Filed 4/14/14In re Michael B. CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

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

Under the Juvenile Court Law.

 B250269

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

Michael B. (Father), 

Defendant and Appellant.

 (Los Angeles County

 Super. Ct. No. CK88044)

APPEAL from a judgment of the Superior Court of Los Angeles County. 

Jacqueline H. Lewis, Commissioner. Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Appellant.

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

Kimberly Roura, Deputy County Counsel for Respondent.

__________________________
2

Michael B. (father) appeals from jurisdiction and disposition orders sustaining a 

petition under the Welfare & Institutions Code as to father’s three children and placing

the children with mother. He contends there is insufficient evidence to support 

jurisdiction and, since the jurisdictional findings must be reversed, the dispositional 

orders are moot. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Deshay W. is the mother of three children by father – Michael B. (born in 2007), 

M.B. (born in 2010) and M.B.1 (born in 2013).

1

The children first came to the attention of the Department of Family and Children 

Services in May 2011 as the result of a domestic violence referral. Only the three oldest 

children were involved as M.B.1 had not yet been born. On July 21, 2011, the juvenile 

court sustained a petition under section 300 as to all three children based on physical 

abuse of Michael by both parents, the parents’ domestic violence in front of the children, 

and father’s history of substance abuse. Both parents had arrest records and father had 

been convicted of robbery, sales of narcotics, possession of cocaine, PCP and marijuana, 

domestic violence and other offenses. Mother was provided with family maintenance 

services, and father was ordered, among other things, to participate in domestic violence 

and other forms of counseling, and drug testing. Father did not contact the department

for the referrals, and mother stated she was not in a current relationship with father. 

On August 1, 2012, the juvenile court terminated dependency jurisdiction with a 

family law order granting mother sole physical and legal custody over the children. (See

§§ 362.4, 364, subd. (c); In re T.H. (2010) 190 Cal.App.4th 1119, 1122-1123; In re 

Kenneth S., Jr. (2008) 169 Cal.App.4th 1353, 1358.)

 

1 Mother is also the parent of a fourth child, L.W., who has a different father. 

Although the juvenile court proceedings involved all four children, father’s appeal 

addresses only his three children. Mother has not appealed. Because of the similarity of 

names between father and the oldest child, we refer to father as father and his son as 

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

The department next received a referral on February 19, 2013, based on an 

incident at school in which Michael had an anger outburst, threw a chair, and turned over 

a table. Four days earlier, Michael had become physically abusive with school staff. 

When father arrived at school, he grabbed Michael by the collar and was admonished for 

inappropriate behavior by school staff. Father became irate and threatened staff. No 

dependency petition was filed concerning that incident. 

The current case was based on a referral two weeks later, on March 6, 2013, the 

result of mother testing positive for marijuana while in the hospital giving birth to M.B.1. 

M.B.1’s test was negative. Mother told the social worker about previous domestic 

violence, that she and father were no longer in a romantic relationship (although father 

was the father of M.B.1), and father no longer lived in the home. Mother was generally 

dismissive of any drug problem, saying that a past positive screen for cocaine was due to 

her taking a Vicodin pill a friend gave her and being in a car with her cousin who was 

smoking marijuana.2 Mother smoked marijuana nearly every day but not in front of the

children. On March 9, 2013, mother obtained a medical marijuana card. 

Father said he lived in the neighborhood but not with mother. He smoked 

marijuana and had a medical marijuana card. He acknowledged that he was subject to 

earlier juvenile court orders, but did nothing because the department had not contacted 

him. 

Michael, the eldest child, gave the social worker a different version of the family 

dynamic. Michael said he saw father every day and that father lived in the family home. 

Michael reported that he had seen father slap mother on the face and punch her. He 

recounted regular incidents in which father pushed mother. Michael denied that father hit 

him or his siblings. 

Following a family meeting with the social worker, the department decided not to 

detain the children, released them to mother and arranged for the family to receive 

services. 

 

2

In a subsequent report the social worker stated that, according to the testing 

laboratory, Vicodin would “absolutely not” show a positive drug test for cocaine. 
4

On April 2, 2013, the department filed a section 300 petition alleging domestic 

violence and the parents’ substance abuse. In a report filed in anticipation of the

jurisdiction and disposition hearing, the department recounted the earlier referrals and the 

circumstances leading up to the current petition. As to the history of domestic violence, 

mother said she was constantly calling the police because of father’s conduct. She 

confirmed her marijuana use but denied knowing it could hurt her unborn child. She said 

father at one time used cocaine powder. In a discussion with the social worker, father 

denied any domestic violence, saying he was “afraid to sock her.” He claimed to be the 

victim especially after mother became intoxicated. He also denied ever threatening the 

staff at Michael’s school. He admitted using marijuana, but not in front of the children. 

Father had been originally prescribed marijuana for seizures. He admitted to a history of 

cocaine sales but not use. Father was aware of the court ordered domestic violence 

classes but decided not to go because mother was intoxicated when she reported the 

domestic violence to the police; further, the social worker had not contacted him about 

the prior domestic violence orders. The department stated it could not ensure the safety 

of the children while in father’s care because of unresolved domestic violence and 

marijuana issues. The department recommended family maintenance services for mother 

and family reunification services for father. 

On May 21, 2013, the juvenile court sustained the petition, finding true the 

allegations concerning the parents’ domestic violence (§ 300, subd. (a)), mother’s current 

drug use and father’s past drug use (§ 300, subds. (a) & (b)). The court ordered that the 

children remain with mother and that mother receive maintenance services. No specific 

orders were made for father but the department was permitted to give appropriate 

referrals.3Father timely appealed. 

 

3 At the hearing, children’s counsel asked the court to make the jurisdictional 

findings and submitted on the disposition. Children’s counsel has not filed a brief on 

appeal.
5

DISCUSSION

Father’s principal contention on appeal is that there was insufficient evidence for 

the court’s jurisdictional orders. He also contends that since the jurisdictional orders 

were legally insufficient, the disposition order was moot.4 We review the trial court’s 

orders under the substantial evidence test which does not allow us to reweigh the 

evidence or pass on credibility of witnesses, and requires us to draw all reasonable 

inferences in support of the juvenile court’s order. (See In re James R. (2009) 

176 Cal.App.4th 129, 134-135.)

Section 300, subdivision (a) allows the court to take jurisdiction if the child has 

suffered, or there is a substantial risk the child will suffer, serious physical harm inflicted 

nonaccidentally by a parent. Subdivision (b) is similar but the harm is the result of a 

parent’s neglect or failure to adequately supervise the child. As to subdivision (a), which 

was based on the parties’ domestic violence, father contends there was no evidence of 

domestic violence after the earlier dependency proceeding had been closed. The present

referral was based on mother’s drug use. Father’s argument is based on an incomplete 

view of facts. Michael told the social worker on March 3, 2013 – after the current 

petition was filed – that father lived in the house, that Michael saw father almost every 

day, that he had seen father slap mother across the face and punch her, and that father 

pushed mother “all the time.” Although the social worker had some concerns about 

Michael’s concept of time, and both parents and the children’s uncle denied domestic 

violence, these were matters for the trial court to resolve. It did so by expressly finding 

the alleged facts to be true. 

The jurisdictional findings under section 300, subdivision (b) were based on 

(1) the domestic violence (petition, count b-1), (2) the mother’s current and present use of 

marijuana and cocaine (count b-2), and (3) father’s past use of cocaine and current use of 

marijuana (count b-3). 

 

4 Father acknowledges he was denied reunification services as part of the court’s 

disposition orders but does not separately appeal on that ground.
6

As to the first count, father incorporates his subdivision (a) argument which we 

have rejected.

As to the second count, father points to the testimony that mother said she never 

used cocaine, her positive test was either because she took a Vicodin or because she was 

hanging around friends who laced a marijuana cigarette with “something.” Again, father 

ignores contrary evidence. The evidence on which the juvenile court was entitled to rely 

was that mother tested positively for marijuana when M.B.1 was born. That M.B.1 did 

not have a positive toxicological screen was good for the entire family but it does not 

detract from mother’s admitted marijuana use. Her positive cocaine test, purportedly 

explained by the parents as caused by Vicodin or a laced marijuana cigarette, was for the 

juvenile court to consider. It was free to discredit the vague and inconsistent 

explanations by mother and father. Given that father stated that mother became more 

aggressive when she was intoxicated, the trial court was entitled to conclude that there 

was a relationship between drug use and domestic violence, thus placing the children at 

risk of physical harm.

As to the third count – father’s drug use – father argues that he never used cocaine 

and that his marijuana use was medically approved. Even assuming father’s convictions 

for sales, possession and transportation of cocaine and other illegal substances were not 

sufficient to show he was a user of cocaine, or that such conduct placed the children at 

risk, his testimony about marijuana use is revealing. Father reported that in jail he was 

suffering from marijuana withdrawal and that without marijuana he could not sleep and 

became paranoid. There was no evidence that father ever participated in individual or 

drug counseling for these problems, notwithstanding the juvenile court’s order for such 

programs, and its most recent suggestion that the department refer him to such programs. 

This evidence suggests that father has a current, unresolved problem with marijuana. 

Finally, we observe that even if father’s drug use was inconclusive, jurisdiction was 

properly maintained under the other counts. (In re Alexis H. (2005) 132 Cal.App.4th 11, 

16.)
7

Contrary to father’s argument, as the jurisdiction orders were based on substantial

evidence, the disposition orders that followed were not rendered moot. Since father 

offers no separate argument on the reasonableness of the disposition orders and because 

we find substantial evidence supports the juvenile court’s disposition, we affirm. (In re 

I.J. (2013) 56 Cal.4th 766, 773.)

DISPOSITION

The jurisdiction and disposition orders of May 21, 2013, are affirmed.

RUBIN, J.

WE CONCUR:

BIGELOW, P. J. 

FLIER, J.