marijuana 

while under the Department’s and juvenile court’s supervision, 

even when that use endangers Mila, meets this definition.

Second, mother argues that the lawfulness of her 

marijuana use means that that use does not constitute

“substance abuse.” She is wrong. (In re Alexis E. (2009) 171 

Cal.App.4th 438, 452 [“even legal use of marijuana can be abuse 

if it presents risk of harm to minors”].) 
10

Third, mother points us to evidence in the record, including 

that Mila was well cared for, happy, and meeting developmental 

milestones, and argues that the dependency court’s finding of risk 

of harm must therefore be based on speculation. (In re Ricardo L.

(2003) 109 Cal.App.4th 552, 565 [substantial evidence requires 

more than “mere speculation”].) But because the tender years 

presumption applies, the absence of any “identified, specific 

hazard” does not undermine the juvenile court’s jurisdictional 

finding. Mother likens this case to In re J.A. (2020) 47 

Cal.App.5th 1036 (J.A.), but we find J.A. inapt. The majority in 

J.A. concluded that substantial evidence did not support 

dependency jurisdiction due to substance abuse when a mother 

used edible marijuana to alleviate pregnancy symptoms and 

stopped immediately after being told to do so (and her cessation 

was confirmed by postnatal drug tests). (Id. at p. 1047.) Here, 

mother has not ceased using marijuana, has at times used even 

more, and yet has continued to minimize her drug use as well as 

to endanger Mila by leaving her without sober adult supervision 

at night. 
11

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST