Filed 7/19/23 In re Jason N. CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re JASON N., a Person 

Coming Under the Juvenile 

Court Law.

 B320970

 (Los Angeles County

 Super. Ct.

 No. 22CCJP00327B)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

JASON N.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los 

Angeles County, Hernan D. Vera, Judge. Affirmed.

Jamie A. Moran, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Jacklyn K. Louie, Deputy County 

Counsel, for Plaintiff and Respondent.

* * * * * *

Jason N. (father) appeals from an order of the juvenile 

court removing Jason N., Jr. (born November 2020), from his 

custody.1 Father contends Jason should have been placed with 

him, in the home of paternal grandmother (PGM), in New York 

under the supervision of the cooperating New York agency. We 

find the evidence supports the juvenile court’s finding that clear 

and convincing evidence existed of a substantial danger to 

Jason’s health, safety, and protection if placed with father, and 

there were no reasonable means to protect the child without 

removal. We affirm the order.

COMBINED FACTUAL AND PROCEDURAL HISTORY

Referral and initial investigation

On January 23, 2022, the Los Angeles County Department 

of Children and Family Services (DCFS) received a call on the 

hotline alleging the children were in an unsafe situation, living in 

a tent in a homeless encampment on a median on a busy street in 

Venice, California. A service provider tried to arrange services 

for Amanda K. (mother) and the children.2 Mother refused 

1 Jason’s half sibling Isabella (born April 2014) is part of this 

dependency proceeding but is not a subject of this appeal, as 

father is not Isabella’s father. Isabella is mentioned as needed. 

Jason and Isabella collectively will be referred to as the children.

2 Mother is not a party to this appeal.
3

assistance, including food and motel vouchers, and reacted 

aggressively towards the outreach provider, causing the service 

worker concern about the children sleeping in a tent in the cold 

weather. The children appeared dirty and malnourished. 

Mother was observed to have left the children outside the tent, 

leaving them unsupervised. Two other people in the camp 

reported that mother left the two children unattended “all the 

time.”

In a second call to the DCFS hotline, the caller provided 

more information, including that mother and the children were 

from New York and recently arrived in California. Mother 

claimed to have left New York because she was not getting along 

with maternal grandmother (MGM) and due to domestic violence 

with father. Mother stated there was a protective order in place 

in New York.

A DCFS social worker made contact with mother at the 

encampment on January 23, 2022. There were approximately 20 

tents on a median with lanes of traffic on either side. Mother 

insisted she was not homeless and that she had friends and 

family in the area, but could not provide any contact information. 

Mother became agitated and belligerent when the accompanying 

Los Angeles Police Department officer pointed out that Isabella 

was barefoot in the cold weather.

Mother claimed to be having issues with father, including 

him being mentally abusive and a drug dealer. She said there 

was a restraining order against him and an upcoming custody 

hearing in New York. Mother admitted she had been diagnosed 

with “Bi-Polar Schizo affected” but provided varying answers to 

whether she was taking medication. Mother admitted using 

marijuana but was unclear when she had last used the drug.
4

Jason was in a wet, dirty onesie without a diaper asleep in 

a stroller. His arms and legs were streaked with dirt and covered 

with sand. Isabella was also very dirty and unkempt and could 

not tell the social worker when she last had a bath. Isabella 

confirmed mother would leave her alone in the tent in charge of 

the baby. Isabella reported Jason’s “daddy” was a bad man and 

who used drugs.

Mother stated father raped her in New York. Though she 

was uncertain he was Jason’s father, she was hesitant to ask for 

a paternity test as she believed father knew people who could 

manipulate the results of such a test. Mother reported father 

was a drug addict and dealer and was “organized gang stalking” 

her. Mother added there had been involvement with child 

protective services (CPS) in New York but did not provide 

specifics. Mother admitted having been addicted to oxycodone 

following a car accident in the past. She completed a 30-day 

rehabilitation program, following an eight-day hospitalization, 

and occasionally used marijuana and alcohol.

The officers transported mother and the children to the 

police station, expressing concern about the children being in the 

encampment that was very dangerous. When mother was 

informed the children would be detained, she became angry and 

telephoned MGM, yelling that MGM had to come to California to 

get the kids.

The social worker spoke with MGM, who informed her that 

mother relocated to California as planned, and there was trouble 

with father, who had visitation. MGM confirmed mother had a 

history of mental health issues and was previously addicted to 

oxycodone, due to the fault of mother’s doctors. MGM was 

uncertain if there was a CPS history in New York.
5

Petition and detention

On January 25, 2022, DCFS filed a Welfare and 

Institutions Code section 3003 petition on behalf of the children,

containing allegations of mother’s neglect, failure to supervise the 

children and mental health issues. A first amended section 300 

petition was later filed, which added counts regarding father’s 

substance abuse and mother’s failure to protect the children. The 

first amended petition alleged father had a history of substance 

abuse including Xanax and cocaine and was a current user of 

oxycodone, marijuana and cocaine, rendering him unable to 

provide regular care for the children. The petition alleged 

father’s substance abuse endangered the children’s physical 

health and safety and created a detrimental home environment, 

placing the children at risk of serious physical harm. On May 11, 

2022, the juvenile court sustained this allegation.

In a last minute information for the court filed on 

January 28, 2022, DCFS reported a conversation between a local

social worker and a Sullivan County New York CPS social 

worker, Jenesis Matos, on January 26, 2022. Matos reported the 

family had an open referral in New York but no court filing. 

There was a current family law proceeding pending, and father 

had monitored visitation with the children. Mother had a history 

of mental health issues, psychiatric hospitalizations, prescription 

drug abuse, and leaving the children unsupervised. Mother once 

told the authorities after leaving the children home alone that 

the pit bull dogs would guard them. Mother had previously lost 

custody of Isabella due to mental health issues and was not 

medication compliant. Father had a history of using and dealing 

3 All further statutory references are to the Welfare and 

Institutions Code.
6

drugs, but was attending a program and doing well. Father 

appeared to be genuinely trying to care for the children.

A second last minute information for the court filed on 

January 28, 2022, indicated father had contacted DCFS on 

January 25, 2022, and acknowledged having monitored visits 

twice per week. Father stated mother took the children out of 

New York without his permission. Mother had been leaving the 

children with him for days at a time despite her request for a 

restraining order. Father claimed mother’s allegations in the 

restraining order were untrue. He denied being part of a gang or 

dealing drugs. Father confirmed mother’s mental illness, recent 

hospitalizations and prior loss of custody of Isabella.

Father reported mother had picked up the children from 

his home on January 8, 2022, and was screaming in the streets 

that father was a drug dealer. Afterwards, mother got in a 

serious car accident with the children in the car. Mother’s 

driver’s license was suspended because she did not have 

insurance. Mother then went to a friend’s home and rented a UHaul. Father believed mother then left for California. Father 

had been looking for the children for two weeks before calling 

DCFS.

At the January 28, 2022 hearing, the juvenile court 

acknowledged possible jurisdictional issues under the Uniform 

Child Custody Jurisdiction and Enforcement Act (UCCJEA) 

(Fam. Code, § 3400 et seq.) and indicated it would contact the 

court in New York. The court found a prima facie showing had 

been made and ordered the children detained in foster care. It 

also found father to be the presumed father of Jason.

Addendum report

An addendum report was filed on February 16, 2022,

regarding another conversation with CPS social worker Matos,
7

who stated there were concerns with father due to his substance 

abuse. The family law judge ordered father to submit to a hair 

follicle test, and father subsequently shaved his head. The 

displeased judge considered it a positive test. The judge declined 

to grant father custody and ordered his visits be monitored. 

At the most recent custody hearing, father was enrolled at 

an outpatient substance abuse program and had last tested 

positive on a drug test in November 2021. Matos did not know 

for which drug. Father told Matos the positive test was for 

“benzos,” but Matos was unsure because she could not access the 

records. Father also disclosed that he used to sell drugs. Mother 

attended the same drug program but was terminated due to 

noncompliance. Mother had been in touch with Matos after the 

children were detained in California and stated she was not 

planning on returning to New York.

Matos expressed belief that father could care for the 

children with support in place. PGM was a support for father but 

was employed. When the DCFS social worker informed Matos 

that father disclosed he had a prescription for oxycodone, Matos 

responded that she had not been informed of this and reiterated,

“substance abuse has always been a concern.”

DCFS interviewed father by telephone a second time on 

February 15, 2022. Father had a medical marijuana card and 

disclosed use of marijuana one or twice a week for PTSD, anxiety, 

and pain in his knees, hands, back, and disc. Father claimed the

pain was due to physical work. He admitted a criminal history,

which included a 2013 possession of cocaine with intent to sell. 

He completed a treatment program and a five-year probation. 

Father was also arrested in 2018 when he was in a car with 

mother that was pulled over due to a warrant for mother 
8

concerning car theft. Father stated he loved mother and “took 

the charge” for the marijuana found in the car.

Other than marijuana, father admitted he was “caught up 

with Xanax” when he was younger and still attended a support 

group. Father stated he was currently attending a drug program 

because of family court.

Father denied being verbally abusive or violent with 

mother. He admitted there was a protective order allowing him 

supervised visitation, but claimed mother “didn’t care unless I 

did something she didn’t like.” Father had no contact with 

mother and did not seek contact; he wanted to have the children 

placed with him in New York. Father said his brother and sisterin-law were also willing to care for the children.

Father acknowledged if he were to drug test that day he 

would test positive for marijuana and oxycodone, which had been 

prescribed for sleep, though he was tapering off oxycodone on a 

“step-down” method. He offered to provide medical records if 

needed. Father was in a treatment program he had started the 

previous August or September, pursuant to an order by the 

family law court, and was tested for drugs by a weekly mouth 

swab.

Father later provided copies of his oxycodone prescription 

and medical marijuana card.

The children remained placed in a foster home.

The scheduled February 24, 2022 hearing was continued 

for the UCCJEA issue to be addressed.

Jurisdiction/disposition report and additional reports

The March 15, 2022 jurisdiction/disposition report included 

additional interviews with mother and extended family.

Mother continued to question father’s paternity, did not 

want the children to return to New York, and did not want 
9

Isabella to have telephone contact with father as he was not her 

biological father. She maintained father was abusive and a drug 

dealer.

Maternal aunt, Ashley H., who lived in New York, 

expressed concern about the children being placed with father 

and described the paternal family as unsafe. She wished to have 

the children placed with her.

PGM was interviewed. She too wanted the children placed 

with her. She confirmed father lived with her intermittently and 

claimed mother made false allegations against her.

In a March 15, 2022 addendum report, DCFS provided a 

February 28, 2022 e-mail from father’s case manager at his drug 

treatment program reflecting that father had been enrolled in the 

treatment program since September 16, 2021; father had 

prescriptions for oxycodone and marijuana; he tested positive for 

cocaine on January 27, 2022, and had otherwise tested negative 

for that drug; father consistently tested positive for marijuana, 

opiates, oxycodone, noroxycodone, and oxymorphone; and father 

was compliant with treatment and focused on regaining custody 

of his son.

Mother reiterated father was abusive. She stated she had 

entered the same treatment program as father, but he was 

“harassing” and “abusive” towards her and made false allegations 

against her. Mother ended their relationship in July or 

December 2021 because it was toxic. Mother stated father yelled 

and behaved irrationally.4

4 The March 15, 2022 jurisdiction/disposition report 

indicated DCFS had not yet completed its investigation into 

Jason’s family heritage for the purposes of the Indian Child 

Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) and California’s 

equivalent law (Welf. & Inst. Code, § 224 et seq.).
10

In a March 24, 2022 last minute information for the court, 

father provided DCFS with documents from the family law case, 

including a court order that Jason not be permanently removed 

from New York while the disposition of the case was pending and 

requiring mother to provide legal proof of paternity.

A May 11, 2022 last minute information for the court 

reflected father’s expression of frustration that the foster mother 

was making it difficult for him to have his phone calls with Jason 

by not complying with the written schedule.

Father provided updated medical records, showing that he 

was being seen for sleep apnea and lumbar disc disorder. Father 

was on a low dose of Percocet for pain and had no side effects. 

Father also submitted a December 27, 2021 certificate for 

completion of parenting classes. A May 10, 2022 letter from 

father’s case manager at his treatment program reported father 

was compliant with the program’s rules, attending required 

sessions and submitting to random weekly drug tests. Father 

was re-assessing his past destructive behaviors and was focused 

on healthy goals to make positive changes. Father had tested 

negative for all mood altering substances within the past 90 days. 

Father’s anticipated completion date for the program was June 

2022.

DCFS recommended against placing Jason with father due 

to father’s use of prescription medication and history of substance 

abuse. DCFS also expressed concern that parents had a history 

of domestic violence, which they had failed to address.

Adjudication and disposition

At the May 11, 2022 adjudication, the juvenile court 

informed the parties the New York court was declining 

jurisdiction. Father and mother appeared via Webex and were 
11

represented by counsel. Mother pled no contest. After hearing 

argument, the juvenile court sustained the amended petition.

Prior to the disposition hearing, DCFS provided a last 

minute information for the court indicating it was not 

recommending that Jason be released to the care of father. 

DCFS stated father “has a long-term substance abuse issue and 

prior treatment and services failed to ameliorate his substance 

abuse issues.” DCFS noted that even while attending treatment, 

father continued to test positive for cocaine, opiates, and 

marijuana.

At the May 25, 2022 disposition hearing, the juvenile court 

heard testimony from mother, Isabella’s father, and father. 

Mother reiterated her concerns about Jason being placed with 

father.

Father testified that he lived with Jason and mother for the 

first two and a half months after Jason was born. Mother was 

then hospitalized several times, and father had Jason during 

those periods. Father stated his visitation was monitored as 

ordered by a restraining order, and PGM and paternal 

grandfather monitored his visits. However, what was ordered for 

visitation was not always what was followed; it was dependent on 

what mother wanted, including father having the children 

overnight. Father stated he was able to have Jason in his home 

and was willing to have Isabella placed with him as well. Father 

did not want Jason placed with Ashley H. because Isabella had 

previously lived with her and was not treated well.

Father’s counsel argued Jason and Isabella should be 

placed in father’s care, or alternatively placement with father’s 

brother should be ordered. Jason’s counsel joined DCFS in 

asking that the child not be placed with either parent at that 

time.
12

The juvenile court declared Jason a dependent of the court, 

removing him from the custody of father based on father’s 

substance abuse. He was also removed from mother’s custody. 

Jason was ordered suitably placed. The court also ordered family 

reunification services and monitored visitation with Jason for 

father. Assessments of the homes of maternal aunt and paternal 

uncle and his wife were ordered.

Father filed a timely notice of appeal.

DISCUSSION

I. Applicable law and standard of review

Section 361, subdivision (c)(1) permits the juvenile court to 

remove a child from the physical custody of his parents if the 

court finds by clear and convincing evidence that “[t]here is or 

would be a substantial danger to the physical health, safety, 

protection, or physical or emotional well-being of the minor if the 

minor were returned home, and there are no reasonable means 

by which the minor’s physical health can be protected without 

removing the minor from the minor’s parent’s . . . physical 

custody.”

“In determining whether a child may be safely maintained 

in the parent’s physical custody, the juvenile court may consider 

the parent’s past conduct and current circumstances, and the 

parent’s response to the conditions that gave rise to juvenile court 

intervention.” (In re D.B. (2018) 26 Cal.App.5th 320, 332.) “The 

parent need not be dangerous and the minor need not have been 

actually harmed before removal is appropriate. The focus of the 

statute is on averting harm to the child.” (In re T.V. (2013) 217 

Cal.App.4th 126, 135-136.)

“When reviewing a finding that a fact has been proved by 

clear and convincing evidence, the question before the appellate 
13

court is whether the record as a whole contains substantial 

evidence from which a reasonable fact finder could have found it 

highly probable that the fact was true.” (Conservatorship of O.B. 

(2020) 9 Cal.5th 989, 1011.) In conducting our review, we must 

“view the record in the light most favorable to the prevailing 

party below and give appropriate deference to how the trier of 

fact may have evaluated the credibility of witnesses, resolved 

conflicts in the evidence, and drawn reasonable inferences from 

the evidence.” (Id. at pp. 1011-1012.)

II. Substantial evidence supported the juvenile court’s 

decision that there existed a substantial danger to 

Jason if placed in father’s custody

Father is not challenging the jurisdictional findings in this 

case, which included allegations that father has a history of 

substance abuse, including Xanax and cocaine, and is a current 

abuser of oxycodone, marijuana and cocaine, rendering father 

incapable of caring for the child. However, father challenges the 

juvenile court’s dispositional order removing Jason from his 

custody.5

Substantial evidence supports the juvenile court’s decision 

that returning Jason to father’s custody would create a 

5 Father cites In re James T. (1987) 190 Cal.App.3d 58 as an 

example of a case in which a jurisdictional order was affirmed but 

the dispositional order reversed. Father highlights language in 

the case suggesting that section 361 “embodies legislative 

solicitude for parental rights.” (James T., at p. 66.) The James T. 

court found the facts of that case fell “far short of the statutorily 

defined cases justifying state intervention to sever, if even 

temporarily, the parent-child relationship.” (Id. at p. 65.) As set 

forth below, the present matter is factually distinguishable, and 

the evidence before the juvenile court here supports the removal 

order.
14

substantial risk of harm to the child. Father has a long-standing 

substance abuse history. He admitted being “caught up with 

Xanax” when he was younger and, despite attending a group for 

that drug use, continued to use drugs. Father has a criminal 

history that included a 2013 possession with intent to sell 

cocaine, for which he completed a treatment program and fiveyear probation. Despite completing those programs, he was 

arrested in 2018 after law enforcement found marijuana in a car 

where mother and father were present. As recently as 

January 2022, father tested positive for cocaine—the same drug 

involved in his 2013 arrest. Father continues to use marijuana 

and oxycodone to address pain despite his history of drug use and 

treatment. The New York CPS social worker indicated 

“substance abuse has always been a concern” with father. This 

history shows that despite various treatments, father continued 

to engage in drug use. Given father’s long history of drug use, 

and continuing use of drugs, the juvenile court did not err in 

determining that there was a substantial risk to Jason if placed

in father’s care.

Father argues that he was participating in a substance 

abuse treatment program at the time of the proceedings and was 

compliant with the program. However, father had previously 

completed drug treatment programs and, despite completing 

those programs, continued to use drugs. Father also argues that 

he lives with PGM and was able to receive Jason at the home of 

PGM. Father has cared for Jason without mother’s help when 

mother was subjected to multiple psychiatric hospitalizations. 

After mother sought a restraining order against him, father 

continued to have monitored visits with the children. However, 

father states he cared for the children anytime mother wanted 

him to, including overnight visits.
15

Father’s history of caring for the children does not 

undermine the juvenile court’s finding that father’s drug use 

placed Jason at substantial risk for future harm. “‘The court 

need not wait until a child is seriously abused or injured to . . . 

take the steps necessary to protect the child.’” (In re I.J. (2013) 

56 Cal.4th 766, 773.) Given father’s long history of substance 

abuse and his failure to overcome the problem through various 

treatments, the juvenile court did not err in finding a substantial 

risk to Jason if placed in father’s custody.

Father cites In re Jasmine G. (2000) 82 Cal.App.4th 282, 

288-289 (Jasmine G.), as an example of a case in which the 

evidence supporting a removal order was too speculative to 

support such action. Jasmine G. involved corporal punishment of 

a teenager by parents who were “employed, ‘law-abiding citizens’

with no alcohol or drug dependencies and no prior encounters 

with the juvenile dependency system.” (Id. at p. 285.) In 

reversing the juvenile court’s decision not to return the child to 

her parents, the Jasmine G. court noted, “The case before us is 

remarkable for the clear and convincing evidence that it was safe 

to return Jasmine to either of her parent’s homes.” (Id. at 

p. 288.) Specifically, both parents had “forsworn corporal 

punishment of teenagers. Both expressed remorse for having 

used corporal punishment on Jasmine. Both had attended 

parenting classes, and both had undergone therapy to improve 

their parenting skills. Jasmine had no fear of either.” (Id. at 

pp. 288-289.) In fact, “Jasmine herself wanted to go home.” (Id. 

at p. 289.)

The present matter is distinguishable. Father’s criminal 

history and admitted history of drug use create a substantial risk 

of harm to Jason, who is not a teenager but a child of tender 

years. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219 
16

[children six years old or younger are considered children of 

“‘tender years’”].) In dependency law, when a child of tender 

years is involved, a finding of substance abuse “‘is prima facie 

evidence of the inability of a parent or guardian to provide 

regular care resulting in a substantial risk of harm.’” (Ibid.)

Father has not challenged the jurisdictional finding that his drug 

use places Jason at substantial risk of harm. Further, unlike the 

parents in Jasmine G., father has not shown he has 

acknowledged and overcome the issues leading to Jason’s 

dependency.

DISPOSITION

The order is affirmed.

___________________________

CHAVEZ, J.

We concur:

_______________________________

ASHMANN-GERST, Acting P. J.

_______________________________

HOFFSTADT, J.