Filed 4/13/15 In re R.J. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re R.J. et al.,

Persons Coming Under the Juvenile

Court Law.

 B257918

 (Los Angeles County

 Super. Ct. No. DK05258)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

MICHELLE O.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Philip L. 

Soto, Judge. Affirmed.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel, 

and Melinda A. Green, Deputy County Counsel, for Plaintiff and Respondent.

______________________
2

INTRODUCTION

Michelle O. (Mother) appeals from an order declaring her three children, fiveyear-old R.J., one-year-old M.S., and newborn Agustin S., dependent children of the 

court pursuant to Welfare and Institutions Code section 300, subdivision (b),1removing

them from her custody and placing them in the homes of their fathers, Jonathan J.

(Father J.) and Agustin S. (Father S.).

2 The section 300 petition was filed after Mother

and Agustin tested positive for amphetamines at the time of Agustin’s birth, with 

subsequent confirmation that Mother and Agustin also tested positive for 

methamphetamine. Mother contends there was insufficient evidence to support the 

juvenile court’s jurisdiction finding that the children were at risk due to her alleged drug 

use. She also challenges the disposition order, arguing that the court should not have 

removed the children from her custody because there was insufficient evidence that a 

lesser alternative would not have protected the children. Finally, she contends the trial 

court erred in granting Father J. sole physical custody over R.J., with supervised 

visitation for Mother, and terminating jurisdiction. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

When Agustin was born in May 2014, both he and Mother tested positive for 

amphetamines and methamphetamine. Agustin was born full term, had no medical 

 

1 Statutory references are to the Welfare and Institutions Code, unless otherwise 

indicated.

2 For purposes of clarity, we will refer to the parents as Mother, Father J. and 

Father S.
3

problems, and did not exhibit any withdrawal symptoms. He had APGAR3scores of 9 

and 9, and he was described as “very calm and [having] a pleasant disposition.”

When the children’s social worker (CSW) interviewed Mother at the hospital, she 

denied any drug use. She told the CSW she thought someone might have drugged her,

noting that she became violently ill after attending a funeral two or three months earlier. 

Mother admitted she was around friends who smoked marijuana the prior week. She also 

told the CSW that she did not have any prenatal care because she only found out that she 

was pregnant two months before the birth (at the end of March 2014). Mother told the 

CSW that “she will do whatever it takes to get her children back as soon as possible.” 

The CSW described Mother as “very cooperative” and as being “a very polite and caring 

person.”

At the time of Agustin’s birth, Mother was living with Father S. and their oneyear-old son M.S. Mother shared custody of five-year-old R.J. with Father J. pursuant to 

a family court order, under which R.J. lived with Mother and Father J. on alternate 

weeks. A CSW visited the homes of Father S. and Father J. and found both homes to be 

clean and organized, with no obvious safety hazards. Both fathers denied seeing Mother 

use drugs.

Based on the positive drug tests, on May 24, 2014 the Los Angeles County 

Department of Children and Family Services (DCFS) placed a hospital hold on Agustin, 

detained all three children and placed them with their fathers.

 

3 APGAR refers to a baby’s “Appearance, Pulse, Grimace, Activity, Respiration.” 

The test is used to evaluate a newborn’s health immediately after birth, with a score from 

0 to 10.
4

On May 29, 2014 DCFS filed a section 300 petition alleging in count b-1 that 

Agustin4 was born with a positive toxicology screen for amphetamines,5 which condition 

would not exist except as a result of actions by Mother. The petition alleges in count b-2 

as to all three children that Mother “is a current abuser of amphetamines, which renders 

the mother incapable of providing regular care for the children.” The petition alleges in 

both counts that Mother’s substance abuse endangers the children’s physical health and 

safety and places them at risk of physical harm and damage.

At the detention hearing on May 29, 2014 the juvenile court found a prima facie 

case for detention. The court ordered the children released to their fathers. The court

allowed Mother to live with Father S., M.S. and Agustin, as long as she was not left alone 

with the children and did not breastfeed them. In addition, she was ordered to participate 

in an approved drug program with weekly random drug and alcohol testing. Mother was 

allowed monitored visitation with all three children.

The jurisdiction/disposition report dated June 26, 2014 notes as to five-year-old 

R.J. that, according to Father J., since the detention hearing Mother initiated only two 

visits with him. Mother also did not show up at R.J.’s graduation from kindergarten. The 

report states R.J. “seems to be thriving in the care of father and father is willing to protect 

the child from said abuse.” DCFS recommended that R.J. be released to Father J., the 

 

4

In the petition Agustin is described as “Baby Boy” because he had not yet been 

named.

5 The petition alleges in counts b-1 and b-2 that Agustin and Mother tested positive 

for amphetamines because the initial hospital test results only showed screening for 

amphetamine. Prior to the jurisdiction and disposition hearings, according to the last 

minute information for the court, the CSW spoke with a social worker at the hospital who 

provided verbal confirmation that both Mother and Agustin tested positive for 

methamphetamine. A lab report for Agustin (identified as “O[.], Michelle Boy”) shows 

that his sample tested positive for amphetamine and methamphetamine. Mother’s 

laboratory result shows a positive “screening” test for amphetamine, but does not show 

testing results for methamphetamine.
5

court terminate jurisdiction over him with a family law exit order in place, and grant 

Father J. sole physical custody of R.J, with joint legal custody.

The jurisdiction/disposition report states as to M.S. and Agustin that they had been 

released to Father S. and that Mother was residing in the home with Father S., M.S. and 

Agustin. DCFS had attempted to interview Mother and Father S. to assess their 

compliance with the plan, but neither parent had responded to the attempts. DCFS also 

had not received the results of any drug testing. DCFS was therefore unable to determine 

if Mother was in compliance with the detention order.

DCFS recommended that M.S. and Agustin remain released to Father S. and that 

Father S. participate in parent education and substance abuse awareness classes. DCFS 

also recommended that Mother be allowed to continue to reside with Father S. and the 

children “[u]nless it is determined to be an unsafe plan,” and as long as she participated 

in an approved substance abuse treatment program, parent education classes and 

individual counseling, and submitted to random weekly drug testing. DCFS continued to 

recommend that Mother not be left alone with the children and not breastfeed the 

children.

In last minute information for the court, the CSW reported that she met with 

Mother, Father S., M.S. and Agustin during an unannounced visit on June 17, 2014. She 

reported, “[t]he children appeared healthy, well cared for and without any signs of abuse 

or neglect.” The CSW questioned Mother about a “no show” drug test on June 5, and

Mother insisted that she called the lab on a daily basis, and on that date her letter did not 

come up when she called in. Mother missed a second drug test on June 11, 2014, and 

Mother again told the CSW that she had called in but her letter did not come up for 

testing.

Mother did submit to a test on June 16, but the results were pending. Mother

stated she tried marijuana as a teenager but stopped because she did not like how it made 

her feel. She later started drinking, but she stopped two years earlier, when she was 25. 

The CSW at this point also confirmed with the hospital that Mother and Agustin had 

tested positive at the time of Agustin’s birth for methamphetamine.
6

Mother and Father S. told the CSW that the only drug Mother took prior to 

Agustin’s birth was extra strength acetaminophen for pain, but the lab confirmed that 

even if Mother used a large amount of acetaminophen, this would not cause Mother to 

test positive for amphetamines. Additionally, Mother had not enrolled in a substance 

abuse program. Based on the new information, including that Mother had not enrolled in 

a substance abuse program, had missed two drug tests, and had a confirmed test result for 

methamphetamine on the day of Agustin’s birth, DCFS requested that Mother move out 

of Father S.’s home immediately.

At the jurisdiction and disposition hearing on June 26, 2014, the juvenile court 

admitted the DCFS reports into evidence. The court also considered, over DCFS’s 

objection, a log Mother asserted she kept of her daily calls for drug testing that she 

started on June 14, a graduation certificate for R.J. dated June 5, and a supermarket 

receipt dated June 5 that showed that Mother had purchased what she contended were 

supplies for R.J.’s kindergarten graduation party. The parties stipulated that if Mother 

testified, she would state that she has not used any illicit substances since she was 14 or 

15 and that she had called in twice each day, but her letter did not come up for drug 

testing.

Mother’s counsel argued that there was no relationship between the positive tests 

for amphetamine and risk to the baby. Mother’s counsel also argued that the CSW made 

an unannounced visit to Mother and Father S. and found that the children were well-cared 

for with no signs of abuse. Mother’s counsel further argued that Mother had been calling 

in regularly but her letter did not come up, and that if Mother had been under the 

influence of drugs, the kindergarten teacher or a parent would have called the police. 

Finally, Mother’s counsel argued that the acetaminophen came from Mexico, and “there 

are no other substances that the mother took that could explain a positive amphetamine 

test.”
7

Counsel for DCFS noted that the hospital drug test showed positive results for 

both amphetamine and methamphetamine. Minors’ counsel6 expressed concern over the 

positive tests and lack of any explanation for the tests. Minors’ counsel also noted that 

Mother was ordered not to miss any tests, which condition she violated. Minors’ counsel 

joined in the request that Mother not reside in the home with Father S., M.S. and Agustin 

“pending some participation in her program and some additional clean tests.”

The juvenile court stated that it could not “believe that the system is that broken 

down that this woman would call, looks like about two weeks in a row, and not be able to 

get through to the telephone number and get her number . . . when it was being called. So 

it just is not believable to this court that for that two-week period her letter did not come 

up. And in fact it did and she missed the test, and we don’t have proof that she’s clean 

and sober.”

The court sustained the petition under section 300, subdivision (b), declared the 

children dependents of the court, and found under section 361, subdivision (c), by clear 

and convincing evidence that “returning the children to the mother would create a 

substantial risk of detriment to their safety, protection, physical, emotional well-being, 

and there’s no reasonable means to keep the children safe without removing them from 

the mother.” The court ordered the children removed from Mother and released to Father 

S. and Father J.

As to Agustin and M.S., the juvenile court ordered that Mother was not allowed to 

live in the home of Father S. or to visit the children in the home. The court ordered 

visitation for Mother three times a week in a neutral location with a neutral monitor other 

than Father S. The court gave DCFS discretion to “liberalize” visitation with Agustin 

and M.S. and to allow Mother to live in the home with Father S. and the children if 

Mother participates in drug treatment and tests negative.

 

6 Minors’ counsel represented all three children at the hearing.
8

As to R.J., the juvenile court issued a custody order granting joint legal custody to 

Mother and Father J., with physical custody to Father J. and primary residence with 

Father J. The court allowed Mother supervised visitation with R.J. and ordered Mother to 

complete a drug and alcohol treatment program with random drug testing. Over Mother’s 

objection, the court ordered that R.J. be released to Father J., whom the court described as 

the “noncustodial parent.”7 The court ordered the case closed as to R.J. and jurisdiction 

terminated.8

DISCUSSION

A. Standard of Review

We review the juvenile court’s jurisdiction and disposition orders by applying the 

substantial evidence test. (In re I.J. (2013) 56 Cal.4th 766, 773; In re Quentin H. (2014) 

230 Cal.App.4th 608, 613; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.) 

“‘“In making this determination, we draw all reasonable inferences from 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 

 

7 The juvenile court at the hearing cited to section 361.2 as support for placing R.J. 

with Father J., describing Father J. as a “noncustodial parent.” While Mother points out 

that this section was inapplicable because Father J. was not a “noncustodial parent,” the 

court had authority to remove R.J. from Mother and place him with Father J. as a 

“nonoffending parent” under section 361, subdivision (c)(1)(B).

8 Minute orders from subsequent hearings reveal that DCFS filed a subsequent 

petition under section 342. We take judicial notice of the petition and subsequent court 

orders. (Evid. Code, §§ 452, 459; In re Daisy H. (2011) 192 Cal.App.4th 713, 716; In re 

Karen G. (2004) 121 Cal.App.4th 1384, 1390.) On October 1, 2014 the juvenile court 

ordered Agustin and M.S. removed from Father S.’s home. Father S. was ordered to

participate in a drug and alcohol program and testing. The section 342 petition was 

sustained in part on January 28, 2015. The subsequent history does not affect this appeal 

because Mother challenges removal of the children from her, not placement with 

Father S.
9

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].”’ [Citation.]” [Citation.]’ [Citation.]” (In re I.J., supra, 

at p. 773; accord, In re Christopher R., supra, at p. 1216.) It is the parent’s burden on 

appeal to show the evidence is insufficient. (In re Isabella F. (2014) 226 Cal.App.4th 

128, 138; In re N.M. (2011) 197 Cal.App.4th 159, 168.)

Although the burden of proof at the jurisdiction phase is preponderance of the 

evidence and at the disposition phase is clear and convincing evidence, “we review both 

jurisdiction findings and the disposition order for substantial evidence.” (In re 

Christopher R., supra, 225 Cal.App.4th at p. 1216, fn. 4; see In re A.E. (2014) 228 

Cal.App.4th 820, 826.)

B. Governing Statutes and Applicable Law

Section 300, subdivision (b)(1), provides that a child may be adjudged a dependent 

of the juvenile court 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 the failure or inability of 

his or her parent or guardian to adequately supervise or protect the child . . . or by the 

inability of the parent or guardian to provide regular care for the child due to the parent’s 

or guardian’s mental illness, developmental disability, or substance abuse.”

Section 300 requires that the risk of harm be shown at the time of the jurisdiction 

hearing. (In re J.N. (2010) 181 Cal.App.4th 1010, 1023; In re Rocco M. (1991) 1 

Cal.App.4th 814, 824.) However, as our Supreme Court noted in In re I.J., “section 300 

does not require that a child actually be abused or neglected before the juvenile court can 

assume jurisdiction. The subdivisions at issue here require only a ‘substantial risk’ that 

the child will be abused or neglected. The legislatively declared purpose of these 

provisions ‘is to provide maximum safety and protection for children who are currently 
10

being physically, sexually, or emotionally abused, being neglected, or being exploited, 

and to ensure the safety, protection, and physical and emotional well-being of children 

who are at risk of that harm.’ (§ 300.2 . . . .) ‘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.’ [Citation.]” (In re I.J., supra, 56 Cal.4th at p. 773.)

In making a determination as to whether the child is currently at risk, the court can 

consider prior conduct of the offending parent. (In re Christopher R., supra, 225 

Cal.App.4th at p. 1216; In re Rocco M., supra, 1 Cal.App.4th at p. 824.) Further, the 

Legislature has declared in section 300.2 that “[t]he 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. Successful participation in 

a treatment program for substance abuse may be considered in evaluating the home 

environment.”

C. The Jurisdiction Findings Were Supported by Substantial Evidence

Mother contends there was insufficient evidence to support the juvenile court’s 

jurisdiction findings given Mother’s denial of drug use (except for prior marijuana use), 

the denial by Father J. and Father S. of ever seeing Mother use drugs,

9 Agustin being

healthy at birth and all three children doing well at the time of the jurisdiction hearing 

without any signs of abuse. Mother attempts to blame the positive drug tests at Agustin’s 

birth on factors other than her drug use and her missed drug tests on the fact her letter had

not come up on the recording.

We recently addressed the risk posed to children from a mother and her baby 

testing positive for controlled substances at the time of the baby’s birth in In re 

Christopher R., supra, 225 Cal.App.4th 1210. There, the mother and her newborn baby

tested positive for cocaine, and the baby also tested positive for amphetamine and

 

9 Five year-old R.J. and the maternal grandmother also denied ever seeing Mother 

use drugs.
11

methamphetamine. The mother admitted using cocaine in the past but denied using it 

while she was pregnant. The mother later admitted she had picked up cocaine for 

someone else and tasted it to confirm that it was cocaine. (Id. at pp. 1212-1213.) The 

mother conceded that jurisdiction was proper as to the baby but contended it was

insufficient to support jurisdiction findings as to her three older children, then aged three, 

six and seven. (Id. at pp. 1212, 1215.) The baby was born with respiratory issues,

although she had no withdrawal symptoms and no ongoing health issues once she left the 

hospital; the three siblings appeared healthy and had no visible signs of abuse. (Id. at 

p. 1213.)

In upholding the juvenile court’s jurisdiction findings, we found that the fact that 

the mother used cocaine while she was pregnant “unquestionably endanger[ed] the health 

and safety of her unborn child.” (In re Christopher R., supra, 225 Cal.App.4th at 

p. 1217.) We held that the juvenile court’s finding that the mother endangered her four 

children’s health and safety was supported by mother’s use of cocaine while she was 

pregnant, her past drug use, her initial false denial of drug use, a missed drug test, and her 

failure to enroll in a substance abuse program. (Id. at p. 1217.) We found that the 

mother’s one missed drug test was “properly considered the equivalent of a positive test 

result . . . .” (Ibid., fn. omitted.)

We also addressed the age of the children, holding that “because the children were 

six years old or younger at the time of the jurisdiction hearing—children of ‘tender 

years’ . . .—‘the finding of substance abuse is prima facie evidence of the inability of a 

parent or guardian to provide regular care resulting in a substantial risk of harm.’ 

[Citations.] [The mother] did not adequately rebut that evidence. Indeed, her use of 

cocaine during the last months of her pregnancy confirmed her poor judgment and 

willingness to endanger her children’s safety due to substance abuse. Thus, the decision 

to remove the children from her care and custody was supported by substantial evidence.” 

(In re Christopher R., supra, 225 Cal.App.4th at p. 1219; see also In re Rocco M., supra,

1 Cal.App.4th at pp. 824, 825 [exercise of jurisdiction proper over “children of such 

tender years that the absence of adequate supervision and care poses an inherent risk to 
12

their physical health and safety,” but finding 11-year-old Rocco old enough to avoid 

physical dangers].)

Here, as in Christopher R., Mother and Agustin tested positive for amphetamines 

and methamphetamines when Agustin was born. Mother denied any drug use during her 

pregnancy, and her family members denied seeing her use drugs. However, Mother’s 

efforts to blame her positive drug tests on poisoning at a funeral or taking of 

acetaminophen are not persuasive.

10

 More importantly, after denying any drug use and 

stating she would do whatever she needed to do to get her children back, Mother missed 

two random drug tests and failed to enroll in a substance abuse program.

The juvenile court did not believe Mother’s explanation that her number was not 

called for random testing, instead finding that her number did come up and the court 

therefore had no proof “that she’s clean and sober.” Mother also provided no 

explanation as to why she failed to enroll in a substance abuse program. In other words, 

Mother failed to rebut the evidence of substance abuse and “‘prima facie evidence of 

[her] inability . . . to provide regular care resulting in a substantial risk of harm’” to her 

young children. (In re Christopher R., supra, 225 Cal.App.4th at p. 1219.)

Mother relies on cases in which the courts found that there was not sufficient 

evidence of current risk of harm to the children as a result of a parent’s drug use, citing to 

In re David M. (2005) 134 Cal.App.4th 822 and In re Destiny S. (2012) 210 Cal.App.4th 

999.11 Both are distinguishable.

 

10 As noted above, the laboratory confirmed that even high doses of acetaminophen 

cannot cause a positive test for amphetamine. Likewise, the photograph of the 

acetaminophen bottle does not show that it came from Mexico; the label does not list a 

country of origin and the writing on the label is in English.

11 Mother also relies on In re Alexis E. (2009) 171 Cal.App.4th 438, 453, for its 

holding that the “use of medical marijuana, without more, cannot support a 

jurisdiction[al] finding . . . .” The use of marijuana, however, is different from the facts 

here involving abuse of a controlled substance, methamphetamine, and its direct impact 

on Agustin, who also tested positive for methamphetamine.
13

In In re David M., supra, 134 Cal.App.4th 822, although there was evidence that 

the mother used marijuana at least once while pregnant, her baby tested negative for 

drugs at birth and the mother tested negative for drugs 18 times over a four and one-half 

month period between the detention hearing and the jurisdiction hearing.

12

 (Id. at 

pp. 829, 830.)

In In re Destiny S., supra, 210 Cal.App.4th 999, the mother tested positive for

marijuana and methamphetamine even though she said she had stopped using 

methamphetamine a year before. (Id. at p. 1001.) The court reversed the jurisdiction 

order, however, in light of evidence that by the time of the jurisdiction hearing, the 

mother had tested negative for marijuana and methamphetamine for three months and the 

evidence showed that the mother was not neglecting Destiny but, to the contrary, 

Destiny’s room was “neat and clean,” she attended school regularly, had no behavioral or 

discipline issues, and wanted to return to her mother. (Id. at p. 1004.) In addition, 

Destiny was 11 years old and “‘old enough to avoid the kinds of physical dangers which 

make infancy an inherently hazardous period of life.’” (Ibid.)

Mother also relies on In re Drake M. (2012) 211 Cal.App.4th 754, 766, in which 

Division Three of this district held “that a finding of substance abuse for purposes of 

section 300, subdivision (b), must be based on evidence sufficient to (1) show that the 

parent or guardian at issue had been diagnosed as having a current substance abuse 

problem by a medical professional or (2) establish that the parent or guardian at issue has 

a current substance abuse problem as defined in the DSM-IV-TR.”13

 

12 The mother in David M. did have missed drug tests but, unlike here, the court 

found the missed tests were excused. (In re David M., supra, 134 Cal.App.4th at p. 830.)

13 The reference to the “DSM-IV-TR” is to the American Psychiatric Association’s 

Diagnostic and Statistical Manual of Mental Disorders (4th rev. ed. 2000). (In re Drake

M., supra, 211 Cal.App.4th at p. 765.) The court in Drake M. set forth the full definition 

of “substance abuse” in the DSM-IV-TR to include “recurrent substance use resulting in 

a failure to fulfill major role obligations at work, school, or home [including] . . . 

[]neglect of children or household[].” (Id. at p. 766.)
14

While this court has found the Drake M. formulation “as a generally useful and 

workable definition of substance abuse for purposes of section 300, subdivision (b),” in 

Christopher R. we were “unwilling to accept [the mother’s] argument that only someone 

who has been diagnosed by a medical professional or who falls within one of the specific 

DSM-IV-TR categories can be found to be a current substance abuser.” (In re 

Christopher R., supra, 225 Cal.App.4th at p. 1218.)

Moreover, in Christopher R., we found that the mother’s prior repeated use of 

cocaine and her ingestion of cocaine while pregnant constituted recurrent substance abuse 

satisfying the second prong of Drake M. (In re Christopher R., supra, 225 Cal.App.4th at 

pp. 1218-1219.) Similarly, in this case, Mother’s use of methamphetamine during 

pregnancy, as shown by the positive drug tests for Mother and Agustin, her denial of use 

of methamphetamine, combined with two missed drug tests that we treat as positive tests,

and Mother’s failure to attend a drug treatment program, demonstrated that she had a 

“current substance abuse problem” as defined in the DSM-IV-TR. In addition, all three 

children were at the “tender years” of five or younger. We conclude there was substantial

evidence to support the jurisdiction finding.

D. The Disposition Order Removing the Children from Mother Was Supported by 

Substantial Evidence

Mother contends that the juvenile court’s disposition order was not supported by 

substantial evidence because the children could have been safe with her with the 

provision of services and supervision. Section 361, subdivision (c)(1), provides that a 

child “shall not be taken from the physical custody of [a parent] . . . with whom the child 

resides at the time the petition was initiated, unless the juvenile court finds clear and 

convincing evidence . . . [¶] [that] [t]here is or would be a substantial danger to the 

physical health, safety, protection, or physical or emotional well-being of the minor if the 

minor were returned home, and there are no reasonable means by which the minor’s 

physical health can be protected without removing the minor from the minor’s parent’s or 

guardian’s physical custody.”
15

“This is a heightened standard of proof from the required preponderance of 

evidence standard for taking jurisdiction over a child [under section 300]. [Citations.] 

‘The high standard of proof by which this finding must be made is an essential aspect of 

the presumptive, constitutional right of parents to care for their children.’ [Citations.] 

‘Clear and convincing evidence requires a high probability, such that the evidence is so 

clear as to leave no substantial doubt.’ [Citation.] [¶] At the same time, jurisdictional 

findings are prima facie evidence the child cannot safely remain in the home. (§ 361, 

subd. (c)(1).) The parent need not be dangerous and the child need not have been 

actually harmed before removal is appropriate. [Citations.]” (In re A.E. (2014) 228 

Cal.App.4th 820, 825-826.)

As Mother correctly notes, section 361, subdivision (c), “embodies ‘an effort to 

shift the emphasis of the child dependency laws to maintaining children in their natural 

parent[s’] homes where it was safe to do so.’ [Citations.]” (In re Jasmine G. (2000) 82 

Cal.App.4th 282, 288; see also In re Henry V. (2004) 119 Cal.App.4th 522, 529 [noting 

“constitutionally protected rights of parents to the care, custody and management of the 

children.”].)

However, Mother’s reliance on In re Jasmine G. and In re Henry V. is misplaced. 

In Jasmine G., the court found no support for removal of the daughter from her mother 

based on one instance of slapping the daughter and removal of a nose stud Jasmine 

acquired in foster care, especially in light of mother’s remorse over use of corporal 

punishment. (In re Jasmine G., supra, 82 Cal.App.4th at pp. 288-291.) In Henry V., the 

court found that there was “ample evidence” that appropriate services could have allowed 

Henry to remain in his family home where there was a single occurrence of physical 

abuse. (In re Henry V., supra, 119 Cal.App.4th at pp. 529-530.)

In Christopher R., we found that the decision to remove the children from the care 

and custody of the mother was supported by substantial evidence based on the mother’s 

use of cocaine during the last months of her pregnancy, which “confirmed her poor 

judgment and willingness to endanger her children’s safety due to substance abuse.” (In 

re Christopher R., supra, 225 Cal.App.4th at p. 1219.) In this case, as we discuss above, 
16

Mother likewise endangered her children’s safety by abusing controlled substances, as 

evidenced by the fact that both Mother and Agustin tested positive for amphetamines and 

methamphetamines when Agustin was born.

Mother argues that she “could have continued to test in order to avoid removing 

her from the home.” This argument ignores the fact that after the detention hearing, 

Mother missed two drug tests and failed to enroll in a drug treatment program. The 

juvenile court allowed Mother to live in the family home with Father S., M.S. and 

Agustin after the detention hearing conditioned on her participation in a drug counseling 

program and weekly random drug and alcohol testing. Only after Mother missed two 

drug tests and the CSW received confirmation that Mother and Agustin had tested 

positive for methamphetamine were the two younger children removed from her physical 

custody.

For the same reasons we discuss with respect to the jurisdiction findings, we find 

substantial evidence supports removal of the children from Mother.

E. The Court Did Not Abuse Its Discretion in Entering a Custody Order Granting Sole 

Physical Custody of R.J. to Father J. and Terminating Jurisdiction

Mother contends that the juvenile court erred in granting Father J. sole physical 

custody of R.J., with only supervised visitation for Mother, and terminating jurisdiction. 

We find the court did not abuse its discretion. 

First, Mother argues that the juvenile court erred in applying section 361.2 to 

remove R.J. from Mother’s physical custody. Section 361.2, subdivision (a), provides: 

“When a court orders removal of a child pursuant to Section 361, the court shall first 

determine whether there is a parent of the child, with whom the child was not residing at 

the time that the events or conditions arose that brought the child within the provisions of 

Section 300, who desires to assume custody of the child. If that parent requests custody, 

the court shall place the child with the parent unless it finds that placement with that 

parent would be detrimental to the safety, protection, or physical or emotional well-being 

of the child. . . .”
17

Mother argues that Father J. was not a “noncustodial” parent because he and 

Mother had joint custody of R.J. and had him on alternating weeks. Assuming Mother is 

correct (but see In re Maya L. (2014) 232 Cal.App.4th 81, 97, fn. 3 [custodial parent is 

one “‘who had physical custody of the child at the time of the events that gave rise to the 

petition’”], the juvenile court still properly placed R.J. with Father J. pursuant to section 

361, subdivision (c)(1)(B), which provides that when the court orders a child removed 

from a parent’s custody, it may “[a]llow[] a nonoffending parent or guardian to retain 

physical custody as long as that parent or guardian presents a plan acceptable to the court 

demonstrating that he or she will be able to protect the child from future harm.”14

As we discuss above, substantial evidence supports the juvenile court removing

the children from Mother’s care. Further, where there is a family law order in place, 

section 362.4 permits the juvenile court to issue an order placing a child with the 

nonoffending parent, granting the offending parent supervised visitation, and terminating 

jurisdiction.15 (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712-713; see also In re T.H.

(2010) 190 Cal.App.4th 1119, 1122-1123.) Upon a change of circumstances, the 

offending parent may seek a change of custody in the family law court. (In re Jennifer 

R., supra, at p. 714; see also In re A.C. (2011) 197 Cal.App.4th 796, 799.)

“We . . . review the juvenile court’s decision to terminate dependency jurisdiction 

and to issue a custody (or ‘exit’) order pursuant to section 362.4 for abuse of discretion

[citation] and may not disturb the order unless the court ‘“‘exceeded the limits of legal 

discretion by making an arbitrary, capricious, or patently absurd determination 

 

14 The citation of the wrong code section by the juvenile court at the hearing is 

harmless error where, as here, application of the correct code section warrants the same 

ruling. (See In re Maya L., supra, 232 Cal.App.4th at p. 101.)

15 Section 362.4 provides that “[w]hen the juvenile court terminates its jurisdiction 

over a minor who has been adjudged a dependent child of the juvenile court prior to the 

minor’s attainment of the age of 18 years, and . . . an order has been entered with regard 

to the custody of that minor, the juvenile court on its own motion, may issue a protective 

order as provided for in Section 213.5 or as defined in Section 6218 of the Family Code, 

and an order determining the custody of, or visitation with, the child.”
18

[citations].’”’ [Citations.]” (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 

300-301; see also In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

We find no abuse of discretion in the juvenile court’s decision to terminate 

dependency jurisdiction as to R.J. and to issue a custody order granting Father J. sole 

physical custody of R.J., with supervised visitation by Mother. As we discuss above, 

there was substantial evidence that R.J. could not safely be left in Mother’s custody, and

DCFS determined that Father J. could provide a safe and appropriate home for R.J. (See 

In re Maya L., supra, 232 Cal.App.4th at p. 103.)

In addition, the juvenile court specified that it was granting Mother supervised 

visitation because she had failed to make substantial progress regarding the court-ordered 

drug program with random drug testing. Under the circumstances, the court did not 

abuse its discretion. (See In re Christopher R., supra, 225 Cal.App.4th at pp. 1220-

1221.)

DISPOSITION

The order is affirmed.

FEUER, J.*

We concur:

PERLUSS, P. J. ZELON, J.

 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.