Filed 6/2/23 In re J.M. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re J.M., a Person Coming 

Under the Juvenile Court Law.

B317841

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

H.M.,

Defendant and Appellant.

Los Angeles County

Super. Ct. No. 18CCJP01801B

APPEAL from orders of the Superior Court of Los Angeles 

County. Marguerite D. Downing, Judge. Reversed.

Michelle L. Jarvis, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, and William D. Thetford, Principal 

Deputy County Counsel, for Plaintiff and Respondent.

* * * * * * * * * *
2

Father, H.M., appeals orders of the juvenile court 

(1) exercising jurisdiction over his daughter, J.M., under Welfare 

and Institutions Code1 section 300, and (2) removing J.M. from 

his custody pursuant to section 361. We reverse. 

BACKGROUND

The family is comprised of Father and J.M. Mother 

abandoned the family when J.M. was one and a half years old. 

Since mother left, Father has raised J.M. with help from paternal 

grandmother. This appeal arises from the second of two 

dependency proceedings.

The first proceeding began in 2018 when J.M. was four

years old. Police were called to the family apartment following a 

neighbor’s report that Father was inside yelling and screaming,

which included a statement that he was going to “kill.” When 

police arrived, they heard Father “ranting and screaming” and 

“making strange noises.” Father initially denied that he had 

been ranting and screaming, and claimed that he had been 

asleep. However, when the officers told him that they heard him 

making noises from outside the apartment, Father “began 

laughing and joking.” The officers entered the apartment and

found multiple open beer cans while J.M. was sitting on her bed,

clutching a blanket, and “ ‘scared out-of-her mind.’ ” Father was 

placed on a psychiatric hold, and the referral was promoted to a 

case with the Los Angeles County Department of Children and 

Family Services (DCFS). 

The juvenile court found true and sustained the allegations

under section 300, subdivision (b), that Father had “exhibited 

disruptiveness and uncontrollable behaviors which . . . resulted 

1 Undesignated statutory references are to the Welfare and 

Institutions Code.
3

in neighbor’s reports, law enforcement intervention and 

involuntary hospitalization,” and that “father suffers from 

anxiety and self-medicates with alcohol nightly while [J.M.] is in 

his care.” The allegations continued, “father’s disruptive 

behaviors, untreated anxiety and parenting under the influence 

of alcohol place [J.M.] at risk of harm.” 

The juvenile court ordered services for Father that included 

a substance abuse program, mental health services, and drug 

testing. Father successfully completed all ordered services. 

He stopped drinking, admitted that he had been drinking heavily 

due to stress, and developed healthy coping mechanisms.

The juvenile court terminated jurisdiction at the end of 2019, 

granting sole legal and physical custody to Father. Mother’s 

whereabouts remained unknown. 

About two years later, in October 2021, DCFS received a 

new referral about the family, which led to the current 

proceedings. A neighbor reported hearing “several loud noises 

and yelling” from the family’s apartment, and that it was “not the 

first time.”

2 The neighbor claimed to have heard J.M. telling 

Father to “stop touching her and . . . her underwear” and asking 

Father “[w]hy [are you] doing this?” The neighbor believed that 

Father was under the influence of something because he 

responded to J.M. with slurred speech and laughter. The 

neighbor called 911, but police were unable to make contact with 

the family. 

Two weeks after the referral, a social worker made an 

unannounced visit to Father’s apartment. The social worker 

2 A month earlier, the neighbor complained to the apartment 

manager about the noise coming from Father’s apartment, after 

which, Father quieted down. 
4

observed the home to be clean and tidy; adequately furnished; 

stocked with sufficient food, age appropriate toys, and clean 

linens; and found all utilities in working order. There were no 

visible safety hazards and no indication of drug or alcohol abuse 

in the home. While Father was upset that someone had called 

DCFS, he was otherwise cooperative, easy to engage, presented 

an appropriate affect, and displayed no visible signs of cognitive 

impairment or substance use. Father explained that his family 

was loud and that the apartment manager had expressed concern 

about noise coming from his apartment. Father denied any drug 

or alcohol use. Father also denied any criminal history, however, 

a database search revealed Father’s criminal history included 

evading law enforcement, possession of drugs and alcohol, two 

DUI’s, and reckless driving, with the last conviction occurring in 

2005. 

The social worker interviewed the apartment manager, 

who stated that she had not witnessed any abuse or neglect from 

Father, and that J.M. was always cheerful, talkative, and happy. 

She reported that neighbors complain about Father because he is 

loud and “can make a lot of noise.” However, she stated that she 

had addressed that with Father and he is “trying to keep quiet.” 

The social worker next spoke with the principal of J.M.’s 

school who reported Father had been “aggressive” with him and 

his staff, but he had never observed any abuse or neglect with 

respect to J.M. He reported that J.M. has low average grades 

and average attendance, but that J.M. is “easy going and calm.” 

The social worker next spoke with J.M. who denied all 

forms of abuse and said she had never seen Father under the 

influence. She reported being well cared for in all respects and 

stated that Father is a “nice guy.” J.M. reported that she always 
5

has enough food to eat, is able to bathe and shower regularly, and 

always has access to clean, well-fitting clothes and shoes. She 

stated that she is never left unsupervised. The social worker 

“observed no marks or bruises indicative of abuse or neglectful 

parenting of the child.” 

The social worker spoke with J.M.’s pediatrician, who had 

last seen J.M. less than a year prior. The pediatrician reported 

no concerns of abuse or neglect, and that J.M. was up to date 

with physicals and immunizations. 

About three weeks after the first social worker’s set of 

interviews, another social worker reinterviewed Father. The 

social worker asked Father if he was willing to drug test, and 

Father said that he would. During this second interview, Father

admitted that he “drinks a few glasses of wine nightly after [J.M.] 

goes to sleep but denie[d] any past or current alcohol or substance 

use or abuse.” 

The social worker interviewed paternal grandmother, who 

had no concerns about alcohol or substance abuse by Father. 

Nor had J.M. ever disclosed anything concerning to her. Paternal 

grandmother stated she sees the family every other night and 

they come to her home for dinner twice a week. 

The social worker conducted a second interview with J.M.’s 

principal and asked him what he meant when he told the first 

social worker that Father was “aggressive.” The principal 

explained he received five unrelated complaints about Father’s 

behavior from other parents. The principal reported that, when 

Father is in the valet line to pick up J.M., he honks at people, 

plays his music very loud, and makes other parents feel 

uncomfortable and threatened. He also reported that Father

makes “hand gestures in the car at people” and other parents had 
6

complained that Father drives “erratically.” The principal 

described the issues with Father as a “head scratcher,” and that 

Father “presents as nervous and it appears like something is off 

with him.” However, the principal was unsure if “it is just how 

Father is or if Father is on something.” He had never gotten 

close enough to Father to smell or observe any alcohol. The 

principal also described Father as “obnoxious, irate, and an 

intense person,” who “tries to create problems.” For example, 

the principal got into an argument with Father about the school’s 

policy, requiring parents to use a “QR code check-in process” to 

track their children’s symptoms (presumably for COVID-19). 

Father initially refused to participate in the program, but later 

apologized for arguing with the principal over the matter. 

The principal had no concerns about J.M., observing her to be

“well adjusted,” “always clean,” and “happy.”

The social worker spoke to several of the family’s 

neighbors, who lived in the same apartment complex. One 

neighbor was “stunned” at the allegations against Father. That 

neighbor considered him “loving and devoted” to J.M., had never 

seen him under the influence, and had no concerns about the 

family. She told the social worker that J.M. and Father appear to 

have a “great relationship.” 

Another neighbor, whose apartment was right next to the 

family’s, had heard Father and J.M. yelling at each other. She 

reported the yelling “sound[ed] bad,” and that one time she heard 

Father say, “I can’t do this anymore” and J.M. responded “Shut 

up—[s]on of a bitch.” She recorded the yelling, but the words on 

the recording were indiscernible. She had never heard anything 

that sounded like physical abuse and had never seen marks or 

bruises on J.M. aside from a small scratch. She had, however, 
7

seen Father on multiple occasions in a state she described as 

“drunk or ‘wasted’ ” and suspected Father might be driving 

drunk.

Another neighbor, who asked to remain anonymous for fear 

of retaliation, said that “there is something wrong with [the]

Father” and J.M. needs “protection.” She said another neighbor 

had told her she planned to “vouch for father” in the DCFS’s 

investigation, but that neighbor lives farther from the family’s 

apartment than the anonymous neighbor. The anonymous 

neighbor said, from what she could hear from outside the family 

apartment, “father uses a lot of profanity towards [J.M.] and 

[J.M.] constantly . . . tell[s] father to stop.” She claims to have 

heard J.M. tell Father “I hate you.” She reported the yelling 

usually happens between midnight and 1:00 a.m. 

A few days after speaking with the neighbors, the social 

worker interviewed J.M. a second time at her school. J.M.

reiterated that Father does not mistreat her in any way and that 

he is a “nice guy.” She reported being well cared for at home and 

having no fear of Father. She denied that she had ever seen 

Father “drink anything that made him act different” or Father

“act unlike himself.” The social worker noted a “very tiny 

scratch” on J.M.’s face. J.M. could not recall where it was from 

but thought it happened at school. J.M. denied that Father ever 

drove fast or played loud music in the car. She said they 

sometimes walked to school. 

A social worker interviewed the principal for a third time. 

The principal reiterated that he had had problems with Father’s 

attitude, and something seemed “off” about him, but again denied 

ever seeing Father mistreat J.M. To the contrary, the principal 

said Father treats J.M. “well.” The social worker asked the 
8

principal if he had ever seen Father walk J.M. to school, and he 

said no, indicating that Father is always in his car “with the 

music blasting.”

Father left a voicemail for the social worker later that day. 

As transcribed in the social worker’s report, Father said: “You 

went and saw [J.M.] today. I’m like disgusted with this, this is 

[the most] disgusting thing I ever heard of and you’re doing it. 

Okay, if you want to do it. Just come and hire an attorney. 

I can’t take this anymore. You’re going somewhere that’s so 

stupid, I’ve never seen embarrassing me in front of my school. 

And doing all this so I’m ready to sue you, so let’s it.” (Sic.) 

Father submitted a urinalysis for drug testing on 

Thursday, December 2, 2021, at 3:41 p.m. Father tested positive 

for alcohol with a level of 71 mg/dL. The lab technician informed 

the social worker that this was equivalent to a 0.07 blood alcohol 

concentration (BAC), one hundredth below the per se impaired 

level for driving under California law. (See Veh. Code, § 23152, 

subd. (b).) Although there is no explicit statement in the record, 

the parties do not dispute that Father drove to the testing site. 

When confronted with the test results, Father told the social 

worker he is “old enough to drink alcohol and . . . does not have 

an issue with drinking alcohol. . . . [H]e was not willing to enroll 

in any substance abuse program and was not willing to stop 

drinking alcohol.”

On these facts, DCFS obtained an order from the juvenile 

court authorizing J.M.’s removal and detention. She was placed 

in the home of paternal grandmother.

DCFS filed this petition with the juvenile court, alleging 

one count for failure to protect under section 300, subdivision (b). 

The petition alleged: “[Father] has a history of substance abuse 
9

and is a current abuser of alcohol, which renders the [F]ather 

incapable of providing regular care and supervision of [J.M.]. On 

prior occasions, . . . [F]ather was under the influence of alcohol 

while [J.M.] was in . . . [F]ather’s care and supervision. On 

[December 2, 2021], . . . [F]ather had a positive toxicology screen 

for alcohol. [J.M.] is a former dependent of the [j]uvenile [c]ourt, 

due to the [F]ather’s substance abuse. The [F]ather’s substance 

abuse endangers [J.M.’s] physical health and safety and places

[J.M.] at risk of serious physical harm, damage, and danger.”

The juvenile court scheduled a combined adjudication and 

dispositional hearing for January 2022. DCFS filed a combined 

jurisdictional and dispositional report, detailing further 

developments with the family since J.M. was detained. The 

social worker again interviewed J.M., who reported that Father

was visiting her at paternal grandmother’s house. She repeated 

that she had no “worries or concerns to report about father,” and 

that she was “not afraid” of him. That being said, J.M. was 

conflicted about whether she preferred to live with paternal 

grandmother or with Father. She noted that Father “drinks

‘white wine . . . to make him feel better.’ ” When asked about this 

statement, J.M. said she had heard paternal grandmother and 

another person say at a court hearing that “[her] dad drinks 

white wine.”

The social worker interviewed paternal grandmother a 

second time. She acknowledged Father drinks two glasses of 

wine some nights after J.M. goes to sleep but denied he has an 

alcohol problem. She also denied that he had an anger 

management issue. She explained that he, like all men in his 

family, is “loud,” attributing this to their Persian Iranian 

heritage. She reported that Father was “really upset” and 
10

confused by the DCFS’s intervention with the family. Paternal 

grandmother reiterated that Father does not mistreat J.M., and 

that Father and J.M. have a loving relationship. 

Finally, the social worker spoke to Father shortly before 

the hearing. Father was confrontational and argumentative, 

refusing to discuss the sustained allegations in the prior petition 

or Father’s positive test for alcohol. The social worker told 

Father she was concerned about Father’s sobriety and that 

Father should not have been drinking at all given the prior DCFS 

case. Father maintained his legal right to drink. He refused 

further drug tests, even though the juvenile court ordered 

random testing on December 22, 2021. It is apparent from the 

social worker’s report that Father was rude and combative as he 

called the social worker names and spoke in a baby voice when 

the social worker tried to discuss the current allegations. 

At a combined jurisdictional and dispositional hearing, the 

juvenile court sustained the allegations, and found that removal 

was warranted by clear and convincing evidence. In stating the 

factual basis for sustaining the allegations, the juvenile court 

stated: “[F]ather has an anger management issue. [¶] He may 

have an alcohol issue. [¶] He clearly has challenges regulating 

his emotions. [¶] He has an explosive demeanor. [¶] He is 

inappropriate with school officials, parents and the social workers 

and neighbors. [¶] He refuses to cooperate. [¶] He refused to 

cooperate with [DCFS], which gives the court no insurance that 

he would make this child available or cooperate with family 

maintenance.” The juvenile court noted: “I think the challenge 

in this case is that the [F]ather has not cooperated, which might 

be appropriate because he is mad about [DCFS] being involved, 

but the fact that this is a petition that is very, very similar to the 
11

other petition, in spite of [F]ather having engaged in 

programming, the fact that he appears to have a hard time 

regulating his emotions, his language and behavior with [DCFS], 

his refusing to cooperate with testing, his expressive behavior to 

the school, his neighbors, to the social worker, all seem to 

indicate that there is a problem. [¶] We might have had more 

information that the [F]ather cooperated and we could have 

determined this is an alcohol issue. [¶] It could be mental health 

because he says he drinks alcohol to make himself feel better.” 

The juvenile court removed J.M. from Father’s custody and 

placed her under DCFS supervision. It ordered reunification 

services, mental health counseling, a psychological assessment, 

anger management, individual counseling, and random drug 

testing.

Father appealed.

DISCUSSION

I. Standard of Review

We review the juvenile court’s jurisdictional findings under 

section 300 for substantial evidence. (In re Natalie A. (2015) 

243 Cal.App.4th 178, 184.) We will uphold the juvenile court’s 

findings “ ‘unless, after reviewing the entire record and resolving 

all conflicts in favor of the respondent and drawing all reasonable 

inferences in support of the judgment, we determine there is no 

substantial evidence to support the findings.’ ” (In re J.N. (2010)

181 Cal.App.4th 1010, 1022.) “ ‘ “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.” ’ ”

(In re I.J. (2013) 56 Cal.4th 766, 773.)

We review the juvenile court’s dispositional findings and 

order for substantial evidence, keeping in mind the heightened 
12

requirement of proof by clear and convincing evidence. (In re V.L.

(2020) 54 Cal.App.5th 147, 154–155.) We must determine 

“whether the record as a whole contains substantial evidence 

from which a reasonable fact finder could have found it highly 

probable that the fact was true.” (Conservatorship of O.B. (2020) 

9 Cal.5th 989, 995–996.)

II. DCFS failed to meet its burden to show a nexus 

between Father’s conduct and any risk of harm to 

J.M.

Section 300, subdivision (b)(1), subjects a child to juvenile 

court jurisdiction if “[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 . . . [¶] . . . [t]he failure or inability of the 

child’s parent or guardian to adequately supervise or protect the 

child” or “[t]he 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.” (Id., 

subd. (b)(1)(A) & (D).) 

“A jurisdictional finding under section 300, subdivision 

(b)(1), requires DCFS to demonstrate the following three 

elements by a preponderance of the evidence: (1) neglectful 

conduct, failure, or inability by the parent; (2) causation; and 

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

serious physical harm or illness.” (In re L.W. (2019) 

32 Cal.App.5th 840, 848.) Section 300 requires proof the child is 

subject to the defined risk of harm at the time of the jurisdiction 

hearing. (In re J.N. (2021) 62 Cal.App.5th 767, 775.) However, 

the “ ‘ “court need not wait until a child is seriously abused or 

injured to assume jurisdiction and take the steps necessary to 

protect the child.” ’ ” (In re S.R. (2020) 48 Cal.App.5th 204, 219.) 
13

Evidence of past conduct may be probative of current 

conditions, and may assist DCFS in meeting this burden. (In re 

D.L. (2018) 22 Cal.App.5th 1142, 1146.) Nonetheless, DCFS 

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

and the current risk of harm. (See In re Roger S. (2018) 

31 Cal.App.5th 572, 583). “To establish a defined risk of harm at 

the time of the hearing, there ‘must be some reason beyond mere 

speculation to believe the alleged conduct will recur.’ ” (In re 

D.L., at p. 1146.)

Here, the juvenile court found Father had “an anger 

management issue” and “may have an alcohol issue,” creating a 

substantial risk to J.M.’s safety, protection, and emotional wellbeing. Father contends that substantial evidence does not 

support the juvenile court’s finding that he abuses alcohol or that 

there was a current substantial risk that J.M. would suffer 

serious physical harm or illness as defined by section 300, 

subdivision (b)(1). We find this latter argument persuasive. 

As an initial matter, DCFS has not established a sufficient 

nexus between Father’s purported anger management issue and 

any harm or risk of harm to J.M. J.M. felt safe with Father and 

told social workers that Father punished her appropriately. 

While the school principal expressed concerns about Father’s 

attitude towards him and other parents, he described J.M. as 

easygoing, well-adjusted, and happy. The principal never 

observed any concerning behavior with respect to Father towards 

J.M. and reported that Father treats J.M. “well.” While some of 

the family’s neighbors heard yelling coming from the family’s 

apartment, they had never seen or heard anything that indicated 

J.M. was subject to abuse or neglect.
14

Next, even if we assume substantial evidence supports the 

juvenile court’s finding that Father is a current abuser of alcohol, 

there is no evidence in the record to support a finding that 

Father’s conduct has resulted in an inability to provide regular 

care to J.M. or that his behavior has caused J.M. substantial 

harm or placed her at risk of suffering substantial harm.

Our case law dictates that drug use or substance abuse, 

without more, is an insufficient basis to assert dependency

jurisdiction . (In re L.W., supra, 32 Cal.App.5th at p. 359; see 

also In re Drake M. (2012) 211 Cal.App.4th 754, 769 [drug use 

without evidence that use has caused or will cause physical harm 

is insufficient to support jurisdiction]; In re Rebecca C. (2014) 

228 Cal.App.4th 720, 728 (Rebecca C.) [substance abuse without 

more is insufficient to support jurisdiction].)

Rebecca C. is instructive. (Rebecca C., supra, 228 

Cal.App.4th 720.) After receiving a welfare referral that parents 

were abusing drugs in the home, DCFS investigated the referral 

and found that mother had a long history of drug abuse and was 

a current abuser of drugs. (Id. at pp. 722–724.) Mother reported 

that she had been using drugs since she was a teenager, and 

tested positive for methamphetamine, amphetamine, and 

marijuana on the day DCFS responded to the referral. (Ibid.) 

However, with respect to the child, DCFS was only able to 

conclude that she performed poorly at school but was otherwise 

healthy and cared for. (Ibid.) The juvenile court sustained the 

allegations that mother’s substance abuse endangered the child’s 

physical health and safety, and placed the child at risk of 

physical harm and damage. (Id. at p. 724.)

The appellate court found that, while substantial evidence 

supported a finding that mother was a current substance abuser, 
15

it reversed the juvenile court’s jurisdictional orders because 

DCFS failed to meet its burden to show that mother’s substance 

abuse had caused or was causing a substantial risk of harm to 

the child. (Rebecca C., supra, 228 Cal.App.4th at p. 727.) It 

rejected DCFS’s argument that a child is placed at risk when a 

parent uses methamphetamine, amphetamine and marijuana 

because those substances were “well recognized to be substances 

which cause hallucinogenic or stimulant-driven behavior.” (Id. at 

pp. 727–728.) The court reasoned that accepting DCFS’s 

argument would mean that physical harm to a child is presumed 

when a parent is a substance abuser. (Id. at p. 728.) The court 

noted that this would essentially shift the burden to the parent to 

prove a negative, which “is not what the dependency law 

provides.” (Ibid.; see also In re Destiny S. (2012) 210 Cal.App.4th 

999, 1004–1005 [mother’s marijuana use, without more, was 

insufficient to assert jurisdiction]; In re David M. (2005) 

134 Cal.App.4th 822, 830 [same]; In re L.C. (2019) 38 Cal.App.5th 

646, 654 [father’s methamphetamine use, without more, was 

insufficient to support jurisdiction].) 

Here, there is less evidence than in Rebecca C. and other 

cases that held that a parent’s substance abuse without any

accompanying harm or risk of harm to the child is insufficient to 

assert jurisdiction. When DCFS first contacted Father during an 

unannounced visit, the social worker found that the family home 

was clean and tidy, adequately furnished, stocked with sufficient 

food, contained age-appropriate toys, and the utilities were in 

working order. There was no indication of alcohol abuse or that 

Father was exposing J.M. to his purported alcohol abuse. 

Moreover, by all accounts, J.M. and Father had a good 

relationship and there was no evidence that Father was failing to 
16

adequately supervise or protect her or provide regular care. 

J.M.’s pediatrician reported that J.M. was current on her 

physicals and vaccinations, and had no concerns of abuse or 

neglect.

While J.M.’s school principal expressed concerns about 

Father’s attitude, he was unable to describe any examples of 

abuse or neglect and reported that Father was appropriate with 

J.M. Indeed, the principal’s primary complaint about Father was 

his conduct in the valet line when he was picking up J.M. from 

school. Specifically, the principal was concerned because other 

parents had complained that Father drove erratically, played 

loud music, and made other parents feel uncomfortable. 

Likewise, two of the family’s neighbors observed that 

Father had a good relationship with J.M. and had never seen any 

signs of abuse. With respect to those neighbors who were 

concerned about loud noises and yelling coming from the family’s 

apartment, there was no evidence that Father’s disruptive

conduct was harming or creating a substantial risk of harm to 

J.M. 

The dissent reasons that the neighbor who called law 

enforcement, claiming to have heard J.M. telling Father to “stop 

touching her underwear,” which led to the DCFS referral, 

supports the juvenile court’s finding that J.M. was at a 

substantial risk of harm. However, no other witness corroborated 

that statement, and there was no evidence of sexual abuse that 

would support an inference that the statement was accurate. 

Indeed, the dissent acknowledges that it was reasonable to 

assume that the neighbor misheard the statement through the 

wall, and DCFS made no allegations of sexual abuse in any 

event. 
17

DCFS argues that the jurisdiction and removal were 

appropriate here because the record shows that Father lied about 

the extent of his alcohol use, drank a few glasses of wine nightly 

while J.M. was asleep but still in his care, and drove a vehicle 

during the afternoon with a 0.07 BAC. Given these facts, and 

Father’s prior history of alcohol abuse, DCFS argues that it is 

reasonable to assume that Father could not refrain from drinking 

alcohol during the day. While the fact that Father was not 

forthcoming about his alcohol use and his positive test are

concerning, DCFS has not pointed to any evidence in the record 

that Father’s alcohol use was harming or creating a substantial 

risk of harm to J.M.

DCFS appears to argue that Father’s positive test for 

alcohol on a Thursday afternoon supports an inference that 

Father may have driven drunk with J.M. in the car because he 

dropped J.M. off with paternal grandmother just 40 minutes 

before he submitted a urine sample, which showed a 0.07 BAC. 

This inference assumes too much. First, it is undisputed that 

Father was under the legal limit when he tested. Thus, there is 

no evidence that Father was under the influence per se. (See 

Veh. Code, § 23152, subd. (b).) Nor was there evidence that 

Father was driving unsafely when he drove to the testing site or 

earlier in the day when he drove J.M. to paternal grandmother’s 

home. While it is unlawful for an individual to operate a vehicle 

under the influence regardless of their blood alcohol 

concentration, there was no evidence that Father was driving 

unsafely before his test such that it can be inferred that he was 

under the influence when he drove with J.M. earlier that day or 

when he drove to the test. Second, we do not agree with the 

dissent’s assumption that Father must have been driving above 
18

the legal limit. While Father’s positive urine sample certainly 

reflects that he drank alcohol, it is not necessarily reflective of 

when Father drank. The only alcohol test here is below the legal 

limit, and without further context, we cannot assume that he 

drove above the legal limit just before his test. 

On the record before us, it appears that Father’s only issues 

were that he was loud, obnoxious, disturbed his neighbors and 

other parents at J.M.’s school, and then tested below the legal 

limit for alcohol. None of these issues harmed J.M. or placed her

at a substantial risk of harm and were thus insufficient for 

asserting jurisdiction.

Because we find that the juvenile court erred in asserting 

jurisdiction over J.M., Father’s challenges to the dispositional

orders are moot. (See In re Destiny S., supra, 210 Cal.App.4th at 

p. 1005.) 

DISPOSITION

The juvenile court’s jurisdictional and dispositional orders

are reversed.

VIRAMONTES, J.

I CONCUR:

STRATTON, P. J.
B317841 

In re J.M.; Los Angeles County Department of Children and 

Family Services v. H.M.

GRIMES, J., Dissenting.

I respectfully dissent.

I disagree with the majority that the evidence supporting 

jurisdiction was insubstantial. In my view, substantial evidence 

supports the conclusion that father H.M. abuses alcohol and that 

his abuse puts his daughter J.M. at risk of physical harm. Our 

responsibility on review of a jurisdictional order is to determine if 

substantial evidence, contradicted or uncontradicted, supports 

the findings. (In re Natalie A. (2015) 243 Cal.App.4th 178, 184.) 

We must review the evidence in the light most favorable to the 

juvenile court’s order, drawing every reasonable inference and 

resolving all conflicts in favor of the prevailing party. (In re 

Misako R. (1991) 2 Cal.App.4th 538, 545.) I think the majority 

disregards this fundamental principle and, instead, reweighs the 

evidence; in some cases, disregarding substantial evidence 

favorable to the juvenile court’s order. 

As to alcohol abuse, we have recognized that a parent’s 

dishonesty about substance use is sufficient to support the 

inference the parent is hiding substance abuse. (See In re K.B. 

(2021) 59 Cal.App.5th 593, 601 [“The juvenile court was entitled 

to conclude the mother had been transparently dissembling about 

her drug use. A reasonable inference was the mother was trying 

to hide her ongoing addiction. The trial court was entitled to 

draw this reasonable inference.”].) 

Here, father repeatedly lied about his alcohol use. He 

initially told the Los Angeles County Department of Children and 
2

Family Services (Department) he “does not drink alcohol.” This 

proved not to be true when later he admitted “he drinks a few 

glasses of wine nightly.” But even this concession did not reveal 

the whole story. When he underwent testing for drugs and 

alcohol at 3:41 p.m. on a Thursday, he had the equivalent to a 

0.07 percent blood-alcohol level. Whether father had residual 

alcohol in his system from the night before or had been drinking 

the day of his test, neither is consistent with his claim of drinking 

just a few glasses of wine at night. Moreover, father refused 

further testing and refused to stop drinking alcohol.

On the afternoon that father tested positive for alcohol, he 

had dropped J.M. off at paternal grandmother’s house about 

40 minutes earlier. Father refused to explain his positive alcohol 

test except to say he was “old enough to drink.” From the record, 

the juvenile court was entitled to presume that father drove J.M. 

to paternal grandmother’s house after drinking and then drove to 

the testing center. It was further entitled to presume from his 

0.07 percent blood-alcohol level test at 3:41 p.m. that it was 

higher, and that he was under the influence when he drove J.M. 

approximately 40 minutes earlier. Reports of erratic driving at 

J.M.’s school and father’s irascibility in the school pickup line 

that led the principal to question whether father was “on 

something” further support the inference that father drives under 

the influence. 

Father also has a history of DUI’s and other driving, drug, 

and alcohol offenses. Father observes that his most recent 

criminal conviction was in 2005—long before J.M. was born. 

That father has not been more recently charged with or convicted 

of DUI does not negate the substantial evidence supporting the 
3

inference that he drove under the influence on the day of his drug 

test during the Department’s investigation.

Finally, I must specifically disagree with the majority’s 

contention that, “[w]ith respect to those neighbors who were 

concerned about loud noises and yelling coming from the family’s 

apartment, there was no evidence that Father’s disruptive 

conduct was harming or creating a substantial risk of harm to 

J.M.” The majority simply ignores that one neighbor reported 

hearing J.M. telling father to “stop touching her and . . . her 

underwear” and asking father, “[w]hy [are you] doing this?” And 

it ignores a firsthand law enforcement account from the prior 

case that Father’s yelling was connected to his drinking and 

frightened the child. As the majority recites in its background 

section, “[p]olice were called to the family apartment [when J.M. 

was four years old] following a neighbor’s report that Father was 

inside yelling and screaming, which included a statement that he 

was going to ‘kill.’ When police arrived, they heard Father 

‘ranting and screaming’ and ‘making strange noises.’ Father 

initially denied that he had been ranting and screaming, and 

claimed that he had been asleep. However, when the officers told 

him that they heard him making noises from outside the 

apartment, Father ‘began laughing and joking.’ The officers 

entered the apartment and found multiple open beer cans while 

J.M. was sitting on her bed, clutching a blanket, and ‘ “scared out 

of her mind.” ’ ”

It would not be unreasonable to infer the underwear 

comment was unreliable—a neighbor mishearing things through 

a wall. It would not be unreasonable to infer that J.M. was 

“ ‘scared out of her mind’ ” when her intoxicated father yelled not 

because he was ranting about killing but because of the presence 
4

of law enforcement in her bedroom late at night. But the 

standard of review requires that we draw inferences from the 

evidence that support the juvenile court’s judgment, however 

much we might disagree with it, and conclude that father’s 

alcohol use caused him to engage in behavior that endangered 

J.M.

GRIMES, J.