Filed 3/29/24 In re M.D. CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re M.D., a Person Coming 

Under the Juvenile Court Law.

B326420

Los Angeles County

Super. Ct. No.

22CCJP04338A

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

J.D.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles 

County, Donald A. Buddle, Jr., Judge. Affirmed in part, reversed 

in part.

Sean Angele Burleigh, under appointment by the Court 

of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, Sarah Vesecky, Deputy County 

Counsel, for Plaintiff and Respondent.

_________________________
2

Father challenges the juvenile court’s jurisdictional finding 

that he failed to protect his daughter M.D. (born January 2011)

from mother’s substance abuse.

1 He also challenges the court’s 

dispositional orders that he participate in individual counseling 

and random, on-demand drug testing. Substantial evidence 

supports the court’s jurisdictional finding, which we affirm. 

We also conclude the court reasonably exercised its discretion 

in ordering father to participate in individual counseling. We 

agree with father, however, that there is no basis in the record 

to require him to undergo random and on-demand drug testing. 

Accordingly, we reverse that portion of the court’s dispositional 

order and remand the matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

1. Investigation

In late October 2022, the Los Angeles County Department 

of Children and Family Services (DCFS) received a report that

mother had tested positive for marijuana and amphetamine 

when she gave birth to O.S. (M.D.’s half-brother) the day before.

Mother admitted consuming “edibles” for insomnia and bone pain

but denied knowingly consuming amphetamines. James, who is 

not a party to this appeal, is the father of O.S. and mother’s thenone-year-old child N.S. Each of mother’s three other children 

has a different father: S.B. (then age two), I.G. (then age 17), 

and M.D. (then age 11). The children, except for I.G., lived with 

1 Mother also appealed. This court dismissed mother’s

appeal after her appellate counsel filed a brief under 

In re Phoenix H. (2009) 47 Cal.4th 835.
3

mother and maternal grandmother.

2 Only M.D. is the subject 

of this appeal.

A social worker interviewed mother at the hospital. 

Mother said father was “not active in” M.D.’s life, and “his 

whereabouts are unknown.” She said the only drug she ever 

had used was marijuana, and she had been using it for about

15 years. Mother did not inhale marijuana—she consumed 

edibles “laced with marijuana.” Mother believed an edible she

had a week earlier may also have been laced with amphetamines, 

leading to her positive test. James also disclosed marijuana use. 

He had no knowledge of mother using any drug other than 

marijuana.3

They both signed a safety plan, agreeing mother and the

children would stay with maternal grandmother, and agreed to 

drug test on demand. Maternal grandmother agreed to supervise 

the children. She had no concerns about how mother cared for

them. She also denied any knowledge of substance abuse by

mother or James.

The social worker also spoke to M.D. M.D. stated she 

had been living with mother but began living with paternal 

grandmother in August 2022 due to mother’s “high risk”

pregnancy. M.D. felt safe with paternal grandmother. She 

maintained regular contact, and had good relationships, with

2 I.G. lived with his father. DCFS did not initiate 

dependency proceedings with respect to him.

3 Although mother and James denied being married or

living together, during the investigation DCFS learned they 

had married in February 2021.
4

mother, her half-siblings, and maternal grandmother. Father 

did not live with paternal grandmother. M.D. said “she had 

not seen or talked with him for a long time.” M.D. denied ever 

having seen mother smoke anything. She believed mother took 

good care of her and her siblings.

Paternal grandmother told the social worker she “always” 

had been in M.D.’s life, “since birth.” She had no concerns with 

how mother cared for M.D. Mother had arranged for M.D. to 

stay with her so mother could “deal with her pregnancy and have 

better control of her other children.” As M.D. had started school 

near paternal grandmother, mother let M.D. continue to stay 

with her. M.D. was doing well in school. Paternal grandmother 

was tending to M.D.’s medical, dental, and educational needs. 

Paternal grandmother also did not know where father was and 

confirmed he was not active in M.D.’s life. She was interested in 

having M.D. placed with her if M.D. were detained from mother.

On October 31, 2022, DCFS obtained and served a 

removal order for M.D. and her three younger siblings. Initially, 

M.D. was allowed to remain with paternal grandmother. She 

ultimately was placed with a maternal cousin along with S.B.

4

Mother’s on-demand drug test from October 31, 2022 

came back positive for marijuana but no other substances.

2. Petition and detention

On November 2, 2022, DCFS filed a petition under Welfare 

and Institutions Code5 section 300 on behalf of M.D. and 

4 DCFS had learned paternal grandmother had a criminal 

history that required a waiver.

5 Statutory references are to the Welfare and Institutions 

Code.
5

her younger siblings, alleging they were at risk of harm due 

to mother’s 15-year history of substance abuse and current 

amphetamine, methamphetamine, and marijuana use. The 

petition also alleged mother had mental and emotional problems.

At the detention hearing, the court found a prima facie 

case the children are persons described by section 300. The court 

found father, who was not present, to be the presumed father 

of M.D. The court ordered DCFS to initiate a due diligence 

search to provide father with notice. The children were detained 

from their respective parents.

3. Jurisdiction/disposition report

DCFS filed a jurisdiction/disposition report with the court 

on December 14, 2022. By that time, DCFS had received O.S.’s 

meconium test results, which were positive for cannabinoids 

and Carboxy THC but negative for amphetamines and other 

substances. DCFS also had located father. He was living in 

Bakersfield. DCFS was in the process of filing a first amended 

petition to add allegations that father knew of mother’s substance 

abuse and failed to protect M.D., endangering her health and 

safety, and placing her at substantial risk of serious harm.

a. Background information

The report noted the children had no dependency history, 

but DCFS had received prior reports of neglect. As to M.D., 

in October 2011—when M.D. was less than a year old—DCFS

received a call alleging mother had been using marijuana in front 

of M.D. and I.G. and had left the marijuana bag and an alcohol 

bottle on a potentially accessible counter. The allegations were 

deemed “unfounded.” In October 2016, DCFS received a call 

about M.D.’s acting out in school, including “aggressive/sexual 

behavior.” The caller was concerned M.D. may have viewed 
6

age-inappropriate material at home. Again, the allegations were 

“unfounded.” And, in June 2020, mother was reported as having 

tested positive for marijuana before S.B.’s birth. In June 2019, 

mother had tested positive for amphetamine and cannabinoids. 

Mother denied having taken amphetamines. The allegations 

did not meet the criteria for abuse or neglect—DCFS referred 

the family for services.

DCFS also reported on parents’ criminal history. James 

had been convicted of felony possession/purchase for sale of 

narcotics or a controlled substance and three other convictions. 

He also had several arrests. DCFS described father as having 

“an extensive criminal history, including numerous arrests as 

a minor.” As an adult, he had been convicted of a felony burglary 

in June 2019 and a misdemeanor for “[o]bstructing a [p]ublic 

[o]fficer” in February 2016. He had “multiple prior arrests” for 

obstructing a public officer, “[d]isorderly [c]onduct: [i]ntoxicated

[d]rugs/[a]lcohol,” and in May 2022, carrying a concealed 

weapon.6 Mother had a few misdemeanor convictions from 

2008 and 2009.

b. Investigation of allegations against mother

The DCFS dependency investigator (DI) interviewed 

parents, M.D., and other relatives. Mother said she’d “ ‘never 

done drugs.’ ” She got her medical marijuana card as a teenager 

and began smoking regularly when she was about 22 years old. 

(Mother was 33 years old.) She also consumed edibles and used 

6 DCFS did not report the date of father’s arrests for 

obstruction and disorderly conduct. As for the May 2022 firearm 

arrest, father explained the firearm belonged to his friend. The

case had been dismissed.
7

oils with “a combination of CBD and THC.” Mother insisted

her marijuana use “has never affected her ability to parent her 

children.” She said she used marijuana when her children were 

sleeping or at their grandparents, not during the day. At most, 

she used marijuana about three times a week. If she smoked 

marijuana, she did so outside or at a friend’s home. She stored 

her marijuana in a lock box that she kept in a cabinet. James 

confirmed mother used marijuana but no other drugs. He told 

the DI someone else always was present with the children if

mother decided to have an edible.

Mother denied ever having used methamphetamine; 

she had “ ‘never taken any hard drug.’ ” Mother did not 

know why she tested positive for amphetamine at O.S.’s birth. 

Mother suffered from chronic back pain for which she had been 

prescribed tramadol and Norco. Mother also told the DI she 

suffered from severe anxiety, depression, and “ ‘social phobia.’ ”

She had been prescribed several medications for those conditions, 

including lorazepam for anxiety and trazodone for insomnia, 

both of which she took daily. She used to take Xanax and Prozac.

She now claimed the positive test must have come from one 

of her medications. Mother agreed to give the DI a list of her 

medications but refused to drug test on demand until DCFS

had the complete list. As of the date of the report, mother 

had not done so.7

7 Mother ultimately gave DCFS documentation concerning 

her medications shortly before the January 13, 2023 adjudication 

hearing. At that hearing, DCFS’s counsel asserted nothing on 

the list would have screened positive for amphetamine.
8

As for her relationship with father, mother said they had 

met in 2010 and were together for about five and a half years. 

She had no concerns about father’s or James’s ability to care 

for their respective children.

The DI reviewed the substance abuse allegations against 

mother with father. He responded, “ ‘That sounds like her.’ ” 

Father said mother “has ‘always’ used drugs.” He knew about 

“mother’s ongoing drug use because he sees her ‘around the 

wrong people[,]’ and he hears about her from other people.”

Father was “ ‘quite sure’ . . . mother uses methamphetamine, 

cocaine, marijuana and ‘party drugs.’ ” Father described mother 

as a “ ‘party person’ ” and said mother would use “ ‘any type of 

pills’ and any drug she [could] access that would get her high.” 

According to father, mother had “ ‘always been like that.’ ” 

She was using drugs “years ago” when they still were together. 

He said he had “witnessed her using various drugs, including 

methamphetamine and cocaine.” Father added, “ ‘That’s one 

of the reasons the relationship fell apart.’ ”

Father believed “mother’s drug use in itself [did] not affect 

her parenting.” He said “ ‘it’s her environment that’s bad.’ ” 

Father stated, “ ‘It’s not what you do, is [sic] how you’re doing 

it.’ ” He thought mother did not maintain stability for her 

children—they had been “ ‘house to house.’ ” Father also 

reported mother was “ ‘quick to drop her kids off’ and ‘send them

to somebody while she’s doing what she do.’ ” He complained 

mother would never send M.D. to stay with him for “fear that it 

would ‘make her look bad.’ ” Instead, she “frequently sent” M.D. 

to stay with paternal grandmother, whom father said “provide[d] 

the child with no discipline.” Father was aware mother had 

anxiety and a history of depression but didn’t believe it affected 
9

her parenting. Father believed mother never intentionally would 

place her children in harm’s way. He was concerned, however, 

“that no one has been providing supervision to [M.D.] so, ‘she’s 

raising herself and probably taking care of her siblings too.’ ”

The DI met with M.D. M.D. said she went to stay with 

paternal grandmother when mother was pregnant with N.S.

(born June 2021). Because M.D. had started school there, mother 

thought it was best for M.D. to finish the school year living with 

paternal grandmother. M.D. told the DI she decided to stay with 

paternal grandmother the following (current) school year. She 

remained there until she was detained. M.D. said she still saw 

her mother almost every day during the time she lived with 

paternal grandmother. M.D. enjoyed spending time with mother

and said they had “ ‘a good bond.’ ”

M.D. told the DI mother did not use drugs, and she never 

had had a reason to suspect that mother (or James) did. M.D.

said mother occasionally drank alcohol on special occasions

but was not an alcoholic. M.D. never had seen mother drunk. 

The DI asked M.D. about her knowledge of the allegations 

against mother. She replied, “ ‘I know my mom’s story’ and 

‘I don’t know if she’s trying to protect me by not telling me the 

truth or if she is telling the truth.’ ” M.D. knew mother had 

tested positive for amphetamine and that amphetamine is 

an ingredient in some prescriptions. She at first said she saw 

mother smoke marijuana “ ‘like once,’ ” but then wasn’t sure if 

it had been more than one time. M.D. also denied that mother 

appeared mentally or emotionally unstable. M.D. wanted to 

participate in counseling.

The DI met with James’s sister (aunt), with whom N.S. 

and newborn O.S. were placed. The children were doing well, 
10

but O.S. initially had experienced withdrawal symptoms. 

In 2020—before N.S. and O.S. were born and S.B. was a baby—

James, mother, and mother’s children had lived with aunt. 

According to aunt, mother seemed “ ‘detached’ ” from her children

during that time. She said M.D. cared “for the younger children, 

more so than . . . mother.” Aunt thought M.D. had “been exposed 

to things” inappropriate for a child. She said mother did not 

properly supervise M.D.: when M.D. was about seven years old, 

mother allowed M.D. to use the stove without supervision; M.D.

wandered into aunt’s room and found aunt’s “private belongings”; 

and M.D. “rarely” went to school because mother “did not 

require her to do so.” M.D. spent most of her time in paternal 

grandmother’s care.

When asked about substance abuse, aunt said she did 

not suspect drug use by mother at first. After aunt moved 

out, however, mother “started displaying bizarre behaviors.” 

Nevertheless, aunt never had seen mother use drugs. She 

had seen mother and James drink “ ‘hard alcohol’ every night,”

however. Aunt also believed mother was “mentally unstable.”

Maternal cousin, who was caring for M.D. and S.B.,

confirmed M.D. had been living with paternal grandmother 

for the past two years “off and on.” She told the DI she had 

suspected mother used drugs but “never had any proof.” She 

knew mother used marijuana to relieve “severe back pain.” 

She also was aware mother “ ‘battled depression.’ ”

c. Information about father

Paternal grandmother raised father. Father said he spent 

a significant part of his childhood in juvenile hall. He wasn’t 

involved in a gang but lived “that lifestyle” and “ ‘was into guns 

and stuff like that.’ ” Father denied having a history of drug-
11

or alcohol-related arrests. He said his most recent arrest was 

the one for possession of a firearm.

Father (born 1993) met mother when he was 17, shortly 

after he was released from a correctional camp in 2010. She 

quickly became pregnant with M.D. Father said they were 

together for about a year and a half. He said his relationship

with mother ended because she got romantically involved with 

some of his friends and was using drugs.8 When M.D. was 

younger, she lived with father for five months—mother 

“ ‘disappeared’ during that time.” Father explained that a

“few years ago” he tried to seek full custody of M.D., but he filled 

out the paperwork incorrectly, and his request was “ ‘denied.’ ” 

M.D. had been in his care for a few months, but he had had to

return her to mother upon mother’s repeated requests. M.D. 

also lived with father about three years earlier when he moved 

to Bakersfield. Father sent M.D. back to mother, however,

because he and his live-in girlfriend C.H. had separated.

Father and C.H. had since resumed their relationship. 

They met in 2015 and had been together for the past seven years. 

Father said that, due to mother, he rarely had been able to see 

M.D. since beginning his relationship with C.H. Mother didn’t 

let him see his daughter “ ‘at all.’ ” Rather, mother and paternal 

grandmother called him when M.D. needed something or “got 

in trouble.” They expected him to reprimand M.D. about her 

behavior but would not allow him to spend time with her.

8 Mother said the relationship ended because father—who 

was a few years younger than mother and 17 when M.D. was 

born—wasn’t mature enough.
12

Father denied any medical or mental health issues. In 

July 2022, however, he suffered two gunshot wounds but had 

recovered.9 (A man who had broken into father’s house, and 

with whom father later got into an altercation, had shot at father 

outside father’s friend’s house, striking him twice.) Father said

he “smokes marijuana daily, approximately three times a day, at 

‘breakfast, lunch, and dinner.’ ” He had been smoking marijuana 

“off and on” since he was a teenager. Father said he does not 

smoke marijuana in his children’s presence.10 He smokes it in 

his garage. Sometimes when the children are asleep, he and C.H. 

will smoke in their bedroom. Father said he stores his marijuana 

in a box in his closet where the children do not go. He denied 

having used any other drugs and said he drank alcoholic 

beverages “occasionally”—a beer every other day and “ ‘hard

liquor’ ” about twice a month.

Father stated he loved his children and spending time 

with them. He described himself as a “ ‘fun stepdad and dad.’ ” 

He said he attends sports practices for his stepchildren and 

provides his “children/stepchildren with structure and routine.” 

He told the DI he “needs to be involved in [M.D.’s] life, and 

not just to provide financially and to discipline her.” Father

explained he only had been able to take M.D. on outings the 

last few times he had seen her. He wanted to be able to have 

extended weekend and summer visits with M.D. at his home. 

9 According to paternal grandmother, father last was seen 

a few weeks before this incident.

10 C.H. had children. Father referred to them as his 

stepchildren or children.
13

He did not want to take M.D. from mother but wanted to share 

physical custody. He did not mind M.D. staying with paternal 

grandmother or maternal cousin but wanted to approve where

M.D. lived. He wanted what was “ ‘best for’ ” her. Mother was 

open to joint custody but only if M.D.’s primary residence was 

with her.

Father thought one reason M.D. did not want to live 

with him was because there was “discipline and structure 

in his home.” He said mother and paternal grandmother let 

M.D. “do whatever she wants.” He thought M.D. had been 

“ ‘brainwashed’ to feel a certain way about him and [C.H.].” 

M.D. also got overwhelmed around C.H.’s six children. Father 

was interested in full custody of M.D. but would “take ‘whatever 

[amount of custody/visitation that he] can get’ because he just 

wants to have a relationship with the child.” (Alteration in 

original.) Although he did not want to take M.D. away from 

mother, he did not believe she should have custody of M.D.

right now “if she is not ‘in the right space.’ ” Father thought 

M.D. should stay with him for a while, as he was in a better 

place than mother.

M.D. told the DI, “ ‘I know [father] loves me’ and ‘we have 

a good bond.’ ” But M.D. had concerns. She didn’t think father

communicated well and said he “ ‘doesn’t hear [her] voice.’ ” 

(Alteration in original.) M.D. mentioned father having been 

shot recently and said C.H.’s son, about M.D.’s age, also recently 

was shot. M.D. thought “these incidents happened due to father 

trusting the wrong people.” She was afraid she could have been 

shot had she been with father at that time. She also thought 

C.H. and her children treated her “badly.” M.D. loved father 
14

but did not want to live with him. She was open to having visits 

with him but not at his home in Bakersfield.

Maternal cousin knew father loved M.D. and believed 

he would protect her and would not cause her any harm. She 

knew M.D. did not want to live with him, however, and hoped 

he wouldn’t force her to do so.

DCFS concluded father “knew of the mother’s ongoing 

substance abuse and reported concerns regarding the mother’s 

instability; however, he failed to take actions to protect [M.D.]. 

Further, [father] is a frequent user of marijuana, he has 

a substantial criminal history[,] and [M.D.] has expressed

an unwillingness to reside in the father’s home.” DCFS

recommended the court sustain the petition’s allegations 

and declare the children dependents. It recommended father

participate in parent education, individual counseling to address

protective parenting, past trauma, and any other case-related

issues, and conjoint counseling with M.D.; and comply with 

random and on-demand drug and alcohol testing.

On December 20, 2022, DCFS filed its first amended 

petition adding allegations that father knew about mother’s 

substance abuse and failed to protect M.D. Father was appointed 

counsel on December 21, 2022.

The juvenile court held an adjudication hearing on 

January 13, 2023. The children’s counsel asked the court to 

sustain the substance abuse allegations against mother and the 

failure to protect allegations against father and James. Mother’s 

counsel, joined by James’s counsel, asked the court to dismiss 

the petition in its entirety.

Father’s counsel asked the court to strike the failure to 

protect allegations against him. Counsel argued father was open 
15

and honest about mother’s drug use, ended his relationship with 

her due to her drug use, and had attempted to gain custody of 

M.D. Counsel argued father had tried to be protective: he made 

it clear he did not condone mother’s drug use, removed himself

from the relationship, and had taken care of M.D. for “long 

periods of time when mother [was] unable to.” Counsel also 

argued mother had “not exactly been letting [father] see . . . 

[M.D.] at all.” Counsel concluded, “So, if anything, we would ask 

the court to amend the petition to conform to proof to say that 

father was unable to protect as opposed to a failure to protect.”

Counsel for DCFS asked the court to sustain the petition 

as pleaded. As to the allegations of father’s failure to protect, 

counsel argued, “[T]his isn’t about blaming him. However, it’s 

clear that he was fully aware that mother was an active, ongoing 

abuser of drugs including methamphetamine.” Addressing

the idea father was “ ‘unable to protect’ ” M.D., DCFS argued 

“[it] would be one thing if he went to family court and followed 

through and attempted to convince the judge and was denied.” 

Instead, counsel argued, father “put in paperwork one time, it got 

rejected for being improper, and that seems to be the totality of 

his efforts over a number of years.” Counsel was hopeful father 

would be able to reunify with M.D. but believed he had failed 

to protect her.

The court sustained the substance abuse count as alleged, 

including father’s failure to protect M.D. The court dismissed 

the second count as to mother’s mental health. The court 

immediately moved to the disposition.

Father’s counsel asked the court to grant DCFS discretion 

to release M.D. to him and for a written visitation schedule. 

Counsel objected to the inclusion of drug testing in father’s case 
16

plan. Counsel asked that father be required to test “only upon 

reasonable suspicion,” as marijuana use was legal in California 

and father was noncustodial. Father submitted to the ordered 

parenting classes and family therapy but objected to individual 

therapy. Counsel argued it wasn’t “exactly warranted in this 

case to father,” noting he denied mental health issues.

In response, DCFS’s counsel asserted father “also has 

a lengthy criminal history that includes multiple arrests for

possession of narcotics” and had been absent from M.D.’s life 

“for quite a period of time.”11 Counsel argued that, if father 

was seeking to reunify with M.D., “his sobriety would need 

to be established today.” As to individual counseling, counsel 

noted father had not acted in a protective capacity as a parent 

in a number of years.

At the end of argument, the court declared M.D. and the 

other children dependents of the juvenile court under section 300, 

subdivision (b), removed them from parental custody, and 

ordered DCFS to provide parents with reunification services.

The court granted DCFS authority to release the children to 

mother after she had completed four negative drug tests. The 

court also signed father’s case plan “as is.” Father appealed.

DISCUSSION

“ ‘In reviewing a challenge to the sufficiency of the evidence 

supporting the jurisdictional findings and disposition, we 

determine if substantial evidence, contradicted or uncontradicted, 

supports them. . . . “[W]e draw all reasonable inferences from 

11 Counsel appears to have confused James’s criminal record 

with father’s.
17

the evidence to support the findings and orders of the dependency 

court; we review the record in the light most favorable to the 

court’s determinations; and we note that issues of fact and 

credibility are the province of the trial court.” [Citation.] “We 

do not reweigh the evidence or exercise independent judgment, 

but merely determine if there are sufficient facts to support the 

findings of the trial court. [Citations.] ‘ “[T]he [appellate] court 

must review the whole record in the light most favorable to the 

judgment below to determine whether it discloses substantial 

evidence . . . such that a reasonable trier of fact could find [that 

the order is appropriate].” ’ ” ’ ” (In re I.J. (2013) 56 Cal.4th 766, 

773 (I.J.).) “ ‘The parent has the burden on appeal of showing 

there is insufficient evidence to support the juvenile court’s 

order.’ ” (In re L.B. (2023) 88 Cal.App.5th 402, 412 (L.B.).)

1. The court’s jurisdictional finding based on father’s 

failure to protect M.D. from mother’s substance abuse

The juvenile court sustained the following allegations 

against father as pleaded in the amended petition: 

“The child [M.D.’s] father . . . knew of the 

mother’s substance abuse and failed to protect 

the child. . . . The mother’s substance abuse 

and [M.D.’s] . . . father’s failure to protect the 

child[ ] endangers the child[’s] physical health 

and safety, placing the child[ ] at substantial 

risk of serious physical harm, damage, 

danger[,] and failure to protect.” (Boldface 

omitted.)

Father challenges this jurisdictional finding—that he failed to 

protect M.D. from the risk of harm mother’s substance abuse 
18

posed to her.

12 He contends DCFS failed to satisfy its burden 

to prove “a sufficient nexus between any inaction by [f]ather 

and the substantial risk of serious physical harm posed to [M.D.] 

by [m]other” due to her substance abuse.

a. Applicable law

DCFS had the burden of proving by a preponderance of 

the evidence that M.D. is a dependent of the juvenile court under 

section 300. (§ 355, subd. (a); I.J., supra, 56 Cal.4th at p. 773.) 

Section 300, subdivision (b)(1) authorizes the juvenile court to 

assume jurisdiction 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”—as relevant here—“[t]he failure or 

inability of the child’s parent . . . to adequately supervise or 

protect the child” (§ 300, subd. (b)(1)(A)); or “[t]he willful or 

negligent failure of the child’s parent . . . to adequately supervise 

12 Father does not challenge the court’s jurisdictional findings 

based on mother’s substance abuse. (§ 300, subd. (b)(1)(D) 

[providing dependency jurisdiction for a child who has suffered, 

or is at substantial risk of suffering, serious physical harm due to 

parent’s inability “to provide regular care for the child due to the 

parent’s . . . substance abuse”].) The outcome of father’s appeal

thus will not change M.D.’s dependency status. (In re D.P. (2023) 

14 Cal.5th 266, 283 [“ ‘ “[a]s long as there is one unassailable 

jurisdictional finding, it is immaterial that another might be 

inappropriate” ’ ”].) Nevertheless, father’s appeal is not moot—

nor does DCFS contend that it is—because the jurisdictional 

finding against him arguably formed the basis of the court’s 

dispositional orders that father also challenges. (Id. at pp. 277–

278 [“a case is not moot where a jurisdictional finding . . . ‘has 

resulted in [dispositional] orders which continue to adversely 

affect’ a parent”].)
19

or protect the child from the conduct of the custodian with whom 

the child has been left” (§ 300, subd. (b)(1)(B)). “A jurisdiction 

finding under section 300, subdivision (b)(1), requires [DCFS]

to prove three elements: (1) the parent’s . . . neglectful conduct 

or failure or inability to protect the child; (2) causation; and 

(3) serious physical harm or illness or a substantial risk of 

serious physical harm or illness.” (In re Cole L. (2021) 70 

Cal.App.5th 591, 601.)

The statute permits jurisdiction under this subdivision

“only so long as is necessary to protect the child from risk of 

suffering serious physical harm or illness.” (§ 300, subd. (b)(3).)

Thus, “[t]he relevant inquiry . . . is whether circumstances at 

the time of the jurisdictional hearing ‘ “subject the minor to the 

defined risk of harm.” ’ ” (L.B., supra, 88 Cal.App.5th at p. 411.) 

In enacting section 300, however, the Legislature intended to 

protect children who are currently being abused or neglected and

“to ensure the safety, protection, and physical and emotional 

well-being of children who are at risk of that harm.” (§ 300.2.)

Accordingly, “the court need not wait until a child is seriously 

abused or injured to assume jurisdiction and take steps necessary 

to protect the child. [Citation.] The court may consider past 

events in deciding whether a child presently needs the court’s 

protection. [Citation.] A parent’s ‘ “[p]ast conduct may be 

probative of current conditions” if there is reason to believe 

that the conduct will continue.’ ” (In re Christopher R. (2014) 

225 Cal.App.4th 1210, 1215–1216, disapproved on another 

ground in In re N.R. (2023) 15 Cal.5th 520, 560, fn. 18 (N.R.); 

see also In re J.N. (2021) 62 Cal.App.5th 767, 775 [Department 

“must establish a nexus between the parent’s past conduct 

and the current risk of harm”].) 
20

b. The failure to protect finding was not based on 

father’s failure to seek custody of M.D. alone

Father first contends DCFS impermissibly based its 

allegation that he failed to protect M.D. on his failure to seek 

a court order for custody of M.D. We reject this contention. 

Section 300, subdivision (b)(2)(B) directs that “[a] child 

shall not be found to be a person described by this subdivision 

solely due to . . . [t]he failure of the child’s parent or alleged 

parent to seek court orders for custody of the child.” (Italics 

added.) Thus, the court did not err in considering the fact 

father never tried to correct his rejected paperwork and re-file 

for custody of M.D. in determining father failed to protect her, 

as long as it was not the sole basis for the court’s jurisdictional

finding. The legislative history, on which both father and DCFS

rely, supports this construction. As discussed in L.B., the author

of the relevant assembly bill was quoted as follows:

“ ‘ “A parent is not unfit solely because they 

are not litigious, lacking the money or 

sophistication or time to seek legal redress 

of family issues in court actions. Likewise, 

a parent is not unfit solely because they try to 

work out issues with another parent informally 

and collaboratively, without seeking formal 

court orders. Even so, in rare but not 

uncommon cases, child welfare agencies will 

allege that a parent has failed to protect a child 

under WIC 300 solely on the single ground that 

the parent did not initiate child-protecting 

litigation against another parent. Such 

allegations penalize and seek to rupture 
21

families based on either their poverty, lack 

of legal sophistication, or efforts informally to 

resolve family issues. Inspired by current law’s 

treatment of lack [of] emergency shelter, which, 

too, cannot all by itself be the basis of a Section 

300 allegation [citation], [this bill] narrowly 

addresses this problem simply by saying that 

an alleged failure to seek protection for a child 

by initiating litigation, while permitted as one 

of the factors in weighing whether a parent 

has adequately protected a child, cannot all 

by itself serve as the basis of a WIC section 300 

allegation.” ’ ” (L.B., supra, 88 Cal.App.5th 

at p. 414, quoting Assem. Com. on Human 

Services, Analysis of Assem. Bill No. 841 

(2021–2022 Reg. Sess.) as amended Mar. 23, 

2021, p. 3; italics added by court.)13

Based on our review of the record, we can infer the trial 

court did not base its failure to protect finding on father’s failure 

to seek custody of M.D. alone. As we discuss more fully below, 

the record demonstrates, as DCFS notes, father did not take 

any measures to protect M.D. during the years before or after he 

filed the rejected custody documents. Not only did father never 

attempt to re-file the documents to establish custody of M.D., 

by all accounts he was not involved in M.D.’s life. When DCFS

13 Father omits the author’s statement that a court still is 

able to consider a parent’s failure to initiate custody proceedings 

in weighing whether the parent adequately protected a child.
22

first investigated the matter, no one knew where father was,

and M.D. had neither seen nor talked to him “for a long time.”

2. Substantial evidence supports the court’s 

jurisdictional finding as to father

Father alternatively contends DCFS failed to prove 

his conduct was neglectful. Father challenges the petition’s 

allegation that he “ ‘knew of mother’s substance abuse,’ ” 

arguing for the first time on appeal that his knowledge of 

mother’s current drug use was based only on “hearsay accounts

from other people.” He argues he had “no personal knowledge of 

her drug use since they broke up 11 years prior.” The evidence 

shows otherwise. 

Father concedes he knew mother abused drugs in the past, 

and the evidence supports the court’s implicit finding that he 

was aware of—or should have been aware of—mother’s current 

substance abuse. As DCFS reported, father wasn’t surprised 

by the petition’s allegations that mother had a positive drug test 

for amphetamine and marijuana at M.D.’s half-sibling’s birth. 

Father said mother had “ ‘always’ used drugs,” including

methamphetamine, cocaine, and “ ‘any type of pills’ ” she 

could access. According to the jurisdiction/disposition report, 

father told the DI “he is ‘quite sure’ that the mother uses

methamphetamine, cocaine, marijuana and ‘party drugs.’ ” 

(Italics added.) Father revealed he knew about mother’s “ongoing 

drug use because he sees her ‘around the wrong people[,]’ and he 

hears about her from other people because ‘Lancaster is small’ 

and many people know him.” (Italics added.) Accordingly, 

father’s knowledge about mother’s current drug use was not 

limited to “hearsay” as he contends. Moreover, the court could 

interpret father’s statements to the DI as his having inferred 
23

mother continued to use drugs based on his personal knowledge 

about the people with whom he knew mother was associating.

Father argues that, even if he knew about mother’s 

substance abuse, that knowledge was insufficient to support 

a finding that he was neglectful in failing to protect M.D. Father 

argues he knew mother left M.D. in paternal grandmother’s and 

others’ care and had no “knowledge of a single instance that 

[M.D.] was harmed or placed at a substantial risk of serious 

physical harm as a result of [m]other’s ‘substance abuse.’ ”

Father relies on N.R., where our high court recently held the 

meaning of “substance abuse,” as used in section 300, subdivision 

(b)(1)(D), means “the excessive use of drugs or alcohol.” (N.R., 

supra, 15 Cal.5th at p. 531.) In so holding, the court cautioned 

“that for dependency jurisdiction to exist due to substance abuse 

pursuant to section 300(b)(1)(D), this abuse must render a parent 

or guardian unable to provide regular care for a child and either 

cause the child to suffer serious physical harm or illness or place 

the child at substantial risk of suffering such harm or illness.” 

(Ibid.)

14 

14 The N.R. court also rejected the “tender years 

presumption.” (N.R., supra, 15 Cal.5th at pp. 531–532 [holding 

the age of the child “may bear upon whether substance abuse 

renders a parent . . . unable to provide that child with regular

care, and whether the child is thereby placed at substantial 

risk of serious physical harm or illness,” but courts may not 

“treat a showing of substance abuse as always being sufficient 

on its own to establish these other requirements for dependency 

jurisdiction”].) The N.R. opinion was filed on December 14, 2023, 

before DCFS filed its respondent’s brief.
24

Father argues that, similarly, a finding that he failed to 

protect M.D. under section 300, subdivision(b)(1)(A) or (b)(1)(B)

cannot be based solely on his knowledge that mother was abusing 

substances. Father thus contends that, while he may have 

known mother was using drugs, he “did not know that she was 

unable to provide regular care to [M.D.] and that this inability 

had placed [M.D.] at a substantial risk of serious physical harm.” 

Father argues DCFS suggests father “had a duty to presume 

harm based on [m]other’s ‘substance abuse’ alone.”15

We disagree. Father may not have had a sufficient basis, 

as father seems to argue, to challenge mother’s custodial rights 

or to report mother to the police, as he had no information that 

mother actually had cared for M.D. while impaired from drug 

use. Nevertheless, father could not simply put his head in the 

sand as to the risk mother’s substance abuse posed to his preteen 

daughter and then claim to have been unaware of any risk. 

(See Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074, 

1104 [“ ‘The purpose of dependency proceedings is to prevent risk, 

not ignore it.’ ”].)

Rather, the court reasonably could infer from the evidence

—viewed in the light most favorable to its findings—that father 

15 As we said, father does not challenge the evidentiary bases 

for the jurisdictional findings based on mother’s substance abuse. 

And, as we dismissed mother’s appeal after her counsel found 

no appealable issues—and mother filed nothing in writing 

containing any contentions she believed we should consider—

we presume substantial evidence supports the court’s finding 

that mother’s inability to provide regular care for M.D. due to 

her substance abuse placed M.D. at risk of serious physical harm.
25

not only knew mother abused substances but also had a reason 

to believe mother was unable to provide regular supervision for 

M.D., placing her at substantial risk of harm. Father believed 

mother’s “ ‘environment [was] bad’ ”—presumably as a result 

of her substance abuse. He told the DI mother did not provide 

stability for the children, which included M.D. And father’s 

concerns were significant enough to prompt him to seek custody 

of M.D., but, as we discussed, he never tried to re-file his 

paperwork after it was rejected.

Father argues he did not believe mother’s drug use

placed M.D. at risk of physical harm because he believed others

—primarily paternal grandmother—cared for M.D. when

mother was under the influence. In father’s words, mother 

sent her children “ ‘to somebody while she’s doing what she do.’ ” 

Even with paternal grandmother’s involvement in M.D.’s care, 

however, father was concerned that “no one” was supervising 

M.D., and she was “ ‘raising herself.’ ” The court reasonably 

could find father at least should have known such lack 

of supervision placed M.D.—an impressionable preteen—

at substantial risk of harm. 

Moreover, mother’s substance abuse was severe enough to

have contributed to the demise of father’s relationship with her. 

Yet, based on the record, father took no steps to ensure M.D. was 

protected from it. As DCFS notes, paternal grandmother—with 

whom M.D. had been living “off and on” for the past two years—

was unaware of mother’s substance abuse issues. The court thus 

could infer father never told paternal grandmother that mother 

used drugs or that she should ensure mother was not under 

the influence before releasing M.D. to her. Indeed, paternal 

grandmother hadn’t seen father since before he was shot in 
26

May 2022. Nor had M.D. seen or heard from father in a “long 

time.” Father thus had not even checked on M.D.’s well-being 

for many months despite his knowledge of mother’s “ongoing” 

substance abuse and concerns his daughter lacked appropriate 

supervision.

Accordingly, the court reasonably could find father’s failure 

to take any protective action placed M.D. at substantial risk of 

harm, as she continued to spend time with mother almost daily,

even while living with paternal grandmother. (See § 300.2, 

subd. (a) [“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.”].)

Finally, it would be reasonable for the juvenile court to 

find father still unable to protect M.D. adequately by the time of 

the jurisdictional hearing despite his plans to play a greater role 

in her life. The court could find father still had not demonstrated

he could protect M.D., as the evidence showed he minimized

the risk mother’s substance abuse posed to the child: he told

DCFS he didn’t believe it affected her parenting, despite having 

acknowledged mother was in a bad environment and believing

he was “in a better place than . . . mother.” (See, e.g., In re 

Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“One cannot correct 

a problem one fails to acknowledge.”].) Moreover, as there 

was no evidence M.D. would continue to live with paternal 

grandmother (or maternal cousin) after the school year ended 

given mother no longer was pregnant—the impetus for M.D.’s

stay with paternal grandmother—father also could not rely on

her to monitor the situation for him. In any event, the court 

could infer from the record that father and paternal grandmother 
27

did not have much of a relationship and his past lack of 

communication with her would continue.

We recognize this is a close case. With the exception 

of James’s sister, the witnesses DCFS interviewed, including 

paternal grandmother and maternal cousin, had no concerns 

about mother’s care of M.D. Nor did M.D. have any concerns 

about mother using drugs. Moreover, M.D. was doing well in 

school, and paternal grandmother was providing for her medical, 

dental, and education needs. Yet, it is not our place to reweigh 

the evidence nor exercise our independent judgment. Viewing 

the record in the light most favorable to the juvenile court’s

determinations—and drawing all reasonable inferences from the 

evidence to support the court’s orders—we conclude substantial 

evidence supports the court’s implied finding that father’s failure 

to protect M.D. from mother’s substance abuse placed M.D. at 

a substantial risk of physical harm. 

3. The court’s disposition orders

Father argues the court abused its discretion by requiring 

him to participate in on-demand, random drug testing and 

individual counseling as part of his case plan.

“We review the juvenile court’s disposition case plan for an 

abuse of discretion. ‘The juvenile court has broad discretion to 

determine what would best serve and protect the child’s interests 

and to fashion a dispositional order accordingly. On appeal,

this determination cannot be reversed absent a clear abuse of 

discretion.’ ” (In re D.P. (2020) 44 Cal.App.5th 1058, 1071 (D.P.).) 

“A court exceeds the limits of legal discretion if its determination 

is arbitrary, capricious or patently absurd. The appropriate test 

is whether the court exceeded the bounds of reason.” (In re L.W.

(2019) 32 Cal.App.5th 840, 851.)
28

“Section 362, subdivision (d) authorizes the juvenile court 

to ‘direct any reasonable orders to the parents’ of a dependent 

child as the court deems necessary and proper to ensure 

appropriate care, supervision, custody, conduct, maintenance, 

and support of the child.” (D.P., supra, 44 Cal.App.5th at p. 1071; 

see also § 362, subd. (a).) “The order may include ‘a direction 

to participate in a counseling or education program,’ provided 

that the ‘program in which a parent or guardian is required to 

participate shall be designed to eliminate those conditions that 

led to the court’s finding that the child is a person described by 

Section 300.’ ” (D.P., at p. 1071, quoting § 362, subd. (d).)

“The problem that the juvenile court seeks to address need 

not be described in the sustained section 300 petition. [Citation.] 

In fact, there need not be a jurisdictional finding as to the 

particular parent upon whom the court imposes a dispositional 

order.” (In re Briana V. (2015) 236 Cal.App.4th 297, 311.) Thus, 

“the juvenile court is not limited to the content of the sustained 

petition when it considers what dispositional orders would be

in the best interests of the children. [Citations.] Instead, 

the court may consider the evidence as a whole.” (Ibid.)

Nevertheless, “the court cannot arbitrarily order services 

that are ‘not reasonably designed’ to eliminate the behavior or 

circumstances that led to the court taking jurisdiction of the 

child.” (In re M.R. (2020) 48 Cal.App.5th 412, 424 (M.R.).)

a. Drug testing

Father objected to DCFS’s recommendation that his case 

plan include random and on-demand drug and alcohol testing. 

His counsel asked that father be required to drug test only upon 

a reasonable suspicion given marijuana is legal in California, and 

father was the noncustodial parent. In response, DCFS’s counsel 
29

“note[d]”—incorrectly—“father also has a lengthy criminal 

history that includes multiple arrests for possession of narcotics,”

and argued father’s “sobriety would need to be established today” 

if he were seeking to reunify with M.D. The court signed father’s 

case plan “as is.” The final, court-ordered case plan states that 

“[i]f any test is missed (unexcused) or positive, DCFS may walk 

the matter on calendar for further orders.”

We agree with father that, based on the evidence as 

a whole, the random, on-demand drug testing component of 

his case plan was not reasonably designed to eliminate the 

circumstances that led to M.D.’s dependency. First, although 

father admitted using marijuana daily, DCFS presented 

no evidence father ever used marijuana in M.D.’s or his 

“stepchildren’s” presence, or was impaired by marijuana,16

alcohol, or any other drug while caring for M.D. or the other 

children. Nor did DCFS present evidence father used or abused 

any other drugs or that drug use was a factor in his failure to

protect M.D. 

DCFS nevertheless argues father’s minimization of 

mother’s substance abuse, his arrest for “[d]isorderly [c]onduct: 

[i]ntoxicated [d]rugs/[a]lcohol,” and his failure to protect M.D. 

from mother’s substance abuse “provided a reasonable basis for 

16 As father notes, section 328.2, effective January 1, 2023—

before the jurisdiction/disposition hearing in this case—provides 

for the update of all regulations and instructions relating to 

investigations under section 300 “to ensure that, when a social 

worker is investigating an alleged case of child abuse or neglect, 

a parent’s or guardian’s use or possession of cannabis is treated 

in the same manner as a parent’s or guardian’s use or possession 

of alcohol and legally prescribed medication.” (§ 328.2.)
30

the court to ensure there was not an underlying substance abuse 

problem with unknown substances that caused or contributed to 

father’s neglectful conduct.” In essence, DCFS argues random, 

on-demand drug testing was reasonable in case father had an 

underlying substance abuse problem that it didn’t know about. 

Nor can we ignore DCFS’s counsel’s mistaken 

representation to the court that father had “multiple” arrests 

for narcotics possession, which counsel argued supported the 

random, on-demand drug testing requirement. Had father had 

a history of arrests or convictions for possession of narcotics, 

the court may have had a reasonable basis for ordering the 

random, on-demand drug testing. But it was James, not father, 

who had been convicted of narcotics possession. Father had a 

criminal history but no narcotics-based arrests or convictions. 

Nor does the evidence show father had been convicted of or 

arrested for driving under the influence. DCFS mentions father’s 

arrest for disorderly conduct, which was based on intoxication, 

but there is no evidence as to how long ago that arrest occurred,

any associated conviction, or whether father was intoxicated

due to alcohol, marijuana, or some other drug.

Although the court was not limited to its jurisdictional 

findings in determining what disposition orders would be 

in M.D.’s best interests, the court’s discretion did not extend 

to imposing a requirement designed to alleviate a problem 

DCFS only could speculate about. (See, e.g., M.R., supra,

48 Cal.App.5th at p. 427, fn. 7 [“a case plan cannot include a 

substance abuse component before there is evidence the parent 

has a substance abuse problem”].) On remand, the court, in its 

discretion, may hold further proceedings to determine whether 

the current circumstances necessitate the entry of a new order, 
31

for example, requiring father to test on suspicion of drug use. 

Moreover, if evidence has arisen during the pendency of this 

appeal—or subsequently arises—demonstrating father has a

substance abuse problem, the juvenile court “ ‘can modify the 

reunification plan accordingly and order additional services.’ ”

(Ibid.)

b. Individual Counseling

We agree with DCFS, however, that the juvenile court’s

order requiring father to participate in “[i]ndividual counseling 

to address protective parenting, past trauma, [and] case related 

issues” was a reasonable exercise of its discretion. As DCFS’s 

counsel noted at the hearing, father hadn’t “acted in a protective 

capacity as a parent in a number of years.” As we have concluded

the record supports the court’s finding that father failed to 

protect M.D., requiring father to undergo counseling to address 

how he can protect M.D. is more than reasonable, especially 

given father minimized the risk mother’s substance abuse posed 

to M.D. Moreover, the evidence shows M.D. did not want to stay 

with father in part because of his poor communication skills. She 

felt unheard by father and mistreated by his live-in girlfriend 

and her six children. If father wanted to reunify with M.D.—

as he said he did—learning effective communication skills would 

be imperative and something the court reasonably could find was

in M.D.’s best interests and father should address in individual 

counseling before participating in conjoint therapy with M.D.

4. Father’s other purported challenges

We need not consider father’s other purported challenges.

The conclusion to father’s opening brief includes a “prayer 

for relief.” In it, father argues that, should we reverse the 

jurisdictional finding against him, we also should instruct the 
32

trial court to reconsider whether removal of M.D. is warranted. 

Father also argues the trial court should be instructed “to 

ensure” he and M.D. “receive an adequate period of reunification 

even if this period extends beyond the 18-month date.” As we 

have found substantial evidence supports the juvenile court’s 

jurisdictional finding against father, father’s requests are moot. 

In any event, father has forfeited them. 

As DCFS notes, father never asked the juvenile court 

to release M.D. to his custody—only that the court grant DCFS

discretion to do so. He thus has forfeited any challenge to the 

removal order on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 

1293, superseded by statute on another ground as stated in 

In re S.J. (2008) 167 Cal.App.4th 953, 964 [dependency matters 

are not exempt from rule that “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”].) 

Father also has forfeited any contention that he be 

provided with more than 18 months of reunification services. 

Father cited no legal authority to support his request. (In re A.C.

(2017) 13 Cal.App.5th 661, 672 [“ ‘When an appellant fails to 

raise a point, or asserts it but fails to support it with reasoned 

argument and citations to authority, we treat the point as 

waived.’ ”].) In any event, the issue of the adequacy of father’s 

reunification services is not before us on his appeal from the

court’s jurisdictional and dispositional orders.
33

DISPOSITION

We affirm the juvenile court’s jurisdictional finding as 

to father. We reverse the portion of the court’s disposition order 

requiring father to submit to random and on-demand drug/

alcohol testing. We affirm the disposition order in all other 

respects. On remand, the court may hold further proceedings 

in its discretion to determine if the current circumstances 

warrant a different or new order with respect to drug/alcohol 

testing for father.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

ADAMS, J.