Filed 10/22/13 In re Mariah G. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 MARIAH G., a Person Coming Under 

the Juvenile Court Law.

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

JAVIER G.,

Defendant and Appellant.

 B247161

 (Los Angeles County

 Super. Ct. No. CK97110)

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

Soto, Judge. Affirmed.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and 

Appellant.

John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and 

William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.

________________________________
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Javier G. (father) appeals from the trial court‟s order asserting jurisdiction over 

Mariah G. based, in part, on its conclusion that father‟s use of marijuana placed the child 

at substantial risk of serious physical harm. (Welf. & Inst. Code § 300, subd. (b).)1 He 

contends the evidence was insufficient to support the court‟s conclusion that his use of 

marijuana endangered the child, and its order that he participate in drug treatment 

programs and parenting courses. Respondent Department of Children and Family 

Services (Department) argues the evidence supports the jurisdictional finding, and that 

the trial court did not abuse its discretion. Finding the evidence sufficient to support 

jurisdiction based on father‟s conduct, we affirm the court‟s order regarding the counts 

alleged against him.

FACTUAL AND PROCEDURAL SUMMARY

Minor Mariah G. was born in November 2009. When her parents first met, father 

Javier G. was 19 years old, and her mother was 18. Sometime after mother became 

pregnant, the two began living together. They separated some two years later, but 

reached an informal agreement that Mariah would live with her mother, and visit father 

every other weekend. 

On October 10, 2012, reports of substance use by both parents led to a Department 

investigation of the family. Mother admitted using methamphetamine over the previous 

two years. She obtained the drug from friends, and her use was so heavy that sometimes 

she would remain under the influence for three consecutive days. After deciding to seek 

treatment, mother agreed that her sister would look after Mariah while she admitted 

herself to an inpatient rehabilitation program, which she did in late October 2012. 

Meanwhile, in an interview with the Department, father admitted that he used 

marijuana every other weekend when Mariah was not visiting, and denied using it while 

she was in his care. On November 1, 2012, he tested positive for marijuana. He claimed 

that he had an expired medical marijuana card, but that he was waiting for a replacement 

California identification card in order to renew it. There is no evidence as to when the 

 

1

All statutory references are to the Welfare and Institutions Code.
3

card expired, and no evidence other than father‟s oral claim that he ever had a card. 

Mariah remained with her aunt, and father agreed to a modified visitation plan with 

supervision.

In December 2012, mother tested positive for methamphetamine at the 

rehabilitation facility, and was terminated from the program. As a result, the Department 

removed Mariah from her mother‟s custody, ordered formal placement with her aunt, and 

filed a dependency petition pursuant to section 300, subdivision (b). In count b-1, the 

Department alleged Mariah was at risk of suffering serious physical harm or illness as a 

result of mother‟s history of substance abuse, and her current methamphetamine habit. In 

count b-2, it alleged that father‟s history of substance abuse, and his current use of 

marijuana, had the same effect. The Department cited father‟s November 2012 positive 

test for marijuana. The court ordered monitored visitation for the parents, three times per 

week, for three hours each, with reunification services. 

In its jurisdiction and disposition report, the Department continued to focus on the 

parents‟ substance use. When a dependency investigator interviewed mother, she 

admitted to abusing methamphetamine, cocaine, and marijuana. She claimed father‟s use 

of marijuana caused him to become violent, emotional, and mentally unstable, and that it 

led to his refusal to work. Mother stated that father completed a 30-day rehabilitation 

program only after she made him attend. 

Father tested positive for marijuana in January 2013. When he arrived for a 

meeting at the Department on January 22, 2013, the investigator noted a “strong odor of 

marijuana permeat[ing] from [his] person.” Father said he used marijuana to help him 

sleep and cope with depression. Once again, father said he had an expired medical 

marijuana card, but this time he claimed it was because he did not have enough money to 

renew it. Father admitted to occasional physical altercations with mother, but police 

were never involved. Denying any drug abuse problems, he refused to enter a drug 

treatment program. 
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At the January 2013 jurisdictional hearing, father did not seek custody of Mariah. 

Instead, he sought only that Mariah‟s best interests be fulfilled, and that she remain with 

her aunt. The court focused on father‟s marijuana use, and noted legal ways to treat his 

depression, including therapy and prescription drugs. Because Mariah was a “very young 

child,” the court found father‟s marijuana use presented “an impediment to being a good 

parent and role model to [Mariah] and to keep [her] safe.” 

The court sustained the jurisdictional allegations against the parents, removed 

Mariah from parental custody, declared her a dependent, placed her with her aunt, and 

ordered both monitored visits and reunification services for her parents. It also ordered 

father to participate in a drug rehabilitation program, submit to random drug testing, 

participate in individual counseling, and attend parenting classes. Father also was 

directed to participate in counseling in order to address his mental health, anger 

management, and domestic violence issues. Father filed a timely notice of appeal.2

DISCUSSION

I

Father argues we should reverse the order as to him, even though the unchallenged 

order as to mother will ensure that jurisdiction over his daughter remains. He claims he 

has been and will be prejudiced by the court‟s finding of jurisdiction based on his alleged 

conduct. We agree the jurisdictional finding is reviewable.

A reviewing court exercises its discretion to reach the merits of a challenge to a 

jurisdictional finding when it could be prejudicial to the appellant, potentially impact the 

current or future dependency proceedings, or pose consequences for the appellant other 

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

M., a father challenged only the jurisdictional findings against himself, and not those 

found against the mother. (Id. at p. 757.) The court reasoned that the “outcome of this 

appeal is the difference between father‟s being an „offending‟ parent versus a „nonoffending‟ parent.” (Id. at p. 763.) Such a distinction could have “far reaching 

 

2 Mother is not a party in this appeal.
5

implications with respect to future dependency proceedings in this case and father‟s 

parental rights.” (Ibid.) Even though jurisdiction over the child would remain in place 

due to the unchallenged findings against the mother, the court reviewed father‟s appeal 

on the merits. (Ibid.) 

Father may be prejudiced by the trial court‟s findings in future dependency 

actions, and in related proceedings beyond this jurisdictional order. As in In re Drake 

M., the court‟s findings regarding father‟s substance use and its efforts to classify him as 

an offending parent may impact future dependency actions regarding Mariah. (In re 

Drake M., supra, 211 Cal.App.4th at p. 763.) The court‟s ruling that father would be 

unable to regain custody of her unless he completed the drug rehabilitation program 

demonstrates how its orders impact father beyond the jurisdictional finding. Thus, as in 

In re Drake M., even though dependency jurisdiction over Mariah would remain if 

father‟s challenge were successful, we review his appeal on the merits. (Ibid.)

II

Father challenges the court‟s finding of jurisdiction over Mariah. He contends the 

evidence was insufficient to support the trial court‟s conclusion that his alleged conduct 

caused Mariah to suffer, or that it subjects her to a substantial risk of suffering serious 

physical illness or harm. We disagree.

Where a parent challenges the juvenile court‟s jurisdictional findings, we consider 

the entire record to determine whether substantial evidence supports the court‟s order. 

(In re Drake M., supra, 211 Cal.App.4th at p. 763.) “[W]e resolve all conflicts and make 

all reasonable inferences from the evidence to uphold the court‟s orders, if possible. 

[Citation.] „However, substantial evidence is not synonymous with any evidence. 

[Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on 

appeal. [Citation.] Furthermore, “[w]hile substantial evidence may consist 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 
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fact to make the ruling in question in light of the whole record.” [Citation.]‟” (In re 

David M. (2005) 134 Cal.App.4th 822, 828, italics omitted.)

Section 300, subdivision (b) states the circumstances under which a court can 

exercise jurisdiction over a minor. In relevant part, it provides that jurisdiction is 

appropriate when 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 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.” (§ 300, 

subd. (b).) For the juvenile court to assert jurisdiction, it must find by a preponderance of 

the evidence that Mariah suffered serious physical harm or illness, or is at a substantial 

risk of suffering such harm due to father‟s failure or inability to adequately protect or 

supervise her, or because of his inability to provide regular care due to substance abuse. 

(See In re David M., supra, 134 Cal.App.4th at p. 829.)

Father argues the evidence was insufficient to support the court‟s finding of 

jurisdiction over Mariah, based on his unlicensed use of marijuana, as alleged in count b2. He claims the court reviewed no evidence indicating that his use of marijuana harmed 

Mariah or placed her at risk of harm. In jurisdictional proceedings, courts examine 

whether children are subject to two distinct types of physical harm: (1) a specific hazard 

in the child‟s life, such as an abusive adult, and (2) the absence of adequate supervision 

or care that poses an inherent risk to the child‟s physical health and safety, where the 

child is of tender years. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) A judicial 

finding that a parent is a substance abuser serves as prima facie evidence “of the inability 

of a parent or guardian to provide regular care resulting in a substantial risk of physical 

harm.” Father does not appear to be a substance “abuser” as that term is defined in the 

American Psychiatric Association‟s Diagnostic and Statistical Manual of Mental 

Disorders (4th ed. 2000) page 199, adopting that criteria for purpose of section 300, 

subdivision (b). (In re Drake M., supra, 211 Cal.App.4th at p. 767; see also id. at p. 766.) 
7

We agree that jurisdiction based only on the mere use of marijuana or other drugs 

by a parent “without any evidence that such usage has caused serious physical harm or 

illness or places a child at substantial risk of incurring serious physical harm or illness is 

unwarranted and will be reversed.” (In re Drake M., supra, 211 Cal.App.4th at p. 769, 

italics omitted; In re Alexis E. (2009) 171 Cal.App.4th 438, 453 [“[U]se of medical 

marijuana, without more, cannot support a jurisdiction finding that such use brings the 

minors within the jurisdiction of the dependency court.”]; In re Destiny S. (2012) 210 

Cal.App.4th 999, 1003, italics omitted [“undisputed” finding that a parent‟s use of 

marijuana or hard drugs, “„without more,‟ does not bring a minor within the jurisdiction 

of the dependency court”].) Courts consider a variety of factors when determining 

whether a parent‟s substance use endangers the child. In In re Alexis E., the court found a 

father‟s legal use of medicinal marijuana placed his children at a risk of harm where he 

smoked in their presence, and became angry and engaged in corporal punishment while 

under the influence. (In re Alexis E., at p. 453.)

Nevertheless, father‟s conduct indicates a risk of harm to Mariah that is sufficient 

to satisfy the juvenile court‟s finding by a preponderance of the evidence. Father 

admitted to regular marijuana use. During the three-month period of the Department‟s 

investigation of the family, father tested positive for marijuana twice. He showed up for 

a Department meeting with a strong odor of marijuana permeating from his person. More 

important, mother stated that he became angry and violent when under the influence. The 

evidence of his continued marijuana use while the Department investigated Mariah‟s care 

indicates, at a minimum, that these symptoms are likely to reoccur. The fact that father 

appeared for an important meeting with a Department investigator smelling of marijuana 

supports a reasonable inference that he would exercise similarly poor judgment when 

Mariah is in his care. We find the evidence before the juvenile court was sufficient for it 

to determine that father‟s use of marijuana posed a risk of serious physical harm, and 

conclude the Department satisfied its burden of demonstrating by a preponderance of the 

evidence that father‟s marijuana use created a risk of harm to Mariah. (In re David M., 
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supra, 134 Cal.App.4th at p. 832 [finding the agency failed to meet its burden of 

demonstrating a risk of harm to the child].)

III

Father argues the trial court‟s order based on the jurisdictional finding against him 

amounts to an abuse of discretion. He contends that because there was insufficient 

evidence to support the court‟s jurisdictional finding against him, the court‟s orders for 

drug rehabilitation and parenting classes should be reversed. Since we find the evidence 

sufficient to support the court‟s order, we disagree.

During jurisdictional proceedings, a juvenile court “must order child welfare 

services for the minor and the minor‟s parents to facilitate reunification of the family.” 

(In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006; see § 361.5, subd. (a).) In 

doing so, the “court has broad discretion to determine what would best serve and protect 

the child‟s interest and to fashion a dispositional order in accord with this discretion.” (In 

re Christopher H., supra, at p. 1006.) But the court‟s discretion is not without limits. 

“The program in which a parent or guardian is required to participate shall be designed to 

eliminate those conditions that led to the court‟s finding that the child is a person 

described by Section 300.” (§ 362, subd. (d).) In other words, the court‟s orders must be 

designed to remedy the circumstances that led to its finding of jurisdiction. “We cannot 

reverse the court‟s determination in this regard absent a clear abuse of discretion.” (In re 

Christopher H., at p. 1006.)

Given the appropriate finding of jurisdiction based on father‟s substance use, 

ordering participation in a drug rehabilitation program was a proper measure designed to 

remedy the problem and enable family reunification. Accordingly, we find the trial court 

did not abuse its discretion.
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DISPOSITION

The order based on father‟s conduct, as alleged in count b-2, is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.