Filed 11/3/21 In re Josiah B. CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re JOSIAH B. et al., Persons

Coming Under the Juvenile 

Court Law.

 B309171

 (Los Angeles County

 Super. Ct.

 No. 19CCJP07880AB)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

R.S.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los 

Angeles County, Lisa Brackelmanns, Juvenile Court Referee. 

Dismissed.

Suzanne Davidson, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

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

Assistant County Counsel, and Jacklyn K. Louie, Deputy County 

Counsel, for Plaintiff and Respondent.

* * * * * *

R.S. (mother) appeals from the juvenile court’s 

jurisdictional finding that her substance abuse history and 

current abuse of marijuana placed her young children, Josiah and 

Joriah B. (born March 2018 and February 2019), at risk of harm. 

Mother does not challenge the other jurisdictional findings 

sustained as grounds for the court’s assertion of jurisdiction over 

the children in this matter. Thus, jurisdiction will continue

regardless of the outcome of this challenge. Because mother’s 

appeal, even if successful, would not justify a reversal of the 

court’s jurisdictional ruling or provide any other practical 

consequence, we decline to address it and dismiss the appeal.

COMBINED FACTUAL AND PROCEDURAL 

BACKGROUND

The family

The family consists of mother, Josiah (21 months old at the 

time the petition was filed) and Joriah (10 months old at the time 

the petition was filed). The children’s father is T.B. (father). 

Mother had a boyfriend during the proceedings, Richard S. 

(boyfriend).1

1 Neither father nor boyfriend is a party to this appeal.
3

Referral and initial investigation

The family came to the attention of the Los Angeles 

Department of Children and Family Services (DCFS) on 

December 8, 2019, when law enforcement responded to a call 

from the Torrance Fire Department after it was reported that 

father had a seizure in a vehicle. The family had been living in 

the car for two weeks. The car was dirty and smelled of 

marijuana and cigarette smoke. There was a warrant for father’s 

arrest and mother had a criminal protective order against father 

due to abuse.2 The children were reported to be healthy with no 

signs of abuse. Mother had $1,000 in CalFresh benefits and was 

able to provide food for the children. Father was taken to the 

Men’s Central Jail, medical unit. Law enforcement requested an 

immediate response to ensure that the children were safe to go 

with mother.

When interviewed mother disclosed a history of abuse. 

Both mother and father were in the foster care system as 

children. They had a history of homelessness and were living on 

the streets and with friends. Mother reported that the first 

incident of domestic violence between them occurred in June or 

July 2018. Father was arrested. Though mother was given an 

emergency protective order their roommate allowed father to 

return to the home. Mother then found out she was pregnant 

with Joriah and did not pursue a permanent restraining order.

Mother was approved for low-income housing in August 

2018. She allowed father to spend the night and there was 

another incident of violence in January 2019. Mother reported 

2 Father had a no bail warrant for an assault charge and 

possible coercion or bribery of a witness. The restraining order 

was issued on March 26, 2019, and expires on March 26, 2022.
4

that father was close to her face yelling at her. He pushed her 

and threw her phone, which broke. Father was arrested after 

this incident. Mother was evicted from the residence in March 

2019 due to frequent arguing and father’s destruction of the 

property by punching holes in walls and doors.

Mother and father moved in with father’s cousin in San 

Bernardino. They moved out about a month prior to the referral 

when father had an argument with the cousin.

Mother reported that as a minor she had been diagnosed 

with manic depression and paranoia. She had been prescribed 

Zoloft and Risperdal, but she stopped taking her medications 

when she became pregnant with Josiah in 2017. Mother reported 

being sexually abused by a relative when she was a minor and 

hospitalized for psychiatric conditions at the age of 16.

Mother acknowledged using marijuana but denied any 

other drug use. Mother stated that she does not smoke in front of 

the children. Mother expressed that she was willing to stop 

smoking and drug test for DCFS. She also disclosed past use of 

methamphetamines for which she successfully completed a 

rehabilitation program. Mother could not recall the name of the 

drug treatment program.

Mother stated that father uses marijuana, and she believed

but was uncertain that he also used methamphetamines.

Mother requested assistance entering a shelter. She 

wanted her children to remain with her but if she was not able to 

enter a shelter and remained homeless, she was willing to allow 

DCFS to care for the children until she was stable.

Petition and detention

On December 10, 2019, DCFS filed a Welfare and 

Institutions Code section 300 petition on behalf of the children,
5

alleging under count a-1 that the children were at risk of serious 

physical harm due to mother and father’s history of engaging in 

violent altercations.3 The petition further alleged three counts 

under section 300, subdivision (b).4 In count b-1, the petition 

reiterated the allegations of domestic violence between the 

parents. In count b-2, the petition alleged that mother had a 

history of substance abuse, including methamphetamine and 

currently used marijuana, which rendered her incapable of 

taking care of the children. In count b-3, the petition set forth 

similar allegations of substance abuse by father.

The detention hearing was held on December 11, 2019. 

Mother was present, father was not. The court found prima facie 

evidence that the children were described by section 300, 

detained them from father, and released them to mother. Mother 

was not to allow father in the home, not to monitor father’s visits 

with the children, and was to reside in DCFS-approved housing. 

The court directed DCFS to provide mother with low- or no-cost 

referrals for programs and to set up drug testing.

3 All further statutory references are to the Welfare and 

Institutions Code.

Section 300, subdivision (a) applies where “[t]he child has 

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

serious physical harm inflicted nonaccidentally upon the child by 

the child’s parent or guardian.”

4 Section 300, subdivision (b) applies where “[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,” among other things.
6

Jurisdiction/disposition reports

DCFS filed a jurisdiction/disposition report in February 

2020 in anticipation of the jurisdiction/disposition hearing.5 

Mother had provided additional information about her substance 

abuse, specifically that she used methamphetamine every other 

day in 2016 after being released from jail. Mother stated that she 

was on it for two weeks when she was living in a “drug house.” 

Mother became ill and went to a hospital where she was told she 

was “losing . . . blood.” This scared mother, and she did not use 

methamphetamine after that.

Mother began smoking marijuana in 2017 with father. 

They smoked three or four times a week. Mother smoked 

marijuana during the early part of her pregnancy with Josiah. 

Her doctor told her to wean herself off of marijuana and 

cigarettes. She participated in a program where she tested 

weekly, and if she tested negative, they would give her baby 

wipes and diapers. Mother participated for about three weeks. 

She then resumed smoking marijuana and drank alcohol one to 

two times per week. After Josiah’s birth, mother stopped using 

for two weeks then started back again. After Joriah was born 

mother stopped smoking for one month then started again. 

Mother smoked daily. She stated: “After the kids were born, I 

smoked weed and drank alcohol, 1 to 2 times every day for 2 

weeks. I smoked weed every day after the birth. I knew the way 

I was acting with a newborn wasn’t right.”

Mother denied smoking or drinking when she was alone 

with the children, but stated that she “had to drink and smoke 

5 The jurisdiction/disposition hearing was continued several 

times due to the pandemic. It did not take place until November 

2020.
7

when I was around [father] because of the yelling.” Mother 

explained that father was “cool” if he had substances; otherwise 

he was “yelling all the time.” Father used money he got from 

panhandling to buy marijuana. When mother was pregnant and 

had nothing to eat father would tell her to go panhandle.

Mother was enrolled in empowerment, domestic violence,

parenting classes and group therapy. Mother was a “no show” for 

a February 6, 2020 drug test, and tested negative on February 13 

and 20, 2020.

As father remained incarcerated he was interviewed at 

Men’s Central Jail. Father said mother “had a little addiction 

problem, but that all stopped when she got pregnant with the 

kids.” Father stated that mother resumed smoking marijuana 

after Joriah was born because she had back pain. Mother 

smoked marijuana about twice a week while outside and 

normally when the children were sleeping.

Mother’s drug tests revealed that she failed to show on 

February 25, March 3, March 13, March 18 and March 24, 2020.

In the DCFS report of July 2020 mother was noted to have 

consistently attended individual counseling weekly. The 

therapist reported that mother had a new boyfriend who was 

supportive of mother and the children. However, mother was not 

consistently drug testing. She had a positive drug test on 

December 10, 2019, two negative test results in February 2020, 

and was a no-show 22 times between January 2, 2020 and 

June 11, 2020. Mother submitted to an on-demand drug test on 

June 17, 2020, which returned positive results for marijuana 

metabolites.
8

Ex parte application pursuant to section 385

On October 6, 2020, DCFS filed an ex parte application 

pursuant to section 385 seeking detention of the children from 

mother following an incident of domestic violence between 

mother and boyfriend. Mother and boyfriend engaged in a verbal 

altercation that escalated to a physical level in which mother and 

boyfriend were choking each other. The children were in a 

different room and did not witness the incident. Boyfriend was 

identified as the “dominant aggressor” and was arrested. It was 

recommended that the children be detained in shelter care.

DCFS filed a detention report the same date. Following the 

incident with boyfriend, mother and the children were staying at 

a friend’s home in Twentynine Palms. Mother had been evicted 

from her previous residence by boyfriend’s former partner, sister, 

and others who boyfriend sent to “jump her.” Mother was left 

without identification, birth certificates, social security card, EBT 

card, clothes, or diapers. Mother knew she was supposed to be 

attending parenting classes, domestic violence counseling, and 

drug testing, but said she was unable to do so due to her life 

circumstances.

Mother had previously admitted her drug use history,

including her use of methamphetamine for one month in 2016. 

She claimed to have stayed sober since then, but admitted to 

smoking marijuana although she did not smoke in front of the 

children and only smoked if someone was there to watch the 

children. She also drank alcohol about twice a month.

A log of phone calls to boyfriend’s place of residence 

revealed that police were called to the home three times between 

July 22 and August 22, 2020. The first incident (July 22, 2020)

identified the suspect as mother, who had assaulted boyfriend. 
9

The second call (August 22, 2020) identified boyfriend as the 

suspect. He had engaged in a physical altercation, punctured 

tires with a knife, and made threats with a knife. The third call 

(also August 22, 2020) identified boyfriend’s sisters as suspects in

a physical altercation.

DCFS social workers reported that mother was not 

compliant with services and had not made her residence 

available for them to assess. Mother was also supposed to inform 

DCFS when she was in Los Angeles County so that the children 

could be seen by social workers. Mother did not comply. Mother 

had been provided with referrals for the Regional Center for the 

children and had not followed through with those referrals or 

with the children’s doctor appointments.

DCFS took the children into protective custody. On 

October 6, 2020, the juvenile court heard the section 385 petition 

and detained the children from mother. The court allowed 

mother to have monitored visits with the children. Neither 

father nor boyfriend could be present. Regional Center referrals 

were ordered for the children.

Last minute information for the court

DCFS filed a last minute information for the court on 

October 23, 2020. Mother had not had any in-person visits with 

the children due to her lack of transportation and work schedule. 

Mother did not have a car and required a friend drive her to an 

upcoming scheduled visit. She spoke to the children by telephone 

two to three times per week. Mother was trying to find a 

domestic violence shelter in Los Angeles County to be closer to 

her children.
10

Mother had identified an agency in Twentynine Palms that 

provided parenting, domestic violence, and drug testing services; 

however, her enrollment was pending.

Adjudication/disposition

The adjudication and disposition hearing took place on 

November 2, 2020. Mother appeared on Webex. Father’s 

whereabouts were unknown.

Mother’s counsel argued that the petition should be 

dismissed as to mother. As to the drug count mother’s counsel 

admitted that mother had “ups and downs” with testing but 

blamed mother’s failures to test partially on the pandemic. 

Mother’s counsel admitted that mother’s positive tests were for 

marijuana but argued “it’s not something that is of a greater 

concern such as methamphetamines or opiates.” Mother’s 

counsel argued that marijuana use without a link to potential 

harm is insufficient grounds for jurisdiction.

Counsel for the children argued that counts b-1, b-2, and 

b-3 should be sustained. Regarding mother’s drug use, children’s 

counsel argued that mother’s testing had been inconsistent, and 

that she should be required to address her substance abuse. 

Children’s counsel pointed out that mother admitted to 

methamphetamine use in the past as well as current marijuana 

use. DCFS submitted without comment upon the court’s 

announcement that it intended to sustain counts b-1, b-2 and b-3.

As to count b-2 (mother’s drug abuse) the court stated, “she 

does have a history of methamphetamine use and use of 

marijuana, and her testing has been inconsistent; so the court 

still believes that there’s no kind of solid track record that the 

mother has addressed this issue as well, and this places the 

children at risk.”
11

The court sustained counts b-1, b-2 and b-3. It declared the 

children dependents of the court, removed custody of the children 

from mother and father, bypassed family reunification services 

for father and ordered reunification services for mother. Mother 

was ordered into a full drug and alcohol program with aftercare, 

weekly random on-demand testing, and a 12-step program with a 

court card and sponsor; a domestic violence support group for 

victims; developmentally appropriate parenting; individual 

counseling addressing case issues including substance abuse and 

the effects on children; and compliance with the protective order.

On November 18, 2020, mother filed her notice of appeal 

from the jurisdictional order and findings.

DISCUSSION

The juvenile court sustained three counts, which formed 

the basis for the decision to assert jurisdiction over the children. 

While mother challenges the sufficiency of the evidence as to the 

allegation that her drug use created a risk of harm to her 

children, she does not challenge the counts alleging that domestic 

violence between the parents created a risk of harm to her 

children or that father’s drug use created as risk of harm to her 

children.

I. Justiciability doctrine

“When a dependency petition alleges multiple grounds for 

its assertion that a minor comes within the dependency court’s 

jurisdiction, a reviewing court can affirm the juvenile court’s 

finding of jurisdiction over the minor if any one of the statutory 

bases for jurisdiction that are enumerated in the petition is 

supported by substantial evidence. In such a case, the reviewing 

court need not consider whether any or all of the other alleged 
12

statutory grounds for jurisdiction are supported by the evidence.” 

(In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Here mother 

does not challenge the allegation that both parents had a history 

of domestic violence that placed the children at risk of harm. Nor 

does she challenge the allegation that father’s drug use placed 

the children at risk of harm. Under the circumstances mother’s 

challenge raises only “‘“abstract or academic questions of law,”’” 

which “will not result in a reversal of the court’s order asserting 

jurisdiction.” (In re I.A. (2011) 201 Cal.App.4th 1484, 1492 (I.A.).)

Thus we may decline to address the evidentiary support for the 

single challenged jurisdictional finding. (In re Briana V. (2015) 

236 Cal.App.4th 297, 308.)

An appellate court may address the merits of a single 

jurisdictional finding against a parent where “the finding (1) 

serves as the basis for dispositional orders that are also 

challenged on appeal [citation]; (2) could be prejudicial to the 

appellant or could potentially impact the current or future 

dependency proceedings [citations]; or (3) ‘could have other 

consequences for [the appellant], beyond jurisdiction’ [citation].” 

(In re Drake M. (2012) 211 Cal.App.4th 754, 762-763 (Drake M.).)

II. Mother’s appeal is nonjusticiable

Mother asks that we exercise our discretion to address the 

merits of her appeal because the sustaining of count b-2 could be 

prejudicial to her in this case or in other future dependency 

proceedings. Mother provides only one vague example of such 

speculative prejudice: that “[a] sustained allegation against 

mother permanently stays on her child welfare record and could 

form the basis of the denial of services in a later case under 

section 361.5, subdivision (b).” Section 361.5, subdivision (b), 

provides 17 specific examples of reasons that a court may refrain 
13

from providing reunification services. Mother does not address 

any of these specific subdivisions nor explain how the court’s 

decision to sustain count b-2 alone could lead to the denial of 

reunification services in the future. Mother’s argument lacks 

sufficient detail and is unconvincing. Mother’s argument is 

insufficient to invoke the exception found in Drake M. to the rule 

that we generally will not address the merits of jurisdictional 

findings that do not affect a child’s status as a dependent of the 

court.

We note that this case is distinguishable from Drake M. 

There the single jurisdictional finding that the father challenged 

involved the father’s use of medical marijuana, was the difference 

between the father being an “offending parent” versus a 

“nonoffending parent.” (Drake M., supra, 211 Cal.App.4th at

p. 763.) The father “possessed a valid recommendation from a 

physician to use marijuana for treatment of his chronic knee 

pain.” (Id. at p. 767.) The Drake M. court noted that in cases 

involving substance abuse, “‘[c]ases finding a substantial physical 

danger [to the child] tend to fall into two factual patterns. One 

group involves an identified, specific hazard in the child’s 

environment—typically an adult with a proven record of 

abusiveness. [Citations.] The second group involves children of 

such tender years that the absence of adequate supervision and 

care poses an inherent risk to their physical health and safety.’” 

(Id. at pp. 766-767.) The Drake M. court held that “in cases 

involving the second group, the finding of substance abuse is 

prima facie evidence of the inability of a parent or guardian to 

provide regular care resulting in a substantial risk of physical 

harm.” (Id. at p. 767.) Although the child involved was only 14 

months old, the Drake M. court determined that the evidence did 
14

not support a determination that the father was a substance 

abuser as required under section 300, subdivision (b). (Drake M.,

at p. 767.)

In this case, as opposed to Drake M., there is not a single 

jurisdictional finding making the difference between mother 

being an “offending” parent or a “nonoffending” parent. Mother’s 

behavior is also implicated in count b-1, which involved the 

parents’ involvement in violent altercations. Specifically, mother 

failed to protect the children in violation of a criminal protective 

order and allowed father to reside in the children’s home with

unlimited access to the children. Mother does not challenge 

jurisdiction under count b-1. Under the circumstances, any 

decision we might render as to count b-2 will not result in a 

reversal of the court’s order asserting jurisdiction. Nor will it 

render mother a “nonoffending” parent.

Further we note that unlike the father in Drake M.,

mother’s drug use was not limited to medical marijuana used 

with a valid doctor recommendation. Instead mother admitted to 

recurrent substance use, even when her children were newborns, 

and admitted that she understood that her excessive use of 

substances with children of such a young age was “not right.” 

Mother does not challenge the facts that form the basis for the 

court’s decision to sustain count b-2. Instead, mother challenges 

the court’s finding that her admitted drug use caused the 

children to be at risk of serious physical harm. A reversal on this 

point will not undo mother’s admissions of serious and consistent 

drug use throughout the period of time when her children were 

“‘of such tender years that the absence of adequate supervision 

and care poses an inherent risk to their physical health and 

safety.’” (Drake M., supra, 211 Cal.App.4th at p. 767.) Such 
15

admissions could potentially be used against her in future 

dependency proceedings regardless of the true finding in count 

b-2.

The cases mother cites in support of her argument that we 

should review her claim on the merits are distinguishable. In In 

re Nathan E. (2021) 61 Cal.App.5th 114, the mother was the sole 

appellant challenging jurisdiction. The mother argued 

insufficiency of the evidence regarding two counts of domestic 

violence between the parents. The Nathan E. court chose to 

exercise its discretion in that case where domestic violence was 

the sole ground for jurisdiction. In contrast in this case the 

jurisdictional finding was based on allegations of domestic 

violence as well as allegations of drug use by both parents. 

Unlike a reversal of the domestic violence allegations in 

Nathan E., a reversal of the finding regarding mother’s drug use 

in this case is futile.

In re D.P. (2014) 225 Cal.App.4th 898 is also 

distinguishable. In that case the mother appealed a 

jurisdictional finding under section 300, subdivision (a), that she 

had intentionally harmed her daughter. Although there were 

other allegations supporting jurisdiction in the matter under 

section 300, subdivision (b), including drug use, the D.P. court 

elected to exercise its discretion to reach the merits of the 

challenge to that single jurisdictional finding under section 300, 

subdivision (a) because “the finding that mother intentionally 

hurt her daughter has the potential to impact future dependency 

proceedings.” (D.P., at p. 902; see In re D.M. (2015) 242 

Cal.App.4th 634, 639 [exercising discretion to review mother’s 

challenge to single jurisdictional finding against her of physical 

abuse of a child where the finding could be prejudicial to mother 
16

and the finding also served as a basis for dispositional orders also 

challenged on appeal].) In contrast as set forth above a reversal 

of the jurisdictional finding that mother’s drug abuse placed her 

children at risk of harm will not change the impact of this case on 

future proceedings. Mother does not challenge the jurisdictional 

finding that she failed to protect her children from the risks of 

domestic violence. Mother also admitted excessive drug use 

when her children were infants. Whether there was evidence 

that such drug use created a risk to her very young children is a 

purely academic question where jurisdiction over the children 

will remain under section 300, subdivision (b) regardless of the 

resolution of that question.

Under the circumstances of this case mother has failed to 

show that her challenge fits into the narrow exception created by 

Drake M. For this reason we decline to exercise our discretion to 

address mother’s appeal and dismiss the matter. (I.A., supra,

201 Cal.App.4th at p. 1495.)

DISPOSITION

The appeal is dismissed.

________________________

CHAVEZ, J.

We concur:

________________________

LUI, P. J.

________________________

HOFFSTADT, J.