Filed 1/5/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re K.B. et al., Persons Coming 

Under the Juvenile Court Law.

______________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

E.N. et al.,

Defendants and Appellants.

B305420

(Los Angeles County

Super. Ct. No. 

20CCJP00282A–C)

APPEAL from orders of the Superior Court of Los Angeles 

County, Marguerite D. Downing, Judge. Affirmed.

Janette Freeman Cochran, under appointment by the Court 

of Appeal, for Defendant and Appellant E.N.

Gina Zaragoza, under appointment by the Court of Appeal, 

for Defendant and Appellant M.B.
2

Mary C. Wickham, County Counsel, Kim Nemoy, Assistant 

County Counsel, and Melania Vartanian, Deputy County 

Counsel, for Plaintiff and Respondent.

_______________________

The juvenile court exercised jurisdiction over mother M.B.’s 

three children, K.B. (daughter, age 14), J.B. (son, age 10), and 

J.N. (son, age seven), and ordered them removed from their 

parents. (We refer to the children by their initials to protect their 

anonymity. (Cal. Rules of Court, rule 8.401(a)(2).)) The mother 

challenges the juvenile court’s orders regarding all three 

children. E.N., the presumed father of J.N., challenges the orders 

with respect to J.N. We affirm. Statutory references are to the 

Welfare and Institutions Code. 

I

We summarize some background about the parents, 

beginning with the mother and then moving to the father.

A

The mother tested positive for methamphetamine and 

marijuana during a hospital visit in November 2019 while 18 

weeks pregnant. The mother claimed to be unaware of the 

pregnancy. (The mother ultimately miscarried this pregnancy.) 

The reporting party was concerned the mother was unable to care 

for her other children as she was “out of it,” could not follow the 

conversation, kept falling asleep, and looked homeless. The 

mother initially denied any substance use, but later admitted she 

had used methamphetamine three days earlier. A week later, the 

mother told a social worker she had used methamphetamine two 

or three weeks earlier. 
3

The same day, the mother admitted she used marijuana, 

but she made this admission only after being confronted with the 

test results. The mother said she had gotten the drugs from a 

friend, but claimed not to know the friend’s name or contact 

information. The mother alternatively said she had tried 

methamphetamine because she was curious and because the 

friend had pressured her. 

When a social worker visited the mother a few days after 

the test, the mother mumbled. Her tone was low and fast. This 

was on November 26, 2019. The evidence conflicted about 

whether the social worker thought the mother was under the 

influence during this visit. A December 31, 2019 Detention 

Report states the mother appeared groomed and coherent but 

that she did appear to be under the influence of drugs or alcohol 

during the social worker’s visit. A declaration attached to the 

Application and Declaration filed on January 10, 2020, however, 

states the mother appeared groomed, coherent, and did not 

appear to be under the influence of drugs or alcohol during this 

visit. 

The mother denied a history of drug or alcohol use, but her 

record shows an arrest for possession of a controlled substance in 

2012. The family’s pastor, who is a relative of J.B.’s father, 

believed the mother might have had a history with drugs and/or 

alcohol a few years before. The mother later admitted she uses 

marijuana once a month, claiming she uses at night away from 

the children. She denied using marijuana with the father. 

The children did not report seeing the mother using drugs 

or alcohol or acting “weird” or “different.” But J.B. said the 

mother “mostly gets sleepy by 5pm so she goes to sleep and wakes 

up the next day.” J.N. said the mother sometimes sleeps for a 
4

long time so the children have to wake her up when it is time for 

school. The father claimed ignorance of the mother’s drug use, 

though they were living together at the time of her 2012 arrest 

and he tested positive for methamphetamine within eight days of 

the mother’s positive test for the same drug. The mother said the 

father was aware of her marijuana use. 

The mother has not enrolled in a substance abuse program 

despite agreeing to do so. The mother missed two tests scheduled 

by the Department. She tested negative twice. 

B

We turn to the father’s situation.

Eight days after the mother’s positive test, the father tested 

positive for amphetamine and methamphetamine. The father 

denied any recent drug use. He said the test was wrong and he 

was being set up. The father eventually admitted past 

methamphetamine use, but resisted providing details. At various 

points the father said he had not used methamphetamine in two 

to three months and that he had not used it in years. He refused 

to say how often he had used it. He began using 

methamphetamine at age 18 and would use every weekend, but 

stopped years ago. Later the father admitted he began using 

marijuana at age 15 and used it every day until he moved in with 

the mother at age 20. He uses marijuana occasionally now and 

said he used with the mother once. The father began drinking at 

age 20 and would drink every weekend, about 12 beers per 

sitting, until two to three years ago. He began using cocaine at 

age 18, increasing to weekly use until “a while ago.” 

The father has a criminal history. He has been arrested 

many times, including for “disorderly conduct: intox drug/alcoh” 

in October 2009 and for possession of a controlled substance in 
5

October 2012. His criminal history shows convictions for driving 

under the influence and for driving with a suspended license. His 

record also includes many failures to appear in court, with 

resulting warrants. His most recent arrest, in June 2019, was for 

possession of a controlled substance. 

J.B. said he had seen the father drink in their previous 

house. J.B. said when the father drinks the mother “leaves him 

alone until he is done being drunk and then she tells him to stop 

drinking because then he might go drive and crash.” J.N. also 

reported having seen the father drink. J.N. said, when the father 

drinks, the father gets dizzy, sometimes acts grumpy, and sleeps 

for a long time. J.N. also stated he is sometimes home alone with 

the father when the father drinks. All three children reported 

the father works nights and is in his room or sleeping most of the 

day. The family’s pastor believed the father had problems with 

drugs and alcohol about five years ago. Other family members 

confirmed the father used to drink and the mother and the father 

would argue about his drinking. The mother denied the father 

had used drugs “recently,” but said he may have used a few years 

ago when he would go to Bakersfield to visit family for two days 

at a time. The mother said the father does not drink in the 

house. She said she was surprised by his positive test because 

she “never knew that he was using drugs.” However, a number of 

the father’s arrests relating to controlled substances and alcohol 

were while he was living with the mother. 

After his first positive test, the father missed two scheduled 

tests, possibly due to paperwork mistakes that were not his fault. 

The father tested negative once. 
6

C

The maternal grandfather lives with the parents and the 

children. He works during the day and comes home at night. He 

said he had not seen the parents under the influence and did not 

know about drug or alcohol use by either parent. 

D

The Department’s investigation found the two sons had 

poor school attendance. J.B. was absent 13 days and tardy 34 

days; J.N. was absent 20 days and tardy 20 days. School officials 

had concerns about both boys’ hygiene. J.N.’s school also had 

concerns with J.N.’s behavior. 

J.B. said the children needed to behave so the parents 

would not hit them. J.B. denied the parents hit him. However, 

he later said the parents sometimes hit the children with a belt 

or hand. J.B. said if they are hit hard, they can still use their 

devices, but if they are not hit hard, they are not allowed to use 

their devices. J.N. said the mother had used the belt and a 

sandal to discipline him. Later J.N. said the parents used a belt 

or a hand. He said it hurts and he is a little scared when the 

parents hit him. The parents claimed they do not use physical 

discipline. A social worker reported “Per mother, if she is to hit 

the children they would listen to her.” 

E

The family has a history of involvement with the 

Department.

In February 2012, the Department substantiated 

allegations of general neglect of K.B. and J.B. by the mother. 

Upon investigation, the Department confirmed the family’s gas 

and electricity had been disconnected for about a month because 

of inability to pay. The house also was unclean, with stains on 
7

the floor and sofas, dirty dishes, and messy and cluttered rooms. 

The Department gave the family referrals for support and 

assistance. 

In April 2015, the Department investigated allegations that 

the children were always outside unsupervised and appeared 

unkempt and perhaps ill. The Department substantiated 

allegations the house was in disarray and extremely dirty, 

causing a safety hazard. The children appeared clean and 

healthy. A follow-up visit revealed a broken window that 

required a further safety plan. The referral was closed as 

“situation stabilized.” 

In August 2019, the Department received a referral 

relating to potential physical abuse of J.N. by an aunt and uncle. 

The referral was closed because the mother was protective and 

the people involved were no longer living with the family. 

The referral at issue in this case stems from the parents’ 

positive drug tests in November 2019. 

F

In December 2019, the parents and the Department agreed 

on a safety plan. Under the plan, no one under the influence was 

to care for the children; the family would be available to the 

Department; the parents would participate in a drug and alcohol 

program; the parents would submit to tests for drugs; and the 

children would live with relatives for the next six days. As noted 

above, the parents missed some of the scheduled tests but argued 

this was the fault of poor paperwork by others. The parents did 

not enroll in substance abuse programming as they had agreed to 

do. 
8

G

On January 10, 2020, the court granted a temporary 

removal order for the children. K.B. was placed with a maternal 

aunt, and J.B. and J.N. were placed together in a foster home. 

On January 16, 2020, the Department filed a section 300 

petition on behalf of K.B., J.B., and J.N. The petition alleged the 

mother has a history of illicit drug use and is a current user of 

amphetamine, methamphetamine, and marijuana, which renders 

the mother unable to provide regular care and supervision of the 

children; the mother tested positive for methamphetamine and 

marijuana on November 19, 2019; the mother had been under the 

influence of marijuana while caring for the children; and the 

mother’s illicit drug use endangered the children’s physical 

health and safety. The petition alleged the father had a five-year 

history of substance use and is a current abuser of 

methamphetamine, amphetamine, and marijuana, which renders 

the father unable to provide regular care and supervision of J.N.; 

the father had tested positive for methamphetamine and 

amphetamine on November 27, 2019; and the father’s substance 

abuse endangers J.N.’s physical health and safety. 

On January 17, 2020, the court held a detention hearing 

and ordered the children detained. 

On February 27, 2020, the juvenile court held a jurisdiction 

and disposition hearing. The court sustained the allegations as 

to the mother and the father and declared the children 

dependents of the court. The court then addressed disposition 

and found there was substantial danger to the physical health, 

safety, protection, or physical or emotional well-being of the 

children and no reasonable means to protect the children without 

removing them from the parents’ custody. The court found that 
9

the parents were in denial about substance abuse and had not 

been truthful with the Department. The court found that the 

substance abuse affected the children because of the hygiene and 

school attendance issues. The court ordered reunification 

services. It also ordered drug testing for the parents and 

required them to attend a parenting class and individual 

counseling. The court granted monitored visits. Both parents 

appealed.

II

Under section 300, subdivision (b)(1), the court may 

exercise jurisdiction over a child who has suffered, or there is a 

substantial risk that the child will suffer, serious physical harm 

or illness as a result of the failure of the parent adequately to 

supervise or protect the child or to provide regular care for the 

child due to the parent’s substance abuse. 

“[W]hen a statute requires a fact to be found by clear and 

convincing evidence, and when there is a substantial evidence 

challenge, the reviewing court must determine whether the 

record contains substantial evidence from which a reasonable 

trier of fact could find the existence of that fact to be highly 

probable.” (In re V.L. (2020) 54 Cal.App.5th 147, 149 (V.L.); id. at 

pp. 153–155.) We apply that standard here.

III

Sufficient evidence supports the juvenile court’s decision 

under subdivision (b) of section 300. The court correctly ruled 

these children were within its jurisdiction. 

A

The trial court properly found the mother’s conduct put her 

children at substantial risk of serious physical harm. The mother 

routinely disappeared from her children’s lives at about 5:00 p.m. 
10

until they woke her the next morning for school. It was 

reasonable for the juvenile court to infer the mother’s drug use 

had something to do with this conduct. The resulting failure to 

supervise the children put them at serious risk. Without 

supervision, nothing protects children from a world of serious and 

sudden danger.

1

The mother argues the record does not support the finding 

she abuses methamphetamine and marijuana. The mother relies 

on case law that applied clinical definitions of substance abuse, 

including In re Drake M. (2012) 211 Cal.App.4th 754 (Drake M.). 

She argues she neither has been clinically diagnosed with a 

substance abuse disorder nor does she fit the clinical definitions 

from the fourth or fifth edition of the Diagnostic and Statistical 

Manual of Mental Disorders. 

We join our colleagues in the Second Appellate District, 

Division Seven in rejecting this approach from the Drake M. 

opinion. The Drake M. formulation “is not a comprehensive, 

exclusive definition mandated by either the Legislature or the 

Supreme Court, and we are unwilling to accept [the] argument 

that only someone who has been diagnosed by a medical 

professional or who falls within one of the specific DSM-IV-TR 

categories can be found to be a current substance abuser.” (In re 

Christopher R. (2014) 225 Cal.App.4th 1210, 1218 (Christopher 

R.).)

This is not the first time we have parted company with this 

aspect of the Drake M. decision. (See In re Rebecca C. (2014) 228 

Cal.App.4th 720, 725–726 (Rebecca C.).) 

The mother argues the only evidence of her substance use 

is (1) one positive test, (2) statements by the family’s pastor that 
11

she might have had a history with drugs or alcohol a few years 

ago, and (3) a 2012 arrest for possession of a controlled substance. 

She also emphasizes statements from the children and other 

relatives that they have not seen her under the influence. 

Ample evidence shows the mother currently abuses drugs. 

The juvenile court was entitled to conclude the mother had been 

transparently dissembling about her drug use. A reasonable 

inference was the mother was trying to hide her ongoing 

addiction. The trial court was entitled to draw this reasonable

inference. 

We summarize evidence about the mother’s dissimulation. 

Despite the positive test, the mother initially denied all drug use. 

She then admitted using methamphetamine, but she did not tell 

the truth about using marijuana until pressed. She changed her 

story about her use of methamphetamine, claiming it had been 

three days—and then she revised this to a few weeks—before the 

drug test. She said she had gotten the methamphetamine from a 

“friend,” but said she did not know her friend’s name. The 

mother claimed the father did not know about her drug use and 

she was not aware of drug use by the father despite the fact both 

tested positive for methamphetamine within days of each other. 

The mother delayed admitting her current and ongoing use of 

marijuana. She and the father gave conflicting statements about 

whether the father was aware of her marijuana use and whether 

they had ever used marijuana together. She denied previous 

drug use, though her record shows she was arrested in 2012 for 

possession of a controlled substance. The children reported that 

the mother gets sleepy and goes to sleep around 5:00 p.m. every 

day and sometimes has to be woken up the next morning to take 

the kids to school. Although there is evidence that the mother’s 
12

failure to test was not her fault, she has only managed to test 

twice since her positive test. The mother failed to enroll in the 

substance abuse programming she agreed to in the safety plan. 

The record supports the trial court’s finding.

2

The mother argues there is not enough evidence to support

a finding that the children were in substantial danger of serious 

physical harm. The mother contends courts find substantial 

physical danger only in two instances: (1) where there is an 

identified and specific hazard in the child’s environment, 

typically an adult with a proven record of abusiveness; and (2) 

where the children are of tender age. According to the mother, 

this case fits neither scenario. The mother argues she is not an 

adult with a history of abusive behavior. Although there was 

some conflicting evidence about whether the parents used 

physical discipline with the children, the Department does not 

seem to argue the mother is physically abusive.

Contrary to the mother’s argument, sufficient evidence

shows she created a serious risk of physical harm to her children. 

She left them unsupervised most of the time they were home. 

Children are immature, inquisitive, clever about escaping, and 

inexperienced with life’s hazards. With impulsive urges and 

without much judgment about what could go wrong, children 

need supervision. A speeding car, a fire, a fall, a predator: 

disasters can strike swiftly and without warning.

The juvenile court fairly could infer the mother left her 

children largely unsupervised every evening. The mother goes to 

bed or becomes unavailable each evening around 5:00 p.m. The 

father similarly is asleep or in his room for most of the time he is 

at home. The only other adult in the household, the maternal 
13

grandfather, does not return from work until night time. The 

children were under the mother’s supervision at the time 

someone at the hospital reported her positive test and that she 

seemed “out of it.” And although the mother claims the father 

cares for the children when she uses marijuana, the children said 

he is always sleeping or in his room. 

The court need not wait for disaster to strike before 

asserting jurisdiction. (In re I.J. (2013) 56 Cal.4th 766, 773.) 

This is why the statute uses the word “risk.” 

These facts distinguish In re Destiny S. (2012) 210 

Cal.App.4th 999, 1004 and Rebecca C., supra, 228 Cal.App.4th at 

pp. 727–728. In neither case was there evidence the parents’ 

drug abuse affected care of the children. 

The mother also argues the children are not of tender age. 

When a child is of tender age, a parent’s substance abuse can be 

prima facie evidence of a risk of serious physical harm or illness. 

(Christopher R., supra, 225 Cal.App.4th at p. 1219.) Direct 

evidence of lack of supervision, which we have here, means this 

case does not turn on prima facie evidence. 

By the same token, the mother cites In re Janet T. (2001) 

93 Cal.App.4th 377 to argue failure to attend school does not 

create a substantial risk of serious physical injury or illness. The 

direct evidence of the mother’s lack of supervision, however, 

makes other evidence superfluous. The problems with school 

attendance and the sons’ poor hygiene are consistent with lack of 

supervision, but the mother’s actual failure to supervise is the 

direct and decisive evidence of substantial risk of harm in this 

case. 
14

B

Sufficient evidence also supports the finding that the 

father’s substance abuse put J.N. at a substantial risk of serious 

physical harm.

1

The father argues there is little evidence in the record that 

he is a substance abuser. He repeats some of the mother’s 

arguments, which we have rejected and do not reiterate.

The father argues he is employed, he contributes to the 

children’s financial needs, the children are attached to him, and 

they are meeting developmental milestones. The Department 

does acknowledge these strengths, but they do not negate the 

evidence of father’s substance abuse and his failure to supervise 

the children. 

The father relies on the inapposite case of In re L.C. (2019) 

38 Cal.App.5th 646. L.C. involved a legal guardian who had used 

methamphetamine six or seven times in about a year. (Id. at p. 

650.) Although the legal guardian initially lied to the 

Department about his drug use, once he realized he could lose 

custody of his daughter, he came clean and reformed. (Ibid.) He 

immediately ceased drug use, obtained drug tests, and enrolled in 

a substance abuse program. (Id. at pp. 650–651.) The 

Department found that, even when the legal guardian used 

methamphetamine, he ensured his daughter was properly cared 

for and supervised by another adult. The guardian never cared 

for his daughter himself while he was under the influence. (Id. at 

p. 653.) This is a far cry from the father’s situation. The father 

continues to deny any substance abuse, claims he was set up, and 

has taken no steps to address his drug use. He has not been 
15

candid with the Department about his past and current use. L.C.

does not help the father. 

The father’s criminal history substantiates the court’s 

finding. The family’s pastor corroborated the father’s drug and 

alcohol problems about five years ago. Although the father 

eventually confessed to a substantial history with 

methamphetamine, cocaine, and marijuana, he continued to deny 

using methamphetamine before his positive test and refused to 

provide details about his current abuse. He and the mother

denied he drinks in the house, but the children said otherwise. 

The children also described conversations between the mother 

and the father about his drinking. Another family member 

detailed arguments between the parents on the subject. The 

children said the father spends much of his time in his room. 

As with the mother, sufficient evidence supports the 

finding the father is a substance abuser. 

2

The father argues that, even if he is a substance abuser, 

there is not enough evidence to show his abuse caused a 

substantial risk of serious physical harm to the children. As did 

the mother, the father points to statements by the children and 

family members that they had not seen the father under the 

influence; but this does not nullify other evidence in the record. 

The father incorrectly argues finding harm here “would 

essentially mean that physical harm to a child is presumed from 

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

that it is a parent’s burden to prove a negative, i.e., the absence of 

harm.” We do not presume harm. Rather, we find there was 

enough evidence to permit the juvenile court to infer the risk of 

physical harm from the father’s failure to supervise the children.
16

The father argues past events, like his past drug use, are 

probative only where the same kind of harm is likely to continue 

in the future. A court is entitled to infer past conduct will 

continue where the parent denies there is a problem. (In re A.F.

(2016) 3 Cal.App.5th 283, 293 [courts properly consider denial as 

a relevant factor in determining whether persons are likely to 

modify their behavior in the future without court supervision].) 

The father seems to be fully in denial about the key features of 

this situation.

The father rightly notes a criminal record alone does not 

bear on parenting abilities. But a criminal record can corroborate 

other evidence of substance abuse, as it does here.

C

Sufficient evidence supports the juvenile court’s 

dispositional order removing the children. As the parents note,

before the juvenile court may order a child physically removed 

from his or her parent’s custody, it must find, by clear and 

convincing evidence, the child would be at substantial risk of 

harm if returned home and there are no reasonable means by 

which the child can be protected without removal. (§ 361, subd. 

(c)(1).)

Again we must determine whether the record contains 

substantial evidence from which a reasonable trier of fact could 

find the existence of that fact to be highly probable. (V.L., supra, 

54 Cal.App.5th at p. 149.) 

The parent need not be dangerous, and the minor need not 

have suffered actual harm before removal is appropriate. (In re 

T.V. (2013) 217 Cal.App.4th 126, 135–136.) The purpose of the 

statute is to avert harm. (Ibid.)
17

The parents repeat their arguments when attacking the 

dispositional order. Each argues there was not substantial 

evidence to support the court’s findings that they are substance 

abusers or that the children were at risk of harm, so there was no 

basis to remove the children. As we have discussed, sufficient 

evidence supports both findings, and as to each parent. The same 

evidence supports the juvenile court’s removal of the children. 

The mother argues the maternal grandfather’s presence in 

the home and the mother’s regular contact with other relatives 

showed the children were safe with her. But the maternal 

grandfather works all day and is only at home at night. The 

maternal grandfather and the maternal relatives all claimed they 

were unaware of drug use by the mother and the father. From 

this the court could infer their help would not supply adequate 

supervision for the children. 

DISPOSITION

We affirm.

WILEY, J. 

WE CONCUR:

BIGELOW, P. J. 

GRIMES, J.