Filed 11/19/14 In re E.R. CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

In re E.R., et al.,
Persons Coming Under the Juvenile Court Law. B253814 (Los Angeles County Super. Ct. No. DK01990)

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,

v.
JOSE R.,
Defendant and Appellant.

APPEAL from orders of the Superior Court for Los Angeles County, Julie Fox Blackshaw, Judge. Reversed. Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant. John F. Krattli, County Counsel, Da wyn R. Harrison, Assistant County Counsel, and Stephen D. Watson, Deput y County Counsel, for Plaintiff and Respondent.2 Appellant Jose R. (father) appeal s from the jurisdiction and disposition orders of the juvenile court with respect to his six children. He contends there is insufficient evidence to support the juve nile court’s assumption of jurisdiction over
the children under Welfare and Institutions Code 1 section 300, subdivision (b), or
the court’s removal of the children from his custody and care. We agree, and
reverse the order.

BACKGROUND In October 2013, 2 Father and Veronica M. (mot her), who had been married for 16 years, were living together with their six children, ranging in age from 14 to almost three years old. On or before Oct ober 10, father was inte rviewed as part of an investigation by the Department of Children and Family Services (the Department) regarding his child with anot her woman, Rita S. The interviewer noticed that father had bloodshot eyes and was very thin, and believed that father might be under the influence of drugs. Father agreed to submit to an on-demand drug test. The results showed that fa ther was positive for amphetamines and methamphetamine. Based on the positive test results, a referral was made on October 16, alleging general neglect by father and mother toward their six
children. On October 16, a social worker from the Department made a home visit to
father’s and mother’s home. Although the social work er observed that the home was dingy, she noted that all utilities were in working order, no visible safety hazard was present, and there was no indi cation of drug or alcohol abuse in the

1 Further undesignated statutor y references are to the We lfare and Institutions Code.

2 All references to dates are to the year 2013 unless otherwise indicated.3 home. The social worker privately inte rviewed and/or assesse d each member of the family.
The social worker observed father in teracting with his son, and the son appeared comfortable and atta ched to father. During he r interview with father, she noted that father “appeared jittery and spoke at a rapid speed” at the beginning, but eventually calmed down and was articulate and coherent. She also noted that the whites of his eyes were dark red. When asked about the refe rral allegations, he
said that he had not caused harm to a nyone. He admitted using drugs two days
before he was tested. He told th e social worker that he only uses methamphetamine. He said he started us ing it about two years before, and uses it sporadically. He uses it in private, in the garage, and the children are never present. When asked whether he cons iders his methamphetamine use a problem,
father said he did not because he is able to work and provide for his family. He
told the social worker that he had neve r considered enrolling in a drug treatment program, and did not want to because his family depends on him financially, but he said he was willing to do anything. During the interview with mother, mother told the social wo rker that she was not aware that father used drugs, and ha d never witnessed fath er using drugs or alcohol. She said that father’s rapid speech was common, and that their eldest daughter also has rapid speech. She also told the social worker that father’s bloodshot eyes were due to his construc tion job, because he often gets dust and insulation flakes in his eyes. Mother ag reed to submit to an on-demand drug test; the results were negative for a ll substances, including alcohol.
The social worker interviewed the fi ve oldest children individually, and assessed the youngest, who was too young to be interviewed. The social worker
observed that all of the children were cl ean, neatly groomed, and appropriately
dressed. All were ea sy to engage, and the four olde st were verbally articulate.4 None showed any signs of abuse or neglec t. The three oldest denied knowing of any drug or alcohol use in the home; th e fourth oldest denied seeing anyone smoking anything or excessively drinking beer or alcohol.
Father and mother attended a Team Decision Meeting (TDM) the following day. The social worker told the parents about the dangers of methamphetamine use, and the risks it poses to children in the user’s care. Father admitted that he last used methamphetamine on Oct ober 8, and that he occasi onally smokes marijuana. He agreed to be tested the next day. He also said th at he did not believe his drug use was a problem, and rejected the possibility of participating in an inpatient drug treatment program. He em phasized how much he cares for his children, and said that he was willing to do anything for them so long as he could remain in the
home. Mother told the social worker that she was willing to kick father out of the house if he continued to use drugs, in orde r to protect the children. Father and mother said they both were willing to cooperate with the Department and participate in services. As part of a TD M Safety Action Plan that was formulated at the meeting, father agreed to enro ll in a drug treatment program and to be enrolled in random drug testing; mother agr eed to ask father to leave the home if he tested positive, and father agr eed to comply with that request. The next day, father tested positive for amphetamines and methamphetamine. When the social worker called father to tell him the results of the test a few days later, father denied using drugs since October 8. He said he
would not move out of the house becaus e he had nowhere to go. Father and
mother met with the social worker at the Department’s office the following day.
The social worker told fath er that if he did not voluntarily move out of the house and relinquish custody of the children, th e Department would seek a removal order and detain all of the children from their pa rents’ care. After mother started to cry and told father he had to leave, father agreed to leave his home and gave verbal5 consent for the Department to remove the children from his care and custody. Father also submitted to a random drug te st that day, October 23, and tested negative for all substances. The Department filed a petition a few days later, allegi ng a single count under section 300, subdivision (b). The petiti on alleged that father has a history of
substance abuse and is a current user of methamphetamine and amphetamines, which renders him unable to provide re gular care and supe rvision to his six
children. 3 In the detention report filed for the October 28 detention hearing, the Department reported on the social worker’s interviews of and meetings with the family, and noted that father was empl oyed and was a willin g financial provider for his family. The Department also repor ted that the social worker determined that “[b]ased on [father’s] continued us e of amphetamine and methamphetamine and his failure to acknowledge responsib ility for his actions and possible drug problem, the family can be categorized as having a ‘moderate’ risk for further abuse.” The Department stated that conti nued detention from father is necessary to protect the children because father “admitte d to using meth on a regular basis but does not recognize the risk this presents to his children.” The Department
recommended that the children be left in mother’s care. At the October 28 detention hearing, th e juvenile court asked counsel for the Department to articulate what is the risk to the children caused by father’s presence in the home. Counsel stated, “The risk is that methamphetamine is a dangerous drug. It does have an effect on users. And that the fact that the worker observed him appearing jittery and speaking at a ra pid speed.” The court asked, “But the risk to the children?” Counsel responded, “He was under the infl uence. He’s been

3 The petition also alleged in that count that mo ther knew or reas onably should have known of father’s drug use, and failed to protect the children. The petition later was amended to strike that allegation.6 in the home. He’s a caretak er with the mother. And we believe that that creates risk.” Counsel for the children interject ed, “Your Honor, I believe the risk would be how can he properly care for the childre n while he’s under the influence of such a dangerous substance?” Fa ther’s counsel argued that the Department’s showing of risk was inadequate. The court found a prima facie case th at the children were persons described by section 300, subdivision (b). But the court also found that the Department did

not make reasonable efforts to prevent re moval, and that there are services available to prevent detention. The c ourt ordered the children released to both parents, and ordered the Department to provide family maintenance services, to include continued drug tes ting by father, unannounced home visits, and a drug and alcohol program for father. 4 The court explained that although father admitted using methamphetamine and had positive te sts, there was no evidence that his methamphetamine use “has in any way affected the children. And although methamphetamine is a very serious drug and can lead to very serious addiction and substance abuse, that evidence is not befo re the court today.” The court noted that
it “has decided that there is not a substance abuse problem yet.” Five weeks later, the Department f iled an ex parte application and again sought to detain the child ren from father’s custody. In a report submitted in advance of the second detention hearing on December 5, the De partment reported that father had enrolled in a drug and alcohol program, was attending NA meetings, and was drug testing. He had negative tests on November 13 and November 19. Although the results showed th at the sample was diluted, the testing
collection site confirmed that the results were valid. The soci al worker spoke to

4 We note that the minute order for the October 28 detention hearing incorrectly states that the court found that reasonable efforts were made to prevent the need for removal, and that temporary placement and custody of the childre n rested with the Department.7 father on November 25, and told him that the samples were diluted; the social worker suggested that father limit his liqui d intake before the random testing. On November 26, father tested positive fo r amphetamines and methamphetamine. The Department reported that at a TDM held on December 2, father admitted that he used methamphetamine on November 24. He said that he had gone out and used methamphetamine that day because of stress at home. He stayed out all day, and went straight to bed when he got home that evening; he went to work the next day. He denied using the drug at home or around the children, and said he made a mistake and wanted to con tinue to move forward with
his treatment. He consente d to have his children temporarily removed from his care and custody. Later that day, the so cial worker conducted a home visit, and
confirmed that father had moved out of the house. The detention report noted that the ch ildren and mother stated they were unaware of father’s drug usage, and mo ther reported that she had not observed anything in father’s behavior to indi cate he had used methamphetamine. The report also stated that the Department “h as conducted an assessment and the risk at
this time was found to be moderate as to the children. It is the department’s
assessment that the children . . . are curren tly not safe in the cu stody of father . . . and continued detention is necessary. Ther e is a substantial danger to the physical
health of the children.” At the detention hearing held on De cember 5, the juvenile court found a prima facie case for detaining the childre n, and found that the Department made reasonable efforts to prevent removal of the children from father’s custody. The court ordered temporary placement and care of the children to be vested with the Department, and ordered the children to be released to mother pending a further
court order.8 The Department filed a jurisdiction/di sposition report on the same day as the December 5 detention hearing. The Depa rtment reported that the children were
interviewed on November 25. Each of the f our oldest children said that she or he had never seen father use drugs, and ha d never seen him act in any manner to suggest that he was using drug s. The Department also reported that father said in
an interview on November 25 that he di d not use methamphetamine on a regular basis, but that he had used it on a nd off over the past two years. The jurisdiction/disposition hearing wa s held on January 6, 2014. The only evidence presented was the October 28 de tention report, the December 5 second detention report, and the jurisdiction/ disposition report. Counsel for the Department asked the juvenile court to sustain the petition. Father’s counsel argued that although the Department showed some drug use by father, it did not show “substance abuse,” and it failed to present any ev idence connecting father’s drug use to harm to the children. Theref ore, counsel argued, the Department failed
to meet its burden to estab lish dependency jurisdiction. When asked by the court to point to evidence of substance abuse and the
correlation between father’s dr ug use and risk of harm to the children, counsel for the Department pointed to father’s ad mission that he used methamphetamine on November 24 because of stress at home, which counsel argued connects his drug
use to the risk to the children. Counsel also stated that “the Department believes that methamphetamine use, pe r se, is dangerous and create s a risk to anyone who’s around, including the children.” Finally, couns el argued that the fact that father used methamphetamine after the court cau tioned him not to demonstrates that he has an addiction, which crea tes risk to the children.
The court noted that when the case was first before it (at the initial detention hearing), “the court did not believe there was a sustainable count.” But the court pointed out that father had promised that he would stop his drug use, because he9 wanted to be with his family and his fa mily needed him, but he did not stop and tested positive for methamphetamine on Nove mber 26. The court found that the fact that father made promises he could not keep meant that his drug addiction was such that he could not live up to his own intentions, which the court found qualified as abuse or addition. The court also noted that the fact that he used methamphetamine to get away from stress at home has an impact on the children because, if he is leaving home to take drugs, he is not at home to help the children. For that reason, the court found there wa s a risk to the children, and found by a preponderance of evidence that the amended count alleged in the petition was true. Moving on to disposition, the juven ile court found by cl ear and convincing
evidence that there was a s ubstantial danger to the physical health, safety, or physical or emotional health of the childre n if they were returned to father’s custody, and there are no reasonable means to protect them without removing them from father’s custody. The court ordere d the children to be placed in home of parent-mother, with fam ily maintenance services. Father was ordered to participate in a drug and alcohol program with aftercare, random and on-demand testing, and parenting classe s. The court ordered mon itored visitation for father, outside the home, although the visits w ould be unmonitored after six consecutive clean drug tests. Father timely filed a notice of app eal from the jurisdiction and disposition
orders.

DISCUSSION On appeal, father contends the juve nile court erred in finding jurisdiction
over the children because the Department failed to present evidence sufficient to show that father’s drug use caused physical harm, or presented a substantial risk of physical harm, to the children. We agree.10 Section 300 provides, in relevant part, that a child is within the jurisdiction of the juvenile court if “[t] he child has suffered, or ther e 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 . . . substance abuse.” (§ 300, subd. (b).) The purpose of section 300 is “to limit cour t intervention to situations in which children are threatened with serious physical or emotional harm” as a result of their parents’ conduct. ( In re Marilyn H. (1993) 5 Cal.4th 295, 303.) To establish jurisdiction under section 300, subdivision (b), the Department must show specifically how the child has been or will be harmed by a parent’s conduct. ( In re
Matthew S. (1996) 41 Cal.App.4th 1311, 1318.) Jurisdictional findings of the juvenile court are reviewed on appeal under the
substantial evidence standard of revie w. We “review the record to determine whether there is any substantial eviden ce to support the juvenile court’s conclusions, and we resolv e all conflicts and make a ll reasonable inferences from the evidence to uphold the court’s orders, if possible. [Cit ation.] ‘However, substantial evidence is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of ev idence need not be a ffirmed on appeal. [Citation.] Furthermore, “[w]hile substa ntial evidence may cons ist of inferences, such inferences must be ‘a product of logic and reason’ and ‘must rest on the evidence’ [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].” [Citation.] “The ultimate test is
whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.” [Cita tion.]’ [Citation.]” ( In re David M. (2005) 134 Cal.App.4th 822, 828.)11 In this case, as noted, the juvenile court concluded the children were within the jurisdiction of the dependency court because father’s inability to keep his promise to stop his drug use qualified as s ubstance abuse or addiction, and his use of methamphetamine to get away from st ress at home made him unavailable to help care for the children, which presented a risk to the children. Father does not dispute that he used methamphetamine on November 24, and that he stayed away from home on that day, but he argues ther e is nothing in the record showing that
this conduct caused serious physical harm to the children or posed a risk of physical harm. Instead, he points out that the evidence in the reco rd shows that the children were in good health and showed no signs of trauma or physical abuse. The Department contends “there wa s no need to identify any ‘specific,
defined harm or risk of harm’ to the ch ildren in order to support jurisdiction,” because it presented eviden ce that father was a longtime drug abuser with drug related convictions dating back to 1992, and becaus e methamphetamine “is an illegal, dangerous drug, the effects of which are inconsistent with adequate parenting.” There are two problems w ith the Department’s contention. First, in asserting that father wa s a longtime drug abuser, the Department relies upon what is purported to be CLETS results for father, which the Department attached to the December 5 de tention report. In fact, those CLETS results (which were not based upon fingerpri nts) actually were two sets of results for two different people. The first set is fo r a man who is five feet, nine inches tall, weighing 160 pounds, with hazel eyes and bl ack hair. That man has the same date of birth as father, and the names listed are all variations of father’s name. It lists an arrest in 2003 for a hit and run with pr operty damage, deportation proceedings in 2003, and a 2012 conviction for possession of a controlled substance. The second
set of results is for a man who is six feet, two inches tall, weighing 225 pounds, with brown eyes and black hair. The ma n has a different date of birth, and12 numerous aliases, only one of which is simi lar to father’s name. It lists numerous arrests and/or convictions for transporti ng and/or selling na rcotics/controlled substances from 1992 to 1996. Clearly, th e second set of results is for someone
other than father. Second, section 300, subdivision (b) requires some showing of risk of physical harm. ( In re Rebecca C. (2014) 228 Cal.App.4th 720, 727.) The fact that father’s sporadic drug use may not make him an ideal parent does not mean his
children are at risk of physical harm. As our colleagues in Division 8 of this District recently observed in respons e to a similar argument made by the Department, the argument “excises out of the dependency statutes the elements of causation and harm. In other words, [t he Department] esse ntially argues that, when a parent engages in substance abuse, dependency court juri sdiction is proper. This is not what the dependency law provi des. Further, if [the Department’s] position were accepted, it woul d essentially mean that physical harm to a child is presumed from a parent’s substance abuse unde r the dependency statutes, and that it is a parent’s burden to prove a negative, i.e., the absence of harm. Again, this is not what the dependency law provides.” ( Id. at p. 728; see also In re Destiny S. (2012) 210 Cal.App.4th 999 [mother’s use of drugs, including methamphetamine is insufficient to uphold jurisd iction finding without evidence th at child was at risk of suffering physical harm as the result of mother’s drug use].)
Because there is insuffici ent evidence to show that father’s drug use caused, or presents a substantial risk that it will cause, physical harm to his children, there is no basis for dependency jurisdiction.13 DISPOSITION The jurisdictional order is revers ed and all subsequent orders are
vacated as moot.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

COLLINS, J.