Filed 7/1/21 In re A.C. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re A.C. et al., Persons

Coming Under the Juvenile 

Court Law.

 B308315

 (Los Angeles County

Super. Ct. Nos.

20CCJP01814, 

 20CCJP01814 A-B)

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

A.C., 

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles 

County, Victor G. Viramontes, Judge. Reversed.

Paul A. Swiller, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Office of the County Counsel, Rodrigo A. Castro-Silva, 

County Counsel, Kim Nemoy, Assistant County Counsel, 
2

Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and 

Respondent.

INTRODUCTION

The juvenile court exercised jurisdiction over mother A.C.’s 

two children, 13-year-old A. and nine-year-old K., finding that 

mother had a substance abuse problem that placed the children 

at risk of harm. (Welf. & Inst. Code, § 300, subd. (b)(1).1) This 

finding was based on mother’s admission of occasional drug use 

at the initiation of the case, and several missed drug tests 

thereafter. There was no evidence that mother was ever with her 

children while under the influence of drugs, or that her drug use 

affected her ability to care for the children. No evidence 

suggested that mother’s drug use posed a risk that the children 

would suffer serious physical harm. The evidence was therefore 

insufficient to support the juvenile court’s jurisdiction order, and 

we reverse. Because we reverse the jurisdiction order, we do not 

reach mother’s contentions regarding the disposition order. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Non-detention

Thirteen-year-old A. and nine-year-old K. came to the 

attention of the Los Angeles County Department of Children and 

Family Services (DCFS) on January 27, 2020 after a report to the 

child protective hotline stated that mother had been hospitalized 

“due to chest pressure and shortness of breath with 

polysubstance abuse.” The report said that mother tested 

positive for methamphetamine upon admission, and mother 

admitted that she used methamphetamine recreationally once or 

1All further statutory references are to the Welfare and 

Institutions Code. 
3

twice a month. Mother also stated that she uses marijuana to 

help her sleep. Mother stated that nine-year-old K. lived with 

her, and 13-year-old A. lived with father. The report stated that 

mother “never uses in the presence of the child,” but that “she 

uses on occasion when she goes out with friends” and “the child” 

is with father or maternal grandmother. The doctor spoke with 

mother about the negative effects of drugs on her health, and 

mother “indicated she no longer plans to use meth when she is 

released from the hospital.” The reporter did not know the 

gender of the nine-year-old or the names of the children. 

A children’s social worker (CSW) went to mother’s home on 

January 30, 2020. The studio apartment was maternal 

grandmother’s home; mother and K. were staying there 

temporarily. The CSW noted that the apartment was “a bit 

cluttered but all utilities were in working order and no safety 

concerns were noted.” Mother told the CSW that she had been

hospitalized due to congestive heart failure and fluid buildup. 

Mother admitted that she used methamphetamine “three times 

in the past year via snorting ‘a little line,’ with the last time 

being around 3 weeks ago. Mother stated that she did not use 

any illicit drugs for 7 years prior to this past year, but did not go 

into further detail.” The detention report further stated, “Mother 

clarified that she never uses around her children and that it was 

only when she went out (out of town specifically) with friends 

while maternal grandmother or the father was taking care of the 

children.” Mother also stated that she used to smoke marijuana 

to help her sleep, but “she was quitting smoking cigarettes, 

including marijuana.” She agreed to submit to drug testing for 

DCFS. Mother stated that she and father were in the process of 

divorcing, and father had been diagnosed with cancer. 
4

The CSW spoke with K., who stated that she lives with 

mother and A. lives with father; K. visited father almost every 

weekend. K. denied any abuse or violence in mother’s home, 

denied any drug use in the home, and was aware that her mother 

was recently hospitalized for “something in her heart . . . fluid in 

her lungs.” K. said that sometimes mother’s boyfriend, Sam, 

visits, and she described him as “good” and “nice.” K. also said 

she was doing well in school and got As and Bs on her last report 

card. 

Maternal grandmother reported that mother had been 

having heart problems, and mother had recently been in a car 

accident in which all the airbags deployed. Maternal 

grandmother cared for K. while mother was in the hospital. 

Maternal grandmother said mother was a very good mother who 

took care of her children, and she had no concerns about mother’s 

boyfriend, Sam. She also said there was a family history of heart 

problems, and her middle daughter had been hospitalized for 

such issues two weeks earlier. 

Mother’s drug test on February 4, 2020 was positive for 

marijuana metabolites. From February 4 to February 21, 2020, 

the CSW had trouble contacting both mother and father, due to 

mother’s phone not accepting calls or voicemails, and the CSW 

not having current contact information for father. On February 

21, the CSW reached father and made arrangements to meet him 

and A. 

The CSW met father and A. at father’s home on February 

24, 2020. The home was appropriately furnished with no noted 

safety hazards. A. said he was doing well in school, getting Bs 

and Cs in his classes, and doing martial arts after school. K. 

visited father’s home every other weekend, and A. visited 
5

mother’s home less often because mother did not have as much 

space. A. denied any knowledge of drug use by mother or father, 

and stated that mother does not drink alcohol. A. denied any 

physical or sexual abuse, and reported feeling safe with both 

parents. 

Father told the CSW that he was seeking full custody, but 

he had no concerns about mother’s care of the children. Father 

later clarified that his request for “full custody” was not intended 

to “take mother’s rights away,” but to have K. live with him and 

A. The detention report stated, “Father stated that mother and 

the grandmother love the children very much and that he is 

certain they would do everything they can to protect them and 

make sure they’re safe.” Father said he had been in remission 

from cancer, but he learned recently that it had returned. Father 

was unaware of any drug use by mother. 

On February 24, 2020, the CSW spoke with mother again. 

Mother stated that she had been sick with the flu and her phone 

has been turned off “due to being unable to pay for service.” The 

CSW asked mother to drug test again, but mother asked why she 

needed to continue testing, and noted that she did not have a car 

due to the recent car accident. The detention report stated, 

“Mother appeared to become a little defensive about the 

allegations and asked about the allegations again. Mother stated 

that she is a good mom and that the kids are well taken care of. 

Mother stated that she is struggling to make ends meet right now 

but can’t comprehend why there is a concern for the welfare of 

her children.” The CSW discussed the hotline referral and stated 

that DCFS takes allegations regarding methamphetamine 

seriously, and mother agreed that it is a “hard drug.” 
6

Mother agreed to drug test the following day. When she 

went to the testing center, she discovered that she did not have 

her identification with her, and the center refused to allow her to 

test. The center gave mother documentation showing that she 

had been at the center. 

The CSW met with mother and K. again at their home on 

February 26, 2020. K. said she recently visited father, and she 

was recovering from the flu and an allergic reaction to food. 

According to the detention report, K. “did not report any worries 

at this time.” Mother reported that she had been a delivery 

driver when she was in the car accident, and she was upset that 

without a car, she could no longer work. Mother told the CSW 

she was not using any drugs. 

The CSW asked mother if she would agree to enter a drug 

program. Mother “appeared to get emotional” and said that her 

earlier “mistake” occurred while her children were not under her 

care. Mother asked who made allegations that the children were 

at risk, and the CSW told mother that the identity of the reporter 

was confidential. The CSW told mother that DCFS planned to 

seek jurisdiction in juvenile court, and told mother to be honest 

about her drug use. Mother estimated that she had used 

methamphetamine “maybe twice? In the past year?” Mother also 

told the CSW that she had been a patient of a methadone clinic 

three years earlier after becoming dependent on prescription 

medication following “a terrible accident.” Mother said her 

treatment lasted about a year. Mother agreed to participate in 

programs for DCFS because “her children are everything to her 

and she will do whatever she needs to do.” Mother provided the 

CSW with her email address and maternal grandmother’s phone 
7

number to provide alternate means of contacting her in case her 

phone was disconnected again. 

K.’s school reported to DCFS that K. did not have any 

academic or behavior problems. However, K. “has attendance 

issues as she has 45 tardies and 17 days of absences.” The 

principal did not have any concerns regarding abuse or neglect. 

A. did not have attendance issues, but he did have academic and 

behavior problems. His report card showed grades of B and D, 

and he had been disciplined for possession of marijuana and 

attempting to cause physical injury. Information from both 

schools is written in the detention report; no documents from 

either school are included in the record.

The CSW visited the children at father’s home on March 

19, 2020, and noted no concerns. A. said he had been doing his 

schoolwork and completing online lessons from home.2 K. said 

that she had been completing workbook lessons, and that her 

school had some online lessons that were not mandatory. Father 

stated that after “some soul searching,” he had decided that he 

wanted joint physical custody of the children. Father reported no 

concerns about mother. 

The CSW noted multiple instances in which she attempted 

unsuccessfully to reach mother and father. The CSW went to 

mother’s home on March 26 and found mother and both children 

there. The children “cheerfully greeted” the CSW. The CSW told 

mother it was important to remain in touch, and gave her 

information about free or discounted phones. Mother said she 

would look into it. 

2We note that around this time, schools were limiting or 

halting in-person classes due to the Covid-19 pandemic.
8

The CSW told mother that DCFS would not recommend 

that the children be detained, but would seek family maintenance 

services “to ensure that mother maintains her sobriety and 

follows through with services.” Mother responded that she did 

not understand why court supervision was required when the 

children were not experiencing any problems. The CSW 

“reminded mother again about the risks of mother’s substance 

abuse and history.” 

The detention report noted that the family had no DCFS 

history and mother had no criminal background. DCFS stated 

that “the child is at risk of abuse and/or neglect by the mother,” 

because “the Department has concerns regarding mother testing 

positive for methamphetamines at admission” to the hospital. It 

further stated, “Mother disclosed to hospital staff using 

methamphetamines approximately 1 to 2 times per month, but 

minimized her use to CSW upon questioning.” DCFS also noted 

mother’s past prescription drug dependency. DCFS requested 

family maintenance services “to prevent the need for removal 

from mother and mitigate the risk to the children.” 

On March 30, 2020, DCFS filed a juvenile dependency 

petition under section 300, subdivision (b)(1). The single count 

alleged that mother “has a history of substance abuse including 

prescription medication and is a current abuser of 

methamphetamine and marijuana which renders the mother 

incapable of providing regular care for the children. On prior 

occasions, the mother was under the influence of marijuana while 

the children were in mother [sic] care and supervision. On 

02/04/2020, the mother had a positive toxicology screen for 

marijuana. The mother’s substance abuse endangers the 

children’s physical health and safety, and places the children at 
9

risk of serious physical harm and damage.” DCFS asked that the 

children remain non-detained in the home of parents, and that 

mother be ordered to complete a substance abuse rehabilitation 

program with random drug and alcohol screening, individual 

counseling, a psychological evaluation, and parenting education. 

DCFS also recommended individual counseling and parenting 

education for father, and individual counseling for the children. 

At the detention hearing on April 2, 2020, mother, through 

counsel, denied the allegations. The court found that a prima 

facie showing had been made that the children were persons 

described by section 300. The court ordered that DCFS “make[ ] 

testing available to mother,” and the children would remain 

released to parents as long as mother had “no unexcused missed 

tests and no dirty tests.” The court stated that “a low level of 

marijuana consistent with medicinal use” would be acceptable. 

B. Detention 

A detention report dated July 10, 2020 stated that DCFS 

“has concerns for the safety of the child [sic] in the home of 

mother . . . due to mother’s ongoing failure to submit to drug and 

alcohol testing. [Mother] failed to provide a specimen on the 

following dates: 2/25/2020, 5/26/2020, 6/1/2020, 6/18/2020, 

6/19/2020, and on 6/25/2020.” Another portion of the detention 

report noted that mother’s drug test on May 13 was positive for 

marijuana. The CSW stated that she unsuccessfully tried to 

contact mother on April 21; May 4, 5, and 8; and June 19, 22, 23, 

24, and 25. The CSW scheduled a visit with mother for May 18, 

and mother rescheduled twice to May 20. Information about a 

home visit with mother on May 20 (or any other date) is not 

included in the detention report. A separate entry stated that 
10

mother “does not make herself available for home visits to meet 

with” the CSW. 

The CSW called father on April 21, 2020. Father stated 

that he had just dropped the children off with mother that 

morning. Father “stated that he has hired an attorney and that 

he is concerned about the children’s well-being now that he has 

found out about mother’s drug use. Per [father], he was unaware 

that the mother was using drugs and stated, ‘She never gave me 

any indications that she was a user.’” In a text message on May

4, father told the CSW that he was concerned about the children’s 

safety “now that he’s found out about ‘mother’s drug use,’” which 

he said he “‘found out by reading the court report.’” 

The CSW met with father and the children at father’s home 

on June 25, 2020. Father stated that he had hired a private 

attorney and was seeking full custody of the children in the 

divorce. Father stated that mother “makes no efforts to better 

her life in anyway [sic], no NA, no AA, dependency programs, not 

looking for employment when there are 1000 of [sic] opportunities 

out there. [Father] stated that [mother’s] stability is non-existent 

and [father] does not feel comfortable anymore [sic] with the 

environment that the kids live in with [mother].” Father’s 

treatment for cancer was continuing. 

The CSW spoke with A., who stated that he recently 

returned from a week at mother’s house. A. said that mother was 

“pretty cool,” and he had no worries about her. A. said that 

mother had texted him the day before. K. stated that their week 

with mother was good, but she was upset with mother “for lying 

about braking [sic] up with Sam, when in reality they are still 

together.” K. said that mother had not responded to her calls 

since June 20. K. said she did not have any concerns about 
11

mother, except that she wanted mother to answer her calls and 

not lie about Sam. 

DCFS stated in the detention report that one of its concerns 

was that “Mother has not made herself readily available to DCFS 

during the initial investigation and since the Detention hearing.” 

The detention report also stated, “Since COVID-19 and online 

learning was initiated on March 13, 2020, [K.’s] school has not 

been able to reach [K.] or her family. The school reported making 

multiple attempts to reach the family and sent her name to the 

Pupil Services office who was unable to make contact. The school 

reported that phone numbers they have for the family do not 

work and they believe that the family has challenges, (i.e. 

parents are ill, father has cancer and mother may have medical 

issues).” The date DCFS received this information is not stated, 

no school records are included with the report, and the report 

does not indicate that the CSW asked K. or any other family 

members about school attendance. 

The detention report stated that when the CSW served 

mother with “the warrant,” mother said she did not understand 

because the children were fine and had everything they need. 

Mother said there was a lot going on with the pandemic, she lost 

a close friend, the family business had been lost, her family was 

in the process of moving, and her family was facing financial 

hardships. DCFS stated that mother “minimizes her substance 

abuse and despite a large support network, she keeps her use 

hidden from the rest of the family under the guise of medical 

conditions and thus has no external accountability. Mother has 

not made herself consistently available to the department for 

testing, and as such it was determined that court orders are 

needed to ensure the safety and wellbeing of the children.” 
12

On July 14, 2020, DCFS filed an ex parte application under 

section 385, seeking to detain the children from mother and 

release them to father. DCFS stated that it was concerned about 

mother’s many missed drug tests. Mother told the CSW that she 

forgets to call the testing site daily due to her long working 

hours, losing the family business, and looking for a place to live. 

Mother agreed to test on June 18, but when she went to the 

testing site she found that it was closed. In fact, the test was 

scheduled for June 19. Mother did not return to the testing site 

the following day. The application repeated much of the 

information from the July 10, 2020 detention report. 

At the hearing on the section 385 petition on July 14, 2020, 

counsel for the children requested a self-executing order releasing 

the children to mother after four consecutive acceptable drug 

tests. Counsel for the children noted that “no one has alleged any 

unsafe behaviors” by mother, there was “a lot of family support,” 

and the children wanted to continue spending time with mother. 

Mother’s counsel asked that the children be released to mother. 

Mother’s counsel also noted that mother tested negative on June 

30, and explained that the CSW’s difficulties reaching mother 

arose from mother traveling to a friend’s funeral and mother’s 

lack of a working phone. Mother’s counsel also noted the lack of 

any allegations of unsafe behavior involving the children. 

Father’s counsel stated that father was “concerned that the 

children are being upended by mother’s behavior, ongoing use of 

substances.” 

Counsel for DCFS argued that the court already 

conditionally released the children to mother, and “the court was 

very clear in April that mother was not to have any missed tests.” 

Counsel for DCFS also argued that mother made no efforts to 
13

contact the CSW, and questioned whether mother would continue 

to follow court orders. DCFS therefore requested that the court 

not implement a self-executing order based on four clean tests. 

The juvenile court detained the children from mother and 

released them to father. The court also issued “a self-executing 

order that if the mother tests clean for all substances other than 

marijuana, then the detention is – would be removed and the 

children would be released back to the care of the mother.” 

Mother stated that she understood, and her previous missed tests 

and lack of communication “wasn’t intentional.” She said she 

had “never been through anything remotely close to this,” did not 

know she was supposed to stay in touch with the social worker, 

and would do “whatever necessary. . . for my kids.” The court 

stated that having the children continue to reside in mother’s 

home was contrary to the children’s welfare. The court ordered 

unmonitored visitation for mother within maternal 

grandmother’s home, and monitored visitation elsewhere. 

C. Jurisdiction

A jurisdiction/disposition report filed September 10, 2020 

(erroneously dated May 18, 2020) stated that the children 

remained with father. After the July 14 hearing, mother had 

negative drug tests on July 30, August 3, August 19, and August 

24. Mother had no-show tests on July 15, July 20 and August 11. 

On July 24, the CSW spoke with mother about the missed 

test on July 20. Mother stated, “That was Monday when we 

spoke. Ughhhhh. Ok, so I completely understand now what 

need[s] to be done on my end.” Mother said it would not happen 

again, and told the CSW that she was making arrangements to 

leave work to drug test as needed. On August 12, mother called 

the CSW and stated that the day before, August 11, she arrived 
14

at the testing site before it closed, but they would not allow her to 

test because “she did not make the testing cut off.” Mother asked 

if she could test “on demand” that day, but the supervising CSW 

“stated that [mother] will not be testing on demand due to 

already being informed of the importance of arriving to the 

testing site early rather than near closing time.” The CSW told 

mother on August 20 that because she missed the test on August 

11, she must complete four more consecutive clean tests before 

the children could be released to her. Mother later stated at the 

jurisdiction hearing that she believed the August 11 no-show had 

been excused. Mother had not yet enrolled in any counseling 

services (which had not been ordered by the court), and DCFS 

stated that mother “still has not enrolled in any DCFS 

recommended programs.” 

When interviewed on July 20, 2020, K. said that everything 

was going “okay” and she was waiting to find out what mother’s 

regular visitation days and times would be. K. said that mother 

was communicating with her. A. reported that things were okay, 

but he was reluctant to speak with the CSW. Father repeated his 

concerns that mother was not enrolled in a drug program and 

was not making efforts to improve her life or look for work. In 

another interview on August 27, father told a dependency 

investigator that he was not happy with how DCFS handled the 

case. The report did not elaborate about father’s concerns. On 

August 25, 2020, the director of the family preservation services 

program informed the CSW that she was terminating family 

preservation services because despite “many attempts to 

complete and/or schedule meetings with the father,” no intake 

had ever been completed. The dependency investigator noted 
15

difficulty in reaching mother, father, and K. on their respective 

phones. 

DCFS stated that its concerns regarding the family 

included that mother “is a current abuser of methamphetamines 

and marijuana,” and she “has not been participating in random 

drug/alcohol testing on a consistent basis.” It noted concerns 

about K.’s lack of attendance at school, but referenced 

information from the previous school year, and did not include 

any information about the school year currently in progress. It 

also stated concern that “mother and maternal grandmother 

reside together and maternal grandmother denied knowledge of 

mother’s substance abuse issues.” DCFS recommended that the 

court sustain the petition, order that the children remain 

detained from mother, order monitored visitation for mother, and 

provide family maintenance services for father. 

A last-minute report dated October 21, 2020 stated that 

mother had no-show drug tests on September 16, 24, and 30. 

Mother had not yet enrolled in any DCFS-recommended 

programs. Father expressed concerns that mother was not being 

“held accountable” and that DCFS was not doing enough to 

monitor mother’s sobriety. DCFS stated that “Mother lacks 

insight into how her ongoing substance abuse issues negligently 

impact her children’s physical and emotional health and safety.

The children want a relationship with their mother, but due to 

mother’s ongoing substance abuse issues, it is not safe for the 

children to have unsupervised contact with their mother.” DCFS 

stated that father has provided a safe home for the children, and 

recommended that the petition be sustained, and jurisdiction 

terminated with a family law order awarding father sole legal 

and physical custody. 
16

At the jurisdiction and disposition hearing on October 21, 

2020, the court received the DCFS reports as evidence; no 

witnesses testified. The children’s counsel asked that the 

petition be dismissed, because DCFS failed to meet its burden to 

show that there was a nexus between any drug use and a risk of 

harm to the children. The children’s counsel also noted that 

school absences did not constitute a risk of serious physical harm. 

Mother’s counsel joined the children’s argument. Mother’s 

counsel also pointed out that although K. had some attendance 

issues at school, she was doing well academically, and school 

absences were not a sufficient legal basis for jurisdiction. 

Mother’s counsel stated that mother had no tests showing 

methamphetamine use after her hospitalization. She explained 

that mother had misunderstood the court’s July 14 order 

regarding four consecutive clean drug tests. Mother believed that 

she had five acceptable tests—July 30, August 3, August 19, and 

August 24, plus what she believed was an excused test on August 

11. She believed she had satisfied the court’s requirements, and 

did not know she was supposed to continue testing after those 

clean tests, resulting in the additional missed tests in September. 

Father’s counsel asked that the petition be sustained, 

asserting that “but for father being around and being present and 

being cooperative, these children would still be in foster care 

[sic].” Father’s counsel also stated that the “lack of schooling” 

was a risk factor. 

Counsel for DCFS also argued that the petition should be 

sustained, asserting that methamphetamine use was “inherently 

dangerous” because “[t]here are all kinds of problems that come 

along with that kind of abuse.” Counsel for DCFS argued that 

the court was clear that mother needed four clean drug tests, 
17

“Yet she couldn’t manage to pull off four clean tests,” which 

“really suggests that somebody has a serious problem.” In 

addition, counsel for DCFS asserted that K.’s attendance issues 

“definitely points toward a problem with drug use.” 

The court found that DCFS met its burden, and the 

children were persons described by section 300, subdivision (b). 

The court noted that “there is a history of substance abuse that 

remains ongoing,” stating that it was “placing weight on the 

statements that the mother made when she was in the hospital” 

when she “admitted to continuing methamphetamine use.” The 

court also noted that mother tested positive for marijuana. Along 

with the missed tests, the evidence was “sufficient for the court to 

conclude that the mother still has a substance abuse problem.” 

Although mother said she did not use drugs while with the 

children, “there’s this problem that the kids were missing school. 

And so it looks like the mother’s substance abuse problems were 

affecting her ability to parent.” 

Turning to disposition, the children’s counsel stated, “I’m of 

the opinion that there’s no risk in this case,” and asked the court 

to terminate jurisdiction with an order for joint custody. The 

children’s counsel noted that mother and maternal grandmother 

recently bought a home together, having maternal grandmother 

in the home provided an adequate safety plan for the children, 

and both A. and K. “expressed they wanted as much access to 

both of their parents as possible.” The children’s counsel stated 

that the “eventual priority” for both children was “to have joint 

custody with both of their parents.” 

Father asked that mother’s visitation with the children be 

monitored because “he’s not confident that she’s sober at this 

point.” Father asked that someone other than maternal 
18

grandmother monitor the visits, because “maternal grandmother 

has not shown any indication that she knows when the mother is 

under the influence of drugs.” 

Mother’s counsel also asked that the court terminate 

jurisdiction with joint physical and legal custody. Mother’s 

counsel noted that maternal grandmother did not recognize 

mother’s drug use because mother only used substances when 

outside of the home and away from the family. 

Counsel for DCFS argued that mother had not been 

following court orders throughout the duration of the case, and 

giving mother overnight visits would be “too soon, considering her

lack of any kind of compliance.” 

The court kept the case open, and found by clear and 

convincing evidence that there would be a substantial danger to 

the children if not removed from mother’s custody “based on what 

I’ve determined to be ongoing substance abuse problems.” The 

court granted mother weekly overnight visitation “on the 

condition that the mother live with the maternal grandmother,” 

and ordered additional unmonitored visitation. Mother timely 

appealed. 

DISCUSSION

Mother asserts that the court’s jurisdiction and disposition 

findings were not supported by substantial evidence. She 

contends there was insufficient evidence of substance abuse or 

any substantial risk of serious physical harm to the children. 

She also asserts that the court’s disposition order was not 

supported by the evidence. We agree that the court’s jurisdiction 

finding was not supported by substantial evidence, and therefore 

do not address her contentions regarding disposition. 
19

“Section 300, subdivision (b)(1), authorizes a juvenile court 

to exercise dependency jurisdiction over a child if the ‘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 . . . to adequately supervise or 

protect the child, or . . . by the inability of the parent . . . to 

provide regular care for the child due to the parent’s . . . mental 

illness, developmental disability, or substance abuse.’ (§ 300, 

subd. (b)(1).)” (In re L.W. (2019) 32 Cal.App.5th 840, 848.) “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.” (Ibid.)

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

supporting the jurisdictional findings and disposition, we 

determine if substantial evidence, contradicted or uncontradicted, 

supports them.’” (In re I.J. (2013) 56 Cal.4th 766, 773.) Evidence 

is substantial if it is reasonable, credible and of solid value. (In re 

T.V. (2013) 217 Cal.App.4th 126, 133.) “We do not pass on the 

credibility of witnesses, attempt to resolve conflicts in the 

evidence or weigh the evidence. Instead, we draw all reasonable 

inferences in support of the findings, view the record favorably to 

the juvenile court's order, and affirm the order even if other 

evidence supports a contrary finding.” (Ibid.)

California Courts of Appeal have made clear for more than 

a decade that a parent’s drug use, without more, cannot support a 

finding of juvenile court jurisdiction. (See, e.g., In re Alexis E. 

(2009) 171 Cal.App.4th 438, 453 [“use of medical marijuana, 
20

without more, cannot support a jurisdiction finding that such use 

brings the minors within the jurisdiction of the dependency 

court”]; In re Drake M. (2012) 211 Cal.App.4th 754, 764 [“without 

more, the mere usage of drugs by a parent is not a sufficient basis 

on which dependency jurisdiction can be found’]; In re Destiny S. 

(2012) 210 Cal.App.4th 999, 1003 [“It is undisputed that a 

parent’s use of marijuana ‘without more,’ does not bring a minor 

within the jurisdiction of the dependency court. [Citation.] The 

same is true with respect to the use of hard drugs.”]; In re L.W., 

supra, 32 Cal.App.5th at p. 849 [“drug use or substance abuse, 

without more, is an insufficient ground to assert jurisdiction in 

dependency proceedings under section 300”]; In re L.C. (2019) 38 

Cal.App.5th 646, 654 [a father’s “‘use of methamphetamine, 

without more, cannot’ support jurisdiction”]; In re Alexzander C. 

(2017) 18 Cal.App.5th 438, 451 [“Father’s use of 

methamphetamine, without more, cannot bring the children 

within the jurisdiction of the dependency court”], disapproved of 

on another basis by Conservatorship of O.B. (2020) 9 Cal.5th 989, 

1003, fn. 7.)

“The law is clear that jurisdiction must be based on 

substance abuse; mere substance use is not sufficient for 

jurisdiction.” (In re J.A. (2020) 47 Cal.App.5th 1036, 1046.) 

Substance abuse involves a “‘maladaptive pattern’” of behavior 

manifested by “‘(1) recurrent substance use resulting in a failure 

to fulfill major role obligations at work, school, or home (e.g., 

repeated absences or poor work performance related to substance 

use; substance-related absences, suspensions, or expulsions from 

school; neglect of children or household)[; ¶] (2) recurrent 

substance use in situations in which it is physically hazardous 

(e.g., driving an automobile or operating a machine when 
21

impaired by substance use)[; ¶] (3) recurrent substance-related 

legal problems (e.g., arrests for substance-related disorderly 

conduct)[; and ¶] (4) continued substance use despite having 

persistent or recurrent social or interpersonal problems caused or 

exacerbated by the effects of the substance (e.g., arguments with 

spouse about consequences of intoxication, physical fights).’ 

(DSM–IV–TR, at p. 199.)” (In re Drake M., supra, 211 

Cal.App.4th at p. 766.) Although this “is not a comprehensive, 

exclusive definition” for substance abuse (In re Christopher R. 

(2014) 225 Cal.App.4th 1210, 1218), where there is “a lack of 

evidence of life-impacting effects of drug use,” there is insufficient 

evidence to “support a finding that a parent has a substance 

abuse problem justifying the intervention of the dependency 

court.” (In re Rebecca C. (2014) 228 Cal.App.4th 720, 726.)

Mother’s actions do not fit this framework. Mother’s 

substance use was not clearly impacting her daily life—maternal 

grandmother, father, A. and K. had no suspicions that mother 

used drugs before DCFS’s involvement. The record suggests that 

Mother’s hospitalization was caused by her heart condition, not 

drug use. Neither maternal grandmother nor father had any 

concerns about mother’s care for the children before DCFS 

became involved. No evidence suggested that mother ever used 

methamphetamine or marijuana while caring for the children, 

and mother stated that she only used methamphetamine while 

she was out of town and away from the children, and mother 

never tested positive for methamphetamine. The children made 

clear that they wanted their parents to share custody, and they 

had no concerns about being with mother. The evidence does not 

demonstrate the “life-impacting effects of drug use.”
22

Even if we were to assume that mother had a substance 

abuse problem, however, a jurisdiction finding under section 300, 

subdivision (b)(1) “requires a showing of a risk of serious physical 

harm resulting from [a parent’s] substance abuse.” (In re Destiny 

S., supra, 210 Cal.App.4th at p. 1005.) No such evidence existed 

here.

DCFS argues on appeal—in a total of three sentences in the

argument section of its brief—that K. had many school absences 

and tardies, and A. had behavior problems. Nothing in the record 

connects these issues to mother’s drug use. There is no indication 

in the record that DCFS ever asked the parents, the children, or 

maternal grandmother about these issues. In spite of her 

absences, K. continued to do well academically. DCFS apparently 

never followed up with the school after July; even though the 

case began in January 2020 and the court made a jurisdiction 

finding in October 2020, there is no information about whether 

either child enrolled in school for the 2020-2021 school year, or

whether the children advanced to the next grade. 

As mother’s and the children’s counsel correctly noted at 

the jurisdiction hearing, school absences, without more, cannot

support a finding of jurisdiction under section 300, subdivision 

(b)(1). “It is also no doubt true failing to go to school regularly is 

very detrimental to the children. Failing to attend school 

regularly not only deprives the children of an education, but also 

of the social interaction and ‘peer relationships necessary for 

normal growth and development.’” (In re Janet T. (2001) 93 

Cal.App.4th 377, 388.) “However, that is not the same as saying 

the failure to attend school created a ‘substantial risk’ of 

suffering ‘serious physical harm or illness.’ The lack of education 

may well cause psychic or emotional or financial or social harm. 
23

But there are no facts alleged, or suggested by the supporting 

documentary evidence, to indicate mother’s failure to ensure the 

children’s regular school attendance subjected the children to 

physical injury or illness, serious or otherwise.” (Id. at pp. 388-

389; see also In re Destiny S., supra, 210 Cal.App.4th at p. 1003

[Even assuming that mother’s “drug use ‘could’ have been the 

cause of Destiny being late to class,” that “conclusion is irrelevant 

to dependency jurisdiction” where there is no substantial risk of 

serious physical harm].)

Noting that A. was found to possess marijuana at school in 

October 2019, DCFS argues that “Mother’s drug abuse appears to 

have made it difficult for her to set a good example to [A.] as to 

how to become a responsible adult.” It is not the case that any 

time a teenager gets in trouble at school, the child’s mother must 

have failed to “set a good example.” In addition, the evidence 

makes clear that no family member even knew mother used 

drugs before DCFS became involved with the family. DCFS’s 

contention that A. was mimicking mother’s behavior months 

before the case began is wholly unsupported by evidence. 

Here, both DCFS and the juvenile court took a position our 

colleagues in Division Eight of this court rejected in In re Rebecca 

C., supra, 228 Cal.App.4th at p. 728: “DCFS essentially argues 

that, when a parent engages in substance abuse, dependency 

court jurisdiction is proper. This is not what the dependency law 

provides. Further, if DCFS’s position were accepted, it would 

essentially mean that physical harm to a child is presumed from 

a parent’s substance abuse under the dependency statutes, and 
24

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.”3

There is no question that during the pendency of this case,

mother was unreliable, difficult to contact, and missed many 

drug tests. But the evidence also showed that mother’s life was 

in upheaval—she and father were divorcing, she had recently 

been in a serious car accident, she had been hospitalized for heart 

problems, she moved in with maternal grandmother and then 

they moved to a new home, there was a global pandemic, schools 

had closed, maternal grandmother lost her business, and one of 

mother’s close friends passed away. The juvenile dependency 

system does not allow a court to exercise jurisdiction over a child

simply because the parent is unreliable, however; “[t]he 

overarching goal of dependency proceedings is to safeguard the 

welfare of California’s children.” (In re Nolan W. (2009) 45 

Cal.4th 1217, 1228.) That purpose is not served by exercising 

jurisdiction in the absence of a substantial risk that a child will 

suffer serious physical harm. 

3 Although such a presumption may be appropriate in a 

case involving children of tender years (see, e.g., In re Drake M., 

supra, 211 Cal.App.4th at p. 767), it is not applicable here, where 

K. was nine years old and A. was 13 years old when the case was 

initiated.
25

DISPOSITION

The juvenile court’s jurisdiction and disposition orders are 

reversed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

WILLHITE, J.